C-132/82

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, O. Due, K. Bahlmann and Y. Galmot, Judges,

Advocate General : G. F. Mancini Registrar: P. Heim

gives the following

COMMISSION v BELGIUM

JUDGMENT

The facts of the case, the course of per 100 kg gross weight of goods the procedure and the conclusions, unloaded in the store, 3.50 francs per submissions and arguments of the parties package or per 100 kg gross weight of may be summarized as follows: goods unloaded outside the store (loading bay or yard) and 13 francs per 1 000 kg gross weight when, with the authorization of the customs authorities, I — F a c t s and p r o c e d u r e the goods are not unloaded, subject to a maximum of 130 francs per truck, lorry or trailer. Customs formalities for goods which originate in a Member State or which are The Commission took the view that such in free circulation and which are storage charges constituted charges imported into Belgium are completed having an effect equivalent to customs either at the frontier or within the duties. Therefore, by letter of 2 August country. 1978, it initiated against Belgium the procedure provided for in Article 169 In the first case, no financial charge is of the Treaty. In that letter, the payable; in the second, when the goods Commission stated that according to the are presented for customs clearance at established case-law of the Court, in the special store of a public warehouse, a particular the judgments of 1 July 1969, fee, which is fixed and levied by the (Case 24/68 Commission v Italian municipal authorities, is payable in Republic [1969] ECR 193, and Joined consideration of the use by the importers Cases 2 and 3/69, Sociaal Fonds voor de of the premises which are made available Diamantarbeiders [1969] ECR 211), the to them. disputed charges could not be regarded as the consideration for services, actually and individually rendered, from which Pursuant to Article 25 of the Law of 20 importers might be said to obtain a February 1978, on customs warehouses specific advantage. The Commission and temporary warehouses and tempor- requested the Belgian Government to ary storage (Moniteur Belge [Belgian provide it with its observations within a Official Gazette] of 22 March 1978), the period of two months. only part played by the State is to fix the maximum rate of storage charges and to lay down rules for the method of the By letter dated 22 September 1978, the collection thereof. Permanent Representation of Belgium stated that the fee in question represented a payment made to the The Royal Decree of 29 January 1979 municipal authorities in return for the on customs warehouses and temporary construction, the maintenance and the storage (Moniteur Belge of 7 March upkeep of special stores and the oppor- 1979) provides that storage charges may tunity to store goods under the sur- not exceed 5.50 francs per package or veillance of the security guards.

The Commission considered that the cases, the formalities are completed in letter of 22 September 1978 revealed that order to enable the products in question there was a misunderstanding and to be marketed. Such formalities must therefore it again contacted the not, under any circumstances, give rise competent Belgian authorities. Following to the payment of charges. that second approach, the Belgian Government explained its position in a supplementary reply to the Commission's The reasoned opinion, which was letter giving formal notice. communicated to the Belgian Govern- ment on 18 March 1981, requested the latter to comply with its recommen- In a letter of 21 November 1979, the dations within a period of two months. Permanent Representation claimed that the use of a special store of a public warehouse was not compulsory. An In reply to the reasoned opinion, the importer who does not have a fixed Permanent Representation of Belgium customs post installed within his own stated, in a letter dated 15 May 1981, undertaking may either contact one of that the Belgian Government maintained the authorized mobile centres, which the point of view expressed in its letter of inspect, on the importer's own premises, 21 November 1979. goods which have been conveyed directly,; from the frontier, or dispatch the goods to a private store where a customs On 23 April 1982,: the Commission service operates. The use of special stores brought this action which was registered therefore represents a genuine and at the Court on the same day. individual advantage for the importer, who either has insufficient facilities for customs purposes and for that reason Upon hearing the report of the Judge- cannot resort to the mobile centres or Rapporteur and the views of the who does not wish to make use of Advocate General, the Court, by letter of private stores against the payment of 26 January 1983, requested the Belgian charges fixed by the management of such Government and the Commission to stores. furnish written replies to the following questions before 1 March 1983: On 12 March 1981, the Commission issued the reasoned opinion provided for in the first paragraph of Article 169 of Question put to the Belgian Government: the Treaty. In that opinion, the Commission claimed that the storage charges were levied solely in respect of In what circumstances, in the light of the the fact of the arrival of the goods provisions of Articles 16 and 34 of the destined for the special store and not the Royal Decree of 29 January 1979, is an actual and voluntary use of the facilities importer exempted from paying storage by the importer for a period exceeding charges? the time strictly necessary for the completion of customs formalities. The levying of a charge at the time of Question put to the Commission: customs clearance within the country cannot be justified by the fact that it is possible to complete customs formalities What is the situation in that respect in at the frontier free of charge. In both the other Member States?

