C-87/75

on the interpretation of Article 13 of the EEC Treaty and of Article 2 (1) of the Convention of Association between the European Economic Community and the African States and Madagascar associated with that Community, signed at Yaoundé on 20 July 1963 and concluded in the name of the Community by the Council in its Decision of 5 November 1963 (OJ 1964, p. 1430) and of Article 2 (1) of the Convention of Association signed at Yaounde on 29 July 1969 and concluded in the name of the Community by the Council in its Decision of 29 September 1970 (OJ 1970, L 282, p. 1).

THE COURT

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

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

gives the following

JUDGMENT

of Yaoundé, also prohibited on skins Treaty: imported from Senegal. 1. Does the public health inspection duty, imposed under Article 32 (4) of Article 2 (1) of the Convention of Consolidated Health Laws No 1265 of

Association signed at Yaoundé on 20 27 July 1934, the amount of which is July 1963 provides as follows: fixed under Law No 30 of 23 January 1968, on imported goods of animal 'Goods originating in Associated States origin and which possesses the shall, when imported into Member States, features described above, constitute a benefit from the progressive abolition of charge having an effect equivalent to customs duties and charges having an customs duties within the meaning of effect equivalent to such duties, resulting Article 13 (2) of the EEC Treaty? between Member States under the 2. Does Article 13 (2) of the EEC Treaty provisions of Articles 12, 13, 14, 15 and have the effect of abolishing charges 17 of the Treaty and the decisions which having an effect equivalent to customs have been or may be adopted to duties on imports in relation to accelerate the rate of achieving the aims intra-Community imports with effect of the Treaty.' from 1 July 1968 or from 1 January 1970?

Article 2 (1) of the Convention of 3. Do the words 'charges having an Association signed at Yaoundé on 29 effect equivalent to customs duties' July 1969 provides as follows: have the same meaning (a) in Article 13 (2) of the EEC 'Products originating in the Associated Treaty; States shall, on importation into the (b) in Article 2 (1) of the Convention Community, be admitted free of customs of Association between the EEC

and the African States and Advocate-General, the Court decided to Madagascar States, signed at open the oral procedure without any Yaoundé on 20 July 1963 and preparatory inquiry. ratified by Italy by Law No 406 of 20 May 1964 and incorporated in Community law by Decision No II — Summary of written obser­ 345/64/EEC of the Council of 5 vations November 1963; (c) in Article 2 (1) of the Convention The Conceria Daniele Bresciani adopts of Association between the EEC the observations submitted to the Court and the African and Malagasy by the applicant in the main action in States, signed at Yaoundé on 29 Case 29/72 Marimex (Rec. 1972, p. July 1969 and ratified by Italy by 1309). Law No 1048 of 7 December 1970 and incorporated in Community On the first question, the Conceria law by Decision No 539/70/EEC contends that the case-law of the Court of the Council of 29 September contains sufficient authority for de­ 1970? scribing a pecuniary payment, which has 4. Did Article 2 (1) of the Convention of the same nature as the duty charged for Association between the EEC and the veterinary inspection at the frontier and African States and Madagascar, signed is levied on cowhides imported by the at Yaoundé on 20 July 1963 plaintiff in the main action, as a charge (a) have immediate effect; having equivalent effect to a customs (b) confer on Community 'citizens' an duty. individual right, which the national courts must protect, not The public health charges on the to pay to the State charges having imported skins do not constitute the an effect equivalent to customs consideration for a service rendered to duties; the individual by a public authority (c) produce these effects as from 1 because the public health inspections at July 1968 or as from 1 January the frontier are prescribed for the benefit 1970? of the public. 5. Has the obligation of the States to refrain from imposing charges having The contested charges are imposed on an effect equivalent to customs duties, skins of animal origin only if imported established by Article 2 (1) of the two from abroad. Similar national goods are successive Yaoundé Conventions, not subject to the contested charge. In applied without interruption since the this connexion the fact that, under dates laid down in the answer to Italian law, certain fees are payable for Question 4 (c)? local authority veterinary inspection is no justification for saying that the contested The order making the reference was charge forms part of general system of registered at the Court on 4 August 1975. charges affecting home and foreign goods alike. The difference in the basis Written observations were submitted by on which the two pecuniary charges are the Conceria Daniele Bresciani and by calculated makes it impossible for them the Commission of the European to be compared, especially in view of the Communities pursuant to Article 20 of fact that, in the present case, the the Protocol on the Statute of the Court comparison would be between a charge of Justice of the EEC. on skins, the amount of which is specified in advance by the relevant Law, Having heard the report of the and all the large number of fees charged Judge-Rapporteur and the views of the for local authority public health

