61980C0132
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 25 FEBRUARY 1981 (
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Mr President,
Members of the Court,
1.
The actual circumstances which have given rise to this reference for a preliminary ruling may be summarized as follows: the Belgian State subjects imports of fish to a complex system of public health controls and requires importers to pay certain sums by way of inspection levies. Both companies, United Foods and Van den Abeele, imported into Belgium quantities of fish from other Member States and paid the levies, which they regard as contrary to the EEC Treaty, subject to reservations. They subsequently instituted proceedings against the Belgian State in the Rechtbank van Eerste Aanleg, Bruges, for the recovery of the sums paid. The questions formulated under Article 177 of the EEC Treaty by the Court trying the main action deal in substance with two types of problem: in the first place, an assessment of the health control measures of the kind described in the light of the prohibition of measures having an effect equivalent to quantitative restrictions on imports (Article 30), bearing in mind however that this prohibition may be derogated from by virtue of Article 36 and, secondly, an assessment of the inspection levies imposed on importers in relation to Articles 9 and 12 (which prohibit any charges having an effect equivalent to customs duties) or Article 95 (which prohibits any kind of internal taxation which is discriminatory in nature).
Before considering the scope of these rules in relation to cases such as the one in point, I would observe that, once again, the Court is essentially being requested to give a ruling on the conformity or otherwise with Community law of the provisions in force in a Member State, not as the result of an action taken on the basis of Article 169 but by means of a procedure under Article 177. The drawbacks to this approach have been emphasized so often that it may seem that to repeat them again would serve no purpose. All I would wish to say is that, whilst agreeing that the Court's task is merely to interpret Community rules, the appraisal of the factual circumstances which are the most salient features of the litigation will remain a matter for the court trying the main action.
2.
In the first question, the national court asks: “Must Article 30 et seq. of the EEC Treaty be interpreted as meaning that public health inspection, carried out at the frontier when fish is imported, and being compulsory and systematic in nature, be regarded as a measure having an effect equivalent to quantitative restrictions on imports”. But the question goes beyond compulsory health inspections in general; the sentence referred to above is qualified by several specific instances which, although put forward as equally hypothetical features of control, reflect all the details of the system in force in Belgium. The court trying the main action refers, in great detail, to: (a) the duty on the part of the importer to notify the competent administrative department in writing, at least 24 hours before importation, of the nature, quantity and origin of the goods, specifying the day and time of importation as well as the customs office through which it is to take place; (b) the fact that importation is permissible only through the customs offices designated by the authorities on the day and at the times fixed by the latter; (c) the determination by law of the requirements which must be met by the containers, packing and ice used; (d) the obligation to affix to every package the inspection marks prescribed by the authorities; (e) the requirement that consignments of imported fish must be accompanied by a health certificate issued by the competent authority of the country of origin attesting that the fish has been inspected and declared fit for consumption on the day of despatch; the certificate must be drawn up in accordance with a standard form prescribed by the authorities of the importing Member State.
In my opinion, even in the absence of such details, the question would have had to be answered in the affirmative. In the Court's judgment of 8 November 1979 in Case 251/78, Denkavit [1979] ECR 3369 it was emphasized, quite rightly, that the Court “in its decided cases continues to interpret the concept of measures having an effect equivalent to quantitative restrictions in Article 30 of the Treaty as applying to systematic veterinary and public health inspections carried out at the intra-Community frontiers” (paragraph 10 of the decision). This is not difficult to understand: any form of inspection of imported goods is, in and by itself, an obstacle to the free movement of such goods and since, logically, it constitutes an instrument for selecting products it is capable of restricting the quantity of goods entering the territory of a Member State. I would point out, incidentally, that even selection based on “qualitative” criteria results in a restriction on the quantity of goods admitted. Moreover, in the above-mentioned Denkavit judgment, the Court classified as a measure having an effect equivalent to a quantitative restriction even a mere obligation imposed by an importing Member State to produce a certificate issued by the authorities of the exporting Member State (paragraph 11 of the decision). A fortiori, therefore, a system combining the duty to produce a certificate of this kind with another, direct health control is contrary to Article 30 of the Treaty.
In its defence, presented in the oral procedure, the Belgian Government maintained that the system in question cannot constitute a measure having an effect equivalent to a quantitative restriction since health control applies to fish landed in Belgian ports after being caught and to imported fish alike. In reality, they are not treated on the same footing, as I shall explain later. In principle, however, it is sufficient to recall the criterion laid down by the case-law of this Court, and most recently in its judgment of 26 June 1980 in Case 788/79 Gilli-Andres [1980] ECR 2071, according to which even national rules applicable to domestic and imported products without distinction may not derogate from the requirements of Article 30 save where necessary “in order to satisfy imperative requirements relating in particular to the protection of public health or of the fairness of commercial transactions or of the defence of the consumer”. Therefore, although a national system of health inspections may apply to all fishery products regardless of their origin, this would neither preclude inspection of imported products from being incompatible with the rule contained in Article 30 nor obviate the need to determine whether there are any requirements (such as public health protection) which permit exceptions to this rule.
