Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1972/R2972.html
Cite as: [1972] EUECJ R-29/72

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61972J0029
Judgment of the Court of 14 December 1972.
S.p.A. Marimex v Italian Finance Administration.
Reference for a preliminary ruling: Tribunale civile e penale di Trento - Italy.
Sanitary inspections.
Case 29-72.
European Court reports 1972 Page 01309
Danish special edition 1972 Page 00343
Greek special edition 1972-1973 Page 00339
Portuguese special edition 1972 Page 00473

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1 . FREE MOVEMENT OF GOODS - RESTRICTIONS - ABOLITION - DEROGATION UNDER ARTICLE 36 OF THE EEC TREATY - STRICT INTERPRETATION
2 . CUSTOMS DUTIES - ABOLITION - CHARGES HAVING EQUIVALENT EFFECT - CONCEPT - FEES DEMANDED FOR SANITARY INSPECTIONS - PROHIBITION
( EEC TREATY, ARTICLE 9; REGULATION NO 805/68 OF THE COUNCIL, ARTICLE 22 )

1 . ARTICLE 36 MUST BE INTERPRETED STRICTLY SINCE IT CONSTITUTES A DEROGATION FROM THE BASIC RULE THAT ALL OBSTACLES TO THE FREE MOVEMENT OF GOODS BETWEEN MEMBER STATES SHALL BE ELIMINATED .
2 . THE PROHIBITION, IN TRADE BETWEEN MEMBER STATES, OF ALL CUSTOMS DUTIES AND OF ALL CHARGES HAVING EQUIVALENT EFFECTS REFERS TO ALL CHARGES DEMANDED ON THE OCCASION OR BY REASON OF IMPORTATION WHICH, IMPOSED SPECIFICALLY ON IMPORTED PRODUCTS AND NOT ON SIMILAR DOMESTIC PRODUCTS ALTER THEIR COST PRICE AND THUS PRODUCE THE SAME RESTRICTIVE EFFECT ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY .
SINCE THIS PROHIBITION DOES NOT ADMIT OF ANY DISTINCTION ACCORDING TO THE AIM IN VIEW IN LEVYING THE PECUNIARY CHARGES FOR THE ABOLITION OF WHICH IT PROVIDES, IT ALSO INCLUDES FEES DETERMINED IN ACCORDANCE WITH SPECIAL CRITERIA REQUIRED BECAUSE OF SANITARY INSPECTIONS CARRIED OUT BY REASON OF THE IMPORTATION OF GOODS .

IN CASE 29/72
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRESIDENT OF THE TRIBUNALE DI TRENTO FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
S . P . A . MARIMEX, WHOSE REGISTERED OFFICE IS AT 7 VIA LITTA, MILAN, AND
ITALIAN FINANCE ADMINISTRATION, REPRESENTED BY THE MINISTER FOR FINANCE FOR THE TIME BEING,

ON THE INTERPRETATION OF ARTICLE 22 ( 1 ) OF REGULATION ( EEC ) NO 805/68 OF THE COUNCIL OF 27 JUNE 1968 ( OJ, SPECIAL EDITION, 1968, I, P . 187 ) AND OF ARTICLE 95 OF THE EEC TREATY,

