C-39/82

T H E NETHERLANDS STATE (State Administration for Postal, T e l e g r a p h i c and T e l e p h o n e Services), T h e H a g u e ,

o n the interpretation of Article 13 of the T r e a t y ,

T H E C O U R T (Third C h a m b e r )

composed of: U . Everling, President of C h a m b e r , Lord M a c k e n z i e Stuart and Y. Galmot, J u d g e s ,

Advocate G e n e r a l : S. R o z è s Registrar: J. A. P o m p e , D e p u t y Registrar

gives the following

The plaintiff in the main proceedings, Mr By decision of 8 January 1982, which Donner, ordered numerous books from a was received at the Court on 1 February number of publishers in the Federal 1982, the Kantongerecht stayed the Republic of Germany and elsewhere in proceedings in order to submit the the Common Market. The books were following question to the Court for a sent to him by post, in 16 batches, preliminary ruling in accordance with approximately between 16 July 1979 and Article 177 of the EEC Treaty: 13 January 1981. Since the value of each consignment exceeded a specified "Does the prohibition of charges having amount, value-added tax was payable an effect equivalent to customs duties upon importation. The customs within the meaning of Article 13 of declarations were not made by Mr the Treaty establishing the European Donner himself but by the State Economic Community extend to sums Administration for Postal, Telegraphic charged by the Netherlands State and Telephone Services [hereinafter Administration for Postal, Telegraphic referred to as "the Postal and Telephone Services: Administration"], either on its own initiative or upon return by Mr Donner (a) In respect of customs clearance of the form provided for that purpose charges required of the addressee of attached to the notice of arrival of the a consignment of goods (books) postal packet in question, instructing the which are sent from another Member Postal Administration to make the State by post to the addressee, a declaration. resident of the Netherlands, in return for presenting the goods for customs Subsequently, Mr Donner was asked to clearance, a procedure which is pay not only the sums paid to the necessary for the charging of revenue authorities by the Postal turnover tax; Administration in respect of value-added tax but also the sums charged by the (b) In respect of commission which is Postal Administration for its own charged to the addressee for account in respect of "inklaringsrecht" supplying the fiscal authorities with [customs clearance charge] and an import declaration in respect of "commissieloon" [commission]. Those the goods at his request or at least sums total HFL 85.30. on his behalf?

In this connection the following points Pursuant to Article 20 of the Protocol on are to be noted: the Statute of the Court of Justice of the EEC, written observations were 1. On the importation into the submitted by Mr Donner, the plaintiff Netherlands of books above a certain in the main proceedings, by the value Netherlands turnover tax Netherlands State, the defendant in the becomes payable and is charged when main proceedings, represented by E. the import declaration is made. Droogleever Fortuijn, of the Bar of The Hague, by the Government of the 2. The State Administration for Postal, United Kingdom, represented by J. D. Telegraphic and Telephone Services Howes, Treasury Solicitor's Department, acts in this regard as a carrier and by the Commission of the European pursuant to one or more agreements Communities, represented by Thomas governed by private law. van Rijn, a member of its Legal Department. 3. The State Administration for Postal, Telegraphic and Telephone Services Upon hearing the report of the Judge has no monopoly for the carriage of Rapporteur and the views of the this class of goods; the sender of Advocate General, the Court decided, by goods from outside the Netherlands order of 29 June 1982, to assign the case may therefore choose another means to the Third Chamber pursuant to of transport to the Netherlands, in Article 95 of the Rules of Procedure and which case the State Administration to open the oral procedure without any (naturally) makes no charge. preparatory inquiry. 4. The addressee may, if he prefers, .The Court nevertheless put certain himself attend to the import questions to the Netherlands Govern- declaration in respect of goods ment. consigned to him and carried by the State Administration for Postal, Telegraphic and Telephone Services, in which case the Administration II •— O b s e r v a t i o n s of t h e p a r t i e s requires neither customs clearance charges nor commission. Mr Donner observes that the Postal Administration which is vested by law 5. Where no turnover tax is payable the with a State monopoly for the carriage State Administration requires neither of letters for payment and has authority customs clearance charges nor to transport parcels does not constitute a commission. separate legal person. The conditions governing the services which it provides 6. In no case may the State are laid down by law and by general Administration compel the addressee administrative decisions. to pay customs clearance charges or commission against his will. The customs clearance charge in question is fixed by the Director General Except in the case described in of the Postal Administration pursuant to paragraph 4 the goods are not handed a royal decree of 6 August 1959 issued over in the event of refusal to pay". pursuant to the laws governing postal services and to the relevant international The judgment making the reference conventions. Those conventions em- was received at the Court Registry on power, but do not oblige, the States 1 February 1982. which are signatories thereto to make a

