NV United Foods and PVBA Aug. Van den Abeele v Belgian State (132/80)

Contents

In Case 132/80REFERENCE to the Court of Justice under Article 177 of the EEC Treaty by the Rechtbank van Eerste Aanleg [Court of First Instance], Bruges, for a preliminary ruling in the proceedings pending before that court betweenNV United Foods, whose registered office is situated in Bredene,andPVBA Aug. Van den Abeele, whose registered office is situated in Bruges,vBelgian State, in the person of the Minister of Finance and the Minister for Public Health and Family Affairs,THE COURTcomposed of: J. Meitēns de Wilmars, President, P. Pescatore and Lord Mackenzie Stuart (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due, U. Everling and A. Chloros, Judges,Advocate General: F. CapotortiRegistrar: A. Van Houttegives the following

Judgment

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I —Facts and written procedure

The Belgian Law of 15 April 1965 on the inspection of, and trade in fish, poultry, rabbits and game amending the Law of 5 September 1952 on the inspection of, and trade in meat (Moniteur Belge of 22 May 1965) governs in particular the inspection of and trade in live, chilled, frozen, deep-frozen, dried, salted or smoked fish (Article 1).It authorizes the King, in the interests of hygiene and public health, to regulate and supervise the importation, export, processing, transportation of, and trade in fish (Article 3 (1) (1)), to require a health control and inspection to be carried out on fish, to lay down the conditions for health control and the rules for inspection (Article 4 (1) and (2)), to designate and to remove the veterinary surgeons responsible for carrying out the controls and inspections (Article 5 (1)), to determine the levies which importers or owners may be charged to cover the cost of health control, inspection and hygiene control of imports (Article 6).Fish which is declared unfit for human consumption upon inspection is to be seized, denatured and taken to an approved disposal centre (Article 8 (1)). Fish offered or exposed for sale, sold, retailed or disposed of without having undergone inspection is to be seized and confiscated; if it is declared fit for human consumption, it may be handed over to a social welfare institution (Article 8 (6)). Fish imported in breach of the rules adopted in implementation of this Law or declared unfit for human consumption in consequence of the public health inspection carried out on importation is to be refused entry. If it cannot be sent back it is either handed over to a social welfare institution or rendered unusable (Article 8 (7)).Different penalties are imposed in the event of infringements of this Law or of its implementing decrees (Articles 9 to 15).The Royal Decree of 30 April 1976, adopted in implementation of the Law of 15 April 1965, on the inspection of, and trade in fish (Moniteur Belge of 26 May 1976), as amended by the Royal Decree of 3 December 1976, prohibits, with the sole exception of fish caught by amateur fishermen which is not intended for commercial purposes, any importation, marketing or disposal of fish which has not been declared fit for human consumption or marked following the health control, inspection or hygiene control carried out in accordance with the provisions of the decree (Articles 1 and 2). The decree draws a distinction between fish from domestic fish-farms, fish caught in the sea and imported fish.(a) Under Anieles 3 and 4, fish from domestic fish-farms is subject to health inspection: the farms are inspected every month and whenever drainage takes place by an inspector who may carry out chemical, parasitological, microbiological or any other tests on the fish and on the water. If he declares the fish to be fit for human consumption, he issues a health certificate. Fish from fish-farms may be put on the market or transported for the purposes of human consumption only if accompanied by a label bearing the indications specified in the Decree of the Minister for Health and Family Affairs of 29 November 1976 laying down the standard form of the inspection mark to be affixed following health control, inspection or hygiene control (Moniteur Belge of 29 December 1976).(b) The decree provides for the inspection of fish caught in the sea. This takes place upon arrival at fish-markets; where, however, it proves impossible, in view of the circumstances, to carry it out there, the inspection takes place at the quayside where the fish is landed or in any other place approved by the inspector (Article 5). The inspection relates to the hygienic standard, freshness and purity of the fish; the inspector may, if he sees fit, carry out chemical, parasitological, microbiological or any other tests. Following inspection, the inspector affixes a mark to the containers or packages containing the fish; if the goods are intended for export and the country of destination so requires, the inspector also draws up a health certificate in the form prescribed by the Belgian Minister for Health or, where necessary, in the form required by the country of destination (Article 6).(c) Imported fish must be accompanied by a health certificate issued by the competent authority of the country of origin stating that the fish has undergone a veterinary health inspection and that it has been declared fit for human consumption on the day of dispatch. The form in which the health certificate is to be drawn up was laid down in the Decree of the Minister for Health of 29 November 1976 (Moniteur Belge of 29 December 1976). On importation, the containers or packages containing the fish must bear an inspection mark of the country of origin attesting that the fish has undergone public health control or inspection (Article 16). Imports of fish other than live fish must be packed in a specific manner (Article 17). The importation of fish may be authorized only by certain customs offices or sub-offices jointly designated by the Minister for Health and the Minister for Finance; they also designate the veterinary surgeons responsible for carrying out public health controls on imports and specify the days and times of importation. At least 24 hours prior to importation, the importer must notify in writing the Meat Trade Inspection Service for the area of the nature, quantity and origin of the consignment; he must also advise the day and time of importation and designate the customs office or suboffice through which it is to take place (Article 10). Public health inspection on importation takes place in the customs office, at the frontier or inland (Articles 12, 13 and 14). Public health inspection relates to the health certificate issued by the competent authority of the country of origin, the mode of transport, the state of preservation and the conformity of the import with the requirements of Belgian legislation on the inspection or health control of fish; the inspector may, moreover, if he sees fit, carry out tests (Article 15). If, as a result of the health control on importation, the fish is declared unfit for human consumption, it is refused entry or, where this is impossible, denatured and destroyed (Articles 18, 19 and 20).Article 21 of the Royal Decree of 30 April 1976, as amended by the Decree of 3 December 1976, provides for the imposition of inspection levies in respect of public health inspection of imports. These levies amount to BFR 15 per 100 kg or fraction thereof for whole, unprocessed fish and BFR 30 per 100 kg or fraction thereof for other fish. They are collected through the agency of the customs authorities.In the case of fish caught in the sea, an inspection levy is charged by the local authority or the body delegated by it, on whose territory the fish is landed, to cover the cost of inspection. The amount of this levy was fixed at BFR 0.15 per kg by the Royal Decree of 3 December which provides for inspection levies on landing for fish caught in the sea (Moniteur Belge of 29 December 1976).No levy is charged in respect of health controls on fish-farms or on fish from such farms.In accordance with the requirement contained in the above-mentioned national legislation and regulations to pay inspection levies on the importation of fish, NV United Foods, whose registered office is in Bredene, and PVBA Aug. Van den Abeele, whose registered office is in Bruges, paid the levy subject to the express reservation that they would reclaim it on the ground that, in their opinion, it was contrary to various provisions of the EEC Treaty.On 8 March 1978, the two companies referred to above instituted proceedings against the Belgian State in the Rechtbank van Eerste Aanleg, Bruges, for the recovery of the amounts which they alleged had been wrongfully charged as inspection levies on the importation of fish.The amounts at issue were BFR 171250 in the case of United Foods and BFR 450824 in the case of Van den Abeele, adjusted on 15 May 1979 to BFR 288132 and BFR 836645 respectively. In support of their claims, the plaintiffs asserted that Belgian legislation on inspection levies was incompatible in particular with Articles 30, 9, 12, 13 and 95 of the EEC Treaty.In its judgment of 5 March 1980, the First Chamber of the national court stayed the proceedings pursuant to Article 177 of the EEC Treaty until the Court of Justice had given a preliminary ruling on the following questions:1. Must Article 30 et seq. of the EEC Treaty be interpreted as meaning that public health inspection, carried out at the frontier when fish is imported, and being compulsory and systematic in nature, must be regarded as a measure having an effect equivalent to quantitative restrictions if:— the importer must advise the competent administrative authority in writing at least 24 hours before importation of the nature, quantity and origin of a consignment and must advise the day and hour of the importation as well as the customs office or sub-office through which importation is to take place;— the importation of fish is permissible only through the customs offices and sub-offices notified by the authorities and on the day and at the times fixed by the authorities;— the containers, packing and ice used must meet legal requirements;— the inspection marks made by the authorities must be placed on every package, however small;— consignments of imported fish must be provided with a health certificate issued by the competent authority of the country of origin showing that the fish has been subject to a veterinary health inspection and that on the day of dispatch it was declared fit for consumption, the form of health certificate being laid down by the authorities or the importing Member State?2. If the answer to the first question is in the affirmative, must Article 36 of the EEC Treaty be interpreted as meaning that public health inspection of the type described in the first question is justified on the ground of the protection of public health which such inspection is intended to achieve?3. Are the inspection levies which are imposed on importers in order to cover the costs of the inspection described in the first question to be regarded as charges having an effect equivalent to customs duties within the meaning of Article 9 et seq. of the EEC Treaty or as internal taxation within the meaning of Article 95 of the EEC Treaty, if:— the inspection of fish-farms is not subject to any levy at all in the Member State concerned;— the inspection of fish caught in the sea takes place, after it has been landed, in fish-markets and concerns the hygienic standard, freshness and purity of the fish whilst the health inspection on importation takes place at customs offices and concerns the health certificate, the means by which the fish has been transported, the state of preservation as well as conformity with the requirements of the regulations of the importing Member State on the inspection and importation of fish;— the inspection levies must be paid on importation at the time when the imports cross the frontier;— inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?4. In the event of the foregoing questions being answered in the sense that inspection levies as therein described are not to be regarded as charges having an effect equivalent to customs duties but may be regarded as being part of a system of international taxation within the meaning of Article 95 of the EEC Treaty, is there any discrimination prohibited by Article 95 if inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?The judgment of the Rechtbank van Eerste Aanleg, Bruges, was lodged at the Court Registry on 2 June 1980.In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 18 August 1980 by NV United Foods and PVBA Aug. van den Abeele, the plaintiffs in the main action, represented by André Faurès and Bernard van de Walle de Ghelcke of the Brussels Bar; on 20 August by the Commission of the European Communities, represented by its Legal Advisers, Manfred Beschel, a member of the Legal Department, and Robert Caspar Fischer, Legal Adviser, acting as Agents; on 26 August by the Government of the French Republic and on 3 September 1980 by the Government of the Kingdom of Denmark, represented by Per Lachmann, Adviser at the Ministry of Foreign Affairs.On 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 —Written observations submitted to the Court

