61982CJ0133_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 133/82
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MICHEL VAN ACKERE, ITS LEGAL ADVISER, ACTING AS AGENT, ASSISTED BY THOMAS VAN RIJN, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
GRAND DUCHY OF LUXEMBOURG, REPRESENTED BY CLAUDE LUTTY, PRINCIPAL ADVISER AT THE MINISTRY OF FINANCE, 3 RUE DE LA CONGREGATION, LUXEMBOURG, ACTING AS AGENT,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT BY LEVYING STORAGE CHARGES ON GOODS WHICH ORIGINATE IN A MEMBER STATE OR ARE IN FREE CIRCULATION, AND WHICH ARE IMPORTED INTO LUXEMBOURG, AND PRESENTED FOR THE COMPLETION OF CUSTOMS FORMALITIES AT A SPECIAL STORE, THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 9 AND 12 OF THE EEC TREATY,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 23 APRIL 1982, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY LEVYING STORAGE CHARGES ON GOODS WHICH ORIGINATE IN A MEMBER STATE OR ARE IN FREE CIRCULATION, AND WHICH ARE IMPORTED INTO THE GRAND DUCHY OF LUXEMBOURG, AND PRESENTED FOR THE COMPLETION OF CUSTOMS FORMALITIES AT A SPECIAL STORE, THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 9 AND 12 OF THE TREATY .
2 THE MINISTERIAL REGULATIONS OF 21 APRIL 1978 ( MEMORIAL 1978, P . 505 ) AND OF 2 JULY 1979 ( MEMORIAL 1979, P . 1189 ), IN ACCORDANCE WITH THE PROVISIONS IN FORCE WITHIN THE FRAMEWORK OF THE BELGO-LUXEMBOURG ECONOMIC UNION, PUBLISH IN LUXEMBOURG THE BELGIAN LAW OF 20 FEBRUARY 1978 AND THE BELGIAN ROYAL DECREE OF 29 JANUARY 1979 RESPECTIVELY, ON CUSTOMS WAREHOUSES AND TEMPORARY STORAGE .
3 THE LAW OF 20 FEBRUARY 1978 DEFINES CUSTOMS WAREHOUSES AS PREMISES WHERE GOODS MAY BE DEPOSITED WITHOUT PAYMENT OF ANY ENTRY DUTIES OR TAXES FOR THE PERIOD DURING WHICH THEY ARE STORED . THE LAW LAYS DOWN THE PRINCIPLE THAT GOODS DEPOSITED IN PUBLIC WAREHOUSES ARE LIABLE FOR PAYMENT OF ' ' STORAGE
CHARGES ' ', THE NET INCOME FROM WHICH IS PAID TO THE MUNICIPALITIES WHICH PROVIDE THE PREMISES . IN ACCORDANCE WITH ARTICLE 25 OF THE SAME LAW, THE ROYAL DECREE OF 29 JANUARY 1979 LISTED THE PUBLIC WAREHOUSES, FIXED THE MAXIMUM RATE FOR STORAGE CHARGES AND LAID DOWN RULES FOR THE COLLECTION THEREOF .
4 THAT LEGISLATION CONFORMS IN PRINCIPLE WITH THE GUIDELINES SET OUT IN COUNCIL DIRECTIVE NO 68/312/EEC OF 30 JULY 1968 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 416 ). THAT DIRECTIVE LAID DOWN THE RULES WHICH MUST BE ADOPTED IN NATIONAL LAWS CONCERNING THE TEMPORARY STORAGE OF GOODS WHICH IMPORTERS DO NOT WISH TO PLACE IMMEDIATELY UNDER A SPECIFIC CUSTOMS PROCEDURE . SUCH GOODS MUST BE STORED IN PUBLIC OR PRIVATE WAREHOUSES DESIGNATED BY THE NATIONAL AUTHORITIES, IN ACCORDANCE WITH THE REQUIREMENTS FIXED BY THEM, FOR A PERIOD OF NOT MORE THAN 15 DAYS, WHICH MAY, IN CERTAIN CIRCUMSTANCES, BE EXTENDED .
5 THE DEVELOPMENT OF COMMUNITY TRANSIT, A CONCEPT DEFINED AND PROMOTED BY COUNCIL REGULATION ( EEC ) NO 222/77 OF 13 SEPTEMBER 1976 ( OFFICIAL JOURNAL 1977, L 38, P . 1 ) WHICH CONSOLIDATED THE PROVISIONS OF REGULATION ( EEC ) NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 AND THE AMENDMENTS THERETO, THUS ENABLED IMPORTERS TO CONVEY THEIR GOODS FROM THE FRONTIER TO PUBLIC WAREHOUSES SITUATED IN THE INTERIOR OF THE COUNTRY WITHOUT PAYING DUTIES AND TAXES . IN THOSE WAREHOUSES, IMPORTERS MAY HAVE CUSTOMS CLEARANCE OPERATIONS CARRIED OUT AND THEY ALSO HAVE THE OPPORTUNITY TO PLACE THE GOODS IN TEMPORARY STORAGE THERE, IN PARTICULAR WHEN THEY DO NOT WISH TO ASSIGN THE GOODS IMMEDIATELY TO A SPECIFIC CUSTOMS PROCEDURE .
6 THIS CASE CONCERNS THE LEVYING OF STORAGE CHARGES ON GOODS DEPOSITED IN SUCH PUBLIC WAREHOUSES SITUATED IN THE INTERIOR OF THE COUNTRY .
7 THE COMMISSION CONSIDERS THAT THE STORAGE CHARGES LEVIED BY THE LUXEMBOURG AUTHORITIES REPRESENT CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES WITHIN THE MEANING OF ARTICLES 9 AND 12 OF THE TREATY, INASMUCH AS THE PAYMENT OF THE CHARGES DOES NOT REPRESENT THE CONSIDERATION FOR A SERVICE RENDERED TO THE IMPORTER BUT IS CONNECTED SOLELY WITH THE COMPLETION OF THE CUSTOMS FORMALITIES .
8 THE LUXEMBOURG GOVERNMENT CONSIDERS THAT THE CHARGES IN QUESTION CANNOT BE DESCRIBED AS CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES BECAUSE
THE EVENT GIVING RISE TO THE DISPUTED CHARGES IS IN LAW NEITHER THE CROSSING OF THE FRONTIER NOR THE COMPLETION OF CUSTOMS FORMALITIES, BUT THE USE BY IMPORTERS OF THE PUBLIC WAREHOUSES MADE AVAILABLE TO THEM BY THE MUNICIPAL AUTHORITIES . SUCH A USE AMOUNTS TO A SERVICE RENDERED TO THE IMPORTERS AND IS CAPABLE OF JUSTIFYING THE LEVYING OF CHARGES .
9 IT IS APPROPRIATE TO RECALL, IN THE FIRST PLACE, THAT ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT, ANY PECUNIARY CHARGE, HOWEVER SMALL AND WHATEVER ITS DESIGNATION AND MODE OF APPLICATION, WHICH IS IMPOSED UNILATERALLY ON THE 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 LEVIED BY THE STATE . THE POSITION IS DIFFERENT ONLY IF THE CHARGE IN QUESTION IS THE CONSIDERATION FOR A SERVICE ACTUALLY RENDERED TO THE IMPORTER AND IS OF AN AMOUNT COMMENSURATE WITH THAT SERVICE, WHEN THE CHARGE CONCERNED, AS IN THIS CASE, IS PAYABLE EXCLUSIVELY ON IMPORTED PRODUCTS .
10 THE PROHIBITION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES, LAID DOWN IN THE PROVISIONS OF THE TREATY, IS JUSTIFIED ON THE GROUND THAT PECUNIARY CHARGES IMPOSED BY REASON OR ON THE OCCASION OF THE CROSSING OF THE FRONTIER REPRESENT AN OBSTACLE TO THE FREE MOVEMENT OF GOODS .
11 IT IS IN THE LIGHT OF THOSE PRINCIPLES THAT THE QUESTION WHETHER THE DISPUTED STORAGE CHARGES MAY BE CLASSIFIED AS CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES MUST BE ASSESSED . IT SHOULD THEREFORE BE NOTED, IN THE FIRST PLACE, THAT THE PLACING OF IMPORTED GOODS IN TEMPORARY STORAGE IN THE SPECIAL STORES OF PUBLIC WAREHOUSES CLEARLY REPRESENTS A SERVICE RENDERED TO TRADERS . A DECISION TO DEPOSIT THE GOODS THERE CAN INDEED BE TAKEN ONLY AT THE REQUEST OF THE TRADER CONCERNED AND THEN ENSURES THEIR STORAGE WITHOUT PAYMENT OF DUTIES, UNTIL THE TRADER HAS DECIDED HOW THEY ARE TO BE DEALT WITH . MOREOVER THE COMMISSION DOES NOT DISPUTE THAT THE PLACING OF GOODS IN TEMPORARY STORAGE MAY LEGALLY GIVE RISE TO THE PAYMENT OF CHARGES COMMENSURATE WITH THE SERVICE THUS RENDERED .
12 HOWEVER, IT APPEARS BOTH FROM THE COMBINED PROVISIONS OF ARTICLES 16, 30 AND 34 OF THE BELGIAN ROYAL DECREE OF 29 JANUARY 1979 AND FROM THE ARGUMENTS ADVANCED BEFORE THE COURT, THAT THE STORAGE CHARGES ARE PAYABLE EQUALLY WHEN THE GOODS ARE PRESENTED AT THE PUBLIC WAREHOUSE SOLELY FOR THE
COMPLETION OF CUSTOMS FORMALITIES, EVEN THOUGH THEY HAVE BEEN EXEMPTED FROM STORAGE AND THE IMPORTER HAS NOT REQUESTED THAT THEY BE PUT IN TEMPORARY STORAGE .