The replies of the Belgian Government in the strict sense, constitutes a charge and the Commission were lodged at the having equivalent effect within the Court Registry on 21 February and meaning of Articles 9, 12, 13 and 16 of I March 1983 respectively. the Treaty, even if it is not imposed for the benefit of the State." That position would be different only if the charge in question were the consideration for a II — C o n c l u s i o n s of t h e p a r t i e s service actually rendered to the importer representing an amount proportionate to The Commission claims that the Court the said service or if it related to a should: general system of internal dues applied systematically in accordance with the 1. Declare that, by levying storage same objective criteria to domestic charges on goods which originate in a products and imported or exported Member State or are in free circu- products alike (similarly, judgment of lation, and which are imported into 14 December 1962, Joined Cases 2 Belgium and presented for the and 3/62 Commission v Belgium and completion of customs formalities at a Luxembourg [1962] ECR 425; judgment special store, the Kingdom of Belgium of 8 November 1979, Case 251/78 has failed to fulfil its obligations Denkavit [1979] ECR 3369; judgment of under Articles 9 and 12 of the Treaty 28 January 1981, Case 23/80 Kortmcmn establishing the European Economic [1981] ECR 251; judgment of 3 Community; February 1981, Case 90/79 Commission w France [1981] ECR 283). 2. Order the Kingdom of Belgium to pay the costs. In the Commission's view, the storage charges levied by the Belgian authorities do not constitute either internal taxation The Kingdom of Belgium contends that or the consideration for a service the Court should: rendered. 1. Declare the Commission's application Within the terms of Article 30 of the unfounded; Royal Decree of 29 January 1979 on customs warehouses and temporary 2. Order the Commission to pay the storage, "storage charges are payable on costs. goods arriving at the store whether they are unloaded or not". According to the Commission, that provision clearly III — S u b m i s s i o n s and argu- establishes that it is not the actual use of the facilities of the store which serves to m e n t s of the p a r t i e s justify the payment of the fee, but the sole fact of crossing the frontier or, more According to the Commission, it may be precisely, the fact of presenting imported seen from the established case-law of the goods for the completion of customs Court, in particular the judgment of formalities at the special store. 25 January 1977 (Case 46/76 Bau/mis [1977] ECR 5) that: "Any pecuniary The Commission considers that, even if, charge, however small and whatever its as the Belgian Government maintains, designation and mode of application, the use of the special store is optional, which is imposed unilaterally on goods that fact does not authorize the Belgian by reason of the fact that they cross a State to levy storage charges. The frontier and which is not a customs duty Commission notes that, according to the

above-mentioned case-law, the fact that The Belgian Government states that the the disputed charges are levied by the fees charged for use of the special store municipal authorities is irrelevant to their cannot be regarded as charges having an classification in respect of the provisions effect equivalent to customs duties of the Treaty. inasmuch as, in the first place, they are not imposed by reason of the fact that the goods have crossed the frontier and, The Commission considers that a service secondly, they represent payment for a might possibly be rendered if the charge service actually rendered to the were imposed only in cases in which the importers. goods remained in the special store for

accordance with Article 16 of the same on the premises of major undertakings Decree. where a fixed customs post has been established, or ' finally in the stores or temporary storage depots of private According to the Commission which undertakings situated in the ports or cites the judgment of 16 June 1966, airports and in certain important centres. Joined Cases 52 and 55/65 Federal Republic of Germany v Commission [1966] ECR 159, the fact of facilitating The Belgian Government states that it is the completion of customs formalities only when the customs formalities are cannot be regarded as amounting to a completed on the importer's own service rendered to the importer which premises, when the importer has been justifies payment, inasmuch as such recognized as an authorized consignee, formalities are imposed by the State in its that no storage charge is levied. own interest and provide no real However, it should be emphasized that, advantage to the importer. even in that case, the undertaking will bear certain costs relating to the instal- lation of the appropriate facilities.

