Commission of the European Communities v Kingdom of Belgium (132/82)

III —Submissions and arguments of the parties

According to the Commission, it may be seen from the established case-law of the Court, in particular the judgment of 25 January 1977 (Case 46/76 Bau/mis [1977] ECR 5) that: “Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed for the benefit of the State.” That position would be different only if the charge in question were the consideration for a service actually rendered to the importer representing an amount proportionate to the said service or if it related to a general system of internal dues applied systematically in accordance with the same objective criteria to domestic products and imported or exported products alike (similarly, judgment of 14 December 1962, Joined Cases 2 and 3/62 Commission v Belgium and Luxembourg [1962] ECR 425; judgment of 8 November 1979, Case 251/78 Denkavit [1979] ECR 3369; judgment of 28 January 1981, Case 23/80 Kortmcmn [1981] ECR 251; judgment of 3 February 1981, Case 90/79 Commission w France [1981] ECR 283).In the Commission's view, the storage charges levied by the Belgian authorities do not constitute either internal taxation or the consideration for a service rendered.Within the terms of Article 30 of the Royal Decree of 29 January 1979 on customs warehouses and temporary storage, “storage charges are payable on goods arriving at the store whether they are unloaded or not”. According to the Commission, that provision clearly establishes that it is not the actual use of the facilities of the store which serves to justify the payment of the fee, but the sole fact of crossing the frontier or, more precisely, the fact of presenting imported goods for the completion of customs formalities at the special store.The Commission considers that, even if, as the Belgian Government maintains, the use of the special store is optional, that fact does not authorize the Belgian State to levy storage charges. The Commission notes that, according to the above-mentioned case-law, the fact that the disputed charges are levied by the municipal authorities is irrelevant to their classification in respect of the provisions of the Treaty.The Commission considers that a service might possibly be rendered if the charge were imposed only in cases in which the goods remained in the special store for longer than the minimum period necessary for the completion of customs formalities. However, Article 34 of the Royal Decree provides that the importer may be required to pay the storage charges even if he wishes to dispose of the goods immediately on the completion of customs formalities and not to store the goods in the store and has therefore obtained an exemption from storage, in accordance with Article 16 of the same Decree.According to the Commission which cites the judgment of 16 June 1966, Joined Cases 52 and 55/65 Federal Republic of Germany v Commission [1966] ECR 159, the fact of facilitating the completion of customs formalities cannot be regarded as amounting to a service rendered to the importer which justifies payment, inasmuch as such formalities are imposed by the State in its own interest and provide no real advantage to the importer.In the Commission's yiew to “penalize” the importer who makes use of such procedures by requiring him to pay storage charges is contrary to the objectives of the Community, according to which customs clearance formalities should be completed near the places of use or consumption. Such objectives have been given specific expression in Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal 1977, L 38, p. 1).The Belgian Government states that the fees charged for use of the special store cannot be regarded as charges having an effect equivalent to customs duties inasmuch as, in the first place, they are not imposed by reason of the fact that the goods have crossed the frontier and, secondly, they represent payment for a service actually rendered to the importers.The Belgian Government states that the use of the special stores is optional. Customs formalities may be completed within the territory, either on the premises of approximately 600 undertakings which under certain conditions have been recognized as authorized consignees within the framework of measures adopted for the simplification of the system of Community transit, or on the premises of major undertakings where a fixed customs post has been established, or finally in the stores or temporary storage depots of private undertakings situated in the ports or airports and in certain important centres.The Belgian Government states that it is only when the customs formalities are completed on the importer's own premises, when the importer has been recognized as an authorized consignee, that no storage charge is levied. However, it should be emphasized that, even in that case, the undertaking will bear certain costs relating to the installation of the appropriate facilities. When, on the other hand, the importer conveys the imported goods to a private undertaking where there is a customs service, the undertaking will require payment for the use of its facilities.In the opinion of the Belgian Government, for the same reasons, the service provided by the municipal authorities justifies the payment of storage charges in consideration of the costs involved in the upkeep of the stores.The Belgian Government considers that in law the fact which gives rise to the disputed charge is not the crossing of the frontier but the use of an infrastructure which is provided and financed by a third party, the municipality.The Belgian Government, which refers to the opinion delivered by Mr Advocate General Roemer in Joined Cases 52 and 55/65 Federal Republic of Germany v Commission [1966] ECR 159, at p. 173, considers that the payment of storage charges is justified as regards the provisions of the Treaty, inasmuch as the reason for and the objectives of the imposition of the fee do not relate to any form of protectionism but are solely intended to cover, to a reasonable extent, the expense of making commercial warehouses available. The Belgian Government emphasizes that the proceeds of the disputed charge, the maximum rate of which is fixed by the State, are lower than the costs and the maintenance of the special stores.According to the Belgian Government, the fact that such special stores are made available to importers corresponds entirely to the concept of a service actually rendered as it was defined by the Court, in particular in the judgments of 1 July 1969 (Case 24/68 Commission v Italian Republic; in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders; and of 26 February 1975 (Case 63/74 W. Cadsky SpA [1975] ECR 281), all cited above). The opportunity of using a public warehouse enables importers who either do not have sufficient facilities to qualify as authorized consignees within the framework of measures adopted for the simplification of the system of Community transit or who do not wish to make use of the sites or temporary storage depots of other private undertakings, to complete the customs formalities near the place where the goods are used.The Belgian Government considers unacceptable the Commission's view that the fee represents a charge having equivalent effect inasmuch as it does not depend on the length of time for which the stores are used and remains payable even if the goods are not unloaded. The Belgian Government states that fees are not calculated at a flat rate. The amount varies according to the weight and the place where the goods are unloaded. Indeed the fee may be compared to a rent or a parking charge.The Belgian Government maintains that the goods generally stay in the store longer than is strictly necessary for the completion of customs formalities, if only, for example, as a result of delays caused by the simultaneous arrival of several importers. In those circumstances, clearly the importer who parks his lorry on the public highway is not required to pay a storage charge, but, in practice, that solution would not be any real help in view of the difficulties in parking and the security problems which might result from the lack of surveillance of the goods.In the opinion of the Belgian Government, if the Court were to accept the Commission's argument, the municipal authorities would be obliged to alter the rules relating to the collection of storage charges so that the charges would be levied on the basis of the duration of parking before and after the completion of customs formalities, the waiting periods and the like. Such rules would not facilitate the free movement of goods inasmuch as they would entail additional administrative costs which would be borne by importers and, in certain cases, the fees charged would be higher than the present inclusive amounts.