JUDGMENT OF 5. 7. 1978 — CASE 137/77 CITY OF FRANKFURT-AM-MAIN v NEUMANN

In Case 137/77 Reference to the Court under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht for a preliminary ruling in the action pending before that court between:

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Observations of the plaintiff in the main action

Observations of the defendant in the main action

Observations of the Commission

III — Oral procedure

Decision

General considerations

The first question

The second question

Costs

I —. Facts and procedure

1. Are Article 12 (1), (7) and (8) and Articles 23, 24 and 26 of Council Directive No 72/462/EEC of 12 December 1972 (Official Journal, English Special Edition 1972 (31 December); Journal Officiel L 302, p. 28) applicable by analogy to the importation of game, with the result that the Member States are entitled or obliged to carry out health inspections and may impose charges for such inspections?

2. After the introduction of the Common Customs Tariff by Regulation (EEC) No 950/68 of the Council of 28 June 1968 (Official Journal, English Special Edition 1968 (I), p. 275) may national charges still be increased to the extent of the general rise in costs?

II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III —. Oral procedure

1. By an order of 16 September 1977, which was received at the Court on 16 November 1977, the Bundesverwaltungsgericht requested the Court of Justice to give a preliminary ruling under Article 177 of the Treaty on the following questions:

2. Those questions are referred in the context of a dispute between the administrative authorities of the City of Frankfurt-am-Main and an undertaking importing game (red deer, roe deer and wild boar) from third countries which calls in question the compatibility with Community law of charges imposed by those administrative authorities in respect of a health inspection carried out on that meat in January 1975.

3. It appears from the statement of grounds of the order making the reference that the question asked relate to imports of meat on the assumption that the meat does not come within a common organization of the agricultural markets.

4. These points are to be taken into account in answering the questions asked.

5. Council Directive No 72/462 of 12 December 1972 (Official Journal, English Special Edition 1972 (31 December); Journal Officiel L 302, p. 28) on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries provides for the organization of a uniform health inspection, the detailed rules for which are to be established by the Council, the Commission or the Member States, as the case may be.

6. In view of the fact that Directive No 72/462 concerns only health inspections upon importation of bovine animals and swine and fresh meat of certain domestic animals, but does not mention game, the national court has raised the question whether that derogation is applicable by analogy.

7. Before deciding the question whether those provisions are applicable by analogy, it must be considered whether they were already applicable at the time of the importation at issue and could be relied upon by the administrative authorities of the Member States in order to justify the imposition of charges.

8. In order to enable those derogations to take effect, the inspections of which they are designed to cover the costs must have been organized in accordance with the directive and applied by the Member States concerned.

9. A large number of the provisions of the directive cannot be applied until the necessary measures have been taken by the Community authorities, particularly in the context of the procedure for obtaining the opinion of the Standing Veterinary Committee which is referred to in Articles 29 and 30 of the directive.

10. Since at the date of this judgment Article 12 (1), (7) and (8) and Articles 23, 24 and 26 of Council Directive No 72/462 have not yet taken effect in the areas to which they expressly refer, there can be no question of applying those provisions by analogy.

11. Moreover, even if Articles 12 (8), 23 (4) and 26 of Directive No 72/462 were to be regarded as being applicable at the beginning of 1975, the date of the importation at issue, application of those provisions by analogy should be rejected.

12. Therefore Directive No 72/462 is not a particular application of a general principle of Community law to the effect that any inspection at the external frontiers of the Community may give rise to the imposition of charges fixed by Member States, but merely an application of the derogation made possible by Article 2 (2) of Regulation No 827/68 from the prohibition laid down in that article on the levying of charges having an effect equivalent to customs duties in trade in the products concerned.

13. It follows from the general considerations above that the second question has become purposeless.

14. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

On those grounds, THE COURT, in answer to the questions submitted to it by the Bundesverwaltungsgericht by an order of 16 September 1977, hereby rules: