61974J0063

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1 . CUSTOMS DUTIES - CHARGES HAVING EQUIVALENT EFFECT - CONCEPT - EXPORTATION - QUALITY CONTROL - NO SERVICE ACTUALLY RENDERED

( EEC TREATY, ARTICLES 9, 12, 13, 16 .)

2 . CUSTOMS DUTIES ON EXPORTS - AGRICULTURAL PRODUCTS - FRUIT AND VEGETABLES - CHARGES HAVING EQUIVALENT EFFECT - ABOLITION - REGULATIONS - RESTRICTED TO IMPORT DUTIES - DATE OF ENTRY INTO FORCE

( EEC TREATY, ARTICLE 16, REGULATION NO 159/66 OF THE COUNCIL, ARTICLE 13 )

1 . ANY PECUNIARY CHARGE, WHATEVER ITS DESIGNATION AND MODE OF APPLICATION, WHICH IS IMPOSED UNILATERALLY ON DOMESTIC GOODS BY REASON OF THE FACT THAT THEY CROSS A FRONTIER CONSTITUTES A CHARGE HAVING EQUIVALENT EFFECT WITHIN THE MEANING OF ARTICLES 9, 12, 13 AND 16 OF THE TREATY, EVEN IF IT IS NOT IMPOSED FOR THE BENEFIT OF THE STATE . IT CANNOT REPRESENT CONSIDERATION FOR A SERVICE ACTUALLY PROVIDED FOR THE EXPORTER WHEN THIS SERVICE CONSISTS IN A QUALITY CONTROL OF PRODUCTS FOR EXPORT, COUPLED WITH A PROHIBITION ON THE EXPORT OF PRODUCTS WHICH DO NOT MEET THE STANDARDS OF QUALITY PROVIDED FOR BY NATIONAL LAW, EVEN IF SUCH AN OBSTACLE TO THE FREE MOVEMENT OF GOODS WERE TO BE CONSIDERED LEGAL IN THE ABSENCE OF COMMUNITY RULES AS TO QUALITY .

2 . SINCE ARTICLES 39 TO 46 DO NOT PROVIDE FOR EXCEPTIONS TO ARTICLE 16 OF THE TREATY, THE PROHIBITION OF CUSTOMS DUTIES ON EXPORTS AND CHARGES HAVING EQUIVALENT EFFECT HAS APPLIED TO ALL PRODUCTS, WITH DIRECT EFFECT, FROM 1 JANUARY 1962 . BY FIXING THE DATE FOR THE ABOLITION OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT AT 1 JANUARY 1967, ARTICLE 13 OF REGULATION NO 159/66 CAN THEREFORE ONLY HAVE REFERRED TO DUTIES AND CHARGES ON IMPORTS WHICH WERE STILL IN FORCE BETWEEN MEMBER STATES .

IN CASE 63/74

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNALE DI BOLZANO FOR A PRELIMINARY RULING IN THE ACTION FOR AN INJUNCTION PENDING BEFORE THAT COURT BETWEEN

W . CADSKY S.P.A .

AND

INSTITUTO NAZIONALE PER IL COMMERCIO ESTERO

ON THE INTERPRETATION OF ARTICLE 16 OF THE EEC TREATY AND OF ARTICLE 13 OF REGULATION NO 159/66/EEC ( OJ OF 27 . 10 . 1966, P . 3286/66 ),

1 BY ORDER OF 26 JULY 1974, LODGED AT THE COURT REGISTRY ON 27 AUGUST 1974, THE TRIBUNALE DI BOLZANO HAS REFERRED TO THE COURT THREE QUESTIONS ON THE INTERPRETATION OF THE CONCEPT OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ON EXPORTS, APPEARING AT ARTICLE 16 OF THE EEC TREATY .

