C-132/80

JUDGMENT OF 7. 4. 1981 — CASE 132/80

must, by virtue of Articles 30 and 36, by the national authorities are capable be considered as measures having an of constituting an impermissible effect equivalent to quantitative restriction on intra-Community trade. restrictions. 3. An inspection levy for health inspec- Thus the requirement of a double- tion of imported fish determined and check in the exporting country and imposed without objective just- in the importing country may, ification, in accordance with depending on the circumstances, be particular criteria concerning the more than Article 36 of the Treaty nature or condition of the goods, permits if health requirements may be which are not comparable to the satisfied as effectively by measures criteria used in fixing the pecuniary which are not so restrictive of intra- charges on domestic products of the Community trade. same kind, must be considered as a It is for the national court to examine charge having an effect equivalent to whether and to what extent the a customs duty, prohibited by Articles detailed measures of control applied 9, 12 and 13 of the EEC Treaty.

In Case 132/80

REFERENCE to the Court of Justice under Article 177 of the EEC Treaty by the Rechtbank van Eerste Aanleg [Court of First Instance], Bruges, for a preliminary ruling in the proceedings pending before that court between

N V UNITED FOODS, whose registered office is situated in Bredene,

and

composed of: J. Meitēns de Wilmars, President, P. Pescatore and Lord Mackenzie Stuart (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due, U. Everling and A. Chloros, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of frozen, deep-frozen, dried, salted or the procedure and the observations smoked fish (Article 1). submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

Fish which is declared unfit for human and 2). The decree draws a distinction consumption upon inspection is to be between fish from domestic fish-farms, seized, denatured and taken to an fish caught in the sea and imported fish. approved disposal centre (Article 8 (1)). Fish offered or exposed for sale, sold, retailed or disposed of without having undergone inspection is to be seized and confiscated; if it is declared fit for human consumption, it may be handed over to a social welfare institution (Article 8 (6)). Fish imported in breach (a) Under Anieles 3 and 4, fish from of the rules adopted in implementation domestic fish-farms is subject to health of this Law or declared unfit for human inspection: the farms are inspected every consumption in consequence of the month and whenever drainage takes public health inspection carried out on place by an inspector who may carry importation is to be refused entry. If it out chemical, parasitological, micro- cannot be sent back it is either handed biological or any other tests on the fish over to a social welfare institution or and on the water. If he declares the fish rendered unusable (Article 8 (7)). to be fit for human consumption, he issues a health certificate. Fish from fish- farms may be put on the market or transported for the purposes of human consumption only if accompanied by a label bearing the indications specified in the Decree of the Minister for Health and Family Affairs of 29 November 1976 Different penalties are imposed in the laying down the standard form of the event of infringements of this Law or inspection mark to be affixed following of its implementing decrees (Articles 9 health control, inspection or hygiene to 15). control (Moniteur Belge of 29 December 1976).

inspection, the inspector affixes a mark office through which it is to take place to the containers or packages containing (Article 10). Public health inspection on the fish; if the goods are intended for importation takes place in the customs export and the country of destination so office, at the frontier or inland (Articles requires, the inspector also draws up a 12, 13 and 14). Public health inspection health certificate in the form prescribed relates to the health certificate issued by by the Belgian Minister for Health or, the competent authority of the country where necessary, in the form required by of origin, the mode of transport, the the country of destination (Article 6). state of preservation and the conformity of the import with the requirements of Belgian legislation on the inspection or health control of fish; the inspector may, moreover, if he sees fit, carry out tests (Article 15). If, as a result of the health control on importation, the fish is declared unfit for human consumption, it is refused entry or, where this is impossible, denatured and destroyed (c) Imported fish must be accompanied (Articles 18, 19 and 20). by a health certificate issued by the competent authority of the country of origin stating that the fish has undergone a veterinary health inspection and that it has been declared fit for human consumption on the day of dispatch. The form in which the health certificate is to be drawn up was laid down in the Decree of the Minister for Health of 29 Article 21 of the Royal Decree of 30 November 1976 (Moniteur Belge of 29 April 1976, as amended by the Decree of December 1976). On importation, the 3 December 1976, provides for the containers or packages containing the imposition of inspection levies in respect fish must bear an inspection mark of the of public health inspection of imports. country of origin attesting that the fish These levies amount to BFR 15 per 100 has undergone public health control or kg or fraction thereof for whole, inspection (Article 16). Imports of fish unprocessed fish and BFR 30 per 100 kg other than live fish must be packed in a or fraction thereof for other fish. They specific manner (Article 17). The import- are collected through the agency of the ation of fish may be authorized only by customs authorities. certain customs offices or sub-offices jointly designated by the Minister for Health and the Minister for Finance; they also designate the veterinary surgeons responsible for carrying out public health controls on imports and specify the days and times of import- ation. At least 24 hours prior to import- In the case of fish caught in the sea, an ation, the importer must notify in writing inspection levy is charged by the local the Meat Trade Inspection Service for authority or the body delegated by it, on the area of the nature, quantity and whose territory the fish is landed, to origin of the consignment; he must also cover the cost of inspection. The amount advise the day and time of importation of this levy was fixed at BFR 0.15 per kg and designate the customs office or sub- by the Royal Decree of 3 December

