C-63/74

1. Any pecuniary charge, whatever its of goods were to be considered legal designation and mode of application, in the absence of Community rules as which is imposed unilaterally on to quality. domestic goods by reason of the fact that they cross a frontier constitutes a 2. Since Articles 39 to 46 do not provide charge having equivalent effect within for exceptions to Article 16 of the the meaning of Articles 9, 12, 13 and Treaty, the prohibition of customs 16 of the Treaty, even if it is not duties on exports and charges imposed for the benefit of the State. It having equivalent effect has applied cannot represent consideration for a to all products, with direct effect, service actually provided for the from 1 January 1962. By fixing the exporter when this service consists in date for the abolition of customs

a quality control of products for duties and charges having equivalent export, coupled with a prohibition effect at 1 January 1967, Article 13 of on the export of products which do Regulation No 159/66 can therefore not meet the standards of quality only have referred to duties and provided for by national law, even if charges on imports which were still in such an obstacle to the free movement force between Member States.

In Case 63/74

Reference to the Court under Article 177 of the EEC Treaty by the Tribunale

1 — Language of the Case: Italian.

JUDGMENT OF 26. 2. 1975 — CASE 63/74

composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Macken- zie Stuart (Rapporteur), Presidents of Chambers, A. M. Donner, R. Monaco. P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges,

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

gives the following

JUDGMENT

Facts

I— Facts and procedure 2. Italian Decree Law No 2213 of 20

affixed if products conform with conformity of products to quality conditions relating to quality, selection, standards was to be compulsory during packaging and wrapping to be the first stage only in relation to trade determined in each case (Article 3, between Member States but was amended by Law No 839 of 4 October gradually to be extended to sales on the 1966). The task of checking that these home market of the producer Member conditions are satisfied is entrusted to State, an objective which was to be the ICE (Article 6), which also sees to attained not later than 1 January 1968. the affixing of the stamp (Article 2). To During the first stage, Member States meet the costs deriving from the tasks had to submit products intended for conferred on it, the ICE receives the export to other Member States to a revenue from a duty proportional to the systematic quality control which, if the quantities of fruits, citrus fruits and products met the required standard, was vegetables exported, even if they are not confirmed by the issue of a certificate. subject to the stamp (Article 9). In the case of salad vegetables subject to According to the third paragraph of common quality standards, the duty to Article 9, any sums received over and conform to those standards, which above expenses borne by the ICE must applied also to domestic sales, was be set aside by the latter for the imposed with effect from 1 July 1968 by organization of special information Article 1 of Regulation No 158/66/EEC, services to promote the export of Italian amended by Regulation No 1040/67/ fruits and vegetables as well as for the EEC.

subject to the rules regarding the national stamp, provides for a systematic As from 1 January 1970, the inspection inspection of fruits and vegetables and must be made in a uniform manner by for the issue of a certificate of inspection the taking of samples, and applies made out to the exporter if the goods are without distinction to products sold on in conformity with the above conditions. the home market and those intended for Certain types of salad vegetable are export. subject to the national export stamp Detailed rules for inspections have been system. defined by Regulation (EEC) No

reproduced in Article 2 of Regulation must notify the authority responsible for (EEC) No 1035/72 of 18 May 1972. inspection. Where the latter carries out Regulation No 23 provided that the the inspection before the goods are

dispatched, it issues a certificate stating charge having equivalent effect on that the goods comply with the the ground that: regulations in force. If the inspection is (a) the charge is instituted by the not carried out, it issues an national law for the benefit of a acknowledgement of receipt and a minor public body, distinct certificate of conformity may be issued from the State; following an inspection carried out (b) the charge relates to an during transport. Regulation No 23 inspection the purpose of which provides that in addition to other is to ensure that the product particulars Member States may make it a possesses certain specific charac- condition that every package must bear teristics before it is issued an official control mark. with a certificate of inspection, it being impossible for the 4. For the purpose of applying the product to be exported unless it standards adopted by the Community, has undergone this inspection Italy made use of the pre-existing system and is accompanied by the said of the national export stamp, adapting it certificate; so that Community quality standards replaced the already existing national (c) the charge relates to the standards. In pursuance of the power compulsory use of a national provided by the Community rules, the export stamp and it is Italian rules incorporated, as the official impossible for the product to be control mark, the national export stamp. exported unless it bears this stamp? 5. Considering that the charge imposed (3) Is the collection of charges having by the ICE constituted a charge having an effect equivalent to customs an effect equivalent to a customs duty duties on intra-Community exports on exports and was accordingly prohibited by Article 16 of the prohibited by Article 16 of the EEC Treaty in the case of all products, Treaty with effect from 1 January 1962, including fruit and vegetables, with the Cadsky Company commenced effect from 1 January 1962 and, proceedings before the Tribunale di consequently, must Article 13 of Bolzano against the ICE for repayment Regulation No 159/66/EEC be of the sum paid. interpreted in such a way as not to conflict with Article 16 of the 6. By order of 26 July 1974, the President of the Tribunale di Bolzano Treaty and, accordingly, as

