Commission of the European Communities v Italian Republic.
Date: 1991-03-21
6 As a preliminary point, the Court observes that the alleged failure of the Italian Government to fulfil its obligation has negligible consequences in practice, which the Commission itself did not deny at the hearing. However, as the Court has consistently held (see the judgments in Case 415/85 Commission v Ireland [1988] ECR 3097, at paragraph 9, and in Case 416/85 Commission v United Kingdom [1988] ECR 3127, at paragraph 9), an action against a Member State for failure to fulfil its obligations is objective in nature and the bringing of such an action before the Court is a matter for the Commission in its entire discretion. The Court must therefore consider whether or not the Member State in question has failed to fulfil its obligations as alleged.
7 In order to establish whether the action brought by the Commission is well founded, it should be emphasized, first of all, that, as the Court has frequently held (see, for example, the judgment in Case C-137/89 Commission v Italy [1990] ECR I-847), the justification for the prohibition of charges having equivalent effect to customs duties lies in the fact that pecuniary charges, however small, applied by reason of the crossing of a frontier, constitute an obstacle to the movement goods, in that they artificially increase the price of imported or exported goods in relation to domestic products. Accordingly, any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, constitutes a charge having equivalent effect to a customs duty within the meaning of Articles 9, 12, 13 and 16 of the Treaty.
9 According to the case-law of the Court, however, such a charge falls outside the definition of a charge having equivalent effect to a customs duty if it constitutes the consideration for a service actually rendered to traders and is of an amount commensurate with that service (see, for example, the judgment in Cases 46/76 Bauhuis v Netherlands [1977] ECR 5, 132/78 Denkavit [1979] ECR 1923, and 132/82 Commission v Kingdom of Belgium [1983] ECR 1649).
10 In that regard, the Court has already accepted the compatibility with the Treaty rules of fees charged in connection with the completion of customs formalities, on condition that their amount does not exceed the actual cost of the operations in respect of which they are charged (judgment in Case 89/76 Commission v Netherlands [1977] ECR 1355, at paragraph 16). In its judgment in Case C-111/89 (Bakker Hillegom [1990] ECR I-1735, at paragraph 12), the Court pointed out that that condition was satisfied only where there was a direct link between the amount of the fee and the cost of the actual inspection in respect of which the fee was charged. The Court added (in the same judgment, at paragraph 13) that such a link was present where the amount of the fee was calculated on the basis of the duration of the inspection, the number of persons required, the cost of materials, overheads or any other similar factors.
19 That argument cannot be accepted. Even on the assumption that the operations referred to in this case are of minor importance, it should be noted, as the Commission has rightly pointed out, that a Member State is guilty of a failure to fulfil its obligations under the Treaty regardless of the frequency or the scale of the circumstances complained of.