CJEC, April 7, 1981, No 132-80

THE COURT

1 By judgment of 5 march 1980, received at the court on 2 june 1980, the rechtbank van eerste aanleg, bruges, referred to the court, pursuant to article 177 of the eec treaty, four questions concerning the interpretation of articles 9, 12, 13, 30, 36 and 95 of the eec treaty in order to enable it to assess the compatibility with community law of Belgian legislation on health inspections on the importation of fish.

2 The file on the case shows that in 1978 the plaintiffs in the main action applied to the national court for the recovery of amounts paid by them to the customs authorities as inspection levies for health controls on imported fish.

3 In the judgment referring the matter to the court, it is specified that health inspections of fish are governed in belgium by the law of 15 april 1965 on the inspection of and trade in fish, poultry, rabbits and game. Article 6 of that law provides that levies by the king may be imposed in accordance with the rules laid down by him and intended to meet the cost of health controls.

4 The detailed rules governing health control were laid down by the royal decree of 30 april 1976 on the inspection of and trade in fish. Articles 3 and 4 of this decree, which make up chapter ii, relate to health controls on fish-farms. Articles 5 and 6, which make up chapter iii, govern the inspection of fish caught in the sea (referred to as ' ' landed ' ' fish) which is carried out under the responsibility of the competent local authorities on landing in fish-markets or in any other place where the fish is landed. Article 9 et seq., which make up chapter v, contain special provisions applicable to health controls on imported fish for which the customs authorities are responsible.

5 Article 21 of the above-mentioned decree, as subsequently amended by the royal decree of 3 december 1976, fixes inspection levies for health controls on importation at bfr 15 per 100 kg or fraction thereof in the case of whole unprocessed fish and at bfr 30 per 100 kg or fraction thereof in the case of other fish. It provides for the collection of these levies through the agency of the customs authorities. The inspection levy on ' ' landed ' ' fish was laid down by another royal decree of 3 december 1976 fixing inspection levies on landing for fish caught in the sea. Under article 1, an inspection levy intended to meet the cost of inspection is collected by the local authority on whose territory the fish is landed. The inspection levy is fixed by article 2 of the decree at a uniform rate of bfr 0.15 per kg of landed fish.

6 In the national court the plaintiffs in the main action challenged the compatibility of these provisions with the rules of the eec treaty on two grounds.

7 First, in their opinion, this control constitutes a measure having an effect equivalent to quantitative restrictions on imports, prohibited under article 30 of the treaty, and as such it cannot provide a basis for the charging of inspection levies. The health control provided for under the Belgian legislation at issue is inefficient, iNVolves expense and causes delay and cannot, as such, be justified under article 36 of the treaty.

8 Secondly, with regard to the inspection levy, the plaintiffs consider that, in accordance with a series of cases decided by the court beginning with the judgment of 14 december 1972 (case 29-72 marimex (1972) ecr 1309), health dues, where charged, must be regarded as a charge having an effect equivalent to a customs duty, prohibited under articles 9, 12 and 13 of the treaty. Even if the inspection levy ought to be regarded as internal taxation within the meaning of article 95 of the treaty, its imposition would still be contrary to the rule against discrimination contained in that article.

9 In order to decide these issues, the rechtbank van eerste aanleg has requested the court of justice for a ruling on four questions whose wording is as follows:

1. Must articles 30 et seq of the eec treaty be interpreted as meaning that public health inspection, carried out at the frontier when fish is imported, and being compulsory and systematic in nature, must be regarded as a measure having an effect equivalent to quantitative restrictions if:

- the importer must advise the competent administrative authority in writing at least 24 hours before importation of the nature, quantity and origin of a consignment and must advise the day and hour of the importation as well as the customs office or sub-office through which importation is to take place;

- the importation of fish is permissible only through the customs offices and sub-offices notified by the authorities and on the day and at the time fixed by the authorities;

- the containers, packing and ice used must meet legal requirements;

- the inspection marks made by the authorities must be placed on every package, however small;

- consignments of imported fish must be provided with a health certificate issued by the competent authority of the country of origin showing that the fish has been subject to a veterinary health inspection and that on the day of dispatch it was declared fit for consumption, the form of health certificate being laid down by the authorities of the importing member state.

