Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This dispute concerns the compatibility with Community law of the Danish internal rules relating to health inspections of groundnut products imported from other Member States. The Court is asked to decide whether such rules, which render the importation of the aforementioned products subject to a systematic health inspection and require the importers to bear the cost of it, are compatible with Articles 9 and 13 of the Treaty which prohibit customs duties and any charge having an equivalent effect.

2. The problem before the Court is, in essence, to establish whether an internal rule which makes importers bear the expenses involved in the inspection of goods coming from other Member States is lawful under Community law. I should point out at this juncture that the issue is not the lawfulness of the Danish system of health inspections but, I repeat, solely the lawfulness of the burden placed upon importers.

3. The Danish Government's defence then emphasizes that the internal provisions on health inspection of groundnuts are applicable to imported and national products alike. Since Denmark does not produce groundnuts, the vaunted equality of treatment is in fact of form alone; moreover, it may be observed that the Court has held that it is not essential for a charge having an effect equivalent to a customs duty to be discriminatory for the prohibition in Article 9 to apply. In support of that interpretation (see the judgment of 1 July 1969 in Case 24/68, Commission v Italy, cited above, in particular at paragraph 9 of the decision, and the judgment of the same date in Joined Cases 2 and 3/69, Diamantarbeiders v Brachfeld and Chougol [1969] ECR 211, in particular paragraphs 17, 18, 24 and 25 of the decision) the fact that the prohibition in question is applied objectively, that is to say, irrespective of the existence or otherwise of competing products in the importing country, is in fact decisive.

4. Let us now see whether the pecuniary charge referred to in the Danish provisions fulfils those requirements: that is to say, whether those provisions cover a whole sector of produce, and whether the area of application of the charge is sufficiently wide.

5. Finally, and in the alternative, the Danish Government relies upon the argument of good faith. If, it maintains, a Member State imposes a pecuniary charge upon the importers of certain products and does so in good faith, that is without the intention of obstructing Community trade, it is not fair to consider that it is guilty of having infringed Article 9 of the Treaty. In the present case, the defendant government adds, the fact that, in the final analysis, the charge is intended to serve the protection of health demonstrates good faith. It must therefore be assumed that if equivalent national products existed they would be subject to the same charge.

6. For the reasons set out above, I suggest that the Court decide the action brought by the Commission against the Kingdom of Denmark and lodged at the Court Registry on 26 May 1982 as follows:

1 Translated from the Italian.