C-111/89
ECLI:EU:C:1990:95
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BAKKER HILLEGOM
O P I N I O N O F M R ADVOCATE G E N E R A L JACOBS delivered on 6 March 1990 *
My Lords, The remaining 2 5 % of the costs is borne by the State.
1. This case concerns the compatibility with Community law of fees charged for phyto- 3. In the years 1974-77 the Plant Health sanitary inspections of bulbs and plants for Authority carried out a number of export carried out pursuant to an inter- inspections, including field inspections, of national convention on plant health bulbs and plants on the premises of protection. P. Bakker Hillegom BV ('Bakker'), a major exporter of flowering bulbs, and required payment of a total of HFL 317 400 in respect of the cost of the inspections, calculated in accordance with the abovementioned decision. Bakker refused to 2. Under Article 6a of the Netherlands Law pay, arguing in particular that the amount on plant diseases of 5 April 1951, payment charged bore no relation to the actual cost can be required for analyses or inspections of the inspections. The State, represented by the Ministry of Agriculture, took carried out by the Plant Health Authority, a proceedings for recovery. department of the Netherlands Ministry of Agriculture and Fisheries, in accordance with a schedule of charges to be determined by the competent Minister. A decision of 23 June 1967, the Tarief Plantenziekte- kundige Dienst (Plant Health Authority Tariff), sets out the relevant fees. According 4. The lower courts largely upheld the to Article 1(1) of that decision, fees in State's action, requiring Bakker to pay some respect of the cost of inspections of batches HFL 277 000 in fees. The Hoge Raad of bulbs, tubers and rhizomes from (Supreme Court of the Netherlands) was ornamental plants presented for export are uncertain as to the compatibility with to be calculated in accordance with the Community law of two aspects of the calcu- gross weight of the batch; fees in respect of lation and charging of the fees: first, the batches of woody or herbaceous plants fact that fees were determined by reference presented for export are to be calculated in to gross weight or to net invoice value; and accordance either with the net value secondly, the fact that a proportionate appearing on the invoice or with the gross amount of the costs of field inspections of weight of the batch. In practice, where field plants, which had to be carried out before inspections of growing plants are concerned, the destination of the plants was known, only 7 5 % of the costs of the inspections are was charged in respect of produce presented charged to exporters, in view of the fact for export but not in respect of produce sold that only 75% of production is exported. on the domestic market. It therefore
* Original language: English.
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referred the following questions to the result that field inspections for Court for a preliminary ruling: export purposes are inevitably also carried out on plants intended for the Netherlands market, '(1) Under Community law, in particular Articles 12, 16 and 36 of the Treaty establishing the European Economic Community, is it permissible for fees does the fact that 7 5 % of the costs of charged for inspections on those field inspections are attributed to consignments of plants (or parts exports (on the ground that 75% of the thereof) intended for export and bulbs affected by field inspections are calculated in accordance with Article exported) and that the remaining 2 5 % 1(1) of the Tarief Plantenziektekundige of those costs are not charged to Dienst (Plant Health Authority Tariff), traders who sell the bulbs on the that is to say according to the criteria Netherlands market constitute a of weight or invoice value, not to be ground for taking the view that the regarded as charges having an effect charging of the costs of those field equivalent to customs duties, where the inspections to exporters is incompatible total revenue from export inspections with Community law?' does not exceed the total amount of all the costs directly and indirectly connected with those inspections, 5. It appears from the case file that, following amendments to the relevant legis- or may such fees not be regarded as lation, fees are currently no longer required charges having an effect equivalent to for the inspection of bulbs and tubers for customs duties only where the amount export, and that the carrying out of field of each fee is related to the costs of the inspections has been entrusted to a private actual inspection in respect of which it foundation to which all producers are is charged? required to pay contributions. The particular system of charging which gave rise to the present proceedings is thus now only of historical significance. (2) If it is correct that
(a) field inspections are carried out 6. As a preliminary issue, it is necessary to because certain diseases, from determine the legal framework within which which plants intended for export the questions have to be answered. The must be certified as being free, can national court refers to three provisions of be diagnosed only while the plants the EEC Treaty, namely, Articles 12, 16 and are still in the ground, and 36. In the context of a dispute relating to charges imposed in respect of exports, Articles 12 and 16 are plainly relevant. As regards Article 36, the Court ruled in (b) when field inspections are carried Case 46/76 Bauhuis v The Netherlands out the market for which the plants [1977] ECR 5 that it must be interpreted still in the ground are intended has strictly and could not be understood as not yet been determined, with the authorizing measures of a different nature
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from those referred to in Articles30 to 34, In Case 89/76 Commission v The Nether- i. e. quantitative restrictions on imports or lands [1977] ECR 1355, the Court took the exports and measures of equivalent effect: same view of fees imposed in respect of Article 36 thus could not be interpreted as health inspections for plants for export permitting the imposition of charges carried out in the framework of an interna- (paragraphs 12 to 14 of the judgment). tional convention on plant health protection Article 36 must therefore be left out of to which all the Member States were parties. account for the purposes of answering the The Court ruled that the inspections questions. required by the convention were designed to encourage the free movement of goods, and that in these circumstances fees charged for such inspections could not be regarded as charges having an effect equivalent to The first question customs duties 'provided that their amount does not exceed the actual cost of the oper- ations in respect of which they are charged' (paragraph 16 of the judgment).
