JUDGMENT OF 17. 5. 1983 — CASE 132/82 COMMISSION v BELGIUM

In Case 132/82

THE COURT composed of: J. Mertens de Wilmars, President, P. Pescatore and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, O. Due, K. Bahlmann and Y. Galmot, Judges, Advocate General : G. F. Mancini Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows:

I — Facts and procedure

Customs formalities for goods which originate in a Member State or which are in free circulation and which are imported into Belgium are completed either at the frontier or within the country.

In the first case, no financial charge is payable; in the second, when the goods are presented for customs clearance at the special store of a public warehouse, a fee, which is fixed and levied by the municipal authorities, is payable in consideration of the use by the importers of the premises which are made available to them.

Pursuant to Article 25 of the Law of 20 February 1978, on customs warehouses and temporary warehouses and temporary storage (Moniteur Belge [Belgian Official Gazette] of 22 March 1978), the only part played by the State is to fix the maximum rate of storage charges and to lay down rules for the method of the collection thereof.

The Royal Decree of 29 January 1979 on customs warehouses and temporary storage (Moniteur Belge of 7 March 1979) provides that storage charges may not exceed 5.50 francs per package or per 100 kg gross weight of goods unloaded in the store, 3.50 francs per package or per 100 kg gross weight of goods unloaded outside the store (loading bay or yard) and 13 francs per 1000 kg gross weight when, with the authorization of the customs authorities, the goods are not unloaded, subject to a maximum of 130 francs per truck, lorry or trailer.

The Commission took the view that such storage charges constituted charges having an effect equivalent to customs duties. Therefore, by letter of 2 August 1978, it initiated against Belgium the procedure provided for in Article 169 of the Treaty. In that letter, the Commission stated that according to the established case-law of the Court, in particular the judgments of 1 July 1969, (Case 24/68 Commission v Italian Republic [1969] ECR 193, and Joined Cases 2 and 3/69, Sociaal Fonds voor de Diamantarbeiders [1969] ECR 211), the disputed charges could not be regarded as the consideration for services, actually and individually rendered, from which importers might be said to obtain a specific advantage. The Commission requested the Belgian Government to provide it with its observations within a period of two months.

By letter dated 22 September 1978, the Permanent Representation of Belgium stated that the fee in question represented a payment made to the municipal authorities in return for the construction, the maintenance and the upkeep of special stores and the opportunity to store goods under the surveillance of the security guards.

The Commission considered that the letter of 22 September 1978 revealed that there was a misunderstanding and therefore it again contacted the competent Belgian authorities. Following that second approach, the Belgian Government explained its position in a supplementary reply to the Commission's letter giving formal notice.

In a letter of 21 November 1979, the Permanent Representation claimed that the use of a special store of a public warehouse was not compulsory. An importer who does not have a fixed customs post installed within his own undertaking may either contact one of the authorized mobile centres, which inspect, on the importer's own premises, goods which have been conveyed directly from the frontier, or dispatch the goods to a private store where a customs service operates. The use of special stores therefore represents a genuine and individual advantage for the importer, who either has insufficient facilities for customs purposes and for that reason cannot resort to the mobile centres or who does not wish to make use of private stores against the payment of charges fixed by the management of such stores.

On 12 March 1981, the Commission issued the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty. In that opinion, the Commission claimed that the storage charges were levied solely in respect of the fact of the arrival of the goods destined for the special store and not the actual and voluntary use of the facilities by the importer for a period exceeding the time strictly necessary for the completion of customs formalities. The levying of a charge at the time of customs clearance within the country cannot be justified by the fact that it is possible to complete customs formalities at the frontier free of charge. In both cases, the formalities are completed in order to enable the products in question to be marketed. Such formalities must not, under any circumstances, give rise to the payment of charges.

The reasoned opinion, which was communicated to the Belgian Government on 18 March 1981, requested the latter to comply with its recommendations within a period of two months.