2. If the answer to the first question is in the affirmative, must article 36 of the eec treaty be interpreted as meaning that public health inspection of the type described in the first question is justified on the ground of the protection of public health which such inspection is intended to achieve?

3. 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 taxation 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 of 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?

4. In the event of the foregoing question ' s being answered in the sense that inspection levies as therein described are not to be regarded as charges having an effect equivalent to customs duties but may be regarded as being part of a system of internal taxation within the meaning of article 95 of the eec treaty, is there any discrimination prohibited by article 95 if 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?

10 In its observations to the court, the commission expresses doubts as to the compatibility with the treaty of the health inspection system applied by belgium but without, it seems, calling in question the principle on which that system is based. The commission states that it is conducting a survey on this system of control but is as yet unable to give its final opinion thereon. It takes the view, however, that a double-check, as provided for under the provisions of the Belgian rules in question, is incompatible with the requirements of the treaty, at least as regards fish imported from other member states of the community where there are already rules which provide, to a very large extent, reliable protection of a similar nature.

11 As for the inspection levy, the commission regards it as a charge having an effect equivalent to a customs duty, prohibited by the treaty. A survey conducted throughout the community shows that health inspection levies have been abolished in all the member states with the exception of belgium, and leaving aside one member state for which no reliable information is as yet available to the commission.

12 According to the danish government, there is no doubt that in principle the member states may lay down and apply rules relating to health controls on fish. It is for the national authorities to set up a cohesive and reliable system of control capable of functioning in practice without occasioning unreasonable administrative costs and to exercise for this purpose an appropriate discretion, on condition that they comply with the duty not to draw a distinction between the treatment accorded to their own production and to imported goods. Without challenging the principle on which the Belgian control system is based, the danish government draws attention to certain detailed rules forming part of this system whose effect, in its view, is to hinder intra-community trade. Thus the requirement that 24 hours ' notice must be given prior to any importation and the determination by the administrative authorities of the time of importation are capable of creating an impediment to the transfer of highly perishable goods which must be sold as quickly as possible. With regard to frozen fish, the danish government takes the view that the duplication of the control, carried out at the time of importation and, subsequently, on the importer ' s premises, may constitute an unnecessary hindrance to the importer.

13 As far as the inspection levy is concerned, the danish government considers that it is immaterial in this case whether the Belgian charge is considered in the light of article 9 or of article 95 of the treaty. Regardless of its classification, the system under which this levy is imposed iNVolves discrimination inasmuch as domestic products and imported products are not treated in accordance with the same criteria. The danish government lays particular emphasis on the difference in the charge according to whether or not the imported fish is processed, whereas landed fish always bears the lowest charge, irrespective of its state of preparation. The danish government points out that no levy or charge is imposed for general or systematic health controls carried out in denmark.

14 The french government states that in the absence of community rules harmonizing the detailed national rules on health control, the latter undoubtedly come within the exception provided for in article 36 of the treaty. In its opinion, however, it is difficult to deny that some of the characteristics referred to in the first question by the national court are capable of rendering the importation of fish from other member states of the eec more expensive or more difficult. As to the requirement of control in the country of dispatch as well as in the country of destination, the french government considers, unlike the commission, that this double-check is justified by the perishable nature of the goods in question and by the risk of accidents occurring in the course of transportation. In its opinion, the fish must be ' ' monitored ' ' by means of health controls from the time of landing through every marketing stage until it is sold to the consumer. In this regard, controls which are merely sporadic appear to be insufficient.

15 As to the inspection levy, the french government regards it as a charge having an effect equivalent to a customs duty, prohibited by the treaty. In the event, however, of the court ' s deciding to classify it as internal taxation, within the meaning of article 95, the french government points out that the detailed rules for the charging of this levy lead to discrimination inasmuch as there is a difference between the treatment accorded to ' ' landed ' ' fish and to imported fish as a result in particular of the distinction drawn under Belgian rules between processed fish and unprocessed fish. In this connexion, the french government draws attention to the confusion created by the fact that this distinction does not correspond to the categories of the common customs tariff (tariff headings 03.01 and 03.02 respectively).

