Case Focus : Orgacom BVBA v Vlaamse Landmaatschappij (2 October 2014)

Focus on the Orgacom’s case (Court of Justice) of the 2th October 2014¹ :

Orgacom is an undertaking established in Belgium, in the Flanders Region, which specialises in the manufacture of organic fertilisers. As part of its activity, Orgacom imports manure from the Walloon Region and the Netherlands, which it processes into soil improvers and organic fertilisers, which are then exported to other Member States of the European Union.

Orgacom was subject to a levy according to a national decree. The company brought claim before national courts. The Court of Appeal of Brussels decided to stay the proceedings and to refer the following questions to the Court of Justice :
– Is the levy has to be regarded as a charge having equivalent effect to a customs duty on imports within the terms of Article 30 TFEU, even though the Member State from which the surpluses of products are exported itself provides for a reduction of the levy on the exportation of those surpluses to other Member States?
– In the case of a negative answer to the first question : is that import levy to be regarded as constituting discriminatory taxation of the products of other Member States, within the terms of Article 110 TFEU ?

The Court ruled as followed :
The Court has held before that customs duties and charges having equivalent effect thereto are prohibited regardless of the purpose for which they were introduced and the destination of the revenue from them.

Therefore, « article 30 TFEU precludes a levy, such as that provided for under Article 21(5) of the Decree of the Flanders Region of 23 January 1991 on protection of the environment against fertiliser pollution, as amended by the Decree of 28 March 2003, which is applicable only to imports into the Flanders Region of surplus livestock manure and other fertilisers, which is levied on the importer whereas the tax on the surplus manure produced within the territory of the Flanders Region is levied on the producer and is calculated differently from the tax on imports. In that regard, it is immaterial that the Member State from which the surplus manure is imported into the Flanders Region provides for a tax reduction in the case of export of that surplus to other Member States. »