61982C0314
OPINION OF MR ADVOCATE GENERAL MANCINI
DELIVERED ON 7 FEBRUARY 1984 (
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)
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.
Let me briefly set out the Belgian rules which, the Court is aware, were the subject of two recent actions (judgment of 7 April 1981, Case 132/80 United Foods NV and Aug. Van der Abeele PVBA v Belgian State [1981] ECR 995, and judgment of 6 October 1983, Joined Cases 2 to 4/82 Delbaize Frères Le Lion SA and Others v Belgian State [1983] ECR 2973. The Law of 15 April 1965 regulated the health inspection of and trade in fish, poultry, rabbits and game (Moniteur Beige_22 May 1965, p. 6173), inter alia, by permitting the King to regulate, in the interest of public health and hygiene, the importation, exportation, slaughter, processing, distribution and marketing of poultry. The rules implementing that Law as regard health inspection and marketing of poultrymeat were adopted by the Royal Decree of 21 September 1970{Moniteur Belge_30 October 1970, p. 10994).
That source provides that poultry slaughtered in Belgium is subject to a health inspection before and after slaughter, whilst the rules governing imported meat vary according to whether the meat is fresh or is dried, salted or smoked. Importation of the latter is subject to presentation of a certificate issued by a veterinarian officially recognized in the country in which the meat was slaughtered or processed. As regards fresh meat, the rules provide for a check on importation. That check covers the conditions in which the meat has been transported and in which it is presented for importation, its state of conservation and whether or not it complies with the requirements laid down in the rules governing health inspection.
Article 6 of the Law of 15 April 1965 also provides that the importers or proprietors of the animals may be charged fees intended to cover the cost of the veterinarian's visit and the inspection of home-produced meat or the check carried out on imported meat. In the case of imported poultry, those charges are fixed by the aforementioned Royal Decree of 21 September 1970 (amended by the Royal Decree of 20 March 1978, Moniteur Belge_26 July 1978, p. 8518) and, in the case of meat slaughtered in Belgium by the Royal Decree of 28 August 1981(Moniteur Belge_1 September 1981, p. 10851). The effect of that body of rules is that:
(a)
the fee for a health check carried out on imported meat is fixed at 80 francs per 100 kg and is paid by the importers to the customs authorities;
(b)
the corresponding fee for home-produced poultry is calculated on the basis of the number of visits and of animals inspected and is paid by the proprietor to the veterinarian.
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.
Not convinced by that argument, the Commission issued the reasoned opinion (10 February 1982) confirming the view initially expressed and a few months later (9 December 1982), it brought legal proceedings. It asks the Court to declare that by levying health inspection charges for imports of poultry, the Kingdom of Belgium has infringed Articles 9 and 12 of the EEC Treaty.
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.
I have said that the Belgian rules have already been considered by the Court in the context of two preliminary references. It would thus seem useful to recall to mind the conclusions at which the Court arrived on those occasions.
In Case 132/80 the Court had to appraise the rules governing health checks carried out on imported fish and the collection of the relevant fees in the light of Article 9 et seq., Article 30 et seq., Article 36 and Article 95 of the Treaty. The Court first confirmed the principle, already laid down in the judgment of 8 November 1979, (Case 251/78 Denkavit Futtermittel v Minister für Ernährung [1979] ECR 3369), according to which a double inspection in the exporting country and in the importing country could not be justified under Article 36. Turning then to the facts of the particular case, the Court stated that when the animals have already undergone in the exporting country a health inspection carried out in accordance with the criteria in force in the country of destination, “control on importation must in all cases be limited to measures designed to counter the risks arising from transportation or from any handling following ... dispatch” (paragraph 29).
In Joined Cases 2 to 4/82, the Court was asked to decide whether the inspections carried out in Belgium on the condition of meat after transport were legal. The Court considered them an unjustifiable duplication, observing that various provisions of Directive 71/118 concerning the inspection carried out in the exporting country extended also to “their state of conservation throughout transportation” (paragraph 17).
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.
In support of the argument at (1) — that the charges constitute internal taxation — Belgium states that:
(a)
the inspection charges for both imported and nationally-produced poultry are provided for in the same Law;
(b)
the health checks carried out on both nationally-produced and imported poultry are of the same kind;
(c)
the charges imposed on the importers and on the owners of the animals are equivalent in financial terms ;
(d)
any differences which may be found in their amounts are due to a marginal fact: the fees charged in respect of Belgian poultry cover all the various checks which are carried out.
That argument is well presented but I am not convinced. According to the settled case-law of the Court, to be outside the scope of the prohibition in Article 9 and to be justifiable under Article 95, the charges must be part of a general system of internal dues applied without distinction to nationally-produced and imported products of the same kind. In particular, the charges must be applied according to the same criteria and at the same stage of production or of marketing (see the judgment of 5 February 1976, Case 87/75 Bresciani v Amministrazione Italiana delle Finanze [1976] ECR 129, paragraph 11 of the decision; judgment of 28 June 1978, Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453, paragraph 1 of the operative part of the decision; judgment of 31 May 1979, Case 132/78 Denkavit Loire v French State [1979] ECR 1923, paragraph 8 of the decision; judgment of 28 January 1981, Case 32/80. Officier van Justitien Kortmann [1981] ECR 251, paragraph 16 of the decision). In the light of those criteria, it seems impossible that the fees charged to importers and those charged to national producers are in the same category. However, let us examine one by one the points on which the Belgian defence is based.
As to (a): both sets of charges, it is stated, are fixed under the authority of the Law of 15 April 1965. That is correct, but, as the Court itself has said, it is not sufficient. The judgment in Case 123/80 states that it is possible that the “inspection levy forms part of a ... system ... derived from the same basic law”. However, it is not sufficient, for the purpose of assessing its compatibility with Community law “to take this purely formal criterion into account ... The assessment must be made having regard to the contents and to the effects of the rules...”.
As to (b): the two types of check are of the same kind. That statement does not correspond to the truth. I reminded the Court a moment ago that to be part of a single general system, the charges must be applied at the same stage of production. Such is not the case with the charges at issue here. In reply to a question raised by the Court, in fact, Belgium stated that the checks on nationally-produced poultry are carried out at four different times : systematically upon slaughter; and by spot checking when the meat is cut up, when it is processed and when it is distributed. The checks carried out on imported poultry, on the other hand, take place at the frontier or at the customs office closest to the place of destination of the goods.
As to (c): the two sets of charges are equivalent from a financial point of view. In particular, Belgium adds, in the calculation of the fees to be paid by importers, account is taken, even if by means of a fixed sum payment, of the amounts which they have paid in the exporting country, hence the fact that they pay only 60 % of the charges paid to national producers. That argument does not stand up. As has been noted, the directives on intra-Community trade in fresh meat have established a system which transfers the checks to the exporting State, concentrating them at the stage of slaughter. From that point of view, the ante- and postmortem inspections, which are carried out systematically, are the most expensive, whilst any other inspections which may be carried out, and which to be lawful must be carried out on the basis of spot checks, cost less. That difference should be accurately reflected in the way in which charges demanded of importers are calculated. Reducing the charges by 40 % in camparison to those levied on national producers proves therefore that the two charges do not in fact have the equivalence claimed for them by the Belgian Government.
As to (d): the fees charged to national producers are in respect of all the different checks carried out, so that any difference between the amounts of the two charges is of little relevance. This statement is also incorrect. According to Article 1 of the aforesaid Royal Decree of 28 August 1981, the said charges are solely intended to cover the cost of the ante- and postmortem inspections carried out on poultry. It is only on that basis and for those checks that, according to the Belgian rules, charges may be imposed for the visit of the veterinarian.
That we are not in the presence of a single general system therefore seems obvious. Moreover, other factors also point in that direction. Thus, the two sets of charges are levied on the basis of different criteria: charges for imported poultry are calculated on the basis of weight (BFR 80 per 100 kg or part thereof), those charged for nationally-produced poultry on the basis of the number of visits and of animals. The fact which gives rise to the charge is different. Contrary to what the defendant Government contended during the phase prior to litigation, (supra, No 2), Article 59 of the Royal Decree of 21 September 1970 places it at importation whilst Article 1 of the Royal Decree of 21 August 1981 identifies it as the checks carried out before and after slaughter. Finally, the bodies which collect the charges are different. In the case of imported poultry, it is the customs offices, in the case of nationally-produced poultry, it is the health authorities.