The fact that this case concerns a charge Observations of the Commission imposed in pursuance of quality control carried out at the time of exportation As regards the first question distinguishes it from the following cases: — Marimex v Amministrazione Finan- After mentioning other rules and ziaria Italiana (Case 29/72, Rec. regulations providing for charges 1972, p. 1309); relating to quality control on exports in Italy and in other Member States, the — Rewe-Zentralfinanz eGmbH v Direk- Commission considers the judgment tor der Landwirtschaftskammer delivered by the Court of Justice in the Westfalen-Lippe (Case 39/73, [1973] cases Marimex and Rewe Zentralfinanz ECR 1039). eGmbH referred to above. Inspection of exports may be intended to In the Commission's opinion the new give the countries of destination a certain element in this case consists in the type guarantee as to certain qualities of the of inspection to which the charge product. relates: quality control. It raises the Inspection of exports and the question whether this inspection may be corresponding certificate may be to the deemed to be the provision of a service advantage of the exporter: he thereby justifying payment. satisfies the formal requirement of a The Commission points out that certain certificate of inspection on importation fruits and vegetables are covered by a and he ensures that his product will pass common organization of the market the import inspection. which itself provides for quality Since the inspections in question do not controls. The questions put by the correspond to the 'various investigations national court concern fruit and and tasks necessary to alleviate the vegetable products in general. Even if effects of the quantitative restrictions' these questions relate only to salad which a Member State has established vegetables, the charge on which is the on the free importation of the products subject of the main action, they specify in question, the judgment in Federal that not all salad vegetables are subject Republic of Germany v Commission to the common standards. [1966] ECR 170) is not relevant. Having examined the Community The inspection on which the issue of provisions relating to the common these certificates is dependent entails organization of the market, the costs which should justly be borne by Commission concludes that in the case the product in question and, in the final of fruits and vegetables subject to analysis, by the consumer. common quality standards, their In the above case, the Court took conformity to those standards, checked account of the possible need to require by means of a systematic inspection on consideration for a specific service export, allows them, until 31 December actually rendered. 1969, to be put on to the markets of

a regulation of quality, intended to allow In addition, the mandatory nature of the only products of a specific quality to be operation to be performed by the State exported, whereas others can be sold automatically rules out, in the opinion of only on the home market, constitutes an the Commission, any idea that a service obstacle to exports and is therefore a has been provided. measure having an effect equivalent to a Finally, the Commission raises the quantitative restriction on exports, as question whether, assuming the charge prohibited since 1 January 1962 in trade in question to be consideration for the between the orginal Member States by provision of a service, such consideration Article 34 of the Treaty. does not exceed the true value of the The concern to safeguard the quality of service. products is not covered by the reservation contained in Article 36 of the As regards the third question Treaty. The Commission concludes that quality control of the type practised in Charges having an effect equivalent to Italy in accordance with the system of the customs duties on exports have been national export stamp has been illegal in prohibited since 1 January 1962. There trade between the original Member is no doubt about this date since Article States since 1 January 1962. 13 of Regulation No 159/66/EEC refers, in fixing various dates, to the abolition As regards the second question of measures having equivalent effect applicable to trade between Member The charge in question cannot be States. The phrase underlined undoubt- considered to correspond to a service edly covers both imports and exports, actually rendered: but whereas in respect of the former it In respect of fruits and vegetables which had the effect of bringing forward the are not subject to the system of the time-limits fixed by the Treaty, in national export stamp but are respect of the latter it could only have a nevertheless subject to the charge, there declaratory effect since the liberalisation can be no question of the provision of a of exports had already been brought service. about de jure on 1 January 1962 in In respect of fruits and vegetables subject pursuance of Article 16 of the Treaty.

