C-229/87

OPINION OF SIR GORDON SLYNN —CASE 229/87

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N S L Y N N delivered on 14 July 1988

My Lords, Detailed rules for the application of the levy are laid down in the Ministry of Trade's Circular No EG/8324/2714 of 10 December 1980, which makes specific reference to Greek accession to the EEC and to the requirements of Article 30 et seq. Article 49 (1) of Greek Law N o 1089 of 12 of the EEC Treaty. By virtue of paragraph I November 1980 provides for the creation oí it is the responsibility of the intermediate a Union of Greek Chambers of Commerce banks, when permission to import or pay for and Industry ('the U G C C ľ ) . By Article goods is granted, to operate exchange 49 (3) (g) of that law, one of the functions controls so as to safeguard the rights of the of the UGCCI is: Hellenic Republic regarding currency. By paragraph II (b) of the circular, the levy is to be collected at a rate of 0.1 °/o of the cif value shown on the invoice for the goods in question, subject to a minimum of DR 250 and a maximum of DR 5 000, save that if 'on the order of the Minister for Trade, to the importation or payment is on behalf of a collect information and supply it to the legal entity regulated by public law, only banks authorized to conduct foreign half the normal levy is charged; if on behalf exchange transactions, so as to enable them of the State, no sum is charged. The sums to carry out effective checks on the oper­ so collected are to be sent to the Bank of ations covered by Article 1 (3) of Law No Greece, which places them in a special 936/1979 on the amendments and additions account whose contents are allocated by to the provisions governing foreign ministerial decree. trade . . . '.

duty on imports introduced as from 1 In its new formal letter of notice (8 August January 1979 in trade between the 1986), the Commission specified the legal Community as at presently constituted and basis for its intended action as being 'Article Greece shall be abolished on 1 January 29 of the Act of Accession in conjunction 1981'. with Article 13 of the EEC Treaty", but made reference to the argument on the substance set out in Case 138/85, thereby inter alia referring to Article 28 of the Act of Accession. The Greek Government replied challenging that letter on the grounds that it referred to a line of argument developed in another case which That action followed the usual procedure. was legally closed. The Commission The letter of formal notice of 26 March continued the pre-contentious procedure 1984 set out the substance of the under Article 169 of the Treaty and, in its Commission's argument, namely that the reasoned opinion, it set out in full the legal Greek levy was a tax of equivalent effect to argument on which it relies. Having a customs duty and was contrary to Article received a further reply from the Greek 28 of the Act of Accession. In due course Government contesting both admissibility a reasoned opinion followed and an and substance, the Commission brought the application was made to the Court (Case present action on 29 July 1987 for a 138/85). After the close of the written declaration that, by levying a charge for the procedure in that case and in answer to a checking of prices of goods imported from written question from the Court, the Greek other Member States of the Community, Government submitted legislative texts Greece has failed to fulfil its obligations showing that the contested levy had its roots under Article 12 et seq. of the EEC Treaty in legislation first enacted in 1947. That, it and Article 29 of the Act of Accession. appears, removed the contested measures from the scope of Article 28 of the Act of Accession (since that article refers to charges 'introduced as from 1 January 1979').

v Italy [1970] ECR 25, paragraph 13). The appeared in pleadings which were part of a Commission maintains that the procedural case which had already come to an end. requirements of Article 169 have been observed and contends, without asking for a declaration that there has been a breach of the Treaty to that effect, that the Greek The substance of the case is that, in the Government has given less than the full Commission's view, the Greek legislation cooperation to be expected of a Member clearly imposes a prohibited tax of equiv­ State under Article 5.of the EEC Treaty. alent effect to a customs duty, as the levy is a pecuniary charge imposed unilaterally on goods imported from another Member State when they cross the Greek frontier and is not imposed oh goods produced in Greece. Basing itself, inter alia, on Joined Cases 52 and 55/65 (Germany ν Commission [1966] Although Greece is right to stress the ECR 159, at pp. 169 and 170), Case 24/68 importance of the initiating letter which is (Commission ν Italy [1969] ECR 193, at pp. intended to give the Member State to which 200 and 201, paragraphs 7 to 10), Case it is addressed adequate notice of the 8/70 (Commission ν Italy [1970] ECR 961, substance of the case against it, in the at pp. 965 and 966, paragraphs 2 and 3), present case there is no doubt in my mind Case 39/73 (Rewe Zentralfinanz GmbH ν that the Greek Government was fully and Direktor der Landwirtschaftskammer West­ adequately informed of the nature of the falen-Lippe[1973] ECR 1039, at pp. 1043 Commission's argument. The proceedings in and 1044, paragraphs 3 and 4) and Case Case 138/85 concerned exactly the same 87/75 (Bresciani ν Amministrazione italiana contested legislation and were — as the delle finanze [1976] ECŔ 129, at p. 138, Greek Government knew — withdrawn paragraphs 8 and 9), the Commission argues simply because, at a very late stage, the that the checking of import invoices by the Greek Government submitted material chambers of commerce — the justification which led the Commission to conclude that for the contested levy — is an administrative its action should have been brought under activity carried out for reasons of public Article 29, rather than Article 28, of the Act administration, in the general interest or in of Accession. the interest of the national economy, and is unrelated to the safequarding of importers' interests. The Commission accepts that, were a service provided for the importer, that might justify the imposition of a charge.

At the hearing, counsel for the Greek Government amplified those arguments, suggesting that there was a nexus between the 'quid pro quo collected' (the levy) and the invoice price of the imported goods. The At the end of the hearing, counsel for the service provided by the members of the Greek Government stated that proof that chambers of commerce consisted, he said, in importers had an interest in the levy being making sure that what was carried out was charged could be provided. If such evidence indeed exchange control rather than a was available, it should have formed part of disguised restriction to trade: thus, it was the written submissions. It clearly cannot argued, the levy did not finance the admin­ be admitted at this stage; nor can the istrative activity of the State, but the suggestion that it may exist influence the provision of a genuine service to importers. result of this case. Counsel concluded that the levy was something which neither by its nature nor by the effect which it produced could constitute an impediment to imports and that, therefore, the levy had nothing what­ soever in common with a charge having In my view, the contested levy falls fairly equivalent effect to a customs duty. and squarely within the definition of a charge of equivalent effect to a customs duty. 'Any pecuniaiy charge, whatever its designation and mode of application, which is unilaterally imposed on goods imported from another Member State by reason of the fact that they cross a frontier, In my view, the Greek Government's constitutes a charge having an effect equiv­ argument should be rejected. I can find no alent to a customs duty' (Bresciani, at p. real link between the levy and a service 138, paragraph 9). provided by the chambers of commerce to their members. It seems to me from the evidence presented to the Court that the checking of invoices — the alleged service — is a measure taken for reasons of public policy which have little, if anything, In the alternative, counsel for the Greek to do with the interests of the importers Government suggested that the contested themselves. On the evidence available, it charge was not levied on imports per se, but seems to me that what is done, even if by only when the foreign exchange procedure the chambers of commerce using their staff, had to be inititated, which might be at a is ancillary to the State control of foreign wholly different time. I am not persuaded