charge for customs clearance or collect a system but the maintenance of such commission. obstacles is strictly limited and the levying of charges in respect of the related administrative costs is prohibited. The fact noted by the court making the reference that, under Netherlands law, the Postal Administration acts pursuant In this case, the disputed charges are to contracts governed by private law is levied in connection with value added not relevant to the question whether the tax and are collected by the State. The charges at issue fall within the scope of postal authorities act as assistants to the Article 13 of the EEC Treaty, since those customs authorities rather than on behalf charges remain the same regardless of of the addressee and the disputed how they are classified by the law of the charges represent payment for the various Member States. What does administrative action taken by the State appear to be important, on the other in order to collect the turnover tax hand, is the fact that those contracts payable. were governed by a general administrative decision. The Postal Administration does not behave like a Mr Donner suggests that the view that private transport undertaking which, the Postal Administration should be because the task to be accomplished assimilated to a private carrier should be takes practically the same time, collects regarded with due scepticism. The duty its commission even if no tax is payable. of the Postal Administration to carry The fact that the Postal Administration parcels and the tariffs and maximum fees does not levy a charge in those circum- derive from international conventions stances emphasizes the fact that the and from national legislation and the collection of the charges in question is receipts form part of the State revenue. merely a consequence of the obligation to pay value-added tax. The possibility of the addressee's having the books sent by other means and of his making the declaration himself are Even though the monopoly for handling not real alternatives. The Postal letters does not extend to parcels, the Administration has a de facto monopoly addressee is unable to influence the for parcels because of its communication method of dispatch. In international network and its tariffs. trade the sender always has packages of books delivered by post. For customs operations, the Postal Administration has established a fixed The possibility of the addressee's making procedure by agreement and in colla- the declaration himself does exist but in boration with the customs authorities. practice parcels are delivered to the Anyone wishing to depart from that addressee together with a note of the procedure would arouse great surprise. kind produced by Mr Donner (notice By seeking to go his own way, any such concerning tax and other charges, of 8 person would find the alternative very March 1982 — value-added tax HFL 4 burdensome. — customs clearance charge and commission HFL 8.10). The view of the Postal Administration is that it provides a service which deserves Member States are still in a position to to be paid for but in the opinion of the maintain certain obstacles to trade within plaintiff in the main proceedings the the framework of a national taxation dispute should be looked at from another

Mr Donner concludes by asserting that compulsory payments such as the The conditions on which the Postal amounts levied by the Postal Administration concludes a contract are Administration and referred to as laid down in the Ottawa Universal Postal "customs clearance charges" and Convention, as amended by the "commission" constitute, in so far as Lausanne Universal Postal Convention, they relate to transport between Member in the Aanwijzingswet PTT 1954 [Law States, charges contrary to the defining the duties of the postal prohibitions contained in Community administration], the Postwet 1954 [Law law. governing the postal service], the Inter- nationaal Postbesluit 1959 [Order on the international postal service] and the The Netherlands Government states in Internationaal Postbeschikking [Decision the first place that the Postal on the international postal service]. The Administration acts as a transport under- provisions which are important to this taking and that this case is not case are Articles 5 and 7 of the Inter- concerned with the monopoly on the nationaal Postbesluit and Articles 13 and carriage of letters. This case is concerned 25 of the Internationaal Postbeschikking. with the transport of parcels, which is Those provisions lay down standard not the subject of a monopoly and is also conditions which determine the content carried on by various types of transport of the contract of carriage, which does undertakings. When a parcel is sent from not prevent the carriage from being the Federal Republic of Germany to the carried out pursuant to an agreement Netherlands, it is transported at the freely entered into with the sender. request of the sender, who concludes a contract of carriage with the German postal administration. The German postal administration undertakes to have The import of goods into the the parcel delivered to the addressee. Netherlands from a Member State of the The Netherlands Postal Administration European Community does not give rise discharges some of the obligations of the to import duty but to turnover tax, German postal administration pursuant payable at the same rate as for purchases to agreements entered into between the contracted on national territory, a postal administrations. The transport situation which conforms with operation does not involve contractual Community law. Turnover tax is levied relations with the addressee. The on the imported goods according to the contract of carriage is a contract procedure for the collection of import governed by private law. duties. The goods must be declared. The

declaration must be checked. The ministration keeps the goods there until revenue authority determines the amount the customs authorities authorize their of the turnover tax and collects that tax importation. The Postal Administration at the time of importation. That task is informs the addressee that a parcel has the responsibility of the customs and arrived for him and that he must make excise administration. an import declaration in respect of it. The notice specifies that the declaration The law provides that import duty is may be made in two ways : payable by the person who makes the declaration, who may be the importer or (a) by the addressee himself; the addressee or the transport under- taking. (b) by the addressee's asking the Postal Administration to make the Depending on what method of transport declaration on his behalf. is chosen, the taxation authority allows the persons concerned various possi- If the addressee chooses to make the bilities for the making of the declaration declaration himself he must go to the and verification thereof; this may be import duty collection office and declare done at an office of the tax the goods there and pay the tax due. administration, (principally in the case of Armed with the forms obtained from the road transport), at a customs clearance collector, the addressee must go to post of a private undertaking, designated the Postal Administration's customs and recognized by the revenue clearance office where the customs auth- administration, at a customs clearance orities examine the consignment.

The Postal Administration After describing the procedures applied then makes the import declaration by to the import of goods transported by filling in the required form and forwarding agents (international car- presenting it to the customs officer at the riers), by the Netherlands railways and customs clearance office. The Postal by private individuals travelling by train, Administration pays the turnover tax the Netherlands Government explains due. The customs authority checks that the customs clearance procedure for the declaration conforms with the goods, goods carried by the Postal for which purpose the Postal Administration. The Postal Adminis- Administration may, if necessary, have to tration takes the goods to its warehouse, open the package and seal it again after which is a customs clearance post checking, after which the parcel may, if managed by it. The Postal Ad- approved, be imported.

JUDGMENT OF 12. 1. 1983 — CASE 39/82

for the declaration (at present HFL 4 per declaration himself and pay the turnover parcel). No charge is made for the tax. services of the collector or of the customs authorities. The turnover tax collected by the Postal Administration is In many cases, the Postal Administration paid to the revenue administration on the does not send a notice of arrival to the basis of a monthly statement. addressee but makes the import declaration on its own initiative. By The customs authorities obtain no profit paying the customs clearance charge and from the action taken by the Postal the commission when the parcel is Administration and the customs presented, the addressee ratifies the clearance charges and commission are declaration made by the Postal not the subject of any set-off between Administration and by so doing confirms the Postal Administration and the the instructions presumed by the-Postal . customs authorities. The latter never Administration. The addressee is not make the import declaration themselves; however obliged to agree to that they receive the declaration and check it. procedure; he may refuse the parcel The customs authorities facilitate the when it is delivered and in such circum- making of the declaration by setting up stances no amount will be payable by customs offices in the immediate vicinity him. of the offices of the Postal Ad- ministration and of the railways.

Thus, but that the customs clearance charge is the action taken by the Postal invoiced by the Postal Administration to Administration obviates the addressee's the addressee when the parcel is having to make the import declaration presented. The addressee is not a party and complete the administrative to the contract of carriage. He is not formalities and for those services it therefore obliged to pay anything. makes a minimal charge which does not

cover the real costs. The addressee need for very specific services which had been do nothing more than pay to the rendered to him: the keeping of the postman on his round, when taking books addressed to Mr Donner with a delivery of the parcel, the turnover tax view to customs inspection and the and the minimal payment mentioned import declaration made by the Postal above. Undertakings often make the Administration at Mr Donner's request. declaration themselves. Mr Donner was under no obligation to pay a customs clearance charge and commission to the Postal Administration; Considering the question submitted to he could have agreed with the the Court, the Netherlands Government booksellers that a different method of observes in the first place that the transport was to be used. He could have provision of the service rendered by the gone personally to fetch the books or Postal Administration is closely linked have them delivered by a friend. He with the collection of the turnover tax could have made the import declaration upon importation. The provision of that himself. service conforms with the policy of the European Commission. This case is comparable with the judgment of the Court of 25 October The Netherlands Government cites the 1979 concerning customs agents, in decision of the representatives of the which the Court held that the Italian governments of the Member States of 18 legal requirements relating to the services December 1978 (Official Journal L 6, 10. provided by approved customs agents 1. 1979, p. 26) to abolish charges for were not quantitative restrictions on customs presentation on goods exempt imports because it was open to the from turnover tax and excise duties owners to have the declaration made by on importation, the Commission's various persons other than customs programme for the simplification of agents, and the owners could even have procedures (Official Journal C 244, made them themselves. 24. 9. 1981, p. 4) and Council Directive 74/651 on tax reliefs (Official Journal L 354, 30. 12. 1974, p. 57). In view of those provisions, it may be concluded The Commission is also of the opinion that the obstacles arising from the that it is not contrary to Community law collection of value-added tax at the for the Postal Administration to make a frontier can only be eliminated by the charge for the accomplishment of import harmonization or laws. formalities, as appears from answers which it gave to written questions submitted by Members of the European As regards the judgments referred to by Parliament. Mr Donner, the cases to which those judgments relate display the common feature that the importer was unable to The Netherlands Government considers avoid the charges in any way and that that the question submitted by the Kan- they were not payments (remuneration) tongerecht, The Hague, should be for a service specifically rendered to the answered in the negative. importer or to the exporter.

clearance since such presentation is the making of a special charge where the necessary for Community purposes in postal administration of a State which is order to implement the decision of 21 a party to the Convention submits an April 1970 on the replacement of item to customs control in the country of financial contributions from Member destination. States by the Communities' own resources (Official Journal, English Special Edition, 1970 (I), p. 224). The addressee of a parcel, may, if he so According to the case-law of the Court, wishes, clear it through customs himself charges may also be made by a Member and make thè fiscal declaration or he State for services rendered to an may determine by contract that the importer in an amount proportional to carrier is to do so, in which case the the value of those services. There can be carrier will wish to be paid for his little doubt as to the proportionality of efforts. Article 13 of the EEC Treaty, charges which have been internationally which does not produce effects between agreed. subject and subject, is no obstacle to the conclusion of such a contract. The United Kingdom concludes that the Case 84/71 Marimex [1972] ECR 89 and question submitted should be answered Case 8/70 Italy [1970] ECR 961 must be in the negative. distinguished from this case where the services are performed by the carrier and not by an administrative agency of the The Commission examines in the first Member State, exclusively on behalf of place the international provisions and the the addressee. manner in which they are given effect within the Netherlands legal system. The Court has recognized that charges may be permissible to cover the costs of inspections expressly prescribed by When the disputed charges were Community legislation (Case 46/76 collected the law in force was the Bauhuis v Netherlands [1977] ECR 5) or Lausanne Universal Postal Convention of within the framework of an international 5 July 1974 and the arrangement convention intended to encourage free regarding postal packets concluded at import into the countries of destination, the same time. Those instruments provided that such charges do not provide for the levying of a charge for exceed the cost of the inspections (Case the presentation of goods for customs 89/76 Commission v Netherlands [1977] clearance and fix the maximum amounts ECR 1355). for packages subject to customs control in the country of destination.

adopted by the Director General of the effect, it is sufficient to determine Postal Administration. whether the ultimate authority to invoice a specified amount in a given situation derives from a measure of public law. The Commission then analyses the Were it otherwise, a State might impose situation in the other Member States. charges on international trade by means The majority of the Member States have of a contract governed by private law. In introduced a charge for the presentation this case, it is certain that the legal basis of goods for customs clearance but draw is a matter of public law. The authority a distinction between letters and postal of the Postal Administration to invoice packets. In all those countries there is a the customs clearance charge and the sole charge; no distinction is made commission derives from a royal decree, like that in the Netherlands between based on statutory provisions. The the customs clearance charge and charge for the presentation of goods for commission. In all Member States the customs clearance is the subject of inter- charge is collected only if the national agreements whereby the States consignment or postal packet is subject parties thereto have given a commitment to value-added tax. not to exceed certain maximum charges.