According to the Italian Government the As regards the first question levy in question constitutes a pecuniary charge relating to the provision of the The Cadsky company maintains that the mandatory service of quality control. duty levied by the ICE constitutes a This service ensures protection of the charge having an effect equivalent to a dealer's own commercial interests, customs duty. The ICE duty has all the namely: characteristics which, according to the case-law of the Court of Justice, are — the certainty that the products meet the market conditions of other inherent in the concept of a charge having an effect equivalent to customs Member States; duties: — the identification of the products — It was instituted by a unilateral act of subject to the stamping scheme, the State, and not by virtue of a which gives them a certain added Community procedure: cf. Commis- value. sion of the EEC v Grand Duchy of The mandatory nature of this service Luxembourg and Kingdom of eliminates those commercial practices Belgium ([1962] ECR, 425) and which may put at a disadvantage traders Commission v Italy (Rec. 1969, p. who endeavour to conduct their business 193); in a proper manner. — It is imposed solely on exported The service in question does not protect goods and is not part of the general an unspecified interest of the national system of charges imposed also on population, as was the case in Marimex national goods: cf. Deutschmann v (cited above), but the specific interest of Federal Republic of Germany the trader who benefits from the affixing ([1965] ECR, 469); of the stamp. — It is levied by reason of and at the In this connexion, the Italian time of the crossing of a frontier: cf. Government cites the growing number Federal Republic of Germany v of economic sectors where traders are Commission ([19661 ECR, 159); willing to submit to quality control — It has the effect of increasing, albeit procedures in order to ensure wider sales to a very small degree, the price of of their products. goods affected: cf. Commission of It points out that the amount of this the EEC v Grand Duchy of duty does not exceed the true cost of the Luxembourg and Kingdom of service. No importance can be attributed Belgium ([1962] ECR, 425). to the fact that the inspection in question relates only to exported goods. As regards the second question The Italian Government concludes that the payment due to the ICE for quality As regards point (a) of the second control of vegetables exported abroad question, the Cadsky company does not resemble a charge having an emphasizes that according to the case-law of the Court it makes no effect equivalent to a customs duty, and that therefore it is not contrary to the difference that the charge in question provisions of Article 16 of the Treaty, was instituted by national law for the and also that the inspection in question benefit of a minor public body distinct constitutes a measure which is to the from the State.

control of products intended for export goods, in so far as exports must, in cannot constitute consideration for a accordance with the above rules, bear service provided by the administration in the national stamp. Such a quantitative the interests of private exporters. The restriction is prohibited by Articles 30 to national inspection authority merely 35 of the Treaty and cannot be justified certifies officially that the trader is on the basis of Article 36, since a general personally entitled to export and that prohibition on the export of goods exportation must be authorized if the which do not bear the national stamp goods satisfy the necessary conditions cannot be considered a measure which is

CADSKY v ISTITUTO NAZIONALE PER IL COMMERCIO ESTERO

that the impossibility of redefining the III — Oral procedure criteria for calculating and evaluating the benefit which the national export stamp At the public hearing on 14 January is deemed to confer on the trader and on 1975, Mr Zagari, appearing on behalf of the goods exported rules out the the Italian Government, emphasized that possibility that the ICE charge may be the court making the reference did not justified under Community law as ask whether the quality control for consideration for a service rendered. which the ICE charge was levied was in accordance with the law. The questions As regards the third question referred show that the court considers The Cadsky company points out that these inspections to be legal. Having Article 16 of the Treaty, which is examined the purpose and procedure for directly applicable, applies to all preliminary references, Mr. Zagari categories of goods, including agricultur- proposed that the Court should not deal al products. with this question. The Court heard the oral observations Article 13 of Regulation No 159/66/EEC must be interpreted as meaning that it of Mr Ubertazzi and Mr Capelli, on applies only to customs duties relating to behalf of the Cadsky company, and intra-Community imports and that, on those of Mr Marenco, on behalf of the Commission. the other hand, customs duties on exports are governed exclusively by The Advocate-General delivered his Article 16 of the Treaty. opinion on 5 February 1975.

Law

1 By order of 26 July 1974, lodged at the Court Registry on 27 August 1974, the Tribunale di Bolzano has referred to the Court three questions on the interpretation of the concept of charges having an effect equivalent to customs duties on exports, appearing at Article 16 of the EEC Treaty.

5 Consequently, any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on domestic 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.

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

7 A quality control carried out by a Member State on products for export alone, coupled with a prohibition on the export of products which do not meet the standards of quality provided for by national law, cannot, in itself, constitute a service provided for the exporter, even if such an obstacle to the free movement of goods were to be considered legal in the absence of Community rules as to quality.

8 Even if the maintenance of the reputation of fruit and vegetable products of a Member State by the indirect expedient of a certificate of inspection and the affixing of a national export stamp is capable of encouraging exports of

CADSKY v ISTITUTO NAZIONALE PER IL COMMERCIO ESTERO

national products, this benefit relates to the general interest of all exporters, so that the individual interest of each of them is so ill-defined that a charge imposed in payment for this inspection cannot be regarded as consideration for a specific benefit actually and individually conferred.

JUDGMENT OF 26. 2. 1975 — CASE 63/74

Costs

13 The costs incurred by the Government of the Italian Republic, the Netherlands Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Tribunale di Bolzano by order of 26 July 1974,

Registrar President