4.

The Belgian Government relies on four arguments in support of its contention that the inspection charges levied on poultry imported from other Member States are compatible with Community law. Those charges, it contends, (1) constitute internal taxation of the kind covered by Article 95, (2) do not come within the scope of the prohibition in Article 9 because they represent payment for a service rendered to the importer on an individual basis, (3) are in respect of checks required by Community law itself and in particular by Directive 71/118 and (4) concern checks not provided for in the aforementioned directive but which remain within the powers of the State and are intended to ascertain whether the meat contains particular dangerous substances. In support of the argument at (1) — that the charges constitute internal taxation — Belgium states that: (a) the inspection charges for both imported and nationally-produced poultry are provided for in the same Law; (b) the health checks carried out on both nationally-produced and imported poultry are of the same kind; (c) the charges imposed on the importers and on the owners of the animals are equivalent in financial terms ; (d) any differences which may be found in their amounts are due to a marginal fact: the fees charged in respect of Belgian poultry cover all the various checks which are carried out. That argument is well presented but I am not convinced. According to the settled case-law of the Court, to be outside the scope of the prohibition in Article 9 and to be justifiable under Article 95, the charges must be part of a general system of internal dues applied without distinction to nationally-produced and imported products of the same kind. In particular, the charges must be applied according to the same criteria and at the same stage of production or of marketing (see the judgment of 5 February 1976, Case 87/75 Bresciani v Amministrazione Italiana delle Finanze [1976] ECR 129, paragraph 11 of the decision; judgment of 28 June 1978, Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453, paragraph 1 of the operative part of the decision; judgment of 31 May 1979, Case 132/78 Denkavit Loire v French State [1979] ECR 1923, paragraph 8 of the decision; judgment of 28 January 1981, Case 32/80. Officier van Justitien Kortmann [1981] ECR 251, paragraph 16 of the decision). In the light of those criteria, it seems impossible that the fees charged to importers and those charged to national producers are in the same category. However, let us examine one by one the points on which the Belgian defence is based. As to (a): both sets of charges, it is stated, are fixed under the authority of the Law of 15 April 1965. That is correct, but, as the Court itself has said, it is not sufficient. The judgment in Case 123/80 states that it is possible that the “inspection levy forms part of a ... system ... derived from the same basic law”. However, it is not sufficient, for the purpose of assessing its compatibility with Community law “to take this purely formal criterion into account ... The assessment must be made having regard to the contents and to the effects of the rules...”. As to (b): the two types of check are of the same kind. That statement does not correspond to the truth. I reminded the Court a moment ago that to be part of a single general system, the charges must be applied at the same stage of production. Such is not the case with the charges at issue here. In reply to a question raised by the Court, in fact, Belgium stated that the checks on nationally-produced poultry are carried out at four different times : systematically upon slaughter; and by spot checking when the meat is cut up, when it is processed and when it is distributed. The checks carried out on imported poultry, on the other hand, take place at the frontier or at the customs office closest to the place of destination of the goods. As to (c): the two sets of charges are equivalent from a financial point of view. In particular, Belgium adds, in the calculation of the fees to be paid by importers, account is taken, even if by means of a fixed sum payment, of the amounts which they have paid in the exporting country, hence the fact that they pay only 60 % of the charges paid to national producers. That argument does not stand up. As has been noted, the directives on intra-Community trade in fresh meat have established a system which transfers the checks to the exporting State, concentrating them at the stage of slaughter. From that point of view, the ante- and postmortem inspections, which are carried out systematically, are the most expensive, whilst any other inspections which may be carried out, and which to be lawful must be carried out on the basis of spot checks, cost less. That difference should be accurately reflected in the way in which charges demanded of importers are calculated. Reducing the charges by 40 % in camparison to those levied on national producers proves therefore that the two charges do not in fact have the equivalence claimed for them by the Belgian Government. As to (d): the fees charged to national producers are in respect of all the different checks carried out, so that any difference between the amounts of the two charges is of little relevance. This statement is also incorrect. According to Article 1 of the aforesaid Royal Decree of 28 August 1981, the said charges are solely intended to cover the cost of the ante- and postmortem inspections carried out on poultry. It is only on that basis and for those checks that, according to the Belgian rules, charges may be imposed for the visit of the veterinarian. That we are not in the presence of a single general system therefore seems obvious. Moreover, other factors also point in that direction. Thus, the two sets of charges are levied on the basis of different criteria: charges for imported poultry are calculated on the basis of weight (BFR 80 per 100 kg or part thereof), those charged for nationally-produced poultry on the basis of the number of visits and of animals. The fact which gives rise to the charge is different. Contrary to what the defendant Government contended during the phase prior to litigation, (supra, No 2), Article 59 of the Royal Decree of 21 September 1970 places it at importation whilst Article 1 of the Royal Decree of 21 August 1981 identifies it as the checks carried out before and after slaughter. Finally, the bodies which collect the charges are different. In the case of imported poultry, it is the customs offices, in the case of nationally-produced poultry, it is the health authorities. All the foregoing makes abundantly clear that the disputed charges are not internal taxation. I would add that such a conclusion is supported by a great many of the Court's previous decisions, which I may summarize in the following terms: when a charge affects imported products, is collected at the frontier and is related to specific inspections carried out on such products, the fact that another charge, similar in certain respects but based on different criteria, is imposed on corresponding nationally-produced goods, is irrelevant for the purposes of the prohibition laid down in Article 9 of the Treaty (judgment of 14 December 1972, Case 29/72 Marimex v Italian Finance Administration [1972] ECR 1309, the aforementioned judgment in the Bresciani case and the judgment of 15 December 1976, Case 35/76 Simmenthalv Italian Minister for Finance [1976] ECR 1871). The significant fact is above all the collection of the fees at the fronder, be it as the factor which characterizes charges prohibited by Article 9 compared to those covered by Article 95 (see Simmen thai judgment, paragraphs 3 and 4 of the operative part of the decision), or be it in regard to the specific purpose of the first rule (“to avoid the imposition of any pecuniary charge on goods ... by virtue of the fact that [they] cross a national frontier”; judgment in the Bresciani case, paragraph 8 of the decision).