In reply to the reasoned opinion, the Permanent Representation of Belgium stated, in a letter dated 15 May 1981, that the Belgian Government maintained the point of view expressed in its letter of 21 November 1979.

On 23 April 1982, the Commission brought this action which was registered at the Court on the same day.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court, by letter of 26 January 1983, requested the Belgian Government and the Commission to furnish written replies to the following questions before 1 March 1983:

Question put to the Belgian Government:

In what circumstances, in the light of the provisions of Articles 16 and 34 of the Royal Decree of 29 January 1979, is an importer exempted from paying storage charges?

Question put to the Commission:

What is the situation in that respect in the other Member States?

The replies of the Belgian Government and the Commission were lodged at the Court Registry on 21 February and 1 March 1983 respectively.

II — Conclusions of the parties

The Commission claims that the Court should:

1) Declare that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into Belgium and presented for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty establishing the European Economic Community;

2) Order the Kingdom of Belgium to pay the costs.

The Kingdom of Belgium contends that the Court should:

1) Declare the Commission's application unfounded;

2) Order the Commission to pay the costs.

III — Submissions and arguments of the parties

According to the Commission, it may be seen from the established case-law of the Court, in particular the judgment of 25 January 1977 (Case 46/76 Bau/mis [1977] ECR 5) that: “Any pecuniary charge, however small and 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 Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed for the benefit of the State.” That position would be different only if the charge in question were the consideration for a service actually rendered to the importer representing an amount proportionate to the said service or if it related to a general system of internal dues applied systematically in accordance with the same objective criteria to domestic products and imported or exported products alike (similarly, judgment of 14 December 1962, Joined Cases 2 and 3/62 Commission v Belgium and Luxembourg [1962] ECR 425; judgment of 8 November 1979, Case 251/78 Denkavit [1979] ECR 3369; judgment of 28 January 1981, Case 23/80 Kortmcmn [1981] ECR 251; judgment of 3 February 1981, Case 90/79 Commission w France [1981] ECR 283).

In the Commission's view, the storage charges levied by the Belgian authorities do not constitute either internal taxation or the consideration for a service rendered.

Within the terms of Article 30 of the Royal Decree of 29 January 1979 on customs warehouses and temporary storage, “storage charges are payable on goods arriving at the store whether they are unloaded or not”. According to the Commission, that provision clearly establishes that it is not the actual use of the facilities of the store which serves to justify the payment of the fee, but the sole fact of crossing the frontier or, more precisely, the fact of presenting imported goods for the completion of customs formalities at the special store.

The Commission considers that, even if, as the Belgian Government maintains, the use of the special store is optional, that fact does not authorize the Belgian State to levy storage charges. The Commission notes that, according to the above-mentioned case-law, the fact that the disputed charges are levied by the municipal authorities is irrelevant to their classification in respect of the provisions of the Treaty.

The Commission considers that a service might possibly be rendered if the charge were imposed only in cases in which the goods remained in the special store for longer than the minimum period necessary for the completion of customs formalities. However, Article 34 of the Royal Decree provides that the importer may be required to pay the storage charges even if he wishes to dispose of the goods immediately on the completion of customs formalities and not to store the goods in the store and has therefore obtained an exemption from storage, in accordance with Article 16 of the same Decree.

According to the Commission which cites the judgment of 16 June 1966, Joined Cases 52 and 55/65 Federal Republic of Germany v Commission [1966] ECR 159, the fact of facilitating the completion of customs formalities cannot be regarded as amounting to a service rendered to the importer which justifies payment, inasmuch as such formalities are imposed by the State in its own interest and provide no real advantage to the importer.

In the Commission's yiew to “penalize” the importer who makes use of such procedures by requiring him to pay storage charges is contrary to the objectives of the Community, according to which customs clearance formalities should be completed near the places of use or consumption. Such objectives have been given specific expression in Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal 1977, L 38, p. 1).

The Belgian Government states that the fees charged for use of the special store cannot be regarded as charges having an effect equivalent to customs duties inasmuch as, in the first place, they are not imposed by reason of the fact that the goods have crossed the frontier and, secondly, they represent payment for a service actually rendered to the importers.

The Belgian Government states that the use of the special stores is optional. Customs formalities may be completed within the territory, either on the premises of approximately 600 undertakings which under certain conditions have been recognized as authorized consignees within the framework of measures adopted for the simplification of the system of Community transit, or on the premises of major undertakings where a fixed customs post has been established, or finally in the stores or temporary storage depots of private undertakings situated in the ports or airports and in certain important centres.

The Belgian Government states that it is only when the customs formalities are completed on the importer's own premises, when the importer has been recognized as an authorized consignee, that no storage charge is levied. However, it should be emphasized that, even in that case, the undertaking will bear certain costs relating to the installation of the appropriate facilities. When, on the other hand, the importer conveys the imported goods to a private undertaking where there is a customs service, the undertaking will require payment for the use of its facilities.

In the opinion of the Belgian Government, for the same reasons, the service provided by the municipal authorities justifies the payment of storage charges in consideration of the costs involved in the upkeep of the stores.

The Belgian Government considers that in law the fact which gives rise to the disputed charge is not the crossing of the frontier but the use of an infrastructure which is provided and financed by a third party, the municipality.

The Belgian Government, which refers to the opinion delivered by Mr Advocate General Roemer in Joined Cases 52 and 55/65 Federal Republic of Germany v Commission [1966] ECR 159, at p. 173, considers that the payment of storage charges is justified as regards the provisions of the Treaty, inasmuch as the reason for and the objectives of the imposition of the fee do not relate to any form of protectionism but are solely intended to cover, to a reasonable extent, the expense of making commercial warehouses available. The Belgian Government emphasizes that the proceeds of the disputed charge, the maximum rate of which is fixed by the State, are lower than the costs and the maintenance of the special stores.

According to the Belgian Government, the fact that such special stores are made available to importers corresponds entirely to the concept of a service actually rendered as it was defined by the Court, in particular in the judgments of 1 July 1969 (Case 24/68 Commission v Italian Republic; in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders; and of 26 February 1975 (Case 63/74 W. Cadsky SpA [1975] ECR 281), all cited above). The opportunity of using a public warehouse enables importers who either do not have sufficient facilities to qualify as authorized consignees within the framework of measures adopted for the simplification of the system of Community transit or who do not wish to make use of the sites or temporary storage depots of other private undertakings, to complete the customs formalities near the place where the goods are used.

The Belgian Government considers unacceptable the Commission's view that the fee represents a charge having equivalent effect inasmuch as it does not depend on the length of time for which the stores are used and remains payable even if the goods are not unloaded. The Belgian Government states that fees are not calculated at a flat rate. The amount varies according to the weight and the place where the goods are unloaded. Indeed the fee may be compared to a rent or a parking charge.

The Belgian Government maintains that the goods generally stay in the store longer than is strictly necessary for the completion of customs formalities, if only, for example, as a result of delays caused by the simultaneous arrival of several importers. In those circumstances, clearly the importer who parks his lorry on the public highway is not required to pay a storage charge, but, in practice, that solution would not be any real help in view of the difficulties in parking and the security problems which might result from the lack of surveillance of the goods.

In the opinion of the Belgian Government, if the Court were to accept the Commission's argument, the municipal authorities would be obliged to alter the rules relating to the collection of storage charges so that the charges would be levied on the basis of the duration of parking before and after the completion of customs formalities, the waiting periods and the like. Such rules would not facilitate the free movement of goods inasmuch as they would entail additional administrative costs which would be borne by importers and, in certain cases, the fees charged would be higher than the present inclusive amounts.

IV — Summary of the written observations submitted in reply to the questions put by the Court

In reply to a question as to the circumstances in which, in the light of the provisions of Articles 16 and 34 of the Royal Decree of 29 January 1979, the importer is exempted from paying storage charges, the Belgian Government states that the Royal Decree makes no provision for the possibility of an exemption from storage charges.

Under Article 16 of the Royal Decree, an importer who has declared the goods for presentation at a public warehouse but who wishes to subject them to one of the other authorized procedures, may obtain an exemption from storage from the collector. According to the Belgian Government, storage charges are payable in the situation envisaged in Article 16.

Article 34 of the Royal Decree of 29 January 1979 distinguishes two possibilities. In accordance with that provision, the special regulations may stipulate that the storage charge laid down for goods destined for the special store is equally applicable :

1) To goods declared for presentation at a public warehouse and for which the collector grants an exemption from storage on their arrival;

2) To goods imported from abroad which are presented at the public warehouse for the purpose of their withdrawal from transit.

Paragraph (1) refers to the possibility provided for in Article 16 in which case storage charges are payable. They are also payable in the case referred to in Article 34 (2), in which the importer, equally, makes use of the special store of the public warehouse.

The Belgian Government states that all the possibilities envisaged by the provisions of the Royal Decree are expressly listed in the special regulations of the public warehouse of each municipality.

In reply to the question as to the situation in this respect in other Member States, the Commission declares that according to an investigation conducted in 1976 and 1977, storage charges for fictitious operations, such as are levied in Belgium, are not levied in other Member States. The Commission considers that there is no reason for supposing that the situation has changed in the meantime.

The Commission expresses its regret at being unable to inform the Court of the situation in Greece. It hopes to be able to do so during the oral procedure.

V — Oral procedure

The Commission of the European Communities, represented by M. Van Ackere, acting as Agent, and the Belgian Government, represented by R. Hoebaer, acting as Agent, and I. Claeys Bouuaert, Advocate at the Cour de Cassation de Belgique, Brussels, presented oral argument at the sitting on 8 March 1983.

The Advocate General delivered his opinion at the sitting on 20 April 1983.

Decision

1. By application lodged at the Court Registiy on 23 April 1982, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into Belgium, and presented for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty.

2. The Law of 20 February 1978 on customs warehouses and temporary storage (Moniteur Belge of 22 March 1978) defines customs warehouses as premises where goods may be deposited without payment of any entiy duties or taxes for the period during which they are stored. The Law lays down the principle that goods deposited in public warehouses are liable for payment of “storage charges”, the net income from which is paid to the municipalities which provide the premises. In accordance with Article 25 of the same Law, a Royal Decree of 29 January 1979 (Moniteur Belge of 7 March 1979) listed the public warehouses, fixed the maximum rate for storage charges and laid down rules for the collection thereof.

3. That legislation conforms in principle with the guidelines set out in Council Directive No 68/312/EEC of 30 July 1968 (Official Journal, English Special Edition 1968 (II), p. 416). That directive laid down the rules which must be adopted in national laws concerning the temporary storage of goods which importers do not wish to place immediately under a specific customs procedure. Such goods must be stored in public or private warehouses designated by the national authorities, in accordance with the requirements fixed by them, for a period of not more than 15 days, which may, in certain circumstances, be extended.

4. The development of Community transit, a concept defined and promoted by Council Regulation (EEC) No 222/77 of 13 September 1976 (Official Journal 1977, L 38, p. 1) which consolidated the provisions of Regulation (EEC) No 542/69 of the Council of 18 March 1969 and the amendments thereto, thus enabled importers to convey their goods from the frontier to public warehouses situated in the interior of the country without paying duties and taxes. In those warehouses, importers may have customs clearance operations carried out and they also have the opportunity to place the goods in temporary storage there, in particular when they do not wish to assign the goods immediately to a specific customs procedure.

5. This case concerns the levying of storage charges on goods deposited in such public warehouses situated in the interior of the country.

