Report for the Hearing delivered in Case 229/87

I — Facts and procedure

1. Article 49 of Greek Law No 1089 of 12 November 1980 on the Chambers of Commerce, Industry and Trades provides inter alia for the creation of a ‘Union of the Greek Chambers of Commerce and Industry’. One of the functions of that Union is: The level of the charge levied by the Union for the services thereby rendered is set by the Minister for Trade. By Circular No EG/8324/2714 of 10 December 1980 the Minister for Trade decreed that it was the responsibility of the intermediate banks, when permission to import or pay for goods was granted, to operate exchange controls so as to- safeguard the rights of the Hellenic Republic regarding currency. That circular, which entered into force on 1 January 1981, requires inter alia the collection of the charge envisaged in Article 49 of Law No 1089 at a rate of 0.1% of the cif value shown on each import invoice, subject to a minimum of DR 250 and a maximum of DR 5000. In the case of permits to import or pay for goods on behalf of a legal entity governed by public law the charge is halved, and no charge is collected from the State. Lastly, the circular provides that the sums collected are to be sent to the Bank of Greece, which holds a special account the contents of which are allocated by ministerial decree.

‘on the order of the Minister for Trade, to collect information and supply it to the banks authorized to conduct foreign exchange transactions, so as to enable them to carry out effective checks on the operations covered by Article 1 (3) of Law No 936/1979 on amendments and additions to the provisions governing foreign trade... ’.

2. Article 29 of the Act of Accession of the Hellenic Republic to the European Communities provides that, over a transitional five-year period expiring on 1 January 1986, charges having equivalent effect to customs duties on imports are to be progressively abolished between the Community and Greece. Article 28 of the Act of Accession provides that any charge having equivalent effect to a customs duty on imports introduced as from 1 January 1979 in trade between the Community as constituted at that time and Greece shall be abolished on 1 January 1981.

3. The Commission was informed of the collection of the charge and, after following the requisite preliminary procedure, applied to the Court on 3 May 1985 for a declaration that, by levying through the commercial banks, from 1 January 1981, a charge for checking the prices of imported products originating in and coming from other Member States of the Community, the Hellenic Republic had failed to fulfil its obligations under Article 28 of the Act of Accession (Case 138/85). In reply to a question raised by the Court under Article 21 of the Statute of the Court, the Hellenic Republic supplied certain legislative texts dating back to 1947, showing that the disputed charge had been collected long before 1 January 1979. In those circumstances, the Commission took the view that the legal basis for its action might be insufficient, and it withdrew its application whilst announcing its intention to initiate a new procedure against the Hellenic Republic. Case 138/85 was removed from the Register of the Court by order of 3 October 1986.

4. On 8 October 1986 the Commission sent the Hellenic Republic a preliminary letter calling upon the Hellenic Republic to submit its observations pursuant to Article 169 of the Treaty. In that letter the Commission asserts that the infringement is still in evidence and that it falls within the scope of Article 29 of the Act of Accession, read in conjunction with Article 13 of the Treaty. The Commission further maintains in that letter that it is ‘unnecessary to repeat its arguments as to the nature of that charge, which are contained in its written submissions in Case 138/85, to which the Commission refers in their entirety’. The Commission concludes by calling upon the Greek Government to abolish the charge in question and to submit its observations within one month. In its letter of reply of 1 September 1986 the Greek Government claimed that the preliminary letter raised a question of principle, that of how far the Commission could rely on arguments put forward in a case which had been removed from the Register of the Court. On 23 December 1986 the Commission sent the Greek Government a reasoned opinion under Article 169 of the Treaty, requesting it to adopt the measures required for compliance within one month. In the reasoned opinion the Commission reproduces verbatim several pages from its application in Case 138/85, its arguments being identical in the new procedure. The Greek Government replied on 2 June 1987, challenging the validity of the preliminary letter and maintaining that the charge was lawful. The application was lodged at the Court Registry on 29 July 1987. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The Commission claims that the Court should :

i) declare that by levying a charge for checking prices of goods imported from other Member States of the Community, the Hellenic Republic has failed to fulfil its obligations under Article 12 et seq. of the EEC Treaty and Article 29 of the Act of Accession of the Hellenic Republic to the European Communities;

ii) order the Hellenic Republic to pay the costs.

The Greek Government claims that the Court should, in the main:

i) dismiss the application as inadmissible;

ii) order the Commission to pay the costs,

and in the alternative:

i) dismiss the application;

ii) order the Commission to pay the costs.

III — Submissions and arguments of the parties

A — Admissibility

The Greek Government maintains that the application should be dismissed as inadmissible on the ground that the Commission failed to comply with the procedure laid down by Article 169 of the Treaty: it referred in its preliminary letter to observations submitted in a case which had been removed from the Register, thereby denying the Hellenic Republic the possibility of putting forward its observations in accordance with that article.

Β — Substance

The Commission maintains that the collection of the charge in dispute constitutes a charge having equivalent effect to an import duty, which is prohibited in intra-Community trade under Article 29 of the Act of Accession and Article 12 et seq. of the Treaty. It is a pecuniary charge, unilaterally imposed on goods by virtue of their crossing the frontier.

According to the Commission, the charge cannot be regarded as a form of internal taxation, since it is levied solely for checking of the prices of imported goods.

The Commission rejects the argument that the charge is collected as consideration for a service demonstrably performed by the Chambers of Commerce for their members, because import invoices are checked for reasons of public interest, unrelated to the safeguarding of the interests of importers. Furthermore, the manner in which it is collected is quite unconnected with the provision of a service by the Chambers of Commerce for one of their members.

Referring to the case-law of the Court regarding charges, including the judgment of 5 February 1976 (in Case 87/75 Bresciani ν Amministrazione italiana delle finanze [1976] ECR 129), the Commission notes that an administrative activity pursued in the general interest, or in the interests of the national economy, cannot be regarded as a service rendered to the importer justifying the collection of a charge. The charge therefore constitutes a charge having equivalent effect to a customs duty, which should have been progressively reduced and abolished altogether on 1 January 1986, pursuant to Article 29 of the Act of Accession.

The Greek Government's main contention is that the amounts collected by the Union of the Greek Chambers of Commerce and Industry are charged solely and exclusively in respect of a service performed by the Union, and in conjunction with that service. It adds that the amounts collected are shared out amongst all the members of the Union as aid in compensation for the staff of the Chambers of Commerce, who provide those services as their principal or subsidiary activity and who form a body of staff to assist the exchange control commission. The method applied thus serves to collect a direct charge from all the members of the Union, which is then shared out as aid among all the members, in accordance with their work-load which is attributable to the economic activities which they pursue.

In the alternative, the Greek Government, citing by way of illustration the charges levied on certain imports, argues that the protective effect of those fees is negligible.

O. Due

Judge-Rapporteur

1 Language of the Case: Greek.