Finally, it is necessary to dismiss the idea that Member States are free to continue to apply their own legislation relating to the conditions for the marketing of products lawfully sold in other Member States until the Community harmonizes the legislation of the various Member States in each sector. In its judgment of 5 April 1979 in Case 148/78 Ratti [1979] ECR 1629, the Court held that where Community directives provide for the harmonization of measures necessary to ensure the protection of health and establish Community procedures to supervise compliance therewith “recourse to Article 36 ceases to be justified and the appropriate controls must henceforth be carried out and the protective measures taken in accordance with the scheme laid down by the harmonizing directive” (paragraph 36 of the decision). It is clear, however, in this case that, given the absence of directives harmonizing legislation relating to health controls on fish, national arrangements in this sector cannot escape the application of the principles laid down by Articles 30 and 36 of the Treaty.
3.
In the second question (which arises only if the answer given to the first question is in the affirmative), the Belgian court asks: “Must Article 36 of the EEC Treaty be interpreted as meaning that public health inspection of the type described in the first question is justified on the ground of the protection of public health which such inspection is intended to achieve.” In this connexion, I would point out that when it refers to control “of the type described” the court trying the main action evidently has in mind all the characteristics of the system of control which are set forth in detail in the first question. These characteristics must therefore be taken into account when answering the question.
In so far as it derogates from the principle laid down in Article 30, Article 36 must be strictly interpreted: the restrictions on trade which it permits must be actually justified on one of the grounds which are set out exhaustively in the article itself (in the present case, the relevant ground is “the health and life of humans”). Furthermore, the exception is subject to the condition that the restrictions introduced on the basis thereof must not constitute “a means of arbitrary discrimination or a disguised restriction on trade between Member States”. In a situation where health control is carried out at the frontier, clearly the purpose of such control enables the Member State concerned to rely on Article 36 but, equally clearly, it remains to be established: (a) whether such control is in point of fact justified; (b) whether or not it is discriminatory or excessively restrictive in nature. On the latter question it is appropriate to recall the wording of Article 3 of Commission Directive 70/50/EEC of 22 December 1969 (on the abolition of measures which have an effect equivalent to quantitative restrictions) which provides that measures governing the marketing of products, even though equally applicable to domestic products and imported products, have a restrictive effect which exceeds the effects intrinsic to trade rules, in particular where the restriction is out of proportion to its purpose and where the same objective can be attained by other means which are less of a hindrance to trade.
The type of health control described by the court trying the main action must be considered in the light of the above criteria. The first characteristic which falls to be examined is the cumulation of the inspection carried out in the exporting country on the day of despatch and the inspection carried out by the importing country. The Court has had occasion to rule on a similar system in its above-mentioned judgment of 8 November 1979 in the case of Denkavit where it held (at paragraph 3 of the operative part) that a double-check on animal feeding-stuffs by the importing country which consists in requiring the production of a health certificate issued by the competent authority of the exporting country and, in addition, in subjecting the goods accompanied by that certificate to another systematic health control at the frontier with the same object in view “is more than Article 36 of the EEC Treaty permits, if the health and life of humans and animals can be protected as effectively by measures which are not so restrictive of intra-Community trade”.
The question is whether this precedent provides a sufficient warrant for any mechanism of health control involving a double-check to be regarded as excessive for the purposes of Article 36.
In my opinion, this question cannot be divorced from the nature of the product to which the control has to be applied. The fishery products in question in the -present case are highly perishable and the protection of public health may justify a double-check where, between the time when the health control is carried out in the exporting State and the time of arrival in the importing State, there is an interval of time capable of bringing about organic changes in the fish. This means, however, a contrario that if the interval is a short one, the second control is not objectively necessary. Moreover, account should be taken of the difference between fresh and frozen fish, the system of chilling and the form of transportation employed. Ultimately, all these physical factors are decisive for the purpose of determining the lawfulness or otherwise of a double-check in the light of Article 36. However, they can be assessed only by the national authorities (at administrative level and later by the courts) on the basis of the general criterion of Community law according to which controls of the type described are lawful only where they are essential for the protection of public health. In this connexion, it is pertinent to recall that the court stated in paragraph 24 of its above-mentioned judgment of 18 November 1979 in the case of Denkavit that “it is in each case for the national courts to apply these criteria in the light of all the circumstances relating to the actions brought before them taking into account the fact that it must always be the duty of the national authority relying on Article 36 to prove that the measures which it enforces satisfy these criteria”.
