37In relation to Article 90 EC, the Verwaltungsgerichtshof is uncertain as to whether, firstly, the use of fair market value on the domestic market takes due account of the judgments in Case C-47/88 Commission v Denmark [1990] ECR I-4509 and Case C-345/93 Nunes Tadeu [1995] ECR I-479. Secondly, given that, in the case of the surcharge, no provision has been made for the deduction of input tax, the referring court takes the view that imported cars are taxed more heavily where the consignee is an undertaking having a right of deduction. In the light, for example, of the judgment in Case C-265/99 Commission v France [2001] ECR I-2305, paragraph 40, the surcharge might thus be incompatible with Article 90 EC.
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