United Foods and Van den Abeele, plaintiffs in the main action, outline the situation of the Belgian fishery products market and emphasize that Belgium attaches great importance to intra-Community trade; they recall that there is no uniform Community system or any harmonization of national legal provisions on the inspection of fish. Belgium is the only Member State in the Community to charge inspection levies on landed fish and imported fish. Moreover, levies similar to those at issue in the main action, charged on imports of meat, have been abolished in Belgium by the Royal Decree of 21 June 1979 (Moniteur Belge of 23 June 1979) as a result of proceedings initiated by the Commission on the basis of Article 169 of the EEC Treaty.The questions referred to the Court by the Rechtbank van Eerste Aanleg, Bruges, call for the following observations and answers:

First question (Article 30 of the EEC Treaty)

(a) A system of inspection at the frontier, such as that forming the subject-matter of this question, undoubtedly constitutes a measure having an effect equivalent to a quantitative restriction on imports prohibited under Article 30 of the EEC Treaty.According to the case-law of the Court, Article 30 applies to all measures capable of hindering, directly or indirectly, actually or potentially, trade between Member States. This is the case where in a Member State compulsory inspections are carried out at the frontier which are capable of rendering the importation of goods more difficult or more expensive, particularly by reason of the time required to perform the inspection operations and of the additional costs of transportation which the importer may have to bear as a result. Clearly, the system of inspection measures at issue in the main action and the controls which it involves constitute a barrier and result in delay and additional costs for importers.The contested health inspections are compulsory and systematic; inevitably, inspection entails expense and gives rise to delay.According to the Court, the concept of measures having an effect equivalent to quantitative restrictions also extends to the requirement to produce a certificate attesting that imported products have undergone specific treatment in the exporting country. The requirement that consignments of imported fish must be accompanied by a health certificate, drawn up in the form prescribed by the importing Member State, issued by the competent authority of the country of origin and stating that the fish has undergone a veterinary health inspection and has been declared fit for human consumption on the day of dispatch already constitutes per se, according to the case-law of the Court, a measure having an effect equivalent to a restriction on imports.Delay, loss of time, damage suffered by imported goods and, in particular, the financial charges and formalities which importation entails are factors which the Court has in numerous judgments regarded as barriers to intra-Community trade.(b) The absence, at Community level, of a uniform system of health inspection in respect of fishery products does not have the effect of enabling a system such as that at issue in the main action to escape the prohibition contained in Article 30 of the Treaty. In the absence of a Community system, it is admittedly for the Member States to regulate, each on its own territory, the manufacture, marketing and consumption of a product, on condition however that the national legislation adopted is not capable of hindering, either directly or indirectly, actually or potentially, intra-Community trade.National rules applying to domestic and imported products without distinction can escape the application of the conditions laid down in Article 30 only if they can be justified as necessary in order to satisfy imperative requirements relating to public health, fair trading or consumer protection. In this connexion, account should be taken of the fact that what is at issue in the main action is the carrying out of health inspection of imported fish which has already undergone such inspection in the exporting Member State.(c) The concept of measures having an effect equivalent to quantitative restrictions therefore includes national health inspection measures which display the characteristics described in the first question; such measures are prohibited under Article 30 of the EEC Treaty unless they come within the exceptions stated in Article 36.

The second question (Article 36 of the EEC Treaty)

(a) According to the established case-law of the Court, Article 36 should be given a restrictive interpretation since it constitutes a fundamental exception to the principle that barriers to the free movement of goods must be removed.The conditions governing its application have also been laid down by the Court: its aim is not to reserve certain areas, such as the pulbic health sector, to the exclusive competence of the Member States; the measures based on Article 36 must, in each case, be appraised by reference to the criteria of fairness and proportionality in order to establish whether they are and continue to be justified; certain rules or practices which have or are capable of having a restrictive effect on the importation of certain goods are compatible with the Treaty only in so far as they are necessary in order to provide effective protection óf the health and life of humans; a national rule or practice does not come within the exception to Article 36 where the health and life of humans may be protected equally effectively by measures that are less restrictive of Community trade; Article 36 cannot, except in certain cases, be relied upon to justify rules or practices, even if they serve a purpose, whose restrictive elements are in substance aimed at reducing the administrative work-load or public expenditure; national authorities relying on Article 36 must always show that the measures which they impose satisfy these criteria.(b) In the absence of a harmonized Community system, national measures should be examined on the basis of the conditions for the application of Article 36, as laid down by the Court.In this connexion, it should be borne in mind that a system of health inspections at the frontier, such as that at issue in the main action, can find no justification on the ground of effectively achieving the public health objectives which it is aimed at: it is not based on a presumption that imported goods are in conformity with the information contained in the health certificate issued by the exporting country but involves a systematic double-check organized in a way that provides for a second inspection in accordance with Belgian rules. This second systematic inspection cannot be justified in a system where, despite the differences between national rules, straightforward co-operation between the national authorities would provide substantial guarantees concerning the inspections carried out in the exporting country. Sporadic controls which need not necessarily be carried out at the frontier would be capable of allaying the anxieties of the importing Member State.It is not just that the contested rules create excessive barriers; for it is also questionable whether the system is effective. Detailed and systematic controls are, in view of their complexity, difficult to carry out in practice, give rise to delay and entail unjustified losses.(c) The system of health inspection described in the first question of the national court cannot come within the exception to the free movement of goods contained in Article 36 of the EEC Treaty since it fails to protect public health effectively and since the objectives of public health protection can be achieved equally effectively by measures which are less of a hindrance to intra-Community trade.

