CJEC, 1st chamber, May 31, 1979, No 132-78

THE COURT (first chamber)

1 By judgment of 25 may 1978, received at the court on 12 june and completed by a corrective judgment of 6 july 1978, received at the court on 18 july 1978, the tribunal d ' instance, lille, referred to the court of justice under article 177 of the eec treaty three questions on the interpretation of articles 9, 12 and 13 of the treaty (first question) and article 95 of the treaty (second question) and of regulation no 2759-75 of the council of 29 october 1975 on the common organization of the market in pigmeat (third question).

2 These questions have been raised within the context of a dispute between the french customs authorities and a french cattle-feed manufacturer who imported a consignment of lard from the federal republic of germany; the reply to those questions should enable the national court to decide whether the above-mentioned provisions of community law prohibit the levying on that consignment, when it is imported, of a charge introduced by the french law no 77-646 of 24 june 1977 introducing a charge for the protection of public health and for the organization of the markets in meat and abolishing the public health charge and the charge for inspections and stamps (journal officiel de la republique francaise of 25 june 1977, p. 3399).

3 It follows from the information on the file transmitted by the national court that the charge in question is levied on the one hand on the meat of certain animals slaughtered in french slaughterhouses and, from animals of the same kind.

4 As regards meat slaughtered on french territory, the chargeable event giving rise to that charge is the slaughtering operation and the charge is levied in public or private slaughterhouses for the account, as the case may be, of the state or of local authorities or groups of local authorities which own slaughterhouses, when the animals listed in article 2 of the law are slaughtered, the rate being fixed per kilogramme net weight of meat per calendar year and the charge being payable by the owners of animals slaughtered with a view to the sale thereof. As regards imported meat, article 4 of the law provides that the charge ' ' is imposed on the importation of the meat, whether or not prepared, of the animals mentioned in article 2 ' ' and that it is payable by the importer or by the person making the customs declaration when the goods are given customs clearance for release to the market. It is collected according to the same rules and under the same guarantees as those relating to customs duties.

5 Under order no 77-899 of 27 july 1977 (journal officiel de la republique francaise of 9 august 1977, p. 4136) laying down conditions for the application of law no 77-646, the charge, as regards indigenous products, is imposed on fresh meat on the basis of the net weight of the meat as defined in articles 2 to 5 of the order. As regards imported products, the charge is imposed on a certain number of meat-based preparations and the fats listed in article 9 of the order by reference to tariff heading or subheading numbers of the common customs tariff as well as on fresh meat. Lard and other pig fat are referred to in particular under tariff heading 15.01. The charge is imposed on the net weight of the meat - in the present case the lard - and the amount thereof is identical per kilogramme to that of the charge imposed on indigenous pigmeat when it is slaughtered.

6 In its first question the national court asks whether it is ' ' contrary to the prohibition on charges having an effect equivalent to customs duties on imports within the meaning of articles 9, 12 and 13 of the treaty establishing the european economic community to apply a charge imposed on the imports of lard from another member state intended for use in animal feeding-stuffs in order to compensate for the levying of a domestic charge on the slaughter of swine ' '. This question asks in substance whether the concept of a charge having an effect equivalent to a customs duty - which is prohibited in intra-community trade - extends to a national charge of the kind referred to by the national court, in so far as that charge is imposed on products imported from other member states when they are imported, and in particular on those coming within tariff heading 15.01 (lard and other pig fat...).

7 As the court has acknowledged several times, and in particular in its judgment of 25 january 1977 in case 46-76, w. J. G. Bauhuis v the netherlands state (1977) ecr 5, 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 and which is not a customs duty in the strict sense, constitutes a charge having an equivalent effect within the meaning of articles 9, 12, 13 and 16 of the treaty. Such a charge however escapes that classification if it constitutes the consideration for a benefit provided in fact for the importer or exporter representing an amount proportionate to the said benefit. It also escapes that classification if it relates to a general system of internal dues supplied systematically and in accordance with the same criteria to domestic products and imported products alike, in which case it does not come within the scope of articles 9, 12, 13 and 16 but within that of article 95 of the treaty.

8 It is however appropriate to emphasize that in order to relate to a general system of internal dues, the charge to which an imported product is subject must impose the same duty on national products and identical imported products at the same marketing stage and that the chargeable event giving rise to the duty must also be identical in the case of both products. It is therefore not sufficient that the objective of the charge imposed on imported products is to compensate for a charge imposed on similar domestic products - or which has been imposed on those products or a product from which they are derived - at a production or marketing stage prior to that at which the imported products are taxed. To exempt a charge levied at the frontier from the classification of a charge having equivalent effect when it is not imposed on similar national products or is imposed on them at different marketing stages or, again, on the basis of a different chargeable event giving rise to duty, because that charge aims to compensate for a domestic fiscal charge applying to the same products - apart from the fact that this would not take into account fiscal charges which had been imposed on imported products in the originating member state - would make the prohibition on charges having an effect equivalent to customs duties empty and meaningless.

9 It is therefore necessary to reply to the first question that a charge which is imposed on meat, whether or not prepared, when it is imported, and in particular on consignments of lard, even though no charge is imposed on similar domestic products, or a charge is imposed on them according to different criteria, in particular by reason of a different chargeable event giving rise to the duty, constitutes a charge having an effect equivalent to a customs duty within the meaning of articles 9, 12 and 13 of the treaty.

10 The other two questions have been submitted by the court making the reference only if the court of justice rules that a charge of the kind referred to escapes the classification of a charge having an effect equivalent to a customs duty. It follows that the reply to those questions has, having regard to the reply given to the first question, become purposeless.

Costs

11 The costs incurred by the government of the french republic and by the commission of the european communities, which submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, 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 (first chamber)

In answer to the questions referred to it by the tribunal d ' instance, lille, by judgment of 25 may 1978 completed by a corrective judgment of 6 july 1978, hereby rules:

A charge which is imposed on meat, whether or not prepared, when it is imported, and in particular on consignments of lard, even though no charge is imposed on similar domestic products, or a charge is imposed on them according to different criteria, in particular by reason of a different chargeable event giving rise to the duty, constitutes a charge having an effect equivalent to a customs duty within the meaning of articles 9, 12 and 13 of the eec treaty.