JUDGMENT OF 15. 9. 1982 — CASE 233/81 DENKAVIT FUTTERMITTEL v GERMANY

In Case 233/81 REFERENCE to the Court under Article 177 of the EEC Trean by the Verwaltungsgericht [Administrative Court] Frankfun am Main for a preliminary ruling in the action pending before that coun between

THE COURT composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: F. Capotorti Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the written observations submitted to the Court

III — Oral procedure

Decision

Costs

I —. Facts and procedure

II —. Summary of the written observations submitted to the Court

1. There is no legal basis in Community law for the charging of such a fee since Member States have no power to adopt national provisions dealing with the costs of inspections imposed by the Community.

2. It is in breach of the common price system.

3. The administrative actions giving rise to the charges are undertaken solely in the general interest.

1. As to the absence of Community rules rehting to the charges, Denkavit observes that Article 10 of Regulation No 1725/79 contains no provision relating to the costs of the regular inspections of all undertakings manufacturing the products in question which the authorities are required to carry out. On the other hand Article 9 (4) of that regulation does provide for the recovery of costs in respect of a special investigation carried out at the claimant's request and in his interest.

2. As to the infringement of the common system of prices Denkavit refers to the case-law of the Coun from which it is clear that Member States may no longer, by means of unilateral provisions, intervene in the machinery of price formation as it exists following the common organization of markets (see judgment of the Coun of 18 October 1979 in Case 5/79 Procureur General v Buys and Others [1979] ECR 3203). The amount of the aid in question may not be influenced either directly or indirectly by measures adopted unilaterally by a Member Sute.

3. As to the nature of the charges Denkavit observes that it is clear from the case-law of the Court that administrative action by the State, which is intended to maintain a system of inspections in the general interest, cannot be considered a service rendered to an individual of such a nature as to justify the imposition of a pecuniary charge. Such charges should on the contrary be borne by the public.

III —. Oral procedure

1. By an order of 8 July 1981 which was received by the Court on 17 August 1981 the Verwaltungsgerichi [Administrative Court] Frankfun am Main referred to the Court tor a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of Article 1C of Commission Regulation (EEC) No 1725/79 of 26 July 1979 on the rules for granting aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves (Official Journal L 199, p. 1).

2. The question arose in the course of an action by a manufacturer of calf feed made from skimmed-milk powder challenging a decision of the Bundesamt für Ernährung und Forstwirtschaft [Federal Office for Food and Forestry], the German intervention agency, which charged it DM 329.90 for expenses connected with the inspection of products eligible for Community aid. The decision was based on Article 12 of the German regulation of 1977 on the grant of aid for skimmed milk (Beihilfenverordnung-Magermilch [skimmed milk aid regulation] Bundesgesetzblatt 1977 I, p. 792) which provides that the expenditure incurred in taking samples and making analyses of goods is to be charged to the persons applying for aid.

3. The undertaking in question maintained that the Community regulations governing aid for the use of skimmed-milk powder for animal feed left the Member States no discretion to regulate the manner in which the necessary inspections connected with the grant of aid in that sector were to be exercised, and the Verwaltungsgericht therefore asked the Court whether it was compatible with Community law for the Federal Republic of Germany to impose a charge for the cost of inspecting products pursuant to Article 10 of Regulation No 1725/79.

4. The point raised by the national court in the question is whether Article 10 is to be interpreted as preventing a Member State from charging undertakings, under national law, for the cost of the inspections carried out in pursuance of that provision.

5. It should be noted thai Article 10 of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (Official Journal, English Special Edition 1968 (I), p. 176) provides that aid is to be granted for skimmed-milk powder which is produced in the Community and is for use as feedingstuffs if the product reaches certain standards. Regulation (EEC) No 986/68 of the Council of 15 July 1968 laving down general rules for granting aid for skimmed milk and skimmed-milk powder tor use as feed (Official Journal, English Special Edition 1%S (h. p 2bZì provides, in Article 3, that aid shall be paid only when proof has been given that the skimmed-milk powder has been denatured or used in the manufacture of compound feedingstuffs and in Article 4, as amended by Regulation No 1038/72 of the Council of 18 May 1972 (Official Journal, English Special Edition 1972 (II), p. 456), that Member States are to take the measures necessary to ensure the application of those provisions.

6. That is the context in which Article 10 of Regulation No 1725/79 must be placed. It describes the inspection measures which are to be taken by the Member States as regards, in particular, the maximum moisture content of skimmed-milk powder and the use of the product, whether as such or in the form of a mixture, in the manufacture of compound feedingstuffs within the meaning of the regulation. As to that last point, Article 10 (2) provides that the control measures to be determined by the Member State concerned are to fulfil at least the conditions laid down therein. Article 10 (3) provides that the results of the inspections are to be recorded by the agency responsible for inspection in the analysis repon and the inspection repon the form of which is laid down in the regulation; copies of the documents are to be forwarded to the undertaking concerned.

7. Article 10 of Regulation No 1725/79 reveals on examination that no provision is made as to the costs of the inspections which are to be carried out. However, inasmuch as Article 10 states that the control measures are to fulfil at least the conditions laid down therein, and provides that they are to be determined by the Member States, it indicates that the Community rules concerning such inspections are not exhaustive.

8. The wording of the regulation does noi, therefore, prevent Member States either from carrying out such inspections free of charge or from requiring the undenakings in question to reimburse the expenditure which such inspections entail.

9. It must therefore be concluded, as the Court has held with regard to the common organization of the markei in eggs dudgmeni of 13 November 1978 in Bussone, Case 31/78 [1978] ECR 2429). thai the Community rules leave Member States free to resolve the problem of financing the controls.

10. While Member States' freedom in that respect may not be used in such a way as to jeopardize the objectives o! the rules unaer which u is granted those objectives will not be jeopardized if the charges which the undertaking is asked to pay represent the normal cost of inspections of that nature and are not so great as to be liable to deter undertakings from carrying on the activities which the aid is intended to encourage.

11. In the order making the reference the Court's attention is also drawn to Article 9 (4) of Regulation No 1725/79 which provides that, if the applicant so requests, a special investigation may be carried out, the costs of which shall be borne by the applicant. Since there is no express provision as to costs in Article 10 it may be inferred, according to the order, that costs connected with inspections carried out pursuant to Article 10 may not be recovered from the undertakings concerned.

12. It should be noted, however, as the Commission has rightly emphasized, that Article 9 (4) refers to a specific case, namely that when recovery is sought of aid unduly paid the undertaking in question may furnish proof that the relevant Community provisions have been disregarded in respect of only some of the skimmed milk or skimmed-milk powder which was used between two dates on which inspections were carried out. The fact that Article 9 (4) requires the costs of furnishing such proof to be borne by the undertaking concerned has therefore no bearing on the interpretation to be given to Article 10.

13. For all those reasons the interpretation to be given in reply to the question which has been raised must be that Article 10 of Regulation No 1725/79 does not prohibit Member States from charging, under national legislation, the cost of carrying out inspections pursuant to that aniele to the undertaking concerned provided that the charges which the undertaking is asked to pay represent the normal cost of inspections of that nature and are not so great as to be liable to deter undertakings from carrying out the activities which the aid is intended to encourage.

14. 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, arc not recoverable. As these proceedings are, in so far as the parties to the main dispute are concerned, in the nature of a step in the action before the national court, the decision as to costs is a matter for that court.

On those grounds, THE COURT, in answer to the question referred to it by the Verwaltungsgericht Frankfurt am Main by an order dated 8 July 1981, hereby rules: