C-314/82

JUDGMENT OF THE COURT 20 MARCH 1984 1

Commission of the European Communities v Kingdom of Belgium

( Charge having an effect equivalent to customs duties — Inspection charge for imports of poultry-meat )

Case 314/82

Free movement of goods — Customs duties — Charges having equivalent effect — Charges in respect of health inspections — No service rendered — Prohibition (EEC Treaty, Articles 9 and 12)

Article 9 of the EEC Treaty prohibits systematically in accordance with the between Member States customs duties same criteria to domestic products and and all charges having equivalent effect. imported products alike or if those That prohibition, which makes no charges constituted payment for a service distinction on the basis of the purpose actually rendered to the importer. for which the pecuniary charges whose abolition it envisages are levied, also includes charges demanded in respect of Health checks which are part of the health checks effected by reason of the administrative activity of the State, importation of goods. In accordance intended to protect, in the public with the settled case-law of the Court, interest, public health and hygiene, the situation would be different only if cannot be regarded as a service rendered the pecuniary charges were part of a to the importer such as to justify the general system of internal dues applied imposition of a pecuniary charge.

APPLICATION for a declaration that by levying inspection charges on imports of poultrymeat from other Member States, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty,

THE COURT

composed of: J. Mertens de Wilmars, President, T. Koopmans and Y. Galmot (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and U. Everling, Judges,

Advocate General: G. F. Mancini Registrar: H . A. Rühi, Principal Administrator

gives the following

JUDGMENT

bution and slaughter of poultry. By The inspection charges payable on means of the rules so laid down, the importation were fixed, by Article 59 King may require an inspection or a of the above-mentioned decree of 21 health examination either before or after September 1970, as amended most the death of the animals in question recently by the Royal Decree of 20 (Article 4). March 1978 (Moniteur Belge of 26 July 1978, p. 8518), at BFR 80 per 100 kg or part of 100 kg of poultrymeat, payable That Law is supplemented by the Royal to the customs authorities. Decree of 21 September 1970 on inspection of and trade in poultrymeat (Moniteur Belge of 30 October 1970, p. As regards animals slaughtered in 10994). As regards animals slaughtered Belgium, the charges made for health in Belgium, that decree requires a examinations and inspections were fixed, compulsory health examination before until 1981, by joint agreement between slaughter (Article 20) and also a the trade organizations concerned. The compulsory inspection of all parts of the decree of 28 August 1981 (Moniteur animal after slaughter (Article 32). By Belge of 1 September 1981, p. 10851), virtue of Article 46 of that decree, the as amended by the Royal Decree of importation of fresh, dried, salted or 25 September 1981 (Moniteur Belge of smoked poultrymeat is made subject to 23 October 1981, p. 13613) fixed the the production of a health certificate following charges to be paid by the issued by a veterinarian officially re­ owner of the animals in respect of cognized or approved in the country in the health examination carried out on which the animals have been slaughtered poultry before slaughter and the in­ or in which the meat has been processed. spection carried out after slaughter: Furthermore, by virtue of Articles 52 and 53, a health check takes place on impor­ tation covering the conditions in which "A. Per visit of the veterinarian for the poultrymeat has been transported the purpose of inspection on the and in which it is presented for impor­ premises: BFR 200. tation, its state of preservation and its conformity with the requirements laid down by the Belgian rules with regard to B. 1. For pigeons, quail, guinea fowl, inspection of poultrymeat. pullets, light medium-weight boiling chickens: BFR 0.50 per animal.

Declare that by levying inspection In its letter of reply dated 10 June 1981, charges for imports of fresh, dried, salted the Belgian Government emphasized that and smoked poultrymeat from other the inspection charges were levied not on Member States, the Kingdom of Belgium account of importation but on account nas failed to fulfil its obligations under of the health inspection carried out in Articles 9 and 12 of the EEC Treaty; accordance with the Council Directive of 15 February 1971 on health problems Order the Kingdom of Belgium to pay affecting trade in fresh poultrymeat the costs. (Official Journal, English Special Edition 1971 (I) p. 106). It contended that home- 2. The Kingdom of Belgium contends produced poultrymeat, with the ex­ that the Court should: ception of dried, smoked or salted poul­ trymeat in respect of which inspection Declare the Commission's application to charges had been abolished, was subject be unfounded; to the same charge. The continued existence of that charge was necessary so Order the Commission to pay the costs. as to avoid distortion of competition and reserve discrimination against home- produced products since there were no 3. The written procedure followed the . uniform Community rules on meeting normal course. the cost of health inspections. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court decided to On 10 February 1982, the Commission open the oral procedure without any issued a reasoned opinion to the Belgian preparatory inquiry. However, it put to Government under Article 169 of the the Belgian Government a question EEC Treaty in which it was stated that regarding the purpose of the health the Kingdom of Belgium had failed to checks and the means by which they are fulfil its obligations under Articles 9 and carried out, and the Government replied 12 of the Treaty by levying inspection in writing before the hearing. charges on imports of poultrymeat from other Member States. It called upon the Belgian Government to comply with that opinion within two months. III — Submissions and argu­ ments of the parties

The health checks carried out on poul­ trymeat at the time of importation into Belgium cover either points provided for The inspection charges cannot be in the Community directive, that is to justified as payment for a service say, verification of the health certificates, rendered to the importer because a of the transhipment of the vehicle or the public health inspection carried out in container and of the conformity of the the public interest cannot constitute such product with the information given in a service. the certificate, and verification of the temperature of the goods, of the physical state of the vehicle and its state of hygiene, and the markings, or matters laid down by Belgian law in accordance with the European directive, that is to say, spot checks intended to detect the presence of antibiotic residues and The Belgian Government, in its defence, products having a hormonal or anti- relies on Council Directive 71/118 of hormonal effect, the defrosting of part of 15 February 1971 on health problems the shipment in the case of frozen or affecting trade in fresh poultrymeat, deep frozen goods and, in certain cases, which set up a scheme of health in­ verification of the water content. The spection for products coming within its quantities of poultrymeat seized at the field of application and providing, in time of importation illustrate the need Article 9 (1), that a Member State may for such inspections.

JUDGMENT OF 20. 3. 1984 — CASE 314/82

Belgian State [1981] ECR 995), those fees do not constitute a charge having an effect The amount of the common fees was equivalent to customs duties. The system made uniform by the Royal Decree of 20 of fees is based on one and the same March 1978. For fresh imported poultry Law, that of 15 April 1975. The products, those fees are BFR 80 per 100 kg or part at issue undergo the health check at the thereof, an amount which is not indexed same time, that is, when they are offered and is collected by the customs auth for consumption, and the system of

The charges incurred as a result of the B. According to the type and weight of inspections carried out. on imported products are, generally, identical to those the animal: BFR 1, BFR 2, BFR 4 or borne by home-produced products, and BFR 8 per animal. that was the express purpose of the Royal Decree of 20 March 1978. The differences between the amounts of the Since one kilogram of live weight inspection charges and the detailed rules corresponds to 0.75 kg of dead weight, for their collection are justified on an inspection charge of BFR 100 is due, objective grounds related to the different

Since Directive 71/118 constituted the first step towards the harmonization of As regards the calculations by which the law governing certain food products the Belgian Government seeks to dem­ including poultrymeat, and since the onstrate that the inspection charges on Member States wish the level of importation represent only 60 % of the protection of public health to remain inspection charges applied within the unchanged, it seemed wise to leave the country and that 40 % of the inspection Member States the power to legislate in charges collected within the country are respect of goods not covered by the intended to cover the cost of ante- and directive. Once such checks are post-mortem inspections, the Commission compatible with the directive, the general observes in the first place that the principle of non-discrimination as distinction so made is nowhere to be between imported products and national found in the provisions of Belgian law. products is applicable. Genuine equality Article 1 of the Royal Decree of 28 of treatment requires that both groups of August 1981 expressly provides that the products be subject to the same rules and inspection charges collected inside the that such rules have identical con­ country may only be used to cover the sequences. Since the Belgian State is not cost of the health check before slaughter prohibited from levying a charge and of the inspection after slaughter, in intended to cover the cost of health other words, the ante- and post-mortem checks on those national products, equal inspections. Furthermore, that allegation treatment of imports implies that an is difficult to reconcile with the fact that equivalent charge should be levied for a the inspection charges are collected by similar health check carried out on the customs authorities when the goods imported products. cross the frontier. It is thus a check after slaughter and not a check "up to the point where the goods are offered to the consumer". Finally, the defendant loses sight of the fact that imported meat may The Commission, in its reply, observes be liable to pay inspection charges twice, first that Article 9 of Directive 71/118 that is, both in the exporting country and deals exclusively with the possibility of in the country of destination.