COMMISSION v BELGIUM

The General Roemer in Joined Cases 52 and Belgian Government states that fees are 55/65 Federal Republic of Germany v not calculated at a flat rate. The amount Commission [1966] ECR 159, at p. 173, varies according to the weight and the considers that the payment of storage place where the goods are unloaded. charges is justified as regards the Indeed the fee may be compared to a provisions of the Treaty, inasmuch as the rent or a parking charge. reason for and the objectives of the imposition of the fee do not relate to any The Belgian Government maintains that form of protectionism but are solely the goods generally stay in the store intended to cover, to a reasonable extent, longer than is strictly necessary for the the expense of making commercial completion of customs formalities, if

Such sufficient facilities to qualify as auth- rules would not facilitate the free orized consignees within the framework movement of goods inasmuch as they of measures adopted for the simpli- would entail additional administrative fication of the system of Community costs which would be borne by importers transit or who do not wish to make use and, in certain cases, the fees charged of the sites or temporary storage depots would be higher than the present of other private undertakings, to inclusive amounts.

The Commission of the European 1. To goods declared for presentation at Communities, represented by M. Van a public warehouse and for which the Ackere, acting as Agent, and the Belgian collector grants an exemption from Government, represented by R. Hoebaer, storage on their arrival; acting as Agent, and I. Claeys Bouuaert, Advocate at the Cour de Cassation de Belgique, Brussels, presented oral argument at the sitting on 8 March 1983. 2. To goods imported from abroad which are presented at the public warehouse for the purpose of their The Advocate General delivered his withdrawal from transit. opinion at the sitting on 20 April 1983.

COMMISSION v BELGIUM

Decision

1 By application lodged at the Court Registiy on 23 April 1982, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into Belgium, and presented for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty.

2 The Law of 20 February 1978 on customs warehouses and temporary storage (Moniteur Belge of 22 March 1978) defines customs warehouses as premises where goods may be deposited without payment of any entiy duties or taxes for the period during which they are stored. The Law lays down the principle that goods deposited in public warehouses are liable for payment of "storage charges", the net income from which is paid to the municipalities which provide the premises. In accordance with Article 25 of the same Law, a Royal Decree of 29 January 1979 (Moniteur Belge of 7 March 1979) listed the public warehouses, fixed the maximum rate for storage charges and laid down rules for the collection thereof.

7 The Belgian Government considers that the charges in question cannot be described as charges having an effect equivalent to customs duties because the event giving rise to the disputed charges is in law neither the crossing of the frontier nor the completion of customs formalities, but the use by importers of the public warehouses made available to them by the municipal authorities. Such a use amounts to a service rendered to the importers and is capable of justifying the levying of charges.

8 It is appropriate to recall, in the first place, that according to the established case-law of the Court, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on the goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not levied by the State. The position is different only if the charge in question is the consideration for a service actually rendered to the importer and is of an

COMMISSION v BELGIUM

amount commensurate with that service, when the charge concerned, as in this case, is payable exclusively on imported products.

9 The prohibition of charges having an effect equivalent to customs duties, laid down in provisions of the Treaty, is justified on the ground that pecuniary charges imposed by reason or on the occasion of the crossing of the frontier represent an obstacle to the free movement of goods.

JUDGMENT OF 17. 5. 1983 — CASE 132/82

which is more expensive than that of the public warehouses. It is there- fore legitimate, in the Belgian Government's view, to impose a charge commensurate with that service.

1 3 That argument cannot however be accepted. Whilst it is true that the use of a public warehouse in the interior of the country offers certain advantages to importers it seems clear first of all that such advantages are linked solely with the completion of customs formalities which, whatever the place, is always compulsory. It should moreover be noted that such advantages result from the scheme of Community transit, introduced by Regulations Nos 542/69 and 222/77, not in the interests of individual traders, but as the fourth and sixth recitals in the preamble to Regulation N o 222/77 clearly indicate, in order to increase the fluidity of the movement of goods and to facilitate transport within the Community. There can therefore be no question of levying any charges for customs clearance facilities accorded in the interests of the common market.

1 4 It follows from the foregoing, that when payment of storage charges is demanded solely in connection with the completion of customs formalities, it cannot be regarded as the consideration for a service actually rendered to the importer.

15 Consequently, it must be declared that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into Belgium, and presented merely for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty.

1. Declares that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into the Kingdom of Belgium, and presented merely for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty;

2. Orders the Kingdom of Belgium to pay the costs.

Mertens de Wilmars Pescatore Everling

Mackenzie Stuart Due Bahlmann Galmot

Delivered in open court in Luxembourg on 17 May 1983.

P. Heim J. Mertens de Wilmars Registrar President