ECJ Whilst the treaty does not exclude, in principle, a difference in the taxation of various alcoholic products, such a distinction may not be used for the purposes of tax discrimination or in such a manner as to afford protection, even indirect, to domestic production. A system which consists in conferring a tax advantage on a single product which represents the major proportion of domestic production to the exclusion of all other similar or competing imported products is incompatible with community law.
Where a national system of taxation at different rates is found to be incompatible with community law, the member state in question must apply to imported products a rate of tax which eliminates the margin of discrimination or protection pro- hibited by the treaty. Article 95 accords such treatment only to products which are imported from other member states.
In application of the principle of co-operation laid down in article 5 of the treaty, it is the courts of the member states which are entrusted with ensuring the legal protection which subjects derive from the direct effect of the provisions of community law.
In the absence of community rules concerning the refunding of national charges which have been levied in breach of article 95 of the eec treaty, it is for the member states to arrange for the reimbursement of such charges in accordance with the requirements of their domestic legal system ; it is for them to designate to this intent the courts having jurisdiction and to determine the procedural conditions governing actions at law. Such conditions cannot be less favourable than those relating to similar actions of a domestic nature and must not make it impossible in practice to exercise the rights conferred on individuals by the community legal system. Community law does not require an order for the recovery of charges improperly made to be granted in conditions which would involve the unjust enrichment of those entitled. Thus it does not prevent account being taken of the fact that it has been possible for the burden of such charges to be passed on to other traders or to consumers. It is equally compatible with the principles of community law for account to be taken in accordance with the national law of the state concerned of the damage which an importer may have suffered because the effect of the discriminatory or protective tax provisions was to restrict the volume of imports from other member states.
Citations:
R-68/79, [1980] EUECJ R-68/79, C-68/79, [1980] ECR 501
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Cited by:
Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Lists of cited by and citing cases may be incomplete.
European
Updated: 21 June 2022; Ref: scu.214884