Opinion of Mr Advocate Genera! Van Gerven delivered on 11 April 1989

1 Original language Dutch

2 Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States, Official Journal 1983, L 359, p 8, as amended by Council Directive 87/53/EEC of 15 December 1986, Official Journal 1987, L 24, p 33

3 The decree consolidates customs legislation

4 As amended by Article 1(2) of Decree No 254 of 8 May 1985 of the President of the Republic

5 According to the Commission's claims, which were confirmed at the hearing by the representative of the Italian Government, the working hours of Italian civil servants are six hours per day from Monday to Saturday

6 The expressions frontier posts or customs offices are not definea in the directive.

7 With one exception, that is to say Article 5(4) of the directive, which allows charges to be made on an exceptional basis. See in addition point 14, infra.

8 The Commission cites by way of example Regulation No 805/68/EEC of 27 June 1968, as amended by Regulation No 425/77/EEC, Official Journal 1977, L 61, p. 1.

9 The Commission cites by way of example the Agreement concluded on 1 July 1973 between the Community and the Kingdom of Norway, Official Journal 1973, L 171, p. 1.

10 It should be observed that the confusion in question originates to a large degree in the wording of the Commission's application, which is constructed on the basis of Directive 83/643/EEC rather than on the basis of the prohibition of charges having equivalent effect to customs duties Nevertheless it is clear from the Commission's claim (see p 7 of the application and point 1 ittpra) that it considers the Italian practice of charging for the performance of customs formalities during part of the normal business hours {that is to say, under Directive 83/643/EEC, an uninterrupted period of 10 hours from Monday to Friday) to be unlawful under various provisions prohibiting charges having an effect equivalent to customs duties, with a provision of Directive 83/643/EEC being cited only in fourth place

11 I would state forthwith that I am not convinced by this reasoning: even if that provision does not relate specifically to frontier posts, that does not prevent its being declared to be invalid in so far as it applies to frontier posts.

12 Italy rocs on to argue that to apply the directive in ihai way creates discrimination between goods which arc cleared through customs at the frontier and goods which arc cleared through customs in the interior In the Italian Government's view, that discrimination cannot be justified by the difference in the situations in which the goods are placed

13 See in particular the judgment of 13 November 1964 in Joined Cases 90 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625 The Court held inter alia that Article 12 [of the EEC Treaty] prohibits the introduction of new customs barriers, so as to facilitate the integration of national markets and the establishment of a common market ... this prohibition. - constitutes an essential requirement ... for the substitution of a common market for the different national markets ... Thus Article 12 constitutes a fundamental rule and any possible exception, which in any event must be strictly construed, must be clearly laid down (al p. 633). See also the judgments of 16 June 1966 in Joined Cases 52 and 55/65 Germany v Commission [1966] ECR 159, in particular at pp. 169 and 170, of 10 December 1968 in Case 7/68 Commmion v Italy [1968] ECR 423, in particular at p. 429, and of 1 July 1969 in Case 24/68 Commission v Italy [1969] ECR 193, in particular paragraphs 3 to 7.

14 See the judgment of 13 December 1973 in Joined Cases 37 and 38/73 Sociaal Fonds voor de Diamantarbeiders v Indiamcx [1973] ECR 1609, in particular paragraphs 5 to 21, in which the Court held that subsequent to the introduction of the Common Customs Tariff the prohibition also applied to trade with nonmember countries; however, charges already in existence when the Common Customs Tariff came into effect could only be eliminated on the basis of decisions of the Council or the Commission, for example in provisions adopted in the framework of the common agricultural policy, of trade agreements or of association arrangements with nonmember countries. For the interpretation of such a provision in an association agreement, see the judgment of 5 February 1976 in Case 87/75 Bresciani (1976) ECR 129, paragraphs 15 to 26

15 See in particular the judgments of 1 July 1969 in Case 24/68 Commission v Italy, cited above, paragraph 8, and in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld and Chougol [1969] ECR 211, paragraphs 15 to 17.

16 Sec the judgment of 28 June 1978 in Case 70/77 Simmenthal v Amministrazione delle finanze (Simmentbai II ) [1978] ECR 1453, in particular paragraphs 21 to 27, with regard to that case see also point 12, infra.

17 For the present wording of this definition see, in particular, the judgments of 1 July 1969 in Case 24/68 Commission v Italy, cited above, in particular paragraph 9, and in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld and Chougol, cited above, in paragraph 18.

18 See, for example, the judgment of 25 January 1977 in Case 46/76 Bauhuis [1977] ECR 5, in particular paragraphs 31 and 51; see also the judgment of 27 September 1988 in Case 18/87 Commission v Germany [1988] ECR 5427, in which the Court held that where the sole object of the fee in question is to cover the cost of an obligation imposed on all Member States equally by Community law, it cannot be regarded as a charge having an effect equivalent to a customs duty (tentative translation of paragraph 14; my emphasis).

19 In the judgment of 25 January 1977 in Case 46/76 Bauhuis, cited above, the Court held inter alia that fees charged ... for ... public health inspections ... which are not required by a Community regulation or directive but which have been prescribed [by the Member State of destination] for the purpose of checking whether the conditions to which the Member State of destination has made the importation subject have been complied with, constitute charges having an effect equivalent to customs duties (paragraph 51).

20 As expressly siaied in paragraph 23 oi lhe judgment of 28 June 1978 in Case 70/77 Simmenlhal II, cued in pom! 10 above

21 Ibid , paragraphs 26 and 27

22 See in particular the judgment of 1 July 1969 in Case 24/68 Commission v Italy, cited above, in particular paragraph 11; see also the judgment of 11 October 1973 in Case 39/73 Rewe-Zentralfinanz [1973] ECR 1039 in particular paragraph 5. In the judgment of 26 February 1975 in Case 63/74 Cadsky [1975] ECR 281, it was held that a charge to pay for a quality control (coupled with the grant ot certificates of inspection and the affixing of a national export stamp) was not covered by this exceptioneven it such a certificate and such a stamp is capable of encouraging exports, that 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 (paragraph 8). The use of the adjectives specitic (in all the cases cited) and individual (in the Cadsky judgment) signifies that it must be a question of a scecific and individualized benefit which, logically, can in tact be conferred only in response to an individual request by an individual importer or exporter, that is to say it should be of an optional nature. That principle is applied in Article 5(4) of Directive 83/643/EEC, which will be discussed further in point 14 below.

23 See also the judgments of 14 December 1972 in Case 29/72 Marimex [1972] ECR 1309, and of 11 October 1973 in Case 39/73 Rewe-Zentralfinanz, cited above, in which it was held that health and phytosanitary inspections, respectively, are to be regarded as charges having equivalent effect.

24 Sec footnote 21.

25 As I have mentioned, Directive 83/643/EEC, and therefore Article 5, applies only to intra-Community trade (point 3, supra). As far as trade with non-member countries is concerned, the Council could also provide for such an exception, provided that the charges imposed on importers have a uniform effect at the external frontiers of the Community (see point 13 in fine).

26 Judgment in Joined Cases 37 and 38/73 Sociaal Fonds voor de Diamanlarbeiden v Indtamex, cited above, paragraphs 5 to 7 (my emphasis).

27 See the judgment of 25 November 1986 in Joined Cases 201 and 202/85 Klensch [1986] ECR 3477, in particular paragraph 21.