CJEC, October 11, 1973, No 39-73

1 By order dated 19 February 1973, lodged with the registry of the Court on 9 march 1973, the oberverwaltungsgericht fuer das land nordrhein-westfalen submitted two questions of interpretation of the concept of "charges having an effect equivalent to customs duties on imports "contained in the opening sentence of article 13 (2) of the eec treaty.

2 The first question is directed to whether a pecuniary charge imposed for reasons of phyto-sanitary examination carried out on vegetable substances at the time when they cross the frontier must be regarded as a charge having an effect equivalent to customs duties within the meaning of article 13 (2) of the treaty.

The second question asks whether it is the same in the case where the charge provided for merely covers, or does not even cover, the cost of the examination on import.

3 The concept of charges having an effect equivalent to customs duties on imports is directed to any charge exacted at the time or because of import, which, specifically affecting an imported product to the exclusion of a similar domestic product, has the same restrictive effect on the free movement of goods as a customs duty.

Since the obligation to abolish these charges at the end of the transitional period does not allow any distinction according to the end pursued by the collection of the pecuniary charges, or their amounts, it thus covers duties exacted for phyto-sanitary examinations carried out because the goods are imported.

It would only be otherwise if these charges fell under a general system of domestic dues systematically embracing domestic products and imported products according to the same criteria.

4 Although it is not ruled out that there may be certain circumstances in which a particular service rendered may possibly give rise to some consideration, which should not exceed either the value or the cost of the service, they can only be special cases which cannot lead to the provisions of article 13 of the treaty being circumvented.

The activity of the administration of the state intended to maintain a phyto-sanitary system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge.

5 Consequently, pecuniary charges, whatever their amount, imposed for reasons of phyto-sanitary examination of products when they cross the frontier, which are determined according to criteria of their own, which criteria are not comparable with those for determining the pecuniary charges attaching to similar domestic products, are deemed charges having an effect equivalent to customs duties.

6 The costs of the Commission of the European Communities, which has submitted observations to the Court, cannot be reimbursed, and since as regards the parties in the main action the present proceedings are a step in the action pending before the national Court, the question of costs is a matter for that Court.

The Court,

In answer to the questions referred to it by the oberverwaltungsgericht fuer das land nordrhein-westfalen by order of that Court dated 19 February 1973, hereby rules:

1. Pecuniary charges, whatever their amount, imposed for reasons of phyto-sanitary examination of products when they cross the frontier, which are determined according to criteria of their own, which criteria are not comparable with those for determining the pecuniary charges attaching to similar domestic products, are deemed charges having an effect equivalent to customs duties.

2. The activity of the administration of the state intended to maintain a phyto-sanitary system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge.