JUDGMENT OF 26. 2. 1975 — CASE 63/74 CADSKY v ISTITUTO NAZIONALE PER IL COMMERCIO ESTERO

In Case 63/74 Reference to the Court under Article 177 of the EEC Treaty by the Tribunale di Bolzano for a preliminary ruling in the action for an injunction pending before that court between

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

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations

Observations of the Netherlands Government

Observations of the Commission

As regards the first question

As regards the second question

As regards the third question

Observations of the Italian Government

Observations of Cadsky S.p.A.

As regards the first question

As regards the second question

As regards the third question

III — Oral procedure

Law

Costs

I —. Facts and procedure

1. In November 1973 and February 1974, W. Cadsky SpA sent by rail to Germany two consignments of salad vegetables, of a type unspecified in the order for reference. It had to pay the Istituto Nazionale per il Commercio Estero (hereinafter referred to as the ICE) two charges of 1440 lire and 1260 lire relating to quality control of the product and consequently to the affixing of a national export stamp.

2. Italian Decree Law No 2213 of 20 December 1937, which consolidates and amends the previous provisions in particular those of Law No 1272 of 23 June 1927, provides for a national stamp which is compulsory for exports of fresh and dried fruits, citrus fruits and vegetables (Article 1). The stamp is compulsary since products designated by ministerial decree to be among those in the large categories mentioned in Article 1 may not be exported without the stamp (Articles 3 and 10). The stamp is affixed if products conform with conditions relating to quality, selection, packaging and wrapping to be determined in each case (Article 3, amended by Law No 839 of 4 October 1966). The task of checking that these conditions are satisfied is entrusted to the ICE (Article 6), which also sees to the affixing of the stamp (Article 2). To meet the costs deriving from the tasks conferred on it, the ICE receives the revenue from a duty proportional to the quantities of fruits, citrus fruits and vegetables exported, even if they are not subject to the stamp (Article 9).

3. In the Community context, common quality standards have been provided for by Article 2 of Regulation No 23 on the progressive establishment of a common organization of the market in fruit and vegetables OJ No 30 of 1962, p. 965/62) reproduced in Article 2 of Regulation (EEC) No 1035/72 of 18 May 1972.

4. For the purpose of applying the standards adopted by the Community, Italy made use of the pre-existing system of the national export stamp, adapting it so that Community quality standards replaced the already existing national standards. In pursuance of the power provided by the Community rules, the Italian rules incorporated, as the official control mark, the national export stamp.

5. Considering that the charge imposed by the ICE constituted a charge having an effect equivalent to a customs duty on exports and was accordingly prohibited by Article 16 of the EEC Treaty with effect from 1 January 1962, the Cadsky Company commenced proceedings before the Tribunale di Bolzano against the ICE for repayment of the sum paid.

6. By order of 26 July 1974, the President of the Tribunale di Bolzano suspended the proceedings and, in accordance with Article 177 of the EEC Treaty, put the following questions to the Court:

7. The order for reference was lodged at the Court Registry on 27 August 1974.

II —. Written observations

III —. Oral procedure

1. By order of 26 July 1974, lodged at the Court Registry on 27 August 1974, the Tribunale di Bolzano has referred to the Court three questions on the interpretation of the concept of charges having an effect equivalent to customs duties on exports, appearing at Article 16 of the EEC Treaty.

2. The first question is whether the imposition of a pecuniary charge on exports of fruit and vegetable products, for the benefit of a public body distinct from the State, falls within the prohibition of charges having equivalent effect if the revenue therefrom is used to cover expenses relating to quality control at the frontier, the grant of certificates of inspection and the affixing of a national export stamp.

3. According to Article 9 of the EEC Treaty, the Community is to be based upon a customs union involving the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect.

4. In laying down provisions for their abolition, the Treaty does not distinguish between the purposes for which duties and charges were introduced or the uses to which the revenue obtained therefrom is put.

5. Consequently, any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on domestic goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed for the benefit of the State.

6. Although it is not impossible that in certain circumstances a specific service actually rendered may form the consideration for a possible proportional payment for the service in question, this may only apply in specific cases which cannot lead to the circumvention of the provisions of Articles 9 and 16 of the Treaty.

7. A quality control carried out by a Member State on products for export alone, coupled with a prohibition on the export of products which do not meet the standards of quality provided for by national law, cannot, in itself, constitute a service provided for the exporter, even if such an obstacle to the free movement of goods were to be considered legal in the absence of Community rules as to quality.

8. Even if the maintenance of the reputation of fruit and vegetable products of a Member State by the indirect expedient of a certificate of inspection and the affixing of a national export stamp is capable of encouraging exports of national products, this benefit relates to the general interest of all exporters, so that the individual interest of each of them is so ill-defined that a charge imposed in payment for this inspection cannot be regarded as consideration for a specific benefit actually and individually conferred.

9. A further question is whether the collection of charges having an effect equivalent to customs duties on exports, imposed on intra-Community exports, is prohibited by Article 16 of the Treaty in the case of all products, including fruit and vegetables, with effect from 1 January 1962, with the result that Article 13 of Regulation No 159/66/EEC (OJ of 27. 10. 1966, p. 3286/66), which fixes a later date, must be interpreted as referring only to the abolition of duties and charges on imports.

10. Article 38 (2) of the Treaty provides that, save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the Common Market shall apply to agricultural products.

11. By fixing the date for the abolition of customs duties and charges having equivalent effect at 1 January 1967, Article 13 of Regulation No 159/66 (OJ of 27. 10. 1966, p. 3286/66) can therefore only have referred to duties and charges on imports which were still in force between Member States.

12. It must therefore be stated in reply that a charge imposed by reason of the crossing of a frontier, relating to a mandatory inspection of the quality of products for export and resulting in the issue of a certificate and in the affixing of a national export stamp, constitutes a charge having an effect equivalent to a customs duty on exports, as prohibited in trade between the original Member States with effect from 1 January 1962, in pursuance of Article 16 of the Treaty, and this applies even if the recipient of the revenue from the charge is a body distinct from the State.

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

On those grounds, THE COURT, in answer to the questions referred to it by the Tribunale di Bolzano by order of 26 July 1974, hereby rules: