61987CC0340_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1 . In this case the Commission asks the Court to declare that, by charging operators the cost of inspections and administrative formalities carried out during part of the normal business hours of frontier crossing-points, the Italian Republic has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty, the provisions of the EEC regulations which prohibit in connection with the common agricultural policy charges having an effect equivalent to customs duties, certain agreements concluded by the Community with non-member countries and Article 5 of Directive 83/643/EEC . ( 1 )
2 . The Commission' s application is directed against two Italian legislative provisions concerning the performance of inspections and formalities by the Italian customs . The first provision is Article 11 of Decree No 43 of 23 January 1973 of the President of the Republic . ( 2 ) Article 11 of that decree ( 3 ) provides that offices of the customs of the various customs departments at frontier posts are to remain open, where the volume of traffic justifies it, so that the inspections and formalities relating to the movement of means of transport and goods not being carried under a customs transit procedure may be performed from Monday to Friday during an uninterrupted period of at least 10 hours ( and on Saturday during an uninterrupted period of at least six hours ). However, customs operations performed during customs offices' business hours which are in excess of the normal working hours of the civil service ( 4 ) - and it is to this that the Commission objects - are subject to a charge corresponding to the cost of the service performed . The second provision which the Commission has in its sights is Article 15 of the aforementioned Decree No 254 which provides more generally that inspections and formalities prescribed in that decree and performed during customs offices' business hours which are in excess of the normal civil service working hours are to be subject to a charge corresponding to the cost of the services performed .
The Italian legislation cited is in part intended to implement Directive 83/643/EEC . According to Article 1 of that directive it applies to physical inspections and administrative formalities concerning the transport of goods between the Member States . Article 5 of the directive imposes on the Member States a number of minimum requirements with regard to the opening of frontier posts . ( 5 ) Article 5(1)(a ) provides as follows :
"1 . Member States shall see to it that :
( a)where the volume of traffic so warrants, frontier posts are open, except when traffic is prohibited, so that :
( i)frontiers can be crossed 24 hours a day, with the corresponding inspections and formalities, in the case of goods placed under a customs transit procedure, their means of transport and vehicles travelling unladen, save where frontier inspection is necessary to prevent the spread of disease,
( ii)inspections and formalities relating to the movement of means of transport and goods which are not being carried under a customs transit procedure may be performed from Monday to Friday during an uninterrupted period of at least 10 hours, and on Saturday during an uninterrupted period of at least six hours, unless those days are public holidays ."
Preliminary remark
3 . Much confusion can be avoided if it is borne in mind from the outset that the Commission did not bring this action - which is directed ( as has been mentioned in point 1 above ) against the passing on of the costs of customs inspections to economic operators - because Italy has failed to transpose Directive 83/643/EEC into national law . Furthermore, the Commission has based its application only to a strictly incidental extent on that directive, since it contains no provision with regard to charging for the performance of customs operations . ( 6 ) In contrast, the Commission' s action is principally based on the claim that charging for such operations conflicts with the prohibition of charges having an effect equivalent to import and export duties, as is laid down in particular in Articles 9 and 12 of the EEC Treaty, in a number of regulations introducing a common organization of the market under the common agricultural policy ( 7 ) and in a number of "preferential agreements" concluded by the Community with non-member countries . ( 8 ) Therefore it is in the light of that prohibition that the Italian provisions objected to by the Commission must be assessed .
The confusion to which I am alluding arises because the Italian provisions at issue form part of a presidential decree which does in fact purport to implement Directive 83/643/EEC . As a result, the parties' arguments submitted in the course of the written procedure concentrated above all on the implementation of that directive . However, according to its preamble and provisions Directive 83/643/EEC applies only to the carriage of goods between the Member States . Thus it is provided in Article 1(1 ) that :
"... this directive shall apply to physical inspections and administrative formalities ... concerning the transport of goods which have to cross :
( i ) an internal frontier within the Community,
or
( ii ) an external frontier, where carriage between Member States involves crossing a third country ".
It plainly has no application to the carriage of goods between Member States and non-member countries or in other words where the goods concerned are not yet in free circulation . The Commission' s application is however directed against the Italian rules with regard to charging for the costs of inspections generally, that is to say irrespective as to whether the charges are applied to the carriage of goods within the Community or with non-member countries . ( 9 ) That is a further reason for assessing the lawfulness of the Italian legislative provisions at issue in these proceedings in a broader context than that arising from the rules of Directive 83/643/EEC .