16 In the oral procedure, the Belgian government defended the compatibility of the contested control system with the treaty. It recalls that under article 36 of the treaty, the provisions of articles 30 to 34 inclusive do not preclude prohibition of imports justified on grounds of the protection of health of humans. The principle of health inspection prior to the release of fish for consumption cannot therefore be regarded as incompatible with the legal system of the community. This control is carried out on the basis of the law of 15 april 1965 and the royal decree of 30 april 1976 without discriminating in any way between imported fish, landed fish or fish from fish-farms. With regard to the objection raised by the plaintiffs in the main action to the existence of a double-check in the country of dispatch and in the country of destination, the Belgian government agrees that the second control is essential in order to take account of the conditions of transportation of perishable goods over long distances.

17 As to the inspection levy, the Belgian government states that it is intended to finance health controls carried out not as a result of the importation of the fish but rather on its release for consumption on Belgian territory, irrespective of the origin of the goods. As to the difference noted by various parties between the levy applied to processed fish and that applied to unprocessed fish, the Belgian government draws attention to the fact that, according to past experience, the processing of fish, that is to say, cutting in pieces and removal of offal, entails a weight-loss of approximately 50 % which is the reason why the rate of charge on processed fish is twice as high as that on unprocessed fish. The Belgian government does not dispute that ' ' landed ' ' fish attracts only the levy fixed for unprocessed fish. It explains this by the fact that the Belgian fishing fleet does not at present possess any ships suitably equipped for processing the fish at sea. It agrees that the rules in force should be amended once Belgian ships are suitably fitted out for this purpose. According to the Belgian government therefore, there is no fiscal discrimination against imported fish.

18 In conclusion, the Belgian government considers that the application of health controls cannot be regarded as a measure having an effect equivalent to a quantitative restriction and that the inspection levy cannot be classified as a charge having an effect equivalent to a customs duty.

The compatibility of health inspections with articles 30 and 36 of the treaty (first and second questions)

19 In its first two questions relating to the interpretation of articles 30 and 36 of the treaty, the national court asks in substance whether health inspection of imported fish is compatible, in principle, with the provisions of community law and, if it is, whether the detailed rules governing control referred to in the first question are justified in relation to the requirements of article 36.

20 Under article 30, quantitative restrictions on imports and all measures having equivalent effect are prohibited between member states ' ' without prejudice to the following provisions ' '. This reservation in article 30 concerns in particular article 36 according to which the provisions of articles 30 to 34 inclusive do not preclude prohibitions or restrictions on imports which are justified, inter alia, on grounds ' ' of the protection of health and life of humans ' '. The second sentence of this article adds, however, that these prohibitions or restrictions ' ' shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states ' '.

21 The court has had occasion to emphasize, in a consistent line of decisions on this matter, that article 30 has as its objective to remove, as between member states, all barriers to the free movement of goods and, in particular, those which are specifically aimed at imported products or which apply to imported products and to domestic products under different conditions so as to render the marketing of imported products more difficult or expensive (judgments of 8 july 1975 in case 4-75 rewe (1975) ecr 843; 20 may 1976 in case 104-75 de peijper (1976) ecr 613; 15 december 1976 in case 35-76 simmenthal (1976) ecr 1871; 12 july 1979 in case 153-78 commission v federal republic of germany (1979) ecr 2555; 8 november 1979 in case 251-78 denkavit (1979) ecr 3369).

22 It follows from article 36, however, that controls on importation are compatible with the treaty where they are justified by the need to protect public health, but on condition that the application of such controls does not constitute arbitrary discrimination or a disguised restriction on imported products. If a health control satisfies these requirements, article 30 of the treaty does not preclude such a measure.

23 The questions referred to the court must be answered in the light of these principles.

24 In the first place, it should be borne in mind in this regard that at present there are in the community no common or harmonized rules relating to health controls on fish. The purpose of council regulation n°113-76 of 19 january 1976 (official journal, l 20, p. 29), which has been referred to during the proceedings, is to lay down common marketing rules in respect of certain fresh or chilled fish. This regulation is not concerned with the subject of health control.

25 In these circumstances, it is for the member states to provide for health control in this field and to apply it at the various marketing stages of the fish. Since restrictions on trade justified on grounds of the protection of public health are expressly allowed under article 36 of the treaty and the community has not yet adopted common or harmonized rules in this matter, the application to fish imported from other member states of the health control provided for under the national legislation of a member state in respect of sea-fish landed in its ports cannot be regarded as constituting, as far as the principle on which it is based is concerned, a measure prohibited under the treaty.

