Commission of the European Communities v Hellenic Republic (229/87)

Contents

Judgment of the Court15 November 1988^noteIn Case 229/87Commission of the European Communities, represented by Xénophon Yataganas, a member of its Legal Department, with an address for service in Luxembourg at the office of Georgios Kremlis, also a member of its Legal Department, Jean Monnet Building, Kirchberg,vHellenic Republic, represented by its government in the person of its Agent, Yannis Drossos, Legal Adviser at the Ministry of Commerce, with an address for service in Luxembourg at the Greek Embassy, 117 Val-Sainte-Croix,THE COURTcomposed of: O. Due, President, T. Koopmans, R. Joliét and T. F. O'Higgins (Presidents of Chambers), C. N. Kakouris, F. Α. Schockweiler and J. C. Moitinho de Almeida, Judges,Advocate General: Sir Gordon SlynnRegistrar: B. Pastor, Administratorhaving regard to the Report for the Hearing and further to the hearing on 22 June 1988,after hearing the Opinion of the Advocate General delivered at the sitting on 14 July 1988,gives the following

Judgment

1By application lodged at the Court Registry on 29 July 1987, the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that, by levying a charge, for checking prices of goods imported from other Member States of the Community, the Hellenic Republic has failed to fulfil its obligations under Article 12 et seq. of the EEC Treaty and Article 29 of the Act of Accession of the Hellenic Republic to the European Communities.

2Article 12 et seq. of the Treaty require inter alia the abolition between the Member States of charges having equivalent effect to customs duties, and Article 29 of the Act of Accession provides with regard to imports between the Community and Greece that the abolition of those charges must be effected progressively over a transitional period expiring on 1 January 1986.

3Under Greek law it is the duty of a statutory body known as the ‘Union of the Greek Chambers of Commerce and Industry’ to collect information and supply it to the banks authorized to conduct foreign-exchange transactions, in the interests of ensuring the efficacy of the currency checks which those banks are required to carry out.

4As consideration for the performance of that task, a charge levied on importers by the banks at the time of their inspection is payable to the abovementioned Union of the Greek Chambers of Commerce and Industry. According to a circular of 10 December 1980 issued by the Minister for Trade, the charge is equal to 0.1% of the cif value shown on each import invoice, with a minimum of DR 250 and a maximum of DR 5000; the State is exempted entirely, while bodies governed by public law pay only half the charge.

5By an application lodged on 3 May 1985 (Case 138/85), the Commission had sought a declaration by the Court that, by levying the charge in question through the banks after 1 January 1981, the Hellenic Republic had failed to fulfil its obligations under Article 28 of the Act of Accession.

6Article 28 of the Act of Accession provides for the abolition from 1 January 1981 of any charge having equivalent effect to a customs duty on imports introduced as from 1 January 1979 in trade between the Community and the Hellenic Republic.

7However, during the procedure in Case 138/85 it had become apparent that the contested charge had not been imposed by Greek Law No 1089 of 12 November 1980 concerning the Chambers of Commerce, Industry, Trades and Crafts, which had created the Union of the Greek Chambers of Commerce and Industry, but that it dated back to legislation of 1947. The Commission withdrew its application based on Article 28 of the Act of Accession, and the case was removed from the Register of the Court.

8The present application follows a fresh pre-litigation procedure, commenced by the Commission on 8 August 1986 and based principally on Article 29 of the Act of Accession.

9Reference is made to the Report for the Hearing for a fuller account of the national provisions at issue, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Admissibility

10The Greek Government claims that the application must be dismissed as inadmissible, because the Commission did not observe the procedure under Article 169 of the Treaty inasmuch as the letter of formal notice dated 8 August 1986 confines itself to referring to the Commission's observations in the case removed from the Register. The Hellenic Republic was thereby denied the opportunity of submitting its observations in accordance with that article.

11In that connection it should be recalled that, under Article 169 of the Treaty, the Commission may not bring an action before the Court for a declaration that a Member State has failed to fulfil its obligations until it has given that Member State the opportunity of submitting its observations.

12It should also be recalled that the Court has consistently held that, at the pre-litigation stage of proceedings for failure of a State to fulfil its obligations, the purpose of the letter of formal notice is to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence.

13In this case it should be noted that the only difference of fact between the first application, based on Article 28 of the Act of Accession, which the Commission withdrew, and the procedure culminating in the present application, based on Article 29 thereof, is the date on which the national legislation in dispute entered into force. In those circumstances there can be no doubt that by virtue of the new letter of formal notice, which had exactly the same subject-matter but relied on a different provision and otherwise referred to the previous application, the Hellenic Government was in possession of all the relevant information needed for its defence.

14The objection of inadmissibility raised by the Hellenic Government cannot therefore be upheld.

Substance

15The Hellenic Government argues, in the main, that the charge is levied as consideration for genuine services performed by the Chambers of Commerce and Industry, whose membership includes importers. The purpose of those services is to ensure the proper functioning of exchange controls. The charge covers the costs entailed by those services and is proportionate to them. In the alternative, the Hellenic Government argues that the protective effect of the charge is negligible. It adds that the charge is not imposed in cases where the value of the goods imported is less than DR 200000 or when importation is carried out by the State.

16In the first place, it should be observed that the Hellenic Government was unable to substantiate the interest which importers supposedly had in taking part in the enforcement of national legislation on exchange control, or to explain how the proper functioning of exchange controls constitutes a service to importers for which the charge is levied as consideration.

17In the second place it should be recalled that, as the Court has held, in particular in its judgment of 5 February 1976 in Case 87/75 (Bresciani v Amministrazione italiana delle finanze [1976] ECR 129), any pecuniary charge, whatever its designation and mode of application, which is unilaterally imposed on goods imported from another State by reason of the fact that they cross a frontier, constitutes a charge having an effect equivalent to a customs duty.

18Accordingly, the contested charge, which is levied on goods by reason of their being imported, constitutes a charge having an effect equivalent to a customs duty, the abolition of which is provided for by Article 12 et seq. of the Treaty and by Article 29 of the Act of Accession.

19As far as the Hellenic Government's alternative argument regarding the negligible effect of the charge is concerned, it is sufficient to recall that, according to the judgment cited above, any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier constitutes an obstacle to the movement of such goods.

20The fact that the charge in question is not levied on all imported goods, since it is not imposed when the value of the goods imported is less than DR 200000 or when importation is carried out by the State, does not affect that conclusion.

21It follows from the foregoing that, by levying a charge for checking prices of goods imported from other Member States of the Community, except when the value of the goods imported is less than DR 200000 or when importation is carried out by the State, the Hellenic Republic has failed to fulfil its obligations under Axticle 12 et seq. of the Treaty and Article 29 of the Act of Accession of the Hellenic Republic to the European Communities.

Costs

22Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the defendant has failed in its submissions it must be ordered to pay the costs.

Operative part

On those grounds,THE COURThereby:

(1).Declares that, by levying a charge for checking prices of goods imported from other Member States of the Community, except when the value of the goods imported is less than DR 200000 or when importation is carried out by the State, the Hellenic Republic has failed to fulfil its obligations under Article 12 et seq. of the EEC Treaty and Article 29 of the Act of Accession of the Hellenic Republic to the European Communities;

(2).The Hellenic Republic is ordered to pay the costs.

Delivered in open court in Luxembourg on 15 November 1988.