Since, therefore, I shall first consider the significance of the prohibition of charges having an effect equivalent to customs duties, I shall, in the light of the case-law set out below ( point 10 et seq .), assess the Italian rules as regards both the carriage of goods between Member States and the carriage of goods to and from non-member countries .
4 . Before coming to the heart of my inquiry as I have just described it, I should just like to take up a two-pronged controversy which has arisen between the parties concerning the field of application of Directive 83/643/EEC . The Italian Government argues that there is a twofold limitation on the field of application of that directive and considers that the two alleged limitations to a certain extent sanction the Italian legislative provisions at issue . In the following section I shall first deal with these two arguments ( in points 5 to 7 and 8 and 9 respectively of my discussion ), in order subsequently to give fuller consideration to the main question at issue, that is to say whether the Italian rules - inspired as they are by the aforementioned restrictive interpretation of the field of application of Directive 83/643/EEC and of the expression "inspections and formalities" employed therein ( see point 9 ) - introduce charges having an effect equivalent to customs duties ( points 10 to 15 below ). At the end of my Opinion I shall give some further attention to the aforesaid expression "inspections and formalities" in order to obviate any misunderstanding which might impede uniform application of that expression in the future ( points 16 to 19 below ).
The first Italian argument : Directive 83/643/EEC does not apply to customs offices in the interior of the country
5 . The Italian Government points out in its conclusions that Directive 83/643/EEC as amended applies only to "frontier posts" and not to customs offices in the interior of the country . It infers from this that only the Italian rules relating to frontier posts can ( if at all ) be declared unlawful . Consequently, Article 15 of Decree No 254 of the President of the Republic ( cited above ), which provides as a general rule that inspections outside the normal civil service working hours should be subject to a charge corresponding to the costs, is not relevant to this case because it does not relate specifically to frontier offices . ( 10 )
In that connection, the Commission rightly observes in its reply that the expression "frontier offices" or "frontier posts" does not refer only to posts situated on the frontier . Those expressions refer to the first customs office on entering a country and the last customs post on leaving a country, irrespective as to whether such posts are situated on the frontier itself . On the other hand, however, the Commission does not deny that the "genuine" internal offices, in other words the offices of destination, do not fall within the field of application of Directive 83/643/EEC as amended . It therefore asked the Court only to declare the Italian practices unlawful as regards frontier posts ( see the Commission' s claim, on p . 7 of the application ).
It is therefore uncontested that the Italian rules are at issue only in so far as they relate to frontier posts, which does not prevent my forthcoming observations with regard to Articles 9 and 12 of the EEC Treaty and the other provisions of Community law prohibiting charges having an effect equivalent to customs duties from also applying to customs formalities and inspections carried out in offices in the interior of the country .
6 . In its rejoinder, the Italian Government notes that the Commission agrees that Directive 83/643/EEC does not apply to customs offices in the interior of the country . In that connection, the Italian Government points out that to apply the directive in that manner has unacceptable consequences : to treat offices in the interior of the country less favourably would encourage customs formalities to be carried out at frontier posts, thereby increasing the latters' workload and impeding the flow of traffic, which would run counter to the very aim of the directive of reducing waiting times and stimulating the flow of traffic at the frontiers . ( 11 ) In that connection the Court put the following question to the Commission :
"Does the Commission not consider that it would be in the interest of speedy passage across frontiers and in accordance with the objective of abolishing internal frontiers if customs transactions were to be carried out in inland customs offices close to the place of destination? If so, is it not anomalous if inspections at frontier posts should be treated more favourably than those carried out at an inland office?"
In its reply to that question the Commission maintains that it has always been its policy to encourage customs clearance at customs offices in the interior of the country rather than at frontier posts . However, it admits that many exporters still choose to carry out customs clearance formalities at frontier posts, above all when the goods in question must be detained at the frontier in any event for health inspections or where the exporters work with forwarding or customs agents with offices at frontier posts . The Commission observes that Directive 83/643/EEC was adopted precisely because of the preference which is in fact shown for customs clearance at frontier posts . In other words, frontier posts and offices in the interior of the country are in factually different situations, and Directive 83/643/EEC introduced differing rules in the light of those differing factual situations : the requirement for frontier posts to have longer business hours responds to a need specific to frontier posts .
