DONNER v NETHERLANDS STATE

Transcription

1 DONNER v NETHERLANDS STATE 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 P. Heim Registrar U. Everling President of the Third Chamber OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 11 NOVEMBER 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, 1 Translated from the French. 37

2 OPINION OF MRS ROZÈS CASE 39/82 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 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. Ill 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. 38

3 DONNER v NETHERLANDS STATE 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 (Official Journal 1978, L 366, p. 33)) on the tax reliefs to be allowed on the importation of goods in small consignments of a non-commercial 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. Valueadded 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 1. The 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 39

4 OPINION OF MRS ROZÈS CASE 39/82 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 above-mentioned 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 re-sealing 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 in Case 159/78 Commission v Italy [1979] ECR 3266.) 2. In 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". 3. The 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 The resulting convention was amended by the additional protocols signed in Tokyo in 1969 and in Lausanne in 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 letter- 40

5 DONNER v NETHERLANDS STATE post 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: (b) 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. 4. It 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 valueadded 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 valueadded 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 That case was 41

6 OPINION OF MRS ROZÈS CASE 39/82 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. 42