Term
| Which article prohibits discriminatory internal taxation |
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Definition
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Term
| What page of your EU legislation book is Article 110 on? |
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Definition
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Term
| What is the purpose of Article 110 TFEU |
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Definition
| To ensure that internal fiscal barriers to the free movement of goods are eliminated - e.g. discriminatory taxing against imported products |
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Term
| Which case confirms that Article 110 can have direct effect? |
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Definition
| Lutticke (Alfons) GmbH v Hauptzollamt Saarlouis [1966] |
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Term
| What is 'special' about the lawfullness of taxes which are regulated by Article 110 |
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Definition
Article 110 regulates all internal taxes that fall within the Denkavit definition. It is only if the internal tax breaches 110(a) or 110(b) that it is unlawful...
INTERNAL TAXES WHICH ARE REGULATED BY ART110 ARE LAEFUL - IT IS ONLY IF THE BREACH 110(A) OR 110(B) THAT THEY BECOME UNLAWFUL |
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Term
| How id Article 110 different from Article 30? |
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Definition
| Article 30 contains an absolute prohibition on all customs duties and CEEs... whereas, internal taxes which are regulated by Art110 are LAWFUL, they only become unlawful if the breach 110(a) or 110(b) |
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Term
| In which case did the CJ define the type of taxes which are regulated by Article 110? |
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Definition
| Dansk Denkavit ApS v Danish Ministry of Agriculture |
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Term
| What definition does the case of Denkavit provide? |
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Definition
| A definition of the type of taxes which are covered by Article 110 |
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Term
| What is the definition of Art110 regulated taxes provided in Denkavit? |
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Definition
| Taxes which are regulated by article 110 = a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike |
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Term
| Does Article 110 impact on Member State's autonomy to determine their own taxation policies? |
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Definition
| NO - provided that the taxation policies do not breach Art 110 (a) or (b) |
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Term
| Under Article 110, what are Member States required to do with regards to 'similar products'? |
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Definition
| Member States are required to tax similar imported and domestic goods in the same way |
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Term
| What is the 'general rule' w.r.t distinguishing between CEEs and taxes? |
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Definition
| The general rule is that CEEs are normally charged at the frontier. HOWEVER, this is a general rule ONLY |
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Term
| Given the flaws in the general rule for distinguishing between CEEs and Taxes, is there a more accurate approach? |
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Definition
| A more accurate way of distinguishing between CEEs and Taxes is... a CEE is borne solely by imports while a tax is borne by both impores and domestic products |
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Term
| Excellent definition of a CEE - Commission v France (The reprographic machinery case) [1981] |
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Definition
| ... covers any charge exacted at the time of or on account of importation which, being borne specifically by an imported product to the exclusion of the similar domestic product, has the result of altering the cost price of the imported product thereby producing the same restrictive effect on the free movement of goods as a customs duty |
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Term
| What does Commission v France (The Reprographic Machinery case) say about distinguishing between CEEs and taxes? |
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Definition
The focus is on the effect of the charge, whether it's effect is like a customs duty or a tax. Recognises that even if there are no similar domestic products, a charge could still be a tax, even though it is only applied to imported goods.
Concludes that the charge in question in the case = tax
Purpose of the tax is to compensate victims of copyright infringement, therefore tax is intended as a levy on reprograhy users - so even though it effect importers more, because there are no domestic producers, the charge still has a purpose as a tax |
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Term
| As it is difficult to distinguish between taxes and CEEs, when bringing a claim, what is the most prudent approach to take? |
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Definition
| Cite both Article 30 and Article 110, and let the court decide which it falls under |
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Term
| What exactly does Article 110 (a) do? |
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Definition
| it prohibits discriminatory taxation in regard to imported and similar domestic goods |
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Term
| What exactly does Article 110 (b) do? |
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Definition
| It prohibits Member States from using taxation to protect domestic goods that, though not similar to the imported goods, are in competition with them |
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Term
| How could a member state breach Article 110 (a) |
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Definition
| By imposing an internal tax which either directly or indirectly discriminates against imported goods against similar domestic goods |
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Term
| How could a member State breach Article 110(b) |
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Definition
