JUDGMENT OF 14. 12. 1972 — CASE 29/72 MARIMEX v AMMINISTRAZIONE FINANZIARIA ITALIANA

In Case 29/72 Reference to the Court under Article 177 of the EEC Treaty by the President of the Tribunale di Trento for a preliminary ruling in the action pending before that before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner (Rapporteur) and J. Mertens de Wilmars, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted pursuant to Article 20 of the Statute

1. The admissibility of the question

2. The question whether the charges imposed for veterinary inspections are charges having an effect equivalent to customs duties

3. The question whether the dues relating to the veterinary inspection at the frontier must be considered as internal taxation within the meaning of Article 95 of the Treaty

Grounds of judgment

The extent of the derogation provided for in Article 36 of the Treaty

The classification of the disputed charges with regard to Article 22 of Regulation (EEC) No 805/68

Costs

I —. Facts and procedure

II —. Observations submitted pursuant to Article 20 of the Statute

1. The admissibility of the question

2. The question whether the charges imposed for veterinary inspections are charges having an effect equivalent to customs duties

(a). the relevant due was established by a sovereign measure of the Member State in question;

(b). it is collected on crossing the frontier;

(c). it results in an increase in the price of the relevant goods;

(d). the due does not constitute the consideration for a service rendered in the exclusive and actual interest of the private importer;

(e). since the veterinary inspection at the frontier is intended to protect a public interest, that is to say the health of the national livestock and of humans, the due is collected not as recompense for a particular service but to protect the interest of the public at large;

(f). the concept of a charge having equivalent effect referred to in Article 22(1) of Regulation (EEC) No 805/68 is identical with the concept in the EEC Treaty; thus from 29 August 1968 the regulation has also abolished the due in question.

(a). it must be proportional to the service rendered (in the present case to the quantity of meat inspected),

(b). it must remain within the limits of the costs actually incurred in the inspection.

(a). the relevant service must be an administrative service constituting a definite and verifiable benefit with regard to the goods on which the charge is imposed;

(b). the charge must be proportionate to such benefit.

3. The question whether the dues relating to the veterinary inspection at the frontier must be considered as internal taxation within the meaning of Article 95 of the Treaty

A —. Marimex lists the following arguments against classifying the charges in question as the internal taxation referred to in Article 95 of the EEC Treaty:

B —. If the due for the sanitary inspection at the frontier can be classified as internal taxation and not as a charge having equivalent effect, Marimex maintains that the imported goods suffer discrimination. The most important factors which it adduces in support of its argument are as follows:

(a). they are not always imposed by the State but may also be imposed by subordinate local bodies;

(b). they are not invariably imposed upon the goods but can also be imposed upon the undertakings which produce them;

(c). even if they were imposed upon the products, they would not always be imposed for inspections for reasons or purposes similar to those of the inspections prescribed for imported goods.

A —. Differences of this nature are irrelevant to the applicability of Article 95 and in consequence the distinction between internal taxation within the meaning of the said article and charges having an effect equivalent to a customs duty. The state within the meaning of the Treaty must be understood in its widest sense, that is to say both as an entity and as the subject of international law.

B —. The application of Article 95 is excluded if the charges which form the counterpart of the charges imposed for the sanitary inspection of imported goods are charges imposed upon businesses and undertakings handling similar domestic products instead of upon such products themselves. In that case it is impossible to compare the amount of the charge imposed upon imported products and that imposed upon similar domestic products.

C —. In that case it is likewise impossible to concede that the correspondence required by Article 95 exists. Owing to the differences in the subject-matter and bases of the two categories of charges, comparison of the amounts imposed upon the goods is a practical impossibility. Those differences also give rise to a practice intended to extend internal controls on domestic products to imported products despite the fact that the latter have already undergone an inspection at the frontier. Such a practice is inevitable in view of the delicate nature of the relevant products and the variety of their intended uses.

1. By an order of 17 May 1972, which was received at the Court Registry on 26 May 1972, the President of the Tribunale di Trento submitted a question to the Court on the interpretation of Article 22(1) of Regulation (EEC) No 805/68 of the Council on the common organization of the market in beef and veal (OJ, Special Edition, 1968 I, p. 187).

2. In the question submitted it is asked whether a pecuniary charge imposed when the frontier is crossed on the ground of the sanitary inspection of cattle and of beef and of veal must be considered as a charge having equivalent effect.

3. The Government of the Italian Republic considers that since sanitary inspections are permitted by Article 36 of the Treaty it follows that the imposition of pecuniary charges for such inspections is also in accordance with the Treaty.

4. Article 36 of the Treaty provides that: The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports … justified on grounds of … the protection of health and life of humans, animals….

5. Consequently, although Article 36 does not prevent sanitary inspections nevertheless it cannot be interpreted as thereby permitting the imposition of charges levied on imported goods subjected to the said inspections and intended to cover the costs thereof.

6. The prohibition, in trade between Member States, of all customs duties and of all charges having equivalent effect refers to all charges demanded on the occasion or by reason of importation which, imposed specifically on imported products and not on similar domestic products, alter their cost price and thus produce the same restrictive effect on the free movement of goods as a customs duty.

7. Since this prohibition does not admit of any distinction according to the aim in view in levying the pecuniary charges for the abolition of which it provides, it also includes fees demanded for sanitary inspections carried out by reason of the importation of goods.

8. Consequently pecuniary charges imposed on the grounds of the sanitary inspection of products when they cross the frontier and determined in accordance with special criteria which are not comparable with the criteria employed in fixing the pecuniary charges imposed upon similar domestic products are to be considered as charges having an effect equivalent to customs duties.

9. The costs incurred by the Government of the Italian Republic, the Government of the Kingdom of the Netherlands and the Commission of the European Communities, which submitted observations to the Court, are not recoverable; as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action before the national court, the decision as to costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Government of the Italian Republic, the Commission of the European Communities and Marimex S.p.A.; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 36 and 177; Having regard to Regulation (EEC) No 805/68 of the Council, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the question submitted to it by the Tribunale di Trento by order of 17 May 1972, hereby rules: