C-24/68

defendant,

Application for a ruling that the Italian Republic has failed to fulfil its obliga­ tions under the Treaty establishing the European Economic Community, by levying a charge called a statistical levy (diritto di statistica) on goods ex­ ported to the other Member States contrary to Article 16 of the said Treaty, and by levying a charge called a statistical levy on goods subject to the regulations of the Council concerning various common organizations of the agricultural markets and imported from other Member States, contrary to the said regulations;

THE COURT

composed of: R. Lecourt, President, A. Trabucchi and J. Mertens de Wilmars, (Rapporteur) Presidents of Chambers, A. M. Donner, W. Strauß, R. Monaco and P. Pescatore, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

I — Summary of the facts 21, 22, 13/64/EEC, 14/64/EEC, 16/64/EEC and 136/66/EEC which, with For some time before the entry into the exception of Regulation No 136/66 force of the EEC Treaty the Italian have now been repealed and replaced Republic had levied on goods imported by Regulations of the Council Nos and exported a charge called a 'statisti­ 120/67, 121/67, 122/67, 123/67, cal levy'. 804/68, 805/68 and 359/67; it asked The levying of this charge is presently the defendant to submit its observations based on Article 42 of the introductory on the compatibility of the disputed provisions concerning customs tariffs charge with the said regulations. approved by Decree of the President Finally, by a directive also dated 24 of the Republic No 723 of 26 June November 1966 the Commission decided 1965 and is payable at a fixed amount that the statistical levy must be abolished of 10 lire on every 100 kilogrammes or on the import of products other than every metric ton of goods or on every agricultural products subject to a market animal or vehicle with a minimum of regulation and determined the time­ 10 lire payable in each case even for table for such elemination. goods in the smallest quantities. Article However, the manner in which the 42 of the Decree excludes from the Italian Government dealt with this application of the tax goods in transit directive falls outside the scope of the and moreover Article 43 provides a dispute before the Court. series of exemptions either general, as in By two letters dated 23 December 1966 the case of frontier traffic, or particular, and 23 February 1967 the Italian as in the case of sulphur and aircraft. Government submitted its observations After requesting clarification on this levy to the Commission, maintaining that the from the Italian authorities, the Com­ statistical levy could not be treated as mission took the view that it constituted a charge having an effect equivalent to a charge having an effect equivalent to customs duties. customs duties on imports and exports: Since it found those observations un­ the Italian authorities disagreed and the satisfactory, the Commission, by two Commission then initiated the procedure documents dated 7 November 1967, the laid down by Article 169 of the Treaty first relating to the statistical levy on and by two letters dated 24 November exports and the second relating to the 1966 requested the Italian Republic to statistical levy on the import of agri­ submit its observations within the period cultural products subject to a market of one month. regulation, delivered a reasoned opinion The first letter concerned the compati­ on the basis of the first paragraph of bility of the statistical levy on goods Article 169 of the Treaty to the effect exported to Member States with Article that the Italian Republic had failed to 16 of the Treaty. The second letter fulfil an obligation under the Treaty and stated that the Italian Republic had laid down a period of one month in failed to abolish the statistical levy which it was required to comply with which it collected on the import of the said opinions. The Government of goods subject to the provisions of the the Italian Republic replied on 21 Regulations of the Council Nos 19, 20, December 1967.

The Commission brought the matters III — Procedure before the Court of Justice with a single application dated 27 September 1968 The written procedure followed the and lodged at the Court Registry on 5 normal course. October 1968. After hearing the report of the Judge- Rapporteur and the Advocate-General, the Court decided to open the oral II — Conclusions of the procedure without any preparatory parties inquiry. The parties presented their oral argu­ The applicant claims that the Court ments at the hearing on 7 May 1969. should: The Advocate-General delivered his (a) declare that the Italian Republic, in opinion at the hearing on 21 May 1969. collecting the charge known as the 'statistical levy' on goods exported to other Member States has failed to IV — Submissions and argu­ fulfil its obligations under Article 16 ments of the parties of the EEC Treaty; (b) declare that the Italian Republic, in A — Admissibility collecting the charge known as the 'statistical levy' on goods subject to The defendant does not dispute the regulations of the Council concern­ admissibility of the application. ing various common organizations of the agricultural markets and goods B — Substance imported from other Member States, has failed to fulfil its obligations According to the two parties the dispute under the combined provisions of is limited to the question whether the Article 189 of the EEC Treaty and statistical levy is a charge having an of the undermentioned Articles of effect equivalent to customs duties. the respective regulations: Article (1) For the purposes of examining it, 21(1) of Regulation No 120/67/EEC the applicant distinguishes the statistical Article 19(1) of Regulation No levy charged on imported goods from 121/67/EEC Article 13(1) of Regula­ that charged on exported goods; in its tion No 122/67/EEC Article 13(1) view they constitute two legally distinct of Regulation No 123/67/EEC infringements; since the charge is levied Article 22(1) of Regulation No on the import and export of goods these 804/68/EEC Article 22(1) of Regula­ are two distinct charges having effects tion No 805/68/EEC Article 23(1) equivalent respectively to a customs duty of Regulation No 359/67/EEC on imports and to a customs duty on Article 3(1) of Regulation No exports. 136/66/EEC; According to the defendant the Com­ (c) order the defendant to pay the costs. mission's reasoning was invalidated from The defendant contends that the Court the very outset because it separated should: the statistical levy into two distinct con­ — dismiss the application made by the cepts one relating to imports and the Commission of the European Com­ other to exports whilst the legal nature munities on 27 September 1968 set of the disputed charge must be appraised out at the beginning of the statement by taking account of its true quality now lodged; and not breaking down the two ques­ — order the Commission to pay the tions; the defendant furthermore con­ costs. siders that this procedure is illegal.