7 . I shall not consider here the relevance of the Italian arguments about the unacceptable consequences which in its view result from the application of Directive 83/643/EEC . I would simply mention that those arguments do not have a bearing either on the validity of the directive or on Italy' s obligation to implement it . Indeed, considerations relating to the economic implications of the implementation or effectiveness of the system introduced by Directive 83/643/EEC are not relevant in these proceedings, which are only concerned with the legality of charging for customs activities carried out during the business hours laid down by the directive .
The second Italian argument : the expression "inspections and formalities" does not cover actual clearance operations
8 . Secondly, the Italian Government denies that the customs activities which the legislative provisions at issue in some cases subject to a charge can be described as "inspections and formalities" within the meaning of Directive 83/643/EEC . It points out in this connection that its national legislation differentiates between, on the one hand, inspections and formalities relating to the movement of means of transport and goods and, on the other hand, "customs operations" for which a charge is made where they are carried out outside the normal working hours of Italian civil servants . According to the Italian Government, the difference between the two activities lies in the fact that the said "customs operations" consist of operations for the "actual clearance" (" dédouanement effectif" - "effettivo sdoganamento ") of goods, that is to say operations which owing to their complexity not only impose a heavier workload on the customs authorities but also necessitate the goods' being detained with a view to a possible "physical examination or inspection", the possible lodging of security, the payment of customs duties, and so on .
The Commission completely disagrees with the Italian argument . It argues that the Italian interpretation of the expression "inspections and formalities" would deprive the directive of any meaningful scope . It also refers to the preamble to the directive, from which it is, in its view, clear that the situations contemplated by the directive go far beyond the mere "movement of means of transport and goods ". Lastly, it cites three arguments based on the wording of Article 5 of the directive, for which I would refer to the Report for the Hearing .
9 . I understand the Italian Government' s reasoning as follows . It argues that the expression "inspections and formalities" must be given a special narrow meaning . The logical consequence of this is that the requirements laid down in Directive 83/643/EEC with regard to the business hours of customs posts also have a strictly limited application . Consequently, between the sixth and the 10th business hour of a ( frontier ) office the Italian customs authorities may charge for the performance of customs operations which exceed the ( narrowly interpreted ) meaning of the expression "inspections and formalities", that is to say, for actual clearance ( as that expression is understood by the Italian Government ). Furthermore, as I understand the Italian Government' s argument, neither does Directive 83/643/EEC preclude making such a charge for the cost of any customs operation whatsoever, even straightforward operations, taking place outside the minimum business hours prescribed by Directive 83/643/EEC ( see point 2 supra ).
Unlike the Commission, which concentrated its argument during the written procedure primarily on the Italian Government' s argument concerning the meaning of the expression "inspections and formalities", I shall assess the Italian argument ( and in addition also the lawfulness of the Italian charges ) from a more general standpoint, as I have already mentioned . The more general question ( see point 3 supra ) is whether, in the light of the case-law of the Court, a Member State may charge at all for inspections and formalities which it imposes upon the transport of goods crossing its frontiers .
The contested Italian legislation in the light of the prohibition of charges having an effect equivalent to customs duties
10 . I allude of course to the case-law of the Court from which it appears that charges or levies imposed by a Member State in connection with goods crossing the frontier can be compatible only in very exceptional situations with the prohibition of charges having an effect equivalent to customs duties which is laid down in Articles 9 and 12 of the EEC Treaty . Indeed, as from its earliest judgments, the Court has emphasized the fundamental nature of that prohibition and made it plain that the exceptions to that prohibition must be construed strictly as regards both the carriage of goods between Member States ( 12 ) and trade with non-member countries . ( 13 ) As far as intra-Community trade is concerned, the fundamental scope of the prohibition of charges having equivalent effect has been interpreted by the Court in a purposive manner, that is to say it is construed in the light of the broadest possible construction of the principle of the free movement of goods . ( 14 ) As regards trade with non-member countries, the prohibition has been based on other objectives, that is to say both on the requirements of the common commercial policy and on the requirements, consequent upon the introduction of the Common Customs Tariff, of harmonization of conditions of importation from third countries ( that is to say, harmonization of charges ). ( 15 )
That case-law defined the expression "charge having an effect equivalent to a customs duty" very broadly as any charge, whatever its designation and mode of application, which is imposed unilaterally at the time of importation or subsequently on a specific product imported from another Member State and which, by altering the price thereof, has the same effect on the free movement of goods as a customs duty . ( 16 ) I consider that it is hard to deny - the representative of the Italian Government did not challenge it at the hearing - that the charges imposed under the Italian rules fall within that definition . It follows that they are incompatible with Articles 9 and 12 of the EEC Treaty and all the other provisions of Community law which prohibit charges having an effect equivalent to customs duties, unless they fall within one of the exceptions to the prohibition on charges having equivalent effect which is accepted by the Court .