— the importation of fish is per- On 8 March 1978, the two companies missible only through the customs referred to above instituted proceedings offices and sub-offices notified by against the Belgian State in the the authorities and on the day and Rechtbank van Eerste Aanleg, Bruges, at the times fixed by the auth- for the recovery of the amounts which orities; they alleged had been wrongfully charged as inspection levies on the importation of fish. — the containers, packing and ice used must meet legal require- The amounts at issue were BFR 171 250 ments; in the case of United Foods and BFR 450 824 in the case of Van den Abeele, adjusted on 15 May 1979 to BFR — the inspection marks made by the 288 132 and BFR 836 645 respectively. authorities must be placed on In support of their claims, the plaintiffs every package, however small; asserted that Belgian legislation on inspection levies was incompatible in particular with Articles 30, 9, 12, 13 and 95 of the EEC Treaty. — consignments of imported fish must be provided with a health certificate issued by the competent In its judgment of 5 March 1980, the authority of the country of origin First Chamber of the national court showing that the fish has been stayed the proceedings pursuant to subject to a veterinary health Article 177 of the EEC Treaty until the inspection and that on the day of Court of Justice had given a preliminary dispatch it was declared fit for ruling on the following questions: consumption, the form of health

UNITED FOODS AND VAN DEN ABEELE v BELGIUM

certificate being laid down by the Member State on the inspection authorities or the importing and importation of fish; Member State?

3. Are the inspection levies which are imposed on importers in order to cover the costs of the inspection 4. In the event of the foregoing described in the first question to be questions being answered in the sense regarded as charges having an effect that inspection levies as therein equivalent to customs duties within described are not to be regarded as the meaning of Article 9 et seq. of the charges having an effect equivalent to EEC Treaty or as internal taxation customs duties but may be regarded within the meaning of Article 95 of as being part of a system of inter- the EEC Treaty, if: national taxation within the meaning of Article 95 of the EEC Treaty, is there any discrimination prohibited by Article 95 if inspection levies on landing are the same whatever the — the inspection of fish-farms is not state of the fish whilst inspection subject to any levy at all in the levies on importation for other than Member State concerned; whole unprocessed fish are twice as high as inspection levies on landing?

— the inspection of fish caught in the sea takes place, after it has The judgment of the Rechtbank van been landed, in fish-markets and Eerste Aanleg, Bruges, was lodged at the concerns the hygienic standard, Court Registry on 2 June 1980. freshness and purity of the fish whilst the health inspection on importation takes place at customs offices and concerns the health In accordance with Article 20 of the certificate, the means by which the Protocol on the Statute of the Court of fish has been transported, the state Justice of the EEC, written observations of preservation as well as were submitted on 18 August 1980 by conformity with the requirements N V United Foods and PVBA Aug. van of the regulations of the importing den Abeele, the plaintiffs in the main

action, represented by André Faurès and The questions referred to the Court by Bernard van de Walle de Ghelcke of the the Rechtbank van Eerste Aanleg, Brussels Bar; on 20 August by the Bruges, call for the following obser- Commission of the European Communi- vations and answers: ties, represented by its Legal Advisers, Manfred Beschel, a member of the Legal Department, and Robert Caspar Fischer, Legal Adviser, acting as Agents; on 26 First question (Article 30 of the EEC August by the Government of the French Treaty) Republic and on 3 September 1980 by the Government of the Kingdom of Denmark, represented by Per Lachmann, Adviser at the Ministry of Foreign (a) A system of inspection at the Affairs. frontier, such as that forming the subject-matter of this question, un- doubtedly constitutes a measure having an effect equivalent to a quantitative restriction on imports prohibited under On hearing the report of the Judge- Article 30 of the EEC Treaty. Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any According to the case-law of the Court, preparatory inquiry. Article 30 applies to all measures capable of hindering, directly or indirectly, actually or potentially, trade between Member States. This is the case where in a Member State compulsory inspections II — Written observations sub- are carried out at the frontier which are mitted to the Court capable of rendering the importation of goods more difficult or more expensive, particularly by reason of the time required to perform the inspection operations and of the additional costs of United Foods and Van den Abeele, transportation which the importer may plaintiffs in the main action, outline the have to bear as a result. Clearly, the situation of the Belgian fishery products system of inspection measures at issue in market and emphasize that Belgium the main action and the controls which it attaches great importance to intra- involves constitute a barrier and result in Community trade; they recall that there delay and additional costs for importers. is no uniform Community system or any harmonization of national legal provisions on the inspection of fish. The contested health inspections are Belgium is the only Member State in the compulsory and systematic; inevitably, Community to charge inspection levies inspection entails expense and gives rise on landed fish and imported fish. to delay. Moreover, levies similar to those at issue in the main action, charged on imports of meat, have been abolished in Belgium According to the Court, the concept of by the Royal Decree of 21 June 1979 measures having an effect equivalent to (Moniteur Belge of 23 June 1979) as a quantitative restrictions also extends to result of proceedings initiated by the the requirement to produce a certificate Commission on the basis of Article 169 attesting that imported products have of the EEC Treaty. undergone specific treatment in the

exporting country. The requirement that relating to public health, fair trading or consignments of imported fish must be consumer protection. In this connexion, accompanied by a health certificate, account should be taken of the fact that drawn up in the form prescribed by the what is at issue in the main action is the importing Member State, issued by the carrying out of health inspection of competent authority of the country of imported fish which has already origin and stating that the fish has undergone such inspection in the undergone a veterinary health inspection exporting Member State. and has been declared fit for human consumption on the day of dispatch already constitutes per se, according to the case-law of the Court, a measure having an effect equivalent to a (c) The concept of measures having restriction on imports. an effect equivalent to quantitative restrictions therefore includes national health inspection measures which display the characteristics described in the first Delay, loss of time, damage suffered by question; such measures are prohibited imported goods and, in particular, the under Article 30 of the EEC Treaty financial charges and formalities which unless they come within the exceptions importation entails are factors which the stated in Article 36. Court has in numerous judgments regarded as barriers to intra-Community trade. The second question (Article 36 of the EEC Treaty) (b) The absence, at Community level, of a uniform system of health inspection in respect of fishery products does not have the effect of enabling a system such (a) According to the established case- as that at issue in the main action to law of the Court, Article 36 should be escape the prohibition contained in given a restrictive interpretation since it Article 30 of the Treaty. In the absence constitutes a fundamental exception to of a Community system, it is admittedly the principle that barriers to the free for the Member States to regulate, each movement of goods must be removed. on its own territory, the manufacture, marketing and consumption of a product, on condition however that the national legislation adopted is not The conditions governing its application capable of hindering, either directly or have also been laid down by the Court: indirectly, actually or potentially, intra- its aim is not to reserve certain areas, Community trade. such as the pulbic health sector, to the exclusive competence of the Member States; the measures based on Article 36 must, in each case, be appraised by National rules applying to domestic and reference to the criteria of fairness and imported products without distinction proportionality in order to establish can escape the application of the whether they are and continue to be conditions laid down in Article 30 only if justified; certain rules or practices which they can be justified as necessary in have or are capable of having a order to satisfy imperative requirements restrictive effect on the importation of

(c) The system of health inspection (b) In the absence of a harmonized described in the first question of the Community system, national measures national court cannot come within the should be examined on the basis of the exception to the free movement of goods conditions for the application of Article contained in Article 36 of the EEC 36, as laid down by the Court. Treaty since it fails to protect public health effectively and since the objectives of public health protection can be achieved equally effectively by measures which are less of a hindrance to intra- In this connexion, it should be borne in Community trade. mind that a system of health inspections at the frontier, such as that at issue in the main action, can find no justification on the ground of effectively achieving the public health objectives which it is aimed at: it is not based on a The third question (Articles % 12 and 13 presumption that imported goods are in and Article 95 of the EEC Treaty) conformity with the information contained in the health certificate issued by the exporting country but involves a systematic double-check organized in a way that provides for a second inspection in accordance with Belgian (a) According to the case-law of the rules. This second systematic inspection Court any pecuniary charge, other than cannot be justified in a system where, a customs duty properly so-called, despite the differences between national imposed, on the occasion or by reason of rules, straightforward co-operation be- the crossing of a frontier, on goods tween the national authorities would circulating within the Community and

(b) On several occasions, the Court has ruled that pecuniary charges levied on In any event, the inspection levies are not goods as a result of health inspections proportionate to the costs of the carried out when goods cross a frontier operations carried out: the importer is are to be regarded as charges having an obliged to pay levies calculated at a fixed effect equivalent to customs duties. The rate, irrespective of whether the fact that health inspections on import- inspector has actually inspected the ation may be permitted under Article 36 consignment; the control is the same for of the Treaty does not imply that the a large as for a small consignment, for levying of pecuniary charges for these processed as well as for unprocessed fish; inspections is authorized: the pecuniary the levy is never proportionate to the charges are not in themselves necessary costs which increase according to the for the exercise of the power provided tonnage. for in Article 36 and are capable of constituting an additional obstacle to intra-Community trade. Even on the assumption that health inspections on the importation of fish are authorized under (c) The contested inspection levies are the exception provided for by Article 36, charges having an effect equivalent to the collection of inspection levies on customs duties and not internal taxation importation is therefore in any event within the meaning of Article 95 of the prohibited. EEC Treaty.

According to the Court, the charges the frontier. The inspection of fish imposed by various public authorities in caught in the sea relates to the hygienic respect of hygiene controls carried out standard, freshness and purity of the within the Member States on domestic fish; however, health inspections on products as well as on imported products importation relate to the health certi- constitute internal taxation which comes ficate, the mode of transport, the state of within the scope of the prohibition of preservation and the conformity of the discrimination contained in Article 95. imports with the requirements of Belgian Furthermore, in order for a charge to be legislation on the inspection and health classified as an internal taxation, the controls of fish. chargeable event giving rise to tax must be identical in the case of domestic and imported products. The products in question are not at the same stage of production. Landed fish, which is a domestic product, is inspected It follows from these principles that the on landing before being sold in fish- contested inspection levies cannot be markets; fish imported from another regarded as forming part of a system of Member State is sold there and then re- internal taxation since they are applied in exported, frequently after being packed a systematic and identical manner to for dispatch. Imported fish undergoes, domestic goods and to imported goods. naturally at an earlier production and marketing stage, a health inspection in the exporting Member State.

(d) The answer which might be given unprocessed fish and other fish is not to the third question is that inspection applied to landed fish. levies on importation, of the same kind as those described in the question, constitute charges prohibited on the The rate of charge is also different, to ground that they have an effect the detriment of imported fish: the equivalent to customs duties within the health inspection levy on landing is BFR meaning of Articles 9, 12, 13 and 16 of 0.15 per kg while the inspection levy for the EEC Treaty. health inspection on importation is BFR 15 per 100 kg in the case of whole and processed fish and BFR 30 per 100 kg in the case of other fish. Fourth question (Article 95 of the EEC Treaty) Inspection levies on landing are collected by the local authorities at the expense of the purchaser, while those on import- (a) In the extremely unlikely event of ation are collected by the customs auth- the Court's taking the view that the orities when the goods cross the frontier, contested inspection levies are to be their importation being subject to such regarded as internal taxation, the fourth payment. question should be answered in the affir- mative. (d) Therefore the answer to the fourth question should be, in the alternative, (b) Article 95 authorizes the levying of that the prohibition of discrimination internal taxation on products from other contained in Article 95 of the EEC Member States, on condition that Treaty applies to charges of the same domestic products are taxed in an kind as those at issue in the main action absolutely identical manner not only as since they differ according to the basis of regards the rate at which it is imposed assessment, the rate of charge and the directly or indirectly on domestic and rules for collection. imported products but also as regards the basis of assessment and the rules for collection; once any disparities in this The Government of the Kingdom of respect occur which may lead to a higher Denmark has submitted essentially the taxation of imported products at the following observations : same production or marketing stage there is a breach of the prohibition of discrimination contained in Article 95. The first two questions (Articles 30 and 36 of the EEC Treaty) (c) In the present case, there are indeed disparities in the basis of assessment, the rates of charge and the rules for (a) The case-law of the Court shows collection. that the prohibition of quantitative restrictions or measures having an equivalent effect, contained in Article 30 The basis of assessment for inspection of the Treaty, also covers systematic levies differs from that for health control health inspections carried out at intra- levies on landing: the distinction drawn Community frontiers and that national in the first case between whole legislation relating to health inspection

(b) The charges at issue in the main action are clearly not imposed on domestic products and on imported products in accordance with the same (c) The Member States are entitled to criteria: the rates of charge are different; adopt and to apply rules relating to the legal basis for the difference between health inspections of fish; such rules the amount levied on landed fish and on constitute a reasonable component of a imported fish is uncertain; frozen fish is policy for the protection of health and treated in a special manner on import- life of humans. The national authorities ation. should be empowered, in relation to both domestic production and imported goods, to set up a cohesive and reliable system of control capable of functioning in practice without occasioning The higher rate charged on imported fish unreasonable administrative costs. cannot be justified by the argument that the state of preparation of imported fish is more advanced: inspection charges on landed fish are fixed in the same manner irrespective of the level of preparation.

However, the legislation at issue displays some objectionable features, in particular the 24-hour period for notification imposed on the importer, the obligation The Government of the French Republic to effect importation at the times considers that Community law, as specified by the Belgian authorities, the interpreted in the case-law of the Court, rules (double-check) for veterinary enables a clear answer to be given to inspection carried out on imports of each of the questions submitted by the frozen fish. national court.

(a) Having regard to the Court's case- (c) Health inspections carried out at law, it is virtually impossible for the the frontier and displaying the system of health inspections of fish characteristics set forth in the judgment which is at issue in the main action to of the Rechtbank van Eerste Aanleg, escape classification as a measure having Bruges, are, in the absence of an effect equivalent to a quantitative Community rules, perfectly justified in relation to Article 36; however, restriction on trade. according to the case-law of the Court, this provision cannot be interpreted as authorizing the collection of levies which are charged on imported goods subject (b) This health inspection system is to control and are intended to meet the clearly, in the absence of Community cost of such controls. legislation harmonizing national rules relating to control, within the exception provided for in Article 36 of the Treaty: in the absence of harmonization, a Whether this levy is lawful under control system of this kind is the sole Community law depends on its classi- method whereby the Member States can fication. achieve the objective of public health protection which is expressly referred to in this provision. The measures forming part of the system are necessary in order Classification of the health inspection to afford the Member State concerned levies in relation to Articles 9, 12, 13 and and its nationals the guarantee that 95 of the EEC Treaty imported fish has been caught, prepared, handled and dispatched in accordance with the rules in force in the importing State, declared fit for human (a) The case-law of the Court has consumption on the day of dispatch and dispelled virtually all doubt concerning released for human consumption in the the classification of health inspection Member State concerned after checks levies under Community law: they have been carried out establishing that constitute charges having an effect the product is wholesome following equivalent to customs duties since none transportation to the frontier. or the exceptions laid down by the Court applies to them. In any event, if the levies are deemed to come within the scope of Article 95, they must be The first two measures of an considered discriminatory in relation to administrative nature which form part of products imported from the other the contested system are apparently Member States. essential to enable the authorities responsible for the controls to take steps to implement them in practice in order to minimize any delay in the customs (b) The levies at issue in the main clearance of the products under action constitute, according to the

(c) The contested inspection levies do not constitute internal taxation within the meaning of Article 95 of the Treaty. The answers to the questions referred to In order to come within the scope of a the Court general system of internal taxation and thereby escape classification as a charge having an effect equivalent to a customs duty, a pecuniary charge must be applied systematically to the imported products (a) A health inspection system dis- and domestic products concerned in playing the characteristics set forth by accordance with identical criteria, that is the national court in the first question of to say, as the Court has held in the past, its decision to refer the matter to the the charge must be imposed in Court of Justice could scarcely escape accordance with the same basis of classification as a measure having an assessment, at the same production or effect equivalent to a quantitative marketing stage, in accordance with the restriction on intra-Community trade; same basis of calculation and in however, the system is perfectly justified consequence of the same chargeable in relation to Article 36 of the EEC event. Treaty.

(c) With regard to the concept of justified restrictions within the meaning (a) The Court interprets the concept of of Article 36 of the Treaty, it is measures having an effect equivalent to necessary to recall that, as a matter of quantitative restrictions very widely and, principle, this provision constitutes an according to its consistent case-law, exception to the fundamental principle of health inspections carried out systemati- the free movement of goods and must as cally at intra-Community frontiers come such be given a restrictive interpretation. within such measures. Restrictions on the free movement of goods based on Article 36 are, according to the case-law of the Court, in conformity with the Treaty only in so far as they are justified, that is to say (b) The specific requirement relating to necessary for the attainment of the the production of an inspection certi- objectives referred to in that provision ficate drawn up in the exporting country and, in particular, for the protection of constitutes an additional pre-condition health and life of humans. for importation which is also capable of affecting, at least potentially, trade between Member States; the Court has With regard to the problems raised by also classified the obligation to produce the main action, it must be stated that such documents as a measure having an verification of the declaration of the effect equivalent to a quantitative country of dispatch is necessary and restriction. therefore justified in order to obtain information on an inspection that has already been carried out and thus, indirectly, on the state of the goods The fact that various Community themselves. Under the contested Belgian directives harmonizing health inspections legislation, however, imported fish is within the Community stipulate that such subject to a double-check: a health documents must be produced is inspection in the Member State of immaterial: there is nothing in common, dispatch followed by a health control, as far as their restrictive effect on intra- which is compulsory and systematic in Community trade is concerned, between nature, on importation into Belgium. It is the requirement to produce a certificate doubtful whether a physical double- imposed unilaterally by a Member State check comes within the restrictions on and to the production of which it the free movement of goods authorized attaches whatever legal effects it under Article 36 of the Treaty. Ideally, a considers appropriate and the obligation presumption of conformity of the imposed by a directive on all the imported goods with the requirements of Member States. national health legislation should be

Control on the importation of fish into The inspection of fish caught in the sea Belgium also extends to the mode of take place as a general rule on landing in transport. The conditions laid down in fish-markets which normally possess this respect in Article 27 et seq. of the adequate facilities for inspection. It Royal Decree of 30 April 1976 do not seems legitimate to wonder whether the seem excessive in themselves or, Belgian rules should not also provide, in accordingly, unjustified within the connexion with the inspection of meaning of Article 36. However, there is imported fish, for recourse to inspection a considerable difference as regards the facilities in fish-markets, at any rate strictness of control between imported where importation takes place through fish and fish from fish-farms within the ports which possess such facilities. If it country or caught in the sea and landed: were possible to adopt such rules — control on importation possesses a which is a matter for the national court compulsory and systematic feature which to assess — the preliminary formalities is common to every mode of transport, at present required would become while control of internal transportation is superfluous and could no longer be left to the discretion of the competent justified under Article 36. inspector; control of the transportation of fish within a country is left to the discretion of the authorities, whereas the transportation of imports is systemati- cally controlled at the frontier and sub- The questions relating to the interpretation sequently the form of transportation of Article 9 et seq. and Article 95 of the used is subjected to a check which is left EEC Treaty to the inspector's discretion. Such an accumulation of controls, or at any rate of potential controls, may appear to be unnecessary and therefore unjustified for the attainment of the objective of the (a) The levies collected for health protection of health and life of humans. inspections on the importation of goods Once again, it is for the national court to are regarded by the Court, in well- established case-law, as charges having rule on this point, on the basis of the an effect equivalent to customs duties. facts of the case.

The questions referred to the Court should be answered in the following (b) The taxation referred to in Article manner: 95 is not based on the crossing of a frontier which is only the technical criterion, from a fiscal point of view, for the collection without discrimination of (a) The concept of "measures having charges on domestic and imported an effect equivalent to quantitative products. In order to come within the restrictions", within the meaning of scope of a general system of internal Article 30 of the Treaty, also covers taxation, a charge to which an imported compulsory and systematic health product is liable must be the same for a domestic product and for an identical control at intra-Community frontiers imported product, it must be imposed at on the importation of fish, as the same marketing stage and the described in the question. chargeable event giving rise to it must also be identical in the case of both products. In the light of these criteria, laid down by the case-law of the Court, (b) A double-check of the type described levies such as those at issue in the main in the question, based on the action can be classified only as charges requirement that imported fish must having an effect equivalent to customs be accompanied by a health certi- duties: no levy is collected on fish from ficate issued by the country of origin fish-farms situated on national territory, stating that it has undergone a health whereas the full levy of BFR 15 or BFR inspection and been declared fit for 30 per 100 kg is collected on imported human consumption on dispatch fish of the same variety; on importation, and, secondly, that it must undergo a a distinction is drawn between whole thorough and systematic examination unprocessed fish and processed fish of its hygienic standard, freshness

