C-39/82 Donner

charge having an effect equivalent to 3. The prohibition laid down in Article customs duties. Such a tax is part of 13 of the EEC Treaty is to be the common system of value-added interpreted as extending to a postal tax whereby a uniform taxation charge for the presentation for procedure has been established customs clearance of a postal parcel covering systematically and according sent from another Member State, to objective criteria both transactions which is invoiced to the addressee in carried out within the territory of the connection with the completion of Member States and import trans turnover tax formalities, if it consti actions. That tax must therefore be tutes a pecuniary charge imposed regarded as an integral part of a unilaterally and does not represent general system of internal taxation for payment for a service actually the purposes of Article 95 of the rendered of an amount commensurate Treaty. with that service.

In Case 39/82

R E F E R E N CE to the Court under Article 177 of the EEC Treaty by the Kantongerecht [Cantonal Court], The Hague, for a preliminary ruling in the proceedings pending before that court between

ANDREAS MATTHIAS D O N N E R, Groningen,

and

T HE NETHERLANDS STATE (State Administration for Postal, Telegraphic and Telephone Services), The Hague,

on the interpretation of Article 13 of the Treaty,

T HE C O U RT (Third Chamber)

composed of: U. Everling, President of Chamber, Lord Mackenzie Stuart and Y. Galmot, Judges,

Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following JUDGMENT

Facts and Issues The facts of the case, the course of the procedure and the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities may be summarized as follows:

I — Facts and procedure

The plaintiff in the main proceedings, Mr Donner, ordered numerous books from a number of publishers in the Federal Republic of Germany and elsewhere in the Common Market. The books were sent to him by post, in 16 batches, approximately between 16 July 1979 and 13 January 1981. Since the value of each consignment exceeded a specified amount, value-added tax was payable upon importation. The customs declarations were not made by Mr Donner himself but by the State Administration for Postal, Telegraphic and Telephone Services [hereinafter referred to as "the Postal Administration"], either on its own initiative or upon return by Mr Donner of the form provided for that purpose attached to the notice of arrival of the postal packet in question, instructing the Postal Administration to make the declaration.

Subsequently, Mr Donner was asked to pay not only the sums paid to the revenue authorities by the Postal Administration in respect of value-added tax but also the sums charged by the Postal Administration for its own account in respect of "inklaringsrecht" [customs clearance charge] and "commissieloon" [commission]. Those sums total HFL 85.30.

Mr Donner, who is of the opinion that the collection of those sums by the Netherlands Postal Administration is a measure equivalent to the levying of customs duty and thus infringes Article 13 of the EEC Treaty, brought an action before the Kantongerecht for the recovery of sums which were paid when not due.

By decision of 8 January 1982, which was received at the Court on 1 February 1982, the Kantongerecht stayed the proceedings in order to submit the following question to the Court for a preliminary ruling in accordance with Article 177 of the EEC Treaty:

"Does the prohibition of charges having an effect equivalent to customs duties within the meaning of Article 13 of the Treaty establishing the European Economic Community extend to sums charged by the Netherlands State Administration for Postal, Telegraphic and Telephone Services:

(a) In respect of customs clearance charges required of the addressee of a consignment of goods (books) which are sent from another Member State by post to the addressee, a resident of the Netherlands, in return for presenting the goods for customs clearance, a procedure which is necessary for the charging of turnover tax;

(b) In respect of commission which is charged to the addressee for supplying the fiscal authorities with an import declaration in respect of the goods at his request or at least on his behalf?

In this connection the following points are to be noted:

Grounds

1On the importation into the Netherlands of books above a certain value Netherlands turnover tax becomes payable and is charged when the import declaration is made.

2The State Administration for Postal, Telegraphic and Telephone Services acts in this regard as a carrier pursuant to one or more agreements governed by private law.

3The State Administration for Postal, Telegraphic and Telephone Services has no monopoly for the carriage of this class of goods; the sender of goods from outside the Netherlands may therefore choose another means of transport to the Netherlands, in which case the State Administration (naturally) makes no charge.

4The addressee may, if he prefers, himself attend to the import declaration in respect of goods consigned to him and carried by the State Administration for Postal, Telegraphic and Telephone Services, in which case the Administration requires neither customs clearance charges nor commission.

5Where no turnover tax is payable the State Administration requires neither customs clearance charges nor commission.

6 In no case may the State Administration compel the addressee to pay customs clearance charges or commission against his will.

Except in the case described in paragraph 4 the goods are not handed over in the event of refusal to pay".

The judgment making the reference was received at the Court Registry on 1 February 1982.

22

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mr Donner, the plaintiff in the main proceedings, by the Netherlands State, the defendant in the main proceedings, represented by E. Droogleever Fortuijn, of the Bar of The Hague, by the Government of the United Kingdom, represented by J. D. Howes, Treasury Solicitor's Department, and by the Commission of the European Communities, represented by Thomas van Rijn, a member of its Legal Department.

Upon hearing the report of the Judge Rapporteur and the views of the Advocate General, the Court decided, by order of 29 June 1982, to assign the case to the Third Chamber pursuant to Article 95 of the Rules of Procedure and to open the oral procedure without any preparatory inquiry.

.The Court nevertheless put certain questions to the Netherlands Government.

II •— Observations of the parties

Mr Donner observes that the Postal Administration which is vested by law with a State monopoly for the carriage of letters for payment and has authority to transport parcels does not constitute a separate legal person. The conditions governing the services which it provides are laid down by law and by general administrative decisions.

The customs clearance charge in question is fixed by the Director General of the Postal Administration pursuant to a royal decree of 6 August 1959 issued pursuant to the laws governing postal services and to the relevant international conventions. Those conventions em power, but do not oblige, the States which are signatories thereto to make a charge for customs clearance or collect a commission.

The fact noted by the court making the reference that, under Netherlands law, the Postal Administration acts pursuant to contracts governed by private law is not relevant to the question whether the charges at issue fall within the scope of Article 13 of the EEC Treaty, since those charges remain the same regardless of how they are classified by the law of the various Member States. What does appear to be important, on the other hand, is the fact that those contracts were governed by a general administrative decision. The Postal Administration does not behave like a private transport undertaking which, because the task to be accomplished takes practically the same time, collects its commission even if no tax is payable. The fact that the Postal Administration does not levy a charge in those circumstances emphasizes the fact that the collection of the charges in question is merely a consequence of the obligation to pay value-added tax.