| By imposing an internal tax which discriminates against imported goods and indirectly benefits domestic goods which are in competition with the imported goods |
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Term
| How does the CJ determine whether goods are similar? |
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Definition
| The CJ adopts a broad approach that involves an economic analysis in relation to the characteristics of the goods as well as their comparitive use |
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Term
| In the case of Commission v Denmark (The wine case), why did the CJ decide that the goods were similar? |
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Definition
The CJ held that wine made from fruit and wines made from grapes are similar because:
1) they were manufactured from the same basic product and process
2) Their taste and alcohol content were similar
3) they both met the same needs of consumers |
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Term
| Commission v Denmark (The wine case) |
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Definition
GOODS DO NOT NEED TO BE IDENTICAL, MERELY SIMILAR AND COMPARABLE
A wine made from fruit and a wine made from grapes were held to be similar items, because =
1)similar production process
2)similar base materials
3)similar taste
4) similar alcohol content
5) served a similar purpose |
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Term
| In the case of Walker (John) v Ministeriet for Skatter, why did the CJ hold that the two items were NOT similar? |
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Definition
Whisky vs Fruit liquors
The CJ held that despite containing the same raw ingredient, they were not similar because:
1) Whisky was 40% alcohol, liquors = 20%
2)Whisky was ceral based and distilled... liquors = fruit based and naturally fermented |
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Term
| Walker (John) v Ministeriet for Skatter |
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Definition
Two items had manifestly different characteristics, therefore = not similar
1) different alcohol content
2) different production technique
3) slightly different materials |
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Term
| Tarantik v Direction des Services Fiscaux de Seine et Marne |
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Definition
CASE CONCERNING WHETHER TWO DIFFERENT MODELS OF CAR WERE SIMILAR OR NOT
CJ held that goods = similar if...
1) their characteristics and the needs which they serve place them in a competitive relationship
2) goods are similar if the degree of competition between them depends upon the extent to which they meet various requirements regarding price, size, comfort,m performance, fuel consumption, durability, reliability and other matters |
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Term
| What is the test laid out in Tarantik for determining whether two models of car are similar products or not? |
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Definition
CJ held that goods are similar if they meet the following 2 criteria...
1) their characteristics and the needs which they serve place them in a competitive relationship
2) goods are similar if the degree of competition between them depends upon the extent to which they meet various requirements regarding price, size, comfort,m performance, fuel consumption, durability, reliability and other matters |
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Term
| What is direct tax discrimination? |
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Definition
| It involves a tax system which openly treats imported goods less favourably than similar domestic goods |
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Term
| Commission v Italy (regenerated oil case) [1980] |
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Definition
EXAMPLE OF DIRECT TAX DISCRIMINATION
Italian government had a policy of charging lower taxes on regenerated oil than on normal oil. However, this benefit was only available to domestic oil producers. Italian government argued that it wouldn't be able to find out if imported oil was regenerated or not - defence failed.
The tax was held to be directly discriminatory against foreign regenerated oil, and was therefore a breach of Article 110 (1) |
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Term
| What is indirect tax discrimination? |
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Definition
| a tax system will be indirectly discriminatory where, although on its face it makes no distinction between domestic and imported goods, it has the effect in fact of discriminating against imported products |
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Term
| Are indirectly discriminating measures ever acceptable / accepted by EU institutions / in EU law? |
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Definition
| Yes, a general underlying theme of EU law that indirectly discriminating measures may be acceptable if they have objective justifications and are proportionate |
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Term
| How can you distinguish between the identified direct discrimination in Commission v italy, and the identified indirect discrimination in Humblot v Directeur des Services Fiscaux? |
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Definition
| Because, in the Italian case, it was explicitly acknowledged that it was biased against foreign importers, with the justification that there was no way of regulating the foreign importers... however, in the Humblot case, on the face of it, it does not admit to differentiating between importers and domestic goods |
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Term
| What is the lkeading case on Indirect tax discrimination? |
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Definition
| Humblot v Directeur des Services Fiscaux |
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Term
| Humblot v Directeur des Services Fiscaux |
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Definition
C had paid a large tax on a car with an engine size of 36cv. The french taxation system meant that tax for engine sizes up to 16cv rose in steady increments, however, above that, a high flat rate tax was applied to all bigger engines. As France didn't produce any cars with engine sizes bigger than 16CV, this = indirect tax discrimination.
CJ held that this placed imported cars at a major disadvantage.
