5.

I have already noted that the question which has been submitted to the Court of Justice refers specifically to Article 36 of the EEC Treaty. This entails the notion that charging parallel importers fees for the registration of medicinal products may be considered a measure having an effect equivalent to quantitative restrictions which is nevertheless capable of qualifying for the exemption referred to in Article 36 as a restriction intended to protect health. In my view the Commission and the Netherlands Government are correct in denying that the fees in question may be considered as measures having an effect equivalent to quantitative restrictions on imports. Classification in the category of the restrictions contemplated by Articles 30 to 36 of the EEC Treaty would be appropriate if the concern were with checks applied to imported pharmaceutical products through the registration system. I have however stated that the court making the reference has properly considered it pointless to raise doubts under this head and that this case is accordingly concerned only with the lawfulness in Community law of the imposition of pecuniary charges on importers on occasion of the registration of medicinal products. In the question submitted by the national court there is a general reference to the compatibility of such pecuniary charges with the provisions of the Treaty on the free movement of goods. As. is well known, the first of these provisions (in numerical order and also in order of importance) are those contained in Article 9 of the Treaty which lays down the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect. Article 9 is to be taken in conjunction with the subsequent Article 12 which prohibits the introduction of “any new customs duties on imports or exports or any charges having equivalent effect”. These are two provisions which in theory might apply to the situation described by the Netherlands court. In the abstract the requirement that an importer of pharmaceutical products pay sums of money as the registration fee for such products may come within the concept of a charge having an effect equivalent to a customs duty since it undoubtedly constitutes a pecuniary burden intended to have an incidence on the price of the imported products and thus to have the same restrictive effect on trade-patterns as a customs duty. Classification of the fees in question as measures prohibited by Articles 9 and 12 would have to be ruled out if such fees were regarded as the consideration for a service, the health inspection, rendered by the importing State to the importer. As is well known, according to the case-law of the Court all pecuniary charges which constitute the consideration for a service rendered by the administration may not be classified as a charge having an effect equivalent to a customs duty. The Court has repeatedly pronounced to that effect; I would recall the judgments of 1 July 1969 in Case 24/68 Commission v Italian Republic [1969] ECR 193 (in particular paragraph 11 of the decision), of 11 October 1973 in Case 39/73 REWE [1973] ECR 1039 (in particular paragraph 4 of the decision), of 5 February 1976 in Case 87/75 Bresciani [1976] ECR 129, of 25 January 1977 in Case 46/76 Baubuis [1977] ECR 5 (in particular paragraphs 7 and 11 of the decision) and of 12 July 1976 in Case 89/76 Commission v Netherlands [1977] ECR 1355. However that case-law may not be relied upon in this case for the simple reason that the activity of the administration of the State intended to set up a system of health inspection in the general interest may not be considered as a service rendered to the trader subject to the inspection which is such as to justify, as a consideration therefor, the imposition of a pecuniary charge (cf. in this connexion the aforementioned judgments of 11 October 1973 in the case of REWE and of 5 February 1976 in the case of Bresciani). Rather, it is on the basis of another and decisive circumstance that it is necessary to reject the classification of the fees in question as charges having an effect equivalent to customs duties. I have had occasion to recall that under the Netherlands legislation the registration fees are payable by both manufacturers and importers of medicinal products and we know that in framing its question the national court had particular regard to the rules of its national law. It is impossible to consider as a charge specifically burdening imports — and therefore as a charge having an effect equivalent to a customs duty — a fee which forms part of a domestic system of charges applicable to all products, domestic and imported, belonging to a certain category of goods and which arises in connexion with a formality prescribed equally for all products in that group. The Court of Justice has frequently upheld this principle; I would recall the judgments of 14 December 1972 in Case 29/72 Marimex [1972] ECR 1309, (in particular, paragraph 8 of the decision) of 11 October 1973 in the case of REWE, of 25 January 1977 in the case of Baubuis, both cited above, of 29 June 1978 in Case 142/77 Statens Kontrol med ædle Metaller v Preben Larsen [1978] ECR 1543 and of 8 November 1979 in Case 251/78 Denkavit [1979] ECR 3369 (in particular, paragraph 11 of the decision). The question which has given rise to the present proceedings relates, by implication at least, to a type of fee which is payable by parallel importers, official importers and also domestic producers. It follows in my view that the reply to the question must be sought within the application not of Articles 9 and 12 of the Treaty but rather of Article 95 which prohibits the imposition upon the products of other Member States of taxation in excess of that applied to the domestic products.