26 It is not disputed that the measures at issue before the national court are in the nature of health controls and therefore in principle come within the exception provided for in article 36. This, however, leaves open the question whether the various detailed rules referred to by the national court may constitute a disguised restriction on trade between member states so as to deprive such control of its justification within the meaning of article 36.

27 This may indeed be the effect, either singly or in combination, of some of the detailed rules referred to in the first question. The various elements mentioned by the national court call for the following observations.

28 The requirement that notice must be given in writing setting forth all the details prescribed under the legislation at issue at least 24 hours before importation appears to be incompatible with the speed of transactions and of transportation in this field, given the perishable nature of the goods in question. If, with regard to the determination by the customs authority of the premises where control is to be carried out as well as of days and times of their opening, it appears that the effect of these measures is to hinder imports they would be justified only on condition that they could be shown to satisfy objective requirements appertaining to the organization of the public health service. The same observation applies to the detailed technical rules mentioned by the national court if there proves to be no reasonable connexion between the requirements laid down by the authorities and the exercise of control.

29 As to the requirement of control on the importation of goods which have already undergone equivalent control in the country of dispatch, it is necessary to recall that in its judgment of 8 november 1979 (case 251-78 denkavit (1979) ecr 3395), the court held that a double-check in the exporting country and in the importing country may, depending on the circumstances, be more than article 36 of the treaty permits if health requirements may be satisfied as effectively by measures which are not so restrictive of intra-community trade. Since in the present case, the fish has already undergone in the country of dispatch a health inspection carried out in accordance with the rules which the actual legislation of the country of destination prescribes, control on importation must in all cases be limited to measures designed to counter the risks arising from transportation or from any handling following the inspection carried out on dispatch.

30 It is for the national court to examine, in the light of the above considerations, whether and to what extent the detailed measures of control applied by the Belgian authorities are capable of constituting an impermissible restriction on intra-community trade.

31 It is therefore necessary to answer, in reply to the first two questions, that in the absence of common or harmonized rules on health inspections of fish, the measures of control applied by the member states may not be considered, in principle, as a restriction prohibited under the treaty but that any detailed implementing rules which exceed the requirements of the controls and are capable as such of hindering or restricting intra-community trade must, by virtue of articles 30 and 36, be considered as measures having an effect equivalent to quantitative restrictions.

The compatibility with community law of the inspection levy (third and fourth questions)

32 In its third question, the national court, drawing attention to certain differences which exist under the control system at issue, requests the court of justice to specify the criteria according to which a levy such as an ' ' inspection levy ' ' may be classified either as a charge having an effect equivalent to a customs duty within the meaning of articles 9, 12 and 13 of the treaty or as internal taxation within the meaning of article 95. These differences concern, first, fish from fish-farms, according to whether it has been imported or comes from fish-farms situated on national territory, and, secondly, fish caught in the sea, according to whether it has been ' ' landed ' ' or imported.

33 According to a consistent line of decisions of the court, beginning with its judgment of 14 december 1972 (case 29-72 marimex (1972) 1309), the classification under the treaty of dues levied on the occasion of health inspections on importation depends on whether the dues in question are calculated in accordance with special criteria which are not comparable with the criteria employed in fixing any pecuniary charges imposed upon similar domestic products or whether they are pecuniary charges related to a general system of internal dues applied systematically, for the purposes of the control in question, to domestic products and imported products alike in accordance with the same criteria.

34 In the case cited above as in several subsequent cases (judgments of 11 october 1973 in case 39-73 rewe (1973) ecr 1039; 9 july 1975 in case 21-75 schroeder (1975) ecr 905; 5 february 1976 in case 87-75 bresciani (1975) ecr 129; 15 december 1976 in case 35-76 simmenthal (1976) ecr 1871; 31 may 1979 in case 132-78 denkavit loire (1979) ecr 1923), the court was led to classify various types of health dues as charges having an effect equivalent to customs duties in the absence of a sufficiently close connexion between the dues levied on the importation of products subject to health inspections and those levied on the occasion of controls on domestic products.

35 The system on which the national court will have to give judgment must be examined according to the above criteria.

36 It is impossible in the circumstances to overlook the fact that the imposition of an inspection levy forms part of a single system of rules derived from the same basic law. However, it is not sufficient to take this purely formal criterion into account for the purpose of assessing the compatibility of the contested system of dues with community law. The assessment must be made having regard to the contents and to the effects of the rules at issue.

