1.

The Hoge Raad asks in the first question whether the collection of the price of goods by the carrier before their delivery to the consignee is a service ancillary to the transport and storage of goods within the meaning of Annex B, item 5, to the Second Council Directive. The appellant takes the view that the collection of a debt in connexion with the carriage of goods has become a typical ancillary service in relation to carriage. This is already apparent from the practice in the Netherlands where the collection of cash debts takes place to any appreciable extent only in connexion with delivery services. This conclusion is also supported by the fact that the charges for the collection of accounts by transport undertakings, as determined by the Transport Minister, are substantially less-than the charges which banks can make for such transactions, although it is true that banks are not very active in this field. Moreover, the prevalent opinion in civil law is that the collection clause is an integral part of the contract of carriage and that the contract of carriage with a cash-on-delivery clause is an extension of the normal contract of carriage. Therefore it cannot be accepted that the revenue court should interpret the revenue laws differently and add a further doctrine to the prevalent principle of civil law. Therefore the exemption contained in Article 11 (j) of the Netherlands Law on turnover tax is relevant only to normal collection activities and not to collection transactions connected with other activities. Moreover, it seems that cash collection within the European Communities is exempt from turnover tax only in the Netherlands. This fact is apparent from a questionnaire conducted by the Commission. On the basis of that investigation and an independent inquiry it is apparent that the majority of the Member countries treat collection on delivery as a service ancillary to transport. On the wording of the directive itself the appellant takes the view that for example charges for loading and unloading and similar services must be treated as pan of the transport service itself and that therefore the Community legislature meant something quite different by ancillary service, such as for example cash collection. The Commission and the Netherlands Government, on the other hand, take the view that the collection of the sale price by the carrier is not to be treated as a service ancillary to the carriage of goods. Both stress that only those services may be treated as ancillary within the meaning of Annex B, item 5, to the Second Council Directive which are necessarily closely related to the carriage and contribute to the latter in a special way. I think it will be necessary to adopt this last view. In this respect I should first like to recall that the concept of ancillary service in question is taken from Community law and therefore according to the established case-law of the Court must be interpreted according to uniform criteria in order not to jeopardize the equal application of Community law. In my view the wording shows that the concept of ancillary service covers only such services as are not simply in any kind of relationship to the main service but cannot reasonably be performed in its absence. These include special payments, such as those for loading and unloading, any refrigeration, counting, weighing or repacking of goods. In my view the Council intended to apply the general concept of ancillary services to these kinds of service which are not as such transport or storage of goods but are necessarily closely connected thereto. I do not find convincing the appellant's argument to the effect that such kinds of service are part of the carriage itself and that in consequence the concept of ancillary services must cover completely different services. Cash-collection transactions are not so closely related to the essence of the carriage of goods that they can be treated as a service ancillary thereto. On the contrary, they are services which intrinsically have nothing to do with the carriage of goods and therefore could just as well be carried out separately but for the sake of simplicity are performed in connexion with the delivery of the goods. This must also be the reason why under the Netherlands rules the charges made by carriers for collection on delivery are less than the charges arising from collection by banks. Moreover, it cannot depend on the civil law principle followed in the individual Member States since, on the one hand, the revenue treatment of a matter is distinguishable from its civil law treatment and, on the other, the civil law principle may vary from country to country, which would lead to a varied interpretation of a concept of Community law. Finally, the interpretation which I propose is not affected by the comparative examination of taxation practice in the Member States undertaken by the appellant. Its conclusions would be evidence of the intention of the draftsmen of the directive only if it were conclusively shown that all the Member States treated collection on delivery by the carrier as a service ancillary to transport within the meaning of Annex B, item 5, to the Second Council Directive. I cannot see this from the documents before us, quite apart from the fact that they largely originate from private and not official sources. Since, therefore, I come to the conclusion that the first question must be answered in the negative, I need with the requisite brevity discuss the remaining questions only in the alternative.