Commission of the European Communities v Grand-Duchy of Luxembourg (133/82)

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 Baubtas [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 exporter 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 Kortmann [1981] ECR 251; judgment of 3 February 1981, Case 90/79 Commission v France [1981] ECR 283).In the Commission's view, the storage charges levied by the Luxembourg authorities pursuant to the Ministerial Regulation of 21 April 1978 and the Grand-Ducal Regulation of 31 March 1978 are not related to a general system of internal dues inasmuch as the charges are imposed on the goods solely by reason of their crossing the frontier. Neither can the storage charges in question be regarded as the consideration for a service individually rendered to the importer. 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 remarks, on the basis of the judgment of 16 June 1966 (Joined Cases 52 and 55/65 Federal Republic of Germany v Commission [1966] ECR 159) that the levying of a storage charge cannot be justified when the only benefit which the importer obtains from the use of the special store is the possibility of marketing the imported goods in the Grand Duchy; the imported products themselves enjoy no direct or indirect advantage.In the Commission's view, 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 for 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 Luxembourg Government takes the view that the charge levied in the special stores of public warehouses cannot be assimilated to a charge having an effect equivalent to a customs duty inasmuch as, in the first place, the charge is not imposed by reason of the fact that the goods have crossed the frontier and, secondly, it represents the consideration for a service actually rendered to the importers.The Luxembourg Government emphasizes that for the completion of customs formalities within the country use of the special store is optional. Customs formalities may also be carried out either in the premises of a score of undertakings which under certain conditions are recognized as authorized consignees within the framework of measures adopted for the simplification of Community transit, or in the premises of major undertakings where a fixed customs post is established, or again in the stores or temporary storage sites of private undertakings, of Luxembourg Airport, or the river port on the Moselle, or finally in the special store of the public warehouses of Ettelbriick, Luxembourg and Esch-sur-Alzette.The Luxembourg 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, 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 Luxembourg 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 Luxembourg 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 Luxembourg Government emphasizes that the special storage charge is fixed and imposed by the municipal authorities exclusively for their benefit. The maximum rate of the charge is determined at government level under the rules of the Belgo-Luxembourg Economic Union.According to the Luxembourg Government, the fact that a special store is made available to importers corresponds entirely to the concept of a service actually and individually 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) of 26 February 1975 (Case 63/74 W. Cadsky SpA [1975] ECR 281) and of 25 January 1977 (Case 46/76 Bauhuis) all cited above. The opportunity of using the special store of 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 Luxembourg 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 stores are used and remains payable even if the goods are not unloaded. The Luxembourg Government states that the 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 Luxembourg Government maintains that the goods generally stay in the store longer than is strictly necessary for the completion of the 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 Luxembourg 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.