4.

Further consideration of the question how the concept ‘charges having an effect equivalent to a customs duty’ is to be defined with regard to the special features of the main action must above all proceed on the basis of what has already been developed in the case-law of the Court and which has been stated to be relevant. Accordingly, it is important that the concept should be defined with regard to the fundamental purpose of the Community which is to ensure that the free movement of goods is guaranteed. The importance of the prohibition on levying customs duties and charges having equivalent effect on intra-Community trade and the need to maintain this prohibition intact call for a broad definition of the concept. Accordingly, one is confronted with charges having an effect equivalent to a customs duty if Member States unilaterally subject imported goods to financial burdens because they cross the frontier, without regard being had to the purpose for which such burdens are created or collected. It was also emphasized that it does not depend upon the denomination and nature of the levy and it is a matter of indifference whether they are levied for the benefit of the State and whether they have discriminatory or protectionist effects. This may be deduced in particular from the judgments in Case 24/68 ([1969] ECR 193) and in Joined Cases 2 and 3/69 ([1969] ECR 211). In accordance with these judgments the basic requirement thus is that a duty is imposed because of crossing the frontier and that crossing the frontier constitutes the decisive reason for this. (a) On the other hand, the Italian Government maintains that these circumstances are not present in the levying of the sanitary charges. These charges must really be considered as a consideration for the service rendered by the administration and as thereby excluded from the ambit of charges having an effect equivalent to a customs duty. In this way reference is likewise made to the relevant case-law where in fact it has been repeatedly stated that the concept ‘charge having an effect equivalent to a customs duty’ must accommodate the said restriction that charges of this nature do not exist if in fact the service rendered by the State is paid for by appropriate considerations. For example reference may be made to the judgment in Case 24/68 and to the judgment in Joined Cases 2 and 3/69. Let us then consider this case-law and what conclusions may be drawn with regard to the problems in the main action. From such consideration it is clear in particular that the Court, contrary to certain views which I have set out in Joined Cases 52 and 55/65 ([1966] ECR 219), have applied extraordinarily strict conditions to the concept of the consideration for administrative services, in view of the principle that every exception to the prohibition on levying customs duties and charges having equivalent effect must be restrictively interpreted. It was thus emphasized that in this connexion no significant administrative service could be held to exist if the entire trade derived benefit from it. It must instead be possible to perceive an advantage on the market for the imported products themselves and the consideration of the persons concerned must be appropriate to this advantage, although it need not correspond to the costs actually incurred by the administration. Finally, recourse to the legal concept of the consideration of the persons concerned is excluded if their advantage can only be considered as general and difficult to evaluate. In accordance with these principles serious doubt must be harboured whether the sanitary charge under Italian law is actually classified as a consideration for an administrative service and can thus be excluded from the scope of charges having an effect equivalent to a customs duty. In this connexion it certainly cannot be considered as a significant advantage that the importer, through the implementation of the sanitary controls and after settlement of the dues therefor, is enabled to put the goods into free circulation. This has already been stated in the judgment in Joined Cases 52 and 55/65. Properly understood, the right freely to market imported goods is rather something which comes about automatically, a right flowing from the Treaty, when it is ascertained that the goods fulfil the requirements of the law. In addition, it may be maintained that there is a general public interest in bringing about a free exchange of goods. When general interests are involved (the Italian Government itself admits that this is the case with regard to the exercise of sanitary inspections at the frontier), the question arises in particular whether this public interest is predominant and the particular advantages obtained by the importer are subordinate, that is to say, appear irrelevant. It seems that this is in fact the position in the present case. It certainly cannot be denied that importers scarcely have a private interest in sanitary inspections and assessments of quality precisely when the frontier is crossed, thus at a considerable distance from the destination of the goods. Furthermore, there is considerable doubt as to the existence of a concrete quantifiable benefit which, in the view of the Italian Government, arises from the circumstance that it is certified after the completion of the sanitary inspections that the goods are free from disease and of good quality. It is at all events essential that precisely because of the guidelines which have already been mentioned the exporting state must ensure that with regard to Community trade certain products comply with certain conditions and that a certificate issued after inspection by an official veterinarian must accompany the goods to their destination. Viewed in this light, inspections at the frontier can only constitute summary checks and not proceedings which can bring about a quantifiable increase in value and improvement of marketing prospects of the relevant goods. Finally it does not appear to be the case that the inspections at the frontier (and this might represent a material benefit) render superfluous other inspections which apply generally to products of that kind, within the country. If I am correct it is indeed the case — the national court must naturally scrutinize this point — that internal inspections (for example before and after slaughtering and in other circumstances) are without distinction and without regard to origin of all the goods referred to in the relevant provisions. Having regard to the criteria which may be claimed as valid in the present context in accordance with the case-law of the Court, it is difficult to entertain the view that the Italian sanitary charge constitutes a consideration for an administrative service rendered and it is consequently impossible to classify it as a charge having an effect equivalent to a customs duty. (b) It is also possible to discount the view that a charge having an effect equivalent to customs duties exists if a burden comes under Article 95 of the Treaty, that is to say, the provision in accordance with which ‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products’. This is likewise clear from the case-law of the Court; it was in particular emphasized in the judgments in Case 24/68 and Joined Cases 2 and 3/69 that charges imposed in the same manner within a State on similar domestic products or within the framework of general domestic taxation or which are intended to equalize domestic taxation of this nature do not constitute charges having an effect equivalent to customs duties. This point brings us to consider the part of the question in which it is considered whether a financial burden is also imposed upon corresponding domestic