CJEC, November 9, 1983, No 158-82

THE COURT

1 By an application lodged at the court registry on 26 may 1982 the Commission of the European Communities brought an action pursuant to article 169 of the eec treaty for a declaration that by levying a charge for health inspection on the importation from other member states of groundnuts and groundnut products the Kingdom of Denmark had failed to fulfil its obligations under articles 9 and 13 of the eec treaty.

2 By order no 7 of the minister for the interior of 7 january 1971 the danish government prohibited the sale or assignment in Denmark of foodstuffs containing groundnut and groundnut products containing detectable quantities of aflatoxin. At the same time, the order made the importation of groundnuts and certain groundnut products subject to an administrative authorization if they were intended to be sold as foodstuffs or to be used in the manufacture of foodstuffs. Such authorization is granted only on production of a certificate of analysis issued by a danish laboratory on the basis of a systematic health inspection intended to establish that the goods do not contain aflatoxin in discernible quantities, based on samples and a laboratory analysis.

3 Since aflatoxin is one of the most virulent carcinogenic substances, even in very small quantities, the commission has accepted that such inspections are permitted by article 36 of the treaty.

4 The danish laboratory which is required to carry out the analysis is designated by the director of the statens levnedsmiddelinstitut (state foodstuffs institute) of Denmark. However, in certain circumstances he may approve a certificate of analysis drawn up by a foreign laboratory on the basis of a sample taken and analysed in that country.

5 Article 5 (3) of the aforementioned order provides that the costs of analysis and sampling are to be borne by the importer.

6 It is agreed that groundnuts are not produced in Denmark.

7 The danish law upon which the order was based establishes a two-tier system for the inspection of foodstuffs. Article 44 thereof provides for a general health inspection carried out by the local authorities, the costs of which are covered by local taxes; on the other hand, article 41 authorizes the appropriate minister to make orders requiring special health inspections for particular food products; in that case, the costs of laboratory analysis are to be borne by the undertakings concerned. In addition, there exist a number of special laws which make certain other foodstuffs subject to health and quality inspection by the state; the relevant costs are borne by the producers and importers, at least for most of those products, namely margarine, poultry, fish, eggs, milk and products derived from them.

8 Pursuant to article 41 of the law on foodstuffs the danish government has issued a number of orders concerning on the one hand additives to food products and on the other hand products which, by their nature, are considered to present a special risk, namely brazil nuts and groundnuts.

9 The commission maintains that in the light of previous decisions of the court the charge in question must be regarded as a charge having an effect equivalent to a customs duty prohibited by articles 9 and 13 of the eec treaty, since it is a pecuniary charge, unilaterally imposed, affecting imported goods solely by reason of the fact that they cross a frontier.

10 Although it is not a customs duty in the strict sense and although it was not levied on behalf of the state, it contends, the charge cannot be justified on the ground that it represents payment for a service effectively rendered to the importer, for the health inspection was not instituted in the interest of the individual but to safeguard the public interest and for the protection of human health.

11 The commission also maintains that the charge in question cannot escape the prohibition in articles 9 and 13 of the treaty on the ground that it forms part of a general system of internal taxation within the meaning of article 95 of the treaty. In the absence of identical or similar national products a charge on imported products may be regarded as an internal tax only if it forms part of ' ' a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products ' ' (judgment of 3 february 1981 in case 90-79, commission v France (1981) ecr 283, at paragraph 14 of the decision). In the present case the disputed charge is applicable exclusively to imports of groundnuts and groundnut products.

12 Per contra, the danish government denies that the charge in question is in fact a charge fixed by the state. On the contrary it represents payment of the cost of the laboratory analysis, which is determined by the laboratory itself on the basis of the cost making the analysis. Even if it must be regarded as a charge, it does not constitute a charge having an effect equivalent to a customs duty because it is not required by reason of the product ' s crossing a frontier but corresponds to an internal tax which forms part of a general system of taxation applied systematically to categories of products according to objective criteria irrespective of their origin.

13 It maintains that the charge is not discriminatory either in form or in substance because there is no identical or similar national product. The burden on imports represented by the disputed charge is minimal.

14 Moreover, groundnuts (and brazil nuts) constitute a specific group of products which has been systematically defined on the basis of an objective criterion, namely that they alone present a particularly grave risk.

15 The danish government is of the opinion that in the light of the judgments of the court, and in particular the aforementioned judgment of 3 february 1981, article 95 does not prohibit member states from subjecting imported products to an internal tax when there are no identical or similar national products or other products which require protection. In such a case, the duty is imposed ' ' in good faith ' ' because the chosen method of payment would have been the same had Denmark produced groundnuts.

16 The danish government maintains further that the system adopted as regards the products at issue reflects a general legislative approach in Denmark which has been in effect there since 1950 and which has been applied to a series of foodstuffs, whether imported or national, as well as to animal feed.

17 In principle, moreover, it is for the national authorities to decide as a matter of policy whether the costs of health inspections must be borne by the community or by consumers. The fact that health protection is a matter for the public authorities does not imply that the costs connected with inspections are necessarily to be met out of the public purse.

18 The court has consistently held that any pecuniary charge, whatever its designation or 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 effect equivalent to a customs duty within the meaning of articles 9, 12, 13 and 16 of the treaty, even if it is not imposed on behalf of the state.

19 The only exception is where the charge in question represents payment for a service rendered to the importer, of a sum in proportion to the service, or if it forms part of a general system of internal dues applied systematically in accordance with the same criteria to both national products and imported or exported products.

20 The danish government conceded in the course of the proceedings that the charge at issue was not in the nature of payment for a service rendered to the importer. It maintained, however, that it was a charge forming part of a general system of internal taxation.

21 In that regard it may be observed that there is a well-established line of authority to the effect that a charge on importation does not constitute internal taxation under article 95 unless it forms part of a general system applicable systematically to categories of products in accordance with objective criteria irrespective of the origin of the products.

22 As the danish government rightly emphasizes, the court has indeed recognized that a charge which is imposed on products imported from another member state, even when there is no identical or similar national product, does not, by that fact alone, constitute a charge having an effect equivalent to a customs duty and may constitute internal taxation within the meaning of article 95 of the treaty if it fulfils the above conditions.

23 However, examination of the facts relied on before the court by the danish government in support of its argument that article 95 applies does not permit the conclusion that the charge at issue forms part of a general system of internal taxation.

24 The danish government concedes that the group of products which is affected by the disputed charge and which is defined by the risk of the products ' being contaminated by aflatoxin comprises solely groundnuts, groundnut products and brazil nuts. Such a limited number of products cannot fall within the concept of ' ' whole classes of... Products ' ' (judgment of 22 march 1977 in case 78-76 steinike und weinlig v Germany (1977) ecr 595), a concept which implies a much larger number of products determined by general and objective criteria.

25 With regard to the danish government ' s argument that the general approach followed in the legislation applicable in Denmark is that the taxpayer is responsible for general health inspection costs whilst the costs of laboratory analyses necessitated by special health inspections for certain foodstuffs are borne by the undertakings concerned, it should be emphasized that a distinction between general inspection and so-called ' ' special ' ' inspections does not in itself constitute a sufficiently precise and, above all, objective criterion to form the basis for a general system of internal dues within the meaning of the decisions of the court of justice cited above. The danish government has not shown that the two types of inspection are objectively distinguishable, for example on the basis of their technical approach. Moreover, in a number of cases even general inspection requires laboratory analyses similar to those carried out in the context of special inspections.

26 With regard to the products covered by the orders based on article 41 of the law on foodstuffs, it appears from the file that they comprise on the one hand food products subject to inspection to determine whether certain nutrients have in fact been added and on the other products considered to be potentially harmful because of certain risks they present, namely groundnuts and brazil nuts. The difference regarding the nature, the character and the purpose of the inspections envisaged for each of those two groups prevent the fees levied on groundnuts and brazil nuts from being regarded as forming part of the same system as those levied for the checking of additives.

27 The danish government has thus failed to show that the charge in dispute meets the conditions for it to be regarded as part of a general system of internal taxation.

28 By levying a charge for health inspection on the importation of groundnuts and groundnut products therefore, the Kingdom of Denmark has failed to fulfil its obligations under articles 9 and 13 of the eec treaty.

Costs

29 Article 69 (2) of the rules of procedure provides that the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.

On those grounds

The court

Hereby declares:

1. By levying a charge for health inspection on the importation of groundnuts and groundnut products the Kingdom of Denmark has failed to fulfil its obligations under articles 9 and 13 of the eec treaty.

2. The defendant is ordered to pay the costs.