Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The cases to which this opinion refers originate in two actions which the Commission brought under Article 169 of the EEC Treaty, against the Kingdom of Belgium (Case 132/82) and the Grand Duchy of Luxembourg (Case 133/82). According to the applicant, the defendant States have failed to fulfil their obligations under Articles 9 and 12 of the Treaty inasmuch as they levy charges when goods which originate in a Member State or are in free circulation are present at a special store in a public warehouse.

2. The provisions to which I have referred may be summarized as follows. The Belgian and the Luxembourg legislation on customs warehouses and temporary storage (the Law of 20 February 1978 and the Royal Decree of 29 January 1979, Moniteur Belge [Belgian Official Gazette] 1978, p. 3174 and 1979, p. 2596 in the case of Belgium; Ministerial Regulations of 21 April 1978 and 29 January 1979, Mémorial [Luxembourg Official Gazette] 1978, p. 508 and 1979, p. 1189 in the case of Luxembourg), provide that storage charges on the goods deposited are payable to those responsible for the running of the public warehouses. The warehouses are generally made available to importers by municipal and port authorities. The latter also collect the charges while the part played by the State is to fix the maximum amount and to lay down rules for the payment thereof. In particular Articles 25 to 28 of the Belgian Law provide first that the charges are calculated at a flat rate with reference to the weight of the goods and to the type of operation involved; secondly they must not exceed 5.50 francs per package or per 100 kg if the goods are unloaded within the store; 3.50 francs per packet or per 100 kg if the load is discharged in the loading bay or the yard; and 13 francs per tonne (with a maximum of 130 francs and a minimum of 58 francs per truck, lorry or trailer), if, with the permission of the customs authorities, the goods are not unloaded.

3. May I comment briefly on the events which preceded the actions. The Commission took the view that the charges on goods presented at special stores constituted charges having an effect equivalent to customs duties and as such were prohibited by the Treaty. It therefore commenced the procedure laid down by Article 169 with a letter of formal notice which was sent to Belgium (2 August 1978) and to Luxembourg (16 February 1981). The two Governments replied that the charges in question merely represented payment for a service benefiting the importers which was actually and individually rendered to the latter. However, the Commission was not convinced by their arguments. In consequence it issued reasoned opinions of 13 March 1981 (Belgium) and 8 December 1981 (Luxembourg). Only the Belgian Government replied, but reaffirming its own view. At that point the Commission brought before the Court the two actions which were lodged on 23 April 1982.

4. As the Court is aware, Title I of the EEC Treaty contains the fundamental prohibitions relating to customs duties. Thus Article 9 prohibits customs duties on imports and all charges having equivalent effect for products originating in Member States and for products coming from third countries which are in free circulation in the Community. Article 12 prohibits Member States from introducing or increasing financial charges of the same type.

5. Indeed, it is on that very exception that the defendant governments base their defence. In the first place, they maintain that the service consists in the provision and use of the infrastructures which the special stores contain. The importers occupy the buildings and the parking areas where their goods are guarded by the administration. It should be added that, according to both texts, the goods are, in general, actually deposited in the special stores and the transaction is not fictitious. That is established by Article 34 of the Belgian Law, according to which the goods may be stored there for a maximum period of 15 days, in the course of which the importer must declare what he intends to do with them. Finally, it is true that customs operations are carried out in the stores. It is equally true, nevertheless, that the event giving rise to the charge is not the customs clearance but the use of the facilities. The Belgian Government states that it is pertinent to note that Mr Advocate General Roemer considered as representing payment for a service and therefore lawful charges for customs clearance effected at night or on Sundays and public holidays and for the use of bonded warehouses and experts (Joined Cases 52 and 55/65 [1966] ECR 159 at p. 178).

6. The Commission disagrees. In its view the charge in question is closely connected with customs operations which Community provisions require to be free of charge wherever they are carried out. The only benefit which the importers obtain in return for their payment is the possibility of presenting the goods for customs clearance near the place at which the goods are to be used. That is not sufficient for the relationship to be regarded as bilateral, as the defendant governments claim it should be. Thus the use of the stores cannot be said to be genuinely optional. That is shown by the lack of a connection between the amount of the charge and the duration of the relationship, and even more forcefully, by the fact that the importer must pay the charges even if he has obtained an exemption from storage.

7. I consider another objection raised by the Commission to be of less importance. According to the defendant governments, the fact that the storage charges are not levied by the State, but by the municipal and port authorities is a strong indication that the charges are lawful. In their view that fact emphasizes the analogy with payments made by importers to private undertakings when they use their warehouses. The Commission refutes that proposition by citing the established case-law of the Court according to which a charge levied for customs clearance does not cease to be regarded as a charge having equivalent effect merely because the State has not itself collected it or received the profits thereof. (See judgments of 1 July 1969, Joined Cases 2 and 3/69; judgment of 10 July 1969, Case 24/68; judgment of 26 February 1975, Case 63/74, all cited above; judgment of 18 June 1975, Case 94/74 IGAV v ENCC [1975] ECR 699; judgment of 25 January 1977, Case 46/76, also cited above.) That claim would be valid if the charges in question were actually levied for customs clearance; it has now been established that in this case that possibility is excluded.

8. In conclusion I consider that storage charges levied in Belgium and in Luxembourg for the use of special stores of public warehouses on imported goods constitute the consideration for a service individually rendered to the importer from which the latter gains a real benefit. They do not therefore come within the concept of a charge having an effect equivalent to a customs duty.

1 Translated from the Italian.