1 BY AN ORDER OF 17 MAY 1972, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 26 MAY 1972, THE PRESIDENT OF THE TRIBUNALE DI TRENTO SUBMITTED A QUESTION TO THE COURT ON THE INTERPRETATION OF ARTICLE 22 ( 1 ) OF REGULATION ( EEC ) NO 805/68 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL ( OJ, SPECIAL EDITION, 1968 I, P . 187 ).
IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 9 OF THE TREATY, THIS ARTICLE PROHIBITS THE LEVYING OF ALL CUSTOMS DUTIES OR CHARGES HAVING EQUIVALENT EFFECT ON INTRA-COMMUNITY TRADE .
2 IN THE QUESTION SUBMITTED IT IS ASKED WHETHER A PECUNIARY CHARGE IMPOSED WHEN THE FRONTIER IS CROSSED ON THE GROUND OF THE SANITARY INSPECTION OF CATTLE AND OF BEEF AND OF VEAL MUST BE CONSIDERED AS A CHARGE HAVING EQUIVALENT EFFECT .
THE COURT EXPLAINS THAT THE CORRESPONDING GOODS PRODUCED WITHIN THE TERRITORY OF THE IMPORTING MEMBER STATE ARE LIABLE TO A PECUNIARY CHARGE IMPOSED BY AUTHORITIES OTHER THAN THE STATE AND DETERMINED IN ACCORDANCE WITH CRITERIA WHICH ARE NOT COMPARABLE TO THE CRITERIA EMPLOYED IN FIXING THE AMOUNT OF THE PECUNIARY CHARGE IMPOSED ON THE SAME IMPORTED PRODUCTS .
THE EXTENT OF THE DEROGATION PROVIDED FOR IN ARTICLE 36 OF THE TREATY
3 THE GOVERNMENT OF THE ITALIAN REPUBLIC CONSIDERS THAT SINCE SANITARY INSPECTIONS ARE PERMITTED BY ARTICLE 36 OF THE TREATY IT FOLLOWS THAT THE IMPOSITION OF PECUNIARY CHARGES FOR SUCH INSPECTIONS IS ALSO IN ACCORDANCE WITH THE TREATY .
4 ARTICLE 36 OF THE TREATY PROVIDES THAT : " THE PROVISIONS OF ARTICLES 30 TO 34 SHALL NOT PRECLUDE PROHIBITIONS OR RESTRICTIONS ON IMPORTS ... JUSTIFIED ON GROUNDS OF ... THE PROTECTION OF HEALTH AND LIFE OF HUMANS, ANIMALS ... ".
SINCE THIS PROVISION CONSTITUTES A DEROGATION FROM THE BASIC RULE THAT ALL OBSTACLES TO THE FREE MOVEMENT OF GOODS BETWEEN MEMBER STATES SHALL BE ELIMINATED IT MUST BE INTERPRETED STRICTLY AND THUS CANNOT BE UNDERSTOOD AS AUTHORIZING MEASURES OF A DIFFERENT NATURE FROM THOSE REFERRED TO IN ARTICLES 30 AND 34 .
5 CONSEQUENTLY, ALTHOUGH ARTICLE 36 DOES NOT PREVENT SANITARY INSPECTIONS NEVERTHELESS IT CANNOT BE INTERPRETED AS THEREBY PERMITTING THE IMPOSITION OF CHARGES LEVIED ON IMPORTED GOODS SUBJECTED TO THE SAID INSPECTIONS AND INTENDED TO COVER THE COSTS THEREOF .
IN FACT THIS CHARGE IS NOT INTRINSICALLY NECESSARY TO THE EXERCISE OF THE POWER LAID DOWN IN ARTICLE 36 AND IS THUS CAPABLE OF CONSTITUTING AN ADDITIONAL BARRIER TO INTRA-COMMUNITY TRADE .
CONSEQUENTLY THE QUESTION SUBMITTED CANNOT BE ANSWERED WITH REFERENCE TO ARTICLE 36 OF THE TREATY .
THE CLASSIFICATION OF THE DISPUTED CHARGES WITH REGARD TO ARTICLE 22 OF REGULATION ( EEC ) NO 805/68
6 THE PROHIBITION, IN TRADE BETWEEN MEMBER STATES, OF ALL CUSTOMS DUTIES AND OF ALL CHARGES HAVING EQUIVALENT EFFECT REFERS TO ALL CHARGES DEMANDED ON THE OCCASION OR BY REASON OF IMPORTATION WHICH, IMPOSED SPECIFICALLY ON IMPORTED PRODUCTS AND NOT ON SIMILAR DOMESTIC PRODUCTS, ALTER THEIR COST PRICE AND THUS PRODUCE THE SAME RESTRICTIVE EFFECT ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY .
7 SINCE THIS PROHIBITION DOES NOT ADMIT OF ANY DISTINCTION ACCORDING TO THE AIM IN VIEW IN LEVYING THE PECUNIARY CHARGES FOR THE ABOLITION OF WHICH IT PROVIDES, IT ALSO INCLUDES FEES DEMANDED FOR SANITARY INSPECTIONS CARRIED OUT BY REASON OF THE IMPORTATION OF GOODS .
THE POSITION WOULD BE DIFFERENT ONLY IF THE PECUNIARY CHARGES RELATED TO A GENERAL SYSTEM OF INTERNAL DUES APPLIED SYSTEMATICALLY IN ACCORDANCE WITH THE SAME CRITERIA TO DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ALIKE .
8 CONSEQUENTLY PECUNIARY CHARGES IMPOSED ON THE GROUNDS OF THE SANITARY INSPECTION OF PRODUCTS WHEN THEY CROSS THE FRONTIER AND DETERMINED IN ACCORDANCE WITH SPECIAL CRITERIA WHICH ARE NOT COMPARABLE WITH THE CRITERIA EMPLOYED IN FIXING THE PECUNIARY CHARGES IMPOSED UPON SIMILAR DOMESTIC PRODUCTS ARE TO BE CONSIDERED AS CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES .

9 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC, THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE; AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TRIBUNALE DI TRENTO BY ORDER OF 17 MAY 1972, HEREBY RULES :
THE PECUNIARY CHARGES IMPOSED ON THE GROUNDS OF THE SANITARY INSPECTION OF PRODUCTS WHEN THEY CROSS THE FRONTIER, SUCH CHARGES BEING DETERMINED IN ACCORDANCE WITH SPECIAL CRITERIA WHICH ARE NOT COMPARABLE WITH THE CRITERIA EMPLOYED IN FIXING THE PECUNIARY CHARGES UPON SIMILAR DOMESTIC PRODUCTS, ARE TO BE CONSIDERED AS CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES .