Draudimas apmokestinti vidaus mokesčiais pagal Europos Bendrijos Steigimo Sutarties 90-ąjį straipsnį

Abstract

This article analyses the prohibition to impose internal taxation according to Art. 90 of the Treaty Establishing the European Community. At first, the concept of the internal taxation under Art. 90 is defined by distinguishing internal taxation and charges with an equivalent effect. Charges with equivalent effect and customs duties are prohibited, therefore, they are unlawful per se. The internal taxes are lawful unless they discriminate, directly or indirectly, an imported similar product or afford indirect protection to other domestic products.
The scope of prohibition to impose internal taxation, set in Art. 90 of the Treaty Establishing The European Community, differs depending on application of a particular paragraph. Any internal taxation in excess of that imposed directly or indirectly on similar domestic products is incompatible with par. 1 Art. 90. This paragraph prohibits any internal tax that is higher than that for a similar, though not identical, domestic product. In order to determine whether products are similar, it is necessary first to consider objective characteristics of products, such as their origin, the method of manufacture and their organoleptic properties, and secondly, to consider whether or not both categories of products are capable of meeting the same needs from the point of view of consumers. For establishing the prohibited internal taxation, the tax burden on particular products shall be estimated: the amount of total tax burden, the method of calculation and application as well as other rules of taxation.
Par. 2 Art. 90 prohibits any internal tax that amounts to indirect protection of other domestic products. ”Other product“ is the product that is not similar to an imported product, but competes with it. When considering the prohibition in par. 2 Art. 90 the account must be taken of the impact of that tax on the competitive relationship between the products concerned. The essential question is therefore whether or not the tax is of such a kind as to have the effect, on the market in question, of reducing potential consumption of imported products to the advantage of competing domestic products.
The article highlights that the prohibition to impose internal taxation, set in Art. 90 of the Treaty Establishing the European Community, does not apply to differentiated taxation based on objective reasons such as quantity of production or different methods of production, however, such taxation to be lawful shall meet the requirements, set by the Court of Justice of the European Communities.