The third question (Articles % 12 and 13 and Article 95 of the EEC Treaty)

(a) According to the case-law of the Court any pecuniary charge, other than a customs duty properly so-called, imposed, on the occasion or by reason of the crossing of a frontier, on goods circulating within the Community and having the same restrictive effect on the free movement of goods as a customs duty, constitutes a charge having an effect equivalent to a customs duty in so far as it is not authorized under specific provisions of the Treaty.(b) On several occasions, the Court has ruled that pecuniary charges levied on goods as a result of health inspections carried out when goods cross a frontier are to be regarded as charges having an effect equivalent to customs duties. The fact that health inspections on importation may be permitted under Article 36 of the Treaty does not imply that the levying of pecuniary charges for these inspections is authorized: the pecuniary charges are not in themselves necessary for the exercise of the power provided for in Article 36 and are capable of constituting an additional obstacle to intra-Community trade. Even on the assumption that health inspections on the importation of fish are authorized under the exception provided for by Article 36, the collection of inspection levies on importation is therefore in any event prohibited.This rule may be derogated from only in cases where Article 95 of the EEC Treaty applies or where the charges are paid by way of consideration for a service genuinely rendered to the importer (or the exporter) and the amount of the charge is proportionate to the service. According to some judgments, inspections at the frontier which are intended, in furtherance of the public interest, to protect public health are not to be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge. With regard to the system at issue in the main action, it is impossible to maintain that health inspections carried out at the frontier constitute a service rendered to the importer: their purpose is, even in the opinion of the Belgian State, to protect public health whilst the benefits which importers gain from such inspections are uncertain, unquantifiable, indeterminate and indirect.In any event, the inspection levies are not proportionate to the costs of the operations carried out: the importer is obliged to pay levies calculated at a fixed rate, irrespective of whether the inspector has actually inspected the consignment; the control is the same for a large as for a small consignment, for processed as well as for unprocessed fish; the levy is never proportionate to the costs which increase according to the tonnage.(c) The contested inspection levies are charges having an effect equivalent to customs duties and not internal taxation within the meaning of Article 95 of the EEC Treaty.According to the case-law of the Court, the concept of charges having an effect equivalent to customs duties covers pecuniary charges imposed, for reasons of hygiene control, on products when they cross the frontier and determined in accordance with particular criteria that are not comparable to the criteria used in fixing the pecuniary charges borne by similar domestic products; moreover, the fact that, as a result of the imposition of other charges, domestic production bears a similar charge matters little if these charges and the levy in question are not collected in accordance with identical criteria or at a similar stage or production.According to the Court, the charges imposed by various public authorities in respect of hygiene controls carried out within the Member States on domestic products as well as on imported products constitute internal taxation which comes within the scope of the prohibition of discrimination contained in Article 95. Furthermore, in order for a charge to be classified as an internal taxation, the chargeable event giving rise to tax must be identical in the case of domestic and imported products.It follows from these principles that the contested inspection levies cannot be regarded as forming part of a system of internal taxation since they are applied in a systematic and identical manner to domestic goods and to imported goods.The taxation is not carried out within a Member State: health inspections on importation must be carried out and the concomitant inspection levies paid on the occasion and by reason of the crossing of a frontier in the customs office and sub-offices designated by the Minister of Health; if the inspection levies are not paid, consignments of fishery products cannot be imported.No charges are levied on certain domestic products: health controls on fish farms do not attract any levies or charges, whereas fish from fish-farms in other Member States attract an inspection levy on importation.Inspection operations on landing differ appreciably both in purpose and in method from inspections carried out at the frontier. The inspection of fish caught in the sea relates to the hygienic standard, freshness and purity of the fish; however, health inspections on importation relate to the health certificate, the mode of transport, the state of preservation and the conformity of the imports with the requirements of Belgian legislation on the inspection and health controls of fish.The products in question are not at the same stage of production. Landed fish, which is a domestic product, is inspected on landing before being sold in fish-markets; fish imported from another Member State is sold there and then reexported, frequently after being packed for dispatch. Imported fish undergoes, naturally at an earlier production and marketing stage, a health inspection in the exporting Member State.The criteria for calculating the concomitant levies are different and the levies themselves are collected by different authorities.Imported products attract additional inspection fees following importation; health inspection operations on importation are, in numerous instances, performed for practical reasons on the undertaking's premises at the importer's expense after the latter has already had to pay the inspection levy; in such cases, the frontier is notionally transferred to the premises of the undertaking.Thus the various charges are not levied in accordance with the same criteria or applied at corresponding stages of production.(d) The answer which might be given to the third question is that inspection levies on importation, of the same kind as those described in the question, constitute charges prohibited on the ground that they have an effect equivalent to customs duties within the meaning of Articles 9, 12, 13 and 16 of the EEC Treaty.

Fourth question (Article 95 of the EEC Treaty)

(a) In the extremely unlikely event of the Court's taking the view that the contested inspection levies are to be regarded as internal taxation, the fourth question should be answered in the affirmative.(b) Article 95 authorizes the levying of internal taxation on products from other Member States, on condition that domestic products are taxed in an absolutely identical manner not only as regards the rate at which it is imposed directly or indirectly on domestic and imported products but also as regards the basis of assessment and the rules for collection; once any disparities in this respect occur which may lead to a higher taxation of imported products at the same production or marketing stage there is a breach of the prohibition of discrimination contained in Article 95.(c) In the present case, there are indeed disparities in the basis of assessment, the rates of charge and the rules for collection.The basis of assessment for inspection levies differs from that for health control levies on landing: the distinction drawn in the first case between whole unprocessed fish and other fish is not applied to landed fish.The rate of charge is also different, to the detriment of imported fish: the health inspection levy on landing is BFR 0.15 per kg while the inspection levy for health inspection on importation is BFR 15 per 100 kg in the case of whole and processed fish and BFR 30 per 100 kg in the case of other fish.Inspection levies on landing are collected by the local authorities at the expense of the purchaser, while those on importation are collected by the customs authorities when the goods cross the frontier, their importation being subject to such payment.(d) Therefore the answer to the fourth question should be, in the alternative, that the prohibition of discrimination contained in Article 95 of the EEC Treaty applies to charges of the same kind as those at issue in the main action since they differ according to the basis of assessment, the rate of charge and the rules for collection.The Government of the Kingdom of Denmark has submitted essentially the following observations :

The first two questions (Articles 30 and 36 of the EEC Treaty)

(a) The case-law of the Court shows that the prohibition of quantitative restrictions or measures having an equivalent effect, contained in Article 30 of the Treaty, also covers systematic health inspections carried out at intra-Community frontiers and that national legislation relating to health inspection on the importation of fish is contrary to Community law unless it comes within the exceptions contained in Article 36.(b) Recourse to Article 36 ceases to be justified once Community directives have been adopted, pursuant to Article 100 of the EEC Treaty, which provide for the harmonization of the measures required to ensure the protection of health of humans and animals; Council Regulation No 103/76 of 19 January 1976 laying down common marketing standards for certain fresh or chilled fish (Official Journal, L 20, p. 29) is not however a measure of Community law which precludes recourse to Article 36.(c) The Member States are entitled to adopt and to apply rules relating to health inspections of fish; such rules constitute a reasonable component of a policy for the protection of health and life of humans. The national authorities should be empowered, in relation to both domestic production and imported goods, to set up a cohesive and reliable system of control capable of functioning in practice without occasioning unreasonable administrative costs.However, the legislation at issue displays some objectionable features, in particular the 24-hour period for notification imposed on the importer, the obligation to effect importation at the times specified by the Belgian authorities, the rules (double-check) for veterinary inspection carried out on imports of frozen fish.