37 In this regard, the national court observes in the first place that imported fish from fish-farms attracts an inspection levy, whereas the system of control on fish-farms situated on national territory does not iNVolve any dues. Subject to the findings of fact to be made by the national court, it is necessary to state that, from the point of view of community law, the inspection levy charged on imports of fish from fish farms constitutes a charge having an effect equivalent to a customs duty where the situation under the national legislation is such that fish from fish-farms situated on national territory escapes in law or in fact the imposition of any health charges.

38 With regard to fish caught in the sea, the national court draws attention first to the fact that the inspection levy on ' ' landed ' ' fish is charged by the local authorities on landing, whereas in the case of imported fish it is charged through the agency of the national customs and excise authorities. It is not disputed that in both cases the proceeds are intended, directly or indirectly, to finance health inspections.

39 A study of the situation shows that the difference in the detailed administrative rules for charging the levy may be ascribed to the fact that the customs authorities are not responsible for ' ' landed ' ' fish which is regarded as a domestic product from the moment it is caught, whereas controls on imported fish may be carried out, whether at the maritime frontier, the land frontier or at the ultimate destination within the country only through the agency of the customs authority and that therefore there is an objective ground underlying the difference between the systems. In any event, it has not been demonstrated that the division of administrative powers between the local authorities and the customs authority for the charging and allocation of the inspection levy influences the basis of assessment and the amount of the charge. These circumstances may therefore be disregarded for the purposes of examining the compatibility of the contested system with community law since such compatibility must be assessed by reference to the impact of the contested levy on intra-community trade.

40 Other characteristics of the contested system, however, lead to the conclusion that the inspection levy in question constitutes in reality a charge having an effect equivalent to a customs duty.

41 In this connexion, it is necessary to observe, first of all, that the scope and the rate of the inspection levy have been determined on the basis of different criteria, making any comparison between the two systems awkward. This difficulty is all the more appreciable in that the criteria on which the rules in question are based are not in keeping with the classification adopted by the community in regulation n°100-76 on the common organization of the market in fishery products (official journal, l 20, p. 1), the common customs tariff and trade statistics.

42 Furthermore, the rules for the determination of the inspection levy provide, in the case of ' ' landed ' ' fish, for the application of a uniform rate per kilogram, whereas the inspection levy on imported fish, fixed by reference to quantities weighing 100 kilograms and fractions thereof is applied on the basis of a distinction drawn between processed fish and other fish, the inspection levy on processed fish being twice as high as that on unprocessed fish. Presumably, although the file on the case contains no indications in this respect, imported fish is in most cases, in view of the requirements of transportation, classified in the same category as processed fish which attracts a higher inspection levy than unprocessed fish.

43 The answer to the third question must therefore be that an inspection levy for health inspection of imported fish determined and imposed without objective justification, in accordance with particular criteria concerning the nature or condition of the goods, which are not comparable to the criteria used in fixing the pecuniary charges on domestic products of the same kind must be considered as a charge having an effect equivalent to a customs duty, prohibited by articles 9, 12 and 13 of the eec treaty.

44 In view of the answer to the third question, it is unnecessary to consider the fourth question.

45 The costs incurred by the government of the french republic, the government of the kingdom of denmark, the government of the kingdom of belgium and the commission of the european communities which have submitted observations to the court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court

In answer to the questions submitted to it by the rechtbank van eerste aanleg, bruges, by judgment of 5 march 1980 hereby rules:

1. In the absence of common or harmonized rules on health inspections of fish, the measures of control applied by the member states may not be considered, in principle, as a restriction prohibited under the eec treaty. Nevertheless all detailed implementing rules which exceed the requirements of the controls and are capable as such of hindering or restricting intra-community trade must, by virtue of articles 30 and 36 of the treaty, be considered as measures having an effect equivalent to quantitative restrictions.

2. An inspection levy for health inspection of imported fish determined and imposed without objective justification, in accordance with particular criteria concerning the nature or condition of the goods, which are not comparable to the criteria used in fixing the pecuniary charges on domestic products of the same kind, must be considered as a charge having an effect equivalent to a customs duty, prohibited by articles 9, 12 and 13 of the eec treaty.