Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

1 . TAX PROVISIONS - INTERNAL TAXES - DISCRIMINATION - CRITERIA - ACTUAL EFFECT OF TAXATION BORNE BY NATIONAL PRODUCTS AND IMPORTED PRODUCTS RESPECTIVELY - CRITERIA

( EEC TREATY , FIRST PARAGRAPH OF ART . 95 )

2 . TAX PROVISIONS - INTERNAL TAXES - DISCRIMINATORY TAXATION - JUSTIFICATION - INAPPROPRIATE EXCHANGE RATE FOR NATIONAL CURRENCY - NOT PERMISSIBLE

( EEC TREATY , ART . 95 )

3 . TAX PROVISIONS - INTERNAL TAXES - HARMONIZATION OF LAWS - PRELIMINARY CONDITION FOR APPLICATION OF ARTICLE 95 OF THE TREATY - NONE

( EEC TREATY , ARTS . 95 , 99 AND 100 )

Summary

1 . IT IS NECESSARY , FOR THE PURPOSES OF THE APPLICATION OF THE PROHIBITION ON DISCRIMINATION LAID DOWN IN ARTICLE 95 OF THE EEC TREATY , TO TAKE INTO CONSIDERATION , NOT ONLY THE RATE OF TAX , BUT ALSO THE PROVISIONS RELATING TO THE BASIS OF ASSESSMENT AND THE DETAILED RULES FOR LEVYING THE VARIOUS DUTIES . IN FACT THE DECISIVE CRITERION OF COMPARISON FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 95 IS THE ACTUAL EFFECT OF EACH TAX ON NATIONAL PRODUCTION ON THE ONE HAND AND ON IMPORTED PRODUCTS ON THE OTHER , SINCE EVEN WHERE THE RATE OF TAX IS EQUAL , THE EFFECT OF THAT TAX MAY VARY ACCORDING TO THE DETAILED RULES FOR THE BASIS OF ASSESSMENT AND LEVYING THEREOF APPLIED TO NATIONAL PRODUCTION AND IMPORTED PRODUCTS RESPECTIVELY .

2 . IF A MEMBER STATE CONSIDERS THAT THE DIFFERENCE BETWEEN THE EXCHANGE RATES FOR ITS CURRENCY AND THAT OF ANOTHER MEMBER STATE HAVE NOT BEEN FIXED APPROPRIATELY , IT SHOULD SEEK THE REMEDY FOR THAT SITUATION BY THE APPROPRIATE MEANS . IT IS NOT ENTITLED ITSELF TO CORRECT SUCH A MONETARY SITUATION BY MEANS OF DISCRIMINATORY TAX PROVISIONS CONTRARY TO ARTICLE 95 OF THE EEC TREATY .

3 . ALTHOUGH OBSTACLES TO THE FREE MOVEMENT OF GOODS MAY BE ELIMINATED BY APPLYING THE PROCEDURE FOR THE HARMONIZATION OF TAX LEGISLATION UNDER ARTICLES 99 AND 100 OF THE TREATY THE IMPLEMENTATION OF THOSE PROVISIONS AND PARTICULARLY OF ARTICLE 99 CANNOT BE PUT FORWARD AS A CONDITION FOR THE APPLICATION OF ARTICLE 95 , WHICH IMPOSES ON MEMBER STATES WITH IMMEDIATE EFFECT THE DUTY TO APPLY THEIR TAX LEGISLATION WITHOUT DISCRIMINATION EVEN BEFORE THERE IS ANY HARMONIZATION .

Parties

IN CASE 55/79

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTHONY MCCLELLAN , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

IRELAND , REPRESENTED BY LOUIS J . DOCKERY , CHIEF STATE SOLICITOR , ACTING AS AGENT , ASSISTED BY NIAL FENNELLY , S.C ., WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT BY MAINTAINING IN FORCE THE NATIONAL PROVISIONS AND PRACTICES RELATING TO THE LEVYING OF EXCISE DUTIES ON SPIRITS , BEER AND MADE WINE , IRELAND HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 95 OR ARTICLE 30 OF THE EEC TREATY ,

Grounds

1 BY APPLICATION OF 9 APRIL 1979 , THE COMMISSION BROUGHT PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT , BY THE DISCRIMINATORY APPLICATION OF PROVISIONS RELATING TO THE DEFERMENT OF PAYMENT OF EXCISE DUTY ON SPIRITS , BEER AND MADE WINE , IRELAND IS IN BREACH OF THE FIRST PARAGRAPH OF ARTICLE 95 OR , ALTERNATIVELY , ARTICLE 30 OF THE EEC TREATY .

2 THE FACTS WHICH GAVE RISE TO THE ACTION ARE NOT CONTESTED BY IRELAND . IT IS IN FACT COMMON GROUND THAT THE LEGAL PROVISIONS APPLICABLE IN IRELAND , IN PARTICULAR PURSUANT TO THE IMPOSITION OF DUTIES ( NO 221 ) ( EXCISE DUTIES ) ORDER 1975 , PROVIDE IN FAVOUR OF PRODUCERS OF SPIRITS , BEER AND MADE WINE FOR DEFERMENT OF PAYMENT OF BETWEEN FOUR AND SIX WEEKS ACCORDING TO THE PRODUCT WHEREAS , IN THE CASE OF THE SAME PRODUCTS FROM OTHER MEMBER STATES , THE DUTY IS PAYABLE EITHER AT THE DATE OF IMPORTATION OR OF DELIVERY FROM THE CUSTOMS WAREHOUSE .

3 THE COMMISSION ACKNOWLEDGES THAT THERE IS NO DISCRIMINATION AS REGARDS THE RATES OF DUTY APPLICABLE . ON THE OTHER HAND , IT CONSIDERS THAT THE FACT THAT IRISH PRODUCTS ARE GRANTED DEFERMENT OF PAYMENT BEYOND THE DATE ON WHICH THE PRODUCTS ARE PUT ON THE MARKET AMOUNTS TO CONFERRING ON NATIONAL PRODUCERS A FINANCIAL BENEFIT IN COMPARISON WITH IMPORTERS WHO ARE OBLIGED TO PAY THE DUTY ON THE ACTUAL DATE ON WHICH THE PRODUCTS ARE RELEASED TO THE MARKET . THIS RESULTS , ACCORDING TO THE COMMISSION , IN A DISADVANTAGE TO IMPORTED PRODUCTS IN COMPETITION WITH THE CORRESPONDING IRISH NATIONAL PRODUCTION .

4 THE COMMISSION STATES THAT IT BROUGHT PROCEEDINGS UNDER ARTICLE 169 AS A RESULT OF THE COMPLAINTS RECEIVED FROM IMPORTERS WHO HAD UNSUCCESSFULLY REQUESTED THE IRISH AUTHORITIES TO GRANT THEM THE SAME DEFERRED PAYMENT FACILITIES AS IRISH PRODUCERS . AS A RESULT OF THE REPRESENTATIONS MADE BY THE COMMISSION IN THIS CONN