products where it is in fact imposed by organs other than the State and calculated in accordance with other criteria which are not comparable with the criteria for the charges imposed upon imported live cattle and upon imported beef and veal. As has emerged clearly from all that was stated in the procedure, this certainly constitutes the most difficult section to consider in the present case. Two facts can first of all be established without difficulty. First, it must certainly be irrelevant whether the charges under consideration accrue to different beneficiaries (on the one hand the State and on the other the local authorities) and whether they are contained in different provisions. In fact, fine distinctions of this nature are irrelevant with regard to Article 95; for its application the significant point is the resultant burden whilst in principle regard is not had for the means by which it is imposed. Furthermore, contrary to what the plaintiff in the main action considers, Article 95 does not come into play only when purely fiscal provisions are at issue, that is, provisions which serve to obtain revenue for generally financing the tasks of central government and in which it is impossible to perceive a benefit for the person from whom the charge is due. One should rather concur with the Commission that, as Article 95 employs the words ‘internal taxation of any kind’, it is of general application and accordingly should not be interpreted restrictively, in order that hiatuses should not occur in the arrangements of the Treaty. The designation of a charge is accordingly unimportant (in the present case for example the circumstance emphasized by the plaintiff that the charge would be termed ‘parafiscal’: viewed in this light it is by no means unthinkable that the Italian sanitary charge would also come within the scope of Article 95. As the Court is aware the Italian Government is firmly convinced of this. It refers to the many similar sanitary inspections within its country which are carried out by local authority veterinarians and which also involve the payment of charges. Even although the relevant system is complex, rendering comparison difficult, it nevertheless constitutes a sufficient counterpart under Article 95. Correctly understood, it is indeed sufficient with regard to Article 95 that there can be found a structural correspondence, a certain equivalent of value and a correspondence which need only be in essential matters; it turns exclusively on the point whether the sanitary inspection at the frontier and the charges for it form part of a general comprehensive system of health control. Can this basic conception really be entertained? That is the question which we must now consider. Anticipating the outcome it seems scarcely possible to do so. Even in the present context serious doubts arise as to the view of the Italian Government. The most important point appears to me that Article 95 prohibits discrimination against imported goods. Its application thus requires a comparison and thereby presumes that the relevant charges may be clearly compared. The decisions of the Court indicate this when they emphasize that Article 95 requires that domestic products should be charged in the same way; for example it requires that customs duties must correspond to internal charges (which must naturally be checked in detail). In addition, it has been emphasized from an early period in the case-law of the Court that Article 95 cannot be applied at random to all classes of charges and in this connexion it is impossible to have regard to any equalization whatsoever between a burden upon imported goods and burdens of another nature upon similar domestic products (Joined Cases 2 and 3/62 [1962] ECR 425). It thus seems appropriate that the Commission concurs with the plaintiff in the main action in the view that a general structural relationship between the charges to be compared is insufficient and that what is required instead is the existence of a precise correspondence. With reference to the present case, it is necessary that the purposes of the sanitary inspections correspond and that the criteria in accordance with which the extent of a burden is measured are comparable. This is the only way in which it is possible to prevent the restriction of an essential principle of the Treaty, the free movement of goods, by the imposition of charges within the meaning of Article 95, which would moreover afford no possibility of sufficient supervision by the Community. Nevertheless, the requirements for the application of Article 95 are so stringent that it appears extremely doubtful whether it embraces the charge in dispute in the main action. These conditions are perhaps not so strict with regard to the sanitary inspection of meat (the details of which must be scrutinized by the court making the reference). The possibility of comparison could indeed exist in the sense which has just been indicated if the inspections within Italy at the place of origin of the goods, on the one hand, and at their destination, on the other, are considered and balance achieved in comparison with the sanitary inspections carried out at the time of customs clearance. Accordingly in this case it would probably be necessary only to consider the question whether the imported goods were subjected to double taxation, that is to say, whether the prohibition on discrimination in Article 95 has been complied with. On the other hand, a different situation would appear to obtain with regard to the inspection of live animals. According to what the Court has heard in the procedure, it is difficult in this respect to justify the finding that the general and summary inspections at the frontier, with regard to the content of the provisions of the said guidelines, and the fixed fees charged for them find an exact correspondence in the inspections carried out within Italy and the charges for them. Perhaps it must only be considered that imported animals are in addition subjected to the inspections within Italy if the corresponding conditions obtain, and that double taxation must be held to occur. It further appears to be established that the purpose and structure of the inspections at the frontier are not comparable with the purpose and structure of the numerous inspections within the country (one might for example think of the inspections before and after slaughtering, of the inspections at random which undertakings carry out in their own capacity — at sales outlets, slaughter-houses and on transport — of the inspections for particular reasons, for example on the transport of cattle from an area where there is disease or in such an area or the occasional inspections of animals which are intended for milk production or breeding). Furthermore, it appears that it is also impossible to compare the charges levied because the fixed fees on the occasion of the inspections at the frontier stand in contrast to the charges within Italy because of the different criteria for calculating them and owing to local differences. In this connexion I refer to Article 61 of the Testo Unico of the sanitary legislation and to the detailed and pertinent statements of the parties to the proceedings which the court making the reference must ultimately employ in reaching its decision. In fact the impression must thereby be formed that, because it is impossible — to a large extent at any rate — to make a comparison of the criteria relating to the Italian sanitary charges which is essential with regard to Article 95, it is impossible to classify the charges under the provisions and, in that Article 95 does not come into play, they cannot be regarded as charges having an effect equivalent to a customs duty.