Even though the monopoly for handling letters does not extend to parcels, the addressee is unable to influence the method of dispatch. In international trade the sender always has packages of books delivered by post.

The possibility of the addressee's making the declaration himself does exist but in practice parcels are delivered to the addressee together with a note of the kind produced by Mr Donner (notice concerning tax and other charges, of 8 March 1982 — value-added tax HFL 4 — customs clearance charge and commission HFL 8.10).

Member States are still in a position to maintain certain obstacles to trade within the framework of a national taxation system but the maintenance of such obstacles is strictly limited and the levying of charges in respect of the related administrative costs is prohibited.

In this case, the disputed charges are levied in connection with value added tax and are collected by the State. The postal authorities act as assistants to the customs authorities rather than on behalf of the addressee and the disputed charges represent payment for the administrative action taken by the State in order to collect the turnover tax payable.

Mr Donner suggests that the view that the Postal Administration should be assimilated to a private carrier should be regarded with due scepticism. The duty of the Postal Administration to carry parcels and the tariffs and maximum fees derive from international conventions and from national legislation and the receipts form part of the State revenue.

The possibility of the addressee's having the books sent by other means and of his making the declaration himself are not real alternatives. The Postal Administration has a de facto monopoly for parcels because of its communication network and its tariffs.

For customs operations, the Postal Administration has established a fixed procedure by agreement and in collaboration with the customs authorities. Anyone wishing to depart from that procedure would arouse great surprise. By seeking to go his own way, any such person would find the alternative very burdensome.

The view of the Postal Administration is that it provides a service which deserves to be paid for but in the opinion of the plaintiff in the main proceedings the dispute should be looked at from another angle. As a consumer and trader he must resign himself to accepting the obstacle which the levying of turnover tax represents, but objects to the fact that the costs in respect of such collection are passed on to him. The State in the person of the Postal Administration is in fact asking the taxpayer to pay the costs incurred by the State in the person of the revenue authorities, instead of securing reimbursement by means of a set-off arrangement with the revenue authorities.

Mr Donner concludes by asserting that compulsory payments such as the amounts levied by the Postal Administration and referred to as "customs clearance charges" and "commission" constitute, in so far as they relate to transport between Member States, charges contrary to the prohibitions contained in Community law.

The Netherlands Government states in the first place that the Postal Administration acts as a transport undertaking and that this case is not concerned with the monopoly on the carriage of letters. This case is concerned with the transport of parcels, which is not the subject of a monopoly and is also carried on by various types of transport undertakings. When a parcel is sent from the Federal Republic of Germany to the Netherlands, it is transported at the request of the sender, who concludes a contract of carriage with the German postal administration. The German postal administration undertakes to have the parcel delivered to the addressee. The Netherlands Postal Administration discharges some of the obligations of the German postal administration pursuant to agreements entered into between the postal administrations. The transport operation does not involve contractual relations with the addressee. The contract of carriage is a contract governed by private law.

24

The sender is not under any obligation to enter into a contract of carriage with a postal administration. Other ways of sending a parcel to the addressee are available to him. The choice of the method of transport is left to the sender, although the sender usually exercises that choice by agreement with the addressee. The purchaser undertakes to bear the costs of carriage and related charges. This may be done tacitly where the purchaser leaves the seller to choose the means of transport.

The conditions on which the Postal Administration concludes a contract are laid down in the Ottawa Universal Postal Convention, as amended by the Lausanne Universal Postal Convention, in the Aanwijzingswet PTT 1954 [Law defining the duties of the postal administration], the Postwet 1954 [Law governing the postal service], the Internationaal Postbesluit 1959 [Order on the international postal service] and the Internationaal Postbeschikking [Decision on the international postal service]. The provisions which are important to this case are Articles 5 and 7 of the Internationaal Postbesluit and Articles 13 and 25 of the Internationaal Postbeschikking. Those provisions lay down standard conditions which determine the content of the contract of carriage, which does not prevent the carriage from being carried out pursuant to an agreement freely entered into with the sender.

The import of goods into the Netherlands from a Member State of the European Community does not give rise to import duty but to turnover tax, payable at the same rate as for purchases contracted on national territory, a situation which conforms with Community law. Turnover tax is levied on the imported goods according to the procedure for the collection of import duties. The goods must be declared. The declaration must be checked. The revenue authority determines the amount of the turnover tax and collects that tax at the time of importation. That task is the responsibility of the customs and excise administration.

The law provides that import duty is payable by the person who makes the declaration, who may be the importer or the addressee or the transport undertaking.

Depending on what method of transport is chosen, the taxation authority allows the persons concerned various possibilities for the making of the declaration and verification thereof; this may be done at an office of the tax administration, (principally in the case of road transport), at a customs clearance post of a private undertaking, designated and recognized by the revenue administration, at a customs clearance post of the Netherlands railway company, at a "warehouse" (customs clearance post) of the Postal Administration or, finally, by customs officials on the train. The revenue administration makes no charge for taking the declaration, checking the information contained therein and collecting the turnover tax where such tax is due, but that does not however mean that no payment may be demanded for the storage of the goods and their presentation to the customs authorities by the transport undertaking concerned.

After describing the procedures applied to the import of goods transported by forwarding agents (international carriers), by the Netherlands railways and by private individuals travelling by train, the Netherlands Government explains the customs clearance procedure for goods carried by the Postal Administration. The Postal Administration takes the goods to its warehouse, which is a customs clearance post managed by it. The Postal Administration keeps the goods there until the customs authorities authorize their importation. The Postal Administration informs the addressee that a parcel has arrived for him and that he must make an import declaration in respect of it. The notice specifies that the declaration may be made in two ways :

(a) by the addressee himself;

(b) by the addressee's asking the Postal Administration to make the declaration on his behalf.

