Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. The Commission of the European Communities has brought an application for a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty. The Federal Republic of Germany permits the authorities of certain Länder to charge a fee for inspections carried out on the transportation of live animals imported into Germany or in transit to other destinations within the Community.

2. I shall begin with a brief reference to the relevant rules. At the Community level the rules relating to the protection of animals during international transport are contained in Council Directive 77/489 of 18 July 1977 (Official Journal 1977, L 200, p. 10) and Council Directive 81/389 of 12 May 1981 (Official Journal 1981, L 150, p. 1). Articles 2 and 3 of Directive 81/389 are of particular importance. Article 2 empowers the authorities of the Member States of transit and of destination to check the manner in which the persons responsible for transport comply with the obligations and conditions laid down in Directive 77/489. Article 3 provides that those authorities are to prescribe the measures required to remedy any irregularities discovered by them, and to carry out such measures if they are not complied with.

3. The Commission maintains that since the fees at issue are levied solely in respect of intra-Community trade they constitute acharge having an effect equivalent to a customs duty and are therefore contrary to the prohibition laid down in Article 12 of the EEC Treaty. It states that the fees do not form part of a general system of dues also applied to livestock transported within Germany and that since the sole purpose of the inspections in respect of which they are charged is protection of the animals the fees do not constitute the consideration for a benefit provided for the person concerned.

4. What view should be taken of those submissions? It follows from the Court's judgment in the Bauhuis case that the fees charged on the imported goods or on goods in transit to other Member States by reason of the fact that they cross a frontier do not fall under the prohibition in Article 12 of the EEC Treaty if: (a) they constitute the consideration for a benefit actually provided for the transporter or the importer, (b) they form part of a general system of internal dues applied in accordance with the same criteria to domestic goods and to imports and exports, (c) they are charged in connection with inspections prescribed by a Community directive. It is evident that in all such cases the amount charged must not exceed the actual cost of the inspection.

5. In the light of the foregoing comments the Commission's application appears unfounded. Although the fees charged by the five Lander are not directly provided for by the Community rules, they are in fact levied in respect of inspections required by those rules and, consequently, may not be regarded as a charge having an effect equivalent to a customs duty.

6. In view of all the foregoing considerations I propose that the action brought by the Commission of the European Communities on 26 January 1987 against the Federal Republic of Germany should be dismissed and that the unsuccessful party should be ordered to pay the costs.

1 Translated from the Italian.