4.

The purpose of the third question submitted by the Belgian court is as follows: “Are the inspection levies which are imposed on importers in order to cover the costs of the inspection described in the first question to be regarded as charges having an effect equivalent to customs duties within the meaning of Article 9 et seq. of the EEC Treaty or as internal charges within the meaning of Article 95 of the EEC Treaty, if: — the inspection of fish farms is not subject to any levy at all in the Member State concerned; — the inspection of fish caught in the sea takes place, after it has been landed, in fish markets and concerns the hygienic standard, freshness and the purity of the fish whilst the health inspection on importation takes place at customs offices and concerns the health certificate, the means by which the fish has been transported, the state of preservation as well as conformity with the requirements of the regulations of the importing Member State on inspection and the importation on fish; — the inspection levies must be paid on importation at the time when the imports cross the frontier; — inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?” I would observe that by resorting once again to the same technique as that used in formulating the first question, the court has summarized the most important provisions in force in Belgium on the subject of inspection levies on fish, treating them as the conditions of a theoretical system. For our purposes, however, what is noteworthy is that the conditions described reflect the extent to which the system applicable to imported fish differs from that applicable to fish of domestic origin. This difference is brought out essentially by the four sets of circumstances set out in the question which are as follows: (a) in the case of certain fish of national origin (fish from fish farms) no levies are payable, whilst there is an obligation to pay a levy in the case of all imported fish; (b) the control operations justifying the charges are different for the two categories of fish and are carried out in different places; (c) the obligation to pay the levy arises at different times; (d) the amount of the inspection levies is not the same (at any rate for fish other than whole unprocessed fish). In connexion with this last point, I would add that the court trying the main action could, again by examining the Belgian rules at issue, have discovered a fifth circumstance, namely the difference in the basis of the charge: under Belgian law, the charge levied for the inspection of imported fish is BFR 15 per quintal or part thereof (BFR 30 for processed fish) whereas the charge levied on fish caught in the sea and landed in national ports is BFR 0.15 per kilogram or fraction thereof. What makes the differences referred to above decisive for the purposes of the answer to the third question is the criterion established by the decisions of this Court concerning the boundary between the area of application of Article 9 and that of Article 95 of the EEC Treaty. This criterion may be summarized as follows: any type of charge forming part of a general system of internal dues applied to all products of a given kind without distinction, whether domestic or imported, comes within the scope of Article 95; in particular, the charges in question must be levied on the basis of identical criteria at a comparable stage in the cycle of production or at the same marketing stage (see the following judgments: 5 February 1976 in Case 87/75, Bresciani [1976] ECR 129, paragraph 11 of the decision; 28 June 1978 in Case 70/77, Simmentbal [1978] ECR 1453, paragraph 1 of the operative part; 31 May 1979 in Case 132/78, Denkavit [1979] ECR 1923, paragraph 8 of the decision). In my opinion, it is proper that these decisions should be followed. Article 95 reflects the principle of equivalence between fiscal charges, which presupposes a unity in the mechanism, not to say in the “type”, of a given charge and its applicability to domestic products and imported products alike. It is otherwise when a charge is levied on imported products, paid when they cross the frontier (as stated in the third question of the Belgian court) and linked to specific control operations performed on the imported goods, even though a charge which is in some respects similar, although it has a mechanism of its own and is based on different criteria, is levied on some corresponding domestic products. A situation of this kind comes within the scope of Article 9 which prohibits charges having an effect equivalent to customs duties. On numerous occasions this Court has ruled quite correctly along these lines, precisely in cases where it has had to deal with the charging of health inspection levies on imported goods: see, for example, the judgment of 14 December 1972 in Case 29/72 Marimex [1972] ECR 1309 (operative part); the above-mentioned judgment of 5 February 1976 in Case 87/75 Bresciani (paragraph 7 of the decision and paragraph 1 of the operative part) and the judgment of 15 December 1976 in Case 35/76, Simmenthal [1976] ECR 1871 (paragraph 3 of the operative part). It is particularly interesting to recall, with a view to the solution in the present case, that in these decisions the circumstance that the charge was levied at the frontier was regarded as highly significant, both as an element for distinguishing between the pecuniary charges prohibited under Article 9 and those falling under Article 95 (see the above-mentioned judgment in Case 35/76, Simmenthal, paragraphs 3 and 4 of the operative part) and in relation to the particular purpose of Article 9 which is “to avoid the imposition of any pecuniary charge on goods circulating within the Community by virtue of the fact that they cross a national frontier” (see the above-mentioned judgment in the case of Bresciani, paragraph 8 of the decision). It follows from the above considerations that the inspection levies whose characteristics are described by the Belgian court in its third question cannot, precisely as a result of those characteristics, be regarded as forming part of a general system of internal taxation governed by the rule contained in Article 95 since they constitute charges having an effect equivalent to customs duties on imports which are incompatible with the prohibition referred to in Article 9. The charging of the inspection levies under discussion would be deemed to fall outside the scope of the prohibition in Article 9 if inspection were uniformly prescribed by a rule of Community law (a possibility examined in the judgment of the Court of 25 January 1977 in Case 46/76, Bauhuis [1977] ECR 5) or if it were in the nature of a service rendered to an individual importer (see the above-mentioned judgment of 8 November 1979 in the case of Denkavit, paragraph 30 of the decision). However, the first possibility must be categorically rejected in the present case: the questions formulated by the court trying the main action undoubtedly relate to a system of controls set up by a Member State independently of any Community requirement. With regard to the second possibility, I would refer to the above-mentioned judgment of 5 February 1976 in the Bresciani case where the Court stated that “the activity of the administration of the State intended to maintain a public health inspection system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge” (paragraph 10 of the decision). Once again, this is a case of public health inspection established in the public interest and therefore the same reasoning applies as in the Bresciani case. Finally, I would observe for the sake of completeness that the circumstances relied upon by the Belgian Government to justify the difference in the rates at which the inspection levy is charged on “domestic” fish and on imports of unprocessed fish are devoid of any significance in this case. In the first place, I shall never tire of repeating that the examination of questions referred to the Court for a preliminary ruling pursuant to Article 177 must be carried out in general terms and must therefore leave out of account the specific reasons for the line of action adopted by a particular government. Secondly, the disparity between the inspection levies is certainly not sufficient to bring them within the scope of, Article 9 rather than that of Article 95 : at most, it constitutes one of the circumstances which help to bring into focus the difference between the system of charges imposed on fish of domestic origin and the system applied to imported fish. Other circumstances, however, which have already been referred to, carry more weight as evidence of the difference between the two systems: the purpose and the detailed procedures of the control giving rise to the levy, the time and place of inspection, the time when the obligation to pay the levy arises and the limited sphere of application of the levies imposed on fish of domestic origin.