If the addressee chooses to make the declaration himself he must go to the import duty collection office and declare the goods there and pay the tax due. Armed with the forms obtained from the collector, the addressee must go to the Postal Administration's customs clearance office where the customs authorities examine the consignment. If everything is in order, the parcel is handed to the addressee. In such a case the Postal Administration makes no charge for customs clearance or commission. Nor is any charge made for the services of the collector or the customs authorities.

If the addressee asks the Postal Administration to make the declaration, he must do so by making a statement to that effect on the form notifying him of the arrival of the parcel, and must indicate inter alia the type of goods and their value. The Postal Administration then makes the import declaration by filling in the required form and presenting it to the customs officer at the customs clearance office. The Postal Administration pays the turnover tax due. The customs authority checks that the declaration conforms with the goods, for which purpose the Postal Administration may, if necessary, have to open the package and seal it again after checking, after which the parcel may, if approved, be imported. The Postal Administration takes it to the addressee but delivers it to him only against payment by the addressee of the turnover tax and costs. The costs in question are the customs clearance charge, that is to say the payment for storage of the goods with a view to the customs inspection (at present HFL 3.40 per parcel), and the commission, that is to say the payment for the declaration (at present HFL 4 per parcel). No charge is made for the services of the collector or of the customs authorities. The turnover tax collected by the Postal Administration is paid to the revenue administration on the basis of a monthly statement.

The customs authorities obtain no profit from the action taken by the Postal Administration and the customs clearance charges and commission are not the subject of any set-off between the Postal Administration and the customs authorities. The latter never make the import declaration themselves; they receive the declaration and check it. The customs authorities facilitate the making of the declaration by setting up customs offices in the immediate vicinity of the offices of the Postal Administration and of the railways. Nor does this system give rise to any reduction in the costs of collecting turnover tax.

The legal basis of the customs clearance charge is the contract of carriage. The international transport operation agreed upon between the sender and the Postal Administration automatically implies that the goods must be held available for the purpose of a customs inspection. The conditions of the contract of carriage provide that the sender is to pay for the costs of transport at the time of dispatch but that the customs clearance charge is invoiced by the Postal Administration to the addressee when the parcel is presented. The addressee is not a party to the contract of carriage. He is not therefore obliged to pay anything.

26 The legal basis for the invoicing of the commission is the instructions of the addressee. The Postal Administration makes the import declaration and pays the turnover tax at the request of the addressee against payment of the agreed charge. The addressee is not obliged to ask the Postal Administration to make the declaration. He may make the declaration himself and pay the turnover tax.

In many cases, the Postal Administration does not send a notice of arrival to the addressee but makes the import declaration on its own initiative. By paying the customs clearance charge and the commission when the parcel is presented, the addressee ratifies the declaration made by the Postal Administration and by so doing confirms the instructions presumed by the-Postal . Administration. The addressee is not however obliged to agree to that procedure; he may refuse the parcel when it is delivered and in such circumstances no amount will be payable by him.

In the case of the parcel sent to Mr Donner on 21 September 1979, the Postal Administration acted in that way. Subsequently it sent Mr Donner a notice of arrival of every parcel and Mr Donner asked the Administration to make the import declaration.

It is not correct to conclude from the foregoing that addressees are in practice obliged to pay the customs clearance charge and the commission. A service is provided which is commercially advantageous and is used voluntarily. Thus, the action taken by the Postal Administration obviates the addressee's having to make the import declaration and complete the administrative formalities and for those services it makes a minimal charge which does not cover the real costs. The addressee need do nothing more than pay to the postman on his round, when taking delivery of the parcel, the turnover tax and the minimal payment mentioned above. Undertakings often make the declaration themselves.

Considering the question submitted to the Court, the Netherlands Government observes in the first place that the provision of the service rendered by the Postal Administration is closely linked with the collection of the turnover tax upon importation. The provision of that service conforms with the policy of the European Commission.

The Netherlands Government cites the decision of the representatives of the governments of the Member States of 18 December 1978 (Official Journal L 6, 10. 1. 1979, p. 26) to abolish charges for customs presentation on goods exempt from turnover tax and excise duties on importation, the Commission's programme for the simplification of procedures (Official Journal C 244, 24. 9. 1981, p. 4) and Council Directive 74/651 on tax reliefs (Official Journal L 354, 30. 12. 1974, p. 57). In view of those provisions, it may be concluded that the obstacles arising from the collection of value-added tax at the frontier can only be eliminated by the harmonization or laws.

As regards the judgments referred to by Mr Donner, the cases to which those judgments relate display the common feature that the importer was unable to avoid the charges in any way and that they were not payments (remuneration) for a service specifically rendered to the importer or to the exporter.

The customs clearance charge and the commision were invoiced to Mr Donner for very specific services which had been rendered to him: the keeping of the books addressed to Mr Donner with a view to customs inspection and the import declaration made by the Postal Administration at Mr Donner's request. Mr Donner was under no obligation to pay a customs clearance charge and commission to the Postal Administration; he could have agreed with the booksellers that a different method of transport was to be used. He could have gone personally to fetch the books or have them delivered by a friend. He could have made the import declaration himself.

This case is comparable with the judgment of the Court of 25 October 1979 concerning customs agents, in which the Court held that the Italian legal requirements relating to the services provided by approved customs agents were not quantitative restrictions on imports because it was open to the owners to have the declaration made by various persons other than customs agents, and the owners could even have made them themselves.

The Commission is also of the opinion that it is not contrary to Community law for the Postal Administration to make a charge for the accomplishment of import formalities, as appears from answers which it gave to written questions submitted by Members of the European Parliament.

The Netherlands Government considers that the question submitted by the Kantongerecht, The Hague, should be answered in the negative.

The United Kingdom considers that it is lawful for a Member State to require that goods be presented for customs clearance since such presentation is necessary for Community purposes in order to implement the decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (Official Journal, English Special Edition, 1970 (I), p. 224). The addressee of a parcel, may, if he so wishes, clear it through customs himself and make thè fiscal declaration or he may determine by contract that the carrier is to do so, in which case the carrier will wish to be paid for his efforts. Article 13 of the EEC Treaty, which does not produce effects between subject and subject, is no obstacle to the conclusion of such a contract.

Case 84/71 Marimex [1972] ECR 89 and Case 8/70 Italy [1970] ECR 961 must be distinguished from this case where the services are performed by the carrier and not by an administrative agency of the Member State, exclusively on behalf of the addressee.

The Court has recognized that charges may be permissible to cover the costs of inspections expressly prescribed by Community legislation (Case 46/76 Bauhuis v Netherlands [1977] ECR 5) or within the framework of an international convention intended to encourage free import into the countries of destination, provided that such charges do not exceed the cost of the inspections (Case 89/76 Commission v Netherlands [1977] ECR 1355).

The Member States are all parties to the Universal Postal Convention signed at Rio de Janeiro on 26 October 1979. The conveyance of postal packages in accordance with internationally agreed procedures facilitates, rather than hinders, intra-Community trade. Article 38 of that Convention, read in conjunction with Article 24, authorizes

28 the making of a special charge where the postal administration of a State which is a party to the Convention submits an item to customs control in the country of destination.

According to the case-law of the Court, charges may also be made by a Member State for services rendered to an importer in an amount proportional to the value of those services. There can be little doubt as to the proportionality of charges which have been internationally agreed.

The United Kingdom concludes that the question submitted should be answered in the negative.

The Commission examines in the first place the international provisions and the manner in which they are given effect within the Netherlands legal system.

When the disputed charges were collected the law in force was the Lausanne Universal Postal Convention of 5 July 1974 and the arrangement regarding postal packets concluded at the same time. Those instruments provide for the levying of a charge for the presentation of goods for customs clearance and fix the maximum amounts for packages subject to customs control in the country of destination.

The Commission analyses the legal provisions in force in the Netherlands concerning the powers of the Postal Administration and gives the text of Article 7 (2) of the Internationaal Postbesluit and of Article 13 (2), (3) and (4) of the Internationaal Postbeschikking adopted by the Director General of the Postal Administration.

The Commission then analyses the situation in the other Member States. The majority of the Member States have introduced a charge for the presentation of goods for customs clearance but draw a distinction between letters and postal packets. In all those countries there is a sole charge; no distinction is made like that in the Netherlands between the customs clearance charge and commission. In all Member States the charge is collected only if the consignment or postal packet is subject to value-added tax.

In the Federal Republic of Germany no charge has been made since 1 July 1982. Ireland makes no charge of that type. The Commission has been unable to obtain information on the situation in Luxembourg or Greece.

In its consideration of the question, the Commission examines in the first place the distinction made by the national court between the customs clearance charge and the commission and goes on to ask whether the customs clearance charge and the commission should not be regarded as two elements of the same charge.

The first condition to be satisfied for the classification of a charge as a charge having an effect equivalent to a customs duty is that it must be unilaterally imposed by the State or by an agency of the State. According to the Commission it is of little importance whether the invoicing of the customs clearance charge and the commission are regarded as resulting from a contract governed by a private law or from a measure producing effects governed by public law. In order to determine whether a charge is a charge having an equivalent effect, it is sufficient to determine whether the ultimate authority to invoice a specified amount in a given situation derives from a measure of public law. Were it otherwise, a State might impose charges on international trade by means of a contract governed by private law. In this case, it is certain that the legal basis is a matter of public law. The authority of the Postal Administration to invoice the customs clearance charge and the commission derives from a royal decree, based on statutory provisions. The charge for the presentation of goods for customs clearance is the subject of international agreements whereby the States parties thereto have given a commitment not to exceed certain maximum charges.

Mention may also be made of the decision of the representatives of the governments of the Member States, meeting within the Council, on 18 December 1978 whereby the Member States undertook to ensure that certain charges for the presentation of goods for customs clearance would no longer be levied.

A charge having equivalent effect is one which is imposed and is therefore a mandatory charge for any party who is subject to it and payment of it cannot be avoided.

The Commission does not support the argument of the Postal Administration to the effect that the applicant in the main proceedings could have avoided paying the customs clearance charge and the commission by choosing another means of transport. In its opinion, a charge may be regarded as a charge having an equivalent effect if it applies only to imports made by means of a particular type of transport, as for example transport by post, without affecting other imports.

Nevertheless, it is recognized that in fact neither the customs clearance charge nor the commission is collected when the addressee of a consignment by letter-post or a parcel chooses to make the import declaration himself. The Commission considers for that reason that the levying of the charge and of the commission by the Postal Administration cannot be regarded as a charge having an effect equivalent to a customs duty.

Neither does the Commission uphold the argument of the plaintiff in the main proceedings to the effect that the addressee is rarely allowed to choose between making the import declaration himself and entrusting that formality to the Postal Administration and that in such circumstances the charge is in practice effectively imposed. As the defendant has explained, the addressee is under no obligation to agree to that situation. He may refuse to have the parcel delivered by the Postal Administration and in such case would no longer be liable to the charge or the commission. He could then make the import declaration himself.

In case the Court does not concur with that analysis, the Commission considers whether the charges may be regarded as remuneration for services rendered. The Court has applied particularly strict criteria to that concept. There is absolutely no question of avoiding the prohibition if remuneration is required for a service which is of benefit to trade as a whole. A charge must on the other hand be regarded as remuneration for a specific and real benefit accruing to an importer in respect of the imported goods. Moreover, the remuneration must be proportionate to the service but need

30

not necessarily correspond to the costs incurred by the administration.

In the light of that case-law, the Commission doubts whether the customs clearance charge, seen in 'isolation, may be regarded as remuneration for a service actually rendered to the importer. The charge is payable in respect of activities connected with making the goods available with a view to customs inspections, that is to say the Postal Administration must convey the goods to a depot (customs warehouse), keep them there until completion of the formalities and open and re-seal the parcels in the presence of the customs officer. Those activities are necessary for the collection of value added tax on behalf of the State. No actual advantage accrues to the importer from them. The right to market the goods in the Member States may not be regarded as an advantage of that kind.

In view of the fact that the customs clearance charge is not levied if the person concerned chooses to make the import declaration himself or if the parcel is exempt from value-added tax, it is difficult to maintain that the fee constitutes remuneration for a service rendered. Why should the charge be made in one case and not in another, if the "service" is the same?

The commission is charged for action taken by the Postal Administration, that is to say the making of the import declaration and completion of the other formalities, in particular the payment of the value-added tax. The Commission considers that those activities may be regarded as services effectively rendered to the importer. Otherwise, the importer would actually have to attend personally at the revenue-collection office in order to complete the formalities and then at the Postal Administration warehouses in order to fetch his parcel. Where that action is taken by the Postal Administration the latter may demand payment proportionate to the advantage accruing to the importer.

Despite the distinction made in the Netherlands, the question may be asked whether the customs clearance charge and the commission do not in fact constitute a single charge. In all the other Member States, there is only one charge which, by reference to international rules, covers all the activities connected with the import declaration in respect of the goods.

In such a case, it is necessary to consider to what extent the aggregate amount of the customs clearance charge and of the commission corresponds to the advantage accruing to the importer from the fact that the Postal Administration completes the fiscal formalities for him.

The Commission draws attention to the fact that, in its opinion, the commission (or the customs clearance charge and the commission taken together) may be regarded as constituting remuneration for a service rendered only if fiscal formalities must actually be completed, that is to say if the product in question is not exempt from value-added tax.

The Commission proposes that the Court answer the questions submitted by the Kantongerecht as follows:

"The amounts charged by the Netherlands State Administration for Postal, Telegraph and Telephone Services by way of a fee for administrative formalities upon importation and commission, invoiced to the addressee of a consignment of goods (books) sent from another Member State, by post, to an addressee residing in the Netherlands, do not fall within the prohibition of charges having an effect equivalent to customs duties referred to in Articles 9, 12 and 13 of the Treaty, provided that those amounts are not payable if the addressee himself makes the import declaration in respect of the goods."

Reply of the Netherlands Government to the questions put by the Court

In most cases the Postal Administration has sufficient information to make a customs declaration in respect of a package of books without having to involve the addressee, because every consignment of books which crosses a frontier is accompanied by a form and a customs declaration on which the sender indicates the content and the value of the parcel. As a general rule, the invoice accompanies the consignment and the Postal Administration is empowered to open the parcel. If the invoice is not attached, the Postal Administration may nevertheless declare a flat-rate value of HFL 20 per kg gross weight pursuant to an order of the Secretary of State for Finance.

If the Postal Administration docs not have the necessary information, the notice of arrival is sent to the addressee who provides that information.

If the addressee makes the customs declaration himself he must go personally to the customs clearance office so that a customs officer may carry out the inspection. If the customs officer ascertains that either the content or the value of the goods, or both, do not correspond to the declaration, he questions the declarant to whom the goods are addressed so as to determine what action should be taken regarding the false declaration. For that reason, it is necessary for the addressee to be present — the Postal Administration cannot give explanations in his stead when the inspection is carried out.

If the Postal Administration itself makes the declaration and if it then appears upon inspection that the declaration has not been correctly made the Postal Administration is deemed not to have committed any offence and the only consequence is a fresh calculation of the value-added tax.

There are no circumstances in which the Postal Administration demands payment of a customs clearance charge without demanding payment of the Commission or vice versa.

Ill — Oral procedure

At the sitting on 7 October 1982 the Commission, represented by Thomas van Rijn, acting as Agent, presented oral argument.

The Commission expressed its doubts as to whether in practice a private individual has any choice, in view of the fact that the Postal Administration delivers parcels directly to the addressee, without first sending a notice of arrival. In practice, the charge may be said to be compulsory.

In addition it might be asked whether it is really necessary for a private individual who wishes to make the declaration himself to fill in such complicated forms, when all the details required are already included in customs document C 2/CP 3, entitled "Customs Declaration". Moreover the declaration made by the postal authorities is much less complicated and amounts to only one line. Such considerations make it impossible to suggest that a service has been rendered. It is necessary for someone to be present when a parcel is opened and re-sealed only in the very small number of cases where parcels are actually checked, whilst the storage of parcels awaiting the completion of formalities is merely a normal step in international transport and does not amount to a service rendered.

The Commission asked the Court to distinguish in its decision between the situation in the Netherlands and that in the other Member States.

The Advocate General delivered her opinion at the sitting on 11 November 1982.

Decision

1 By judgment of 8 January 1982, which was received at the Court on 1 February 1982, the Kantongerecht [Cantonal Court], The Hague, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 13 of the Treaty so as to enable it to decide whether the collection by the Netherlands Administration for Postal, Telegraphic and Telephone Services [hereinafter referred to as "the Postal Administration"] of charges in respect of customs clearance and commission on books imported from another Member State is compatible with the Treaty.

2 The question was raised in the course of an action brought by a private individual against the Postal Administration. The plaintiff in the main proceedings ordered several parcels of books from certain suppliers in other Member States and became liable for the payment of turnover tax (value-added tax) on those goods. The Postal Administration declared the goods for customs purposes and paid the sums due in respect of value-added tax either on its own initiative or after sending a notice of arrival to the addressee, in which the latter was asked whether he wished the Postal Administration to complete the formalities or whether he wished to do so himself. When the parcels were delivered to his home the plaintiff in the main proceedings had to pay the postman not only the sums paid to the revenue authorities in respect of value-added tax but also certain sums which the Postal Administration collected on its own account in respect of customs clearance charges and commission.

3 The plaintiff in the main proceedings, who contests the legality of the collection by the Postal Administration of such sums, which he considers to be a charge having an effect equivalent to a customs duty prohibited by Article 13 of the EEC Treaty, brought an action before the Kantongerecht, The Hague, for the recovery of sums which were paid when not due. In his opinion, although Member States are still in a position to maintain certain obstacles to trade within the framework of a national taxation system the maintenance of such obstacles is strictly limited and the levying of charges in respect of the related administrative costs is prohibited. In this case, the disputed taxes are in fact collected by the State in connection with value-added tax. The Postal Administration, which is merely an extension of the State with no separate legal personality and whose relations with the public are subject to legal and other provisions, acts as an assistant to the customs authority rather than on behalf of the addressee and the disputed charges represent payment for the administrative action taken by the State in order to collect the value-added tax payable.

4 According to the Postal Administration, the customs clearance charge and the commission are not charges having an effect equivalent to customs duties. The Administration does not have a monopoly on the transport of parcels and the sender and the addressee of the goods may agree on another means of transport. Even if the parcel were sent by post the addressee might complete the formalities himself and, in that case, no charge would be payable to the Postal Administration.

s Those were the circumstances which led the Kantongerecht to refer the following question to the Court for a preliminary ruling:

"Does the prohibition of charges having an effect equivalent to customs duties within the meaning of Article 13 of the Treaty establishing the European Economic Community extend to sums charged by the Netherlands State Administration for Postal, Telegraphic and Telephone services :

(a) in respect of customs clearance charges required of the addressee of a consignment of goods (books) which are sent from another Member State by post to the addressee, a resident of the Netherlands, in return for presenting the goods for customs clearance, a procedure which is necessary for the charging of turnover tax;

(b) in respect of commission which is charged to the addressee for supplying the fiscal authorities with an import declaration in respect of the goods at his request or at least on his behalf?"

6According to the information provided by the Postal Administration, the customs clearance charge is never invoiced separately from the commission and in the other Member States where the postal administration requires similar payments, only one charge is made, the "charge for customs presentation". The two limbs of the Kantongerechťs question should, therefore, be considered together.

7As the Court has acknowledged on several occasions, in particular in its Bauhuis judgments of 25 January 1977 in Case 46/76 [1977] ECR 5 and of Simmenthal 28 June 1978 in Case 70/77 [1978] ECR 1453, any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense, constitutes a charge haying equivalent effect within the meaning of Article 12 and the succeeding articles of the Treaty, unless it relates to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic and imported products alike, in which case the charge falls within the field of application of Article 95 of the Treaty. Such a charge is not however a charge having equivalent effect if it is the consideration for a service actually rendered to the importer or the exporter and is of an amount commensurate with that service.

8In this case, the collection of turnover tax does not constitute a charge having an effect equivalent to customs duties. As the Court held in its judgment of 5 May 1982 in Case 15/81 Schul[1982] ECR 1409, such a tax is part of the common system of value-added tax whereby a uniform taxation procedure has been established covering systematically and according to objective criteria both transactions carried out within the territory of the Member States and import transactions. That tax must therefore be regarded as an integral part of a general system of internal taxation for the purposes of Article 95 of the Treaty.

9However, in the absence of complete harmonization of the system of value-added tax within the Community, the collection by a State of turnover tax entails certain formalities when goods which are subject to that tax are imported. In those circumstances the question submitted for a preliminary ruling must be interpreted as seeking to establish whether the pecuniary charge which the Postal Administration levies for the completion of those formalities on behalf of the addressee constitutes a charge having an effect equivalent to customs duties on imports within the meaning of Article 13 of the Treaty. It is therefore necessary to determine in the first place whether the charge is imposed unilaterally.

10The Postal Administration contended first of all that the sender and the addressee were in a position to choose another means of transport for the goods in question within the Community. That argument is unacceptable. In view of the dominant position of the postal authorities in all the Member States, their close collaboration with each other within the framework of international agreements and the resulting service facilities, the possibility of using another means of transport cannot be seriously regarded as a realistic economic alternative for a single consignment of goods of low value to a private individual.

11In the second place, the Postal Administration referred to the possibility of a private individual's completing the requisite postal formalities himself. A charge having equivalent effect cannot be said to exist if such a possibility is indeed open to users, provided that it constitutes a real alternative. In that respect, it should be noted that the Postal Administration's argument to the effect that a private individual may refuse to accept delivery, send the postman and the parcel away and make a declaration himself which would entail cancelling the declaration already made by the Postal Administration, would seem to ignore the realities of daily life. It is thus for the national court to ascertain whether or not the Postal Administration presents the addressee with a fait accompli by completing the above-mentioned formalities on its own initiative before sending him a notice of arrival.

JUDGMF.NT OP 12. I. 1983 — CASK 39/82

i2 If the national court reaches the conclusion that the disputed charge constitutes a charge imposed unilaterally by the Postal Administration, it must further be established whether that charge may be considered to be payment for a service rendered to the addressee and whether it represents an amount commensurate with that service. In order to do so, it may take into account the difficulties which face a private individual who tries to complete the requisite formalities, the efforts made by the Postal Administration and the question whether or not the charge is the subject of an international agreement negotiated by national post administrations.

13In reply to the question referred to the Court by the Kantongerecht it must therefore be stated that the prohibition laid down in Article 13 of the EEC Treaty is to be interpreted as extending to a postal charge for the presentation for customs clearance of a postal parcel sent from another Member State, which is invoiced to the addressee in connection with the completion of turnover tax formalities, if it constitutes a pecuniary charge which is imposed unilaterally and does not represent payment for a service actually rendered of an amount commensurate with that service.

Costs

Costs

H The costs incurred by the Commission of the European Communities and by the United Kingdom, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision as to costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Third Chamber)

in answer to the question referred to it by the Kantongerecht, The Hague, hereby rules:

The prohibition laid down in Article 13 of the EEC Treaty is to be interpreted as extending to a postal charge for the presentation for customs clearance of a postal parcel sent from another Member State, which is invoiced to the addressee in connection with the completion of turnover tax formalities, if it constitutes a pecuniary charge imposed unilaterally and does not represent payment for a service actually rendered of an amount commensurate with that service.

Everling Mackenzie Stuart Galmot

Delivered in open court in Luxembourg on 12 January 1983.

P. Heim R e i s t r ar g U. Everling

President of the Third Chamber O P I N I ON OF M RS A D V O C A TE G E N E R AL R O Z ÈS DELIVERED ON 11 N O V E M B ER 1982 '

Mr President, Members of the Court, The Court has been asked by the Kantongerecht [Cantonal Court]. The Hague, to give a preliminary ruling on the interpretation of Article 13 of the Treaty.

I — The facts are as follows :

Mr Donner, who resides in the Netherlands, had a number of parcels of books sent to him by post from various Member States. Before he was able to take delivery of them, he had to pay the State Administration for Postal, Telegraphic and Telephone Services [hereinafter referred to as "the Postal Administration"], in addition to turnover tax (value-added tax), a specified sum in respect of a "customs clearance charge" and "commission".