Another element among those which may render health controls on fish excessively restrictive is the duty on the part of the importer to notify the competent customs authority in writing at least 24 hours before importation of the nature, quantity and origin of the goods, specifying also the date and time of importation and the customs office through which it is to take place. As the representative of the Danish Government has rightly pointed out, fresh fish must, in view of its nature, be distributed swiftly and therefore the duty referred to above may constitute an excessive restriction whenever imports of fresh fish are delayed merely as a result of this formality. This is of course another factor which must be assessed in each individual case.
In conclusion, with reference to the possibly discriminatory character of the health controls in question, I would point out that the application of a different system of control to imported fish on the one hand and to fish from domestic fish farms as well as fish landed in national ports directly after it has been caught on the other must be justified on objective grounds. In Belgium, the inspection of fish of domestic origin is carried out where the fish is sold. The Commission and the Danish Government wonder whether it might not be possible to treat imported fish in the same way. Even as regards the control of the modes and conditions of transport, domestic fish and imported fish are governed by different systems whose strictness varies (but which is greater in the case of imported fish). It is exclusively for the court trying the main action to establish whether there is arbitrary discrimination and therefore whether the exception to the principle laid down in Article 30 is inapplicable. All the Court can do is to reaffirm what is clearly stated in the provisions of the last paragraph of Article 36.
4.
The purpose of the third question submitted by the Belgian court is as follows: “Are the inspection levies which are imposed on importers in order to cover the costs of the inspection described in the first question to be regarded as charges having an effect equivalent to customs duties within the meaning of Article 9 et seq. of the EEC Treaty or as internal charges within the meaning of Article 95 of the EEC Treaty, if:
—
the inspection of fish farms is not subject to any levy at all in the Member State concerned;
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the inspection of fish caught in the sea takes place, after it has been landed, in fish markets and concerns the hygienic standard, freshness and the purity of the fish whilst the health inspection on importation takes place at customs offices and concerns the health certificate, the means by which the fish has been transported, the state of preservation as well as conformity with the requirements of the regulations of the importing Member State on inspection and the importation on fish;
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the inspection levies must be paid on importation at the time when the imports cross the frontier;
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inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?”
I would observe that by resorting once again to the same technique as that used in formulating the first question, the court has summarized the most important provisions in force in Belgium on the subject of inspection levies on fish, treating them as the conditions of a theoretical system. For our purposes, however, what is noteworthy is that the conditions described reflect the extent to which the system applicable to imported fish differs from that applicable to fish of domestic origin. This difference is brought out essentially by the four sets of circumstances set out in the question which are as follows:
(a)
in the case of certain fish of national origin (fish from fish farms) no levies are payable, whilst there is an obligation to pay a levy in the case of all imported fish;
(b)
the control operations justifying the charges are different for the two categories of fish and are carried out in different places;
(c)
the obligation to pay the levy arises at different times;
(d)
the amount of the inspection levies is not the same (at any rate for fish other than whole unprocessed fish).
In connexion with this last point, I would add that the court trying the main action could, again by examining the Belgian rules at issue, have discovered a fifth circumstance, namely the difference in the basis of the charge: under Belgian law, the charge levied for the inspection of imported fish is BFR 15 per quintal or part thereof (BFR 30 for processed fish) whereas the charge levied on fish caught in the sea and landed in national ports is BFR 0.15 per kilogram or fraction thereof.
What makes the differences referred to above decisive for the purposes of the answer to the third question is the criterion established by the decisions of this Court concerning the boundary between the area of application of Article 9 and that of Article 95 of the EEC Treaty. This criterion may be summarized as follows: any type of charge forming part of a general system of internal dues applied to all products of a given kind without distinction, whether domestic or imported, comes within the scope of Article 95; in particular, the charges in question must be levied on the basis of identical criteria at a comparable stage in the cycle of production or at the same marketing stage (see the following judgments: 5 February 1976 in Case 87/75, Bresciani [1976] ECR 129, paragraph 11 of the decision; 28 June 1978 in Case 70/77, Simmentbal [1978] ECR 1453, paragraph 1 of the operative part; 31 May 1979 in Case 132/78, Denkavit [1979] ECR 1923, paragraph 8 of the decision).
