JACQUES VABRE JUDGMENT LEGAL

Appeal number: 73-13556
Published in the bulletin

P.PDT M. AYDALOT
RPR M. VIENNE
PROC.GEN. M. TOUFFAIT, AV.GEN. M. GRANJON
Applicant AV. MM. BORE
RICH Defender

WHEREAS IT FOLLOWS FROM THE STATEMENTS OF THE DEFERE DECREE (PARIS, JULY 7, 1973) THAT, FROM JANUARY 5, 1967 TO JULY 5, 1971, THE CAFES JACQUES VABRE COMPANY (SOCIETE VABRE) IMPORTED FROM THE NETHERLANDS, MEMBER STATE OF THE EUROPEAN ECONOMIC COMMUNITY, CERTAIN QUANTITIES OF SOLUBLE COFFEE WITH A VIEW OF THEIR RELEASE FOR CONSUMPTION IN FRANCE; WHEREAS THE CUSTOMS CLEARANCE OF THESE GOODS HAS BEEN OPERATED BY THE COMPANY J. WIEGEL ET C. (COMPANY WEIGEL), CUSTOMS COMMISSIONER; THAT ON THE OCCASION OF EACH OF THESE IMPORTS, THE WEIGEL COMPANY HAS PAID TO THE CUSTOMS ADMINISTRATION THE INTERNAL CONSUMPTION TAX PROVIDED FOR THESE GOODS BY POSITION EX 21-02 OF TABLE A OF ARTICLE 265 OF THE CUSTOMS CODE; THAT, ALLEGING THAT IN VIOLATION OF THE

WHEREAS THE COURT OF APPEAL IS RESPONSIBLE FOR HAVING ALLOWED THESE REQUESTS IN THEIR PRINCIPLE THEN, ACCORDING TO THE APPEAL, on the one hand, THAT THE JUDICIAL JURISDICTION IN MATTER OF CUSTOMS DUTIES IS LIMITED TO DISPUTES CONCERNING THE EXISTENCE LEGAL, THE DETERMINATION OF THE BASE AND THE COLLECTION OF THE TAX; THAT IT CANNOT BE EXTENDED TO DISPUTES CONCERNING THE ALLEGED PROTECTIONIST CHARACTER OF TAX WHICH SUPPOSE AN APPRAISAL OF THE TAXATION FROM THE POINT OF VIEW OF FOREIGN TRADE REGULATIONS, WHICH COMES IN THE EXCLUSIVE JURISDICTION OF THE ADMINISTRATIVE JUDGE; AND THEN, ON THE OTHER HAND, THAT ARTICLE 95 OF THE TREATY OF 25 MARCH 1957, INVITED BY THE APPLICANTS FOR ACTION, DOES NOT COVER A DETERMINED TAXATION,

BUT WHEREAS THE INCOMPETENCE OF THE COURTS, FOR THE BENEFIT OF THE ADMINISTRATIVE JUDGE, HAS NOT BEEN INVITED BEFORE THE SUBJECT COURTS; WHEREAS UNDER ARTICLE 14 OF THE DECREE OF 20 JULY 1972, THE PARTIES MAY RAISE THE EXCEPTIONS OF INCOMPETENCE ONLY BEFORE ANY OTHER EXCEPTIONS AND DEFENSES; THIS IS SO THEN THE SAME AS THE RULES OF COMPETENCE WOULD BE OF A PUBLIC ORDER; FROM WHERE IT FOLLOWS THAT THE MEANS IS INADMISSIBLE IN ONE AND THE OTHER OF ITS BRANCHES;

ON THE SECOND SUBMISSION:

WHEREAS IT IS FURTHER COMPLAINTED WITH THE STOPPING OF DECLARING ILLEGAL THE INTERNAL CONSUMPTION TAX PROVIDED FOR BY ARTICLE 265 OF THE CUSTOMS CODE AS A RESULT OF ITS INCOMPATIBILITY WITH THE PROVISIONS OF ARTICLE 95 OF THE TREATY OF 24 MARCH 1957, ON THE GROUNDS THAT THIS, UNDER ARTICLE 55 OF THE CONSTITUTION, HAS AN AUTHORITY SUPERIOR THAN THAT OF INTERNAL LAW, EVEN SUBSEQUENT, THEN, ACCORDING TO THE APPEAL, WHETHER IT BELONGS TO THE TAX COURT. TO ASSESS THE LEGALITY OF THE REGULATORY TEXTS ESTABLISHING A DISPUTE TAX, IT CANNOT HOWEVER, WITHOUT EXCESSING ITS POWERS, DISCLAIM THE APPLICATION OF AN INTERNAL LAW ON THE PRETEXT THAT IT WAS AN UNCONSTITUTIONAL CHARACTER; THAT ALL OF THE PROVISIONS OF THE

BUT WHEREAS THE TREATY OF 25 MARCH 1957, WHICH, UNDER THE ARTICLE ABOVE OF THE CONSTITUTION, HAS AN AUTHORITY SUPERIOR THAN THAT OF THE LAWS, ESTABLISHES A SPECIFIC LEGAL ORDER INTEGRATED WITH THAT OF THE MEMBER STATES; WHEREAS BECAUSE OF THIS SPECIFICITY, THE LEGAL ORDER WHICH IT HAS CREATED IS DIRECTLY APPLICABLE TO NATIONALS OF THESE STATES AND IS BINDING ON THEIR JURISDICTIONS; WHEREAS, THEREFORE, IT IS WITH GOOD LAW, AND WITHOUT EXCEEDING ITS POWERS, THAT THE COURT OF APPEAL DECIDED THAT ARTICLE 95 OF THE TREATY SHOULD BE APPLIED IN THE CASE, EXCLUDING ARTICLE 265 OF THE CUSTOMS CODE, ALTHOUGH THIS LATEST TEXT WAS SUBSEQUENT; FROM WHERE IT FOLLOWS THAT THE MEANS IS BAD.

ON THE THIRD SUBMISSION:

WHEREAS IT IS IN THE SURPLUS REASONS TO THE JUDGMENT OF APPLYING ARTICLE 95 OF THE TREATY OF 25 MARCH 1957, THEN, ACCORDING TO THE APPEAL, ARTICLE 55 OF THE CONSTITUTION EXPRESSLY SUBORDINATES THE AUTHORITY THAT ‘ IT CONFERS ON TREATIES RATIFIED BY FRANCE UNDER THE CONDITION REQUIRING THEIR APPLICATION BY THE OTHER PARTY; THE SUBSTANTIVE COURT HAS NOT THEREFORE BEEN ACHIEVED VALIDLY APPLYING THIS CONSTITUTIONAL TEXT WITHOUT SEEKING WHETHER THE STATE (NETHERLANDS) FROM WHICH THE DISPUTE PRODUCT WAS IMPORTED HAS SATISFIED THE CONDITION OF RECIPROCITY;

BUT WHEREAS, IN THE COMMUNITY LEGAL ORDER, BREACHES BY A MEMBER STATE OF THE EUROPEAN ECONOMIC COMMUNITY OF THE OBLIGATIONS INCLUDED ON IT UNDER THE TREATY OF 25 MARCH 1957 SUBJECT TO THE REMEDY PROVIDED FOR BY ARTICLE 170 OF THE TREATY, THE AN EXCEPTION BASED ON LACK OF RECIPROCITY CANNOT BE INVOKED BEFORE NATIONAL COURTS; FROM WHERE IT FOLLOWS THAT THE SUBMISSION CANNOT BE ACCEPTED;

ON THE FOURTH MIDDLE:

WHEREAS IT IS STILL REFUSED OF THE JUDGMENT OF HAVING DECLARED THE DISCRIMINATORY TAX ATTACHED TO A DISCRIMINATORY NATURE WITH REGARD TO ARTICLE 95 OF THE TREATY OF 25 MARCH 1957, THEN, ACCORDING TO THE APPEAL, AS THE COURT FOSTERS FOR THE JUSTICE OF THE EUROPEAN COMMUNITIES, THE SIMILARITY REPORT REQUIRED BY ARTICLE 95 OF THE SAID TREATY EXISTS ONLY AS THE PRODUCTS IN QUESTION COME WITH THE “SAME FISCAL, CUSTOMS OR STATISTICAL CLASSIFICATION” (DECREE OF 4 APRIL 1968); WHEREAS THE IMPORTED FINISHED PRODUCT (SOLUBLE COFFEE EXTRACTS) AND THE RAW MATERIAL, RETAINED BY THE JUDGMENT AS A REFERENCE (GREEN COFFEE), COME IN TWO SEPARATE TARIFF HEADINGS; THAT THE PROPORTION ACCORDING TO WHICH THESE TWO GOODS WERE RESPECTIVELY TAXED – WHICH AD ‘ ELSEWHERE ELSEWHERE DELETED AT A DATE (1964) PRIOR TO THE PERIOD NOT COVERED BY THE PRESCRIPTION (CF JUDGMENT CONFIRMED) – DOES NOT IMPLIED THAT THE FRENCH MANUFACTURERS OF SOLUBLE EXTRACTS ACTUALLY USE 3,600 KILOS OF GREEN COFFEE TO PREPARE ONE KILO OF GREEN COFFEE. , THE COFFEE CONTENT OF THIS PREPARATION BEING EXTREMELY VARIABLE, NOT ONLY WITHIN THE COMMON MARKET, BUT, IN ADDITION, WITHIN THE FRENCH TERRITORY; THAT FURTHERMORE, THE NATIONAL REGULATIONS, RESULTING FROM THE DECREE OF SEPTEMBER 3, 1965, IMPOSE MANY SUBJECTS ON FRENCH MANUFACTURERS, IN PARTICULAR CONCERNING THE QUALITY OF GREEN COFFEE, WHICH SIGNIFICANTLY REDUCED THE YIELD AND, THEREFORE, CHANGING THE CONTENT OF THE FINAL PRODUCT; FROM WHERE IT FOLLOWS THAT

BUT WHEREAS IF THE JUDGMENT IS INVOLVED BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, RENDERED AS PREJUDICIAL BY APPLICATION OF ARTICLE 177 OF THE TREATY, PROVIDES THAT “THE SIMILARITY REPORT REFERRED TO IN ARTICLE 94, PARAGRAPH 1., EXISTS WHEN THE PRODUCTS IN QUESTION ARE NORMALLY TO BE CONSIDERED AS FALLING UNDER THE SAME CLASSIFICATION, TAX, CUSTOMS OR STATISTICAL FOLLOWING THE CASE “, IT ADDS THAT” PARAGRAPH 2 OF ARTICLE 95 PROHIBITS THE COLLECTION OF ANY INTERNAL TAXATION WHICH … HITS AN IMPORTANT PRODUCT HARDER THAN A NATIONAL PRODUCT. WHICH, WITHOUT BEING SIMILAR WITHIN THE MEANING OF ARTICLE 95, PARAGRAPH 1., IS HOWEVER IN COMPETITION WITH IT … “; THAT IT IS THEREFORE JUST AS WHEREAS HAVING NOTED THAT, ALTHOUGH THE COFFEE EXTRACT IMPORTED FROM THE NETHERLANDS AND THE GREEN COFFEE USED IN FRANCE FOR THE MANUFACTURE OF SUCH GOODS DO NOT APPEAR TO THE SAME CUSTOMS CLASSIFICATION, THESE PRODUCTS ARE NEVER IN COMPETITION AND THAT HAVE, BY RETAINING THE FACT ELEMENTS BY IT CONSIDERS RELEVANT, SOVEREIGNLY APPRECIATED THE PROPORTION OF GREEN COFFEE NECESSARY FOR THE PRODUCTION OF A DATA QUANTITY OF SOLUBLE COFFEE EXTRACT, THE COURT OF APPEAL HAS APPLIED IN THE CAUSE OF THE ARTICLE ABOVE OF THE TREATY; FROM WHERE IT FOLLOWS THAT THE MEANS IS BAD. BY RETAINING THE ELEMENTS OF FACT THAT IT CONSIDERS RELEVANT, SOVERELY APPRECIATED THE PROPORTION OF GREEN COFFEE NECESSARY FOR THE PRODUCTION OF A QUANTITY DATA OF SOLUBLE COFFEE EXTRACT, THE COURT OF APPEAL HAS APPLIED IN THE CAUSE OF THE ABOVE-REFERRED ARTICLE OF THE TREATY; FROM WHERE IT FOLLOWS THAT THE MEANS IS BAD. BY RETAINING THE ELEMENTS OF FACT THAT IT CONSIDERS RELEVANT, SOVERELY APPRECIATED THE PROPORTION OF GREEN COFFEE NECESSARY FOR THE PRODUCTION OF A QUANTITY DATA OF SOLUBLE COFFEE EXTRACT, THE COURT OF APPEAL HAS APPLIED IN THE CAUSE OF THE ABOVE-REFERRED ARTICLE OF THE TREATY; FROM WHERE IT FOLLOWS THAT THE MEANS IS BAD.

