JUDGMENT OF 22. 1. 1980 — CASE 30/79 LAND OF BERLIN v WIGEI

In Case 30/79 REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Bundesverwaltungsgericht [Federal Administrative Court] for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, G. Bosco and O. Due, 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 pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations of the plaintiff in the main action (Wigei)

— The compatibility of the disputed charges with Community law

B — Observations of the German Government

— The compatibility of the disputed charges with Community law

C — Observations of the Commission

— The compatibility of the disputed charges with Community law

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. The common organization of the market in poultry-meat is dealt with in Regulation (EEC) No 2777/75 of the Council of 29 October 1975 (Official Journal L 282, p. 77). Article 11 (2) of that regulation provides:

2. In the course of 1976 Wigei GmbH & Co. KG (hereinafter referred to as Wigei), plaintiff and respondent to the appeal on a point of law in the main action, imported several consignments of deep-frozen poultry-meat (tiefgefrorenes Geflügel) from Hungary into (West) Berlin. On the basis of those transactions the competent authorities of the Land of Berlin, defendant and appellant on a point of law in the main action, carried out the health inspections required by the German laws in force at the time, namely the Geflügelfleischhygienegesetz [Poultry-meat hygiene Law] of 12 July 1973 (Bundesgesetzblatt I, p. 776) and levied charges for health inspections on imports from third countries amounting to DM 7636.60 as laid down by that Law and the implementing regulations, in particular the Gebührenverordnung — Geflügelfleischhygiene [Regulation on charges in connexion with poultry-meat hygiene] of 24 July 1973 (Bundesgesetzblatt I, p. 897).

3. That court took the view that the dispute raised problems concerning the interpretation of Community law and, by order of 1 December 1978, asked the Court of Justice to deliver a preliminary ruling on the following questions :

4. Articles 18 and 19 of the Geflügelfleischhygienegesetz of 12 July 1973 contain the following provisions which are of relevance to the present dispute.

5. The order from the national court was registered at the Court on 23 February 1979.

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

A —. Observations of the plaintiff in the main action (Wigei)

—. The compatibility of the disputed charges with Community law

1. Whereas Council Directive No 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries (Official Journal, English Special Edition 1972 (31 December) p. 7; Journal Officiel L 302, p. 28) contains provisions relating to the amount of the costs of inspecting animals, Directive No 71/118 contains no such provision. Article 15 of Directive No 71/118 and, in particular, the phrase at least equivalent to those of this directive should therefore be understood as affecting only the health requirements laid down in the various Member States but not the inspection costs.

2. If Article 15 of the directive did constitute the alleged derogation, there would exist an infringement of Article 11 (2) of Regulation No 2777/75. In fact any exception to the prohibition on the levying of charges having an effect equivalent to customs duties must be decided in accordance with the Community procedure set out in Article 11 (2) and Wigei therefore observes that the national conditions do not satisfy those requirements. As exceptions from that prohibition may have detrimental effects a wide interpretation of Article 15 of Directive No 71/118/EEC would be contrary to the principle of legal certainty.

3. Application of the national conditions relating to charges by means of Directive No 71/118/EEC would lead to discrimination against trade with nonmember countries in comparison with intra-Community trade. In fact the conditions set out in Article 18 et seq. of the Geflügelfleischhygienegesetz of 1973 for trade with nonmember countries in conjunction with those laid down by Directive No 71/118/EEC would have the effect of rendering more expensive poultry-meat imported from nonmember countries.

B —. Observations of the German Government

—. The compatibility of the disputed charges with Community law

C —. Observations of the Commission

—. The compatibility of the disputed charges with Community law

1. The Member State in question authorizes the importation of fresh poultry-meat only on condition that in the exporting country all the health provisions applicable in intra-Community trade have been complied with and that that fact has been confirmed by the authorities of the exporting country.

2. The exporting State levies a charge for carrying out the requisite inspections.

(a). The Member State confines itself to checking compliance with the health standards within the framework of an import inspection;

(b). The importing Member State requires the exporting State to comply with certain conditions regarding hygiene and permits imports only after an additional inspection on importation has confirmed that the rules laid down have been complied with (mixed system).

