6.

The Commission disagrees. In its view the charge in question is closely connected with customs operations which Community provisions require to be free of charge wherever they are carried out. The only benefit which the importers obtain in return for their payment is the possibility of presenting the goods for customs clearance near the place at which the goods are to be used. That is not sufficient for the relationship to be regarded as bilateral, as the defendant governments claim it should be. Thus the use of the stores cannot be said to be genuinely optional. That is shown by the lack of a connection between the amount of the charge and the duration of the relationship, and even more forcefully, by the fact that the importer must pay the charges even if he has obtained an exemption from storage. Nevertheless, it seems to me that the arguments put forward by the two governments are well founded. In its case-law the Court has identified the characteristics which the service rendered to the importer must have, if the charge imposed is not to be regarded as a charge having an effect equivalent to a customs duty. Thus, (a) it is first necessary that the benefits of which the service consists be commensurate with such a charge (see judgment of 1 July 1969, in Case 24/68, which I have already cited; judgment of 11 October 1973, in Case 39/73 Rewe [1973] ECR 1039; judgment of 22 February 1975, Case 63/74, already cited; judgment of 5 February 1976, Case 87/75 Bresciani [1976] ECR 129; judgment of 25 January 1977, Case 46/76, already referred to; judgment of 12 July 1977, Case 89/76 Commission v Netherlands [1977] ECR 1355; judgment of 8 November 1979, Case 251/78, already cited). In the second place (b) those benefits must represent a general economic alternative to the various possibilities which are available to the importer for the completion of the customs transactions (judgment of 12 January 1983, Case 39/82, Donner v Netherlands [1983] ECR 19). Finally (c) by “benefits” should be understood not only services directly and specifically connected with the movement of the goods, but also advantages of a more general character which result from the use of the installations (judgment of 16 March 1983, Case 266/81, S/07T1983] ECR 731). That case was concerned with port installations and waters, for the maintenance and navigability of which the public administration was responsible. Therefore, as I have already stated, the Commission itself acknowledges that the service rendered by the Belgian and Luxembourg special stores satisfies the requirement under (b). In addition, the use of the warehouses and the parking areas attached thereto, in conjunction with the surveillance of the goods which such stores provide, are practically identical to the advantages which were identified in the judgment in SIOT. Therefore the criterion under (c) is also satisfied. Moreover the requirement under (a) is in my opinion largely fulfilled in view of the smallness of the maximum amounts which Articles 25 to 28 of the Belgian Law fix for storage charges (see above, paragraph 2). In that respect, the Belgian and Luxembourg Governments note that there is a disparity between the proceeds arising from such charges and the expenses borne by the local or port authorities on the warehouses (construction, maintenance, repair and management) and on the storage of the goods; the latter greatly exceed the former. The Commission has not failed to emphasize that, in the judgment of 1 July 1969 in Case 24/68, the Court refused to attach importance to figures. The Court stated that: “The very low rate of the charge cannot change its character with regard to the principles of the Treaty which, for the purpose of determining the legality of those charges, do not admit of the substitution of quantitative criteria for those based on the nature of the charge” ([1969] ECR 193, at p. 202, paragraph 14 of the decision). In my view, however, that objection misses the point. The amount of the charge is irrelevant per se; if the charge is found not to fall within the framework of a bilateral relationship, the fact that it is insignificant will not deprive it of its true fiscal character. However, when the charge is imposed in exchange for specific benefits (and in this case there are undoubtedly benefits of that type) it becomes necessary or at least useful to assess the amount of the charge. If that were not the case, the Court would not have referred in the same judgment of 1 July 1969, to the need for “proportionality” between the service rendered and the fee which the importer is required to pay.