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Document 61972CC0029
Opinion of Mr Advocate General Roemer delivered on 21 November 1972. # S.p.A. Marimex v Italian Finance Administration. # Reference for a preliminary ruling: Tribunale di Trento - Italy. # Sanitary inspections. # Case 29-72.
Kohtujuristi ettepanek - Roemer - 21. november 1972.
S.p.A. Marimex versus Amministrazione Finanziaria Italiana.
Eelotsusetaotlus: Tribunale di Trento - Itaalia.
Kohtuasi 29-72.
Kohtujuristi ettepanek - Roemer - 21. november 1972.
S.p.A. Marimex versus Amministrazione Finanziaria Italiana.
Eelotsusetaotlus: Tribunale di Trento - Itaalia.
Kohtuasi 29-72.
ECLI identifier: ECLI:EU:C:1972:102
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 21 NOVEMBER 1972 ( 1 )
Mr President,
Members of the Court,
On 26 July 1971 and 17 September 1971 respectively Marimex, a limited company having its registered office in Milan, imported frozen beef and veal and live cattle from the Federal Republic of Germany into Italy via the Brenner Pass. At the border the meat and live animals were examined by an official veterinarian. The importing undertaking had to pay the customs authority a sanitary charge as provided for in Article 32 of the Testo Unico (legislation consolidated by the executive) relating to sanitary legislation of 27 July 1934 (completed by the law of 30 December 1970). On the first occasion the undertaking paid Lit. 10 per kilogram of meat and on the second occasion Lit. 1000 per imported animal.
Marimex considered that this charge was unlawful. It is of the opinion that it constitutes a charge having an effect equivalent to a customs duty, that is to say, a charge the levy of which is prohibited under Article 9 of the Treaty and, in so far as it related to intra-Community trade in cattle and beef and veal, under Article 22 of Regulation No 805/68 on the common organization of the market in beef and veal (OJ, Special Edition, 1968 I, p. 187). Since Marimex further considers that the said provisions are directly applicable, creating individual rights for private persons, it applied to the President of the Tribunale di Trento to issue an order for payment to the Italian Minister for Finance in order to secure the reimbursement of the amounts paid by it for the sanitary inspection.
The President of tne Tribunale di Trento thus suspended the proceedings by an order of 17 May 1972 in view of the problems arising from the application of Community law and in accordance with Article 177 of the EEC Treaty requested a preliminary ruling on the following question:
‘Must a pecuniary charge imposed by the Italian State for the sanitary inspection of live cattle and beef and veal on crossing the frontier be considered as a charge having an effect equivalent to a customs duty within the meaning of Article 22(1) of Regulation (EEC) No 805/68 despite the fact that corresponding goods produced within the territory of the Italian State are subject to a pecuniary charge which is (a) levied by authorities other than the State and (b) calculated in accordance with criteria which are not comparable to the criteria employed to determine the amount of the pecuniary charge imposed on imported live cattle and beef and veal?’
I shall now express my view on this question after noting the statements — partly controversial — of the plaintiff in the main action, the Italian Government, the Netherlands Government and the Commission of the European Communities.
1. |
I should like to open my remarks with an initial statement on the wording of the question submitted to the Court. It is clear from the wording of the question that it is intended to establish the classification of the sanitary charge which is at issue in the main action. Naturally the Court cannot go so far in proceedings under Article 177 since establishing the classification of the charge would imply subsumption and thereby application, and furthermore because — as will shortly be shown — all the facts cannot be established reliably. In the present proceedings the Court can only give an abstract interpretation of the concept ‘charge having an effect equivalent to a customs duty’ although, in order to limit the interpretation to essentials and to make it applicable in the main procedure, the Court must have regard to the particular problems of these proceedings. It is then the task of the national court, with the aid of the criteria developed, to provide a definitive solution for the question of classification which has arisen. Accordingly the question which has been submitted must be re-interpreted in the light of its regularity in accordance with the procedure under Article 177. This might be done, as the Commission has suggested, by considering whether a financial charge levied by a Member State for sanitary inspections of goods which fall under Regulation (EEC) No 805/68 when the frontier is crossed is to be regarded as a charge having an effect equivalent to a customs duty and if this is also the case if domestic products are likewise charged, although by other authorities and in accordance with criteria which are not comparable with the criteria employed in determining the charge in respect of imports. No objections are to be raised regarding the admissibility of the question expressed in this manner. |
2. |
A further point should be made at the outset, namely that it is a matter of indifference with regard to interpretation whether the concept contained in Article 9 of the Treaty (that is to say the prohibition which has been directly applicable since 1 January 1970) is adopted as a basis or the corresponding concept in Article 22 of Regulation No 805/58 which likewise and indeed with effect from 29 July 1968 has prohibited, in intra-Community trade in cattle and in beef and veal, the levying of any customs duty or charge having equivalent effect. This is so because the decisions of the Court have already made clear that the concept ‘charge having an effect equivalent to a customs duty’ was simply transposed from the Treaty to the relevant agricultural regulations and bears no other meaning than that which it has in the Treaty itself. I refer to the judgment in Case 24/68, Commission of the European Communities v Italian Republic ([1969] ECR 193), which has been followed in subsequent decisions. |
3. |
