CJEC, January 31, 1984, No 1-83

THE COURT

1 By order of 27 october 1982 which was received at the court on 4 january 1983, the bayerisches verwaltungsgericht munchen (bavarian administrative court, munich) referred to the court for a preliminary ruling under article 177 of the eec treaty two questions on the interpretation of article 11 of council directive 72-461-eec of 12 december 1972 on health problems affecting intra-community trade in fresh meat (official journal, english special edition 1972 (31 december), p.3 - corrigenda published in the consolidated edition of corrigenda 1952-1972 of july 1975).

2 It may be seen from the order for reference that, by a decision of 19 december 1977, the bavarian authorities issued to the plaintiff in the main action a veterinary health authorization for the importation of a consignment of 1 000 tonnes of beef and pigmeat from romania and levied a charge of dm 865 for the entire consignment under the applicable bavarian legislation. That charge has since been reduced to dm 100, the amount at present contested before the national court.

3 The meat was imported at a time at which council directive 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), was not yet applied by the member states, in the absence of implementing measures still to be adopted by the community.

4 In those circumstances, the bavarian authorities consider that the relevant provision was article 11 of directive 72-461, which provides that:

' ' Until community provisions relating to importation of fresh meat from third countries are implemented, national provisions relating to fresh meat imported from those countries shall not be more favourable than those resulting from this directive. ' '

They take the view that, as long as there was no community system of inspection for imports from non-member countries, it was for the national authorities to carry out the health inspections needed, in such a way as to prevent more favourable treatment of those goods than that applied in intra-community trade.

5 The plaintiff in the main action for its part claims that article 11 of directive 72-461 is no longer applicable since the period prescribed for the implementation of directive 72-462 has expired, and since that directive has not been properly implemented, it should therefore be possible to rely upon it directly. Even if article 11 of directive 72-461 is applicable, the plaintiff ' s position is not affected by the judgment of 22 january 1980 in case 30-79 (land of berlin v wigei, (1980) ecr 151), in which the court accepted that it was lawful to levy a charge for the health inspection of poultry meat imported from non-member countries by virtue of article 15 of council directive 71-118 of 15 february 1971 (official journal, english special edition 1971 (i), p.106). That provision, which 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 ' ',

Is in fact different in wording from article 11 of directive 72-461.

6 The plaintiff in the main action claims secondly that this case does not concern a genuine charge for health inspections but an administrative charge levied on the issue of an import authorization. Finally, it claims that it has not been shown that similar fees are levied in all the member states, contrary to the requirement laid down by the court in its judgment of 28 june 1978 in case 70-77 (simmenthal v amministrazione delle finanze dello stato (1978) ecr 1453, paragraph 27).

7 The bayerisches verwaltungsgericht munchen considers that a decision of the court on the principles applicable in this area is desirable, in view of the large number of disputes arising out of the levying of charges of this kind. For that purpose it has referred to the court the following two questions:

' ' 1 Does article 11 of council directive 72-461-eec of 12 december 1972 on health problems affecting intra-community trade in fresh meat (official journal, english special edition 1972 (31 december), p.3 - corrigenda published in the consolidated edition of corrigenda 1952-1972 of july 1975) permit the charging of a fee to cover the cost of issuing an authorization to import under paragraphs 7 and 15 of the klauentiere-einfuhrverordnung (order on the importation of ungulates) as published on 30 august 1972 (bgbl. I p.1363) and most recently amended by order of 5 april 1976 (bgbl. I p.914)?

2 If the answer to question 1 is in the affirmative: does the legality of the charging of such a fee depend on whether comparable charges are levied in all member states of the community in trade with non-member states?

' '

8 It may be recalled that according to the well-established case-law of the court, health inspection charges imposed by a member state on products from other member states must in principle be regarded as charges having an effect equivalent to customs duties and are accordingly prohibited as constituting an obstacle to intra-community trade (in that regard see in particular the following judgments: judgments of 14-12-1972 in case 29-72, marimex v amministrazione finanziaria italiana, (1972) ecr 1309; of 11-10-1973 in case 39-73, rewe-zentralfinanz v direktor der landwirtschaftskammer westfalen-lippe, (1973) ecr 1039; of 31-5-1979 in case 132-78, denkavit loire v french state, (1979) ecr 1923; and of 7-4-1981 in case 132-80, united foods v belgian state, (1981) ecr 995).

9 However, the court has taken the view that that prohibition loses its purpose where the levying of health inspection charges is authorized by community provisions adopted in the interests of the free movement of goods, in particular in order to permit the carrying out of public health inspections in the state of origin, valid for the whole of the community, before the goods are dispatched to other member states. In that case the court has acknowledged the compatibility with the provisions of the treaty of common rules on the levying of health inspection charges, provided that they are sufficiently closely related to the actual cost of the inspections (judgment of 25-1-1977 in case 46-76, bauhuis v the netherlands, (1977) ecr 5; see also judgment of 12-7-1977 in case 89-76, commission v the netherlands, (1977) ecr 1355.

10 Finally, the court has acknowledged that the health inspection of goods imported from non-member countries is carried out in a different factual and legal context from the inspection of goods originating in the community and in such a context the levying of health inspection charges by the member states does not appear to be prohibited in principle, provided, however, that there is a sufficiently close connection between the amount of those charges and the actual cost of the inspections (see the following judgments: judgments of 28-6-1978 in case 70-77, simmenthal, cited above; of 5-7-1978 in case 138-77, ludwig v free and hanseatic city of hamburg, (1978) ecr 1645; of 22-1-1980 in case 30-79, wigei, cited above; and of 22-3-1983 in case 88-82, amministrazione delle finanze dello stato v leonelli, (1983) ecr 1061).

11 The questions submitted to the court must be examined in the light of those considerations.

First question

12 By its first question, the bayerisches verwaltungsgericht munchen has rightly situated the problem in the context of article 11 of directive 72-461. Indeed, it cannot be disputed that at the material time directive 72-462 concerning the health inspections applicable to imports from non-member countries was not yet wholly in force, since the community institutions had not adopted in time the implementing measures needed for its introduction. In the meantime, article 11 of directive 72-461, which was laid down precisely in order to take account of such a situation, was applicable. That article provides, in relation to the health inspections of meat from non-member countries, that the national health provisions are applicable, subject however to the reservation that they must not be more favourable than the provisions laid down in the same directive for intra-community trade.

13 In the light of the criteria established in the case-law cited above, that provision must be interpreted as authorizing the member states to charge on imports from non-member countries the fees provided for by their respective national laws, subject to two conditions: on the one hand, those charges must not be more favourable than those levied in intra-community trade, where inspection is carried out in the exporting state; on the other hand, there must be a sufficiently close connection between the fees and the cost of the inspections. Only the latter condition is in dispute in this case.

14 The distinction which the plaintiff in the main action has sought to establish between article 11 of directive 72-461 and article 15 of directive 71-118, to which the court referred in its judgment of 22 january 1980 in wigei, has no relevance to the answer to the question submitted, since the two provisions pursue the same objective, namely to prevent products imported from non-member countries from being treated more favourably, as regards health control, than products originating in the community.

15 The objection by the plaintiff in the main action, to the effect that the fee charged is not a health inspection charge in the true sense of the expression but is a general administrative fee, cannot be upheld either.

16 During the procedure before the court, the government of the federal republic of germany has in fact shown, without its being challenged, that the fee charged is justified by the fact that the authorities must, in order to facilitate imports, continually investigate and obtain information on the health situation in the states in which the goods concerned originate. The sole purpose of levying the charge at issue is therefore to pass those costs on to undertakings, at the time at which the health certificate for importation is issued to them.

17 Since article 11 of directive 72-461 makes a general reference to the ' ' national provisions ' ' applicable to imported fresh meat, a member state cannot be prevented from passing on to the importer, either at the time at which the import documents are issued or on the occasion of importation itself, not only the costs of specific inspections relating to the goods in question but also the burden of the administrative expenses involved in organizing the health controls.

18 The only limitation imposed by community law in that regard is that there must be a sufficiently close connection between the amount of the charge levied and the costs involved in the controls. That is a question of fact, to be appraised by the national court.

19 The answer to the first question should therefore be that article 11 of council directive 72-461 of 12 december 1972 on health problems affecting intra-community trade in fresh meat permits the levying on imports of fresh meat from non-member countries of a charge to cover the cost of issuing an authorization to import based on the national legislation on health controls, provided that there is a sufficiently close connection between the amount of the charge levied and the cost of the controls.

Second question

20 It follows from the foregoing considerations that the reply to the second question must enable the national court to adjudicate upon an argument put forward by the plaintiff in the main action on the basis of certain passages of the decision in the judgment of 28 june 1978 in simmenthal (paragraph 27, cited above).

21 In that judgment the court, whilst acknowledging that in certain circumstances member states are entitled to levy health inspection charges on imports from non-member countries, stated that those charges must nevertheless be limited so as to prevent distortions of competition and deflections of trade within the common market. It must be noted that such effects are avoided to the extent to which the health charges do not exceed the actual cost of the controls in question. Therefore it cannot be inferred from those considerations that the charging of fees for health inspections of products imported from non-member countries is subject to proof that identical or comparable charges are levied by all the other member states.

22 The answer to the second qeustion must therefore be that the legality of the levying of a charge for health controls on fresh meat imported from non-member countries cannot be subject to proof of the existence of comparable charges in all the other member states of the community, if the amount of the charge corresponds to the cost of the controls.

Costs

23 The costs incurred by the governments of the federal republic of germany and the italian republic and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings 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 bayerisches verwaltungsgericht munchen by order of 27 october 1982, hereby rules:

Article 11 of council directive 72-461-eec of 12 december 1972 on health problems affecting intra-community trade in fresh meat permits the levying on imports on fresh meat from non-member countries of a charge to cover the cost of issuing an authorization to import based on the national legislation on health controls, provided that there is a sufficiently close connection between the amount of the charge levied and the cost of the controls.

The legality of the levying of a charge for health controls on fresh meat imported from non-member countries cannot be subject to the proof of the existence of comparable charges in all the other member states of the community, if the amount of the charge corresponds to the cost of the controls.