CJEC, December 13, 1973, No 37-73

1 By judgments of 23 February 1973, registered at the Court on 7 March 1973, the arbeidsrechtbank of antwerp referred several questions under article 177 of the eec treaty on the interpretation of certain provisions of the treaty and of regulation No 950-68 of the Council of 28 June 1968 (oj 1968, l 172) on the establishment of the common customs tariff.

2 It appears from the dossiers that these questions were raised in the context of an action concerning the levying of a charge on the import of rough diamonds coming directly from third countries that charge being made for purposes of a social nature.

3 The essential purpose of the questions referred is to have it made known whether, and to what extent, the member states may introduce or maintain, after 1 July 1968, charges having an effect equivalent to customs duties, levied on goods imported directly from third countries, and under what conditions they may be required to eliminate them.

4 The application of such charges in this case is dependant upon the trade arrangements with third countries, instituted at article 3 (b) of the treaty, and especially upon the principles governing the customs union, such as those set out at article 9.

5 The customs union, which is one of the foundations of the community, involves, on the one hand, the elimination of customs duties between the member states and of all charges having equivalent effect.

6 The elimination of such charges is designed to promote the free movement of goods within the community.

7 It must therefore be sufficiently comprehensive to include the abolition of all pecuniary, administrative or other obstacles, for the purpose of achieving a unified market between the member states.

8 On the other hand, the customs union involves the establishment of a single customs tariff for the whole community, as envisaged at articles 18 to 29 of the treaty.

9 This common tariff is intended to achieve an equalization of customs charges levied at the frontiers of the community on products imported from third countries, in order to avoid any deflection of trade in relation with those countries and any distortion of free internal circulation or of competitive conditions.

10 Although, unlike the first section of the chapter of the treaty relating to the customs union (articles 12 to 17), section 2 of the same chapter (articles 18 to 29) makes No mention of " charges having an effect equivalent to customs duties ", this omission does not mean that such charges may be maintained, still less introduced.

11 In answering the question as to the application of such charges in trade with third countries, account must be taken both of the requirements resulting from the establishment of the common customs tariff, and of those resulting from a common commercial policy, within the meaning of articles 110 to 116 of the treaty, which, according to the abovementioned article 3 (b), regulates trade arrangements with third countries.

12 The common customs tariff was introduced, for the community as originally constituted, by regulation No 950-68 of the Council, which came into force on 1 july 1968.

13 Although that regulation does not expressly allow for the elimination or equalization of charges other than customs duties as such, it is nevertheless clear from its objective that under it member states are prohibited from amending, by means of charges supplementing such duties, the level of protection as defined by the common customs tariff.

14 Even if they are not protective in character the existence of such charges may be irreconcilable with the requirements of a common commercial policy.

15 According to article 113 (1) of the treaty, the common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade.

16 The definition of these uniform principles involves, as does the common tariff itself, the elimination of national disparities, whether in the field of taxation or of commerce, affecting trade with third countries.

17 It is for the Commission or the Council to evaluate these requirements in each case both as regards the establishment of the common customs tariff and the adoption of the commercial policy.

18 It follows therefore that subsequent to the introduction of the common customs tariff all member states are prohibited from introducing, on a unilateral basis, any new charges or from raising the level of those already in force.

19 As regards charges already in existence, prior evaluation by the community authorities is necessary in order to establish their incompatability with the treaty and the obligation to eliminate them.

20 It follows that such charges may only be considered to be incompatible with community law pursuant to provisions adopted by the community.

21 Therefore a prohibition upon charges of that nature is the result in particular of provisions, which are not in issue here, adopted in the context of the common agricultural policy, of trade agreements concluded by the community and of association arrangements existing between the community and certain states.

22 Accordingly, the questions referred should be answered to the effect that the member states may not, subsequent to the establishment of the common customs tariff, introduce, in a unilateral manner, new charges on goods imported directly from third countries or raise the level of those in existence at that time.

23 As regards charges already in existence, the introduction of the common commercial policy must involve the elimination of all national disparities, whether in the field of taxation or of commerce, which regulate trade with third countries.

24 Since the adoption of this common commercial policy falls within the exclusive jurisdiction of the community, the equalization of charges other than customs duties as such for all the member states or their elimination is dependant upon an intervention by the community.

25 Accordingly, the reduction or elimination of existing charges on goods imported directly from third countries is a matter for the institutions of the community.

26 The costs incurred by the Commission of the european Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before a national Court, the decision on costs is a matter for that Court.

The Court

In answer to the question referred to it by the arbeidsrechtbank of antwerp, pursuant to the judgments given by that Court on 23 February 1973, hereby rules:

1. The member states may not, subsequent to the establishment of the common customs tariff, introduce, in a unilateral manner, new charges on goods imported directly from third countries or raise the level of those in existence at that time.

2. The reduction or elimination of existing charges on goods imported directly from third countries is a matter for the institutions of the community.