CJEC, 5th chamber, August 11, 1995, No C-16/94

THE COURT (Fifth Chamber),

1 By judgment of 4 January 1994, received at the Court Registry on 17 January 1994, the French Cour de Cassation referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 9, 12, 13 and 16 of the EEC Treaty, now the EC Treaty.

2 That question was raised in proceedings between Garonor Exploitation SA (hereinafter "Garonor"), the manager of an international road station, and Édouard Dubois et Fils SA and Général Cargo Services SA (hereinafter "Dubois" and "Général Cargo"), two of its customers, for non-payment by the latter of a contractually stipulated charge known as a "taxe de passage" (transit charge).

3 Garonor is a private company which operates an international road station at Aulnay-sous-Bois, on the outskirts of Paris, within which private and public services for road transport are available. In particular, the customs authorities have an office there at which all the customs clearance operations normally completed at State frontiers can be carried out.

4 Dubois and Général Cargo are forwarding agents, recognized as such by the customs authorities. They make arrangements, on their own responsibility and in their own names, for goods to be transported for customers, and they undertake, inter alia, completion of customs formalities. To that end, they lease offices and sanitary facilities from Garonor and use the road and rail platforms at the station.

5 Dubois and Général Cargo have always paid to Garonor, in addition to the rent due under the lease, a flat-rate transit charge for each vehicle in international transit which enters or leaves their premises and completes customs clearance operations at the road station. The transit charge, which is calculated on the basis of monthly returns by the forwarding agents, is provided for in Garonor' s general contract conditions.

6 In 1984, Dubois and Général Cargo refused to pay the transit charge on the ground that it was to cover the costs incurred by Garonor in building and maintaining a TIR (Transport International Routier - International Road Transport) vehicle park used by the customs authorities. Since the customs authorities had agreed to carry out customs clearance operations on the private premises of the forwarding agents as from the beginning of 1981, there was in their view no longer any basis for the transit charge.

7 On 10 May 1988, Garonor commenced proceedings against Dubois and Général Cargo before the Tribunal de Commerce (Commercial Court), Paris. The court appointed an expert to examine in particular Garonor' s general conditions concerning the transit charge, having regard to the practice followed at other road stations. The expert reported that charges of that kind had been introduced by all the international stations set up before Garonor' s station and that they were commonly resorted to in order to finance costs and disbursements not otherwise provided for. By judgment of 12 June 1990, the Tribunal de Commerce, Paris, declared Dubois and Général Cargo liable to pay the transit charge and ordered them to pay the outstanding charges, together with damages.

8 By judgment of 27 June 1991, the Cour d' Appel (Appeal Court), Paris, upheld that judgment and also increased the amounts payable by the appellants. Dubois and Général Cargo then appealed to the Cour de Cassation, the grounds of their appeal being confined to points of national law.

9 The Cour de Cassation raised a point of law of its own motion, namely the possible infringement of Articles 9, 12, 13 and 16 of the EC Treaty. Observing that, "with the exception of the costs relating to maintenance of the vehicle park, the 'charge' at issue is intended to cover the expenses borne by Garonor in respect of the performance by the customs and veterinary services of their tasks as providers of services in the public interest", it wished to determine whether that charge constitutes a charge having equivalent effect within the meaning of those provisions.

10 After noting that the Court of Justice had not yet given a ruling in a case in which the financial charge was not introduced by the State or a State authority but was provided for in a contract between private individuals, the Cour de Cassation stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

"Do Articles 9, 12, 13 and 16 of the Treaty establishing the European Economic Community apply to a 'taxe de passage' (transit charge) which is designed to compensate a private undertaking for bearing costs arising from the performance by the customs and veterinary services of their tasks as providers of services in the public interest and has not been imposed by the State but arises from an agreement concluded by a private undertaking with its customers?"

11 As a preliminary point, it should be observed that the provisions mentioned by the national court relate only to products originating in Member States and to products from non-member countries which are already in free circulation.

12 Next, since the events with which the main proceedings are concerned occurred after the end of the transitional period, it will be sufficient to consider the national court' s question in relation to Articles 9 and 12 of the Treaty.

13 The national court' s judgment makes it clear that a significant part of the charge at issue is intended to cover costs relating to the performance by the customs and veterinary services of their tasks as providers of services in the public interest.

14 Articles 9 and 12 of the Treaty require the Member States to bear the costs of the controls and formalities carried out in connection with the movement of goods across frontiers. Thus, the Court has held that the costs occasioned by health inspections must be met by the general public which, as a whole, benefits from the free movement of Community goods (Case 87-75 Bresciani v Amministrazione delle Finanze [1976] ECR 129, paragraph 10).

15 It is, admittedly, settled law that Articles 9 and 12 of the Treaty do not apply to a charge imposed on goods by reason of the fact that they cross a frontier if that charge constitutes consideration for a specific service actually rendered to an economic agent individually and represents a proportional payment for that service (Case 63-74 Cadsky v Istituto Nazionale per il Commercio Estero [1975] ECR 281, point 10).

16 However, there is nothing to suggest that the charge at issue fulfils those conditions.

17 First, it applies generally to all vehicles in international transit whose load is cleared through customs within the confines of the road station.

18 Secondly, even though completion of the customs procedures in the economic agent' s own country confers certain advantages, they are linked with the customs formalities which, regardless of where they are completed, are obligatory in all cases. Moreover, those advantages derive from the Community transit procedure which was established by Regulation (EEC) No 542-69 of the Council of 18 March 1969 (OJ, English Special Edition 1969 (I), p. 125) and Council Regulation (EEC) No 222-77 of 13 December 1976 (OJ 1976 L 38, p. 1) in order to make goods flow more freely and facilitate transport within the Community. There can therefore be no question of levying any charges for customs clearance facilities accorded in the interests of the common market (Case 132-82 Commission v Belgium [1983] ECR 1649, paragraph 13, and Case 133-82 Commission v Luxembourg [1983] ECR 1669, paragraph 14).

19 In those circumstances, a Member State is in breach of its obligations under Articles 9 and 12 of the Treaty if, in respect of intra-Community trade, it charges economic agents the costs of inspections and administrative formalities carried out by customs offices (Case 340-87 Commission v Italy [1989] ECR 1483, paragraph 17).

20 The nature of the measure requiring economic agents to bear part of the operating costs of customs services is immaterial. Whether the pecuniary charge is borne by the economic agent by virtue of a unilateral measure adopted by the authorities or, as in the present case, as a result of a series of private contracts, it arises in all cases, directly or indirectly, from the failure of the Member State concerned to fulfil its financial obligations under Articles 9 and 12 of the Treaty.

21 It follows that the answer to be given to the national court is that Articles 9 and 12 of the EC Treaty apply to a transit charge designed to compensate a private undertaking for bearing costs arising from the performance by the customs and veterinary services of their tasks as providers of services in the public interest even if it has not been imposed by the State but arises from an agreement concluded by that undertaking with its customers.

Costs

22 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the French Cour de Cassation by judgment of 4 January 1994, hereby rules:

Articles 9 and 12 of the EC Treaty apply to a transit charge designed to compensate a private undertaking for bearing costs arising from the performance by the customs and veterinary services of their tasks as providers of services in the public interest even if it has not been imposed by the State but arises from an agreement concluded by that undertaking with its customers.