Bundesrepublik Deutschland v Deutsches Milch-Kontor GmbH.
Date: 1994-06-22
20 So far as health inspections carried out at frontiers are concerned, the Court has already held that, as a result in particular of the delays inherent in the inspections and the additional transport costs which the trader may incur thereby, the inspections in question are likely to make imports or exports more difficult or more costly (see the judgment in Case 35/76 Simmenthal v Italian Minister for Finance [1976] ECR 1871, paragraph 7).
21 That principle also applies to other types of frontier inspections, in particular national rules which provide for systematic inspections of goods when they cross a frontier (see the judgment in Case 190/87 Oberkreisdirektor des Kreises Borken and Another v Moormann [1988] ECR 4689, paragraph 8).
23 Those principles were incorporated in Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (OJ 1983 L 359, p. 8), replaced with effect from 1 January 1993 by Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit (OJ 1990 L 262, p. 1). As amended by Council Directive 91/342/EEC of 20 June 1991 (OJ 1991 L 187, p. 47), Article 2(1) of Directive 83/643, which does not apply to this case since it was adopted after the events material to the dispute, provides that frontier inspections must be carried out by means of spot checks, except in duly justified circumstances. As the Court has already pointed out at paragraph 14 of its judgment in Case C-186/88 Commission v Germany [1989] ECR 3997, Directive 83/643 does not permit formalities or constraints involving more than the normal requirements inherent in the crossing of the frontier by any goods, whatever their nature.
39 First, with regard to the practical and financial reasons invoked, it need only be pointed out that Article 36 of the Treaty cannot be relied on to justify rules or practices which, even though they are beneficial, contain restrictions which are explained primarily by a concern to lighten the administration' s burden or reduce public expenditure, unless, in the absence of such rules or practices, this burden or expenditure clearly would exceed the limits of what can reasonably be required (see the judgment in Case 104/75 De Peijper [1976] ECR 613, paragraph 18). In this case, moreover, the costs are passed on to the traders in question.
41 Third, with regard to the concern to prevent fraud during transport within the territory of the exporting Member State, it must be borne in mind that although national authorities are free to use all the appropriate methods which their law provides to prevent the fraudulent evasion of Community rules, this cannot apply where the national law is based on criteria which do not conform to the system of guarantees and proof introduced by the Community rules (see the judgment in Case 39/70 Norddeutsches Vieh- und Fleischkontor v Hauptzollamt Hamburg-St Annen [1971] ECR 49, paragraph 5).
48 The Commission supports the views set out by the German Government. In its opinion, the inspections in question are not regulated in a restrictive sense by Community law. Nor does Community law specify who is to bear the costs. For that reason, Member States may pass those costs on to the traders involved, within the limits set by the Court in its judgment in Denkavit. As those limits were not exceeded in this case, according to the findings made by the national court, the costs at issue are compatible with Regulations No 1624/76 and No 1725/79. In order not to fall within the category of charges having an effect equivalent to customs duties, however, charges must, in the Commission' s view, satisfy the conditions laid down by the Court in paragraph 8 of its judgment in Case 18/87 Commission v Germany [1988] ECR 5427, that is to say, they must be prescribed by Community law in the general interest of the Community, they must be obligatory and uniform for all the products concerned and they must not exceed the actual costs of the inspections in connection with which they are charged. The Commission considers that those conditions are satisfied in this case.
50 The Court has consistently held that any pecuniary charge, whatever its designation or mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having an effect equivalent to a customs duty within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed on behalf of the State (see, in particular, the judgment in Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18).
51 The abolition between Member States of customs duties and charges having equivalent effect constitutes a fundamental principle of the Common Market applicable to all products and goods with the result that any possible exception, which in any event must be strictly construed, must be clearly laid down (see the judgments in Joined Cases 90 and 91/63 Commission v Luxembourg and Belgium [1964] ECR 625 and in Joined Cases 80 and 81/77 Commissionnaires Réunis and Another v Receveur des Douanes [1978] ECR 927, paragraph 24).
52 In its judgment in Denkavit, the Court concluded, at paragraph 13, that Article 10 of Regulation No 1725/79 does not prohibit Member States from charging, under national legislation, the cost of carrying out inspections pursuant to that article to the undertaking concerned, provided that the charges which the undertaking is asked to pay represent the normal costs of inspections of that nature and are not so great as to be liable to deter undertakings from carrying out the activities which the aid is intended to encourage.
55 In view of the fact that the provisions on charges having equivalent effect and those on discriminatory internal taxation cannot be applied together (see, in particular, the judgment in Joined Cases C-78 to C-83/90 Compagnie Commerciale de l' Ouest and Others v Receveur Principal des Douanes de la Pallice-Port [1992] ECR I-1847, paragraph 22), there is no need to examine whether the charges in question are compatible with Article 95 of the Treaty.