11 . Although the Italian Government has scarcely if at all invoked those exceptions, I shall now summarily consider them before reaching the conclusion that the Italian Government is not entitled to apply any of them .
I can ignore the first exception to the prohibition, which relates to charges designed to offset taxation imposed on domestic products ( see the rule set out in Article 95 of the EEC Treaty ), since it is plainly irrelevant in this case .
12 . The Court has accepted - at least as regards intra-Community trade - a second exception to the prohibition as regards charges imposed on crossing a frontier whose basis is to be found in some way in Community law itself - for instance, fees required to be paid to cover the cost of inspections prescribed by Community law ( 17 ) or monetary compensatory amounts charged pursuant to Community rules . In this case too, it is sufficient for me to point out that the Italian formalities and inspections for which a charge is made to cover their costs are not prescribed by Community law but are only tolerated by Community law ( and then only under certain conditions which I shall for present purposes assume to be fulfilled ). ( 18 )
Admittedly, Directive 83/643/EEC provides that the Member States are to carry out their inspections and formalities during certain minimum business hours each day . However, that is not to say that such inspections and formalities are effected by virtue of Community law . Indeed the system of the EEC Treaty has the aim of causing the national customs inspections and formalities gradually to disappear, and accordingly the directive requires the national inspections ( which are still permitted ) to be carried out during a minimum number of hours each day : the directive therefore does not impose any ( positive ) obligations on the Member States in this respect, but merely prescribes a number of rules governing the carrying out of the inspections and formalities unilaterally imposed by the Member States whose character of national measures is undiminished thereby .
Furthermore, that second exception cannot be invoked as regards trade with non-member countries, even though often customs operations carried out pursuant to Community law are involved ( in particular pursuant to the rules on the Common Customs Tariff ). This is because the prohibition of charges having equivalent effect has a different legal basis in that context, namely the requirements of the common commercial policy and the requirements of harmonization of conditions of importation from third countries . ( 19 ) In this case, however, unlike in the case of intra-Community trade, it is not a question of abolishing charges but of harmonizing them . Accordingly, any derogation from the prohibition must be expressly laid down by the Council or, where appropriate, the Commission, and then only on condition that "the intrinsic effect on the relevant trade with third countries" of the pecuniary charges imposed by the Council or the Commission is "uniform in all the Member States ". ( 20 )
From the above it may be seen that neither do the Italian charges satisfy the requirements of the second exception and that, irrespective as to whether they are imposed during or outside the business hours of Italian customs offices, they must be borne by public funds : if they are imposed on importers or exporters they become a charge having an effect equivalent to a customs duty ( see also the following point ).
13 . The Court has identified a third exception to the prohibition - likewise as regards intra-Community trade - for charges which might be described as "charges for services ". The Court subjects the application of this exception to especially strict conditions . A charge can only avoid being subject to the prohibition of charges having equivalent effect on this ground if it can be regarded as the consideration for a specific benefit which is actually conferred on the importer; moreover, the case-law expressly provides in addition that such a charge may not lead to the circumvention of the Treaty provisions relating to the prohibition of charges having an effect equivalent to customs duties . ( 21 ) There is therefore no doubt that where a Member State makes the importation of goods subject to the accomplishment of certain formalities or to certain inspections, the costs associated with that arrangement ( imposed in the general interest ) should be paid out of public funds and may not be charged to exporters or importers . At this point I would refer to the judgment of 5 February 1976 in Case 87/75 Bresciani, cited above . That judgment was concerned with an inspection which was required under Italian legislation to be carried out on imported products of animal origin . The Court held inter alia 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 . If, accordingly, public health inspections are still justified ... the costs which they occasion must be met by the general public which, as a whole, benefits from the free movement of Community goods" ( paragraph 10 of the judgment ).