6. The Commission considers that the storage charges levied by the Belgian authorities represent charges having an effect equivalent to customs duties within the meaning of Articles 9 and 12 of the Treaty, inasmuch as the payment of the charges does not represent the consideration for a service rendered to the importer, but is connected solely with the completion of the customs formalities.

7. The Belgian Government considers that the charges in question cannot be described as charges having an effect equivalent to customs duties because the event giving rise to the disputed charges is in law neither the crossing of the frontier nor the completion of customs formalities, but the use by importers of the public warehouses made available to them by the municipal authorities. Such a use amounts to a service rendered to the importers and is capable of justifying the levying of charges.

8. It is appropriate to recall, in the first place, that according to the established case-law of the Court, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on the 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 Articles 9, 12, 13 and 16 of the Treaty, even if it is not levied by the State. The position is different only if the charge in question is the consideration for a service actually rendered to the importer and is of an amount commensurate with that service, when the charge concerned, as in this case, is payable exclusively on imported products.

9. The prohibition of charges having an effect equivalent to customs duties, laid down in provisions of the Treaty, is justified on the ground that pecuniary charges imposed by reason or on the occasion of the crossing of the frontier represent an obstacle to the free movement of goods.

10. It is in the light of those principles that the question whether the disputed storage charges may be classified as charges having an effect equivalent to customs duties must be assessed. It should therefore be noted, in the first place, that the placing of imported goods in temporary storage in the special stores of public warehouses clearly represents a service rendered to traders. A decision to deposit the goods there can indeed be taken only at the request of the trader concerned and then ensures their storage without payment of duties, until the trader has decided how they are to be dealt with. Moreover, the Commission does not dispute that the placing of goods in temporary storage may legally give rise to the payment of charges commensurate with the service thus rendered.

11. However, it appears both from the combined provisions of Articles 16, 30 and 34 of the Belgian Royal Decree of 29 January 1979 and from the arguments advanced before the Court, that the storage charges are payable equally when the goods are presented at the public warehouse solely for the completion of customs formalities, even though they have been exempted from storage and the importer has not requested that they be put in temporary storage.

12. Admittedly the Belgian Government claims that even in that case a service is rendered to the importer. It is always open to the latter to avoid payment of the disputed charges by choosing to have his goods cleared through customs at the frontier, where such a procedure is free. Moreover, by using a public warehouse, the importer is enabled to have the goods declared through customs near the places for which his products are bound and he is therefore relieved of the necessity of himself either having at his own disposal premises suitable for their clearance or having recourse to private premises, the use of which is more expensive than that of the public warehouses. It is therefore legitimate, in the Belgian Government's view, to impose a charge commensurate with that service.

13. That argument cannot however be accepted. Whilst it is true that the use of a public warehouse in the interior of the country offers certain advantages to importers it seems clear first of all that such advantages are linked solely with the completion of customs formalities which, whatever the place, is always compulsory. It should moreover be noted that such advantages result from the scheme of Community transit, introduced by Regulations Nos 542/69 and 222/77, not in the interests of individual traders, but as the fourth and sixth recitals in the preamble to Regulation No 222/77 clearly indicate, in order to increase the fluidity of the movement of goods and to facilitate transport within the Community. There can therefore be no question of levying any charges for customs clearance facilities accorded in the interests of the common market.

14. It follows from the foregoing, that when payment of storage charges is demanded solely in connection with the completion of customs formalities, it cannot be regarded as the consideration for a service actually rendered to the importer.

15. Consequently, it must be declared that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into Belgium, and presented merely for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty.

Costs

16. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. Since the Kingdom of Belgium has been unsuccessful, it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that, by levying storage charges on goods which originate in a Member State or are in free circulation, and which are imported into the Kingdom of Belgium, and presented merely for the completion of customs formalities at a special store, the Kingdom of Belgium has failed to fulfil its obligations under Articles 9 and 12 of the Treaty;

2 Orders the Kingdom of Belgium to pay the costs.