Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. This dispute is about the compatibility with Community law of the Belgian rules concerning health checks on imports of poultrymeat from other Member States. The Court is asked to decide whether those rules, which make importation of the said products subject to a health check at the expense of the importers, is compatible with Articles 9 and 12 of the EEC Treaty containing the prohibition of customs duties and charges having an equivalent effect.

2. By a letter of 27 March 1981, the Commission initiated the procedure under Article 169 against the Belgian Government contending that the fee for imported meat was a charge having an effect equivalent to a customs duty and was thus contrary to the prohibition contained in Article 9 et seq. The Government replied on 10 June 1981. It contended that the fee laid down for the checks was not in respect of the importation of the goods, but rather in respect of the inspection which was carried out pursuant to Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 185). It is a fact however that the fee charged to importers is equivalent to that borne by proprietors of poultry slaughtered in Belgium, so that it may be said that its existence avoids discrimination against home-produced goods.

3. As will be evident from those facts, the problem which has been submitted to the Court is to ascertain whether a national rule which obliges the importer to bear the costs of checks carried out on goods coming from other Member States is permissible under Community law. It is not therefore the Belgian system of health checks which is at issue, but, I repeat, solely the legality of the fee charged to the importers.

4. The Belgian Government relies on four arguments in support of its contention that the inspection charges levied on poultry imported from other Member States are compatible with Community law. Those charges, it contends, (1) constitute internal taxation of the kind covered by Article 95, (2) do not come within the scope of the prohibition in Article 9 because they represent payment for a service rendered to the importer on an individual basis, (3) are in respect of checks required by Community law itself and in particular by Directive 71/118 and (4) concern checks not provided for in the aforementioned directive but which remain within the powers of the State and are intended to ascertain whether the meat contains particular dangerous substances.

5. Let us now pass to argument No (2). Belgium contends that the charging of the contested fees must be regarded as not coming within the scope of the prohibition contained in Article 9 because the check is in the nature of a service rendered to the importer on an individual basis. In support of that argument, the defendant Government relies on the judgment of 1 July 1969, Case 24/68, Commission v Italy [1969] ECR 193, paragraph 11, the judgment of 11 October 1973, Case 39/73 REWE-Zentral-Finanz v Direktor der Landwirtschaftskammer Westfalen-Lippe [1973] ECR 1039, paragraph 4; the judgment of 5 February 1976, Bresciani, op. cit.; the judgment of 25 January 1977, Case 46/76 Bauhuis, op cit., paragraphs 7 to 11; and the judgment of 12 July 1977, Case 89/76 Commission v Netherlands State [1977] ECR 1355.

6. The last two arguments are based on the aforementioned Directive 71/118. Belgium points out first that Article 9 of that directive requires the importing country to make provision for the inspection of imported meat to establish whether it has become unfit for human consumption and whether the requirements laid down by the exporting country have been complied with. It then draws attention to the case-law of the Court according to which fees charged by way of consideration for inspections prescribed by Community rules do not constitute charges having an effect equivalent to customs duties (judgment of 25 January 1977, Case 46/76, Bauhuis, cited above).

7. Argument No (4) also relies on Directive 71/118, but this time from a different, not to say opposite, point of view. Belgium observes that the harmonization brought about by that directive is partial. In particular, it does not provide for checks intended to detect the presence of antibiotic residues or of certain substances having a bacteriostatic effect or a hormonal or anti-hormonal effect.

8. In conclusion, I propose that the Court should give judgment as follows on the action brought by the Commission of the European Communities against the Kingdom of Belgium by an application lodged on 10 December 1982:

1 Translated from the Italian.