It goes without saying that that judgment can be applied mutatis mutandis to the inspections and formalities unilaterally imposed by the Italian Government upon the crossing of the frontier which are at issue in this case . ( 22 ) Whether those inspections and formalities are carried out during or after the normal working hours of Italian civil servants appears to me to make absolutely no difference .
Turning to trade with non-member countries, as I have already stated ( point 12 ) according to the case-law of the Court the common commercial policy and the Common Customs Tariff make it necessary for the charges applicable in the context of trade with non-member countries to be harmonized . Consequently, as far as trade with non-member countries is concerned, the third exception can apply only where express provision is made for it by the Council or the Commission and it has a uniform effect at the Community' s external frontiers .
14 . In the final analysis it must therefore be concluded from the Court' s case-law that the Italian Government is also unable to rely on the third exception to the prohibition of charges having an effect equivalent to customs duties . Nevertheless, that assessment should be qualified, since before Directive 83/643/EEC entered into effect there were no rules in force at Community level relating to the business hours of customs offices . Consequently, the Member States had the power in principle to prescribe those business hours themselves, naturally subject to the rules of the Treaty, such as for instance Article 30 . However, as a result of Article 5 of Directive 83/643/EEC this situation has changed : henceforward the Member States must provide a certain minimum period laid down by the directive for the accomplishment of their inspections and formalities . However, the Community legislature considered ( at least as regards the carriage of goods between the Member States ) that Member States could invoke the third exception provided for in the case-law as far as the accomplishment of inspections and formalities outside that minimum period was concerned, by providing that if certain conditions are met such inspections and formalities take on the character of a service provided to the importer or exporter . Hence Article 5(4 ) provides as follows :
"... under the conditions laid down by the Member States, the competent authorities of the Member States shall provide, if specifically requested during business hours and for sound reasons, for inspections and formalities to be carried out, as an exception, outside business hours, on condition that, where relevant, payment be made for services so rendered" ( my emphasis ).
That provision corresponds closely, as appears from the passages which I have emphasized, to the case-law cited above ( 23 ) according to which payment may be requested only where the Member State provides a specific service at the request of the importer or exporter . It goes without saying that in so far as the Italian rules provide for payments covering costs to be charged during the customs offices' business hours as prescribed by the Community legislation they cannot be justified under that exception . ( 24 )
15 . As a result of that consideration of the Court' s case-law the decision can therefore be reached that the charging by a Member State of fees to cover the costs of carrying out inspections or formalities imposed by the Member State itself is incompatible with the prohibition on charges having an effect equivalent to customs duties as regards both intra-Community trade and trade with non-member countries, unless in the case of intra-Community trade such inspections are carried out at the express request of an individual importer or exporter outside the minimum business hours laid down in Directive 83/643/EEC . I therefore conclude that, in so far as they provide for the charging of fees to cover the costs of carrying out of inspections and formalities prescribed not by Community but by national law during the normal business hours ( namely those laid down by Directive 83/643/EEC ) of the Italian customs offices, the Italian provisions at issue are incompatible with Articles 9 and 12 of the EEC Treaty and all the other provisions of Community law which prohibit charges having an effect equivalent to customs duties and incompatible as regards both intra-Community trade and trade with non-member countries . In my view, therefore, the Commission' s application should be upheld .
An ancillary point : the meaning of the expression "inspections and formalities"
16 . From the above it appears that the system of charges as provided for in the Italian legislation at issue is incompatible with Community law, irrespective of the correctness of the Italian Government' s argument, which has already been described ( in points 8 and 9 ), based on the meaning of the expression "inspections and formalities" in Directive 83/643/EEC .
Yet that argument is not completely without relevance to this case . As has been seen ( in point 14 ), Article 5(4 ) of the directive provides that in exceptional cases inspections and formalities must be carried out, even outside the normal business hours prescribed in the directive for customs offices, at the request of importers or exporters; the Community provision provides that, where appropriate, payment may be charged for that service . With a view to the uniform application of that provision it is important, for the sake of completeness, to consider the Italian argument and the narrow interpretation which it gives to the expression "inspections and formalities ".
17 . I consider that in defining the expression "inspections and formalities" it must be presupposed that it has a meaning in Community law . Indeed it is inconceivable that its meaning should be fleshed out unilaterally by the Member States : if that were so, the Member States would be given a licence to define their obligations under Directive 83/643/EEC as they pleased, which would jeopardize the directive' s aims .