The first condition to be satisfied for the classification of a charge as a charge The Commission does not support the having an effect equivalent to a customs argument of the Postal Administration to duty is that it must be unilaterally the effect that the applicant in the main imposed by the State or by an agency of proceedings could have avoided paying the State. According to the Commission the customs clearance charge and the it is of little importance whether the commission by choosing another means invoicing of the customs clearance of transport. In its opinion, a charge may charge and the commission are regarded be regarded as a charge having an as resulting from a contract governed by equivalent effect if it applies only to a private law or from a measure imports made by means of a particular producing effects governed by public type of transport, as for example law. In order to determine whether a transport by post, without affecting other charge is a charge having an equivalent imports.

JUDGMENT OF 12. 1. 1983 — CASE 39/82

DONNER v NETHERLANDS STATE

Netherlands, the question may be asked In most cases the Postal Administration whether the customs clearance charge has sufficient information to make a and the commission do not in fact customs declaration in respect of a constitute a single charge. In all the package of books without having to other Member States, there is only one involve the addressee, because every charge which, by reference to inter- consignment of books which crosses a national rules, covers all the activities frontier is accompanied by a form and a connected with the import declaration in customs declaration on which the sender respect of the goods. indicates the content and the value of the

Finance. The Commission draws attention to the fact that, in its opinion, the commission If the Postal Administration docs not (or the customs clearance charge and the have the necessary information, the commission taken together) may be notice of arrival is sent to the addressee regarded as constituting remuneration who provides that information. for a service rendered only if fiscal formalities must actually be completed, If the addressee makes the customs that is to say if the product in question is declaration himself he must go not exempt from value-added tax. personally to the customs clearance office so that a customs officer may The Commission proposes that the Court carry out the inspection.

JUDGMENT OF 12. 1. 1983 — CASE 39/82

not been correctly made the Postal In addition it might be asked whether it Administration is deemed not to have is really necessary for a private individual committed any offence and the only who wishes to make the declaration consequence is a fresh calculation of the himself to fill in such complicated forms, value-added tax. when all the details required are already included in customs document C 2 / C P 3, There are no circumstances in which the entitled "Customs Declaration". More- Postal Administration demands payment over the declaration made by the postal of a customs clearance charge without authorities is much less complicated and demanding payment of the Commission amounts to only one line. Such or vice versa. considerations make it impossible to suggest that a service has been rendered. It is necessary for someone to be present Ill — Oral procedure when a parcel is opened and re-sealed only in the very small number of cases where parcels are actually checked, At the sitting on 7 October 1982 the whilst the storage of parcels awaiting the Commission, represented by Thomas van completion of formalities is merely a Rijn, acting as Agent, presented oral normal step in international transport argument. and does not amount to a service rendered. The Commission expressed its doubts as to whether in practice a private The Commission asked the Court to individual has any choice, in view of the distinguish in its decision between the fact that the Postal Administration situation in the Netherlands and that in delivers parcels directly to the addressee, the other Member States. without first sending a notice of arrival. The Advocate General delivered her In practice, the charge may be said to be opinion at the sitting on 11 November compulsory. 1982.

3 The plaintiff in the main proceedings, who contests the legality of the collection by the Postal Administration of such sums, which he considers to be a charge having an effect equivalent to a customs duty prohibited by Article 13 of the EEC Treaty, brought an action before the Kantongerecht, The Hague, for the recovery of sums which were paid when not due. In his opinion, although Member States are still in a position to maintain certain obstacles to trade within the framework of a national taxation system the maintenance of such obstacles is strictly limited and the levying of charges in respect of the related administrative costs is prohibited. In this case, the disputed taxes are in fact collected by the State in connection with value- added tax. The Postal Administration, which is merely an extension of the State with no separate legal personality and whose relations with the public are subject to legal and other provisions, acts as an assistant to the customs authority rather than on behalf of the addressee and the disputed charges represent payment for the administrative action taken by the State in order to collect the value-added tax payable.