by the regulations of the State on imported goods for the services of a In Case 181/73 Haegeman v Belgian public authority which carries out a State ([1974] ECR 449) the Court held compulsory public health inspection of that it was competent to interpret the imported goods treaties of association. (a) has no justification under Article 36 of the Treaty notwithstanding that Both Article 13 (2) of the Treaty and that Article authorizes the public Article 2 (1) of the two Yaoundé health inspection of imported goods; Conventions embody the same concept (b) cannot be held and declared to be of a charge having an effect equivalent to lawful as a consideration for a service customs duties on imports. rendered for the benefit of the importer of the imported goods; Article 2 (1) of the first Yaoundé (c) does not form part of a national Convention expressly refers to the taxation system and is not legal, as provisions of Article 12, 13, 14, 15 and being part of that system, if the 17 of the Treaty. Although Article 2 (1) charge concerned falls only on of the second Convention contains no imported or exported goods and is reference to the provisions of the EEC calculated on the basis of criteria Treaty, there is nothing in it to suggest peculiar to it which are incapable of that the concept of charges having being compared with the criteria on equivalent effect in the EEC Treaty is the basis of which the pecuniary not the same as that in the Yaoundé charge falling, on national goods is Convention of 1969. calculated; (d) constitutes a charge equivalent to a That the concept of charges having customs duty even though it was equivalent effect is the same in the EEC introduced under a law which mainly Treaty and in the two Conventions is governs non-fiscal matters, is cal­ confirmed by the fact that: culated according to the weight and 1. The foundation of both Conventions not the value of the goods and relates is instituted by Articles 131 to 136 of to a public health inspection service the EEC Treaty and by the im­ set in motion by individuals when plementing Convention for the

Article 2 (1) of the Conventions of As regards the first question, the Commission takes the view that a Association signed at Yaoundé are directly applicable and as, against the pecuniary charge levied for the administration, confer individual rights compulsory medical inspection of certain on Community importers in accordance products of animal origin when they with the criteria adopted in the case-law cross the frontier constitutes a charge of the Court. having an effect equivalent to a customs duty on imports which is prohibited in trade between Member States under With regard to the date of abolition, the Articles 9 and 13 (2) of the Treaty. answer to be given to the national court is that 1 January 1970 is also the last The Commission recalls that the duty date for abolition of charges having concerned is levied at the frontier in equivalent effect on imports into the respect of the public health inspection of Community of products originating in imported raw hides, applies exclusively to the associated States. imported products and, as such, does not form part of a general system of national Observations of the Commission taxation regularly applied, according to the same criteria, to national products and imports of the same product. After considering the relevant Italian legislation, the Commission states that Nor does it constitute the consideration

the public health inspection at the for a service rendered because the

frontier is usually confined to ascer­ administrative work done by the State in taining visually the state of preservation applying a system of public health of imported goods and whether they inspection, introduced in the public conform with the accompanying interest, cannot be regarded as a service certificates when these are required by rendered to the individual importer and the law. There is rarely any need for as justifying the imposition of a laboratory tests. pecuniary charge.

The Commission recalls that in the charges having equivalent effect on Marimex case, the facts were different products imported from associated States from those in the present case. The is laid down in Article 2 (1) in terms so judgment in Marimex was concerned unrestricted, clear and precise as to have with the legality of duties imposed for direct effect in the relations between the the public health inspection of live cattle Member States and individuals. and of beef and veal for human consumption and applied to imported The Commission makes the additional products as well as to national products, comment that it is worth bearing in but according to different criteria. There mind that the imports in question were is, accordingly, no reason why the in part carried out in 1969, namely, Marimex judgment should be referred to during the transitional period.

customs duties on imports of products connexion with the public health from the African States and Madagascar. inspection of these products, constitutes a charge having an effect As regards the second Convention signed equivalent to customs duties, which is at Yaoundé on 29 July 1969 and which prohibited in trade between the came into force on 1 January 1971, the original Member States, as well as in obligation to abolish customs duties and trade between the Community and

With regard to the question of Mr Capelli, for the Conceria Daniele Bresciani and Mr Abate, for the reciprocity, the Commission never intended to interpret and apply the Commission, presented their oral Conventions of Association solely on the observations at the hearing on 9 December 1975. basis of reciprocity. These Conventions are one-way: what the Community provides for the associated countries Mr Abate, in reply to questions put by would be meaningless if the little which the Court, emphasized that this was the it provides was subject to fulfilment of first time that the Court had been called the condition of reciprocity. Exports upon to rule directly on the nature and from the Community to the associated scope of a provision of an international countries consist solely of industrial agreement such as the Yaoundé products. There have been very few Convention. However, in Haegeman v difficulties and then only as regards the Commission (Rec. 1972, p. 1005) the interpretation of the concept of a charge Court, which sent the applicant back to having equivalent effect. the national court, implicitly recognized the possibility that the Association The Advocate-General delivered his Agreement between the Community and opinion at the hearing on 14 January Greece might have a direct effect. 1976.

Law

1 By order of 24 July 1975, which was received at the Court on 4 August 1975, the Tribunale of Genoa referred to the Court five questions concerning the interpretation of the concept of 'charges having an effect equivalent to customs duties on imports' contained in Article 13 (2) of the EEC Treaty and in Article 2 (1) of the Convention signed at Yaoundé on 20 July 1963 (JO, 1964, p. 1430) and of the Convention signed at Yaoundé on 29 July 1969 (OJ, English Special Edition (Second Series, I External Relations (2)).