(2) Concept of a charge having equiva­ (3) Nature of the statistical levy lent effect The applicant claims that all taxation The applicant claims that the statistical or charges imposed unilaterally on levy is a charge having an effect equiva­ imported goods and not on correspond­ lent to customs duties: ing products sold in the home market (a) because it is not imposed on domestic constitute charges having an effect goods intended for the home market equivalent to customs duties on imports. whilst it is levied on imports or ex­ It relies on the case-law of the Court ports; in stating that the equivalence of ■the (b) because, with regard to imports, no effects of the charges and of the customs internal charge can justify the levy­ duties constitutes the sole criterion for ing of the charge by reference to determining whether the disputed Article 95 of the Treaty; charge has an effect equivalent to a (c) because this charge has discrimina­ customs duty. tory effects however small they may With regard to charges having an effect be. equivalent to customs duties on imports The defendant replies first that the the Commission considers that reference statistical levy is not fiscal charge by should be made mutatis mutandis to the its nature, character or effects and effect produced by customs duties on that consequently it does not fall exports. Taxes having equivalent effect within the provisions of the EEC thus include all taxes imposed uni­ Treaty concerning charges having laterally on exported goods and not on equivalent effect. corresponding domestic products sold in According to the defendant this charge, the home market. The effect of such too insignificant in amount to disturb charges is, like that of customs duties the market, is closely bound up with the on exports, to make the exported pro­ aims of a statistical survey. The Italian ducts dearer than those intended for the Government has always wished to have home market. a complete and fully accurate record of The defendant replies that the Court of goods imported and exported. To this Justice has not yet had to give a ruling end it established the charge imposed on a charge which arises when goods exclusively on importers or exporters. cross the frontier irrespective of whether This charge is thus bound up with the the crossing is inward or outward. special nature of the Italian market. The Before eliminating the disputed charge, defendant claims in addition that the as the Commission had moreover statistical levy is a measure of the ser­ promised in a reply given in the Euro­ vice rendered to businesses which bene­ pean Parliament, an examination should fit by having completely accurate infor­ be made of the various charges other mation on the movement of goods; busi­ than customs duties levied at frontiers nesses are required to pay the disputed between Member States in order to arrive charge to offset the cost of obtaining at a uniform application, possibly on the more accurate information than that ob­ basis of directives from the Council. tainable from the subsequent surveys of The applicant replies that although this the statistical institutions.

The defendant continues that the case- the charge is not discriminatory or pro law of the Court has never regarded the tective that it does not cause disturb levy of a tax for a service rendered to ances either in the domestic market or individual businesses as prejudicial or as in the Common Market. contrary to the Treaty. The argument The charge is imposed on all goods, that it is possible to insulate a market domestic and foreign alike. No distinc purely by an increase in the cost of tion is made between imports and ex

discriminatory. The applicant claims that the imposition In this connexion the defendant con of the statistical levy not only on the siders it logical that importers or ex import but also on the export of a given porters should be liable when the statis product involves a double infringement. tical levy is not imposed on products In this case not only are imported goods sold in Italy since the charge has an placed at a disadvantage on the domes object other than taxation levied on tic market in relation to goods produced domestic products. in the country but in addition the latter The defendant moreover emphasizes that are placed at a disadvantage on the mar-

3 According to Article 9 of the EEC Treaty, the Community shall be based upon a customs union founded upon the prohibition between Member States of customs duties and of all charges having equivalent effect, and the adop­ tion of a common customs tariff in their relations with third countries.

Article 12 prohibits the introduction of new customs duties on imports or exports or any charges having equivalent effect. Under Articles 13 and 16 customs duties and charges having equivalent effect on both exports and im­ ports in force between Member States are to be abolished in the manner laid down in those articles.