As regards the application to this case of units which are used in this context, the the principles laid down in the Court's inspection charges do not weigh as case-law, the Commission contends that heavily on all the products and because the pecuniary charges in question are not the total pecuniary charge must be part of a general system of internal dues calculated so as to take account of the because home-produced and imported fees already paid in the country of products are not subject to the same origin. charge and because the fact which gives rise to the charge is not the same for both kinds of products. Furthermore, the Belgian authorities also levy inspection charges for imported dried, salted or The Belgian Government, in its rejoinder, smoked meat, although they do not do observes in the first place that the so in the case of home-produced meat possibility of the Belgian State's pro­ of the same type and although those hibiting, pursuant to Council Directive products do not arrive on the market at 71/118, the marketing of poultrymeat the same stage as fresh meat after unfit for human consumption pre­ slaughter. Moreover, when the amount supposes the existence of a prior health of the inspection charges on importation inspection so as to determine the state of is fixed, no account is taken of the hygiene of the poultry in question. The inspection charges already paid in the Commission recognizes moreover that country of origin in respect of the there are at present no uniform inspections those products haveCommunity rules on the question of undergone there. health inspections and the financing of the cost of such inspections. In that situation, the Member States cannot be reduced to a policy of the lowest common denominator. The Community legislature has therefore allowed The fact that an inspection on impor­ Member States to retain the national tation is permitted does not necessarily systems of public health protection which imply that the dues collected in respect-, go beyond the Community requirements, of those checks are justified. The which are regarded solely as a minimum. inspection charges collected in respect of That is also the meaning of Article 36 of such inspections remain subject to Ar­ the Treaty. ticle 9 et seq. of the Treaty. In that respect, it is not sufficient to allege that the inspection charges for both imported and home-produced products are based upon the same law. The Royal Decree of 20 March 1978 was intended to make the inspection charge on poultrymeat on importation equal to the inspection charge for animals slaughtered in Belgium. That intention corresponds to the Com­ Finally, the Commission contests the mission's concern to ensure that the total Belgian Government's allegation that all health inspection charges levied in the health checks carried out on home- respect of imported poultry, including produced poultrymeat are equivalent to fees already paid in the exporting all the inspections carried out on Member State, are equal to the total of imported poultrymeat because, among health inspection charges paid in respect other reasons, by virtue of the different of home-produced poultry. It is precisely

In reply to a question put to it by the Court concerning the purpose of and the The very slight difference between the amount of the fees in francs per detailed rules for the checks carried out kilogram or per animal may be explained on home-produced and imported poul­ by the fact that imported poultrymeat is trymeat, the Belgian Government plucked but it is not plucked at the time described the checks in greater detail. of slaughter.

In the case of home-produced poul­ trymeat, the checks are first of all carried Contrary to the Commission's con­ out at the abattoir. Those checks arc the tention, the health checks carried out on ante-mortem and post-mortem health imported products are equivalent in their inspections provided for in the Com­ entirety to those carried out at various munity directives and those dealing with stages on similar home-produced goods. the matters expressly excluded from the The charges levied on imported products scope of Directive 71/118 (Article 6), as when inspection is effected at the well as with the means of transport and frontier take the place of the charges the goods to be transported. Further levied when health inspection is carried spot-checks are carried out when the out on home-produced goods. Those meat is being cut up, at which point the

JUDGMENT OF 20. 3. 1984 — CASE 314/82

COMMISSION / BELGIUM

out on importation, either at the customs office or at the place of destination of the goods, and, according to the stage at which the meat is imported, at the same stages as for home-produced meat.

3 By virtue of Article 6 of the above-mentioned Law, fees may be charged which are intended to cover the cost of the health examination, expert inspection and the check on importation. The inspection charges on impor­ tation, which are at issue in this case, have been fixed by Article 59 of the above-mentioned decree of 21 September 1970, as amended, at BFR 80 per 100 kg or part of 100 kg of poultrymeat, an amount which is not indexed and is collected by the customs authorities. As regards animals slaughtered in Belgium, the decree of 28 August 1981, as later amended, provides for fees, intended to cover the cost of the health examination before slaughter and the expert inspection after slaughter, of BFR 276 for each visit by the veterinary expert and, according to the species and weight of the animal, of BFR 1, 2, 4 or 8 per animal, amounts which are indexed and payable monthly to the veterinarians' professional organizations.

4 Such systematic health inspections carried out on importation were the subject of the Court's judgment of 6 October 1983 (Joined Cases 2 to 4/82 Ddhatze Frères Le Lion SA and Others v Belgian State [1983] ECR 2973 in which it was held that such an inspection, carried out in order to ascertain any changes in the condition of meat whilst in transit from the exporting State and its state of preservation on entering the territory of the State of destination, falls within the scope of the public health inspection carried out in the exporting country in accordance with Council Directive 64/433 of 26 June 1964 (Official Journal, English Special Edition 1963-1964, p. 185) and Council Directive 71/118 of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106), both on health problems affecting trade in meat or poultrymeat.

s As regards the argument based on Article 9 of Directive 71/118, it is sufficient to note that Article 9 of that directive in no way requires Member States to carry out such checks on imported meat but may at most be understood as permitting them. Since they are not checks carried out in application of Directive 71/118, that directive cannot be relied upon to justify the levying of an inspection charge in respect thereof.

9 The Commission has based its action on the contention that the contested charges, levied in respect of health checks on imported poultrymeat, constitute charges having an effect equivalent to customs duties within the meaning of Article 9 of the Treaty because they are charges unilaterally levied by the Belgian State and are not part of a general system of internal dues.

io In the view of the Belgian Government, the charges at issue constitute payment for a service rendered to the importer. Furthermore, they correspond to the charges levied in respect of checks carried out on home-

COMMISSION / BELGIUM

produced poultrymeat, the charges being, in both cases, completely identical, if account is taken, in the case of imported products, of the fees already charged in the exporting Member State. In spite of certain differences of form as regards the detailed rules for the collection of the charges, they are part of a general system of internal dues.

13 In accordance with the above-mentioned case-law, the classification of the disputed fees as regards the Treaty depends therefore on the question whether those fees are determined according to criteria different from those used to fix the charges imposed upon comparable national products, or whether they are pecuniaiy charges forming part of a general system of internal dues applied systematically, for the purposes of the checks in question, in accordance with the same criteria to domestic products and imported products alike.

JUDGMENT OF 20. 3. 1984 — CASE 314/82

H In that connection, the Commission has contended first that home-produced dried, salted and smoked poultrymeat, in contrast to imported products, is not subject to thé disputed fees.

is The Belgian Government has been obliged to recognize the truth of that statement. It announced at the hearing that the measures necessary to abolish the checks and the levying of the disputed charges for imports of those cat­ egories of meat had been adopted. Later, it informed the Court that that had been done by means of a Royal Decree of 6 December 1983, amending the Royal Decree of 21 September 1970.

i6 As regards that aspect of the dispute, the Court can only take note of the Belgian Government's declaration and state that before the amendment of the rules at issue, the charges levied for imports of those categories of meat did not correspond to any charges in respect of comparable home-produced goods. The charges in question thus constituted, as regards those categories of poultrymeat, a charge having an effect equivalent to customs duties in the above-mentioned sense.

i9 Moreover, the criteria used to calculate the charges are different for the two groups of products. In the case of home-produced meat, there is, first, a fixed sum for the visit of the veterinary expert and, secondly, an amount per animal examined, calculated according to an index-linked rate. The charges affecting imported meat are fixed at a standard rate per 100 kg or part thereof and are not indexed. Those differences between the criteria make it very difficult to compare the charges which are actually levied on the two groups of products.

20 The calculations on this subject presented by the Belgian Government and not contested by the Commission, even if they are correct, compare only the average charges for the two groups of products. In certain cases, the differences between the criteria applied to the two groups may result in higher charges' being imposed on imported products. That is the case par­ ticularly when the standard amount is due in respect of a small fraction of 100 kg, in particular where small quantities are imported, or where the goods are imported in a condition to be distributed direct to the consumer, without any processing taking place in Belgium, and where the number of checks carried out in Belgium is thus limited.

2i An appraisal of the national rules at issue in terms of their form, their content and their effects, reveals therefore that the inspection charges levied in respect of home-produced meat are not part of a general system of internal dues imposing the same charge, in accordance with the same criteria, to domestic and imported products alike.

Costs

25 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of Belgium has failed in its submissions it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that the Kingdom of Belgium, by levying inspection charges for imports of fresh, dried, salted and smoked poultrymeat from other

For the Registrar

H. A. Rühi J. Mertens de Wilmars Principal Administrator President

OPINION OF MR ADVOCATE GENERAL MANCINI DELIVERED ON 7 FEBRUARY 1984 1

Mr President, and 12 of the EEC Treaty containing Members of the Court, the prohibition of customs duties and charges having an equivalent effect.

1. This dispute is about the Let me briefly set out the Belgian rules compatibility with Community law of the which, the Court is aware, were the Belgian rules concerning health checks subject of two recent actions (judgment on imports of poultrymeat from other of 7 April 1981, Case 132/80 United Member States. The Court is asked to Foods NV and Aug. Van der Abeele decide whether those rules, which make PVBA v Belgian State [1981] ECR 995, importation of the said products subject and judgment of 6 October 1983, Joined to a health check at the expense of the Cases 2 to 4/82 Delbaize Frères Le Lion importers, is compatible with Articles 9 SA and Others v Belgian State [1983]

1 — Translated from the Italian.