2 THE FIRST QUESTION IS WHETHER THE IMPOSITION OF A PECUNIARY CHARGE ON EXPORTS OF FRUIT AND VEGETABLE PRODUCTS, FOR THE BENEFIT OF A PUBLIC BODY DISTINCT FROM THE STATE, FALLS WITHIN THE PROHIBITION OF CHARGES HAVING EQUIVALENT EFFECT IF THE REVENUE THEREFROM IS USED TO COVER EXPENSES RELATING TO QUALITY CONTROL AT THE FRONTIER, THE GRANT OF CERTIFICATES OF INSPECTION AND THE AFFIXING OF A NATIONAL EXPORT STAMP .

3 ACCORDING TO ARTICLE 9 OF THE EEC TREATY, THE COMMUNITY IS TO BE BASED UPON A CUSTOMS UNION INVOLVING THE PROHIBITION BETWEEN MEMBER STATES OF CUSTOMS DUTIES ON IMPORTS AND EXPORTS AND OF ALL CHARGES HAVING EQUIVALENT EFFECT .

IN PURSUANCE OF ARTICLE 16, MEMBER STATES ARE TO ABOLISH BETWEEN THEMSELVES CUSTOMS DUTIES ON EXPORTS AND CHARGES HAVING EQUIVALENT EFFECT BY THE END OF THE FIRST STAGE AT THE LATEST .

4 IN LAYING DOWN PROVISIONS FOR THEIR ABOLITION, THE TREATY DOES NOT DISTINGUISH BETWEEN THE PURPOSES FOR WHICH DUTIES AND CHARGES WERE INTRODUCED OR THE USES TO WHICH THE REVENUE OBTAINED THEREFROM IS PUT .

THE JUSTIFICATION FOR THIS PROHIBITION IS BASED ON THE FACT THAT ANY PECUNIARY CHARGE - HOWEVER SMALL - IMPOSED ON GOODS BY REASON OF THE FACT THAT THEY CROSS A FRONTIER CONSTITUTES AN OBSTACLE TO THE MOVEMENT OF SUCH GOODS, WHICH IS AGGRAVATED BY THE RESULTING ADMINISTRATIVE FORMALITIES .

5 CONSEQUENTLY, ANY PECUNIARY CHARGE, WHATEVER ITS DESIGNATION AND MODE OF APPLICATION, WHICH IS IMPOSED UNILATERALLY ON DOMESTIC GOODS BY REASON OF THE FACT THAT THEY CROSS A FRONTIER, AND WHICH IS NOT A CUSTOMS DUTY IN THE STRICT SENSE, CONSTITUTES A CHARGE HAVING EQUIVALENT EFFECT WITHIN THE MEANING OF ARTICLES 9, 12, 13 AND 16 OF THE TREATY, EVEN IF IT IS NOT IMPOSED FOR THE BENEFIT OF THE STATE .

6 ALTHOUGH IT IS NOT IMPOSSIBLE THAT IN CERTAIN CIRCUMSTANCES A SPECIFIC SERVICE ACTUALLY RENDERED MAY FORM THE CONSIDERATION FOR A POSSIBLE PROPORTIONAL PAYMENT FOR THE SERVICE IN QUESTION, THIS MAY ONLY APPLY IN SPECIFIC CASES WHICH CANNOT LEAD TO THE CIRCUMVENTION OF THE PROVISIONS OF ARTICLES 9 AND 16 OF THE TREATY .

7 A QUALITY CONTROL CARRIED OUT BY A MEMBER STATE ON PRODUCTS FOR EXPORT ALONE, COUPLED WITH A PROHIBITION ON THE EXPORT OF PRODUCTS WHICH DO NOT MEET THE STANDARDS OF QUALITY PROVIDED FOR BY NATIONAL LAW, CANNOT, IN ITSELF, CONSTITUTE A SERVICE PROVIDED FOR THE EXPORTER, EVEN IF SUCH AN OBSTACLE TO THE FREE MOVEMENT OF GOODS WERE TO BE CONSIDERED LEGAL IN THE ABSENCE OF COMMUNITY RULES AS TO QUALITY .