13 ADMITTEDLY THE LUXEMBOURG GOVERNMENT CLAIMS THAT EVEN IN THAT CASE, A SERVICE IS RENDERED TO THE IMPORTER . IT IS ALWAYS OPEN TO THE LATTER TO AVOID PAYMENT OF THE DISPUTED CHARGES BY CHOOSING TO HAVE HIS GOODS CLEARED THROUGH CUSTOMS AT THE FRONTIER, WHERE SUCH A PROCEDURE IS FREE . MOREOVER, BY USING A PUBLIC WAREHOUSE, THE IMPORTER IS ENABLED TO HAVE THE GOODS CLEARED THROUGH CUSTOMS NEAR THE PLACES FOR WHICH HIS PRODUCTS ARE BOUND AND HE IS THEREFORE RELIEVED OF THE NECESSITY OF HIMSELF EITHER HAVING AT HIS DISPOSAL PREMISES SUITABLE FOR THEIR CLEARANCE, OR HAVING RECOURSE TO PRIVATE PREMISES, THE USE OF WHICH IS MORE EXPENSIVE THAN THAT OF THE PUBLIC WAREHOUSES . IT IS THEREFORE LEGITIMATE, IN THE LUXEMBOURG GOVERNMENT ' S VIEW, TO IMPOSE A CHARGE COMMENSURATE WITH THAT SERVICE .
14 THAT ARGUMENT CANNOT HOWEVER BE ACCEPTED . WHILST IT IS TRUE THAT THE USE OF A PUBLIC WAREHOUSE IN THE INTERIOR OF THE COUNTRY OFFERS CERTAIN ADVANTAGES TO IMPORTERS, IT SEEMS CLEAR FIRST OF ALL THAT SUCH ADVANTAGES ARE LINKED SOLELY WITH THE COMPLETION OF CUSTOMS FORMALITIES WHICH, WHATEVER THE PLACE, IS ALWAYS COMPULSORY . IT SHOULD MOREOVER BE NOTED THAT SUCH ADVANTAGES RESULT FROM THE SCHEME OF COMMUNITY TRANSIT, INTRODUCED BY REGULATIONS NOS 542/69 AND 222/77, NOT IN THE INTERESTS OF INDIVIDUAL TRADERS, BUT, AS THE FOURTH AND SIXTH RECITALS IN THE PREAMBLE TO REGULATION NO 222/77 CLEARLY INDICATE, IN ORDER TO INCREASE THE FLUIDITY OF MOVEMENT OF GOODS AND TO FACILITATE TRANSPORT WITHIN THE COMMUNITY . THERE CAN THEREFORE BE NO QUESTION OF LEVYING ANY CHARGES FOR CUSTOMS CLEARANCE FACILITIES ACCORDED IN THE INTEREST OF THE COMMON MARKET .
15 IT FOLLOWS FROM THE FOREGOING, THAT WHEN PAYMENT OF STORAGE CHARGES IS DEMANDED SOLELY IN CONNECTION WITH THE COMPLETION OF CUSTOMS FORMALITIES, IT CANNOT BE REGARDED AS THE CONSIDERATION FOR A SERVICE ACTUALLY RENDERED TO THE IMPORTER .
16 CONSEQUENTLY, IT MUST BE DECLARED THAT, BY LEVYING STORAGE CHARGES ON GOODS WHICH ORIGINATE IN A MEMBER STATE OR ARE IN FREE CIRCULATION, AND WHICH ARE IMPORTED INTO THE GRAND DUCHY OF LUXEMBOURG, AND PRESENTED MERELY FOR THE COMPLETION OF CUSTOMS FORMALITIES AT A SPECIAL STORE, THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 9 AND 12 OF THE TREATY .
Decision on costs
COSTS
17 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE GRAND DUCHY OF LUXEMBOURG HAS BEEN UNSUCCESSFUL, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT, BY LEVYING STORAGE CHARGES ON GOODS WHICH ORIGINATE IN A MEMBER STATE OR ARE IN FREE CIRCULATION, AND WHICH ARE IMPORTED INTO THE GRAND DUCHY OF LUXEMBOURG, AND PRESENTED MERELY FOR THE COMPLETION OF CUSTOMS FORMALITIES AT A SPECIAL STORE, THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 9 AND 12 OF THE TREATY ;
2 . ORDERS THE GRAND DUCHY OF LUXEMBOURG TO PAY THE COSTS .