61988J0170

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1 . Free movement of goods - Customs duties - Charges having equivalent effect - Levy of ad valorem duty for customs clearance of goods on private premises

( EEC Treaty, Arts 9 and 13; Act of Accession 1985, Art . 35; Council Directive 79/695 )

2 . Community law - Direct effect - Conflict between Community law and a national statute - Duties and powers of the national court before which the matter is brought - Non-application of the national statute

1 . The combined provisions of Articles 9 and 13 of the Treaty and Article 35 of the Act of Accession of Spain must be interpreted as precluding the levying of a duty calculated as a proportion of the declared value of goods imported from other Member States which is imposed where the operations relating to customs clearance are carried out on premises or at places not open to the public . Such a duty, which must be regarded as a pecuniary charge imposed unilaterally on goods by reason of the fact that they cross a frontier, constitutes according to established case-law of the Court, a charge having equivalent effect ( see judgments of 12 January 1983 in Case 39/82 Donner (( 1983 )) ECR 19 and of 27 September 1988 in Case 18/87 Commission v Germany (( 1988 )) ECR 5427 ). Even if it constitutes remuneration for a service rendered to the importer or falls within the concept of costs which Directive 79/695 permits to be charged to the declarant, its amount cannot, as it is calculated on an ad valorem basis, be regarded as proportionate to that service or correspond to those costs .

2 . A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provisions of national legislation, and it is not necessary for that court to request or await the prior setting aside of such provisions ( see judgment of 9 March 1978 in Case 106/77 Simmenthal (( 1978 )) ECR 629 ).

In Case 170/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Audiencia Territorial ( High Court ), Valencia, for a preliminary ruling in the proceedings pending before that court between

Ford España SA, a company incorporated under Spanish law, whose registered office is at Almusafes, Valencia ( Spain ),

and

Estado español ( Customs Administration ),

on the interpretation of Article 35 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties ( Official Journal 1985, L 302, p . 23 ) and Articles 9, 13 and 16 of the EEC Treaty,

THE COURT ( Second Chamber ),

composed of T . F . O' Higgins, President of the Chamber, G . F . Mancini and F . A . Schockweiler, Judges,

( The grounds of the judgment are not reproduced )

in answer to the question referred to it by the Audiencia Territorial, Valencia, by order of 15 June 1988, hereby rules :

( 1 ) Articles 9 and 13 of the EEC Treaty in conjunction with Article 35 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties must be interpreted as precluding the levying of a duty calculated as a proportion of the declared value of the imported goods which is imposed where the operations relating to the customs clearance of the goods in question are carried out on premises or at places not open to the public .

( 2 ) A national court which is called upon to apply, within the limits of its jurisdiction, provisions of Community Law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provisions .