(a). If a Member State merely carries out an inspection on importation it has the right to levy a charge for the inspection which does not exceed the costs incurred. The condition that there should be no discrimination contained in Article 15 of Directive No 71/118/EEC applies, according to the judgment of the Court in Case 70/77 (Simmenthal, cited above), not only to the inspections but also to the charges levied in respect of those inspections;

(b). If, on the other hand, a Member State adopts the mixed system and requires some of the inspection measures to be carried out at the place of slaughtering and makes the lawfulness of the importation dependent on certain inspections being carried out in the nonmember country, the Member State no longer has the right to levy a charge for that part of the inspection as it does not occasion it any expense. However, in respect of that part of the health measures which remain the responsibility of the importing Member State Community law does not make it possible to prohibit the Member State in question from levying any charges intended to cover the costs.

(a). The charges levied in the exporting country for the requisite inspections do not go beyond the principle of covering costs. In such a case the importer would pay the charges levied in the nonmember country and the charges for the inspection on importation. That charge would be lawful as Article 15 of Directive No 71/118/EEC leaves the Member States at liberty to subject imports from nonmember countries to more stringent inspections than those applied to Community goods and to levy for such inspections a charge intended to cover the costs.

(b). Problems might possibly arise in the hypothetical case in which the exporting State levied charges greater than the costs incurred. It might then be asked whether the importing Member State should not, in order to compensate for that additional charge, reduce the rate of its own charges by an amount corresponding to the difference between the charges levied for the inspection in the nonmember country and the costs actually incurred. Apart from the fact that that situation hardly corresponds to economic realities the Commission takes the view that the answer to that question should be negative, on the one hand, because the Member States do not have the necessary information regarding costs incurred in nonmember countries and, on the other, because it would continually be necessary to make adjustments for any changes in such information.

III —. Oral procedure

1. By an order of 1 December 1978, which was received at the Court Registry on 23 February 1979, the Bundesverwaltungsgericht [Federal Administrative Court] referred to the Court of Justice for a preliminary ruling, pursuant to Article 177 of the EEC Treaty, a question relating to the interpretation of Article 15 of Council Directive No 71/118/EEC of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106) on health problems affecting trade in fresh poultry-meat.

2. This question asks: Does Article 15 of Council Directive No 71/118/EEC of 15 February 1971 [Official Journal, English Special Edition 1971 (I), p. 106] authorize the levying of charges which are intended to cover the costs of an inspection on importation of fresh poultry-meat from nonmember countries which is designed to ascertain whether the consignments bear the requisite markings and are accompanied by the requisite certificates and whether, on the basis of samples taken, the poultry-meat intended for importation is fit for consumption where, under the law of that Member State, the importation of such meat is permitted only on condition that in the exporting country all the health provisions which the said directive imposes on the exporting country in relation to intra-Community trade have been complied with and where charges are imposed therefor in the nonmember country under its national law?

3. This question has been raised during an action brought against the authorities of the Land of Berlin by an undertaking, which, having imported into West Berlin from Hungary during 1976 consignments of fresh poultry-meat, found that in compliance with the Gebührenverordnung — Geflügelfleischhygiene (Regulation on charges in connexion with poultry-meat hygiene) charges for health inspections, to which the said poultry-meat was subjected on importation, were levied on it pursuant to the German Poultry-meat hygiene Law (Geflügelfleischhygienegesetz of 12 July 1973: BGBl. I, p. 776).

4. The authorities of the Land of Berlin challenged this view and contended, in the first place, that, when the concept of charges having an effect equivalent to customs duties was applied to charges levied for public health inspections, its meaning differed according to whether the imports in question came from nonmember countries or derived from intra-Community trade.

5. After the Bundesverwaltungsgericht had acknowledged that the disputed charges are in fact charges having an effect equivalent to customs duties within the meaning af Article 9 of the EEC Treaty and also of Article 11 (2) of Regulation Nos 123/67 and 2777/75 (to which reference has already been made) it pointed out that it is possible under the latter provision to derogate from the prohibition which that provision lays down. In the light of the judgment of the Court of Justice of 28 June 1978 (Case 70/77 Simmenthal S.p.A. v Amministrazione delle Finanze dello Stato [1978] ECR 1453), in which it was held that Article 9 of Council Directive No 64/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1963-1964, p. 185) derogates from the prohibition on levying health inspection charges in the organization of the market concerned, the national court refers to the Court of Justice the question whether Article 15 of Council Directive No 71/118/EEC of 15 February 1971 also amounts to a similar derogation. That provision lays down that Until the entry into force of Community provisions concerning imports of fresh poultry-meat from third countries, Member States shall apply to such imports provisions which are at least equivalent to those of this directive. While the Bundesverwaltungsgericht has no doubt as to the derogative effect which is to be attributed to the said Article 15 it nonetheless considers that it is necessary to refer the abovementioned question of interpretation to the Court of Justice in order to clarify the legal situation.

