JUDGMENT OF 5. 7. 1978 — CASE 138/77 LUDWIG v FREE AND HANSEATIC CITY OF HAMBURG

In Case 138/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht (Federal Administrative Court) 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 appellant in the main action

Observations of the respondent in the main action

(A) Do the charges at issue constitute charges having an effect equivalent to a customs duty?

I — Consideration for a service actually provided

II — Charges relating to a general system of internal taxation

III — Charges imposed by Community law

(B) At all events the charges at issue come within the exception provided in Article 20 (2) of Regulation No 805/68

Observations of the Commission

III — Oral procedure

Decision

Costs

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

(A). It will first consider whether the charges imposed in respect of health inspections in imports of preserves from third countries are still to be described as charges having equivalent effect, and it will propose that that question should be answered in the negative;

(B). Then, in the event that those charges do have to be classified as charges having equivalent effect, it will consider whether they are justified because they come within the exemption from prohibition provided in Article 20 (2) of Regulation No 805/68.

(A). Do the charges at issue constitute charges having an effect equivalent to a customs duty?

I —. Consideration for a service actually provided

II —. Charges relating to a general system of internal taxation

III —. Charges imposed by Community law

(1). The respondent in the main action states that it follows from the judgments of the Court of Justice of 25 January 1977 (Case 46/76, Bauhuis [1977] ECR 5) and 12 July 1977 (Case 89/76, Commission v Netherlands [1977] ECR 1355) that charges imposed in respect of inspections which are required by Community law do not constitute charges having an effect equivalent to a customs duty in so far as they do not exceed the actual cost of the inspection. The charges in dispute, which are fixed pursuant to the principle of the covering of costs, comply with that criterion.

(2). Since at the time of the importation at issue there were no specific Community arrangements for health inspections on imports of prepared meat from third countries, the question arises whether that legal lacuna should not be filled by the application by analogy of certain provisions of Directive No 72/462.

(3). Starling from the premise — supported by learned writing and case-law — that reasoning by analogy may be employed in interpreting Community law, the respondent in the main action submits that it should be considered whether the Council patently intended the legal consequences of Directive No 72/462 to be extended to a factual situation which the Council did not deal with, and whether such an extension is demanded by the purpose at which the directive is aimed.

(4). The respondent in the main action states that the questions raised by the national court are not concerned with application by analogy of all the provisions of that directive, but only with application by analogy of Article 12 (1), (7) and (8) and Articles 23, 24 and 26.

(5). Veterinary and public health inspections upon importation are based on entirely different principles according to whether intra-Community trade or trade with third countries is concerned.

(6). Another feature of Directive No 72/462 is that it states who is to bear the costs pertaining to the inspections upon importation, whereas the directives relating to intra-Community trade do not contain any provision on the imposition of a charge in respect of such inspection.

(7). The respondent in the main action concludes that the basic structure of the Community rules on trade in meat in any form leave no doubt as to the fact that the Community rules on prepared meat from third countries which the Council may have in mind to adopt will also be based on the principle of distrust and will impose compulsory public health inspections as well as animal health inspections upon importation into the Member Sute of destination.

(B). At all events the charges at issue come within the exception provided in Article 20 (2) of Regulation No 805/68

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 question whether 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) are applicable by analogy to the importation of prepared meat, with the result that the Member States are entitled or obliged to carry out health inspections and may impose charges for such inspections.

2. That question is referred in the context of a dispute between the administrative authorities of the Free and Hanseatic City of Hamburg and an undertaking importing prepared beef in tins (goulash) from Hungary, concerning the compatibility with Community law of charges imposed by those administrative authorities in respect of a health inspection carried out on that meat in June 1974.

3. Under Article 1 of Regulation No 805/68 of the Council (Official Journal, English Special Edition 1968 (I), p. 187) preserved bovine meat comes within the common organization of the market in beef and veal which was established by that regulation.

4. Council Directive Nos 72/462 of 12 December 1972 (Official Journal, loc cit) 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.

5. 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 prepared or preserved meat, the national court has raised the question whether that derogation is applicable by analogy.

6. 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 the administrative authorities of the Member Sutes in order to justify the imposition of charges.

7. 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.

8. 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.

9. 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 of 12 December 1972 have not yet taken effect in the areas to which they expressly refer, there can be no question of applying those provisions by analogy.

10. Moreover, even if Articles 12 (8), 23 (4) and 26 of Directive No 72/462 were to be regarded as being applicable in June 1974, the date of the importation at issue, application of those provisions by analogy should be rejected.

11. 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 20 (2) of Regulation No 805/68 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.

12. 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 question submitted to it by the Bundesverwaltungsgericht by an order of 16 September 1977, hereby rules: