ABSTRACT
Summary 501
18.1 Introduction 502
18.2 Direct, indirect and reverse discrimination 503
18.3 Article 90(1) EC: the meaning of similar products 511
18.4 Article 90(2) EC: the meaning of products in competition 512
18.5 Unique products 513
18.6 The relationship between Article 90 and other provisions of the EC Treaty relating to the free movement of goods 514
18.7 Repayment of unlawful fiscal impositions 517
18.8 Harmonisation of taxation within the European Union 517
Aide-mémoire 518
SUMMARY
1. Article 90 EC allows Member States to retain different internal tax regimes but prohibits the imposition of taxation which discriminates between domestic products and imported products, or which affords indirect protection to domestic products. 2. All discrimination, whether direct, indirect or reverse, is prohibited. Direct discrimination based on the origin of the product is plainly incompatible with the requirements of the internal market, and thus can never be justified. Indirect discrimination, where differential tax treatment of imported products is based on criteria other than the origin of the product, is generally prohibited but may be justifiable where it is based on objective criteria and is effected in order to achieve acceptable social, environmental or economic aims (but the Court tends not to accept purely economic justifications). The list of objective justifications is rather vague and open-ended but not inconsistent with allowed justifications in other areas of free movement. Reverse discrimination refers to a situation where domestic products intended for export are taxed more highly than the same or similar domestic products intended for a domestic market. This is prohibited under Article 90 EC.