4 According to the Postal Administration, the customs clearance charge and the commission are not charges having an effect equivalent to customs duties. The Administration does not have a monopoly on the transport of parcels and the sender and the addressee of the goods may agree on another means of transport. Even if the parcel were sent by post the addressee might complete the formalities himself and, in that case, no charge would be payable to the Postal Administration.

7 As the Court has acknowledged on several occasions, in particular in its judgments of 25 January 1977 in Case 46/76 Bauhuis [1977] ECR 5 and of 28 June 1978 in Case 70/77 Simmenthal [1978] ECR 1453, any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on 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 haying equivalent effect within the meaning of Article 12 and the succeeding articles of the Treaty, unless it relates to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic and imported products alike, in which case the charge falls within the field of application of Article 95 of the Treaty. Such a charge is not however a charge having equivalent effect if it is the consideration for a service actually rendered to the importer or the exporter and is of an amount commensurate with that service.

8 In this case, the collection of turnover tax does not constitute a charge having an effect equivalent to customs duties. As the Court held in its

DONNER v NETHERLANDS STATE

judgment of 5 May 1982 in Case 15/81 Schul[1982] ECR 1409, such a tax is part of the common system of value-added tax whereby a uniform taxation procedure has been established covering systematically and according to objective criteria both transactions carried out within the territory of the Member States and import transactions. That tax must therefore be regarded as an integral part of a general system of internal taxation for the purposes of Article 95 of the Treaty.

JUDGMF.NT OP 12. I. 1983 — CASK 39/82

i2 If the national court reaches the conclusion that the disputed charge constitutes a charge imposed unilaterally by the Postal Administration, it must further be established whether that charge may be considered to be payment for a service rendered to the addressee and whether it represents an amount commensurate with that service. In order to do so, it may take into account the difficulties which face a private individual who tries to complete the requisite formalities, the efforts made by the Postal Administration and the question whether or not the charge is the subject of an international agreement negotiated by national post administrations.

1 3 In reply to the question referred to the Court by the Kantongerecht it must therefore be stated that the prohibition laid down in Article 13 of the EEC Treaty is to be interpreted as extending to a postal charge for the pres- entation for customs clearance of a postal parcel sent from another Member State, which is invoiced to the addressee in connection with the completion of turnover tax formalities, if it constitutes a pecuniary charge which is imposed unilaterally and does not represent payment for a service actually rendered of an amount commensurate with that service.

Costs

H The costs incurred by the Commission of the European Communities and by the United Kingdom, 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, a step in the action pending before the national court, the decision as to costs is a matter for that court.

Everling M a c k e n z i e Stuart Galmot

Delivered in open court in L u x e m b o u r g on 12 J a n u a r y 1983.

P. H e i m U . Everling Re istrar g President of the Third Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS D E L I V E R E D O N 11 N O V E M B E R 1982 '

Mr President, tax (value-added tax), a specified sum in Members of the Court, respect of a "customs clearance charge" The Court has been asked by the Kan- and "commission". tongerecht [Cantonal Court]. The Mr Donner was of the opinion that the Hague, to give a preliminary ruling on charging of that sum was contrary to the interpretation of Article 13 of the Article 9 et seq. of the Treaty. Those Treaty. articles prohibit the collection of customs duties on imports and exports and all charges having an effect equivalent to I — The facts are as follows : customs duties in trade between Member States. He therefore appealed to the Mr Donner, who resides in the Raad van State, Afdeling Rechtspraak Netherlands, had a number of parcels of [State Council, Administrative Appeal books sent to him by post from various Section], against the implied refusal of Member States. Before he was able to the Postal Administration to amend its take delivery of them, he had to pay invoices. the State Administration for Postal, The Raad van State held on 25 Telegraphic and Telephone Services November 1980 that the action which [hereinafter referred to as "the Postal had been brought before it was Administration"], in addition to turnover inadmissible,

1 — Translated from the French.