CJEC, 3rd chamber, January 12, 1983, No 39-82

THE COURT (third chamber)

1 By judgment of 8 january 1982, which was received at the court on 1 february 1982, the kantongerecht (cantonal court), the Hague, referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of article 13 of the treaty so as to enable it to decide whether the collection by the Netherlands administration for postal, telegraphic and telephone services (hereinafter referred to as ' ' the postal administration ' ') of charges in respect of customs clearance and commission on books imported from another member state is compatible with the treaty.

2 The question was raised in the course of an action brought by a private individual against the postal administration. The plaintiff in the main proceedings ordered several parcels of books from certain suppliers in other member states and became liable for the payment of turnover tax (value-added tax) on those goods. The postal administration declared the goods for customs purposes and paid the sums due in respect of value-added tax either on its own initiative or after sending a notice of arrival to the addressee, in which the latter was asked whether he wished the postal administration to complete the formalities or whether he wished to do so himself. When the parcels were delivered to his home the plaintiff in the main proceedings had to pay the postman not only the sums paid to the revenue authorities in respect of value-added tax but also certain sums which the postal administration collected on its own account in respect of customs clearance charges and commission.

3 The plaintiff in the main proceedings, who contests the legality of the collection by the postal administration of such sums, which he considers to be a charge having an effect equivalent to a customs duty prohibited by article 13 of the eec treaty, brought an action before the kantongerecht, the Hague, for the recovery of sums which were paid when not due. In his opinion, although member states are still in a position to maintain certain obstacles to trade within the framework of a national taxation system the maintenance of such obstacles is strictly limited and the levying of charges in respect of the related administrative costs is prohibited. In this case, the disputed taxes are in fact collected by the state in connection with value-added tax. The postal administration, which is merely an extension of the state with no separate legal personality and whose relations with the public are subject to legal and other provisions, acts as an assistant to the customs authority rather than on behalf of the addressee and the disputed charges represent payment for the administrative action taken by the state in order to collect the value-added tax payable.

4 According to the postal administration, the customs clearance charge and the commission are not charges having an effect equivalent to customs duties. The administration does not have a monopoly on the transport of parcels and the sender and the addressee of the goods may agree on another means of transport. Even if the parcel were sent by post the addressee might complete the formalities himself and, in that case, no charge would be payable to the postal administration.

5 Those were the circumstances which led the kantongerecht to refer the following question to the court for a preliminary ruling:

' ' Does the prohibition of charges having an effect equivalent to customs duties within the meaning of article 13 of the treaty establishing the european economic community extend to sums charged by the Netherlands State administration for postal, telegraphic and telephone services:

(a) In respect of customs clearance charges required of the addressee of a consignment of goods (books) which are sent from another member state by post to the addressee, a resident of the Netherlands, in return for presenting the goods for customs clearance, a procedure which is necessary for the charging of turnover tax;

(b) In respect of commission which is charged to the addressee for supplying the fiscal authorities with an import declaration in respect of the goods at his request or at least on his behalf?

' '

6 According to the information provided by the postal administration, the customs clearance charge is never invoiced separately from the commission and in the other member states where the postal administration requires similar payments, only one charge is made, the ' ' charge for customs presentation ' '. The two limbs of the kantongerecht ' s question should, therefore, be considered together.

7 As the court has acknowledged on several occasions, in particular in its judgments of 25 january 1977 in case 46-76 bauhuis (1977) ecr 5 and of 28 june 1978 in case 70-77 simmenthal (1978) ecr 1453, 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 equivalent effect within the meaning of article 12 and the succeeding articles of the treaty, unless it relates to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic and imported products alike, in which case the charge falls within the field of application of article 95 of the treaty. Such a charge is not however a charge having equivalent effect if it is the consideration for a service actually rendered to the importer or the exporter and is of an amount commensurate with that service.

8 In this case, the collection of turnover tax does not constitute a charge having an effect equivalent to customs duties. As the court held in its judgment of 5 may 1982 in case 15-81 schul (1982) ecr 1409, such a tax is part of the common system of value-added tax whereby a uniform taxation procedure has been established covering systematically and according to objective criteria both transactions carried out within the territory of the member states and import transactions. That tax must therefore be regarded as an integral part of a general system of internal taxation for the purposes of article 95 of the treaty.

9 However, in the absence of complete harmonization of the system of value-added tax within the community, the collection by a state of turnover tax entails certain formalities when goods which are subject to that tax are imported. In those circumstances the question submitted for a preliminary ruling must be interpreted as seeking to establish whether the pecuniary charge which the postal administration levies for the completion of those formalities on behalf of the addressee constitutes a charge having an effect equivalent to customs duties on imports within the meaning of article 13 of the treaty. It is therefore necessary to determine in the first place whether the charge is imposed unilaterally.

10 The postal administration contended first of all that the sender and the addressee were in a position to choose another means of transport for the goods in question within the community. That argument is unacceptable. In view of the dominant position of the postal authorities in all the member states, their close collaboration with each other within the framework of international agreements and the resulting service facilities, the possibility of using another means of transport cannot be seriously regarded as a realistic economic alternative for a single consignment of goods of low value to a private individual.

11 In the second place, the postal administration referred to the possibility of a private individual ' s completing the requisite postal formalities himself. A charge having equivalent effect cannot be said to exist if such a possibility is indeed open to users, provided that it constitutes a real alternative. In that respect, it should be noted that the postal administration ' s argument to the effect that a private individual may refuse to accept delivery, send the postman and the parcel away and make a declaration himself which would entail cancelling the declaration already made by the postal administration, would seem to ignore the realities of daily life. It is thus for the national court to ascertain whether or not the postal administration presents the addressee with a fait accompli by completing the above-mentioned formalities on its own initiative before sending him a notice of arrival.

12 If the national court reaches the conclusion that the disputed charge constitutes a charge imposed unilaterally by the postal administration, it must further be established whether that charge may be considered to be payment for a service rendered to the addressee and whether it represents an amount commensurate with that service. In order to do so, it may take into account the difficulties which face a private individual who tries to complete the requisite formalities, the efforts made by the postal administration and the question whether or not the charge is the subject of an international agreement negotiated by national post administrations.

13 In reply to the question referred to the court by the kantongerecht it must therefore be stated that the prohibition laid down in article 13 of the eec treaty is to be interpreted as extending to a postal charge for the presentation for customs clearance of a postal parcel sent from another member state, which is invoiced to the addressee in connection with the completion of turnover tax formalities, if it constitutes a pecuniary charge which is imposed unilaterally and does not represent payment for a service actually rendered of an amount commensurate with that service.

Costs

14 The costs incurred by the commission of the european communities and by the united kingdom, 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, a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

The court (third chamber)