The third and fourth questions (Articles 9 and 95 of the EEC Treaty)

(a) It makes little difference whether the contested charge is examined in the light of Article 9 or of Article 95 of the EEC Treaty: the decisive factor, in the case of both provisions, is whether the charge is imposed uniformly on landed fish and fishery products and on imported fish and fishery products. In this connexion, it is necessary to take account of the basis of the charge and of the rate of charge.(b) The charges at issue in the main action are clearly not imposed on domestic products and on imported products in accordance with the same criteria: the rates of charge are different; the legal basis for the difference between the amount levied on landed fish and on imported fish is uncertain; frozen fish is treated in a special manner on importation.The higher rate charged on imported fish cannot be justified by the argument that the state of preparation of imported fish is more advanced: inspection charges on landed fish are fixed in the same manner irrespective of the level of preparation.The Government of the French Republic considers that Community law, as interpreted in the case-law of the Court, enables a clear answer to be given to each of the questions submitted by the national court.

Classification of the contested health inspections in the light of Article 30 and their lawfulness in relation to Article 36 of the EEC Treaty

(a) Having regard to the Court's case-law, it is virtually impossible for the system of health inspections of fish which is at issue in the main action to escape classification as a measure having an effect equivalent to a quantitative restriction on trade.(b) This health inspection system is clearly, in the absence of Community legislation harmonizing national rules relating to control, within the exception provided for in Article 36 of the Treaty: in the absence of harmonization, a control system of this kind is the sole method whereby the Member States can achieve the objective of public health protection which is expressly referred to in this provision. The measures forming part of the system are necessary in order to afford the Member State concerned and its nationals the guarantee that imported fish has been caught, prepared, handled and dispatched in accordance with the rules in force in the importing State, declared fit for human consumption on the day of dispatch and released for human consumption in the Member State concerned after checks have been carried out establishing that the product is wholesome following transportation to the frontier.The first two measures of an administrative nature which form part of the contested system are apparently essential to enable the authorities responsible for the controls to take steps to implement them in practice in order to minimize any delay in the customs clearance of the products under consideration. The obligation to notify the competent authorities 24 hours in advance cannot have any effect, even potentially, on intra-Community trade.(c) Health inspections carried out at the frontier and displaying the characteristics set forth in the judgment of the Rechtbank van Eerste Aanleg, Bruges, are, in the absence of Community rules, perfectly justified in relation to Article 36; however, according to the case-law of the Court, this provision cannot be interpreted as authorizing the collection of levies which are charged on imported goods subject to control and are intended to meet the cost of such controls.Whether this levy is lawful under Community law depends on its classification.

Classification of the health inspection levies in relation to Articles 9, 12, 13 and 95 of the EEC Treaty

(a) The case-law of the Court has dispelled virtually all doubt concerning the classification of health inspection levies under Community law: they constitute charges having an effect equivalent to customs duties since none or the exceptions laid down by the Court applies to them. In any event, if the levies are deemed to come within the scope of Article 95, they must be considered discriminatory in relation to products imported from the other Member States.(b) The levies at issue in the main action constitute, according to the case-law of the Court, pecuniary charges imposed unilaterally and collected on goods by reason of the crossing of a frontier; since health inspections are carried out in the public interest, these charges cannot be regarded as a service rendered to the importer.(c) The contested inspection levies do not constitute internal taxation within the meaning of Article 95 of the Treaty. In order to come within the scope of a general system of internal taxation and thereby escape classification as a charge having an effect equivalent to a customs duty, a pecuniary charge must be applied systematically to the imported products and domestic products concerned in accordance with identical criteria, that is to say, as the Court has held in the past, the charge must be imposed in accordance with the same basis of assessment, at the same production or marketing stage, in accordance with the same basis of calculation and in consequence of the same chargeable event.The health inspection levies collected by Belgium are not imposed systematically on landed fish and imported fish but are charged on the latter alone; the charge is not the same in the case of imported products and landed products; the criteria for determining the amount of the charge are not comparable; the chargeable event giving rise to the levy is in some cases the marketing of the goods in fish-markets, in others the crossing of a frontier; landed fish is classified under Tariff Heading 03.01 while processed fish could come under Tariff Heading 03.02; it is impossible to regard processed fish as being marketed at the same stage as unprocessed fish.(d) In the event of the Court's taking the view that the contested charges may be classified as internal taxation within the meaning of Article 95, the fact that the levy on imports of processed fish is twice as high as that imposed on imports of unprocessed fish and on fish landed in Belgian ports has a discriminatory effect which is incompatible with the Treaty and in particular with Article 95 thereof.

The answers to the questions referred to the Court

(a) A health inspection system displaying the characteristics set forth by the national court in the first question of its decision to refer the matter to the Court of Justice could scarcely escape classification as a measure having an effect equivalent to a quantitative restriction on intra-Community trade; however, the system is perfectly justified in relation to Article 36 of the EEC Treaty.(b) The health inspection levies collected under the legal provisions cited in the decision to refer the matter to the Court constitute a charge having an effect equivalent to a customs duty. Alternatively, even if they come within the scope of Article 95, these levies are still contrary to the Treaty since they are imposed in a manner which discriminates against imported products.The Commission observes that the Court is not required, in these proceedings, to rule on the compatibility with the EEC Treaty of the Belgian legislation at issue in the main action; moreover, a survey undertaken by the Commission's departments on the compatibility of the Belgian system of inspection for imported fish with Articles 30 to 36 of the Treaty has not yet been completed.

The questions relating to the interpretation of Articles 30 to 36 of the EEC Treaty

(a) The Court interprets the concept of measures having an effect equivalent to quantitative restrictions very widely and, according to its consistent case-law, health inspections carried out systematically at intra-Community frontiers come within such measures.(b) The specific requirement relating to the production of an inspection certificate drawn up in the exporting country constitutes an additional pre-condition for importation which is also capable of affecting, at least potentially, trade between Member States; the Court has also classified the obligation to produce such documents as a measure having an effect equivalent to a quantitative restriction.The fact that various Community directives harmonizing health inspections within the Community stipulate that such documents must be produced is immaterial: there is nothing in common, as far as their restrictive effect on intra-Community trade is concerned, between the requirement to produce a certificate imposed unilaterally by a Member State and to the production of which it attaches whatever legal effects it considers appropriate and the obligation imposed by a directive on all the Member States.The additional pre-conditions for importation referred to by the Court hearing the case in its first question must also, according to the previous decisions of the Court of Justice, be regarded as measures having an effect equivalent to quantitative restrictions in view of their nature and their content.(c) With regard to the concept of justified restrictions within the meaning of Article 36 of the Treaty, it is necessary to recall that, as a matter of principle, this provision constitutes an exception to the fundamental principle of the free movement of goods and must as such be given a restrictive interpretation. Restrictions on the free movement of goods based on Article 36 are, according to the case-law of the Court, in conformity with the Treaty only in so far as they are justified, that is to say necessary for the attainment of the objectives referred to in that provision and, in particular, for the protection of health and life of humans.With regard to the problems raised by the main action, it must be stated that verification of the declaration of the country of dispatch is necessary and therefore justified in order to obtain information on an inspection that has already been carried out and thus, indirectly, on the state of the goods themselves. Under the contested Belgian legislation, however, imported fish is subject to a double-check: a health inspection in the Member State of dispatch followed by a health control, which is compulsory and systematic in nature, on importation into Belgium. It is doubtful whether a physical double-check comes within the restrictions on the free movement of goods authorized under Article 36 of the Treaty. Ideally, a presumption of conformity of the imported goods with the requirements of national health legislation should be attributed to the documents drawn up by the country of dispatch.The double-check provided for under the legislation at issue in the main action does not therefore appear to be justified in relation to Article 36; it is however for the national court to take ä decision on the specific facts of the case on the basis of the principles of Community law.Control on the importation of fish into Belgium also extends to the mode of transport. The conditions laid down in this respect in Article 27 et seq. of the Royal Decree of 30 April 1976 do not seem excessive in themselves or, accordingly, unjustified within the meaning of Article 36. However, there is a considerable difference as regards the strictness of control between imported fish and fish from fish-farms within the country or caught in the sea and landed: control on importation possesses a compulsory and systematic feature which is common to every mode of transport, while control of internal transportation is left to the discretion of the competent inspector; control of the transportation of fish within a country is left to the discretion of the authorities, whereas the transportation of imports is systematically controlled at the frontier and subsequently the form of transportation used is subjected to a check which is left to the inspector's discretion. Such an accumulation of controls, or at any rate of potential controls, may appear to be unnecessary and therefore unjustified for the attainment of the objective of the protection of health and life of humans. Once again, it is for the national court to rule on this point, on the basis of the facts of the case.The other formalities mentioned in the decision to refer the matter to the Court are obviously designed to enable the adoption in due time of the measures required to carry out health inspections on the importation of the goods and to ensure the participation of an inspector for this purpose. These formalities are therefore closely linked in substance to the justification for the double-check on importation and would become purposeless if the actual control on importation were not considered necessary.The inspection of fish caught in the sea take place as a general rule on landing in fish-markets which normally possess adequate facilities for inspection. It seems legitimate to wonder whether the Belgian rules should not also provide, in connexion with the inspection of imported fish, for recourse to inspection facilities in fish-markets, at any rate where importation takes place through ports which possess such facilities. If it were possible to adopt such rules — which is a matter for the national court to assess — the preliminary formalities at present required would become superfluous and could no longer be justified under Article 36.

The questions relating to the interpretation of Article 9 et seq. and Article 95 of the EEC Treaty

(a) The levies collected for health inspections on the importation of goods are regarded by the Court, in well-established case-law, as charges having an effect equivalent to customs duties.Moreover, the controls on which the levies are based cannot, according to that same case-law, be regarded as a service actually rendered to the importer since the exercise of control is in the public interest. Further, they are not controls which must, under Community provisions, be carried out uniformly in the exporting Member State prior to dispatch but exclusively controls and levies on importation which are governed by national law.The collection of levies cannot be justified under Article 36 of the Treaty: admittedly, it may legitimize the health inspections themselves but it cannot authorize the collection of levies which are imposed on imported goods subject to such controls and are intended to meet the cost thereof.(b) The taxation referred to in Article 95 is not based on the crossing of a frontier which is only the technical criterion, from a fiscal point of view, for the collection without discrimination of charges on domestic and imported products. In order to come within the scope of a general system of internal taxation, a charge to which an imported product is liable must be the same for a domestic product and for an identical imported product, it must be imposed at the same marketing stage and the chargeable event giving rise to it must also be identical in the case of both products. In the light of these criteria, laid down by the case-law of the Court, levies such as those at issue in the main action can be classified only as charges having an effect equivalent to customs duties: no levy is collected on fish from fish-farms situated on national territory, whereas the full levy of BFR 15 or BFR 30 per 100 kg is collected on imported fish of the same variety; on importation, a distinction is drawn between whole unprocessed fish and processed fish which is not applied to fish from fish-farms or to fish caught in the sea and landed; inspection levies on imported fish can, in view of the difference in the rate of charge, be appreciably higher than those on fish caught in the sea and landed; controls on importation and internal controls vary in scope and in strictness; controls on importation relate to goods that have already been marketed and have already undergone inspection in the exporting country.

The answers to be given to the questions referred to the Court

The questions referred to the Court should be answered in the following manner:(a) The concept of “measures having an effect equivalent to quantitative restrictions”, within the meaning of Article 30 of the Treaty, also covers compulsory and systematic health control at intra-Community frontiers on the importation of fish, as described in the question.(b) A double-check of the type described in the question, based on the requirement that imported fish must be accompanied by a health certificate issued by the country of origin stating that it has undergone a health inspection and been declared fit for human consumption on dispatch and, secondly, that it must undergo a thorough and systematic examination of its hygienic standard, freshness and purity, exceeds the limits of what is authorized under Article 36 of the Treaty to the extent to which public health can be protected equally effectively by measures which are less of a hindrance to intra-Community trade.However, health control carried out at intra-Community frontiers on the importation of fish is compatible with Article 36 and may also include, in principle, a control of the mode of transport and packaging of the imported fish, provided that in practice and having regard to the control applicable to the transportation of fish within the country, it does not exceed the limits laid down in Article 36.The additional formalities referred to in the question, such as prior notification of importation with an indication of the day, time and place of importation are allowed under Article 36 only in so far as they are necessary, having regard also to the inspection facilities available for carrying out health inspection on importation where it is justified as regards it nature and its rules, or are intended to facilitate importation and health inspection on importation.(c) Inspection levies collected on the basis of national legislation adopted unilaterally by a Member State in order to meet the cost of health inspections carried out at intra-Community frontiers on the importation of fish must be regarded as charges having an effect equivalent to customs duties prohibited under the EEC Treaty. Inspection levies of this kind can escape this prohibition of charges having an effect equivalent to customs duties only if they are imposed on a domestic product and on a similar imported product at the same marketing stage and in accordance with the same criteria.

III —Oral procedure

NV United Foods and RVBA A. Van den Abeele, the plaintiffs in the main action, represented by Bernard Van de Walle de Ghelcke, assisted by Maurice Van den Abeele, an expert; the Government of the Kingdom of Belgium, represented by Jacques Putzeys, Advocate of the Brussels Bar; the Government of the French Republic, represented by Alexandre Carnelutti, Secretary at the Ministry of Foreign Affairs; and the Commission, represented by Robert Caspar Fischer, presented oral argument and answered questions put by the Court at the sitting on 27 January 1981.The Government of the Kingdom of Belgium maintained that the system of laws and regulations governing the marketing of fish in the Kingdom of Belgium is based exclusively on a purpose which is in the public interest, namely the protection of public health. In order to attain this objective, it has proved necessary to set up a compulsory system of health inspections applicable to all traders operating on national territory and carried out prior to the marketing of the fish involving the issue of a document drawn up by inspectors designated by the King and attesting that the inspected fish is fit for human consumption.That purpose enables the requirements of the free movement of goods to be overridden or indeed obviated.In the absence of Community rules in this field, fish exported by other Member States is, as a general rule, subject to a system that is not as strict as the one applied to fish released for consumption on the Belgian market; in some cases, it is not even required to undergo health inspection of any kind whatsoever in the country of origin. To allow such fish to enter Belgian territory without subjecting it to any health control on the part of the Belgian authorities would be tantamount to permitting a twofold reverse discrimination.Even where the control in the exporting country is carried out in the same manner as in Belgium, a second control on importation is justified by the duration and the conditions of transport. The certificate of health issued in the exporting country must be “brought up to date” by the importing country.Both the Court, in its case-law, and the Commission accept that compulsory health control prior to the release of fish for consumption may, in principle, be regarded as compatible with the Community's legal system.With regard to the detailed rules governing such control, it should be stated that they are identical in every respect, irrespective of the origin of the fish: in all cases, a control of the hygienic standard of the fish is carried out by veterinary experts who issue a document, which must accompany the goods, stating that the fish is still fit for human consumption; the second control is essential in situations where account must be taken of the conditions of transport over very long distances.With regard to the payment of a fee, it must be stated that the inspection of fish from fish-farms is not free of charge. The advantage of health inspections for importers is that it enables them to bring the fish on to the Belgian market and to sell it. The chargeable event giving rise to payment of inspection levies is in all cases the health control of fish intended for consumption, the levies are imposed not by reason of the crossing of a frontier or as a result of importation but in consequence of release for consumption on Belgian territory. The system of inspection levies does not lead to any discrimination. The questions referred to the Court should be answered in the following manner:(a) Systematic and compulsory health inspections carried out at the frontier on the importation of fish do not constitute a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty, provided that an equivalent health control also exists for fish caught in the sea on landing and for fish from fish farms in Belgium.(b) In any event, a double-check does not exceed what is permitted under Article 36 of the Treaty.(c) Inspection levies imposed in an identical manner on domestic fish as well as on landed fish and imported fish at the same processing and marketing stages cannot be regarded as measures having an effect equivalent to customs duties. The Advocate General delivered his opinion at the sitting on 25 February 1981.

