C-21/75

JUDGMENT OF THE COURT OF 9 JULY 1975<apnote>1</apnote>

Firma I. Schroeder KG ν Oberstadtdirektor der Stadt Köln (preliminary ruling requested by the Verwaltungsgericht Köln)

Case 21/75

Summary

1. Customs duties — Charges having equivalent effect — Concept (EEC Treaty, Article 13(2))

2. Customs duties — Charges having equivalent effect — Common organization of markets — Products imported from third countries — Public and veterinary health inspection — Pecuniary charge not comparable to that affecting similar Community products — Prohibition (Regulation No 121/67/EEC of the Council, Article 17(2)) (Regulation (EEC) No 805/68 of the Council, Article 20(2))

JUDGMENT OF 9. 7. 1975 — CASE 21/75

OBERSTADTDIREKTOR (Chief Administrative Officer) of the City of Cologne, and the City of Cologne,

on the interpretation of Article 17 of Regulation No 121/67/EEC of the Council of 13 June 1967 (OJ English Special Edition 1967, p. 52) and of Article 20 of Regulation (EEC) No 805/68 of the Council of 27 June 1968 (OJ English Special Edition 1968, p. 187),

THE COURT

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

Advocate-General: J. P. Warner Registrar: A. Van Houtte

the Council of 13 June 1967 on the Republic of Germany, they provide for common organization of the market in an inspection of carcasses slaughtered on pigmeat (OJ English Special Edition the national territory or in another 1967, p. 52) and the expression 'the country before they are used to levying of any charge having effect manufacture preserved meat and for the equivalent to a customs duty' within the examination of imported preserved meat. meaning of Article 20 (2) of Regulation In accordance with Article 23 of the (EEC) No 805/68 of the Council of 27 Fleischbeschaugesetz of 29 October June 1968 on the common organization 1940, in the version of the new Law on of the market in beef and veal (OJ the Authorization of Charges of 23 June 1970 and the Auslandsfleischbeschau­ English Special Edition 1968, p. 187) also include fees charged for public health gebührenverordnung (Regulation on inspection of imported meat under Charges for Inspection of Imported Meat) paragraph 23 of the Fleischbeschaugesetz of 29 February 1972, charges are levied as (Law on inspection of meat) of 29 a result of this examination.

October 1940 (BGBl, I, p. 1463 et seq.) in the version of 23 June 1970 (BGBl, I, p. The Verwaltungsgericht Köln is of the 805 et seq.) read in conjunction with the opinion that the view that under Articles Regulation on charges for inspection of 9 and 13 of the EEC Treaty it is only imported meat of 29 February 1972 — prohibited for Member countries of BGBl, I, p. 265 et seq.?' the Community to impose between themselves customs duties on imports' Article 17 (2) of Regulation No and exports and charges having 121/67/EEC and Article 20 (2) of equivalent effect runs contrary to the Regulation (EEC) No 805/68 provide application of the established case-law of that: the Court of Justice.

JUDGMENT OF 9. 7. 1975 — CASE 21/75

established case-law of the Court, are the national law is compatible with the same in the field of imports from third Treaty, the question referred for a countries as in the field of imports from preliminary ruling may be rephrased as Member States. follows:

charges paid for inspections by the the meaning of the Common Customs public health authorities carried out on Tariff. Moreover an express enabling meat products, when home- provision can be found in Article 235 of manufactured products of this type are the Treaty. not subject to similar inspections and charges although they are, however, The defendant in the main action points indirectly subject to a charge levied for out first of all that imported fresh meat the public and veterinary health or live animals are subject to the same inspection of the meat without exception inspections as home-produced meat, but on all meat which is home-produced and that on the other hand, when meat is the amount of which is on average imported in the form of ready-prepared considerably greater per kilogramme of products, it is obvious that the public and cut meat than the charges to which veterinary health inspection carried out imported meat is subject?' by the authorities of the importing State can only apply to prepared meat. Priority should be given to determining

The case-law of the Court of administrative services within the Justice on the line of demarcation meaning of the case-law of the Court and between these two concepts may be that they do not form part of a national summarized to the effect that taxation system of taxation which is permissible imposed on imported goods comes under Article 95 of the EEC Treaty, in within Article 95 when it is imposed to view of the fact that home-produced an identical extent on home- preserved meats are not subject to a manufactured goods or when it similar inspection.

SCHROEDER ν STADT KÖLN

States'. The Member States are therefore Court has adopted the criterion whereby free in theory to impose such taxation in taxation is imposed exclusively on certain trade with third countries. The definition products from other Member States. It of the field of application of Article 95 is has also interpreted prohibitions on the expression of sovereignty of the charges having equivalent effect which Member States in matters of taxation. are contained in the organizations of The Treaty does not therefore provide markets and as regards trade with third that internal taxation must be abolished, countries by making a distinction provided that it is also imposed on according to whether these charges have imported goods, and Article 95 only protective effects analogous to those of a requires that imported products should levy' on imports from third countries; not be the subject of 'any internal conversely, it has decided from the fiscal taxation of any kind in excess of that nature of the charges whether Article 95 imposed directly or indirectly on similar is applicable. However, it has not defined domestic products'. in detail what is meant by a charge which is imposed 'in the same way'.