Secondly, it must be borne in mind that, as has already been observed ( point 3 ), Directive 83/643/EEC applies only to customs formalities and inspections to which the Member States subject the carriage between Member States of goods which are already in free circulation within the Member States ( or are placed under a customs transit procedure ). The requirements laid down by Community law with regard to the free movement of goods subject the permissibility of national legislative provisions imposing such formalities or inspections or both to significant limitations ab initio . The case-law of the Court leaves no room for doubt that the creation of a customs union does not entail only the abolition of customs duties and charges having equivalent effect, but also presupposes the elimination of any other impediment to the free movement of goods within the Community, whether on the basis of prohibitions arising out of provisions of the Treaty or on the basis of secondary legislation ( such as, for example, Directive 83/643/EEC ). I would refer to the judgment of 13 December 1973, in which the Court held inter alia as follows :
"... the customs union, which is one of the foundations of the Community, involves, on the one hand, the elimination of customs duties between the Member States and of all charges having equivalent effect;
the elimination of such charges is designed to promote the free movement of goods within the Community;
it must therefore be sufficiently comprehensive to include the abolition of all pecuniary, administrative or other obstacles, for the purpose of achieving a unified market between the Member States ..." ( 25 )
18 . The judgment of 20 September 1988 in Case 190/87 Moormann (( 1988 )) ECR ) contains a number of interesting pointers with regard to the question . In that case the Court had, in particular, to answer a preliminary question referred by the Bundesverwaltungsgericht ( Federal Administrative Court ) concerning the field of application of Articles 1 and 2 of Directive 83/643/EEC .
The main proceedings were between a Dutch importer of poultrymeat ( Moormann ) and the German customs administration . Moormann had complained about the practice of the German customs of checking all the accompanying documents and of verifying whether the imported goods tallied with them . Moormann regarded this practice as a systematic inspection which, in its view, was not compatible with, in particular, Article 2 of Directive 83/643/EEC, which provides that in principle inspections should be carried out only by means of spot checks . Since the directive does not lay down any such limitation in the case of "administrative formalities", the Bundesverwaltungsgericht asked the Court what criteria must be used to differentiate between "physical inspections" and administrative formalities .
In its judgment the Court states that Directive 83/643/EEC was designed to lay down certain rules for the performance of the physical inspections and administrative formalities which a Member State requires to be carried out when a frontier is crossed with a view to reducing waiting times at the frontiers and improving the flow of goods transport between the various Member States ( paragraph 26 of the judgment ). In accordance with the directive' s aim of facilitating frontier crossings and eliminating the systematic performance of expensive checks, the wording of the directive must be interpreted in such a way that it effectively assists in achieving that aim ( paragraph 27 ).
As regards the actual question which the Court had to answer, namely the mutual relationship between the terms "inspections" and "formalities" as they are employed in Directive 83/643/EEC, the Court held inter alia as follows ( tentative translation ):
"( paragraph 28 ) ... the term 'inspections' must be understood as covering all inspections of goods involving physical interference with them;
...
( paragraph 29 ) the term 'administrative formalities' must be understood as covering all transactions which involve the checking of documents and certificates accompanying goods and intended to ensure by a simple visual inspection that the goods, documents and certificates correspond where such transactions may be carried out by officers with general power to check goods at the frontier ".
If paragraphs 26 to 29 are read together it seems to me that they can be understood, at least by implication, as meaning that the expression "inspections and formalities" within the meaning of Directive 83/643/EEC covers without limitation all the inspections and formalities to which a Member State subjects frontier traffic .
19 . It seems to me that in the light of the above the interpretation of the expression "inspections and formalities" suggested by the Italian Government ( to the effect that there is a distinction between inspections and formalities, on the one hand, and actual clearance operations, on the other ) does not stand up . There is nothing to support it in the wording of Directive 83/643/EEC or in the interpretation given to that directive by the Court in its judgment in the Moormann case . Moreover, it is hard to reconcile with the aims of Directive 83/643/EEC as they are described in the judgment in the Moormann case . The Commission rightly claims that the Italian interpretation would deprive the expression "inspections and formalities" of any meaningful scope . Lastly, a provision of Community law which is susceptible of more than one interpretation must be given the interpretation which is the most consistent with the objectives of the Treaty, ( 26 ) that is to say in this case with the attainment of an internal market . I therefore consider that there are no convincing reasons at all for assuming that the expression "inspections and formalities" in Article 5 of Directive 83/643/EEC should not cover all inspections and formalities to which a Member State subjects the carriage of goods between Member States .
