Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The Verwaltungsgericht [Administrative Court] Frankfurt am Main has applied to the Court under Article 177 of the EEC Treaty for a ruling on whether it is compatible with Community law for the Federal Republic of Germany to impose a charge for the costs of inspecting products under Article 10 of Commission Regulation (EEC) No 1725/79 of 26 July 1979 (Official Journal 1979, L 199, p. 1).

2. The reference, which is at the origin of this case, is clearly formulated incorrectly since the procedure instituted by Article 177 of the EEC Treaty is not intended to be used for the purpose of assessing the compatibility with Community law of the conduct of a given Member State. However, the Court, as in many previous cases, will be able to deduce from that imprecise formulation the true and proper problem of interpretation of general interest which consists in establishing whether or not a Member State, in the context of the task of carrying out inspections given to it by Article 10 of Commission Regulation No 1725/79, is at liberty to demand reimbursement from the undertaking concerned of the costs incurred.

3. We must now examine whether the charging to the undertakings of the costs relating to the mandatory inspection measures is capable of modifying the common prices of the products in question and thus jeopardizing attainment of the objective of the aid which the court making the reference identifies as the function of guaranteeing the target price. In that connection the Yerwaltungsgericht Frankfurt referred to the judgment of the Court of Justice of 23 January 1975 in Case 31/75 Galli [1975] EĆR 47, (cf. in particular paragraph 15) where it was held that any national provisions, the effect of which is to distort the formation of prices in that sector is incompatible with the rules of a common organization of the market involving price control. That principle should apply to any national measure which impedes, even if only indirectlv, the formation of common prices, as would occur in the present case, since the mandatory reimbursement of the costs of inspection ends by reducing the amount of the aid in equal measure to the amount of those costs.

4. The German court, however, wonders whether the fact that, of all the Member States, only the Federal Republic of Germany charges to undertakings the costs of inspections offends against the principle of equal treatment laid down in the second subparagraph of Article 40 (3) of the EEC Treaty. As the Court will remember, that provision provides that the common organization of the market shall exclude any discrimination between producers or consumers within the Community. That however does not preclude differences of treatment, within the context of the application of common rules, owing to the divergences between the internal legal systems of the Member States.

6. On the basis of the foregoing considerations I conclude by proposing that the Court should reply to the preliminary question referred to it by the Verwaltungsgericht Frankfurt am Main by order of 8 July 1981, by declaring that Community law does not preclude a Member State from requiring an undertaking concerned to reimburse the costs inherent in the inspection of products carried out in pursuance of Article 10 of Commission Regulation No 1725/79 of 26 July 1979, provided that the amount charged is proportionate to the normal cost of such inspections and has a minimal effect on the amount of the aid.

1 Translated from the Italian.