ON THE FIFTH MEANS TAKEN IN ITS TWO BRANCHES:

WHEREAS IT IS ALSO REBUILDED AT THE COURT OF APPEAL FOR ACCEPTING THE DISCRIMINATORY NATURE SUBJECT TO THE TAX IN QUESTION, THEN, ACCORDING TO THE APPEAL, THAN UNDER THE PROVISIONS OF ARTICLE 95 OF THE TREATY OF 25 MARCH 1957, THE DISCRIMINATORY NATURE OF A TAX REGIME MUST BE APPRAISED ON THE BASIS OF ALL THE TAXATION, WHATEVER THEY ARE, LIKELY TO BECOME DIRECTLY OR INDIRECTLY THE PRODUCT IN QUESTION; AS THE ADMINISTRATION RECALLED IN ITS CONCLUSIONS LEFT WITHOUT ANSWER, THE FRENCH PRODUCT SUPPORTED, IN ADDITION TO THE IMPORT TAX ON GREEN COFFEE, THE TAX ON THE ADDED VALUE ON THE PRODUCT AT ALL STAGES OF ITS MANUFACTURING AND MARKETING; THAT IN ADDITION, THE EXPENSES RESULTING FROM THIS INTERNAL TAX ARE SUCH AS THE COST OF THE PRODUCT IS HIGHER, AS THE FRENCH PRODUCT IS SUBJECT TO PARTICULARLY RIGOROUS REGULATIONS EDICATED BY THE DECREE OF SEPTEMBER 3, 1965, WHICH IN PARTICULAR PROHIBITS USE. , IN THE MANUFACTURE OF COFFEE SOLUBLE, FROM BEANS BROKEN OR WITH ANY DEFECT; WHEREAS BY FAILING TO EXAMINE ALL THE TAXATION OF ANY KIND AS WELL AS THE INTERNAL REGULATIONS HAVING THE EFFECT OF INCREASING THE AMOUNT OF THE TAX CHARGES INCURRED ON THE NATIONAL PRODUCT, AND OF WHICH THE IMPORTED PRODUCT WAS EXEMPTED, THE SUBJECT COURT FAILURE TO GIVE ITS DECISION A LEGAL BASIS; SO MUCH HEAVIER AS THE COST OF THE PRODUCT IS HIGHER, AS THE FRENCH PRODUCT IS SUBJECT TO PARTICULARLY STRONG REGULATIONS EDICATED BY THE DECREE OF SEPTEMBER 3, 1965, WHICH IN PARTICULAR PROHIBITS THE USE, IN THE MANUFACTURE OF SOLUBLE COFFEE, OF BEANS BROKEN OR WITH ANY DEFECT; WHEREAS BY FAILING TO EXAMINE ALL THE TAXATION OF ANY KIND AS WELL AS THE INTERNAL REGULATIONS HAVING THE EFFECT OF INCREASING THE AMOUNT OF THE TAX CHARGES INCURRED ON THE NATIONAL PRODUCT, AND OF WHICH THE IMPORTED PRODUCT WAS EXEMPTED, THE SUBJECT COURT FAILURE TO GIVE ITS DECISION A LEGAL BASIS; SO MUCH HEAVIER AS THE COST OF THE PRODUCT IS HIGHER, AS THE FRENCH PRODUCT IS SUBJECT TO PARTICULARLY STRONG REGULATIONS EDICATED BY THE DECREE OF SEPTEMBER 3, 1965, WHICH IN PARTICULAR PROHIBITS THE USE, IN THE MANUFACTURE OF SOLUBLE COFFEE, OF BEANS BROKEN OR WITH ANY DEFECT; WHEREAS BY FAILING TO EXAMINE ALL THE TAXATION OF ANY KIND AS WELL AS THE INTERNAL REGULATIONS HAVING THE EFFECT OF INCREASING THE AMOUNT OF THE TAX CHARGES INCURRED ON THE NATIONAL PRODUCT, AND OF WHICH THE IMPORTED PRODUCT WAS EXEMPTED, THE SUBJECT COURT FAILURE TO GIVE ITS DECISION A LEGAL BASIS; WHEREAS THE FRENCH PRODUCT IS SUBJECT TO PARTICULARLY RIGOROUS REGULATIONS LAID DOWN BY THE DECREE OF 3 SEPTEMBER 1965, WHICH IN PARTICULAR PROHIBITS THE USE, IN THE MANUFACTURE OF SOLUBLE COFFEE, OF BROKEN BEANS OR PRESENT ANY DEFECTS; WHEREAS BY FAILING TO EXAMINE ALL THE TAXATION OF ANY KIND AS WELL AS THE INTERNAL REGULATIONS HAVING THE EFFECT OF INCREASING THE AMOUNT OF THE TAX CHARGES INCURRED ON THE NATIONAL PRODUCT, AND OF WHICH THE IMPORTED PRODUCT WAS EXEMPTED, THE SUBJECT COURT FAILURE TO GIVE ITS DECISION A LEGAL BASIS; WHEREAS THE FRENCH PRODUCT IS SUBJECT TO PARTICULARLY RIGOROUS REGULATIONS LAID DOWN BY THE DECREE OF 3 SEPTEMBER 1965, WHICH IN PARTICULAR PROHIBITS THE USE, IN THE MANUFACTURE OF SOLUBLE COFFEE, OF BROKEN BEANS OR PRESENT ANY DEFECTS; WHEREAS BY FAILING TO EXAMINE ALL THE TAXATION OF ANY KIND AS WELL AS THE INTERNAL REGULATIONS HAVING THE EFFECT OF INCREASING THE AMOUNT OF THE TAX CHARGES INCURRED ON THE NATIONAL PRODUCT, AND OF WHICH THE IMPORTED PRODUCT WAS EXEMPTED, THE SUBJECT COURT FAILURE TO GIVE ITS DECISION A LEGAL BASIS;

