Court of Justice 22-03-1977 ECLI:EU:C:1977:52

Facts and procedure

Firma Steinike & Weinlig, Hamburg, the plaintiff in the main action, imported citrus concentrates from Italy and third countries into the Federal Republic of Germany. As imported the juices are not fit for human consumption but are processed by the firm into basic materials for the soft drinks industry. When the imported product was processed a demand was made on the plaintiff in the main action by the competent federal agency for a contribution intended to finance a ‘Fonds zur Absatzförderung der deutschen Land-, Forst- und Ernährungswirtschaft’ (Fund for sales promotion in the German Agricultural and Food Industry and in German Forestry), hereinafter referred to as ‘the Fund’. The objective of this fund, set up by a Federal Law of 26 June 1969 (BGBl. I, p. 635) is to promote, by means of a body called ‘Centrale Marketing Gesellschaft’ (CMG), the sale and export of products of the German agricultural and food industry and of German forestry by opening up and fostering markets at home and abroad. The CMG engages in collective advertising, organizes fairs and exhibitions and undertakes market research etc.

According to Paragraph 1 of the Law, the Fund is an institution governed by public law and is financed inter alia by federal grants and contributions from undertakings in the agricultural, forestry and food sector. The amount of the contribution depends upon the kind of undertakings concerned. Agricultural and forestry undertakings pay a contribution which is fixed according to land tax or head of cattle; processing undertakings pay a contribution based on ‘the most direct link in the marketing process between producer and consumer’. With this objective Paragraph 10 (8) of the Law of 26 June 1969 establishing the Fund fixes the rate and basis of the payment of the contribution in question sector by sector (sugar refineries, mills, breweries etc.). With regard to fruit and vegetables the relevant provision is Paragraph 10 (8) (e) which provides that a contribution shall be payable by fruit and vegetable processing undertakings at the rate of DM 0-30 per DM 100 worth of unprocessed fruit and vegetables when processed or when first processed in so far as such products are not liable to the contribution referred to in Paragraph 10 (8) (d).

Until 1972 fruit and vegetables imported from abroad contributed to the financing of the Fund if they were processed in the Federal Republic of Germany into further products for, in this case, they were regarded as benefiting likewise from the sales promotion, but the Law on the Fund was amended by a Law of 23 March 1972 exempting from then on citrus concentrates from the contribution.

In the national court the plaintiff in the main action challenged the legality of the contribution which it was required to pay (DM 20 000 over a period of 19 months) on the ground that this contribution financed a State aid prohibited by Article 92 of the Treaty.

The Verwaltungsgericht Frankfurt, before which the action came, referred the following questions to the Court:

1. Do the procedural rules prescribed in Article 93 of the EEC Treaty preclude a national court from obtaining a preliminary ruling on Article 92 of the EEC Treaty and subsequently from deciding upon the application of this provision?

2. Is the meaning of the expression ‘undertakings or the production of certain goods’ in Article 92 of the EEC Treaty restricted to private businesses or does it also include nonprofit-making institutions governed by public law?

3. Is the concept ‘any aid granted through State resources’ satisfied even if the State agency itself receives aid from the State or private undertakings?

4. Is there aid in the sense of granting a gratuitous advantage if the recipient of aid is not a private undertaking but a State agency, and can there be said to be gratuitousness when the charge on the individual undertaking is insignificant in relation to the total amount of contributions?

5. Is competition distorted and trade between Member States affected if the market research and advertising carried on by the State agency in its own country and abroad is also carried on by similar institutions of other Community countries?

6. If the charge is not levied on the imported goods themselves but on their processing, is it a charge having equivalent effect under Articles 9 (1), 12 and 13 (2) of the EEC Treaty?

7. Does the imposition of taxation on ‘the products of other Member States’ not when they are imported but only when they are processed amount to discrimination within the meaning of Article 95 of the EEC Treaty?

According to the grounds of the order of reference the questions raised are based on the following considerations:

• In the opinion of the national court it is doubtful whether the effect of the procedure referred to in Article 93 of the Treaty, according to which it is for the Commission to find whether aid granted by a State is compatible with Article 92 of the Treaty, is to prevent national courts from considering a national provision granting or providing for aid and, if necessary, finding that it is incompatible with Article 92 of the Treaty. Such a prohibition would give rise to misgivings of a constitutional nature and it would seem doubtful whether it would be necessary to interpret Article 93 in such a way.

• Article 92 (1) refers to aid ‘favouring certain undertakings or the production of certain goods’ and it is necessary to determine whether these words likewise cover non-profit-making institutions governed by public law, such as the Fund.

• Article 92 prohibits aid granted through State resources and in view of the facts of the case it is necessary to inquire whether this applies where the institution which grants the aid is financed by contributions from undertakings which it benefits. Is there aid in the sense of a gratuitous benefit when the beneficiary is a State institution or has an undertaking a gratuitous advantage because it makes only an insignificant contribution compared with the benefit which it draws from the Fund?

• The national court doubts whether an aid fund of the kind in question is such as to distort competition and affect trade within the Community, as specified by Article 92, since similar funds exist in the other Member States.

• Since the contribution to the Fund is levied not when the product in question is imported but when it is subsequently processed and since the contribution relates to goods not produced in Germany, the national court wishes to be able to judge whether the conditions which, according to the case-law of the Court of Justice, determine whether there is a charge having equivalent effect (Articles 12 and 13) or discriminatory internal taxation (Article 95) are fulfilled.

The order of reference of 22 July 1976 was registered at the Registry of the Court of Justice on 2 August 1976.

The plaintiff in the main action, the Government of the Federal Republic of Germany, and the Commission of the European Communities submitted written observations pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Upon reading the report of the Judge-Rapporteur, and upon hearing the Advocate-General, the Court decided to open the oral procedure without any preparatory inquiry.

Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

The first question

The Verwaltungsgericht asks first whether the procedural rules prescribed in Article 93 of the EEC Treaty preclude a national court from obtaining a preliminary ruling on Article 92 of the EEC Treaty and subsequently from deciding upon the application of this provision. This question is concerned with how far the national courts can invoke Article 92 of the Treaty in the legal systems of the Member States whether it be at the behest of parties or of their own motion.

Article 92 (1) provides: ‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market’. Article 92 (2) lists three kinds of aid which are not affected by the prohibition in Article 92 (1) and Article 92 (3) lists three further kinds of aid which may in certain circumstances be considered to be compatible with the Common Market and empowers the Council to specify other categories which may be exempted from the prohibition in Article 92 (1).

Further the third subparagraph of Article 93 (2) of the Treaty provides: ‘On application by a Member State, the Council, may, acting unanimously, decide that aid which that State is granting or intends to grant shall be considered to be compatible with the common market, in derogation from the provisions of Article 92 or from the regulations provided for in Article 94, if such a decision is justified by exceptional circumstances. If, as regards the aid in question, the Commission has already initiated the procedure provided for in the first subparagraph of this paragraph, the fact that the State concerned has made its application to the Council shall have the effect of suspending that procedure until the Council has made its attitude known’. The Council may under Article 94 of the Treaty ‘make any appropriate regulations for the application of Articles 92 and 93 and may in particular determine the conditions in which Article 93 (3) shall apply and the categories of aid exempted from this procedure’. Finally regard must be had to the powers given to the Council by Article 12 in respect of agricultural products.

These provisions show that the prohibition in Article 92 (1) is neither absolute nor unconditional since Article 92 (3) and Article 93 (2) give the Commission a wide discretion and the Council extensive power to admit aids in derogation from the general prohibition in Article 92 (1).