8 EVEN IF THE MAINTENANCE OF THE REPUTATION OF FRUIT AND VEGETABLE PRODUCTS OF A MEMBER STATE BY THE INDIRECT EXPEDIENT OF A CERTIFICATE OF INSPECTION AND THE AFFIXING OF A NATIONAL EXPORT STAMP IS CAPABLE OF ENCOURAGING EXPORTS OF NATIONAL PRODUCTS, THIS 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 .

9 A FURTHER QUESTION IS WHETHER THE COLLECTION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ON EXPORTS, IMPOSED ON INTRA-COMMUNITY EXPORTS, IS PROHIBITED BY ARTICLE 16 OF THE TREATY IN THE CASE OF ALL PRODUCTS, INCLUDING FRUIT AND VEGETABLES, WITH EFFECT FROM 1 JANUARY 1962, WITH THE RESULT THAT ARTICLE 13 OF REGULATION NO 159/66/EEC ( OJ OF 27 . 10 . 1966, P . 3286/66 ), WHICH FIXES A LATER DATE, MUST BE INTERPRETED AS REFERRING ONLY TO THE ABOLITION OF DUTIES AND CHARGES ON IMPORTS .

10 ARTICLE 38 ( 2 ) OF THE TREATY PROVIDES THAT, SAVE AS OTHERWISE PROVIDED IN ARTICLES 39 TO 46, THE RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET SHALL APPLY TO AGRICULTURAL PRODUCTS .

SINCE THESE ARTICLES DO NOT PROVIDE FOR EXCEPTIONS TO ARTICLE 16 OF THE TREATY, THE PROHIBITION OF CUSTOMS DUTIES ON EXPORTS AND OF CHARGES HAVING EQUIVALENT EFFECT HAS APPLIED TO ALL PRODUCTS, WITH DIRECT EFFECT, AS FROM 1 JANUARY 1962 .

11 BY FIXING THE DATE FOR THE ABOLITION OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT AT 1 JANUARY 1967, ARTICLE 13 OF REGULATION NO 159/66 ( OJ OF 27 . 10 . 1966, P . 3286/66 ) CAN THEREFORE ONLY HAVE REFERRED TO DUTIES AND CHARGES ON IMPORTS WHICH WERE STILL IN FORCE BETWEEN MEMBER STATES .

12 IT MUST THEREFORE BE STATED IN REPLY THAT A CHARGE IMPOSED BY REASON OF THE CROSSING OF A FRONTIER, RELATING TO A MANDATORY INSPECTION OF THE QUALITY OF PRODUCTS FOR EXPORT AND RESULTING IN THE ISSUE OF A CERTIFICATE AND IN THE AFFIXING OF A NATIONAL EXPORT STAMP, CONSTITUTES A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORTS, AS PROHIBITED IN TRADE BETWEEN THE ORIGINAL MEMBER STATES WITH EFFECT FROM 1 JANUARY 1962, IN PURSUANCE OF ARTICLE 16 OF THE TREATY, AND THIS APPLIES EVEN IF THE RECIPIENT OF THE REVENUE FROM THE CHARGE IS A BODY DISTINCT FROM THE STATE .

13 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC, THE NETHERLANDS GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

THE COURT,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNALE DI BOLZANO BY ORDER OF 26 JULY 1974,

HEREBY RULES :

A CHARGE IMPOSED BY REASON OF THE CROSSING OF A FRONTIER, RELATING TO A MANDATORY INSPECTION OF THE QUALITY OF PRODUCTS FOR EXPORT AND RESULTING IN THE ISSUE OF A CERTIFICATE AND IN THE AFFIXING OF A NATIONAL EXPORT STAMP, CONSTITUTES A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORTS, AS PROHIBITED IN TRADE BETWEEN THE ORIGINAL MEMBER STATES WITH EFFECT FROM 1 JANUARY 1962 IN PURSUANCE OF ARTICLE 16 OF THE TREATY, AND THIS APPLIES EVEN IF THE RECIPIENT OF THE REVENUE FROM THE CHARGE IS A BODY DISTINCT FROM THE STATE .