C-29/72

2. Customs duties — Abolition — Charges having equivalent effect — Concept — Fees demanded for sanitary inspections — Prohibition (EEC Treaty, Article 9; Regulation No 805/68 of the Council, Article 22)

1. Article 36 must be interpreted strictly imported products and not on similar since it constitutes a derogation from domestic products alter their cost price the basic rule that all obstacles to the and thus produce the same restrictive free movement of goods between effect on the free movement of goods Member States shall be eliminated. as a customs duty. Since this prohibition does not admit of any distinction according to the aim in view in levying 2. The prohibition, in trade between the pecuniary charges for the abolition Member States, of all customs duties of which it provides, it also includes and of all charges having equivalent fees determined in accordance with effects refers to all charges demanded special criteria required because of on the occasion or by reason of im­ sanitary inspections carried out by portation which, imposed specifically on reason of the importation of goods.

In Case 29/72

Reference to the Court under Article 177 of the EEC Treaty by the President of the Tribunale di Trento for a preliminary ruling in the action pending before that before that court between

1 — Language of the Case: Italian. 2 — CMLR.

JUDGMENT OF 14. 12. 1972 — CASE 29/72

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure of meat (amounting in all to Lit. 52 670) and of Lit. 1 000 per head of cattle (in all The facts and the course of the procedure Lit. 30 000). may be summarized as follows: Marimex considered that those sums were not payable as they constituted 'charges On 26 July 1971 S.p.A. Marimex (the having equivalent effect' to customs duties plaintiff in the main action) imported from and prohibited by the first indent of Germany by way of the Brenner Pass a Article 22(1) of Regulation (EEC) No consignment of 5 267 kg of frozen beef 805/68 and accordingly lodged an applica­ and veal and on 17 September 1971 it tion on 8 May 1972 whereby it requested imported 30 live cattle. At the frontier post the President of the Tribunale di Trento both the meat and the animals were to order the Italian Finance Admini­ inspected by an official veterinarian. stration, represented by the Minister for S.p.A. Marimex paid the Fortezza customs Finance for the time being to reimburse office a sanitary charge of 10 lire per kg it the sums paid.

State and (b) calculated in accordance with of Justice may only give rulings on the criteria which are not comparable to the interpretation of the Treaty and of the acts criteria employed to determine the amount of the institutions of the Community and of the pecuniary charge imposed on im­ their validity. For this reason the Com­ ported live cattle and beef and veal?' mission suggests the deletion of the The order referring tne matter was received references to the particular case in the at the Court Registry on 26 May 1972. wording of the question. S.p.A. Marimex, the Government of the Italian Republic, the Government of the Kingdom of the Netherlands and the 2. The question whether the charges imposed Commission of the European Communities for veterinary inspections are charges submitted written observations pursuant to having an effect equivalent to customs Article 20 of the Statute on the Court of duties Justice of the EEC. S.p.A. Marimex (hereinafter referred to as After hearing the report of the Judge- 'Marimex') emphasizes first of all that the Rapporteur and the views of the Advocate- Italian State may properly ensure the General the Court decided to dispense with veterinary examination of cattle and of beef a preparatory inquiry. and veal on importation into Italy. This is clear both from Article 36 of the EEC The plaintiff in the main action, the Treaty and from Council Directive No Government of the Italian Republic and 64/432/EEC of 26 June 1964 (OJ, Special the Commission submitted oral observa­ Edition, 1963-1964, p. 164) and Council tions at the hearing on 4 October 1972. Directive No 64/433/EEC of 26 June (OJ, Marimex was represented by Mr Ubertazzi Special Edition, 1963-1964, p. 185) on and Mr Capelli of the Milan Bar, the health problems affecting intra-Community Italian Government by its Ambassador trade in cattle and swine and fresh meat. Mr Maresca, acting as Agent, assisted by The limits of the authority granted to the Mr Zagari, Deputy Head of the State Legal Member States may be found in the Advisory Office, and the Commission by provision in Article 36: 'on the grounds its Legal Advisers Mrs Dona-Viscardini of ... the protection of health and life of and Mr Oldekop. humans, andimals The Advocate-General delivered his opini­ Marimex reviewed tne views of legal on at the hearing on 21 November 1972. writers and the case-law of the Court of