7. The first question must be viewed in the light of the Court's existing case-law. It is well established that health inspection charges imposed by a Member State on 9. It is not disputed that the inspections at products imported from or exported to issue in the present case were carried out in other Member States must in principle be the context of the same international regarded as charges having an effect equiv- convention as that in Commission v The alent to customs duties and are accordingly Netherlands, namely, the International Plant prohibited as constituting an obstacle to Protection Convention of 6 December intra-Community trade (see, for example, 1951. The fees charged by the Netherlands Case 29/72 Marimex v Amministrazione authorities must therefore in principle be Finanziaria Italiana [1972] ECR 1309; regarded as compatible with the prohibition Case 39/73 REWE-Zentralßnanz v Direktor of charges of equivalent effect, provided der Landwirtschaftskammer Westfalen-Lippe that they satisfy the condition laid down in [1973] ECR 1039). Bauhuis and in Commission v The Netherlands that their amount does not exceed the actual cost of the inspections in respect of which they were charged. 8. The Court has, however, taken the view that that prohibition loses its purpose where the inspections in question are prescribed by a Community directive designed to facilitate 10. The first question in effect asks the trade between Member States by providing Court to decide whether the method of for the carrying out of inspections in the charging fees applied by the Netherlands country of origin prior to export to other authorities satisfies that condition. Bakker Member States. In such a case, fees charged argues that the amount of the fees must for the inspections do not constitute charges directly reflect the actual cost of the indi- having an effect equivalent to customs vidual inspection, and adds that the calcu- duties 'provided that they do not exceed the lation of fees by reference to weight or actual cost of the inspection for which they value results in a form of collective were charged' (Case 46/76 Bauhuis v The financing which penalizes the big, efficient Netherlands [1977] ECR 5, paragraph 31). exporter. The Netherlands Government, on
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the other hand, argues that it is sufficient 12. The requirement that there should be a for the purpose of meeting the test laid 'sufficiently close connection' between the down in the Court's case-law if, in a given amount of the fees and the cost of the time-scale, the global revenue from all inspections does appear to be a significantly affected exporters in respect of inspections looser test than that laid down in Baubuis of a given category of produce is reasonably and in Commission v The Netherlands. proportionate to the global costs of those However, it should be borne in mind that, inspections. It adds that in view of the need as the Court confirmed in IFG, 'the health to pass on to exporters the indirect as well inspection of goods imported from as the direct costs of the inspections, an non-member countries is carried out in a individualized system of charging would be different factual and legal context from the impracticable and more costly than the inspection of goods originating in the calculation of fees on the basis of weight or Community . . . ' (paragraph 10).
Having value. regard to that different factual and legal context, I am of the view that it is not open to the Netherlands Government to rely on the IFG case in these proceedings, and that 11. The Netherlands Government relies in the relevant test is that laid down in Bauhuis particular on Case 1/83 IFG v Freistaat and in Commission v The Netherlands. Bayern [1984] ECR 349. That case concerned the compatibility with the prohibition of charges of equivalent effect of fees charged by a Member State in respect of inspections of meat imported
13. It is apparent from the wording used in from a non-member country, where the those judgments — that the amount of the Community directive concerning the health fees must not exceed the actual cost of the inspections applicable to imports from inspections — that that test is intended to be non-member countries was not yet wholly restrictive. In any event, since the test in force. In that situation the Court ruled governs the scope of an exception to a that: fundamental Treaty prohibition, it clearly must be narrowly interpreted and applied.