6 The national court requests that the three following considerations be taken into account:

First, the fact that the charge is proportionate to the quantity of the goods and not to their value distinguishes a duty of the type at issue from charges which fall within the prohibition under Article 13 of the EEC Treaty. Second, a pecuniary charge of the type at issue is no more than the consideration required from individuals who, through their own action in importing products of animal origin, cause a service to be rendered. In the third place, although there may be differences in the method and time of its application, the duty at issue is also levied on similar products of domestic origin.

JUDGMENT OF 5. 2. 1976 -CASE 87/75

7 According to Article 9 of the Treaty, the Community is to 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 adoption of a common customs tariff in their relations with third countries.

Under Article 13 (2), charges having an effect equivalent to customs duties on imports, in force between Member States, are to be progressively abolished by them during the transitional period.

The position of these articles at the beginning of that part of the Treaty reserved for the 'Foundations of the Community' is sufficient to indicate their crucial role in the construction of the common market.

BRESCIANI v AMMINISTRAZIONE ITALIANA DELLE FINANZE

regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge. If, accordingly, public health inspections are still justified at the end of the transitional period, the costs which they occasion must by met by the general public which, as a whole, benefits from the free movement of Community goods.

11 The fact that the domestic production is, through other charges, subjected to a similar burden matters little unless those charges and the duty in question are applied according to the same criteria and at the same stage of production, thus making it possible for them to be regarded as falling within a general system of internal taxation applying systematically and in the same way to domestic and imported products.

12 The second question is whether Article 13 (2) began to have direct effect on 31 December 1969, the date on which the transitional period ended, or on 1 July 1968, the date on which customs duties were abolished within the Community.

13 Subject to any specific provisions, such effect occurred as from the end of the transitional period, namely 1 January 1970. In fact, the Council's decision of 26 July 1966 on the abolition of customs duties in line with the implementation of the Common Customs Tariff on 1 July 1968 (JO p. 2971) is based on the concept of a selective acceleration of actions which, as a whole, were to be completed by the end of the transitional period at the latest. In these circumstances that decision only applies to measures to which it specifically refers, that is to say, to customs duties as such and to quantitative restrictions.

17 Pursuant to the Fourth Part of the EEC Treaty, certain overseas countries and territories which had special relations with four of the former six Member States were associated with the Community. By reason of these special economic and political connexions, the association was intended, under Article 131 of the EEC Treaty, to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the

economic, social and cultural development to which they aspire. The Implementing Convention for the association of overseas countries and territories to the Community, annexed to the Treaty, was concluded for a period of five years.

18 Since, at the end of this period, several of the countries and territories had advanced towards political independence, the Yaoundé Convention was concluded in order to maintain the association between certain of those independent African States and Madagascar and the European Economic Community. It was concluded in the name not only of the Member States but also of the Community which, in consequence, are bound by virtue of Article 228.

19 As far as customs duties and charges having equivalent effect are concerned, Article 2 (1) of the 1963 Convention provides as follows:

'Goods originating in Associated States shall, when imported into Member States, benefit from the progressive abolition of customs duties and charges having an effect equivalent to such duties, resulting between Member States under the provisions of Articles 12, 13, 14, 15 and 17 of the Treaty and the decisions which have been or may be adopted to accelerate the rate of achieving the aims of the Treaty.'

23 This imbalance between the obligations assumed by the Community towards the Associated States, which is inherent in the special nature of the Convention, does not prevent recognition by the Community that some of its provisions have a direct effect.

24 Since the provision according to which consultations regarding the conditions of application of Article 2 of the Convention shall take place only at the request of an Associated State, it follows that the abolition of charges having equivalent effect must, on the part of the Community, proceed automatically.

25 By expressly referring, in Article 2 (1) of the Convention, to Article 13 of the Treaty, the Community undertook precisely the same obligation towards the

JUDGMENT OF 5. 2. 1976 -CASE 87/75

Associated States to abolish charges having equivalent effect as, in the Treaty, the Member States assumed towards each other. Since this obligation is specific and not subject to any implied or express reservation on the part of the Community, it is capable of conferring on those subject to Community law the right to rely on it before the courts and to do so with effect from 1 January 1970.

26 The answer to be given to the national court is, in consequence, that, with effect from 1 January 1970, Article 2 (1) of the Yaoundé Convention of 1963 confers on Community citizens the right, which the national courts of the Community must protect, not to pay to a Member State a charge having an effect equivalent to customs duties.

On those grounds,

THE COURT

in answer to the question referred to it by the Tribunale of Genoa hereby rules:

1. Whatever its designation and mode of application, a pecuniary charge which is imposed unilaterally on goods imported from another Member State when they cross a frontier constitutes a charge having an effect equivalent to a customs duty.

2. The direct effect of Article 30 (2) of the Treaty may be invoked only with effect from 1 January 1970.

3. Article 2 (1) of the Convention signed at Yaoundé on 20 July 1963 confers, with effect from 1 January 1970, on those subject to Community law the right, which the national courts of the Community must protect, not to pay to a Member State a charge having an effect equivalent to customs duties.

Registrar President