1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 10 DECEMBER 1982 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY LEVYING INSPECTION CHARGES FOR IMPORTS OF FRESH , DRIED , SALTED AND SMOKED POULTRYMEAT FROM OTHER MEMBER STATES , THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 9 AND 12 OF THE EEC TREATY .
2 ACCORDING TO THE BELGIAN LAW OF 15 APRIL 1965 ON INSPECTION OF AND TRADE IN FISH , POULTRY , RABBITS AND GAME AND THE ROYAL DECREE OF 21 SEPTEMBER 1970 ON INSPECTION OF AND TRADE IN POULTRYMEAT , POULTRYMEAT INTENDED FOR HUMAN CONSUMPTION IS SUBJECT IN BELGIUM TO A HEALTH CHECK . THAT CHECK CONSISTS , FOR ANIMALS SLAUGHTERED IN BELGIUM , OF ANTE-MORTEM AND POST-MORTEM HEALTH INSPECTIONS AT THE ABATTOIR AS WELL AS CHECKS WHEN THE MEAT IS CUT UP IN THE MEAT-PROCESSING PLANTS AND AT THE TIME OF DISTRIBUTION AND TRANSPORT WITHIN THE NATIONAL TERRITORY . AS REGARDS IMPORTED POULTRYMEAT , A CHECK IS CARRIED OUT ON IMPORTATION , EITHER AT THE CUSTOMS OFFICE OR AT THE PLACE OF DESTINATION OF THE GOODS , AND , ACCORDING TO THE STAGE AT WHICH THE MEAT IS IMPORTED , AT THE SAME STAGES AS FOR HOME-PRODUCED MEAT .
3 BY VIRTUE OF ARTICLE 6 OF THE ABOVE-MENTIONED LAW , FEES MAY BE CHARGED WHICH ARE INTENDED TO COVER THE COST OF THE HEALTH EXAMINATION , EXPERT INSPECTION AND THE CHECK ON IMPORTATION . THE INSPECTION CHARGES ON IMPORTATION , WHICH ARE AT ISSUE IN THIS CASE , HAVE BEEN FIXED BY ARTICLE 59 OF THE ABOVE-MENTIONED DECREE OF 21 SEPTEMBER 1970 , AS AMENDED , AT BFR 80 PER 100 KG OR PART OF 100 KG OF POULTRYMEAT , AN AMOUNT WHICH IS NOT INDEXED AND IS COLLECTED BY THE CUSTOMS AUTHORITIES . AS REGARDS ANIMALS SLAUGHTERED IN BELGIUM , THE DECREE OF 28 AUGUST 1981 , AS LATER AMENDED , PROVIDES FOR FEES , INTENDED TO COVER THE COST OF THE HEALTH EXAMINATION BEFORE SLAUGHTER AND THE EXPERT INSPECTION AFTER SLAUGHTER , OF BFR 276 FOR EACH VISIT BY THE VETERINARY EXPERT AND , ACCORDING TO THE SPECIES AND WEIGHT OF THE ANIMAL , OF BFR 1 , 2 , 4 OR 8 PER ANIMAL , AMOUNTS WHICH ARE INDEXED AND PAYABLE MONTHLY TO THE VETERINARIANS ' PROFESSIONAL ORGANIZATIONS .
4 SUCH SYSTEMATIC HEALTH INSPECTIONS CARRIED OUT ON IMPORTATION WERE THE SUBJECT OF THE COURT ' S JUDGMENT OF 6 OCTOBER 1983 ( JOINED CASES 2 TO 4/82 DELHAIZE FRERES LE LION SA AND OTHERS V BELGIAN STATE ( 1983 ) ECR 2973 IN WHICH IT WAS HELD THAT SUCH AN INSPECTION , CARRIED OUT IN ORDER TO ASCERTAIN ANY CHANGES IN THE CONDITION OF MEAT WHILST IN TRANSIT FROM THE EXPORTING STATE AND ITS STATE OF PRESERVATION ON ENTERING THE TERRITORY OF THE STATE OF DESTINATION , FALLS WITHIN THE SCOPE OF THE PUBLIC HEALTH INSPECTION CARRIED OUT IN THE EXPORTING COUNTRY IN ACCORDANCE WITH COUNCIL DIRECTIVE 64/433 OF 26 JUNE 1964 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 185 ) AND COUNCIL DIRECTIVE 71/118 OF 15 FEBRUARY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 106 ), BOTH ON HEALTH PROBLEMS AFFECTING TRADE IN MEAT OR POULTRYMEAT .
5 DURING THE PROCEEDINGS IN THIS CASE , THE BELGIAN GOVERNMENT HAS CONTENDED THAT THE HEALTH CHECKS CARRIED OUT IN BELGIUM ON IMPORTED POULTRYMEAT ARE NOT CONTRARY TO THE AFOREMENTIONED PROVISIONS OF COMMUNITY LAW OR TO ARTICLES 30 AND 36 OF THE EEC TREATY , BECAUSE THOSE CHECKS , WHICH ARE NECESSARY IN THE INTERESTS OF PUBLIC HEALTH , RELATE FIRST TO ANY CHANGES WHICH MAY HAVE OCCURRED IN THE CONDITION OF THE MEAT SINCE IMPORTATION AND , SECONDLY , COVER AREAS EXPRESSLY RESERVED TO THE MEMBER STATES BY THE COMMUNITY RULES .
6 IN THIS CONNECTION , THE BELGIAN GOVERNMENT HAS RELIED PARTICULARLY ON ARTICLE 9 OF DIRECTIVE 71/118 WHICH ALLOWS A MEMBER STATE TO PROHIBIT THE MARKETING IN ITS TERRITORY OF FRESH POULTRYMEAT FROM ANOTHER MEMBER STATE IF AT THE TIME OF THE HEALTH INSPECTION CARRIED OUT IN THE COUNTRY OF DESTINATION IT IS FOUND THAT SUCH MEAT IS UNFIT FOR HUMAN CONSUMPTION . THE CHECKS IN THIS CASE ARE THUS , IT IS CLAIMED , PROVIDED FOR IN THE DIRECTIVE ITSELF , IN RESPECT OF WHICH , ACCORDING TO THE COURT ' S CASE-LAW , A FEE MAY THEREFORE BE CHARGED .
7 IT SHOULD BE EMPHASIZED FIRST OF ALL IN THIS CONNECTION THAT THIS ACTION , LIKE THE REASONED OPINION DELIVERED TO THE BELGIAN GOVERNMENT BY THE COMMISSION ON 10 FEBRUARY 1982 , IS DIRECTED ONLY TO THE COMPATIBILITY OF THE FEES CHARGED ON THE OCCASION OF THOSE CHECKS WITH THE PROHIBITION BETWEEN MEMBER STATES OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT . THE QUESTION WHETHER THE SYSTEMATIC CHECKS FOR WHICH THE FEES IN DISPUTE ARE CHARGED ARE , THEMSELVES , IN ACCORDANCE WITH COMMUNITY LAW HAS BEEN EXPRESSLY EXCLUDED BY THE COMMISSION FROM THIS ACTION FOR FAILURE TO FULFIL OBLIGATIONS .
8 AS REGARDS THE ARGUMENT BASED ON ARTICLE 9 OF DIRECTIVE 71/118 , IT IS SUFFICIENT TO NOTE THAT ARTICLE 9 OF THAT DIRECTIVE IN NO WAY REQUIRES MEMBER STATES TO CARRY OUT SUCH CHECKS ON IMPORTED MEAT BUT MAY AT MOST BE UNDERSTOOD AS PERMITTING THEM . SINCE THEY ARE NOT CHECKS CARRIED OUT IN APPLICATION OF DIRECTIVE 71/118 , THAT DIRECTIVE CANNOT BE RELIED UPON TO JUSTIFY THE LEVYING OF AN INSPECTION CHARGE IN RESPECT THEREOF .
9 THE COMMISSION HAS BASED ITS ACTION ON THE CONTENTION THAT THE CONTESTED CHARGES , LEVIED IN RESPECT OF HEALTH CHECKS ON IMPORTED POULTRYMEAT , CONSTITUTE CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES WITHIN THE MEANING OF ARTICLE 9 OF THE TREATY BECAUSE THEY ARE CHARGES UNILATERALLY LEVIED BY THE BELGIAN STATE AND ARE NOT PART OF A GENERAL SYSTEM OF INTERNAL DUES .
10 IN THE VIEW OF THE BELGIAN GOVERNMENT , THE CHARGES AT ISSUE CONSTITUTE PAYMENT FOR A SERVICE RENDERED TO THE IMPORTER . FURTHERMORE , THEY CORRESPOND TO THE CHARGES LEVIED IN RESPECT OF CHECKS CARRIED OUT ON HOME- PRODUCED POULTRYMEAT , THE CHARGES BEING , IN BOTH CASES , COMPLETELY IDENTICAL , IF ACCOUNT IS TAKEN , IN THE CASE OF IMPORTED PRODUCTS , OF THE FEES ALREADY CHARGED IN THE EXPORTING MEMBER STATE . IN SPITE OF CERTAIN DIFFERENCES OF FORM AS REGARDS THE DETAILED RULES FOR THE COLLECTION OF THE CHARGES , THEY ARE PART OF A GENERAL SYSTEM OF INTERNAL DUES .
11 ARTICLE 9 OF THE TREATY PROHIBITS BETWEEN MEMBER STATES CUSTOMS DUTIES AND ALL CHARGES HAVING EQUIVALENT EFFECT . THAT PROHIBITION , WHICH MAKES NO DISTINCTION ON THE BASIS OF THE PURPOSE FOR WHICH THE PECUNIARY CHARGES WHOSE ABOLITION IT ENVISAGES ARE LEVIED , ALSO INCLUDES CHARGES DEMANDED IN RESPECT OF HEALTH CHECKS EFFECTED BY REASON OF THE IMPORTATION OF GOODS . IN ACCORDANCE WITH THE SETTLED CASE-LAW OF THE COURT , THE SITUATION WOULD BE DIFFERENT ONLY IF THE PECUNIARY CHARGES WERE PART OF A GENERAL SYSTEM OF INTERNAL DUES APPLIED SYSTEMATICALLY IN ACCORDANCE WITH THE SAME CRITERIA TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ALIKE OR IF THOSE CHARGES CONSTITUTED PAYMENT FOR A SERVICE ACTUALLY RENDERED TO THE IMPORTER ( SEE IN PARTICULAR THE JUDGMENT OF 14 DECEMBER 1972 , CASE 29/72 MARIMEX V ITALIAN FINANCE ADMINISTRATION ( 1972 ) ECR 1309 , AND THE JUDGMENT OF 11 OCTOBER 1973 , CASE 39/73 REWE-ZENTRALFINANZ V DIREKTOR DER LANDWIRTSCHAFTSKAMMER WESTFALEN-LIPPE ( 1973 ) ECR 1039 ).
12 AS THE COURT HAS DECLARED ON A NUMBER OF OCCASIONS SINCE THE ABOVE-MENTIONED JUDGMENT OF 11 OCTOBER 1973 ( CF . JUDGMENT OF 5 FEBRUARY 1976 , CASE 87/75 BRESCIANI V AMMINISTRAZIONE ITALIANA DELLE FINANZE ( 1976 ) ECR 129 ; JUDGMENT OF 15 DECEMBER 1976 , CASE 35/76 SIMMENTHAL V ITALIAN MINISTER FOR FINANCE ( 1976 ) ECR 1871 ; AND JUDGMENT OF 8 NOVEMBER 1979 , CASE 251/78 DENKAVIT FUTTERMITTEL V MINISTER FUR ERNAHRUNG ( 1979 ) ECR 3369 ), CHECKS SUCH AS THOSE IN THIS CASE , WHICH ARE PART OF THE ADMINISTRATIVE ACTIVITY OF THE STATE , INTENDED TO PROTECT , IN THE PUBLIC INTEREST , PUBLIC HEALTH AND HYGIENE , CANNOT BE REGARDED AS A SERVICE RENDERED TO THE IMPORTER SUCH AS TO JUSTIFY THE IMPOSITION OF A PECUNIARY CHARGE .
13 IN ACCORDANCE WITH THE ABOVE-MENTIONED CASE-LAW , THE CLASSIFICATION OF THE DISPUTED FEES AS REGARDS THE TREATY DEPENDS THEREFORE ON THE QUESTION WHETHER THOSE FEES ARE DETERMINED ACCORDING TO CRITERIA DIFFERENT FROM THOSE USED TO FIX THE CHARGES IMPOSED UPON COMPARABLE NATIONAL PRODUCTS , OR WHETHER THEY ARE PECUNIARY CHARGES FORMING PART OF A GENERAL SYSTEM OF INTERNAL DUES APPLIED SYSTEMATICALLY , FOR THE PURPOSES OF THE CHECKS IN QUESTION , IN ACCORDANCE WITH THE SAME CRITERIA TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ALIKE .
14 IN THAT CONNECTION , THE COMMISSION HAS CONTENDED FIRST THAT HOME-PRODUCED DRIED , SALTED AND SMOKED POULTRYMEAT , IN CONTRAST TO IMPORTED PRODUCTS , IS NOT SUBJECT TO THE DISPUTED FEES .
15 THE BELGIAN GOVERNMENT HAS BEEN OBLIGED TO RECOGNIZE THE TRUTH OF THAT STATEMENT . IT ANNOUNCED AT THE HEARING THAT THE MEASURES NECESSARY TO ABOLISH THE CHECKS AND THE LEVYING OF THE DISPUTED CHARGES FOR IMPORTS OF THOSE CATEGORIES OF MEAT HAD BEEN ADOPTED . LATER , IT INFORMED THE COURT THAT THAT HAD BEEN DONE BY MEANS OF A ROYAL DECREE OF 6 DECEMBER 1983 , AMENDING THE ROYAL DECREE OF 21 SEPTEMBER 1970 .
16 AS REGARDS THAT ASPECT OF THE DISPUTE , THE COURT CAN ONLY TAKE NOTE OF THE BELGIAN GOVERNMENT ' S DECLARATION AND STATE THAT BEFORE THE AMENDMENT OF THE RULES AT ISSUE , THE CHARGES LEVIED FOR IMPORTS OF THOSE CATEGORIES OF MEAT DID NOT CORRESPOND TO ANY CHARGES IN RESPECT OF COMPARABLE HOME-PRODUCED GOODS . THE CHARGES IN QUESTION THUS CONSTITUTED , AS REGARDS THOSE CATEGORIES OF POULTRYMEAT , A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES IN THE ABOVE-MENTIONED SENSE .
17 WITH REGARD TO THE INSPECTION CHARGES FOR FRESH POULTRYMEAT , THE BELGIAN GOVERNMENT HAS CONTENDED THAT THE DIFFERENCES IN THE DETAILED ADMINISTRATIVE RULES FOR THE COLLECTION OF THE CHARGES FOR BOTH GROUPS OF PRODUCTS ARE JUSTIFIED ON OBJECTIVE GROUNDS . THE AMOUNT OF THE CHARGES IS CALCULATED IN SUCH A WAY THAT THE CHARGES IN RESPECT OF IMPORTED PRODUCTS REPRESENT 60% OF THE CHARGES IN RESPECT OF NATIONAL PRODUCTS , WHICH IS EXPLAINED BY THE FACT THAT 40% OF THE INSPECTION CHARGES LEVIED IN RESPECT OF HOME-PRODUCED GOODS IS USED TO EFFECT THE ANTE- AND POST-MORTEM HEALTH INSPECTIONS , WHICH ARE NOT CARRIED OUT , AT LEAST WITHIN THE COUNTRY , IN THE CASE OF IMPORTED PRODUCTS , WHILST 60% OF THE CHARGES IN RESPECT OF HOME-PRODUCED GOODS IS USED TO EFFECT THE OTHER CHECKS , CARRIED OUT , FOR BOTH IMPORTED AND HOME-PRODUCED GOODS , BETWEEN THE TIME OF SLAUGHTER AND THE STAGE OF CONSUMPTION .
18 IT MUST BE STATED IN THAT REGARD THAT THE LEVYING OF INSPECTION CHARGES IN RESPECT OF IMPORTED POULTRYMEAT AND HOME-PRODUCED MEAT IS PART OF A BODY OF RULES DERIVED FROM ONE AND THE SAME BASIC LAW . IT SHOULD HOWEVER BE POINTED OUT THAT THE CHARGES ON IMPORTATION ARE LEVIED PURSUANT TO A DECREE OF 21 SEPTEMBER 1970 , WHILST THE CHARGES LEVIED IN RESPECT OF CHECKS CARRIED OUT ON HOME-PRODUCED MEAT WERE PROVIDED FOR , UNTIL THE STATE FIXED THEM BY A DECREE OF 28 AUGUST 1981 , IN AN AGREEMENT BETWEEN THE RELEVANT PROFESSIONAL BODIES . FURTHERMORE , THE CHARGES IN RESPECT OF HOME-PRODUCED MEAT ARE PAID DIRECTLY TO THE VETERINARIANS ' RELEVANT PROFESSIONAL ORGANIZATIONS , WHILST THE CHARGES ON IMPORTATION , COLLECTED BY THE CUSTOMS AUTHORITIES , BECOME PART OF THE GENERAL STATE BUDGET AND ARE USED ONLY INDIRECTLY TO COVER THE COST OF THE HEALTH CHECKS .
19 MOREOVER , THE CRITERIA USED TO CALCULATE THE CHARGES ARE DIFFERENT FOR THE TWO GROUPS OF PRODUCTS . IN THE CASE OF HOME-PRODUCED MEAT , THERE IS , FIRST , A FIXED SUM FOR THE VISIT OF THE VETERINARY EXPERT AND , SECONDLY , AN AMOUNT PER ANIMAL EXAMINED , CALCULATED ACCORDING TO AN INDEX-LINKED RATE . THE CHARGES AFFECTING IMPORTED MEAT ARE FIXED AT A STANDARD RATE PER 100 KG OR PART THEREOF AND ARE NOT INDEXED . THOSE DIFFERENCES BETWEEN THE CRITERIA MAKE IT VERY DIFFICULT TO COMPARE THE CHARGES WHICH ARE ACTUALLY LEVIED ON THE TWO GROUPS OF PRODUCTS .
20 THE CALCULATIONS ON THIS SUBJECT PRESENTED BY THE BELGIAN GOVERNMENT AND NOT CONTESTED BY THE COMMISSION , EVEN IF THEY ARE CORRECT , COMPARE ONLY THE AVERAGE CHARGES FOR THE TWO GROUPS OF PRODUCTS . IN CERTAIN CASES , THE DIFFERENCES BETWEEN THE CRITERIA APPLIED TO THE TWO GROUPS MAY RESULT IN HIGHER CHARGES ' BEING IMPOSED ON IMPORTED PRODUCTS . THAT IS THE CASE PARTICULARLY WHEN THE STANDARD AMOUNT IS DUE IN RESPECT OF A SMALL FRACTION OF 100 KG , IN PARTICULAR WHERE SMALL QUANTITIES ARE IMPORTED , OR WHERE THE GOODS ARE IMPORTED IN A CONDITION TO BE DISTRIBUTED DIRECT TO THE CONSUMER , WITHOUT ANY PROCESSING TAKING PLACE IN BELGIUM , AND WHERE THE NUMBER OF CHECKS CARRIED OUT IN BELGIUM IS THUS LIMITED .
21 AN APPRAISAL OF THE NATIONAL RULES AT ISSUE IN TERMS OF THEIR FORM , THEIR CONTENT AND THEIR EFFECTS , REVEALS THEREFORE THAT THE INSPECTION CHARGES LEVIED IN RESPECT OF HOME-PRODUCED MEAT ARE NOT PART OF A GENERAL SYSTEM OF INTERNAL DUES IMPOSING THE SAME CHARGE , IN ACCORDANCE WITH THE SAME CRITERIA , TO DOMESTIC AND IMPORTED PRODUCTS ALIKE .
22 BOTH DURING THE PROCEDURE PRIOR TO LITIGATION AND BEFORE THE COURT , THE BELGIAN GOVERNMENT CONTENDED THAT , IN THE LIGHT OF THE DIFFERENCES BETWEEN ONE MEMBER STATE AND ANOTHER IN THE COSTS OR FEES CHARGED IN RESPECT OF VETERINARY INSPECTIONS , THERE WOULD BE , IF THE VETERINARY INSPECTION DUES ON IMPORTATION WERE ABOLISHED , A DISTORTION OF COMPETITION IN THE CASE OF GOODS EXPORTED FROM A MEMBER STATE WHERE SUCH COSTS OR FEES WERE LOW TO A MEMBER STATE WHERE THEY WERE HIGHER , TO THE DETRIMENT OF THE LATTER STATE .
23 THAT LINE OF ARGUMENT CANNOT BE ACCEPTED . THE PROHIBITION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ON IMPORTS IS GENERAL AND IS NOT SUBJECT TO THE CONDITION THAT THE COSTS OF PRODUCTION , INCLUDING PUBLIC CHARGES , OF THE PRODUCTS WHICH MUST BE ABLE TO MOVE FREELY WITHIN THE COMMUNITY BE PREVIOUSLY HARMONIZED . FURTHERMORE , THE REASONS PUT FORWARD TEND TO SHOW THAT THE CONTESTED CHARGES ARE NOT LEVIED , INDEPENDENTLY OF THE ORIGIN OF GOODS , IN THE CONTEXT OF A GENERAL SYSTEM OF INTERNAL DUES , BUT ARE RATHER SPECIFICALLY IMPOSED ON IMPORTED PRODUCTS , A FACT WHICH CHARACTERIZES THEM AS A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES . THE FACT THAT THEY ARE INTENDED TO OFFSET CHARGES WHICH HOME-PRODUCED PRODUCTS MUST BEAR DOES NOT DEPRIVE THEM OF THAT CHARACTER .
24 CONSEQUENTLY , BY LEVYING INSPECTION CHARGES FOR IMPORTS OF FRESH , DRIED , SALTED AND SMOKED POULTRYMEAT FROM OTHER MEMBER STATES , THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 9 AND 12 OF THE EEC TREATY .