6. Although Article 11 (2) of Regulations Nos 123/67 and 2777/75 in fact prohibits the levying, in trade with nonmember countries in fresh poultry-meat, of customs duties other than those laid down by the Common Customs Tariff or domestic charges having equivalent effect, this prohibition only applies subject either to any provisions to the contrary contained in the said regulations — this is not the case as far as the charges in this dispute are concerned — or to any derogation therefrom decided by the Council acting by a qualified majority on a proposal from the Commission.

7. Article 15 of Council Directive No 71/118/EEC of 15 February 1971, which the national court has mentioned, is in fact a derogation within the meaning of Article 11 (2) of Regulations Nos 123/69 and 2777/75 from the prohibition of the levying by Member States of charges having an effect equivalent to customs duties. The wording of this provision is in fact similar to that of Article 9 of Council Directive No 64/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1963-1964, p. 185) and the wording of the two articles clearly indicates that they have the same meaning.

8. The Court in its judgment of 28 June 1978 (Case 70/77 Simmenthaį to which reference has already been made) held that the specific purpose of Article 9 is to lay down, on a provisional basis pending the implementation of a Community system of health inspections of imports of fresh meat from third countries, a rule applicable to the national arrangements for health inspection remaining in force. In order to prevent these national arrangements from being less strict and less onerous when applied to products from third countries than the system of health inspections laid down by the directive in question for intra-Community trade, which would lead to distortions of competition, Article 9 of Council Directive No 64/433 provides that national provisions relating to imports from third countries shall not be more favourable than those governing intra-Community trade by virtue of that directive. The Court has stated that this rule is intended to ensure that traders who put on the market fresh meat originating within the Community are not treated less favourably than their competitors who import meat from third countries and that in consequence it refers not only to the inspections themselves but also to the charges levied in respect thereof.

9. The similar wording of Article 15 of Directive No 71/118 and Article 9 of Directive No 64/433 leads to the conclusion that, in so far as Member States are able to levy charges for health inspections, the same derogative effect must be attributed to Article 15 of Directive No 71/118 as that which should be attributed to Article 9 of Directive No 64/433.

10. Consequently the prohibition of the levying of charges having an effect equivalent to customs duties laid down in Article 11 (2) of Regulations Nos 123/67 and 2777/75 cannot be relied on for the purpose of preventing Member States levying at the external frontiers of the Community charges for the health inspections which they carry out of imports of fresh poultry-meat from third countries.

11. The fact that Directive No 71/118 does not expressly mention the levying of charges for health inspections in the course of intra-Community trade is irrelevant in this connexion. The Court has in fact held in its judgment of 25 January 1977 in Case 46/76 W.J. G. Baubuis v The Netherlands State [1977] ECR 5, that national fees charged for veterinary and public health inspections, which are prescribed by a Community provision, — such as Directive No 71/118 (poultry-meat) in this case — which are uniform and are required to be carried out before dispatch within the exporting country do not constitute charges having an effect equivalent to customs duties and may therefore be introduced by Member States, provided that they do not exceed the actual cost of the inspection for which they are charged. The existence of those fees justifies in turn the levying by Member States of charges for public health inspections at the Community's external frontiers so that they fulfil the obligation imposed upon them by Article 15 of Directive No 71/118 to apply to imports from third countries provisions which are at least equivalent to those of that directive relating to intra-Community trade in the same goods.

12. Consequently it is for the national courts before which actions have been brought relating to charges for public health inspections levied by a Member State in connexion with imports into that Member State of fresh poultry-meat from a nonmember country to compare those charges with the domestic charges which that Member State levies for the domestic inspections prescribed by Directive No 71/118 in the case of intra-Community trade. Although the two types of charges cannot be required to be similar in all respects, on the one hand, because under Article 15 of Directive No 71/118 only charges may be levied at the external frontiers which are at least equivalent to the charges deriving from the implementation of the said directive on the intra-Community level and, on the other hand, because the possibility of inspections at the external frontiers of the Community proving to be more onerous than the inspections carried out in the Member State concerned before dispatch cannot be ruled out, it must nevertheless be borne in mind that, in the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objective sought to be attained or if the charges were clearly to exceed the cost of those inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of the abovementioned Regulations Nos 123/69 and 2777/75.