Conclusion
20 . On the basis of the arguments set out above I propose that the Court should declare that, by charging operators with the cost of inspections and formalities ( understood in a broad sense ) which are not laid down by rules of Community law during part of the normal business hours of customs offices, the Italian Republic has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty and under the other provisions of Community law containing a similar prohibition on charges having an effect equivalent to customs duties . The Italian Government should be ordered to pay the costs .
(*) Original language : Dutch .
( 1 ) Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States, Official Journal 1983, L 359, p . 8, as amended by Council Directive 87/53/EEC of 15 December 1986, Official Journal 1987, L 24, p . 33 .
( 2 ) The decree consolidates customs legislation .
( 3 ) As amended by Article 1(2 ) of Decree No 254 of 8 May 1985 of the President of the Republic .
( 4 ) According to the Commission' s claims, which were confirmed at the hearing by the representative of the Italian Government, the working hours of Italian civil servants are six hours per day from Monday to Saturday .
( 5 ) The expressions "frontier posts" or "customs offices" are not defined in the directive .
( 6 ) With one exception, that is to say Article 5(4 ) of the directive, which allows charges to be made on an exceptional basis . See in addition point 14, infra .
( 7 ) The Commission cites by way of example Regulation No 805/68/EEC of 27 June 1968, as amended by Regulation No 425/77/EEC, Official Journal 1977, L 61, p . 1 .
( 8 ) The Commission cites by way of example the Agreement concluded on 1 July 1973 between the Community and the Kingdom of Norway, Official Journal 1973, L 171, p . 1 .
( 9 ) It should be observed that the confusion in question originates to a large degree in the wording of the Commission' s application, which is constructed on the basis of Directive 83/643/EEC rather than on the basis of the prohibition of charges having equivalent effect to customs duties . Nevertheless it is clear from the Commission' s claim ( see p . 7 of the application and point 1 supra ) that it considers the Italian practice of charging for the performance of customs formalities during part of the "normal business hours" ( that is to say, under Directive 83/643/EEC, an uninterrupted period of 10 hours from Monday to Friday ) to be unlawful under various provisions prohibiting charges having an effect equivalent to customs duties, with a provision of Directive 83/643/EEC being cited only in fourth place .
( 10 ) I would state forthwith that I am not convinced by this reasoning : even if that provision does not relate specifically to frontier posts, that does not prevent its being declared to be invalid in so far as it applies to frontier posts .
( 11 ) Italy goes on to argue that to apply the directive in that way creates discrimination between goods which are cleared through customs at the frontier and goods which are cleared through customs in the interior . In the Italian Government' s view, that discrimination cannot be justified by the difference in the situations in which the goods are placed .
( 12 ) See in particular the judgment of 13 November 1964 in Joined Cases 90 and 91/63 Commission v Luxembourg and Belgium (( 1964 )) ECR 625 . The Court held inter alia that "Article 12 (( of the EEC Treaty )) prohibits the introduction of new customs barriers, so as to facilitate the integration of national markets and the establishment of a common market ... this prohibition ... constitutes an essential requirement ... for the substitution of a common market for the different national markets ... Thus Article 12 constitutes a fundamental rule and any possible exception, which in any event must be strictly construed, must be clearly laid down" ( at p . 633 ). See also the judgments of 16 June 1966 in Joined Cases 52 and 55/65 Germany v Commission (( 1966 )) ECR 159, in particular at pp . 169 and 170, of 10 December 1968 in Case 7/68 Commission v Italy (( 1968 )) ECR 423, in particular at p . 429, and of 1 July 1969 in Case 24/68 Commission v Italy (( 1969 )) ECR 193, in particular paragraphs 3 to 7 .