In my opinion, it is proper that these decisions should be followed. Article 95 reflects the principle of equivalence between fiscal charges, which presupposes a unity in the mechanism, not to say in the “type”, of a given charge and its applicability to domestic products and imported products alike. It is otherwise when a charge is levied on imported products, paid when they cross the frontier (as stated in the third question of the Belgian court) and linked to specific control operations performed on the imported goods, even though a charge which is in some respects similar, although it has a mechanism of its own and is based on different criteria, is levied on some corresponding domestic products. A situation of this kind comes within the scope of Article 9 which prohibits charges having an effect equivalent to customs duties. On numerous occasions this Court has ruled quite correctly along these lines, precisely in cases where it has had to deal with the charging of health inspection levies on imported goods: see, for example, the judgment of 14 December 1972 in Case 29/72 Marimex [1972] ECR 1309 (operative part); the above-mentioned judgment of 5 February 1976 in Case 87/75 Bresciani (paragraph 7 of the decision and paragraph 1 of the operative part) and the judgment of 15 December 1976 in Case 35/76, Simmenthal [1976] ECR 1871 (paragraph 3 of the operative part). It is particularly interesting to recall, with a view to the solution in the present case, that in these decisions the circumstance that the charge was levied at the frontier was regarded as highly significant, both as an element for distinguishing between the pecuniary charges prohibited under Article 9 and those falling under Article 95 (see the above-mentioned judgment in Case 35/76, Simmenthal, paragraphs 3 and 4 of the operative part) and in relation to the particular purpose of Article 9 which is “to avoid the imposition of any pecuniary charge on goods circulating within the Community by virtue of the fact that they cross a national frontier” (see the above-mentioned judgment in the case of Bresciani, paragraph 8 of the decision).
It follows from the above considerations that the inspection levies whose characteristics are described by the Belgian court in its third question cannot, precisely as a result of those characteristics, be regarded as forming part of a general system of internal taxation governed by the rule contained in Article 95 since they constitute charges having an effect equivalent to customs duties on imports which are incompatible with the prohibition referred to in Article 9.
The charging of the inspection levies under discussion would be deemed to fall outside the scope of the prohibition in Article 9 if inspection were uniformly prescribed by a rule of Community law (a possibility examined in the judgment of the Court of 25 January 1977 in Case 46/76, Bauhuis [1977] ECR 5) or if it were in the nature of a service rendered to an individual importer (see the above-mentioned judgment of 8 November 1979 in the case of Denkavit, paragraph 30 of the decision). However, the first possibility must be categorically rejected in the present case: the questions formulated by the court trying the main action undoubtedly relate to a system of controls set up by a Member State independently of any Community requirement. With regard to the second possibility, I would refer to the above-mentioned judgment of 5 February 1976 in the Bresciani case where the Court 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 of the decision). Once again, this is a case of public health inspection established in the public interest and therefore the same reasoning applies as in the Bresciani case.
Finally, I would observe for the sake of completeness that the circumstances relied upon by the Belgian Government to justify the difference in the rates at which the inspection levy is charged on “domestic” fish and on imports of unprocessed fish are devoid of any significance in this case. In the first place, I shall never tire of repeating that the examination of questions referred to the Court for a preliminary ruling pursuant to Article 177 must be carried out in general terms and must therefore leave out of account the specific reasons for the line of action adopted by a particular government. Secondly, the disparity between the inspection levies is certainly not sufficient to bring them within the scope of, Article 9 rather than that of Article 95 : at most, it constitutes one of the circumstances which help to bring into focus the difference between the system of charges imposed on fish of domestic origin and the system applied to imported fish. Other circumstances, however, which have already been referred to, carry more weight as evidence of the difference between the two systems: the purpose and the detailed procedures of the control giving rise to the levy, the time and place of inspection, the time when the obligation to pay the levy arises and the limited sphere of application of the levies imposed on fish of domestic origin.
5.
In view of the argument which I have propounded in relation to the third question, no purpose would be served by considering the fourth question which has expressly been made conditional upon the classification of the inspection levies under discussion as internal charges within the scope of Article 95.
In conclusion, therefore, for the above reasons, I am of the opinion that the Court should answer the questions referred to it by the Rechtbank van Eerste Aanleg, Bruges, by judgment of 5 March 1980, as follows:
1.
Article 30 of the EEC Treaty must be interpreted as meaning that health inspections which are compulsory and systematic in nature, carried out at the frontier on the importation of fish from another Member State, constitute in principle measures having an effect equivalent to a quantitative restriction.
2.
In the case of goods which are highly perishable, such as fish, Article 36 of the Treaty may justify in specific cases public health control on importation even where the product has already undergone a similar control in the country of origin and is accompanied by a certificate issued by the competent health authority of that country attesting that the fish was fit for consumption on the day of despatch; but this is so only where there are substantial grounds for entertaining reasonable doubts as to whether on customs clearance the state of the product corresponded to the state in which it was found when the initial control was carried out. In any event, health controls on importation must not be accompanied by excessively restrictive procedures or by conditions which constitute arbitrary discrimination compared with the system of control applied to fish of domestic origin.
3.
The pecuniary charges imposed on importers of specific products under a system of compulsory health controls at the frontier fall within the category of charges having an effect equivalent to customs duties, in spite of the fact that corresponding domestic products are subject to the payment of similar inspection levies, unless the charges are imposed on imported products and domestic products without distinction and are levied on the basis of identical criteria.
(
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