Opinion of Mr Advocate-general Reischl

Mr President,

Members of the Court,

These proceedings are concerned with the interpretation of Article 16 of the EEC Treaty which provides that Member States shall abolish between themselves customs duties on exports and charges having equivalent effect by the end of the first stage at the latest.

The plaintiff in the main action, a dealer residing in the Netherlands, imported into the Netherlands at the end of 1970 swine from other Member States. Between August 1966 and July 1971 he also exported swine, swine for breeding, bovine animals, bovine animals for breeding and horses from the Netherlands to other Member States. In accordance with the Netherlands' Law on livestock and the implementing rules adopted thereunder which provide that the import and export of particular bovine animals is subject to an inspection by the veterinary authority the goods in question were inspected. The plaintiff had to pay fees for these inspections, the particulars of which had been fixed by the Minister for Agriculture. Since he considered that this was unlawful he sued the Netherlands State for a refund.

As far as imports were concerned the plaintiff regards the fees as charges having equivalent effect and rests this view on the fact that a corresponding prohibition applying to intra-Community trade had direct effect in the Member States as from 1 January 1970. In so far as the fees were charged on his exports the plaintiff takes the view that they are charges having an effect equivalent to customs duties. In this connexion a corresponding prohibition relating to intra-Community trade had direct effect in its entirety as from 1 January 1962.

The Netherlands Government has raised a number of objections to these views.

It submits that the inspection of imports is part of a general system of health inspection in the Netherlands and that the fees charged for it are also part of a general system, because they are levied on domestic livestock as well. In this connexion the court making the reference, with regard to the Netherlands Government's argument that the fees at issue could, not be compared with various domestic fees which sometimes vary considerably from place to place, came to the conclusion in a provisional consideration of the case, that they must in fact be charges having equivalent effect.

With reference to the inspection of livestock on the occasion of exportation the Netherlands Government also argues that the exporter derives a benefit from the services provided in this way because he is given a guarantee that he can import the inspected animals into other EEC countries. The fees charged for this, which only cover the costs, are to be regarded as consideration for a service provided by the administration. On this point the court making the reference found that in fact there is in this case no benefit within the meaning of the decision in Case 24/68 (Judgment of 1 July 1969, Commission of the European Communities v Italian Republic [1969] ECR 193), the Netherlands State having itself conceded that its appraisal lacks certainty and that it is consequently impossible to establish that there is a specific benefit.

The Netherlands State also went on to submit that the method which it adopts is in keeping with a principle of economic policy that the costs incurred in connexion with a product are to be borne by that product and in consequence by the consumer of it. However the court did not accept this for the reason that the costs of the veterinary inspection were incurred in the public interest, namely for the protection of health and life of humans and animals.

Finally the argument that if the costs for the veterinary inspection were met from general public funds they would have to be called concealed aids which are illegal under the Treaty was countered by the court with the view that charging fees to exporters may be discriminatory because as a result the goods are in a less favourable position on the market of the country of destination. Furthermore it has not been shown that exported bovine animals are in a more favourable position in the country of destination after the veterinary inspection.

Finally the court making the reference was faced with the problem that in the case of bovine animals and swine an inspection on exportation is provided for in Council Directive 64/432/EEC (OJ English Special Edition 1963-1964, p. 164) which has already been mentioned in the Simmenthal case. It is true that the court is inclined to regard this factor as irrelevant to its decision. On this point reference was made to the judgment in Case 29/72 (S.p.A. Marimex v Italian Finance Administration, [1972] ECR 1309) and it was said that the performance of the obligations laid down in the Directive does not necessarily mean that fees have also to be charged for this. The court also referred to the fact that the aim of the directive is the removal of obstacles to trade and that charging a fee, which has to be regarded as an indirect obstacle to trade, is scarcely compatible with this aim. However, since the Court of Justice has not so far expressly ruled on this particular problem, the court making the reference by an interlocutory judgment of 10 May 1976 stayed the proceedings and referred to the Court the following questions:

It is to be inferred from the statement of the court making the reference that the disputed fees are payable for a compulsory veterinary inspection carried out in the case of exports before the frontier is crossed. Such fees on the other hand do not apply to goods marketed on the home market. Therefore they are not to be regarded as part of a general system of fees under which products marketed on the home market and goods for export are charged in accordance with the same criteria. Further, the fees are not to be treated as consideration for a service provided by the administration.

If such reasoning is adopted there can be no doubt that according to the relevant case-law of the Court to date — in my opinion this does not require any further substantiation — the disputed fees as such are to be designated as charges having an effect equivalent to customs duties. There remains therefore only the question whether any justification for them can be found in the Treaty. In the view of the court making the reference this question must be answered with due regard to the considerations mentioned in the questions which have been quoted. However I consider, as the Commission does, that it is not right to limit the examination of this question in this way. Having regard to the fact that the court making the reference has only carried out a preliminary appraisal of the points which have just been mentioned and in view of the submissions of the Netherlands Government in the proceedings pending before this Court the examination should on the contrary be widened so as to include even those aspects which the court making the reference has already rejected as irrelevant in its judgment. We should therefore also go into the question whether the disputed fees cannot after all be regarded as consideration for services provided by the administration; furthermore we should consider whether charging such fees is in accordance with a general principle of economic policy and for that reason can be justified and finally we should also look into the question whether the objection can be raised that their elimination might infringe the provisions in the EEC Treaty relating to aid, because in that case the only possible method of financing the fees in from public funds.

1 Translated from the German.