Commission of the European Communities v Kingdom of Belgium (314/82)

I —Statement of facts

II —Procedure and conclusions

III —Submissions and arguments of the parties

The Commission, in its application, contends that in accordance with the settled case-law of the Court (judgment of 14 December 1962, Joined Cases 2 and 3/62 Commission v Luxembourg and Belgium [1962] ECR 425; judgment of 25 January 1977, Case 46/76 Bauhuis v Netherlands State [1977] ECR 5; judgment of 3 February 1981, Case 90/79 Commission v France [1981] ECR 283), pecuniary charges of the kind in question in this case are to be regarded as charges equivalent to customs duties. They are unilaterally imposed on goods by reason of the fact that they cross a frontier and are not part of a general system of internal dues because, in contrast to the position of national products, the importation and not the slaughter is the fact which gives rise to liability to the charge and because imported dried, salted or smoked poultrymeat does not enter the commercial cycle at the same point as fresh meat after slaughter and home-produced dried, salted or smoked poultrymeat is not subject to the fees in question.The inspection charges cannot be justified as payment for a service rendered to the importer because a public health inspection carried out in the public interest cannot constitute such a service.The Belgian Government, in its defence, relies on Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat, which set up a scheme of health inspection for products coming within its field of application and providing, in Article 9 (1), that a Member State may prohibit the marketing in its territory of fresh poultrymeat coming from another Member State if at the time of that health inspection carried out in the country of destination it is found that such meat is unfit for human consumption or that certain provisions of the directive have not been complied with. Certain kinds of treated fresh poultrymeat are expressly excluded from the scope of the directive. The latter is only a first step towards the approximation of national provisions in this field. There are still no uniform Community rules on how the cost of health checks and inspections is to be covered. Thus, the Member States continue, provisionally, to have the power to regulate this matter and to provide for the charging of fees intended to finance the system of inspection laid down by the national rules.The health checks carried out on poultrymeat at the time of importation into Belgium cover either points provided for in the Community directive, that is to say, verification of the health certificates, of the transhipment of the vehicle or the container and of the conformity of the product with the information given in the certificate, and verification of the temperature of the goods, of the physical state of the vehicle and its state of hygiene, and the markings, or matters laid down by Belgian law in accordance with the European directive, that is to say, spot checks intended to detect the presence of antibiotic residues and products having a hormonal or antihormonal effect, the defrosting of part of the shipment in the case of frozen or deep frozen goods and, in certain cases, verification of the water content. The quantities of poultrymeat seized at the time of importation illustrate the need for such inspections.Health checks, both on poultrymeat produced in the national territory and imported fresh poultry are, the Belgian Government states, subject to payment of a fee by the producer or the importer which is intended to cover the cost of such checks. The fees charged for health inspection of fresh poultrymeat produced in the national territory and for inspection of imported meat are part of a single body of rules established under the same basic law. In both their content and their effect, the rules regarding the fees chargeable in respect of health checks carried out on imported poultry correspond to those dealing with the fees chargeable in respect of poultry produced in the national territory. If differences exist in the detailed administrative rules for collection, they are justified on objective grounds. In both cases, the. fees are solely intended to cover the cost of the inspections.The amount of the common fees was made uniform by the Royal Decree of 20 March 1978. For fresh imported poultry those fees are BFR 80 per 100 kg or part thereof, an amount which is not indexed and is collected by the customs authorities. As regards fresh poultry produced in Belgium, the fees are set out in detail in Article 1 of the Royal Decree of 28 August 1981 and are indexed. At present, they are as follows:A. Visit of the veterinary expert: BFR 276;B. According to the type and weight of the animal: BFR 1, BFR 2, BFR 4 or BFR 8 per animal.Since one kilogram of live weight corresponds to 0.75 kg of dead weight, an inspection charge of BFR 100 is due, within the country, in respect of 75 kg of poultry. In comparison, the inspection charges due on importation represent only 60% of those fees. Thus, within the country, 40% of the inspection charges is in respect of the ante- and postmortem inspection and 60% of the inspection charge is in respect of other checks carried out on poultrymeat, that is to say, those which are carried out between the inspection following slaughter and consumption. The amounts are thus identical for both home-produced and imported products.According to the criteria laid down in the judgments of the Court of 15 December 1976 (Case 35/76 Simmenthal v Italian Minister for Finance [1976] ECR 1871), of 25 January 1977 (Case 46/76 Bauhuis v Netherlands State [1977] ECR 5) and of 7 April 1981-(Case 132/8.0 United Foods and Another v. Belgian State [1981] ECR 995), those fees do not constitute a charge having an effect equivalent to customs duties. The system of fees is based on one and the same Law, that of 15 April 1975. The products, at issue undergo the health check at the same time, that is, when they are offered for consumption, and the system of health checks carried out on home-produced poultrymeat corresponds to the system of checks carried out on imported poultymeat. There is no useless repetition of the check carried out in the exporting country because the purpose of the check is different, that is, it is intended to verify compliance with Belgian rules and such a check is also carried out. on home-produced poultrymeat. The charges incurred as a result of the inspections carried out. on imported products are, generally, identical to those borne by home-produced products, and that was the express purpose of the Royal Decree of 20 March 1978. The differences between the amounts of the inspection charges and the detailed rules for their collection are justified on objective grounds related to the different ways in which the two products arrive at the place where they are offered for consumption.Furthermore, the principle of a health check in the country of destination is expressly laid down in Article 9 of Directive 71/118 of 15 February 1971. In accordance with the Baubuis judgment, the fees charged in order to cover the costs of an inspection compatible with the directive do not constitute a charge having an effect equivalent to a customs duty.Since Directive 71/118 constituted the first step towards the harmonization of the law governing certain food products including poultrymeat, and since the Member States wish the level of protection of public health to remain unchanged, it seemed wise to leave the Member States the power to legislate in respect of goods not covered by the directive. Once such checks are compatible with the directive, the general principle of nondiscrimination as between imported products and national products is applicable. Genuine equality of treatment requires that both groups of products be subject to the same rules and that such rules have identical consequences. Since the Belgian State is not prohibited from levying a charge intended to cover the cost of health checks on those national products, equal treatment of imports implies that an equivalent charge should be levied for a similar health check carried out on imported products.The Commission, in its reply, observes first that Article 9 of Directive 71/118 deals exclusively with the possibility of prohibiting the marketing of meat unfit for human consumption, coming from another Member State, and with the possible return of the meat, and not with the compulsory establishment of inspections when frontiers are crossed. Whilst it must be recognized that such checks carried out by the country of destination when its frontier is crossed are permitted by the directive, it must also be emphasized, as may be seen from the directive's eighth recital in the preamble thereto, that the centrepiece of the directive is the establishment of a system of health checks by the country of origin in which the poultry was slaughtered.As regards the calculations by which the Belgian Government seeks to demonstrate that the inspection charges on importation represent only 60% of the inspection charges applied within the country and that 40% of the inspection charges collected within the country are intended to cover the cost of ante- and postmortem inspections, the Commission observes in the first place that the distinction so made is nowhere to be found in the provisions of Belgian law. Article 1 of the Royal Decree of 28 August 1981 expressly provides that the inspection charges collected inside the country may only be used to cover the cost of the health check before slaughter and of the inspection after slaughter, in other words, the ante- and postmortem inspections. Furthermore, that allegation is difficult to reconcile with the fact that the inspection charges are collected by the customs authorities when the goods cross the frontier. It is thus a check after slaughter and not a check “up to the point where the goods are offered to the consumer”. Finally, the defendant loses sight of the fact that imported meat may be liable to pay inspection charges twice, that is, both in the exporting country and in the country of destination.As regards the application to this case of the principles laid down in the Court's case-law, the Commission contends that the pecuniary charges in question are not part of a general system of internal dues because home-produced and imported products are not subject to the same charge and because the fact which gives rise to the charge is not the same for both kinds of products. Furthermore, the Belgian authorities also levy inspection charges for imported dried, salted or smoked meat, although they do not do so in the case of home-produced meat of the same type and although those products do not arrive on the market at the same stage as fresh meat after slaughter. Moreover, when the amount of the inspection charges on importation is fixed, no account is taken of the inspection charges already paid in the country of origin in respect of the inspections those products have undergone there.The fact that an inspection on importation is permitted does not necessarily imply that the dues collected in respect-, of those checks are justified. The inspection charges collected in respect of such inspections remain subject to Article 9 et seq. of the Treaty. In that respect, it is not sufficient to allege that the inspection charges for both imported and home-produced products are based upon the same law.Finally, the Commission contests the Belgian Government's allegation that all the health checks carried out on home-produced poultrymeat are equivalent to all the inspections carried out on imported poultrymeat because, among other reasons, by virtue of the different units which are used in this context, the inspection charges do not weigh as heavily on all the products and because the total pecuniary charge must be calculated so as to take account of the fees already paid in the country of origin.The Belgian Government, in its rejoinder, observes in the first place that the possibility of the Belgian State's prohibiting, pursuant to Council Directive 71/118, the marketing of poultrymeat unfit for human consumption presupposes the existence of a prior health inspection so as to determine the state of hygiene of the poultry in question. The Commission recognizes moreover that there are at present no uniform Community rules on the question of health inspections and the financing of the cost of such inspections. In that situation, the Member States cannot be reduced to a policy of the lowest common denominator. The Community legislature has therefore allowed Member States to retain the national systems of public health protection which go beyond the Community requirements, which are regarded solely as a minimum. That is also the meaning of Article 36 of the Treaty.The Royal Decree of 20 March 1978 was intended to make the inspection charge on poultrymeat on importation equal to the inspection charge for animals slaughtered in Belgium. That intention corresponds to the Commission's concern to ensure that the total health inspection charges levied in respect of imported poultry, including fees already paid in the exporting Member State, are equal to the total of health inspection charges paid in respect of home-produced poultry. It is precisely for this reason that the health inspection charges for imported poultry represent only 60% of the health inspection charges on Belgian poultry. 40% has already been collected in the exporting State in respect of a check intended to achieve another objective.The difference in the detailed administrative rules for the collection of the charges, and in particular their collection by the customs authorities, is based upon objective grounds, namely, the fact that inspection of imported meat can only be carried out at the frontier, or at the point of destination in the national territory, by the customs administration. The division of administrative powers between the customs administration and the Veterinarians' Fund influences neither the basis nor the effect of the charge, nor does it influence in either case the purpose to which the charge is devoted. In both cases, the objective sought is the protection of public health, and thus requires the inspection operations and the collection of the fee to take place before the goods are offered to the consumer.The very slight difference between the amount of the fees in francs per kilogram or per animal may be explained by the fact that imported poultrymeat is plucked but it is not plucked at the time of slaughter.Contrary to the Commission's contention, the health checks carried out on imported products are equivalent in their entirety to those carried out at various stages on similar home-produced goods. The charges levied on imported products when inspection is effected at the frontier take the place of the charges levied when health inspection is carried out on home-produced goods. Those fees are part of a general system of internal dues. Imported products arc subject to them to the same degree as home-produced products. The fact which gives rise to the charge in both cases is a health check required before the poultrymeat is offered to the consumer. The Commission is confusing the time at which the health inspection is carried out with the fact which gives rise to the charge, which is in all cases a health check.Finally, the difference of 40% in favour of imported products in the amounts charged for imported and home-produced goods in intended to take account of the fees already paid in the exporting Member State in respect of earlier health checks.