All the foregoing makes abundantly clear that the disputed charges are not internal taxation. I would add that such a conclusion is supported by a great many of the Court's previous decisions, which I may summarize in the following terms: when a charge affects imported products, is collected at the frontier and is related to specific inspections carried out on such products, the fact that another charge, similar in certain respects but based on different criteria, is imposed on corresponding nationally-produced goods, is irrelevant for the purposes of the prohibition laid down in Article 9 of the Treaty (judgment of 14 December 1972, Case 29/72 Marimex v Italian Finance Administration [1972] ECR 1309, the aforementioned judgment in the Bresciani case and the judgment of 15 December 1976, Case 35/76 Simmenthalv Italian Minister for Finance [1976] ECR 1871). The significant fact is above all the collection of the fees at the fronder, be it as the factor which characterizes charges prohibited by Article 9 compared to those covered by Article 95 (see Simmen thai judgment, paragraphs 3 and 4 of the operative part of the decision), or be it in regard to the specific purpose of the first rule (“to avoid the imposition of any pecuniary charge on goods ... by virtue of the fact that [they] cross a national frontier”; judgment in the Bresciani case, paragraph 8 of the decision).
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.
That case-law is however wrongly relied upon. In Bresciani, the Court in fact stated that “the activity of the administration of the State intended to maintain a public health inspection system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge” (paragraph 10). The situation is no different in this case: here too the check is expressly intended (cf. Law of 15 April 1965) to protect public health, which by definition is a general interest of the State.
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).
However, even those arguments are not acceptable. In the first place, it is not correct to say —as a matter of fact, it is manifestly wrong — that Article 9 requires States to establish health inspections at their frontiers. That article does no more than permit them to “prohibit the introduction into their territory... of poultrymeat which proves unfit for human consumption or does not comply with Community health provisions” (ninth recital).
The provision must next be judged in the light of the system established at Community level by the various harmonizing directives including Directive 71/118. As I have already said, such a system is intended to transfer the inspections to the exporting State and thus to make superfluous the systematic carrying out of inspections at frontiers, whilst leaving it open to the State of destination to verify that the guarantees offered to it have actually been put into effect (see the aforementioned judgment of 6 October 1983, paragraph 11). Interpreting those very directives, the Court ruled that the approximation which they sought to achieve consisted in enforcing fulfilment of uniform public health conditions for storage and transport. It follows from that that multiple frontier inspections carried out in order to ascertain any changes in the condition of the meat whilst in transit or its state of conservation are unnecessary (Simmenthal judgment, op cit.). The argument that the crossing of a frontier increases the risk that fresh meat will become unwholesome cannot be accepted (judgment of 12 July 1979, Case 153/78 Commission v Germany [1979] ECR 2555).
That said, I would point out that in the judgment of 6 October 1983 the Court expressly rejected the argument based on Article 9 of Directive 71/118. The Court decided in fact that a series of provisions contained in that directive (Article 3 (e), (f), (g) and Annex I, Chapters VII to XI) applied to inspections carried out in the exporting country relating to the transport of the products and that they also applied to the state of conservation of the meat throughout transportation (paragraph 17) from the exporting State to the place of destination.
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.
That argument, which supports the legality not of the charges but of the inspection, is in itself correct. It is however beside the point. The fact that none of the Belgian rules arc outside the scope of the directive does not of itself justify the carrying out of systematic checks on importation. The legality of such measures must in fact be judged in the light of the requirements of public health — which is an aspect of the question upon which the Belgian Government has not formally asked the Court to rule. It must be said, however, that to have made such a request would have done it no good because, as was seen when the Bresciani judgment was discussed, it was not possible, in respect of inspections, to rely on the exception laid down in Article 36, which safeguards a public interest, and, at the same time, to charge the cost of the inspection to the importers.
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:
By levying health inspection charges on poultrymeat imported from other Member States, the Kingdom of Belgium has infringed Articles 9 and 12 of the EEC Treaty.
Having failed in its submissions, the Kingdom of Belgium should be ordered to pay the costs.
(
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)	Translated from the Italian.