It follows that any fees charged must be directly related to the actual costs of the ' . . . a Member State cannot be prevented inspections carried out for the benefit of the from passing on to the importer, either at individual exporter. the time at which the import documents are issued or on the occasion of importation itself, not only the costs of specific inspections relating to the goods in question but also the burden of the administrative expenses involved in organizing the health 14. The requirement of a direct relationship controls. between the fees and the costs means in my view that only the direct costs of an inspection, such as, for example, labour or travel expenses, can be passed on to the The only limitation imposed by Community exporter, but not indirect costs such as the law in that regard is that there must be a administrative expenses of organizing the sufficiently close connection between the health inspections. By definition, indirect amount of the charge levied and the costs costs cannot be directly related to the involved in the controls' (paragraphs 17 inspection in an individual case, and to to 18). permit their passing on opens a door to
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possible abuse by national authorities of the The second question limited exception permitted by the Court. It is true that in the IFG case the Court auth- orized the passing on of indirect costs to importers: but, as already mentioned, that case was decided in a different factual and 17. The second question in effect asks legal context. I would add that in my view whether, in a situation where field there can be no objection if, for the sake of inspections must be carried out before the administrative convenience, a Member State destination of the plants is determined, and calculates direct costs on a fixed flat-rate where some 75% of the plants is eventually basis, for instance an hourly rate for a exported, Articles 12 and 16 of the EEC laboratory technician's work, provided, of Treaty permit the attribution to exports only course, that the rate is uniformly applied. of 75% of the costs of the inspections.
18. It has already been seen in relation to the first question that a system of charging fees for inspections by reference to gross 15. It is abundantly clear that a system of weight or invoice value is incompatible with charging fees by reference to gross weight the prohibition of charges of equivalent or invoice value cannot ensure a direct effect to customs duties because such a relationship between the fees charged and system cannot ensure a direct relationship the actual costs of the inspections. In its between the amount of the fees and the judgment of 11 July 1989 in Case 170/88 costs of the inspections. The arbitrary Ford España SA [1989] ECR 2305, the nature of such a system of charging is in my Court indeed ruled that a charge for the view accentuated where the system in customs clearance of imported goods addition seeks to ensure that a calculated by reference to the value of the predetermined proportion of total costs is goods could not be said to correspond to met from the fees. the costs incurred by the customs authorities or to the service rendered to the importer.
19. None the less, there remains an issue of substance in the second question put by the national court, which I would formulate as follows: assuming that fees are calculated and charged in such a way as to correspond 16. In my opinion, the answer to the first to the actual costs of the individual question should therefore be that Articles 12 inspections, is it compatible with Articles 12 and 16 of the EEC Treaty prohibit the and 16 of the Treaty to pass on those costs, charging of fees for inspections of or a proportion of them, to exporters only? consignments of plants (or parts thereof) intended for export to other Member States carried out in the framework of an inter- national convention on plant protection unless the amount of the fees does not 20. The Dutch Government argues that exceed the actual cost of the individual since only exporters require a phytosanitary inspections in respect of which they are certificate in order to market their produce, charged. the field inspections are in effect a service to
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exporters only: it is therefore appropriate were designed to facilitate the free that they alone should bear a proportionate movement of goods. part of the costs. Bakker and the Commission, on the other hand, argue that all producers, whether they export their 22. It it were established in this case that a produce or not, are capable of deriving a producer who sells his produce on the benefit from the inspections, which in effect domestic market also derives from the constitute a quality control, and that it is inspections a benefit equivalent to that therefore discriminatory to charge fees to obtained by exporters, for instance because exporters only. the inspections obviate the need for further controls, then the exclusion of the 21. In my view, it follows from Commission prohibition of charges having equivalent v The Netherlands (cited above) that the effect would no longer be justified, since in charging of fees to exporters only for such a situation the inspections would no inspections carried out in the framework of longer purely serve the purpose of facili- an international convention can be tating trade. However, if any benefit compatible with Articles 12 and 16 of the obtained is purely of a minor, ancillary Treaty. However, it should be borne in nature, then in my view the charging of mind that the exclusion of the fundamental exporters only would still be justified. It is prohibition of charges of equivalent effect in for the national court to determine as a that case (and in the earlier Bauhuis case) question of fact whether an equivalent was strictly justified by the Court by benefit does accrue to produce sold on the reference to the fact that the inspections domestic market.
23. Accordingly, the answer to the second question should be that where field inspections are carried out on plants in the framework of an international convention on plant health protection before it is determined w h e t h e r the plants are intended for export or for the domestic market, Articles 12 and 16 of the E E C Treaty do not prevent the charging of fees for those inspections in respect of the plants (or parts thereof) presented for export to other Member States but not those intended for the domestic market, unless it is established that producers of plants intended for the domestic market derive from the inspections a benefit equivalent to that obtained by exporters.
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