OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 21 FEBRUARY 1978

My Lords,

In this case the Court is once again confronted with questions as to the lawfulness of charges imposed in Italy for the veterinary inspection of imported meat. The case comes before the Court by way of a reference for a preliminary ruling by the Pretore of Alessandria.

On 29 November 1971 and on 11 January 1973, Simmenthal S.p.A., the Plaintiff in the proceedings before the Pretore, imported consignments of Uruguyan frozen beef into Italy. It cleared them through customs at Alessandria. Pursuant to Article 32 of the Italian Statute of 27 July 1934 consolidating Italian public health legislation (the ‘testo unico delle leggi sanitarie’, G.U. No 186 of 9 August 1934, the beef was subjected, on its arrival in Italy, to veterinary inspection. For such inspections charges were prescribed by Statute No 1239 of 30 December 1970 (G.U. No 26 of 1 February 1971). They amounted to Lit 128370 for the first consignment and to Lit 186775 for the second. Those sums were paid by the Plaintiff to the Amministrazione delle Finanze dello Stato, which is the Defendant in the proceedings before the Pretore. In those proceedings the Plaintiff seeks restitution of those sums, on the ground that the levying of them was incompatible with Community law.

The relevant Italian legislation has been considered in a number of cases that have been before this Court. It was, in particular, as Your Lordships will remember, expounded in detail by the Commission in Case 35/76, the first Simmenthal case [1976] ECR 1871, where its history was traced back to 1888. For the purposes of the present case, the point that needs in my view to be emphasized is that under Statute No 1239 of 30 December 1970, the charges for veterinary inspections were set at a flat rate per unit of weight of the goods inspected, in the case of meat of the kind here in question at, so we have been told on behalf of the Plaintiff, Lit 1000 per 100 kgs.

After the hearing of this case in this Court, two events of some importance occured in Italy. The first was the publication of Statute No 889 of 14 November 1977 which abolished prospectively (so I understand) the charges imposed by Statute No 1239 of 30 December 1970 as respects goods imported from or exported to other Member States of the EEC or its Associated States, and enacted consequential provisions, particularly as regards the Italian Budget. The second event was the Judgment of the Constitutional Court of Italy of 2 December 1977 (Sentenza n. 163 of 1977) in UNIL-IT and ARIETE v Amministrazione delle Finanze dello Stato, which declared Statute No 1239 to be, in so far as it related to such goods, incompatible with Community law and consequently with Article 11 of the Italian Constitution. This had the effect (so I understand) of invalidating that Statute, as respects such goods, for the past. In that Judgment the Italian Constitutional Court reviewed, inter alia, the decisions of this Court in Case 29/72 the second Marimex case [1972] ECR 1309, in Case 87/75 the Bresciani case [1976] ECR 129, in the first Simmenthal case (already cited), in Case 21/75 Schroeder v Stadt Köln [1975] ECR 905, in Case 46/76 Bauhuis v Netherlands [1977] ECR 5 and in Case 89/76 Commission v Netherlands [1977] ECR 1355.

The relevant Community legislation is also familiar to Your Lordships. Article 12 (2) of Council Regulation No 14/64/ EEC, on the gradual establishment of a common organization of the market in beef and veal, forbade the levying by Member States of any customs duty or of any charge having an equivalent effect on imports from third countries, other than as provided for by that Regulation itself. That prohibition was repeated in Article 20 (2) of Council Regulation (EEC) No 805/68 of 27 June 1968 (Official Journal L 148 of 28 June 1968) ‘on the common organization of the market in beef and veal’, which superseded Regulation No 14/64/EEC and was in force at the time of both the importations in question in this case. The prohibition in Article 20 (2) was qualified by the words ‘Save as otherwise provided in this Regulation or where derogation therefrom is decided by the Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission’.

In the Schroeder case (already cited), this Court held, following earlier authority, that there was nothing to warrant a different interpretation of the expression ‘charge having equivalent effect’ in Article 20 (2) of Regulation No 805/68 and in the provisions of Community law relating to trade within the Community. The Court accordingly held that ‘pecuniary charges of whatever amount levied for public and veterinary health inspection of products imported from third countries which are determined according to their own particular criteria and which are not comparable to those used to fix any pecuniary charges which might be levied’ — I would interject, validly levied — ‘on similar Community products must be considered as charges having an effect equivalent to customs duties’.

For that purpose it does not matter, in the case of charges imposed unilaterally by a Member State for a compulsory inspection, whether or not they are proportionate to the cost of the inspection, for an inspection imposed in the public interest cannot be regarded as a service rendered to the importer such as to justify his subjection to a pecuniary charge. Indeed, a charge for a compulsory inspection of imported goods can only escape classification as a charge having equivalent effect to a customs duty if it can be regarded as falling within a general system of taxation applying systematically and in the same way to domestic and to imported products (see, for example, the Bresciani case, already cited, at pp. 138-139).

That, in my view, is all the law that is in point so far as regards the first importation here in question.

The Commission however based an argument on Article 9 of Council Directive 64/433 /EEC of 26 June 1964 (Official Journal 2012 of 29 July 1964) ‘on health problems affecting intra-Community trade in fresh meat’. (In this context ‘fresh meat’ is deemed to include frozen meat: see Article 1 (3) of the Directive). The purpose of that Directive was to make a start in the elimination of differences between the health requirements of Member States concerning meat, which differences hindered trade between them. It was parallel to Council Directive No 64/432 /EEC of the same date ‘on animal health problems affecting intra-Community trade in bovine animals and swine’, with which the Court was concerned in Bauhuis v Netherlands (already cited). Article 9 of Directive No 64/433 was in the following terms:

‘If the Community provisions relating to importation of fresh meat from third countries do not apply at the time when this Directive enters into force, or pending their becoming applicable, national provisions relating to imports from those countries shall not be more favourable than those governing intra-Community trade.‘

The Commission's argument was, in a nutshell, that the decisions of the Court in Bauhuis v Netherlands and in Commission v Netherlands (already cited) had shown that charges made by a Member State for a health inspection carried out, not as an unilateral requirement of that Member State, but pursuant to an obligation imposed by Community legislation or by a Convention binding all the Member States, are not to be regarded as having an effect equivalent to a customs duty if their amount does not exceed the actual cost of the inspection. By a parity of reasoning, the Commission submitted, charges made for inspections carried out by a Member State in compliance with Article 9 of Directive No 64/433 should not be considered as equivalent to a customs duty if not exceeding the cost of that inspection.

As to that, a point that was touched