Decision

1By judgment of 5 March 1980, received at the Court on 2 June 1980, the Rechtbank van Eerste Aanleg, Bruges, referred to the Court, pursuant to Article 177 of the EEC Treaty, four questions concerning the interpretation of Articles 9, 12, 13, 30, 36 and 95 of the EEC Treaty in order to enable it to assess the compatibility with Community law of Belgian legislation on health inspections on the importation of fish.

2The file on the case shows that in 1978 the plaintiffs in the main action applied to the national court for the recovery of amounts paid by them to the customs authorities as inspection levies for health controls on imported fish.

3In the judgment referring the matter to the Court, it is specified that health inspections of fish are governed in Belgium by the Law of 15 April 1965 on the inspection of and trade in fish, poultry, rabbits and game. Article 6 of that law provides that levies by the King may be imposed in accordance with the rules laid down by him and intended to meet the cost of health controls.

4The detailed rules governing health control were laid down by the Royal Decree of 30 April 1976 on the inspection of and trade in fish. Articles 3 and 4 of this decree, which make up Chapter II, relate to health controls on fish-farms. Articles 5 and 6, which make up Chapter III, govern the inspection of fish caught in the sea (referred to as “landed” fish) which is carried out under the responsibility of the competent local authorities on landing in fish-markets or in any other place where the fish is landed. Article 9 et seq., which make up Chapter V, contain special provisions applicable to health controls on imported fish for which the customs authorities are responsible.

5Article 21 of the above-mentioned decree, as subsequently amended by the Royal Decree of 3 December 1976, fixes inspection levies for health controls on importation at BFR 15 per 100 kg or fraction thereof in the case of whole unprocessed fish and at BFR 30 per 100 kg or fraction thereof in the case of other fish. It provides for the collection of these levies through the agency of the customs authorities. The inspection levy on “landed” fish was laid down by another Royal Decree of 3 December 1976 fixing inspection levies on landing for fish caught in the sea. Under Article 1, an inspection levy intended to meet the cost of inspection is collected by the local authority on whose territory the fish is landed. The inspection levy is fixed by Article 2 of the decree at a uniform rate of BFR 0.15 per kg of landed fish.

6In the national court the plaintiffs in the main action challenged the compatibility of these provisions with the rules of the EEC Treaty on two grounds.

7First, in their opinion, this control constitutes a measure having an effect equivalent to quantitative restrictions on imports, prohibited under Article 30 of the Treaty, and as such it cannot provide a basis for the charging of inspection levies. The health control provided for under the Belgian legislation at issue is inefficient, involves expense and causes delay and cannot, as such, be justified under Article 36 of the Treaty.

8Secondly, with regard to the inspection levy, the plaintiffs consider that, in accordance with a series of cases decided by the Court beginning with the judgment of 14 December 1972 (Case 29/72 Marimex [1972] ECR 1309), health dues, where charged, must be regarded as a charge having an effect equivalent to a customs duty, prohibited under Articles 9, 12 and 13 of the Treaty. Even if the inspection levy ought to be regarded as internal taxation within the meaning of Article 95 of the Treaty, its imposition would still be contrary to the rule against discrimination contained in that article.

9In order to decide these issues, the Rechtbank van Eerste Aanleg has requested the Court of Justice for a ruling on four questions whose wording is as follows:1. Must Articles 30 et seq of the EEC Treaty be interpreted as meaning that public health inspection, carried out at the frontier when fish is imported, and being compulsory and systematic in nature, must be regarded as a measure having an effect equivalent to quantitative restrictions if:— The importer must advise the competent administrative authority in writing at least 24 hours before importation of the nature, quantity and origin of a consignment and must advise the day and hour of the importation as well as the customs office or sub-office through which importation is to take place;— The importation of fish is permissible only through the customs offices and sub-offices notified by the authorities and on the day and at the time fixed by the authorities;— The containers, packing and ice used must meet legal requirements;— The inspection marks made by the authorities must be placed on every package, however small;— Consignments of imported fish must be provided with a health certificate issued by the competent authority of the country of origin showing that the fish has been subject to a veterinary health inspection and that on the day of dispatch it was declared fit for consumption, the form of health certificate being laid down by the authorities of the importing Member State.2. If the answer to the first question is in the affirmative, must Article 36 of the EEC Treaty be interpreted as meaning that public health inspection of the type described in the first question is justified on the ground of the protection of public health which such inspection is intended to achieve?3. Are the inspection levies which are imposed on importers in order to cover the costs of the inspection described in the first question to be regarded as charges having an effect equivalent to customs duties within the meaning of Article 9 et seq. of the EEC Treaty or as internal taxation within the meaning of Article 95 of the EEC Treaty, if:— The inspection of fish-farms is not subject to any levy at all in the Member State concerned;— The inspection of fish caught in the sea takes place, after it has been landed, in fish-markets and concerns the hygienic standard, freshness and the purity of the fish whilst the health inspection on importation takes place at customs offices and concerns the health certificate, the means by which the fish has been transported, the state of preservation as well as conformity with the requirements of the regulations of the importing Member State on inspection and the importation of fish;— The inspection levies must be paid on importation at the time when the imports cross the frontier;— Inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?4. In the event of the foregoing question's being answered in the sense that inspection levies as therein described are not to be regarded as charges having an effect equivalent to customs duties but may be regarded as being part of a system of internal taxation within the meaning of Article 95 of the EEC Treaty, is there any discrimination prohibited by Article 95 if inspection levies on landing are the same whatever the state of the fish whilst inspection levies on importation for other than whole unprocessed fish are twice as high as inspection levies on landing?

10In its observations to the Court, the Commission expresses doubts as to the compatibility with the Treaty of the health inspection system applied by Belgium but without, it seems, calling in question the principle on which that system is based. The Commission states that it is conducting a survey on this system of control but is as yet unable to give its final opinion thereon. It takes the view, however, that a double-check, as provided for under the provisions of the Belgian rules in question, is incompatible with the requirements of the Treaty, at least as regards fish imported from other Member States of the Community where there are already rules which provide, to a very large extent, reliable protection of a similar nature.

11As for the inspection levy, the Commission regards it as a charge having an effect equivalent to a customs duty, prohibited by the Treaty. A survey conducted throughout the Community shows that health inspection levies have been abolished in all the Member States with the exception of Belgium, and leaving aside one Member State for which no reliable information is as yet available to the Commission.

12According to the Danish Government, there is no doubt that in principle the Member States may lay down and apply rules relating to health controls on fish. It is for the national authorities to set up a cohesive and reliable system of control capable of functioning in practice without.; occasioning unreasonable administrative costs and to exercise for this purpose an appropriate discretion, on condition that they comply with the duty not to draw a distinction between the treatment accorded to their own production and to imported goods. Without challenging the principle on which the Belgian control system is based, the Danish Government draws attention to certain detailed rules forming part of this system whose effect, in its view, is to hinder intra-Community trade. Thus the requirement that 24 hours' notice must be given prior to any importation and the determination by the administrative authorities of the time of importation are capable of creating an impediment to the transfer of highly perishable goods which must be sold as quickly as possible. With regard to frozen fish, the Danish Government takes the view that the duplication of the control, carried out at the time of importation and, subsequently, on the importer's premises, may constitute an unnecessary hindrance to the importer.

13As far as the inspection levy is concerned, the Danish Government considers that it is immaterial in this case whether the Belgian charge is considered in the light of Article 9 or of Article 95 of the Treaty. Regardless of its classification, the system under which this levy is imposed involves discrimination inasmuch as domestic products and imported products are not treated in accordance with the same criteria. The Danish Government lays particular emphasis on the difference in the charge according to whether or not the imported fish is processed, whereas landed fish always bears the lowest charge, irrespective of its state of preparation. The Danish Government points out that no levy or charge is imposed for general or systematic health controls carried out in Denmark.

14The French Government states that in the absence of Community rules harmonizing the detailed national rules on health control, the latter undoubtedly come within the exception provided for in Article 36 of the Treaty. In its opinion, however, it is difficult to deny that some of the characteristics referred to in the first question by the national court are capable of rendering the importation of fish from other Member States of the EEC more expensive or more difficult. As to the requirement of control in the country of dispatch as well as in the country of destination, the French Government considers, unlike the Commission, that this double-check is justified by the perishable nature of the goods in question and by the risk of accidents occurring in the course of transportation. In its opinion, the fish must be “monitored” by means of health controls from the time of landing through every marketing stage until it is sold to the consumer. In this regard, controls which are merely sporadic appear to be insufficient.

15As to the inspection levy, the French Government regards it as a charge having an effect equivalent to a customs duty, prohibited by the Treaty. In the event, however, of the Court's deciding to classify it as internal taxation, within the meaning of Article 95, the French Government points out that the detailed rules for the charging of this levy lead to discrimination inasmuch as there is a difference between the treatment accorded to “landed” fish and to imported fish as a result in particular of the distinction drawn under Belgian rules between processed fish and unprocessed fish. In this connexion, the French Government draws attention to the confusion created by the fact that this distinction does not correspond to the categories of the Common Customs Tariff (Tariff Headings 03.01 and 03.02 respectively).

16In the oral procedure, the Belgian Government defended the compatibility of the contested control system with the Treaty. It recalls that under Article 36 of the Treaty, the provisions of Articles 30 to 34 inclusive do not preclude prohibition of imports justified on grounds of the protection of health of humans. The principle of health inspection prior to the release of fish for consumption cannot therefore be regarded as incompatible with the legal system of the Community. This control is carried out on the basis of the Law of 15 April 1965 and the Royal Decree of 30 April 1976 without discriminating in any way between imported fish, landed fish or fish from fish-farms. With regard to the objection raised by the plaintiffs in the main action to the existence of a double-check in the country of dispatch and in the country of destination, the Belgian Government agrees that the second control is essential in order to take account of the conditions of transportation of perishable goods over long distances.

17Às to the inspection levy, the Belgian Government states that it is intended to finance health controls carried out not as a result of the importation of the fish but rather on its release for consumption on Belgian territory, irrespective of the origin of the goods. As to the difference noted by various parties between the levy applied to processed fish and that applied to unprocessed fish, the Belgian Government draws attention to the fact that, according to past experience, the processing of fish, that is to say, cutting in pieces and removal of offal, entails a weight-loss of approximately 50 % which is the reason why the rate of charge on processed fish is twice as high as that on unprocessed fish. The Belgian Government does not dispute that “landed” fish attracts only the levy fixed for unprocessed fish. It explains this by the fact that the Belgian fishing fleet does not at present possess any ships suitably equipped for processing the fish at sea. It agrees that the rules in force should be amended once Belgian ships are suitably fitted out for this purpose. According to the Belgian Government therefore, there is no fiscal discrimination against imported fish.

18In conclusion, the Belgian Government considers that the application of health controls cannot be regarded as a measure having an effect equivalent to a quantitative restriction and that the inspection levy cannot be classified as a charge having an effect equivalent to a customs duty.

The compatibility of health inspections with Articles 30 and 36 of the Treaty (first and second questions)

19In its first two questions relating to the interpretation of Articles 30 and 36 of the Treaty, the national court asks in substance whether health inspection of imported fish is compatible, in principle, with the provisions of Community law and, if it is, whether the detailed rules governing control referred to in the first question are justified in relation to the requirements of Article 36.

20Under Article 30, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States “without prejudice to the following provisions”. This reservation in Article 30 concerns in particular Article 36 according to which the provisions of Articles 30 to 34 inclusive do not preclude prohibitions or restrictions on imports which are justified, inter alia, on grounds “of the protection of health and life of humans”. The second sentence of this article adds, however, that these prohibitions or restrictions “shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”.

21The Court has had occasion to emphasize, in a consistent line of decisions on this matter, that Article 30 has as its objective to remove, as between Member States, all barriers to the free movement of goods and, in particular, those which are specifically aimed at imported products or which apply to imported products and to domestic products under different conditions so as to render the marketing of imported products more difficult or expensive (judgments of 8 July 1975 in Case 4/75 REWE [1975] ECR 843; 20 May 1976 in Case 104/75 de Peijper[1976] ECR 613; 15 December 1976 in Case 35/76 Simmenthal [1976] ECR 1871; 12 July 1979 in Case 153/78 Commission v Federal Republic of Germany [1979] ECR 2555; 8 November 1979 in Case 251/78 Denkavit [1979] ECR 3369).

22It follows from Article 36, however, that controls on importation are compatible with the Treaty where they are justified by the need to protect public health, but on condition that the application of such controls does not constitute arbitrary discrimination or a disguised restriction on imported products. If a health control satisfies these requirements, Article 30 of the Treaty does not preclude such a measure.

23The questions referred to the Court must be answered in the light of these principles.

24In the first place, it should be borne ín mind in this regard that at present there are in the Community no common or harmonized rules relating to health controls on fish. The purpose of Council Regulation No 113/76 of 19 January 1976 (Official Journal, L 20, p. 29), which has been referred to during the proceedings, is to lay down common marketing rules in respect of certain fresh or chilled fish. This regulation is not concerned with the subject of health control.

25In these circumstances, it is for the Member States to provide for health control in this field and to apply it at the various marketing stages of the fish. Since restrictions on trade justified on grounds of the protection of public health are expressly allowed under Article 36 of the Treaty and the Community has not yet adopted common or harmonized rules in this matter, the application to fish imported from other Member States of the health control provided for under the national legislation of a Member State in respect of sea-fish landed in its ports cannot be regarded as constituting, as far as the principle on which it is based is concerned, a measure prohibited under the Treaty.

26It is not disputed that the measures at issue before the national court are in the nature of health controls and therefore in principle come within the exception provided for in Article 36. This, however, leaves open the question whether the various detailed rules referred to by the national court may constitute a disguised restriction on trade between Member States so as to deprive such control of its justification within the meaning of Article 36.

27This may indeed be the effect, either singly or in combination, of some of the detailed rules referred to in the first question. The various elements mentioned by the national court call for the following observations.

28The requirement that notice must be given in writing setting forth all the details prescribed under the legislation at issue at least 24 hours before importation appears to be incompatible with the speed of transactions and of transportation in this field, given the perishable nature of the goods in question. If, with regard to the determination by the customs authority of the premises where control is to be carried out as well as of days and times of their opening, it appears that the effect of these measures is to hinder imports they would be justified only on condition that they could be shown to satisfy objective requirements appertaining to the organization of the public health service. The same observation applies to the detailed technical rules mentioned by the national court if there proves to be no reasonable connexion between the requirements laid down by the authorities and the exercise of control.

29As to the requirement of control on the importation of goods which have already undergone equivalent control in the country of dispatch, it is necessary to recall that in its judgment of 8 November 1979 (Case 251/78 Denkavit [1979] ECR 3395), the Court held that a double-check in the exporting country and in the importing country may, depending on the circumstances, be more than Article 36 of the Treaty permits if health requirements may be satisfied as effectively by measures which are not so restrictive of intra-Community trade. Since in the present case, the fish has already undergone in the country of dispatch a health inspection carried out in accordance with the rules which the actual legislation of the country of destination prescribes, control on importation must in all cases be limited to measures designed to counter the risks arising from transportation or from any handling following the inspection carried out on dispatch.

30It is for the national court to examine, in the light of the above considerations, whether and to what extent the detailed measures of control applied by the Belgian authorities are capable of constituting an impermissible restriction on intra-Community trade.

31It is therefore necessary to answer, in reply to the first two questions, that in the absence of common or harmonized rules on health inspections of fish, the measures of control applied by the Member States may not be considered, in principle, as a restriction prohibited under the Treaty but that any detailed implementing rules which exceed the requirements of the controls and are capable as such of hindering or restricting intra-Community trade must, by virtue of Articles 30 and 36, be considered as measures having an effect equivalent to quantitative restrictions.

The compatibility with Community law of the inspection levy (third and fourth questions)

32In its third question, the national court, drawing attention to certain differences which exist under the control system at issue, requests the Court of Justice to specify the criteria according to which a levy such as an “inspection levy” may be classified either as a charge having an effect equivalent to a customs duty within the meaning of Articles 9, 12 and 13 of the Treaty or as internal taxation within the meaning of Article 95. These differences concern, first, fish from fish-farms, according to whether it has been imported or comes from fish-farms situated on national territory, and, secondly, fish caught in the sea, according to whether it has been “landed” or imported.

33According to a consistent line of decisions of the Court, beginning with its judgment of 14 December 1972 (Case 29/72 Marimex [1972] 1309), the classification under the Treaty of dues levied on the occasion of health inspections on importation depends on whether the dues in question are calculated in accordance with special criteria which are not comparable with the criteria employed in fixing any pecuniary charges imposed upon similar domestic products or whether they are pecuniary charges related to a general system of internal dues applied systematically, for the purposes of the control in question, to domestic products and imported products alike in accordance with the same criteria.

34In the case cited above as in several subsequent cases (judgments of 11 October 1973 in Case 39/73 REWE [1973] ECR 1039; 9 July 1975 in Case 21/75 Schroeder [1975] ECR 905; 5 February 1976 in Case 87/75 Bresciani [1975] ECR 129; 15 December 1976 in Case 35/76 Simmentbal [1976] ECR 1871; 31 May 1979 in Case 132/78 Denkavit Loire [1979] ECR 1923), the Court was led to classify various types of health dues as charges having an effect equivalent to customs duties in the absence of a sufficiently close connexion between the dues levied on the importation of products subject to health inspections and those levied on the occasion of controls on domestic products.

35The system on which the national court will have to give judgment must be examined according to the above criteria.

36It is impossible in the circumstances to overlook the fact that the imposition of an inspection levy forms part of a single system of rules derived from the same basic law. However, it is not sufficient to take this purely formal criterion into account for the purpose of assessing the compatibility of the contested system of dues with Community law. The assessment must be made having regard to the contents and to the effects of the rules at issue.

37In this regard, the national court observes in the first place that imported fish from fish-farms attracts an inspection levy, whereas the system of control on fish-farms situated on national territory does not involve any dues. Subject to the findings of fact to be made by the national court, it is necessary to state that, from the point of view of Community law, the inspection levy charged on imports of fish from fish farms constitutes a charge having an effect equivalent to a customs duty where the situation under the national legislation is such that fish from fish-farms situated on national territory escapes in law or in fact the imposition of any health charges.

38With regard to fish caught in the sea, the national court draws attention first to the fact that the inspection levy on “landed” fish is charged by the local authorities on landing, whereas in the case of imported fish it is charged through the agency of the national customs and excise authorities. It is not disputed that in both cases the proceeds are intended, directly or indirectly, to finance health inspections.

39A study of the situation shows that the difference in the detailed administrative rules for charging the levy may be ascribed to the fact that the customs authorities are not responsible for “landed” fish which is regarded as a domestic product from the moment it is caught, whereas controls on imported fish may be carried out, whether at the maritime frontier, the land frontier or at the ultimate destination within the country only through the agency of the customs authority and that therefore there is an objective ground underlying the difference between the systems. In any event, it has not been demonstrated that the division of administrative powers between the local authorities and the customs authority for the charging and allocation of the inspection levy influences the basis of assessment and the amount of the charge. These circumstances may therefore be disregarded for the purposes of examining the compatibility of the contested system with Community law since such compatibility must be assessed by reference to the impact of the contested levy on intra-Community trade.

40Other characteristics of the contested system, however, lead to the conclusion that the inspection levy in question constitutes in reality a charge having an effect equivalent to a customs duty.

41In this connexion, it is necessary to observe, first of all, that the scope and the rate of the inspection levy have been determined on the basis of different criteria, making any comparison between the two systems awkward. This difficulty is all the more appreciable in that the criteria on which the rules in question are based are not in keeping with the classification adopted by the Community in Regulation No 100/76 on the common organization of the market in fishery products (Official Journal, L 20, p. 1), the Common Customs Tariff and trade statistics.

42Furthermore, the rules for the determination of the inspection levy provide, in the case of “landed” fish, for the application of a uniform rate per kilogram, whereas the inspection levy on imported fish, fixed by reference to quantities weighing 100 kilograms and fractions thereof is applied on the basis of a distinction drawn between processed fish and other fish, the inspection levy on processed fish being twice as high as that on unprocessed fish. Presumably, although the file on the case contains no indications in this respect, imported fish is in most cases, in view of the requirements of transportation, classified in the same category as processed fish which attracts a higher inspection levy than unprocessed fish.

43The answer to the third question must therefore be that an inspection levy for health inspection of imported fish determined and imposed without objective justification, in accordance with particular criteria concerning the nature or condition of the goods, which are not comparable to the criteria used in fixing the pecuniary charges on domestic products of the same kind must be considered as a charge having an effect equivalent to a customs duty, prohibited by Articles 9, 12 and 13 of the EEC Treaty.

44In view of the answer to the third question, it is unnecessary to consider the fourth question.

Costs

45The costs incurred by the Government of the French Republic, the Government of the Kingdom of Denmark, the Government of the Kingdom of Belgium and the Commission of the European Communities 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, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURTin answer to the questions submitted to it by the Rechtbank van Eerste Aanleg, Bruges, by judgment of 5 March 1980 hereby rules:

1.In the absence of common or harmonized rules on health inspections of fish, the measures of control applied by the Member States may not be considered, in principle, as a restriction prohibited under the EEC Treaty. Nevertheless all detailed implementing rules which exceed the requirements of the controls and are capable as such of hindering or restricting intra-Community trade must, by virtue of Articles 30 and 36 of the Treaty, be considered as measures having an effect equivalent to quantitative restrictions.

2.An inspection levy for health inspection of imported fish determined and imposed without objective justification, in accordance with particular criteria concerning the nature or condition of the goods, which are not comparable to the criteria used in fixing the pecuniary charges on domestic products of the same kind, must be considered as a charge having an effect equivalent to a customs duty, prohibited by Articles 9, 12 and 13 of the EEC Treaty.

Delivered in open court in Luxembourg on 7 April 1981.