In judging in these cases whether State aid is compatible with the common market complex economic factors subject to rapid change must be taken into account and assessed. Article 93 of. the Treaty therefore provides for a special -procedure whereby the Commission shall keep aid under constant review. With regard to aid existing before the Treaty entered into force Article 93 (2) provides that the Commission may decide that the State concerned shall abolish or alter the aid within a period of time to be determined by the Commission. With regard to new aid which the Member States intend to introduce a special procedure is provided and if it is not followed the aid is not regarded as being regularly introduced. The conclusion to be drawn from all these considerations is that the intention of the Treaty, in providing through Article 93 for aid to be kept under constant review and supervised by the Commission, is that the finding that an aid may be incompatible with the common market is to be determined, subject to review by the Court, by means of an appropriate procedure which it is the Commission's responsiblility to set in motion.

The parties concerned cannot therefor simply, on the basis of Article 92 alone, challenge the compatibility of an aid with Community law before national courts or ask them to decide as to any compatibility which may be the main issue in actions before them or may arise as a subsidiary issue. There is this right however where the provisions of Article 92 have been applied by the general provisions provided for in Article 94 or by specific decisions under Article 93 (2).

The plaintiff in the main action claims that Article 12 of Regulation No 865/68 of the Council of 28 June 1968 on the common organization of the market in products processed from fruit and vegetables is a specific implementing measure of the aforesaid kind enabling individuals to rely on Article 92 before national courts for the purpose of a finding that State aid is incompatible with the common market and in particular with the relevant organization of the market.

The said Article 12 provides; ‘Save as otherwise provided in this regulation, Articles 92, 93 and 94 of the Treaty shall apply to the production of and trade in the products listed in Article 1’.

In accordance with Article 42 of the Treaty, Article 12 declares that the provisions of Articles 92 to 94 shall apply to the agricultural products coming within the ambit of Regulation No 865/68 without however altering the nature and scope of these provisions.

The limitations mentioned above on reliance on Article 92 do not however mean that cases cannot come before national courts requiring them to interpret (making use if necessary of the procedure under Article 177 of the Treaty) and apply the provisions contained in Article 92, but nevertheless they cannot be called upon to find that such State aid is incompatible save in the case of aid introduced contrary to Article 93 (3). Thus a national court may have cause to interpret and apply the concept of aid contained in Article 92 in order to determine whether State aid introduced without observance of the preliminary examination procedure provided for in Article 93 (3) ought to have been subject to this procedure. In any case under Article 177 of the Treaty the national courts which make a reference for a preliminary ruling must themselves decide whether the questions referred are necessary to enable judgment to be given.

The answer to the first question is therefore that the provisions of Article 93 do not preclude a national court from referring a question on the interpretation of Article 92 of the Treaty to the Court of Justice if it considers that a decision thereon is necessary to enable it to give judgment; in the absence of implementing provisions within the meaning of Article 94 however a national court does not have jurisdiction to decide an action for a declaration that existing aid which has not been the subject of a decision by the Commission requiring the Member State concerned to abolish or alter it or that a new aid which has been introduced in accordance with Article 93 (3) is incompatible with the Treaty.

The second question

Secondly the national court asks whether the expression ‘undertakings or the production of certain goods’ in Article 92 of the EEC Treaty is restricted to private businesses or also includes non-profit-making institutions governed by public law.

Article 90 (1) of the Treaty provides: ‘In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 7 and Articles 85 to 94’. Article 90 (2) provides: ‘Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community’.

From this it follows that save for the reservation in Article 90 (2) of the Treaty, Article 92 covers all private and public undertakings and all their production.

The third and fourth questions

Thirdly the national court asks whether the concept ‘any aid granted through State resources’ is satisfied even if the State agency itself receives aid from the State or private undertakings. The fourth question asks whether there is aid in the sense of granting a gratuitous advantage if the recipient of aid is not a private undertaking but a State agency, and whether it can be said to be gratuitous when the charge on the individual undertaking is insignificant in relation to the total amount of contributions.

These two questions must be taken together.