4 The position of these articles at the beginning of that Part of the Treaty reserved for the foundations of the Community, Article 9 being the first pro­ vision appearing at the very beginning of the Title dealing with the free movement of goods and Articles 12, 13 and 16 at the beginning of the section on the elimination of customs duties between Member States, is sufficient to show the fundamental role of the prohibitions laid down therein.

JUDGMENT OF 1. 7. 1969 — CASE 24/68

The importance of these prohibitions is such that in order to prevent their circumvention by means of various customs and fiscal measures, the Treaty was intended to prevent any possible failure in their implementation. 5 Article 17 therefore specifies that the prohibitions in Article 9 shall also apply to customs duties of a fiscal nature.

Article 95, which appears both in that Part of the Treaty which deals with the 'Policy of the Community' and in the Chapter on tax provisions, is in­ tended to fill in any breaches which a fiscal measure might open in the pro­ hibitions laid down, by prohibiting the imposition on imported products of internal taxation in excess of that imposed on domestic products. 6 In prohibiting the imposition of customs duties, the Treaty does not dis­ tinguish between goods according to whether or not they enter into com­ petition with the products of the importing country.

COMMISSION v ITALY

Consequently, any pecuniary charge, however small and whatever its designa­ tion and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed for the benefit of the State, is not discriminatory or protec­ tive in effect and if the product on which the charge is imposed is not in competition with any domestic product.

10 It follows from all the provisions referred to and from their relationship with the other provisions of the Treaty that the prohibition of new customs duties or charges having equivalent effect, linked to the principle of the free move­ ment of goods, constitutes a fundamental rule which, without prejudice to the other provisions of the Treaty, does not permit of any exceptions.

1 In this respect, it follows from Articles 95 et seq that the concept of a charge having equivalent effect does not include taxation which is imposed in the same way within a State on similar or comparable domestic products, or at least falls, in the absence of such products, within the framework of general internal taxation, or which is intended to compensate for such internal taxation within the limits laid down by the Treaty.

Although it is not impossible that in certain circumstances a specific service actually rendered may form the consideration for a possible proportional pay­ ment for the service in question, this may only apply in specific cases which cannot lead to the circumvention of the provisions of Articles 9, 12, 13 and 16 of the Treaty.

14 It is of no consequence for its designation under the Treaty whether the dis­ puted charge is treated as a general charge or as two distinct charges, one on exports and the other on imports.

As it is imposed universally on goods crossing the frontier, the charge in question hampers the interpenetration at which the Treaty aims and thus has an effect on the free circulation of goods equivalent to a customs duty.

The very low rate of the charge cannot change its character with regard to the principles of the Treaty which, for the purpose of determining the legality of those charges, do not admit of the substitution of quantitative criteria for those based on the nature of the charge.

15 The Italian Government further maintains that the disputed charge consti­ tutes the consideration for a service rendered and as such cannot be designated as a charge having equivalent effect.

According to the Italian Government the object of the statistics in question is to determine precisely the actual movements of goods and, consequently, changes the state of the market. It claims that the exactness of the informa­ tion thus supplied affords importers a better competitive position in the Italian market whilst exporters enjoy a similar advantage abroad and that the special advantages which dealers obtain from the survey justifies their paying for this public service and moreover demonstrates that the disputed charge is in the nature of a quid pro quo.

16 The statistical information in question is beneficial to the economy as a whole and inter alia to the relevant administrative authorities.

19 According to Article 189 of the Treaty those regulations are to be binding in their entirety and directly applicable in all Member States. In infringing their provisions the defendant has thus failed to fulfil an obligations under the Treaty.

Costs

20 Under Article 69(3) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

The defendant has failed in its submissions.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 3, 9, 12, 13, 16, 38, 169 and 171; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Co mmuni ty; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

Donner Strauß Monaco Pescatore

Delivered in open court in Luxembourg on 1 July 1969.

A. Van Houtte R. Lecourt Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 21 MAY 1969 1

Mr President, June 1965. The tax amounts to 10 lire Members of the Court, per 100 kilogrammes or per metric ton or per animal or vehicle, and is not less The matter in hand today involves a than 10 lire apart from exemptions con­ decision whether the Italian Republic has ceded for certain products. failed to fulfil its obligations under the On examining the tax the Commission EEC Treaty. came to the conclusion that it had an We have been told that in Italy, before effect equivalent to customs duties on the entry into force of the EEC Treaty imports. a charge for a statistical survey (which In this connexion we know that Article for brevity's sake I shall call the 'statis­ 13(2) of the EEC Treaty provides that tical levy') was levied on the import and charges having an effect equivalent to export of goods. The system is presently customs duties on imports in force be­ governed by Article 42 of the introduc­ tween Member States, shall be pro­ tory provisions of the Italian customs gressively abolished by them during the tariff, which entered into force by De­ transitional period in accordance with cree of the President No 723 of 26 directives from the Commission. In fact