13. It is clear both from the wording of the question referred to the Court and from the grounds of the order making the reference that the Bundesverwaltungsgericht also seeks clarification on the question whether the derogation mentioned in Article 15 of Directive No 71/118 may be relied on in the Member State concerned for the purpose of levying charges for public health inspections if (1) the laws of the said Member State allow imports of poultry-meat only if several public health provisions in the nonmember exporting country of a standard equivalent to those which Community directives lay down for intra-Community trade, in particular inspections before dispatch have been complied with, and (2) in addition these inspections give rise in the exporting nonmember country to the levying of charges.

14. In the present state of Community law systematic public health inspections of the kind described in the question raised by the Bundesverwaltungsgericht and the charges relating thereto do not call for any reservations even if the inspections prove to be more onerous and the charges higher than those deriving, in the case of intra-Community trade, from the application of Directive No 71/118. In fact it follows from the actual wording of Article 15 of Directive No 71/118 that this provision allows stricter inspections at the external frontiers than those provided for by the directive in the case of intra-Community trade. Furthermore Community law does not require Member States to show the same degree of confidence towards nonmember countries as that which, on the basis of Directive No 71/118, should characterize relations between Member States and which results in the abolition of systematic inspections in trade between Member States.

15. The same considerations lead to the conclusion that the fact that charges for public health inspections have been levied in the nonmember exporting country does not in principle have any effect on the level of the charges for public health inspections levied by the Member States on the external frontiers of the Community. As far as concerns the kind of inspections carried out and the level of the charges the only limit is the one which has already been mentioned above, namely that the exception in Article 15 of Directive No 71/118 would not cover inspections which are excessive, unnecessarily strict and charges which are out of proportion to the costs of the inspections, the Member States having nevertheless, in this respect, a reasonable discretion.

16. Therefore the answer to the question asked by the Bundesverwaltungsgericht must be that Article 15 of Council Directive No 71/118 EEC of 15 February 1971 on health problems affecting trade in fresh poultry-meat authorizes a Member State to levy a charge to cover the costs of an inspection of imports of poultry-meat from nonmember countries, even though the law of that Member State allows such importation only if provisions for public health of a standard equivalent to those which Directive No 71/118 lays down in the case of trade between Member States have been complied with in the nonmember exporting country and even though these inspections already give rise in the nonmember exporting country to the levying of charges. The fact that charges for public health inspections have been levied in the nonmember exporting country does not in principle have any effect on the level of the charges levied by Member States for public health inspections at the external frontiers of the Community. These inspections may be systematic and designed to ascertain whether the consignments imported bear the requisite markings and whether, on the basis of samples taken, the poultry-meat produced for importation proves to be fit. for consumption. It must nevertheless be borne in mind that in the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objective sought or if the charges were clearly to exceed the cost of these inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of Regulation No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultry-meat.

17. The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Bundesverwaltungsgericht by an order of that court of 1 December 1978 which was registered at the Court on 23 February 1979, hereby rules:

1 Article 15 of Council Directive No 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultry-meat authorizes a Member State to levy a charge to cover the costs of an inspection of imports of fresh poultry-meat from nonmember countries, even though the law of that Member State allows such importation only if provisions for public health inspection of a standard equivalent to those which Directive No 71/118 lays down in the case of trade between Member States have been complied with in the nonmember exporting country and even though these inspections already give rise in the nonmember exporting country to the levying of charges.

2 The fact that charges for public health inspections have been levied in the nonmember exporting country does not in principle have any effect on the level of the charges levied by Member States for public health inspections at the external frontiers of the Community. These inspections may be systematic and designed to ascertain whether the consignments imported bear the requisite markings and whether, on the basis of samples taken, the poultry-meat produced for importation proves to be fit for consumption.

3 In the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objective sought or if the charges were clearly to exceed the cost of these inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of Regulation No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultry-meat.

1 In the order of the national court and in the course of the written procedure reference was erroneously made to Article 11 (2) of Regulation No 123/67 of the Council of 13 June 1967 on the common organization of the market in poultry-meat (Official Journal, English Special Edition 1967, p. 63). Regulation No 123/67 was repealed and replaced by Regulation No 2777/75 with effect from 1 November 1975 but the mistake is of no importance as the two provisions are in substance identical.