However, health control carried out at intra-Community frontiers on the importation of fish is compatible with Article 36 and may also include, Ill — Oral procedure in principle, a control of the mode of transport and packaging of the imported fish, provided that in practice and having regard to the N V United Foods and RVBA A. Van control applicable to the transpor- den Abeele, the plaintiffs in the main tation of fish within the country, it action, represented by Bernard Van de does not exceed the limits laid down Walle de Ghelcke, assisted by Maurice in Article 36. Van den Abeele, an expert; the Government of the Kingdom of Belgium, represented by Jacques Putzeys, Advo- cate of the Brussels Bar; the Government The additional formalities referred to of the French Republic, represented by in the question, such as prior notification of importation with an Alexandre Carnelutti, Secretary at the indication of the day, time and place Ministry of Foreign Affairs; and the of importation are allowed under Commission, represented by Robert Article 36 only in so far as they are Caspar Fischer, presented oral argument necessary, having regard also to the and answered questions put by the Court inspection facilities available for at the sitting on 27 January 1981. carrying out health inspection on importation where it is justified as regards it nature and its rules, or are intended to facilitate importation and The Government of the Kingdom of health inspection on importation. Belgium maintained that the system of laws and regulations governing the marketing of fish in the Kingdom of Belgium is based exclusively on a purpose which is in the public interest, namely the protection of public health. (c) Inspection levies collected on the In order to attain this objective, it has basis of national legislation adopted proved necessary to set up a compulsory unilaterally by a Member State in system of health inspections applicable to order to meet the cost of health all traders operating on national territory inspections carried out at intra- and carried out prior to the marketing of Community frontiers on the impor- the fish involving the issue of a tation of fish must be regarded as document drawn up by inspectors charges having an effect equivalent designated by the King and attesting that to customs duties prohibited under the inspected fish is fit for human the EEC Treaty. Inspection levies of consumption.

(a) Systematic and compulsory health inspections carried out at the frontier on the importation of fish do not Both the Court, in its case-law, and the constitute a measure having an effect Commission accept that compulsory equivalent to a quantitative restric- health control prior to the release' of fish tion within the meaning of Article 30 for consumption may, in principle, be of the Treaty, provided that an regarded as compatible with the equivalent health control also exists Community's legal system. for fish caught in the sea on landing and for fish from fish farms in Belgium.

With regard to the detailed rules governing such control, it should be stated that they are identical in every (b) In any event, a double-check does respect, irrespective of the origin of the not exceed what is permitted under fish: in all cases, a control of the Article 36 of the Treaty.

JUDGMENT OF 7. 4. 1981 — CASE 132/80

(c) Inspection levies imposed in an as measures having an effect identical manner on domestic fish as equivalent to customs duties. well as on landed fish and imported The Advocate General delivered his fish at the same processing and opinion at the sitting on 25 February marketing stages cannot be regarded 1981.

Decision

1 By judgment of 5 March 1980, received at the Court on 2 June 1980, the Rechtbank van Eerste Aanleg, Bruges, referred to the Court, pursuant to Article 177 of the EEC Treaty, four questions concerning the interpretation of Articles 9, 12, 13, 30, 36 and 95 of the EEC Treaty in order to enable it to assess the compatibility with Community law of Belgian legislation on health inspections on the importation of fish.

6 In the national court the plaintiffs in the main action challenged the compatibility of these provisions with the rules of the EEC Treaty on two grounds.

7 First, in their opinion, this control constitutes a measure having an effect equivalent to quantitative restrictions on imports, prohibited under Article 30 of the Treaty, and as such it cannot provide a basis for the charging of inspection levies. The health control provided for under the Belgian legislation at issue is inefficient, involves expense and causes delay and cannot, as such, be justified under Article 36 of the Treaty.

8 Secondly, with regard to the inspection levy, the plaintiffs consider that, in accordance with a series of cases decided by the Court beginning with the judgment of 14 December 1972 (Case 29/72 Marimex [1972] ECR 1309), health dues, where charged, must be regarded as a charge having an effect equivalent to a customs duty, prohibited under Articles 9, 12 and 13 of the Treaty. Even if the inspection levy ought to be regarded as internal taxation within the meaning of Article 95 of the Treaty, its imposition would still be contrary to the rule against discrimination contained in that article.

JUDGMENT OF MR CAPOTORTI— CASE 132/80

9 In order to decide these issues, the Rechtbank van Eerste Aanleg has requested the Court of Justice for a ruling on four questions whose wording is as follows:

1. Must Articles 30 et seq of the EEC Treaty be interpreted as meaning that public health inspection, carried out at the frontier when fish is imported, and being compulsory and systematic in nature, must be regarded as a measure having an effect equivalent to quantitative restrictions if:

3. Are the inspection levies which are imposed on importers in order to cover the costs of the inspection described in the first question to be regarded as charges having an effect equivalent to customs duties within the meaning of Article 9 et seq. of the EEC Treaty or as internal taxation within the meaning of Article 95 of the EEC Treaty, if:

— The inspection of fish-farms is not subject to any levy at all in the Member State concerned;

UNITED FOODS AND VAN DEN ABEELE v BELGIUM

— The inspection of fish caught in the sea takes place, after it has been landed, in fish-markets and concerns the hygienic standard, freshness and the purity of the fish whilst the health inspection on importation takes place at customs offices and concerns the health certificate, the means by which the fish has been transported, the state of preservation as well as conformity with the requirements of the regulations of the importing Member State on inspection and the importation of fish;

— The inspection levies must be paid on importation at the time when the imports cross the frontier;

— Inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?

12 According to the Danish Government, there is no doubt that in principle the Member States may lay down and apply rules relating to health controls on fish. It is for the national authorities to set up a cohesive and reliable system of control capable of functioning in practice without.; occasioning unreasonable administrative costs and to exercise for this purpose an ap- propriate discretion, on condition that they comply with the duty not to draw a distinction between the treatment accorded to their own production and to imported goods. Without challenging the principle on which the Belgian control system is based, the Danish Government draws attention to certain detailed rules forming part of this system whose effect, in its view, is to hinder intra-Community trade. Thus the requirement that 24 hours' notice must be given prior to any importation and the determination by the administrative authorities of the time of importation are capable of creating an impediment to the transfer of highly perishable goods which must be sold as quickly as possible. With regard to frozen fish, the Danish Government takes the view that the duplication of the control, carried out at the time of importation and, subsequently, on the importer's premises, may constitute an unnecessary hindrance to the importer.

1 3 As far as the inspection levy is concerned, the Danish Government considers that it is immaterial in this case whether the Belgian charge is considered in the light of Article 9 or of Article 95 of the Treaty. Regardless of its classi- fication, the system under which this levy is imposed involves discrimination inasmuch as domestic products and imported products are not treated in accordance with the same criteria. The Danish Government lays particular emphasis on the difference in the charge according to whether or not the imported fish is processed, whereas landed fish always bears the lowest charge, irrespective of its state of preparation. The Danish Government points out that no levy or charge is imposed for general or systematic health controls carried out in Denmark.

16 In the oral procedure, the Belgian Government defended the compatibility of the contested control system with the Treaty. It recalls that under Article 36 of the Treaty, the provisions of Articles 30 to 34 inclusive do not preclude prohibition of imports justified on grounds of the protection of health of humans. The principle of health inspection prior to the release of fish for consumption cannot therefore be regarded as incompatible with the legal system of the Community. This control is carried out on the basis of the Law of 15 April 1965 and the Royal Decree of 30 April 1976 without dis- criminating in any way between imported fish, landed fish or fish from fish- farms. With regard to the objection raised by the plaintiffs in the main action

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to the existence of a double-check in the country of dispatch and in the country of destination, the Belgian Government agrees that the second control is essential in order to take account of the conditions of transpor- tation of perishable goods over long distances.

19 In its first two questions relating to the interpretation of Articles 30 and 36 of the Treaty, the national court asks in substance whether health inspection of imported fish is compatible, in principle, with the provisions of Community law and, if it is, whether the detailed rules governing control referred to in the first question are justified in relation to the requirements of Article 36.

UNITED FOODS AND VAN DEN ABEELE v BELGIUM

20 Under Article 30, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States "without prejudice to the following provisions". This reservation in Article 30 concerns in particular Article 36 according to which the provisions of Articles 30 to 34 inclusive do not preclude prohibitions or restrictions on imports which are justified, inter alia, on grounds "of the protection of health and life of humans". The second sentence of this article adds, however, that these prohibitions or restrictions "shall not constitute a means of arbitrary dis- crimination or a disguised restriction on trade between Member States".

21 The Court has had occasion to emphasize, in a consistent line of decisions on this matter, that Article 30 has as its objective to remove, as between Member States, all barriers to the free movement of goods and, in particular, those which are specifically aimed at imported products or which apply to imported products and to domestic products under different conditions so as to render the marketing of imported products more difficult or expensive (judgments of 8 July 1975 in Case 4/75 REWE [1975] ECR 843; 20 May 1976 in Case 104/75 de Peijper[1976] ECR 613; 15 December 1976 in Case 35/76 Simmenthal [1976] ECR 1871; 12 July 1979 in Case 153/78 Commission v Federal Republic of Germany [1979] ECR 2555; 8 November 1979 in Case 251/78 Denkavit [1979] ECR 3369).

26 It is not disputed that the measures at issue before the national court are in the nature of health controls and therefore in principle come within the exception provided for in Article 36. This, however, leaves open the question whether the various detailed rules referred to by the national court may constitute a disguised restriction on trade between Member States so as to deprive such control of its justification within the meaning of Article 36.

27 This may indeed be the effect, either singly or in combination, of some of the detailed rules referred to in the first question. The various elements mentioned by the national court call for the following observations.

28 T h e requirement that notice must be given in writing setting forth all the details prescribed u n d e r t h e legislation at issue at least 24 hours before importation appears t o be incompatible with the speed of transactions and of transportation in this field, given the perishable nature of t h e g o o d s in question. If, with regard t o the determination by the customs authority of the premises w h e r e control is t o be carried o u t as well as of days a n d times of their opening, it appears that the effect of these measures is t o hinder imports

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they would be justified only on condition that they could be shown to satisfy objective requirements appertaining to the organization of the public health service. The same observation applies to the detailed technical rules mentioned by the national court if there proves to be no reasonable connexion between the requirements laid down by the authorities and the exercise of control.

JUDGMENT OF MR CAPOTORTI — CASE 132/80

The compatibility with Community law of the inspection levy (third and fourth questions)

32 In its third question, the national court, drawing attention to certain differences which exist under the control system at issue, requests the Court of Justice to specify the criteria according to which a levy such as an "inspection levy" may be classified either as a charge having an effect equivalent to a customs duty within the meaning of Articles 9, 12 and 13 of the Treaty or as internal taxation within the meaning of Article 95. These differences concern, first, fish from fish-farms, according to whether it has been imported or comes from fish-farms situated on national territory, and, secondly, fish caught in the sea, according to whether it has been "landed" or imported.

33 According to a consistent line of decisions of the Court, beginning with its judgment of 14 December 1972 (Case 29/72 Marimex [1972] 1309), the classification under the Treaty of dues levied on the occasion of health inspections on importation depends on whether the dues in question are calculated in accordance with special criteria which are not comparable with the criteria employed in fixing any pecuniary charges imposed upon similar domestic products or whether they are pecuniary charges related to a general system of internal dues applied systematically, for the purposes of the control in question, to domestic products and imported products alike in accordance with the same criteria.

34 In the case cited above as in several subsequent cases (judgments of 11 October 1973 in Case 39/73 REWE [1973] ECR 1039; 9 July 1975 in Case 21/75 Schroeder [1975] ECR 905; 5 February 1976 in Case 87/75 Bresciani [1975] ECR 129; 15 December 1976 in Case 35/76 Simmentbal [1976] ECR 1871; 31 May 1979 in Case 132/78 Denkavit Loire [1979] ECR 1923), the Court was led to classify various types of health dues as charges having an effect equivalent to customs duties in the absence of a sufficiently close connexion between the dues levied on the importation of products subject to health inspections and those levied on the occasion of controls on domestic products.

39 A study of the situation shows that the difference in the detailed administrative rules for charging the levy may be ascribed to the fact that the customs authorities are not responsible for "landed" fish which is regarded as a domestic product from the moment it is caught, whereas controls on imported fish may be carried out, whether at the maritime frontier, the land frontier or at the ultimate destination within the country only through the agency of the customs authority and that therefore there is an objective ground underlying the difference between the systems. In any event, it has

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not been demonstrated that the division of administrative powers between the local authorities and the customs authority for the charging and allocation of the inspection levy influences the basis of assessment and the amount of the charge. These circumstances may therefore be disregarded for the purposes of examining the compatibility of the contested system with Community law since such compatibility must be assessed by reference to the impact of the contested levy on intra-Community trade.

40 Other characteristics of the contested system, however, lead to the conclusion that the inspection levy in question constitutes in reality a charge having an effect equivalent to a customs duty.

41 In this connexion, it is necessary to observe, first of all, that the scope and the rate of the inspection levy have been determined on the basis of different criteria, making any comparison between the two systems awkward. This difficulty is all the more appreciable in that the criteria on which the rules in question are based are not in keeping with the classification adopted by the Community in Regulation No 100/76 on the common organization of the market in fishery products (Official Journal, L 20, p. 1), the Common Customs Tariff and trade statistics.

45 The costs incurred by the Government of the French Republic, the Government of the Kingdom of Denmark, the Government of the Kingdom of Belgium and the Commission of the European Communities which have 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 pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the questions submitted to it by the Rechtbank van Eerste Aanleg, Bruges, by judgment of 5 March 1980 hereby rules:

1. In the absence of common or harmonized rules on health inspections of fish, the measures of control applied by the Member States may not be considered, in principle, as a restriction prohibited under the EEC Treaty. Nevertheless all detailed implementing rules which exceed the requirements of the controls and are capable as such of hindering or restricting intra-Community trade must, by virtue of Articles 30 and 36 of the Treaty, be considered as measures having an effect equivalent to quantitative restrictions.

OPINION OF MR CAPOTORTI — CASE 132/80

Mr President, Foods and Van den Abeele, imported Members of the Court, into Belgium quantities of fish from other Member States and paid the levies, which they regard as contrary to the 1. The actual circumstances which have EEC Treaty, subject to reservations. given rise to this reference for a pre- They subsequently instituted proceedings liminary ruling may be summarized as against the Belgian State in the follows: the Belgian State subjects Rechtbank van Eerste Aanleg, Bruges, imports of fish to a complex system of for the recovery of the sums paid. The public health controls and requires questions formulated under Article 177 importers to pay certain sums by way of of the EEC Treaty by the Court trying inspection levies. Both companies, United the main action deal in substance with

1 — Translated from the Italian.