When, after these preliminary remarks, we come to consider the question actually submitted we must turn first of all, in view of the arguments submitted in the procedure, to Article 36 of the Treaty, that is to say, to the clause in accordance with which ‘The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial or commercial property’. It can indeed be accepted that on the basis of this provision sanitary inspections at the internal frontiers of the Community are certainly admissible in the absence of complete harmonization of the relevant national rules. This follows in particular from the Directive of the Council of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine and the Directive of the Council of the same date on health problems affecting intra-Community trade in fresh meat. I refer to Article 6 of the first-mentioned directive and to Article 5 of the last-mentioned directive. I should however like to state from the outset that this is irrelevant in deciding the admissibility of the Italian sanitary charges which now concern us. In particular it seems mistaken to argue, as the Netherlands Government does, that, because under Article 189 of the Treaty which with regard to the implementation of directives leaves ‘to the national authorities the choice of form and methods’, the Member States are also free to settle the nature of the financing of sanitary inspections. In fact, an argument of this nature cannot be led precisely because both the abovementioned directives, on which the Netherlands Government apparently bases its argument do not prescribe sanitary inspection for the importing countries; in this respect they create no obligation on the Member States and at the most they indicate tolerance of the situation. Thus the two directives are irrelevant with regard to the admissibility of the. relevant sanitary charges. It is also an important point that the Court has already set out clearly strict rules of interpretation with regard to the determination of the scope of Article 36 of the Treaty. Thus we learn from the judgment in Case 7/68, Commission of the European Communities v Italian Republic ([1968] ECR 423), that, because it comes within the chapter on elimination of quantitative restrictions, Article 36 relates exclusively to provisions which constitute prohibitions on imports, exports or goods in transit. As the Court stated, these prohibitions are by nature clearly distinct from customs duties and assimilated charges. In addition it must further be accepted that exceptions to the principle of the elimination of obstacles to the free movement of goods must receive a strict interpretation. Thus, the exceptions in Article 36 cannot be extended to measures which are unrelated to the prohibition mentioned in the chapter on the elimination of quantitative restrictions. It has been expressly stated that Article 36 does not embrace customs duties and charges having equivalent effect. Thus it is clear in my view that the fact that Article 36 does not include carrying out sanitary inspections at the internal frontiers of the Community in no way provides grounds for the conclusion that the charges levied in this connexion are admissible. Finally it is likewise impossible, as the Commission has indicated, to maintain that the sanitary charges represent an essential component of the rules regarding the carrying out of sanitary inspections and that they therefore constitute part of the essence of the latter. In this connexion, it is indeed correct that the said charges are used to finance the sanitary inspections; however there can be no question of entertaining the view that it would be impossible to carry out the inspections without levying the charges. It is thus certain that Article 36 provides no justification for the charges in dispute; in other words, if they represent charges having an effect equivalent to a customs duty, the prohibition in Article 9 of the Treaty and the corresponding prohibition in Regulation (EEC) No 805/68 cannot be deprived of their effect by reference to Article 36. |
4. |
Further consideration of the question how the concept ‘charges having an effect equivalent to a customs duty’ is to be defined with regard to the special features of the main action must above all proceed on the basis of what has already been developed in the case-law of the Court and which has been stated to be relevant. Accordingly, it is important that the concept should be defined with regard to the fundamental purpose of the Community which is to ensure that the free movement of goods is guaranteed. The importance of the prohibition on levying customs duties and charges having equivalent effect on intra-Community trade and the need to maintain this prohibition intact call for a broad definition of the concept. Accordingly, one is confronted with charges having an effect equivalent to a customs duty if Member States unilaterally subject imported goods to financial burdens because they cross the frontier, without regard being had to the purpose for which such burdens are created or collected. It was also emphasized that it does not depend upon the denomination and nature of the levy and it is a matter of indifference whether they are levied for the benefit of the State and whether they have discriminatory or protectionist effects. This may be deduced in particular from the judgments in Case 24/68 ([1969] ECR 193) and in Joined Cases 2 and 3/69 ([1969] ECR 211). In accordance with these judgments the basic requirement thus is that a duty is imposed because of crossing the frontier and that crossing the frontier constitutes the decisive reason for this.
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5. |
In sum, solely on the basis of the facts to be deduced in a procedure in accordance with Article 177, I suggest that the question submitted to the Court should be answered as follows: If a Member State imposes fees for sanitary inspections carried out at the frontier on goods coming under Regulation (EEC) No 805/68 such fees cannot be regarded as considerations for services rendered by the administration if the inspections are carried out principally in the public interest and there does not result for the imported goods a corresponding benefit on the market, in proportion to the amount of the charge. Such fees must rather be considered as charges having an effect equivalent to a customs duty within the meaning of Article 9 of the EEC Treaty and of Article 22 of Regulation (EEC) No 805/68, unless similar charges calculated in accordance with comparable criteria are imposed on similar domestic products for internal sanitary inspections at the frontier and which are imposed solely on national products. If the last-mentioned conditions do not obtain Article 95 of the EEC Treaty must be applied, that is, an appropriate examination must be carried out as to the existence of discrimination, whether or not the charges on imported goods are imposed by other authorities than the charges payable for the internal sanitary inspections. |
( 1 ) Translated from the German.