IV —Reply of the Belgian Government to the question put by the Court

In reply to a question put to it by the Court concerning the purpose of and the detailed rules for the checks carried out on home-produced and imported poultrymeat, the Belgian Government described the checks in greater detail.In the case of home-produced poultrymeat, the checks are first of all carried out at the abattoir. Those checks arc the ante-mortem and postmortem health inspections provided for in the Community directives and those dealing with the matters expressly excluded from the scope of Directive 71/118 (Article 6), as well as with the means of transport and the goods to be transported. Further spot-checks are carried out when the meat is being cut up, at which point the checks carried out at the abattoir are repeated. Finally, the same checks are carried out at the meat-processing plants. At the point of distribution and during transport within the national territory, checks are carried out with a view to discovering infringements of the law.In the case of imported poultrymeat, the checks are carried out, according to the wishes of the importer, either at the customs office through which the goods are imported or at another place acceptable to the inspecting authority, which is generally the place of destination of the goods. Besides the checks provided for in the Community directives, those checks deal, as in the case of home-produced goods, with the matters expressly excluded from the scope of Directive 71/118 (Article 6). The checks in question are limited to the taking of samples and the rest of the goods are not held up.

V —Oral procedure

At the sitting on 7 December 1983, oral argument was presented for the Commission by H. van Lier and for the Kingdom of Belgium by R. Hoebaer and J. Putzeys.The Advocate General delivered his opinion at the sitting on 7 February 1984.

Costs