C-39/73

Customs duties — Charges having an effect equivalent to — Meaning — Phyto- sanitary examination — Charges — Imposition — Prohibition (EEC Treaty, Article 13 (2))

Pecuniary charges, whatever their products, are deemed charges having an amount, imposed for reasons of effect equivalent to customs duties. phyto-sanitary examination of products The activity of the administration of the State intended to maintain a when they cross the frontier, which are phyto-sanitary system imposed in the determined according to criteria of their general interest cannot be regarded as a own, which criteria are not comparable service rendered to the importer such as with those for determining the pecuniary to justify the imposition of a pecuniary charges attaching to similar domestic charge.

In Case 39/73

Reference to the Court under Article 177 of the EEC Treaty by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen for a preliminary ruling in the action pending before that Court between

Rewe-Zentralfinanz eGmbH,

plaintiff, and

composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen, and Lord Mackenzie Stuart (Rapporteur), Judges,

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure By order dated 19 January 1973 the said Court stayed proceedings and submitted The facts and procedure may be to the Court of Justice of the European summarized as follows: Communities the following questions: The plaintiff company, an agricultural (a) Does the term 'charges having an cooperative whose registered office is in effect equivalent to customs duties Cologne, imported from Italy in March on imports' (Article 13 (2) EEC 1970 a quantity of 19 195 kg of apples. Treaty) also include administrative The defendant carried out a charges for the phyto-sanitary phyto-sanitary examination of the fruit examination (in the present case on 25 March 1970. The defendant then fruits of plants) on the import from demanded from the plaintiff, by notice one Member State of the European dated 26 March 1970, 29.10 DM for Economic Community into another? examination charges. The plaintiff took the view that this sum (b) If so, does this also apply if the constituted a 'charge having an effect charge provided for merely covers, equivalent to customs duties', prohibited or does not even cover, the cost of by Article 13 (2) of the EEC Treaty and the examination? by Article 13 of EEC Regulation No The order was registered at the Court on 159/66 of the Council (OJ 1966, p. 9 March 1973. 3286), and applied to the Verwal­ tungsgericht Munster to quash the In accordance with Article 20 of the demand notice for the charges. After its Protocol on the Statute of the Court of application was rejected the plaintiff Justice of the EEC the plaintiff and the appealed to the Oberverwaltungsgericht Commission of the European Communi­ für das Land Nordrhein-Westfalen. ties have submitted written observations.

The plaintiff observes that the Court The Commission first of all examines replied in Case 29/72 — Marimex v the legislation regarding charges for Amministrazione ltaliana delle Finanze, phyto-sanitary examinations in the (Rec. 1972), 'pecuniary charges imposed German Federal Republic and then for reasons of hygiene control of products legislation dealing with imports of when they cross the frontier, which are vegetable substances in the other determined according to criteria of their Member States. It appears that quite a own, which criteria are not comparable number of Member States do not make with those for determining the pecuniary charges for inspection of vegetable charges attaching to similar domestic substances and vegetable products products, are deemed charges having an carried out on import. effect equivalent to customs duties'. This, in its view, confirms the fact that Since phyto-sanitary examinations come to forgo such charges ought not to pose under hygiene controls, the Court has insurmountable financial problems for already in Case 29/72 given an answer to the other Member States. the first question. After having examined the scope of this First question judgment the plaintiff submits that to exclude the charge payable on import The Commission observes that the first from being classed as equivalent to a question is concerned with the

JUDGMENT OF 11. 10. 1973 — CASE 39/73

interpretation which was then formu subject to the prohibition on levying lated, nevertheless the lawfulness of a duties and charges having an equivalent charge should be accepted only after effect within the framework of intra being examined according to the most Community trade. This finding is strict criteria and especially taking into however linked with a restriction, for the account the principle that any exception prohibition would not take effect 'if the to the prohibition on the levying of pecuniary charges fell under a general customs duties and charges having system of domestic dues systematically equivalent effect must be interpreted embracing domestic products and strictly: there must be some benefit from imported products according to the same the services of the authority, conferring criteria.' on the goods charged a concrete and This restriction arises from the fact that demonstrable advantage. The charge the Member States are in principle payable must not exceed the value of the authorized, provided that any fiscal advantage conferred on the goods by the provisions of Community law which

porters or exporters only a general ad charge in question within the particular vantage and one which is difficult to Member State. estimate. Phyto-sanitary examinations on imports do not confer on the products A correspondence with the internal subject to the examination advantages charges can only be said to exist if these for which consideration may be de charges directly affect similar domestic manded in the form of a charge. goods and if they are payable for examinations the reason and object for These examinations by their very nature which correspond to the examinations of are not made in the interests of the

REWE-ZENTRALFINANZ v LANDWIRTSCHAFTSKAMMER WESTFALEN-LIPPE

law of the Court. The decisive criterion introduction into Member States of is whether the financial charges imposed organisms noxious to vegetable by reason of crossing the frontier cause substances. It is proposed that Member the free movement of goods to be States provide for a compulsory impeded. The prohibition would then inspection of vegetable substances in the hold good independently of the object country of export, and the issue of an for which the charges in question were official phyto-sanitary certificate. Reg­ instituted and the destination of the ular examinations effected in the revenue which they produce. consignee state would in turn be progressively abolished. If this proposal Final observation were approved by the Council the The Commission recalls that as long ago charges relating to phyto-sanitary as 31 March 1965 it submitted to the control on import would disappear with Council a proposal for directives the abolition of the measures of control establishing measures prohibiting the themselves.

Grounds of judgment

1 By order dated 19 February 1973, lodged with the Registry of the Court on 9 March 1973, the Oberverwaltungsgericht für das Land Nordrhein-Westfalen submitted two questions of interpretation of the concept of 'charges having an effect equivalent to customs duties on imports' contained in the opening sentence of Article 13 (2) of the EEC Treaty.

2 The first question is directed to whether a pecuniary charge imposed for reasons of phyto-sanitary examination carried out on vegetable substances at the time when they cross the frontier must be regarded as a charge having an effect equivalent to customs duties within the meaning of Article 13 (2) of the Treaty.

The activity of the administration of the State intended to maintain a phyto-sanitary system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge.

5 Consequently, pecuniary charges, whatever their amount, imposed for reasons of phyto-sanitary examination of products when they cross the frontier, which are determined according to criteria of their own, which criteria are not comparable with those for determining the pecuniary charges attaching to similar domestic products, are deemed charges having an effect equivalent to customs duties.

Costs

6 The costs of the Commission of the European Communities, which has submitted observations to the Court, cannot be reimbursed, and since as regards the parties in the main action the present proceedings are a step in the action pending before the national court, the question of costs is a matter for that court.

REWE-ZENTRALFINANZ v LANDWIRTSCHAFTSKAMMER WESTFALEN-LIPPE

On those grounds,

Pescatore Kutscher Ó Dálaigh Mackenzie Stuart

Delivered in open court in Luxembourg on 11 October 1973.

A. Van Houtte R. Lecourt

Registrar President