( 13 ) See the judgment of 13 December 1973 in Joined Cases 37 and 38/73 Sociaal Fonds voor de Diamantarbeiders v Indiamex (( 1973 )) ECR 1609, in particular paragraphs 5 to 21, in which the Court held that subsequent to the introduction of the Common Customs Tariff the prohibition also applied to trade with non-member countries; however, charges already in existence when the Common Customs Tariff came into effect could only be eliminated on the basis of decisions of the Council or the Commission, for example in provisions adopted in the framework of the common agricultural policy, of trade agreements or of association arrangements with non-member countries . For the interpretation of such a provision in an association agreement, see the judgment of 5 February 1976 in Case 87/75 Bresciani (( 1976 )) ECR 129, paragraphs 15 to 26 .
( 14 ) See in particular the judgments of 1 July 1969 in Case 24/68 Commission v Italy, cited above, paragraph 8, and in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfel and Chongold (( 1969 )) ECR 211, paragraphs 15 to 17 .
( 15 ) See the judgment of 28 June 1978 in Case 70/77 Simmenthal v Amministrazione delle finanze (" Simmenthal II ") (( 1978 )) ECR 1453, in particular paragraphs 21 to 27; with regard to that case see also point 12, infra .
( 16 ) For the present wording of this definition see, in particular, the judgments of 1 July 1969 in Case 24/68 Commission v Italy, cited above, in particular paragraph 9, and in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld, cited above, in paragraph 18 .
( 17 ) See, for example, the judgment of 25 January 1977 in Case 46/76 Bauhuis (( 1977 )) ECR 5, in particular paragraphs 31 and 51; see also the judgment of 27 September 1988 in Case 18/87 Commission v Germany (( 1988 )) ECR 5427, in which the Court held that "where the sole object of the fee in question is to cover the cost of an obligation imposed on all Member States equally by Community law, it cannot be regarded as a charge having an effect equivalent to a customs duty" ( tentative translation of paragraph 14; my emphasis ).
( 18 ) In the judgment of 25 January 1977 in Case 46/76 Bauhuis, cited above, the Court held inter alia that "fees charged ... for ... public health inspections ... which are not required by a Community regulation or directive but which have been prescribed (( by the Member State of destination )) for the purpose of checking whether the conditions to which the Member State of destination has made the importation subject have been complied with, constitute charges having an effect equivalent to customs duties" ( paragraph 51 ).
( 19 ) As expressly stated in paragraph 23 of the judgment of 28 June 1978 in Case 70/77 Simmenthal II, cited in point 10 above .
( 20 ) Ibid ., paragraphs 26 and 27 .
( 21 ) See in particular the judgment of 1 July 1969 in Case 24/68 Commission v Italy, cited above, in particular paragraph 11; see also the judgment of 11 October 1973 in Case 39/73 Rewe-Zentralfinanz (( 1973 )) ECR 1039, in particular paragraph 5 . In the judgment of 26 February 1975 in Case 63/74 Cadsky (( 1975 )) ECR 281, it was held that a charge to pay for a quality control ( coupled with the grant of certificates of inspection and the affixing of a national export stamp ) was not covered by this exception : even if such a certificate and such a stamp is capable of encouraging exports, that 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" ( paragraph 8 ). The use of the adjectives "specific" ( in all the cases cited ) and "individual" ( in the Cadsky judgment ) signifies that it must be a question of a specific and individualized benefit which, logically, can in fact be conferred only in response to an individual request by an individual importer or exporter, that is to say it should be of an optional nature . That principle is applied in Article 5(4 ) of Directive 83/643/EEC, which will be discussed further in point 14 below .
( 22 ) See also the judgments of 14 December 1972 in Case 29/72 Marimex (( 1972 )) ECR 1309, and of 11 October 1973 in Case 39/73 Rewe-Zentralfinanz, cited above, in which it was held that health and phytosanitary inspections, respectively, are to be regarded as charges having equivalent effect .
( 23 ) See footnote 21 .
( 24 ) As I have mentioned, Directive 83/643/EEC, and therefore Article 5, applies only to intra-Community trade ( point 3, supra ). As far as trade with non-member countries is concerned, the Council could also provide for such an exception, provided that the charges imposed on importers have a uniform effect at the external frontiers of the Community ( see point 13 in fine ).
( 25 ) Judgment in Joined Cases 37 and 38/73 Sociaal Fonds voor de Diamantarbeiders v Indiamex, cited above, paragraphs 5 to 7 ( my emphasis ).
( 26 ) See the judgment of 25 November 1986 in Joined Cases 201 and 202/85 Klensch (( 1986 )) ECR 3477, in particular paragraph 21 .