Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1968/R767.html
Cite as: [1968] EUECJ R-7/67

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61967J0007
Judgment of the Court of 4 April 1968.
Firma Milchwerke H. Wöhrmann & Sohn KG v Hauptzollamt Bad Reichenhall.
Reference for a preliminary ruling: Finanzgericht München - Germany.
Case 7-67.
European Court reports
French edition 1968 Page 00261
Dutch edition 1968 Page 00252
German edition 1968 Page 00268
Italian edition 1968 Page 00238
English special edition 1968 Page 00177
Danish special edition 1965-1968 Page 00501
Greek special edition 1965-1968 Page 00737
Portuguese special edition 1965-1968 Page 00809

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AGRICULTURE - COMMON AGRICULTURAL POLICY - COMMON ORGANIZATION OF THE MARKETS - MILK AND MILK PRODUCTS - IMPORTATION FROM THIRD COUNTRIES - CHARGE BY WAY OF TURNOVER TAX - NOT A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY - LEGALITY
( REGULATION NO 13/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964, ARTICLE 12(2 ))

A TAX IMPOSED ON THE IMPORTATION OF PRODUCTS FROM THIRD COUNTRIES DOES NOT CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 12(2 ) OF REGULATION NO 13/64 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN MILK AND MILK PRODUCTS WHEN IT IS IMPOSED AS A CHARGE UNDER THE NATIONAL SYSTEM OF TURNOVER TAX .
CF . PARAGRAPH 5, SUMMARY, CASE 57/65, ( 1966 ) ECR 295 .

IN CASE 7/67
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ), MUNICH, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
FIRMA MILCHWERKE H . WOEHRMANN UND SOHN KG, APPELDOORN,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ), BAD REICHENHALL,

ON THE INTERPRETATION OF ARTICLE 12(2 ) OF REGULATION NO 13/64/EEC OF THE COUNCIL ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL, 27 FEBRUARY 1964, P.549 ),

P . 183
BY ORDER OF 15 FEBRUARY 1967, WHICH REACHED THE COURT ON 20 FEBRUARY 1967, THE FINANZGERICHT, MUNICH, REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY SEVERAL QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 12(2 ) OF REGULATION NO 13/64/EEC OF THE COUNCIL ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN MILK AND MILK PRODUCTS .
IN QUESTION ( A ) THE COURT REFERRING THE QUESTION ASKS THE COURT TO RULE WHETHER ' THE CHARACTER OF A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 12(2 ) OF REGULATION NO 13/64 IS DETERMINED BY THE GENERAL PROTECTIVE PURPOSES OF THE CHARGE OR ELSE BY THE PROTECTIVE EFFECT WHICH IT EXERTS IN FACT IN THE CASE OF A GIVEN PRODUCT '.
THIS QUESTION MUST BE EXAMINED IN THE LIGHT OF THE FACTS OF THE MAIN ACTION AS THEY HAVE BEEN INDICATED BY THE COURT MAKING THE REFERENCE .
FROM THESE DATA IT EMERGES THAT THE ACTION CONCERNS THE APPLICATION OF AN EQUALIZATION TAX, UNDER THE LEGISLATION RELATING TO THE TURNOVER TAX, TO IMPORTATION OF MILK PRODUCTS COMING FROM A THIRD STATE .
IN THESE CIRCUMSTANCES THE QUESTION PUT BY THE COURT MAKING THE REFERENCE MUST RECEIVE AN ANSWER BASED ONLY ON THE PROVISIONS OF ARTICLE 12(2 ) OF REGULATION NO 13/64, AS ARTICLE 95 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY APPLIES EXCLUSIVELY TO PRODUCTS ORIGINATING IN MEMBER STATES .
ACCORDING TO ARTICLE 12(2 ) OF THE SAID REGULATION, ' ON IMPORTS FROM THIRD COUNTRIES THE FOLLOWING SHALL BE INCOMPATIBLE WITH THE APPLICATION OF THE PRESENT REGULATION :
- THE CHARGING OF ANY CUSTOMS DUTY OR CHARGE HAVING EQUIVALENT EFFECT '.
THE QUESTION PUT TO THE COURT IS THUS INTENDED TO INQUIRE WHETHER A CHARGE IMPOSED IN THE CIRCUMSTANCES SET OUT BY THE COURT MAKING THE REFERENCE COMES UNDER THIS PROHIBITION .
REGULATION NO 13/64 HAS AS ITS PURPOSE IN PARTICULAR TO SUBSTITUTE A UNIFORM SYSTEM OF LEVIES FOR ALL THE PROTECTIVE MEASURES OF DIFFERENT KINDS PREVIOUSLY APPLIED BY MEMBER STATES .
P . 184
IN CONSEQUENCE, ARTICLE 12(2 ) OF THE SAME REGULATION ABOLISHED ALL NATIONAL MEASURES HAVING PROTECTIVE EFFECTS SIMILAR TO THOSE OF THE LEVY .
TAXATION SUCH AS THAT WHICH IS THE SUBJECT OF THE MAIN ACTION, LEVIED WITHIN THE FRAMEWORK OF LEGISLATION RELATING TO THE TURNOVER TAX, DOES NOT CONSTITUTE A SPECIFIC TAX ON IMPORTED PRODUCTS, BUT A GENERAL TAX APPLYING WITHOUT DISTINCTION TO ALL CATEGORIES OF PRODUCTS, WHETHER DOMESTIC OR IMPORTED, EVEN IF CHARGED AT THE MOMENT OF IMPORTATION .
SUCH A CHARGE, OF AN ESSENTIALLY FISCAL NATURE, WHEN IT IS IMPOSED ON IMPORTATION, IS INTENDED TO PLACE IN A COMPARABLE FISCAL SITUATION ALL CATEGORIES OF PRODUCTS WHATEVER THEIR ORIGIN MAY BE .
HENCE, IN THE ABSENCE OF A PROTECTIVE PURPOSE, AN INTERNAL TAX OF THE TYPE REFERRED TO BY THE COURT MAKING THE REFERENCE CANNOT BE CONSIDERED AS A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 12(2 ) OF REGULATION NO 13/64 .
IN CONSEQUENCE, AS THE SUPPOSITIONS ON WHICH QUESTIONS ( B ), ( C ) AND ( D ) WERE PUT HAVE NOT BEEN REALIZED, THOSE QUESTIONS HAVE LOST THEIR PURPOSE .

THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT, MUNICH, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT, MUNICH, BY ORDER OF THAT COURT DATED 15 FEBRUARY 1967, HEREBY RULES :
A TAX IMPOSED ON THE IMPORTATION OF PRODUCTS ORIGINATING IN THIRD COUNTRIES DOES NOT CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 12(2 ) OF REGULATION NO 13/64 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN MILK AND MILK PRODUCTS WHEN IT IS IMPOSED AS A CHARGE UNDER THE NATIONAL SYSTEM OF TURNOVER TAX;
AND DECLARES :
IT IS FOR THE COURT MAKING THE REFERENCE TO DECIDE ON THE COSTS IN THE PRESENT CASE .