C-209/89
ECLI:EU:C:1991:1
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COMMISSION v ITALY
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 9 J a n u a r y 1991 *
Mr President, Consequently, where, for example, a service Members of the Court, of 50 minutes' duration is provided simultaneously to five undertakings, each must pay the charge corresponding to one hour since it is not divisible.
1. In the present case the Commission seeks a declaration from the Court that the Italian Republic has failed to fulfil its obligations under Articles 9, 12, 13 and 16 of the EEC Treaty by requiring from each undertaking 4. According to the Commission, that individually, where services are provided method of calculation is in breach of the simultaneously to several undertakings in prohibition of charges having equivalent connection with the completion of customs effect since it takes no account of the time actually employed by staff in providing the formalities in intra-Community trade, service sought by the undertakings payment of an amount disproportionate to concerned. the cost of the services provided.
2. It should be recalled first of all that the 5. The Italian Republic disputes that disputed Italian provisions relate to the analysis, pointing out in limine that the total charges payable by undertakings where annual receipts from the charges paid by customs formalities are completed outside traders are lower than the cost which the customs area or outside normal office providing the service to undertakings entails hours. for the public purse. In its view, there is no alternative to the system. A 'division' of the time employed would lead to a division of the hourly charge into derisory amounts which would ultimately be absorbed by the administrative costs of such a calculation. 3. Those rules provide that where services Furthermore, it would be impracticable to are rendered to several undertakings simul- demand payment of the charge from a taneously, 'the staff is entitled to a single single undertaking. In its rejoinder, the payment, commensurate with the nature and Italian Government has emphasized that the duration of the most highly-paid service amount of the hourly charge which under- provided', and each undertaking must 'pay takings are required to pay represents separately the charges due for the services approximately one-third of the actual which it has requested, independently of the amount paid to staff per hour, so that the charges paid by the other undertakings'. charge paid by undertakings is the equi-
* Original language French
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valent in fact of a flat-rate payment for 20 restrict the scope of the prohibition on minutes' work. That method complies with charges having equivalent effect. the principle of proportionality if account is taken of the average duration of each operation.
9. Next, it should be pointed out that the oral procedure has clarified the circum- stances in which a service can be 'simultan- eously' rendered to several undertakings. In 6. First of all, the Italian Republic maintains fact the Commission explained that such is in its defence that the circumstances in the case where consignors present them- which a service provided simultaneously to selves at customs and carry out at the same several undertakings gives rise to payment time the requisite formalities for several of several charges correspond to specific undertakings. cases involving a number of small batches packed together in bulk consignments or awaiting 'shipment', in respect of which, moreover, a request for customs services to be provided outside normal working hours or outside the customs area could hardly be 10. In such cases, may all the undertakings justified on grounds of urgency. Apart from be required to pay the charge in respect of a those cases, practically all of the formalities full hour? In its case-law the Court 1 has completed outside the customs area or long since established that only the amounts outside normal working hours involve charged to traders by way of consideration consignments of goods belonging to several for the provision of a service can escape the owners shipped under the system known as prohibition on charges having equivalent 'groupage', in which the carrier is treated as effect. Here, it is common ground that a a single undertaking by the Italian rules service is provided for undertakings, but it is which consequently impose a single charge. the method of calculation employed by the The Italian Republic thus appears to draw Italian authorities which is at issue. attention to the highly exceptional nature of the cases at issue and their minor signif- icance.
11. It should be noted that a flat-rate assessment of the cost of an inspection, such as a fixed hourly rate, has been accepted by the Court in its case-law. 2 However, 7. The Commission denies that these are acceptance of a standard hourly rate borderline cases and believes there to be an certainly does not mean that the charge per infringement even though the situations in hour may be applied on a flat-rate basis, question may be unusual. irrespective of the time actually employed by the department concerned in customs clearance formalities. The method of calcu- lation in force in Italy may lead, for
1 — Judgments in Case 46/76 Baubuis [1977] ECR 5, Case 8. I am entirely of the same opinion and 132/78 Denkami [1979] ECR 1923 and Case 132/82 would ask the Court not to endorse the Commission v Belgium [1983] ECR 1643. 2 — Judgment in Case C-111/89 Bakker[1990]ECR I-I735, at existence of a de minimis rule which would paragraph 13.
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example, to 15 undertakings being required must, at the very least, be argued more to pay an hour's charge each for no more cogently. than half an hour's work in all. In such a case the disputed system of calculation is manifestly arbitrary since it is wholly unrelated to the time actually employed by customs staff for the benefit of the under- takings concerned. In those circumstances 14. That observation serves, furthermore, to the payment required bears no relation to underline the complete lack of transparency the cost which the services provided entail which characterizes the system applied by for the Italian State. Italy and the disproportionate consequences to which it may lead in certain cases to the detriment of undertakings, as the aforesaid example shows. Let me point out in that regard that, even if the assertion that the charge represents only one-third of the cost per hour for the Italian finance authorities is 12. As I have said, however, the Italian true, the amount which undertakings are Republic claims that the hourly charge in required to pay exceeds the real cost where fact represents only one-third of the amount more than three undertakings are involved which the authorities pay their officials in simultaneously, a situation whose plausi- respect of overtime work. bility has not been disputed by the Italian State.
13. On what basis does the defendant arrive 15. Clearly the Court cannot implicitly at this conclusion? It is clear from the demand the introduction of an absurd figures submitted by the Italian State itself system requiring a minute-by-minute, that although the hourly charge which second-by-second, calculation of the time undertakings are required to pay does actually employed for the benefit of each indeed correspond to one-third of the rate undertaking. But neither does it seem at all of pay for overtime work 3where the service unreasonable to divide the hourly charge by is provided outside normal working hours the number of undertakings involved. In my within the customs area, 4 it represents view, the elementary arithmetic which two-thirds of the rate for overtime where division calls for cannot entail an excessive customs officials travel to the undertakings' administrative cost. The Italian State claims premises. 5No doubt the charges paid in the that the amounts which it could collect in case of Guardia di Finanza officers those circumstances would be derisory. That completing formalities would be lower and, argument does not stand up to close moreover, they would also receive various analysis. On the one hand, it suggests that fees. In any event, however, the categorical undertakings must bear all the incon- statement that the hourly rate charged veniences of the system adopted by having corresponds to the amount paid to officials to pay, if necessary, a charge which is out in respect of only 20 minutes' work of all proportion to the cost of the service provided. On the other hand, and above all, 3 — LIT 15 000 on average according io the Italian it would be quite permissible for the Italian Government, see p. 3 of the defence State to reassess the hourly charge if it did 4 — LIT b 200, see defence, p. 2 not reflect, as the defendant maintains, the 5 — LIT 10 200, ibid, p. 2.
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actual cost entailed by an hour's work of proportionality inasmuch as each under- employed in carrying out the operations at taking is required to pay the charge issue. In any event, it seems clear that the provided for irrespective of the charges paid disputed rules are in breach of the principle by the other undertakings.
16. The Court should therefore declare that the defendant has failed to fulfil its obligations and order it to pay the costs.
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