of Regulation (EEC) No 805/68. In this Furthermore, the relevant due was fixed connexion it relies upon the following at an amount corresponding to the expense particular arguments: incurred with regard to the service rendered, taking into account the staff and (a) the relevant due was established by a the methods employed. It is clear from the sovereign measure of the Member State foregoing line of argument that the due in question; cannot be considered as a charge having an effect equivalent to a customs duty with­ (b) it is collected on crossing the frontier; in the meaning of Article 22(1) of Regula­ tion (EEC) No 805/68. (c) it results in an increase in the price of The Government of the Netherlands Shares the relevant goods; the view of the Italian Government on the question of the lawfulness of the veterinary (d) the due does not constitute the inspection at the frontier. The Netherlands consideration for a service rendered in Government expounds the following argu­ the exclusive and actual interest of the ment regarding the lawfulness of the due. private importer; The direct interest of the importer in the inspection cannot constitute the sole (e) since the veterinary inspection at the criterion for deciding whether the relevant frontier is intended to protect a public must be regarded as a consideration for a interest, that is to say the health of the service rendered by the national ad­ national livestock and of humans, the ministration. Account must also be taken due is collected not as recompense for of the indirect interests of consumers in a particular service but to protect the the veterinary inspection of imported meat. interest of the public at large; The principle of equality on the economic market requires that consumers should (f) the concept of a 'charge having equiva­ contribute to the expenses of the sanitary lent effect' referred to in Article 22(1) inspection through the imposition of a fee of Regulation (EEC) No 805/68 is with regard to the subject-matter of the identical with the concept in the EEC inspection. Treaty; thus from 29 August 1968 the According to the Netherlands Government regulation has also abolished the due the principles set out by the Court of in question. Justice in its judgment of 16 June 1966 in Joined Cases 52 and 55/65, Federal The Government of the Italian Republic Republic of Germany v Commission of the maintains that, having regard to the European Economic Community ([1966] provisions of Regulation (EEC) No 805/68, ECR 159 et seq.) cannot be applied mutatis the lawfulness of the Veterinary inspection mutandis in the present case where it relates at the frontier is beyond doubt. to a check on the quality of the goods With regard to the lawfulness of the due themselves and which could improve their collected on the veterinary inspection at position on the market. the frontier, the Italian Government ob­ Furthemore the veterinary inspection in

be carried out by an independent expert. goods by reason of the fact that they cross If the national provisions had merely laid the frontier. down that written evidence should be Nevertheless, the concept is not applicable produced proving that the goods had been if the dues are charged as a consideration inspected by a designated expert at the time for a service rendered by the administrative of importation the importers would also authorities. It is clear from the decisions have been obliged to incur expenses with of the Court that the classification of a out being able to describe them as 'a charge as a consideration for a service pecuniary charge imposed unilaterally by rendered by the administration is subject reason of the fact that the goods cross the to the following stringent conditions:

The Commission of the European Com with administrative operations requiring munities concurs in the conclusions of the use of specialized staff and technical Marimex and the Italian and Netherlands equipment, they differ from the charges Governments with regard to the lawfulness on which the Court has given rulings in the of the verterinary inspection in question. past, it emphasizes that veterinary in With regard to the lawfulness of the due, spection on importation confers no actual the Commission emphasizes first of all that and verifiable benefit on the goods subject the existence of a close link between the to it and that it is carried out exclusively procedures of the sanitary inspection and in the public interest, that is to say, the the charges imposed in this connexion does enhanced protection of public health and not exclude the independent consideration the quality of national livestock.

SA Ch. Brachfeld & Sons and Chougol exporting Member States are obliged to Diamond Co. ([1969] ECR 211), the Com make a thorough check to ensure that mission maintains that in principle the cattle intended for slaughter fulfil the concept of charges having equivalent effect conditions prescribed in the veterinary may extend to dues of this nature if the said certificate; that when those animals are charges are imposed on the imported exported and arrive at the Italian frontier

The charge in question does not 3. The question whether the dues relating constitute general and uniform taxation to the veterinary inspection at the frontier imposed upon domestic production must be considered as internal taxation and goods which cross the frontier. within the meaning of Article 95 of the Nor can it be considered as a charge Treaty the purpose of which is to compensate for internal taxation; the fee for Marimex discusses fully the various prob­ veterinary inspection at the frontier lems of fact and of law which are involved was introduced for reasons other than in deciding the question. Its arguments may the equalization of fiscal charges on be subdivided into two sections: (a) the imports in relation to fiscal charges incompatibility of the relevant dues with imposed on domestic products; the due the provisions of Article 95 of the EEC for the veterinary inspection at the Treaty because of their legal nature; (b) the frontier is also imposed on the export incompatibility of the relevant dues with of live animals; the origin and develop­ the provisions of Article 95 of the EEC ment of the due for the veterinary Treaty because of their legal nature; (b) the inspection at the frontier has always incompatibility of those dues with the been independent of the origin and abovementioned provisions because of development of the consideration for differences between the sanitary charges the inspection carried out within the imposed on intra-Community importations country; the situations from which the of beef and veal and on similar domestic two charges originate must be dis­ products on the other hand. tinguished. (According to Marimex the most important distinction follows A — Marimex lists the following argu­ from the fact that importations of ments against classifying the charges in cattle and beef and veal must meet question as the internal taxation referred to more stringent requirements than do­ in Article 95 of the EEC Treaty: mestic products because of the strict

rules laid down by Directives Nos receipts go to the local authority 64/432/EEC and 64/433/EEC with veterinary official and consequently regard to intra-Community trade.) cannot be considered as taxation within the meaning of Article 95 of the Treaty. (3) Since the taxation referred to in Article 95 is intended to place imported goods in a comparable tax position with (3) Comparison between the charges im­ domestic products, like bases of calcu­ posed on importations of live cattle lation are a necessary condition for or beef and veal and the total of the apportioning the tax burden between charges specifically imposed on similar the two categories of products. In the domestic products is fraught with present case, there is no such basis; the difficulty because of differences be­ amounts of the inspection dues are tween the criteria and methods of calculated in terms of criteria diff ring calculation. widely from those employed in calculating the amount of the re­ muneration payable for the domestic (4) If, notwithstanding those difficulties, a comparison of the respective amounts veterinary inspection. were made, it would appear that imported goods are more heavily B — If the due for the sanitary inspection charged. at the frontier can be classified as internal taxation and not as a charge having The Italian Government observes that the equivalent effect, Marimex maintains that imposition by authorities other than the the imported goods suffer discrimination. State of charges on domestic products has The most important factors which it no effect on the interpretation of Com­ adduces in support of its argument are as munity legislation. It is of little relevance follows: that under the particular arrangements of the administration of one State resources (1) Two veterinary charges are payable on derived from the application of sanitary imported goods: that is, the due for legislation are collected by local authorities the veterinary inspection at the frontier when, if the inspection is carried out at the and the fee for the call made by the frontier, the due is collected by the agencies local authority veterinary official re­ of the State. The Italian Government ferred to in Articles 13 or 17 and 28 maintains that with regard to live animals of the Ministerial Decree of 22 there is no difficulty in comparing the December 1969 (Gazzetta Ufficiale criteria for calculating the charges imposed No 16 of 20 January 1970). Although on the various categories of products. Articles 17 and 19 of Presidential Those particular problems originate in the Decree No 1701 of 30 December 1965 sanitary standards which must be required (Supplemento Ordinario to the Gazetta of the international trade in live animals Ufficiale No 101 of 27 April 1966) in which the point at which the imported apparently prohibit both the inspection animal corsses the frontier constitutes an and the fees for the local authority important factor within the framework of veterinary inspection, in reality such general sanitary protection.

