C-133/82

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 LUXEMBOURG

JUDGMENT

The facts of the case, the course of maximum rate of storage charges and to the procedure and the conclusions, lay down rules for the method of the submissions and arguments of the parties collection thereof. may be summarized as follows : The Royal Decree of 29 January 1979 on customs warehouses and temporary storage provides that storage charges I — Facts and p r o c e d u r e may not exceed 5.50 francs per package or per 100 kg gross weight of goods unloaded in the store, 3.50 francs per Customs formalities for goods which package or per 100 kg gross weight of originate in a Member State or which are goods unloaded outside the store in free circulation and which are (loading bay or yard) and 13 francs per imported into Luxembourg are com- 1 000 kg gross weight when (with the pleted either at the frontier or within the authorization of the customs authorities) country. the goods are not unloaded, subject to a maximum of 130 francs per truck, lorry or trailer. In the first case, no financial charge is payable; in the second, when goods are presented for customs clearance at the The Commission took the view that such special store of a public warehouse, a storage charges constituted charges fee, which is fixed and levied by the having an effect equivalent to customs municipal authorities, is payable in duties, the imposition of which is consideration of the use by the importers prohibited under Article 9 et seq. of the of the premises which are made available Treaty. Therefore, by letter of 16 to them. February 1981, it initiated against Luxem- bourg the procedure provided for in Article 169 of the Treaty. In that letter, The Ministerial Regulations of 21 April the Commission stated that according to 1978 (Mémorial [Luxembourg Official the established case-law of the Court, in Gazette] 1978, p. 508) and of 2 July particular the judgments of 1 July 1969, 1979 (Mémorial 1979, p. 1189) publish Case 24/68 Commission v Italian in Luxembourg the Belgian Law of 20 Republic [1969] ECR 193, and Joined February 1978 and the Belgian Royal Cases 2 and 3/69 Sociaal Fonds voor de Decree of 29 January 1979 respectively, Diamantarbeiders [1969] ECR 211, the on customs warehouses and temporary disputed charges could not be regarded storage. as the consideration for services, actually and individually rendered, from which importers might be said to obtain a Pursuant to Article 25 of the Belgian specific advantage. The Commission Law of 20 February 1978, on customs requested the Luxembourg Government warehouses and temporary storage, the to provide it with its observations within only part played by the State is to fix the a period of two months.

In a letter of the same date, the Registrar On 8 December 1981, the Commission requested the Commission to provide issued the reasoned opinion provided for information before 1 March 1983 as to in the first paragraph of Article 169 of the situation regarding such charges in the Treaty. That opinion, which was other Member States. drawn up in terms similar to those employed in the reasoned opinion The replies of the Luxembourg addressed on 12 March 1981 to the Government and the Commission were Belgian Government, declares that, by lodged at the Court Registry on 22 levying storage charges on goods which February and 1 March 1983 respectively. originate in a Member State or are in free circulation and which are imported into Luxembourg and submitted for the completion of customs formalities at a II — C o n c l u s i o n s of t h e p a r t i e s special store, the Grand Duchy of Luxem- bourg has failed to fulfil its obligations under Article 9 of the EEC Treaty. The Commission claims that the Court should:

The reasoned opinion was communi- 1. Declare that, by levying storage cated to the Government of the Grand charges on goods which originate in a Duchy of Luxembourg on 14 December Member State or are in free circu- 1981. It requested the Government to lation, and which are imported into comply with its provisions within a Luxembourg and presented for the period of one month. completion of customs formalities at a special store, the Grand Duchy of Luxembourg has failed to fulfil its As the Government of the Grand Duchy obligations under Articles 9 and 12 of of Luxembourg did not reply to the the Treaty establishing the European Commission's reasoned opinion, on 23 Economic Community; April 1982 the Commission brought this action, which was registered at the Court 2. Order the Grand Duchy of Luxem- on 26 April 1982. bourg to pay the costs.