France attempted to fix the problem by making the tax on engines about 16CV graduated... however, it was still found to be indirectly discriminatory, because there was still a big leap between the tax paid for 16cv and anything above that |
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Term
| What happens once a taxation system is found to indirectly discriminate against imports? |
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Definition
| It is NOT automatically unlawful... if the discrimination is objectively justifiable, then the indirect discrimination may be allowed to remain. |
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Term
| What happens once a taxation system is found to be directly discriminate against imports? |
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Definition
Article 110 (a) has been contravened and the tax is unlawful
Directly discriminate taxes are never justifiable |
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Term
| How can a State show that an indirectly discriminatory taxation system is objectively justifiable? |
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Definition
1)If it is in the national interest
2) If it serves a legitimate EU aim
3) If the steps taken to protect the interest are proportionate. |
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Term
| Commission v Greece (bigger car tax case) |
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Definition
Greek government imposed a higher tax on bigger cars, all of which were imported. However, the the increase in the rate of tax was gradual, and not hugely above the rate charged on similar cars. Also, the Greek government justified it on the grounds of pollution prevention.
CJ held that they could not prove indirect discrimination, and the Greek tax was therefore lawful |
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Term
| How does Commission v Greece compare with Humblot? |
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Definition
HUMBLOT = ART 110(A) BREACH
GREECE = ART 110 (A) OBJECTIVELY JUSTIFIABLE
In Humblot, the tax for bigger cars was considerably higher, and not a gradual increase... whereas in Greece, the tax on bigger cars was reasonably and proportionately applied. |
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Term
| What does Article 110(2) do? |
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Definition
| It regulates taxation on non-similar goods which are nevertheless in competition with each other |
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Term
| How dissimilar can goods protected under Article 110(2) be? |
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Definition
| They can be very dissimilar. Even ostensibly dissimilar goods will be caught by Article 110(2) if they are partially, indirectly, or potentially in competition with each other |
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Term
| Commission v France (The spirits case) [1980] |
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Definition
CJ held that Whisky and Brandy & Calvados were in competition with each other, and taxes on them were therefore caught by Article 110(2)...
The main test for whether goods are in competition with each other = substitutibility - if one good is rendered more expensive, are consumers likely to switch to the other good? |
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Term
| In Commission v France (The spirits case), what test is applied in order to assess whether goods are in competition with each other? |
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Definition
| Substitutibility test - if one good is rendered more expensive, are consumers likely to switch to the other good? (Cross price elasticity of demand) |
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Term
| Commission v UK (The wine and beer case) |
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Definition
UK issued a tax on wine which was approx 4X the tax on beer
Wine and Beer were held to be substitutes for a number of reasons:
1)both were the result of natural fermentation
2) both served the same purpose, quenching thirst or accompanying meals
3) competitive relationship between cheaper varieties of wine and beer
CJ held that the two items were in competition with each other, CJ concluded that the lower tax on beer had the effect of causing wine to be viewed as a luxury item - and argued that in the absence of the protective regime, more consumers would switch to wine (NOTE: wine is largely imported into the UK, whereas Beer = made here) |
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Term
| What happens w,r.t Article 110, where a country imposes a tax on imports, where the country itself produces no similar / competing products? |
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Definition
| Article 110 is still of potential application (rather than Article 30), as countries are still required to apply tax to categories of products in accordance with objective criteria, without reference to the origin of the product |
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Term
| Cooperativa Co-Frutta Srl v Amministrazione delle Finance dello Stato |
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Definition
| Italy imposed a tax on bananas - italy doesn't produce bananas. CJ held that there was no 110 (1) breach, as there was no similar product. However, CJ held that there could still be partial competition between bananas and other table fruit, therefore = Article 110(2) breach. CJ held that it was a 110(2) breach, rather than 30 breach, because the tax was part of a general system of dues applied systematically to a category of product in accordance with objective criteria. |
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Term
| Why did the CJ rule in Cooperative Co-frutta that the levy was a tax, not a CEE? |
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Definition
Two reasons:
1) The levy was part of a general system of dues applied systematically to a category of product in accordance with objective criteria
2) Because of common sense, otherwise it would mean that no Member state would be able to place a levy on any item it did not produce itself |
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Term
| What remedy is available where the CJ finds an Article 110(1) breach> |
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Definition
| the Member state must equalize the tax regime in respect of the similar product (e.g. by applying the same tax regime to both products) |
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Term
| What remedy is available where the CJ finds an Article 110(2) breach? |
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Definition
| The Member State is required to remove the protective effect between the non-similar products, HOWEVER, they are not necessarily required to equalise the tax regime (e.g. don't have to apply the same tax to both products) |
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Term
| Would a state rather that the CJ finds an Art110(1) breach, or an Art 110(2) breach? |
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Definition
| Art 110(2), as the remedy does not necessarily require an equalization of tax regimes. It simply requires the state to remove the protective effect. |
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