Case C-72/03

Carbonati Apuani Srl

v

Comune di Carrara

(Reference for a preliminary ruling from the Commissione tributaria provinciale di Massa Carrara)

(Charges having effect equivalent to a customs duty – Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory)

Summary of the Judgment

Free movement of goods – Customs duty – Charges having equivalent effect – Definition –Tax levied in a municipality of a Member State and imposed on a class of goods on account of their being transported beyond the boundaries of the municipal territory – Included

(Art. 23 EC)

A tax proportionate to the weight of goods, levied in one municipality of a Member State only and imposed on one class of goods when those goods are transported beyond the territorial boundaries of that municipality, constitutes a charge having effect equivalent to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it is imposed also on goods the final destination of which is within the Member State concerned.

First, the very principle of the customs union, as provided for by Article 23 EC, requires the free movement of goods to be ensured within the union generally, not in trade between Member States alone, but more broadly throughout the territory of the customs union, and the absence of charges – whether between States or within a State – exhibiting the features of a customs duty or of a charge having equivalent effect is a precondition essential to the realisation of such a customs union. Second, given that the tax at issue is imposed on all goods in the category in question that cross the territorial boundaries of the municipality where they are produced, no distinction being made between goods the final destination of which is in the Member State of production and goods destined for other Member States, it impinges by its nature and terms on trade between Member States.

(see paras 22, 24, 26, 35, operative part 1)

JUDGMENT OF THE COURT (First Chamber) 9 September 2004 (1)

(Charges having effect equivalent to a customs duty – Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory)

In Case C-72/03,REFERENCE for a preliminary ruling under Article 234 EC,from the Commissione tributaria di Massa Carrara (Italy), made by decision of 11 December 2002, registered at the Court on 18 February 2003, in the proceedings brought by

against

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges,

Advocate General: M. Poiares Maduro,

having regard to the written procedure and further to the hearing on 17 March 2004,after considering the observations submitted on behalf of:

after hearing the Advocate General's Opinion at the sitting on 6 May 2004,

gives the following

‘There shall be established in favour of the Comune di Carrara a tax on marble excavated within, and transported from, its territory. That tax shall be applied and collected by the Comune when the marble leaves its territory on the basis of a special regulation, to be decided upon by the Consiglio Comunale [municipal council] after consultation of the social partners.

Every year, when setting the budget for the Comune, the Consiglio Comunale shall fix the rate at which that tax shall be levied in the following year. However, when the Comune has to meet ongoing commitments to be paid from or guaranteed by the tax yield, the Consiglio Comunale may fix in advance the minimum amount of that tax for several years.

The Comune may, following a decision of the Council, in accordance with municipal and provincial law, and subject to approval by the Giunta provinciale amministrativa [Administrative Provincial Council], provide that the tax yield should be allocated, in part, to discharge the costs or charges of the construction and operation of the port of Marina di Carrara, where appropriate pursuant to Law No 50 of 12 February 1903 and, in part, to underwrite the subscriptions of the workers in the marble industry to the Cassa nazionale di previdenza per gli operai [National Workers’ Insurance Fund]. …’

‘The single article of Law No 749/1911 … shall be interpreted as meaning that the tax … applies to marble and its derivatives and is to be decided in relation to the municipality’s overheads directly or indirectly arising from activities in the local marble industry.’

‘Are the rules laid down in Italian Laws No 749 of 15 July 1911, No 449 of 27 December 1997 and in Decree-Law No 8 of 26 January 1999, as converted with amendments into Law No 75/1999 – imposition of the marble tax in the Comune di Carrara – compatible with Articles 23, 81, 85 and 86 of the Treaty establishing the European Community, in the version in force following amendment by the Treaty of Amsterdam, which was ratified in Italy by Law No 209/1998?’

On those grounds, the Court (First Chamber) rules as follows:

Signatures.