Mr Donner was of the opinion that the charging of that sum was contrary to Article 9 et seq. of the Treaty. Those articles prohibit the collection of customs duties on imports and exports and all charges having an effect equivalent to customs duties in trade between Member States. He therefore appealed to the Raad van State, Afdeling Rechtspraak [State Council, Administrative Appeal Section], against the implied refusal of the Postal Administration to amend its invoices.

The Raad van State held on 25 November 1980 that the action which had been brought before it was inadmissible,

Notes

(1) Translated from the French.

OPINION OF MRS ADVOCATE GENERAL ROZÈS

deliverd on 11 November 1982 ¹

Mr President,

Members of the Court,

The Court has been asked by the Kantongerecht [Cantonal Court]. The Hague, to give a preliminary ruling on the interpretation of Article 13 of the Treaty.

I — The facts are as follows:

Mr Donner, who resides in the Netherlands, had a number of parcels of books sent to him by post from various Member States. Before he was able to take delivery of them, he had to pay the State Administration for Postal, Telegraphic and Telephone Services [hereinafter referred to as “the Postal Administration”], in addition to turnover tax (value-added tax), a specified sum in respect of a “customs clearance charge” and “commission”.

Mr Donner was of the opinion that the charging of that sum was contrary to Article 9 et seq. of the Treaty. Those articles prohibit the collection of customs duties on imports and exports and all charges having an effect equivalent to customs duties in trade between Member States. He therefore appealed to the Raad van State, Afdeling Rechtspraak [State Council, Administrative Appeal Section], against the implied refusal of the Postal Administration to amend its invoices.

The Raad van State held on 25 November 1980 that the action which had been brought before it was inadmissible,

In the first place, on the ground that it was premature inasmuch as it referred to an invoice issued after the action was brought; and

In the second place, on the ground that it was directed against a measure governed by civil law and not against an administrative decision as provided for in the Wet Administratieve Rechtspraak Overheidsbeschikkingen [Law on administrative appeals against official decisions].

Mr Donner, therefore, brought an action against the Netherlands State (Postal Administration) before the Kantongerecht, The Hague, claiming repayment of the sums which he had already had to pay and would subsequently have to pay, pending determination of the action, in order to take possession of the books which he had bought between July 1979 and February 1981.

The parties agreed on the wording of the questions to be submitted and by judgment of 8 January 1982 the Kantongerecht asked the Court to give a ruling as to whether the prohibition of charges having an effect equivalent to customs duties laid down by Article 13 of the Treaty establishing the EEC applied to the charge made by the Postal Administration in respect of “customs clearance” and “commission”.

II — The question, thus phrased, would lead to the Court's assessing the compatibility of a national provision with Community law. It is therefore incumbent upon the Court to identify the general problem of interpretation which lies behind it.

The wording of the judgment making the reference shows that the action relates to import formalities in intra-Community trade. The Court must therefore decide whether the Treaty allows the postal authorities of Member States to levy certain charges — however modest — for customs clearance when goods, in this case books, cross frontiers within the Community by post.

III — It should first be noted that although customs duties have been abolished in trade between Member States, national authorities (in practice the customs authorities) continue to levy various charges: value-added tax, taxes on consumption, parafiscal charges and other similar charges.

In particular, the obligations to levy turnover tax (in the form of value-added tax) derives from the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (Official Journal, English Special Edition 1970 (I), p. 224). For the collection of those charges, imported goods must be cleared through customs so that they may be “released for consumption” or subjected to another customs procedure, as the case may be. Customs control remains justified, in particular, where internal taxes are to be collected in accordance with Article 95 of the Treaty and where importation is assimilated to the chargeable event for value-added tax on national goods.

There is, however, an exception to that procedure for consignments of goods which may be imported free of turnover taxes and excise duties. The representatives of the Member States meeting within the Council decided on 18 December 1978 that, in such a case, charges would no longer be levied for the presentation of goods to customs from 1 July 1979 at the latest.

Included after that exemption are small consignments of a completely noncommercial character, dispatched by a private individual, which meet the criteria of Council Directive 74/651 of 19 December 1974 (amended by Directive 78/1034 of 19. 12. 1978 (Official Journal 1978, L 366, p. 33)) on the tax reliefs to be allowed on the importation of goods in small consignments of a noncommercial character within the Community (Official Journal 1974, L 354, p. 57).

Consequently, as Community law now stands, the importation by parcel post of books bought in a Member State by a private individual established in another Member State requires the formality of either a customs declaration or presentation for customs clearance, in other words a natural or a legal person or his agent presents the goods to the customs authorities and agrees that they are to be placed under a specified customs procedure, in this case release for consumption or free circulation. Value-added tax must also be paid in full if the books have not been taxed in the country of origin or in part where the rate of tax in the country of destination is higher than that in the country of dispatch.

Consignments of books by parcel post which enter the Netherlands must therefore, in theory, be accompanied by a customs declaration and an invoice. If the invoice is not attached to the consignment, the exchange-value thereof may be fixed at HFL 20 per kg gross weight, provided that the weight of the consignment does not exceed 10 kg and the customs declaration does not indicate a lower value.

IV —

1The Postal Administration does not however have a monopoly on the carriage of such goods. If the sender chooses another means of carriage, the Postal Administration does not become involved. In those circumstances customs clearance is carried out at the frontier or at ä regional customs clearance centre, generally with the assistance of a customs agent who, of course, charges a fee.

When the Postal Administration intervenes, customs clearance and the accompanying declaration may be dealt with in two ways:

Either the declaration is made by the addressee himself or by another person (natural or legal) on his behalf, in which case no charge is levied;

or else the Postal Administration itself completes the formalities in connection with presentation for customs clearance on behalf of the addressee of the consignment. In the latter case, a specified sum is charged in respect of presentation for customs clearance and commission.

The customs authorities facilitate the making of the declaration by setting up customs offices in the immediate proximity of post offices and railway stations. When the districts covered by those customs offices do not coincide with municipal boundaries, the Postal Administration, for reasons of simplification and rationalization, deals with clearance on its own initiative and discharges the concomitant obligations on behalf of the addressee, and in those circumstances it levies the disputed charges.

However, the fact that in the majority of cases the Postal Administration acts in the stead of the addressee in this way does not make its intervention compulsory. The addressee may, as has already been stated, complete the customs clearance formalities himself, should he so desire.

The fact that an addressee may deal with the formalities personally (or by using an agent) shows that there is no question of a charge or measure imposed by the State unilaterally and the intervention — even intervention without express instructions — of the Postal Administration, which is a public corporation, does not provide sufficient grounds for assimilating the charges which it makes when it carries out the abovementioned operations to charges having equivalent effect within the meaning of Articles 9 and 13 of the Treaty.

If a private individual wishes to make the customs declaration himself, he is required to complete certain operations, such as opening the parcel and resealing it, which employees of the Postal Administration are rarely asked to do. The inspection is, therefore, more thorough when the declaration is made by the addressee or by a private agent than when it is carried out by the Postal Administration. But the latter's intervention may facilitate matters, “because customs officers can work more speedily when dealing with people who are expert in customs procedures and whom they feel they can trust”. (Opinion of Mi-Advocate General Warner of 11. 7. 1977 in Case 159/78 Commission v Italy [1979] ECR 3266.)

2In fact, Mr Donner does not claim that the administrative formalities are incompatible with the Treaty or that intrinsically they have an effect equivalent to a quantitative restriction. Indeed that would be contrary to Commission Directive 70/50/EEC of 22 December 1969 (Official Journal, English Special Edition 1970 (I), p. 17) which states in the preamble thereto that “the formalities to which imports are subject do not as a general rule have an effect equivalent to that of quantitative restrictions and, consequently are not covered by this directive”.

He simply considers, as a trader and a consumer, that such formalities arc not his concern and that if national authorities continue to impose them and the Postal Administration assists in that respect, by acting in effect on behalf of the customs authorities, that is to say the Netherlands State, the resultant cost, if indeed there is a cost, should not be passed on to the addressee.

Other users may be of a different opinion and prefer the required formalities to be carried out by the Postal Administration rather than by them. In its judgment of 26 February 1975, in Case 63/74 Cadsky [1975] ECR 281, paragraph 6 of the decision, the Court accepted that “it is not impossible that in certain circumstances a specific service actually rendered may form the consideration for a possible proportional payment for the service in question”.

3The charge made in respect of customs clearance conforms to the rates agreed within the framework of the Universal Postal Union.

The Union met in Vienna on 10 July 1964. The resulting convention was amended by the additional protocols signed in Tokyo in 1969 and in Lausanne in 1974. The member countries of the Union adopted on 5 July 1974, in a convention and in the regulations for its implementation, common rules applicable to the international postal service and provisions relating to letterpost services. Various agreements were signed on that occasion, one of which relates to parcels sent by post.

Since the Rio de Janeiro Congress of 1979 the following provisions, in particular, have been in force:

Article 37

“The postal administration of the countries of origin and destination shall be authorized to submit letter-post items to customs control, according to the legislation of those countries, and, if necessary, to open them officially.”

Article 38

“Items submitted to customs control in the country of origin or of destination, as the case may be, may be subjected either for submission to customs only, as a postal charge, to the special charge laid down in Article 24 paragraph 1, (m).”

Under the latter provision the special “présentation to customs ebarge” is of eight francs at the most. For each bag, of a maximum weight of 30 kg, containing printed matter for the same addressee, the authorities are to collect a bulk charge not exceeding 10 francs instead of the charge per item.

Article 39

“Postal administrations shall be authorized to collect from the senders or addressees of items, as the case may be, the customs duty and all other fees which may be due.”

According to Article 13 of the agreement concerning parcels sent by post,

“Administrations shall be authorized to collect the following supplementary charges:

...

presentation to customs charge collected by the administration of destination either for submission to customs and customs clearance or for submission to customs only; in the absence of other arrangements, the charge shall be collected at the time of delivery of the parcel to the addressee...”

The charge in question is not to exceed six francs.

4It may be thought that it would be appropriate to introduce an exemption for the importation of books sent by a taxable person established in a Member State to a private individual in another Member State when such goods are subject to value-added tax in the country of exportation and do not exceed a value which is fixed so as to avoid any serious risk of distortion of competition resulting from differences in rates of tax between Member States.

The Commission has, as yet unsuccessfully, proposed to the Council that newspapers, magazines and other periodicals, brochures and books up to a certain value (25 units of account) sent from one Member State to another as small commercial consignments, should benefit from an exemption from value-added tax, which would lead to the removal of postal charges for customs presentation.

However, the removal of those charges is closely linked to abolition of value-added tax itself on such consignments or harmonization of the rates thereof.

The Court was faced with a similar situation in Case 89/76 Commission v Netberlands [1977] ECR 1355, judgment of 12 July 1977. That case was concerned with fees charged for phytosanitary inspections carried out by a Member State in accordance with the International Plant Protection Convention of 6 December 1951 to which all the Member States are parties.

The Court held in paragraph 15 of the judgment that those “inspections do not seem to be unilateral measures hindering trade but rather operations designed to encourage the free movement of goods”.

“In these circumstances”, the Court stated (paragraph 16), “the fees charged for such inspections cannot be regarded as charges having an effect equivalent to customs duties, provided that their amount does not exceed the actual cost of the operations in respect of which they are charged”.

As the question of the amount of the disputed charges has not been submitted to the Court, it has not been taken into consideration.

The form of the customs declaration adopted by the congress held in Tokyo in 1969 for both letter and parcel post is a means of simplifying and accelerating customs formalities. Similarly the national court has not in this case asked the Court whether the amount of the disputed charges is “appropriate”.

V — In reply to the question submitted by the Kantongerecht, The Hague, I consider that the Court should rule as follows:

The prohibition contained in Article 13 of the EEC Treaty does not extend to postal charges for presentation for customs clearance of a postal parcel (of books) sent by a taxable person in one Member State to the home of a private individual in another Member State, which are invoiced to the addressee in connection with payment by the postal authority on his behalf of the value-added tax to which such books are subject.

¹ Translated from the French.