Relationship between Articles 30 and 110 PDF

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Relationship between Art & 110 T.F.E.The two sets of Articles are mutually exclusive.Art-30 T.F.E. relate to charges levied as result of goods crossing border.Art T.F.E. prevents discrimination against goods once entered internal system of taxation.Q. How to distinguish between CEEs (Art. 30...

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Relationship between Art.30 & 110 T.F.E.U. The two sets of Articles are mutually exclusive. Art.28-30 T.F.E.U. relate to charges levied as result of goods crossing border. Art.110 T.F.E.U. prevents discrimination against goods once entered internal system of taxation.

Q. How to distinguish between CEEs (Art. 30) and discriminatory internal taxation (Art.110)? A. Not always easy.   

If charge imposed exclusively on importers – most likely a CEE If imposed on domestic producers and importers alike, more likely to be an internal tax (but subject to Capolongo – below ) BUT, this is not definitive .

Three scenarios to consider: 1. Sometimes Court decides charge or levy taken at border not C.E.E. under art.30 T.F.E.U. but tax under art.110 T.F.E.U.). This was explored in Denkavit (C 29/87) If charge is identical in every respect and levied as part of general system of taxation, will not fall within art.30 TFEU & will be treated as fiscal measure and examined for compatibility with art.110 TFEU

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Denkavit (29/87) – applicant was importer of feedingstuffs from Holland into Denmark. Danish law charged annual levy on all importers and domestic producers to meet costs of checking samples of goods. Levy on importers charged at border. Levy was imposed on all those in feedingstuffs trade, whether importers or domestic producers. Because levy was applied systematically & in accordance with same criteria to both domestic & imported products, not unlawful under art.110 TFEU. If same charge is levied on particular product, regardless of source, it will nonetheless breach art.30 TFEU if charge on imported product is not imposed in same way & determined according to same criteria as apply to domestic product.

Two further cases on this point : 

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Marimex (C29/72) – charge imposed on domestic and imported meat in respect of veterinary inspections required by Italian legislation. Held to be CEE, contrary to art.30 TFEU, because imported & domestic meat was inspected by different bodies applying different criteria. Bresciani (C87/75) – charge imposed for veterinary inspections on imported raw cowhides, compulsory under Italian law: “The fact that domestic production is, through other charges, subjected to a similar burden matters little, unless the charges are applied according to the same criteria and at the same stage of production, thus making it possible for them to be regarded as falling within a general system of taxation applying systematically and in the same way to domestic and imported products”

2. What happens where imported State does not make imported product (or very little of it) but imposes a tax on it nonetheless? Tax under art.110 T.F.E.U. or charge under art.30 T.F.E.U.? Co-Frutta (C193/85). Co-Frutta (C193/85) – Italy imposed consumption tax on bananas. Italy produced a lot of table fruit but very few bananas. If charge imposed by MS on imported good that did not produce at all (or produced very little of) were classified as CEE under Art.30 TFEU, charge would automatically be unlawful & MS would be prevented from taxing goods that it did not produce itself ( which would clearly be wrong ). There may be good reason why State should choose to impose tax on product even if does not produce it. Charge not necessarily regarded as lawful because can still be assessed for compatibility with art.110 (2) TFEU. Tax held to have a protective effect on domestically produced table fruit here. 3. Sometimes State chooses to use money to benefit only particular group or to make

selective refund of tax or - Capolongo (C 77/72) & Fratelli Cucchi (C 77/76). Capolongo (77/72) – Italy established body, ENCC Task = to promote development of cellulose production in Italy by providing subsidies to national producers. Body funded by government levy on both domestically produced & imported cellulose. Held: duty within general system of taxation could constitute charge having equivalent effect to customs duty under art.30 TFEU where charge was “intended exclusively to support activities which specifically benefit the taxed [domestic] product.” Fratelli Cucchi (C 77/76) – what happens where MS levies tax on both domestic & imported good but then refunds tax, either fully or partially, to domestic producers specifically for advantage of taxed domestic product? Where full refund, tax prohibited under Art.30 TFEU because tax, in effect, becomes charge levied solely on imported product. Where partial refund, tax will be assessed under Art.110 TFEU – could be deemed to be discriminatory tax. For refunded tax to be considered under Art.30 TFEU rather than Art.110 TFEU, “firstly, the charge must be destined exclusively for financing activities which very largely benefit the taxed domestic product; secondly, there must exist identity between the taxed product and the domestic product benefiting from the charge; ( I.E. MUST BE THE SAME ) and thirdly, the charges imposed on the domestic product must be completely compensated.”( MADE UP IN FULL ) NB: Conversely, if the charge is not fully redeemed– this constitutes a tax contrary to Art 110 because the domestic good is subject to less tax than the import....