WAS SUBJECT TO STRICT QUALITY RULES AND WITHOUT EXPRESSING WHAT THIS INCIDENCE COULD BRING FISCAL EQUALITY BETWEEN THE TWO CATEGORIES OF PRODUCTS; WHEREAS BY APPROVING, IN THIS STATE, THE ELEMENTS OF CALCULATION OF THE TRIBUNAL, THE COURT OF APPEAL RESPONDED TO THE CONCLUSIONS RELATED AND THUS GIVES A LEGAL BASIS TO ITS DECISION; FROM WHERE IT FOLLOWS THAT THE MEANS ARE NOT BETTER FOUND THAN THE PREVIOUS;

ON THE SIXTH SUBMISSION:

WHEREAS THE JUDGMENT IS FINALLY ATTACKED IN THAT IT DECIDED THAT THE SUMS CHARGED BY THE CUSTOMS ADMINISTRATION SHOULD BE RETURNED IN THEIR ENTIRETY, ON THE GROUNDS THAT ARTICLE 369 OF THE CUSTOMS CODE PROHIBITS THE COURT FROM MODERATE THE DUTIES , THEN, ACCORDING TO THE APPEAL, THAT THE REPETITION OF THE AMOUNT OF THE TAX CAN BE ORDERED ONLY TO THE EXTENT THAT IT WAS A DISCRIMINATORY CHARACTER AND NOT IN ITS ENTIRETY, AS FURTHER, ARTICLE 369 OF THE CODE OF CUSTOMS DEFENDS THE SUBJECT COURT TO MODERATE DUTIES, CONFISCATIONS AND FINES, AS WELL AS TO ORDER THE USE TO THE PREJUDICE OF THE CUSTOMS ADMINISTRATION; THAT THE JUDGMENT DIDNESS THESE PROVISIONS BY GRANTING THE TAXPAYER THE REFUND OF THE AMOUNT OF THE

BUT WHEREAS, NEW AND MIX OF FACT AND LAW, THE SUBMISSION IS INADMISSIBLE;

FOR THESE REASONS :

DISMISSES THE APPEAL AGAINST THE JUDGMENT DELIVERED ON JULY 7, 1973 BY THE PARIS COURT OF APPEAL (1. CHAMBER).

Publication: Bulletin of judgments Cour de Cassation MIXED Chamber N ° 4 P. 6
NOTE TOUFFAIT D 1975 J P.497 (8P) NOTE TOUFFAIT, RC GP 1975 J P.470 (6P) (2P) NOTE TOUFFAIT JCP 1975 II N. 18180 BIS (8P) Contested
decision: Cour d’Appel PARIS (Chambre 1) 1973-07-07

Precedents in case law: ID. Court of Cassation (Plenary Assembly) 1967-05-26 Bulletin 1967 APN 4 (1) P. 5 (REJECTION). (1) ID. Court of Cassation (Civil Chamber 1) 1972-12-12 Bulletin 1972 I N. 282 (1) P. 249 (REJECTION) AND THE CITED JUDGMENTS. (1)