EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #18

Ch. 12. FREE MOVEMENT OF GOODS: DUTIES, CHARGES, INTERNAL TAXES

A. Customs Duties and Charges Having Equivalent Effect (Art. 25 (ex 12))

1.  What is a Charge Equivalent to a Duty?

SOCIAAL FONDS V. SA CH. BRACHFELD, p. 453 (1969). Earmarked charge on all diamond importers based on the value of the diamonds, to finance a diamond workers' social benefit fund.

• Does it matter that there is no domestic industry being protected against import competition?
• Would the decision have been different, if the charge had been on all diamonds held in the country for retail sale? On all diamonds cut or otherwise processed in the country?
• Compare U.S. cases on state laws that "discriminate against interstate commerce"

2.  Are Emergency Duties Permissible?

SOCIÉTÉ LES COMISSIONAIRES RÉUNIS, p. 456 (1978).

• Can the Community itself (here the Council, by regulation) authorize MS to impose import duties "to avoid disturbances on their markets"?
• Is there anything special about the Common Agricultural Policy that permits this?
• How does this case compare with Benjamin (U.S.S.Ct. 1946), which held that Congress could authorize discriminatory state taxes?
• Is the treaty language different from the constitutional language?
• Does the Commerce Clause expressly forbid state laws that disadvantage imports?

B. Discriminatory or Protective Internal Taxation (Art. 90 (ex 95))

1.  Basic Application of Article 90

N.B.: two distinct clauses of art. 90:

(a) differential taxation of similar goods, lower for domestic than for other-MS goods
(b) taxation of other-MS goods, so as to afford protection to other products

HUMBLOT V. DIRECTEUR DES SERVICES FISCAUX, p. 459 (1985)

• What are "similar domestic products"? Are "luxury cars" a distinct product, such that they can be subject to one rate, whereas all non-luxury cars are subject to a different one?
• Would the result have been different, if France had produced one line of luxury cars subject to the higher tax rate?
• cf. the Greek consumption tax case, n. 2 p. 460 - is it distinguishable?
• WEST LYNN CREAMERY, INC. V. HEALY, p. 462 (U.S. 1994): would the ECJ reach the same result?

2.  Alcohol Excise and Consumption Taxes

COMMISSION V. FRANCE, 463 (1980).

• Are all "spirits" (high-alcohol-content beverages) "similar goods"?
• If not, does the French tax distinguishing among them based on what they are made from, "afford indirect protection to" French-made spirits?
• Does the fact that some French-made spirits are disadvantaged, save the tax?

COMMISSION V. U.K., p. 468 (1983)

• How is the tax differential for alcoholic products to be determined: by price, by volume, or by alcoholic strength?
• How much differential is enough to violate art. 90?

COMMISSION V. ITALY, p. 470 (1987): Italy taxes bananas but not other table fruit.

• Does it matter which provision of art. 90 applies?
• What is it about this tax that makes it "protectionist"?

3.  Harmonization of Internal Taxation (art. 93 (ex 99))

SOCRIDIS V. RECEVEUR PRINCIPAL DES DOUANES, p. 472 (1999). Directives allowing differential tax rates on wine and beer, to the disadvantage of beer.

• Assuming that each tax is nondiscriminatory with respect to products from other MS, does the directive require MS to impose taxes which amount to indirect protection of a domestic product, in violation of art. 90?
• are beer and wine in competition with each other?
• if so, do the directives allow the MS sufficient discretion that they can achieve the neutrality required by art. 90?
• Does art. 93 (ex 99) require every tax harmonization measure to specifically prevent MS tax structures which amount to indirect protection of a domestic product in violating of art. 90?
• Could Council validly adopt legislation that authorized MS to adopt protectionist taxes?