The prohibition contained in Article 92 (1) covers all aid granted by a Member State or through State resources without its being necessary to make a distinction whether the aid is granted directly by the State or by public or private bodies established or appointed by it to administer the aid. In applying Article 92 regard must primarily be had to the effects of the aid on the undertakings or producers favoured and not the status of the institutions entrusted with the distribution and administration of the aid.

A measure adopted by the public authority and favouring certain undertakings or products does not lose the character of a gratuitous advantage by the fact that it is wholly or partially financed by contributions imposed by the public authority and levied on the undertakings concerned.

The fifth question

The fifth question asks whether competition is distorted and trade between Member States affected if the market research and advertising carried on by the State agency in its own country and abroad is also carried on by similar institutions of other Community countries.

Any breach by a Member State of an obligation under the Treaty in connexion with the prohibition laid down in Article 92 cannot be justified by the fact that other Member States are also failing to fulfil this obligation. The effects of more than one distortion of competition on trade between Member States do not cancel one another out but accumulate and the damaging consequences to the common market are increased.

The sixth and seventh questions

The sixth question asks the Court to decide whether a charge levied not on the imported product itself but on its processing is a charge having an effect equivalent to a customs duty under Articles 9 (1), 12 and 13 (2) of the EEC Treaty. The seventh question asks whether the imposition of taxation on ‘the products of other Member States’ not when they are imported but only when they are processed amounts to discrimination within the meaning of Article 95 of the EEC Treaty.

These two questions relate to the distinction between a charge having an effect equivalent to a customs duty within the meaning of Articles 9, 12 and 13 of the Treaty and internal taxation within the meaning of Article 95; they are intended to enable the national court to classify the levy due to the fund into one of the two categories. The two questions must therefore be dealt with together.

The same charge cannot within the system of the Treaty fall simultaneously within the two aforementioned categories in view of the fact that whereas Articles 9 and 12 prohibit Member States from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, Article 95 is limited to prohibiting discrimination against the products of other Member States by means of internal taxation.

As was ruled in the judgment of 18 June 1975 (Case 94/74 IGAV [1975] ECR 710) to which the national court refers, the prohibition contained in Article 13 (2) is aimed at any tax demanded at the time of or by reason of importation and which, being imposed specifically on an imported product to the exclusion of a similar domestic product, results in the same restrictive consequences on the free movement of goods as a customs duty by altering the cost price of that product. The essential characteristic of a charge having an effect equivalent to a customs duty, which distinguishes it from internal taxation, is that the first is imposed exclusively on the imported product whilst the second is imposed on both imported and domestic products. A charge affecting both imported products and similar products could however constitute a charge having an effect equivalent to a customs duty if such a duty, which is limited to particular products, had the sole purpose of financing activities for the specific advantage of the taxed domestic products, so as to make good, wholly or in part, the fiscal charge imposed upon them.

Where the conditions which distinguish a charge having an effect equivalent to a customs duty are fulfilled, the fact that it is applied at the stage of marketing or processing of the product subsequent to its crossing the frontier is irrelevant when the product is charged solely by reason of its crossing the frontier, which factor excludes the domestic product from similar taxation.

Financial charges within a general system of internal taxation applying systematically to domestic and imported products according to the same criteria are not to be considered as charges having equivalent effect. This could be the case even where there is no domestic product similar to the imported product providing that the charge applies to whole classes of domestic or foreign products which are all in the same position no matter what their origin. The objective of Article 95 is to abolish direct or indirect discrimination against imported products but not to place them in a privileged tax position in relation to domestic products. There is generally no discrimination such as is prohibited by Article 95 where internal taxation applies to domestic products and to previously imported products on their being processed into more elaborate products without any distinctions of rate, basis of assessment or detailed rules for the levying thereof being made between them by reason of their origin.

Costs

The costs incurred by the Government of the Federal Republic of Germany and 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, a step in the action pending before the national court, the decision on costs is a matter for that court.