Furthermore, the difficulty of such com­ and to subjecting the animals and meat to parison cannot conceal the fact that a more or less cursory examination. similar criteria are adopted within the The charges imposed internally on similar country in determining the charges for the domestic products may differ from the sanitary services. above-mentioned charges in several res­ The Italian Government concludes that this pects : question must be answered in the negative, at least to the extent to which it can be shown that the charge relating to the (a) they are not always imposed by the inspection at the frontier is imposed by the State but may also be imposed by Member State within the framework of a subordinate local bodies; system of national sanitary protection established by law and relating to both (b) they are not invariably imposed upon imported and native animals and that the goods but can also be imposed upon within this framework the pecuniary charge the undertakings which produce them; is levied on the basis of substantially homogeneous criteria.

MARIMEX v AMMINISTRAZIONE FINANZIARIA ITALIANA

C — In that case it is likewise impossible imposition of charges relating to such to concede that the correspondence re­ importation. quired by Article 95 exists. Owing to the differences in the subject-matter and bases The Commission concludes that the of the two categories of charges, compari­ charges imposed at the frontier for sanitary son of the amounts imposed upon the goods inspections relating to the products to is a practical impossibility. Those differ­ which Regulation (EEC) No 805/68 applies ences also give rise to a practice intended cannot be regarded as internal taxation to extend internal controls on domestic within the meaning of Article 95 unless products to imported products despite the charges are also imposed internally in fact that the latter have already undergone respect of sanitary inspections which are an inspection at the frontier. Such a identical in origin and specific subject- practice is inevitable in view of the delicate matter to the inspection carried out at the nature of the relevant products and the frontier and unless such charges are variety of their intended uses. imposed solely on domestic products and it is clear from the foregoing that the two are not imposed in addition on imported categories of products are only treated on goods which have already been charged at an equal footing after importation and the the frontier.

Grounds of judgment

1 By an order of 17 May 1972, which was received at the Court Registry on 26 May 1972, the President of the Tribunale di Trento submitted a question to the Court on the interpretation of Article 22(1) of Regulation (EEC) No 805/68 of the Council on the common organization of the market in beef and veal (OJ, Special Edition, 1968 I, p. 187).

4 Article 36 of the Treaty provides that: 'The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports ... justified on grounds of ... the protection of health and life of humans, animals

Since this provision constitutes a derogation from the basic rule that all obstacles to the free movement of goods between Member States shall be eliminated it must be interpreted strictly and thus cannot be understood as authorizing measures of a different nature from those referred to in Articles 30 to 34.

5 Consequently, although Article 36 does not prevent sanitary inspections neverthe­ less it cannot be interpreted as thereby permitting the imposition of charges levied on imported goods subjected to the said inspections and intended to cover the costs thereof.

In fact this charge is not intrinsically necessary to the exercise of the power laid down in Article 36 and is thus capable of constituting an additional barrier to intra-Community trade.

Consequently the question submitted cannot be answered with reference to Article 36 of the Treaty.

The classification of the disputed charges with regard to Article 22 of Regulation (EEC) No 805/68

9 The costs incurred by the Government of the Italian Republic, the Government of the Kingdom of the Netherlands and the Commission of the European Com­ munities, which submitted observations to the Court, are not recoverable; as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action before the national court, the decision as to costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Government of the Italian Republic, the Commission of the European Communities and Marimex S.p.A.; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 36 and 177; Having regard to Regulation (EEC) No 805/68 of the Council, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the question submitted to it by the Tribunale di Trento by order of 17 May 1972, hereby rules:

The pecuniary charges imposed on the grounds of the sanitary inspection of products when they cross the frontier, such charges being determined in accord­ ance with special criteria which are not comparable with the criteria employed in fixing the pecuniary charges upon similar domestic products, are to be considered as charges having an effect equivalent to customs duties.

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 21 NOVEMBER 1972 1

Mr President, Marimex further considers that the said Members of the Court, provisions are directly applicable, creating individual rights for private persons, it On 26 July 1971 and 17 September 1971 applied to the President of the Tribunale respectively Marimex, a limited company di Trento to issue an order for payment to having its registered office in Milan, the Italian Minister for Finance in order imported frozen beef and veal and live to secure the reimbursement of the amounts cattle from the Federal Republic of paid by it for the sanitary inspection. Germany into Italy via the Brenner Pass. The President of the Tribunale di Trento

1 — Translated from the German.