C-130/93

JUDGMENT OF 7. 7. 1994 — CASE C-130/93

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 7 July 1994 *

In Case C-130/93,

R E F E R E N C E to the Court under Article 177 of the EEC Treaty by the Hof van Beroep, Brussels, for a preliminary ruling in the proceedings pending before that court between

Lamaire N V

and

LAMAIRE v NDALTP

Advocate General: G. Tesauro, Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of the Commission of the European Communities, by Blanca Rodriguez Galindo and Ben Smulders, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Nationale Dienst voor Afzet van Land- en Tuinbouwprodukten, represented by Frederic Steghers, of the Brussels Bar, and the Commission at the hearing on 24 March 1994,

after hearing the Opinion of the Advocate General at the sitting on 26 April 1994,

('Lamaire'), which trades in potatoes in Belgium, concerning the lawfulness of a compulsory contribution to the National Board levied on potato exports.

3 The National Board was established by the Belgian Law of 27 December 1938 (Belgisch Staatsblad of 26 January 1939), as amended by the Law of 11 April 1983 (Belgisch Staatsblad of 24 September 1983), to promote the sale at home and abroad of agricultural, horticultural and fishery products.

4 Under Article 4(c) of the law, the National Board may 'levy a compulsory contri- bution in respect of each product or group of products ... on natural and legal per- sons who produce, process, transport, sell or market agricultural, horticultural or fishery products'.

5 Those compulsory contributions were laid down by Royal Decree of 15 May 1986 (Belgisch Staatsblad of 19 June 1986), as amended by Royal Decree of 14 July 1987 (Belgisch Staatsblad of 29 July 1987), Article 4 of which reads as follows:

'The annual compulsory contributions for the purposes of promoting the sale of products falling within the remit of the advisory department for "Produce from large-scale farming" have been decided as follows with respect to potatoes:

1. a fixed contribution of five thousand francs for accredited undertakings engaged in preparing, packing or peeling potatoes, and for potato wholesalers, brokers and merchants;

6 It is apparent from the documents before the Court that Lamaire has a significant export trade. In the course of its business, Lamaire paid for 1986 and 1987 the con- tributions relating to potato exports, provided for by Article 4(4) of the Royal Decree of 15 May 1986, but it refused to pay the contribution for 1988.

7 In proceedings before the Rechtbank van Eerste Aanleg (Court of First Instance), Brussels, Lamaire claimed that it was entitled to reimbursement of the contribu- tions paid to the National Board for 1986 and 1987 and that it was not obliged to pay the contribution required by the National Board for 1988, since the legal basis for the payments made or to be made was Article 4(4) of the Royal Decree of 1986, which was incompatible with Articles 9 and 12 of the EEC Treaty.

s By judgment of 15 November 1991, the Rechtbank van Eerste Aanleg, Brussels, dismissed the claim for reimbursement of the contributions for 1986 and 1987 and upheld the National Board's counter-claim for payment of the contribution for 1988.

I - 3223

JUDGMENT OF 7. 7. 1994 — CASE C-130/93

9 The Hof van Beroep, Brussels, was uncertain whether the criteria governing the charging of the levy set out in the abovementioned royal decrees were compatible with Articles 9 and 12 of the Treaty which it recognized as having direct effect. It therefore stayed the proceedings and sought a preliminary ruling from the Court on the following question:

v As the Court has recognized on many occasions (see Joined Cases 2/69 and 3/69 Diamantarbeiders v Brachfeld [1969] ECR 211; Case 46/76 Bauhuis v Netherlands [1977] ECR 5; Case 132/78 Denkavit v France [1979] ECR 1923; Case 18/87 Com- mission v Germany [1988] ECR 5427 and Case 340/87 Commission v Italy [1989] ECR 1483), the concept of charges having equivalent effect to customs duties on imports and exports encompasses any pecuniary charge, however small and what- ever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier.

i4 According to that case-law, however, a charge which is imposed on goods by rea- son of the fact that they cross a frontier may escape classification as a charge hav- ing equivalent effect as prohibited by the Treaty, if it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products, and imported or exported products alike, if it represents pay- ment for a specific service actually and individually rendered to the trader of a sum in proportion to that service or, in certain circumstances, if it is levied on account of inspections carried out for the purpose of fulfilling obligations imposed by Community law.

is Moreover, the objective of Articles 9 and 12 of the Treaty is solely to prohibit charges having equivalent effect to customs duties with respect to trade 'between Member States' and it follows that those provisions do not concern the importa- tion or the exportation of products coming from or destined for non-member countries (see Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, paragraph 22).

20 Accordingly, a compulsory contribution levied in respect of the exportation of potatoes, such as the charge levied for the National Board pursuant to Article 4(4) of the Belgian Royal Decree of 15 May 1986, as amended, must be regarded as a

I - 3226

LAMAIRE v NDALTP

charge having equivalent effect to a customs duty on exports and as such prohib- ited by Articles 9 and 12 of the Treaty.

21 In the present case, it is for the national court to ascertain to what extent Lamaire's exports were destined for other Member States or for non-member countries. It follows from the foregoing that only exports in the latter category may be subject to the contribution in question.

22 Accordingly, it should be stated in reply to the question from the national court that Articles 9 and 12 of the Treaty preclude national legislation from levying a compulsory contribution on exports of agricultural products to other Member States if the contribution in question is not levied on account of inspections carried out in order to fulfil obligations under provisions of Community law, if it is applied only to exports of the products in question and does not relate to a general system of internal dues applied systematically and in accordance with the same cri- teria, irrespective of the origin, exporting country or destination of the goods sub- ject to it and, lastly, if it does not represent consideration for a specific or individ- ual benefit provided to the trader in an amount proportionate to that service.

in answer to the question referred to it by the Hof van Beroep, Brussels, by judg- ment of 25 March 1993, hereby rules:

Articles 9 and 12 of the EEC Treaty preclude national legislation from levying a compulsory contribution on exports of agricultural products to other Mem- ber States if the contribution in question is not levied on account of inspections carried out in order to fulfil obligations under provisions of Community law, if it is applied only to exports of the products in question and does not relate to a general system of internal dues applied systematically and in accordance with the same criteria, irrespective of the origin, exporting country or destination of the goods subject to it and, lastly, if it does not represent consideration for a specific or individual benefit provided to the trader in an amount proportion- ate to that service.

Mancini Kakouris Schockweiler

Kapteyn Murray

Delivered in open court in Luxembourg on 7 July 1994.

R. Grass G. F. Mancini