JUDGMENT OF 11. 10. 1973 — CASE 39/73 REWE-ZENTRALFINANZ v LANDWIRTSCHAFTSKAMMER WESTFALEN-LIPPE

In Case 39/73 Reference to the Court under Article 177 of the EEC Treaty by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen for a preliminary ruling in the action pending before that Court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen, and Lord Mackenzie Stuart (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Statute

A — Observations submitted by the plaintiff

First Question

Second Question

B — Observations of the Commission of the European Communities

First question

Second question

Final observation

Grounds of judgment

Costs

I —. Facts and procedure

(a). Does the term charges having an effect equivalent to customs duties on imports (Article 13 (2) EEC Treaty) also include administrative charges for the phyto-sanitary examination (in the present case fruits of plants) on the import from one Member State of the European Economic Community into another?

(b). If so, does this also apply if the charge provided for merely covers, or does not even cover, the cost of the examination?

II —. Observations submitted under Article 20 of the Statute

A —. Observations submitted by the plaintiff

B —. Observations of the Commission of the European Communities

1. By order dated 19 February 1973, lodged with the Registry of the Court on 9 March 1973, the Oberverwaltungsgericht für das Land Nordrhein-Westfalen submitted two questions of interpretation of the concept of charges having an effect equivalent to customs duties on imports contained in the opening sentence of Article 13 (2) of the EEC Treaty.

2. The first question is directed to whether a pecuniary charge imposed for reasons of phyto-sanitary examination carried out on vegetable substances at the time when they cross the frontier must be regarded as a charge having an effect equivalent to customs duties within the meaning of Article 13 (2) of the Treaty.

3. The concept of charges having an effect equivalent to customs duties on imports is directed to any charge exacted at the time or because of import, which, specifically affecting an imported product to the exclusion of a similar domestic product, has the same restrictive effect on the free movement of goods as a customs duty.

4. Although it is not ruled out that there may be certain circumstances in which a particular service rendered may possibly give rise to some consideration, which should not exceed either the value or the cost of the service, they can only be special cases which cannot lead to the provisions of Article 13 of the Treaty being circumvented.

5. Consequently, pecuniary charges, whatever their amount, imposed for reasons of phyto-sanitary examination of products when they cross the frontier, which are determined according to criteria of their own, which criteria are not comparable with those for determining the pecuniary charges attaching to similar domestic products, are deemed charges having an effect equivalent to customs duties.

6. The costs of the Commission of the European Communities, which has submitted observations to the Court, cannot be reimbursed, and since as regards the parties in the main action the present proceedings are a step in the action pending before the national court, the question of 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 arguments of the plaintiff in the main action and the Council of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 13 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, 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 questions referred to it by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen by order of that court dated 19 February 1973, hereby rules:

1 Pecuniary charges, whatever their amount, imposed for reasons of phyto-sanitary examination of products when they cross the frontier, which are determined according to criteria of their own, which criteria are not comparable with those for determining the pecuniary charges attaching to similar domestic products, are deemed charges having an effect equivalent to customs duties.

2 The activity of the administration of the State intended to maintain a phyto-sanitary system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge.