DELIVERED ON 20 APRIL 1983 (*1)

Mr President,

Members of the Court,

1.The cases to which this opinion refers originate in two actions which the Commission brought under Article 169 of the EEC Treaty, against the Kingdom of Belgium (Case 132/82) and the Grand Duchy of Luxembourg (Case 133/82). According to the applicant, the defendant States have failed to fulfil their obligations under Articles 9 and 12 of the Treaty inasmuch as they levy ‘charges’ when goods which originate in a Member State or are in free circulation are present at a special store in a public warehouse.

It may be noted immediately that Luxembourg has adopted the Belgian provisions; the legislation of the two States is therefore essentially identical. The grounds of action are also identical and the defences of the two Governments have been drawn up in similar terms. This makes it possible for me to consider the arguments advanced together, in a single opinion.

2.The provisions to which I have referred may be summarized as follows. The Belgian and the Luxembourg legislation on customs warehouses and temporary storage (the Law of 20 February 1978 and the Royal Decree of 29 January 1979, Moniteur Belge [Belgian Official Gazette] 1978, p. 3174 and 1979, p. 2596 in the case of Belgium; Ministerial Regulations of 21 April 1978 and 29 January 1979, Mémorial [Luxembourg Official Gazette] 1978, p. 508 and 1979, p. 1189 in the case of Luxembourg), provide that ‘storage charges’ on the goods deposited are payable to those responsible for the running of the public warehouses. The warehouses are generally made available to importers by municipal and port authorities. The latter also collect the charges while the part played by the State is to fix the maximum amount and to lay down rules for the payment thereof. In particular Articles 25 to 28 of the Belgian Law provide first that the charges are calculated at a flat rate with reference to the weight of the goods and to the type of operation involved; secondly they must not exceed 5.50 francs per package or per 100 kg if the goods are unloaded within the store; 3.50 francs per packet or per 100 kg if the load is discharged in the loading bay or the yard; and 13 francs per tonne (with a maximum of 130 francs and a minimum of 58 francs per truck, lorry or trailer), if, with the permission of the customs authorities, the goods are not unloaded.

Special stores are situated in the vicinity of the public warehouses where imported goods which have been declared summarily at the frontier may be stored for up to 15 days, until they have been declared for one of the procedures authorized under Article 35 of the Belgian Law, namely home use, transit, temporary duty-free importation, removal to another special store or another public or private warehouse, a fictitious operation or a fictitious re-exportation. Article 30 of the Royal Decree of 29 January 1979 establishes moreover that the charges are payable from the time at which the goods arrive at the special store, whether or not they are unloaded. Article 34 of the same Decree provides that the importer must pay even if, when the goods are presented, he has obtained an exemption from storage or withdraws them from transit.

3.May I comment briefly on the events which preceded the actions. The Commission took the view that the charges on goods presented at special stores constituted charges having an effect equivalent to customs duties and as such were prohibited by the Treaty. It therefore commenced the procedure laid down by Article 169 with a letter of formal notice which was sent to Belgium (2 August 1978) and to Luxembourg (16 February 1981). The two Governments replied that the charges in question merely represented payment for a service benefiting the importers which was actually and individually rendered to the latter. However, the Commission was not convinced by their arguments. In consequence it issued reasoned opinions of 13 March 1981 (Belgium) and 8 December 1981 (Luxembourg). Only the Belgian Government replied, but reaffirming its own view. At that point the Commission brought before the Court the two actions which were lodged on 23 April 1982.

4.As the Court is aware, Title I of the EEC Treaty contains the fundamental prohibitions relating to customs duties. Thus Article 9 prohibits customs duties on imports and all charges having equivalent effect for products originating in Member States and for products coming from third countries which are in free circulation in the Community. Article 12 prohibits Member States from introducing or increasing financial charges of the same type.

The case-law of the Court has greatly contributed to the interpretation of the two provisions. In particular it has held that they are fundamental to the system of the Treaty and, by the well known judgment in <span class="italic">van Gend &amp; Loos</span> ([1963] ECR 1) it has recognized that they have direct effect. It has gradually expanded and refined its interpretation of the concept of a charge having equivalent effect by its numerous, precise references thereto. We may leave aside the initial judgments in which discriminatory aid protectionistic ideas still predominated with obviously restrictive results. The great leap forward came with the judgment in Case 24/68 which identified the concept as “any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier ... even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product” (judgment of 1 July 1969 in Case <a href="http://eur-lex.europa.eu/query.html?DN=61968??0024&amp;locale=EN" onclick="target='CourtTab';">24/68 <span class="italic">Commission</span> v <span class="italic">Italian Republic</span> [1969] ECR 193, paragraph 9</a> of the decision and in similar terms the judgment of 1 July 1969 in Joined Cases <a href="http://eur-lex.europa.eu/query.html?DN=61969??0002&amp;locale=EN" onclick="target='CourtTab';">2 and 3/69 <span class="italic">Sociaal Fonds voor de Diamantarbeiders</span> v <span class="italic">Brachfeld and Choiigol</span> [1969] ECR 211</a>; judgment of 26 February 1975 in Case <a href="http://eur-lex.europa.eu/query.html?DN=61974??0063&amp;locale=EN" onclick="target='CourtTab';">63/74 <span class="italic">Cadsky</span> v <span class="italic">Istituto Nazionale per il Commercio Estero</span> [1975] ECR 281</a>; judgment of 25 January 1977 in Case <a href="http://eur-lex.europa.eu/query.html?DN=61976??0046&amp;locale=EN" onclick="target='CourtTab';">46/76 <span class="italic">Bauhuis</span> v <span class="italic">Netherlands</span> [1977] ECR 5</a>; judgment of 8 November 1979 in Case <a href="http://eur-lex.europa.eu/query.html?DN=61978??0251&amp;locale=EN" onclick="target='CourtTab';">251/78 <span class="italic">Denkavit Futtermittel</span> v <span class="italic">Minister fir Ernährung, Landwirtschaft und Forsten</span> [1979] ECR 3369</a>).

The Court has therefore concentrated on the fact that charges imposed on the crossing of a frontier impede the movement of goods; and this it has done, on the one hand without taking into account the increases in price which may result from such charges, and on the other hand it has attached very little importance to such factors as the time at which the charge is collected, its amount, the means by which it is collected, the body which receives the sum, the use to which the sum collected is put or the purpose of the charge. However, that does not mean that the concept of a charge having equivalent effect has been extended beyond reasonable limits. Thus the Court has provided that the following charges are not covered by the prohibitions contained in Articles 9 and 12: (a) those which represent the consideration for a service rendered to the importer (as may be seen in the case-law which I have already cited); (b) those imposed on similar or comparable imported and domestic products in the same way; (c) charges which, in the absence of products of the type and within the limits provided for by the Treaty, form part of a general system of internal taxation (in particular I refer to the judgment of 25 January 1977 in Case 46/76 which I have already cited, and that of 28 June 1978, in Case <a href="http://eur-lex.europa.eu/query.html?DN=61977??0070&amp;locale=EN" onclick="target='CourtTab';">70/77 <span class="italic">Simmenthal</span> v <span class="italic">Amministrazione delle Finanze</span> [1978] ECR 1453</a>).

5.Clearly the storage charges levied in Belgium and Luxembourg are payable only on imported goods and therefore cannot be included in categories (b) and (c). It remains then to establish whether they may be regarded as the consideration for a service of benefit to the importer which is individually and actually rendered to him.

6.Indeed, it is on that very exception that the defendant governments base their defence. In the first place, they maintain that the service consists in the provision and use of the infrastructures which the special stores contain. The importers occupy the buildings and the parking areas where their goods are guarded by the administration. It should be added that, according to both texts, the goods are, in general, actually deposited in the special stores and the transaction is not fictitious. That is established by Article 34 of the Belgian Law, according to which the goods may be stored there for a maximum period of 15 days, in the course of which the importer must declare what he intends to do with them. Finally, it is true that customs operations are carried out in the stores. It is equally true, nevertheless, that the event giving rise to the charge is not the customs clearance but the use of the facilities. The Belgian Government states that it is pertinent to note that Mr Advocate General Roemer considered as representing payment for a service and therefore lawful charges “for customs clearance effected at night or on Sundays and public holidays and for the use of bonded warehouses and experts” (Joined Cases <a href="http://eur-lex.europa.eu/query.html?DN=61965??0052&amp;locale=EN" onclick="target='CourtTab';">52 and 55/65 [1966] ECR 159 at p. 178</a>).

In addition both governments submit that the decisive factor is that the use of the stores is optional. Other possibilities are open to an importer wishing to complete customs formalities. He may, at no expense to himself, have the goods inspected at the frontier. He may have them cleared for customs on his own premises provided that he has been authorized so to do and that he pays for the necessary installations himself. Alternatively he may, obviously subject to payment, resort to private stores. In short the importer is not compelled to present his goods at the special stores of a public warehouse. If he does so, it is because it enables him to complete customs formalities nearer to the places where the goods are to be used.

7. The Commission disagrees. In its view the charge in question is closely connected with customs operations which Community provisions require to be free of charge wherever they are carried out. The only benefit which the importers obtain in return for their payment is the possibility of presenting the goods for customs clearance near the place at which the goods are to be used. That is not sufficient for the relationship to be regarded as bilateral, as the defendant governments claim it should be. Thus the use of the stores cannot be said to be genuinely optional. That is shown by the lack of a connection between the amount of the charge and the duration of the relationship, and even more forcefully, by the fact that the importer must pay the charges even if he has obtained an exemption from storage.

8.Nevertheless, it seems to me that the arguments put forward by the two governments are well founded. In its case-law the Court has identified the characteristics which the service rendered to the importer must have, if the charge imposed is not to be regarded as a charge having an effect equivalent to a customs duty. Thus, (a) it is first necessary that the benefits of which the service consists be commensurate with such a charge (see judgment of 1 July 1969, in Case 24/68, which I have already cited; judgment of 11 October 1973, in Case <a href="http://eur-lex.europa.eu/query.html?DN=61973??0039&amp;locale=EN" onclick="target='CourtTab';">39/73 <span class="italic">Rewe</span> [1973] ECR 1039</a>; judgment of 22 February 1975, Case 63/74, already cited; judgment of 5 February 1976, Case <a href="http://eur-lex.europa.eu/query.html?DN=61974??0063&amp;locale=EN" onclick="target='CourtTab';">87/75 <span class="italic">Bresciani</span> [1976] ECR 129</a>; judgment of 25 January 1977, Case 46/76, already referred to; judgment of 12 July 1977, Case <a href="http://eur-lex.europa.eu/query.html?DN=61976??0089&amp;locale=EN" onclick="target='CourtTab';">89/76 <span class="italic">Commission</span> v <span class="italic">Netherlands</span> [1977] ECR 1355</a>). In the second place (b) those benefits must represent a general economic alternative to the various possibilities which are available to the importer for the completion of the customs transactions (judgment of 12 January 1983, Case <a href="http://eur-lex.europa.eu/query.html?DN=61982??0039&amp;locale=EN" onclick="target='CourtTab';">39/82, <span class="italic">Donner</span> v <span class="italic">Netherlands</span> [1983] ECR 19</a>). Finally (c) by “benefits” should be understood not only services directly and specifically connected with the movement of the goods, but also advantages of a <span class="italic">more general character</span>