Article 95. It is in principle compatible made with a sufficient degree of certainty with Article 95, for the same reasons, to between the charges which are derived impose a customs duty on imported meat from these systems of taxation. products when internal taxation is naturally applied to fresh meat, since The first part of the amended version of home-produced meat products are the preliminary question might therefore nevertheless directly subject to a charge be answered in the following way: of a corresponding or greater amount. 'Charges levied for inspection of meat Moreover, in order to assess whether products by the public health authorities charges for the public and veterinary do not come within the concept 'charges health inspection of meat constitute having equivalent effect' within the 'internal taxation' or 'charges having an meaning of Article 17 (2) of Regulation

As regards the possibility of a prohibition Therefore the answer should be that: on applying taxes having equivalent effect in trade with third countries, The prohibition contained in Article reference should be made to the 17(2) of Regulation No 121/67/EEC and judgment of the Court of 10 October that contained in Article 20 (2) of 1973 (Variola, Case 34/73, [1973] ECR Regulation (EEC) No 805/68 are not at 989). the present time of an absolute nature and they do not in any circumstances However, the Directive on Trade with prohibit the levying of charges for Third Countries of 12 December 1972 inspections by public health authorities.' provides explicitly in Article 23(4) and Article 26 thereof that Member States According to the Commission the may levy charges for inspections question put involves an examination of applicable to imported fresh meat. But national law, but the procedure under until now there have been no express Article 177 of the Treaty only allows an rules governing the inspections by the interpretation of Community law. It must public and veterinary health authorities therefore be understood only as relating which are carried out when meat to charges levied for the inspection of products are imported from third meat when it is imported from third countries. It cannot be supposed that the countries, since the agricultural prohibitions contained in Article 20(2) regulations mentioned concern trading of Regulation (EEC) No 805/68 and in conditions with third countries. Article 17(2) of Regulation No 121/67/EEC have the same scope in a The question may therefore be worded as field which is not yet subject to any follows: harmonization measures under Com­

'charges having equivalent effect' as it it fact, the levying of charges having used in the regulations on the common equivalent effect in respect of third organization of the markets as regards countries is not absolutely prohibited in trade with third countries identical with the organizations of the markets in beef the expression used in the Treaty and in and veal and in pigmeat, but only: these same regulations when they refer to intra-Community trade?' 'save as otherwise provided in this Regulation or where derogation The first question is whether the therefrom is decided by the Council, meaning of the concept 'charges having acting in accordance with the voting equivalent effect' is identical in the procedure laid down in Article 43 (2) of agricultural regulations and in Articles 9, the Treaty on a proposal from the 12 et seq. of the Treaty, and then Commission' (Article 17 (2) of Regulation a distinction must be made between No 121/67/EEC and Article 20(2) of trade within the Community and trade Regulation (EEC) No 805/68).

arbeiders v SA Ch. Brachfeld & Sons Without prejudice to any international and Chougol Diamond Co., [1969] ECR obligations which may exist, the 211 to 225). The Community legislature Community legislature is therefore free has however the power to enact such a to fix the scope of the prohibition which prohibiton under secondary law, because has been enacted in respect of third a charge having equivalent effect countries and to make it an instrument constitutes an instrument of commercial of commercial policy.

84/71. S.p.a. Marimex v Minister of the imposition of charges relating to Finance of the Italian Republic, Rec. measures taken by the public and 1972, p. 89; the operative part of the veterinary health authorities may judgment delivered in the latter case constitute an exception where the expressly mentions Article 20 (2) of charges which are levied on imports for Regulation (EEC) No 805/68, which is inspection are charges having equivalent also applicable in this case). effect. But such an exception only

JUDGMENT OF 9. 7. 1975 — CASE 21/75

there are no other exceptions provided. the frontier. The result of these Therefore the prohibition must be considerations cannot, however, be to adhered to to its full extent. maintain that there is also an exception in respect of meat preparations, in However this result is not satisfactory anticipation of the regulations envisaged, since cattle and pigs, meat and meat and therefore an authorization to levy preparations come within the same these charges to the extent to which the organization of the markets and only the charges levied constitute charges having harmonization of public and veterinary equivalent effect health problems has not yet been completed. But to attain the objective The plaintiff in the main action, laid down in the common organization of the market a uniform treatment of the represented by Mr Röll, Advocate at the Hamburg Bar, the defendant in the main question of charges relating to the importation of goods from third action, represented by Mr Sedemund, countries is required, and if meat Advocate at the Cologne Bar and the preparations imported from third Commission of the European countries were to be inspected without Communities, represented by Mr charges being levied as a result, the Matthies, its Legal Adviser, acting as Community meat-processing industry Agent, presented oral argument at the hearing on 28 May 1975. would find itself put at a disadvantage to the extent to which it processed fresh meat imported from third countries for The Advocate-General delivered his which inspection charges are levied at opinion at the hearing on 18 June 1975.

3 In the present state of the law there is nothing which could justify different interpretations of the expression 'charge having equivalent effect' as it appears in Article 9 et seq. of the Treaty on the one hand and in Article 17(2) of Regulation No 121/67 and Article 20(2) of Regulation No 805/68 on the other.

The concept of 'charges having an effect equivalent to a customs duty' on imports into the Community includes any charge, levied on the occasion or by reason of importation, which is specifically imposed on an imported product to the exclusion of a similar Community product and which has the same restrictive effect on the free movement of goods as a customs duty.

4 Consequently, pecuniary charges of whatever amount levied for public and veterinary health inspection of products imported from third countries which are determined according to their own particular criteria and which are not comparable to those used to fix any pecuniary charges which might be levied on similar Community products must be considered as charges having an effect equivalent to customs duties.

Costs

5 The costs incurred by the Commission of the European Communities which has submitted its observations to the Court are not recoverable and as the

proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

Pescatore Kutscher Sarensen O'Keeffe

Delivered in open court in Luxembourg on 9 July 1975.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 18 JUNE 1975