The Grand Duchy of Luxembourg In the Commission's view, the storage contends that the Court should: charges levied by the Luxembourg auth- orities pursuant to the Ministerial Regu- lation of 21 April 1978 and the Grand- 1. Declare the Commission's application Ducal Regulation of 31 March 1978 are unfounded; not related to a general system of internal dues inasmuch as the charges are imposed on the goods solely by reason of 2. Order the Commission to pay the their crossing the frontier. Neither can costs. the storage charges in question be regarded as the consideration for a service individually rendered to the importer. Within the terms of Article 30 Ill — Submissions and argu- of the Royal Decree of 29 January 1979 m e n t s of t h e p a r t i e s on customs warehouses and temporary storage "storage charges are payable on goods arriving at the store whether they are unloaded or not". According to the According to the Commission, it may be Commission, that provision clearly seen from the established case-law of the establishes that it is not the actual use of Court, in particular the judgment of 25 the facilities of the store which serves to January 1977 (Case 46/76 Baubtas justify the payment of the fee, but the [1977] ECR 5) that: "Any pecuniary sole fact of crossing the frontier or, more charge, however small and whatever its precisely, the fact of presenting imported designation and mode of application, goods for the completion of customs which is imposed unilaterally on goods formalities at the special store. 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 The Commission remarks, on the basis meaning of Articles 9, 12, 13 and 16 of of the judgment of 16 June 1966 (Joined the Treaty, even if it is not imposed for Cases 52 and 55/65 Federal Republic of the benefit of the State." That position Germany v Commission [1966] ECR 159) would be different only if the charge in that the levying of a storage charge question were the consideration for a cannot be justified when the only benefit service actually rendered to the exporter which the importer obtains from the use representing an amount proportionate to of the special store is the possibility of the said service or if it related to a marketing the imported goods in the general system of internal dues applied Grand Duchy; the imported products systematically in accordance with the themselves enjoy no direct or indirect same objective criteria to domestic advantage. products and imported or exported products alike (similarly, judgment of 14 December 1962, Joined Cases 2 and In the Commission's view, to "penalize" 3/62 Commission v Belgium and Luxem- the importer who makes use of such bourg [1962] ECR 425; judgment of 8 procedures by requiring him to pay November 1979, Case 251/78 Denkavit storage charges is contrary to the [1979] ECR 3369; judgment of 28 objectives of the Community, according January 1981, Case 23/80 Kortmann to which customs clearance formalities [1981] ECR 251; judgment of 3 should be completed near the places for February 1981, Case 90/79 Commission use or consumption. Such objectives have v France [1981] ECR 283). been given specific expression in Council

In the opinion of the Luxembourg The Luxembourg Government takes the Government, for the same reasons, the view that the charge levied in the special service provided by the municipal auth- stores of public warehouses cannot be orities justifies the payment of storage assimilated to a charge having an effect charges in consideration of the costs equivalent to a customs duty inasmuch involved in the upkeep of the stores. as, in the first place, the charge is not imposed by reason of the fact that the goods have crossed the frontier and, The Luxembourg Government considers secondly, it represents the consideration that, in law, the fact which gives rise to for a service actually rendered to the the disputed charge is not the crossing importers. of the frontier but the use of an infra- structure, which is provided and financed by a third party, the municipality. The Luxembourg Government empha- sizes that for the completion of customs The Luxembourg Government empha- formalities within the country use of the sizes that the special storage charge is 'special store is optional. Customs fixed and imposed by the municipal formalities may also be carried out either authorities exclusively for their benefit. in the premises of a score of under- The maximum rate of the charge is takings which under certain conditions determined at government level under are recognized as authorized consignees the rules of the Belgo-Luxembourg within the framework of measures Economic Union. adopted for the simplification of Community transit, or in the premises of major undertakings where a fixed According to the Luxembourg Govern- customs post is established, or again in ment, the fact that a special store is made the stores or temporary storage sites of available to importers corresponds private undertakings, of Luxembourg entirely to the concept of a service Airport, or the river port on the Moselle, actually and individually rendered, as it or finally in the special store of was defined by the Court, in particular the public warehouses of Ettelbriick, in the judgments of 1 July 1969 (Case Luxembourg and Esch-sur-Alzette. 24/68 Commission v Italian Republic); in Joined Cases 2 and 3/69 (Sociaal Fonds voor de Diamantarbeiders) of 26 February The Luxembourg Government states that 1975 (Case 63/74 W. Cadsky SpA [1975] it is only when the customs formalities ECR 281) and of 25 January 1977 (Case are completed on the importer's own 46/76 Bauhuis) all cited above. The premises, when the importer has been opportunity of using the special store of recognized as an authorized consignee, a public warehouse enables importers that no storage charge is levied. who either do not have sufficient However, even in that case, the under- facilities to qualify as authorized taking will bear certain costs relating to consignees within the framework of the installation of the appropriate measures adopted for the simplification facilities. When, on the other hand, the of the system of Community transit or importer conveys the imported goods to who do not wish to make use of the sites a private undertaking where there is a or temporary storage depots of other customs service, the undertaking will private undertakings, to complete the

1. To goods declared for presentation at In the opinion of the Luxembourg a public warehouse and for which the Government, if the Court were to accept collector grants an exemption from the Commission's argument, the storage on their arrival; municipal authorities would be obliged to alter the rules relating to the 2. To goods imported from abroad collection of storage charges so that the which are presented at the public charges would be levied on the basis of warehouse for the purpose of their the duration of parking before and after withdrawal from transit. the completion of customs formalities, the waiting periods and the like. Such rules would not facilitate the free Paragraph (1) refers to the possibility movement of goods inasmuch as they provided for in Article 16, in which case would entail additional administrative storage charges are payable. They are costs which would be borne by importers also payable in the case referred to in and, in certain cases, the fees charged Article 34 (2), in which the importer, would be higher than the present equally, makes use of the special store of inclusive amounts. the public warehouse.

JUDGMENT OF 17. 5. 1983 — CASE 133/82

3 The Law of 20 February 1978 defines customs warehouses as premises where goods may be deposited without payment of any entry 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

COMMISSION v LUXEMBOURG

charges", the net income from which is paid to the municipalities which provide the premises. In accordance with Article 25 of the same Law, the Royal Decree of 29 January 1979 listed the public warehouses, fixed the maximum rate for storage charges and laid down rules for the collection thereof.

4 That legislation conforms in principle with the guidelines set out in Council Directive No 68/312/EEC of 30 July 1968 (Official Journal, English Special Edition 1968 (II), p. 416). That directive laid down the rules which must be adopted in national laws concerning the temporaiy storage of goods which importers do not wish to place immediately under a specific customs procedure. Such goods must be stored in public or private warehouses designated by the national authorities, in accordance with the requirements fixed by them, for a period of not more than 15 days, which may, in certain circumstances, be extended.

5 The development of Community transit, a concept defined and promoted by Council Regulation (EEC) No 222/77 of 13 September 1976 (Official Journal 1977, L 38, p. 1) which consolidated the provisions of Regulation (EEC) No 542/69 of the Council of 18 March 1969 and the amendments thereto, thus enabled importers to convey their goods from the frontier to public warehouses situated in the interior of the country without paying duties and taxes. In those warehouses, importers may have customs clearance operations carried out and they also have the opportunity to place the goods in temporary storage there, in particular when they do not wish to assign the goods immediately to a specific customs procedure.

io The prohibition of charges having an effect equivalent to customs duties, laid down in the 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.

n It is in the light of those principles that the question whether the disputed storage charges may be classified as charges having an effect equivalent to customs duties must be assessed. It should therefore be noted, in the first place, that the placing of imported goods in temporary storage in the special stores of public warehouses clearly represents a service rendered to traders. A decision to deposit the goods there can indeed be taken only at the request of the trader concerned and then ensures their storage without payment of duties, until the trader has decided how they are to be dealt with. Moreover the Commission does not dispute that the placing of goods in temporary storage may legally give rise to the payment of charges commensurate with the service thus rendered.

i2 However, it appears both from the combined provisions of Articles 16, 30 and 34 of the Belgian Royal Decree of 29 January 1979 and from the arguments advanced before the Court, that the storage charges are payable equally when the goods are presented at the public warehouse solely for the

COMMISSION v LUXEMBOURG

completion of customs formalities, even though they have been exempted from storage and the importer has not requested that they be put in temporary storage.

15 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.

16 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 the Grand Duchy of Luxembourg, and presented merely for the completion of customs formalities at a special store, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 9 and 12 of the Treaty.

JUDGMENT OF 17. 5. 1983 — CASE 133/82

Costs

i7 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. Since the Grand Duchy of Luxembourg has been unsuc- cessful, it must be ordered to pay the costs.

On those grounds,

P. Heim J. Mertens de Wilmars Registrar President

O P I N I O N OF MR ADVOCATE GENERAL MANCINI

(see Case 132/82, p. 1661)