CJEC, June 28, 1978, No 70-77

1 By an order of 28 may 1977, which was received at the Court registry on 6 June 1977, the pretura, alessandria, referred various questions under article 177 of the EEC treaty concerning, first, the interpretation of article 12 (2) of regulation No 14-64 of the council of 5 February 1964 on the progressive establishment of a common organization of the market in beef and veal (journal officiel of 27 February 1964, p.562) and article 20 (2) of regulation No 805-68 of the council of 27 June 1968 on the common organization of the market in beef and veal (official journal, English special edition 1968 (i), p.187) and, secondly, the interpretation and validity of several provisions of council directive No 72-462 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); journal officiel l 302, p.28).

2 Those questions are asked in the context of an application brought before the pretura, alessandria, by Simmenthal SpA. For an order under article 633 et seq. of the codice di procedura civile (Italian code of civil procedure) for the repayment of two sums of money, lit 128 370 and lit 186 765, levied by the Italian authorities as inspection charges (diritti di visita) in respect of health inspections to which two consignments of frozen beef from a third country were subjected upon importation into Italy, the first consignment on 29 November 1971 and the second on 11 January 1973.

3 The plaintiff in the main action argues that the charges at issue are charges having an effect equivalent to customs duties, the levying of which is incompatible with article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68, which both prohibit, subject to the exceptions and derogations for which they make provision, the levying of any customs duty or charge having an effect equivalent to a customs duty on imports into the community from a third country of fresh, chilled or frozen meat of domestic bovine animals.

Admissibility of the reference for a preliminary ruling

4 The government of the Italian Republic has raised the question whether a case may be referred to the Court of justice for a preliminary ruling in the course of an application for a Court order brought before the Italian pretura by an individual against an administrative authority.

5 It makes the point that such a procedure has not the characteristics of a normal defended action inasmuch as the Court adjudicates simply on the basis of allegations presented by the plaintiff and can make an order against the other party without having given him the opportunity to present his observations.

6 The proceedings are contested only if the party against whom the order is made raises objections to the decision.

7 It is said to follow that in the course of the proceedings only one of the parties to the main action is able to submit observations on the expediency of a reference for a preliminary ruling or, if need be, to take part or collaborate with the national Court in drawing up the questions to be referred to the Court of justice, whereas the other has no such opportunity and before the Court of justice can neither alter nor add to the questions referred.

8 According to article 177 of the treaty, the procedure regarding preliminary rulings is open to any national Court or tribunal.

9 It is sufficient to determine, as has moreover previously been decided, that in hearing the application for the grant of an order, the pretura is exercising the functions of a Court or tribunal within the meaning of article 177 and that an interpretation of community law has been considered by that Court as essential for it to arrive at a decision, without its being necessary for the Court of justice to consider the stage of the proceedings at which the question was put.

10 Nevertheless, although article 177 does not make the reference to the Court subject to whether the proceedings during which the national Court draws up the reference for a preliminary ruling were defended, it may where necessary prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard.

11 However, it is for the national Court alone to assess whether that is necessary.

Substance

The first question

12 The first question asks whether article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68 are to be interpreted as meaning that any pecuniary charge whatever imposed in a member state in respect of a veterinary and public health inspection and levied at the frontier on bovine animals and meat imported from third countries constitutes a charge having an effect equivalent to a customs duty.

13 That question is intended to ascertain whether the prohibitions laid down in those two provisions on the levying of charges having equivalent effect extend to pecuniary charges levied in respect of health inspections carried out on bovine animals and meat imported from third countries.

14 In its judgment of 7 march 1972 (case 84-71 marimex (1972) ecr 89, at p.97), the Court ruled that the concept of a charge having an effect equivalent to a customs duty has, in article 12 (1) and (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68, the same meaning as in article 9 et seq. of the treaty.

15 Accordingly, pecuniary charges, whatever their amount, imposed by reason of veterinary or public health inspections of bovine animals and meat imported from third countries are to be regarded as charges having an effect equivalent to customs duties within the meaning of article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68, unless they relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic products and imported products alike.

The second question

16 In the event of the first question being answered in the affirmative, it is then asked on what date the prohibition on the levying of such pecuniary charges took effect.

17 The answer must be that, as the Court has already found in its judgment of 7 march 1972 (case 84-71 marimex (1972) ecr 89 at p.98), the provisions of article 12 (1) and (2) of regulation No 14-64 took effect on 1 November 1964, and those of article 20 (2) of regulation No 805-68 on 29 july 1968.

The third and fourth questions

18 The third and fourth questions ask whether council directive No 72-462 of 12 December 1972, in particular articles 12 (8), 23 (4) and 26 thereof, authorizes the member states to ' ' reintroduce health inspection charges ' ' and, where appropriate, with effect from what date (third question), and, if so, whether that directive, in particular the above-mentioned articles, must therefore be regarded as being valid (fourth question).

19 Considered in the light of article 12 of regulation No 14-64 and article 20 of regulation No 805-68, those questions are intended to ascertain whether the stated articles of directive No 72-462 constitute exceptions or derogations within the meaning of the said articles 12 (2) and 20 (2) from the general principle of the prohibition on the levying of charges having equivalent effect which is laid down in those provisions, and, if so, whether those regulations could validly provide for a power to make an exception to or to derogate from that prohibition.

20 It is necessary to examine first whether the council and, where appropriate, the Commission may, in the regulations which they adopt, provide for exceptions or derogations of that nature.

21 Where the elimination of charges having an effect equivalent to customs duties is applied to trade with third countries, its objectives and legal basis are different from those which underlie and justify the prohibition of such charges in intra-community trade.

22 In so far as intra-community trade is concerned, the prohibition is laid down in article 9 of the treaty itself, and is unconditional and absolute because it is designed to establish free movement of goods within the community.

23 On the other hand, in so far as trade with third countries is concerned, the question whether it is necessary to abolish, maintain, amend or introduce charges having equivalent effect must be related both to the requirements of the common commercial policy and to the requirements, consequent upon the introduction of the common customs tariff, of harmonization of conditions of importation from third countries.

24 In view of these differences, it is not possible to apply to trade with third countries the principles stated by the Court in its judgment of 25 January 1977 (case 46-76 bauhuis (1977) ecr 5) according to which the description of charges having equivalent effect, within the meaning of articles 9, 12 and 13 of the treaty, does not apply to health inspection charges levied in order to cover the cost of uniform inspections, imposed by a community regulation or directive, in the exporting member state, which constitute steps to abolish obstacles to trade between member states in that they are intended to make inspections at frontiers within the community unnecessary.

25 In fact, these considerations do not apply as regards pecuniary charges relating to inspections of products from third countries, where it is a question not of abolishing the charges but rather of making them uniform and where the prohibition, maintenance, amendment or introduction of charges having equivalent effect are based both on a concern to harmonize charges at the external frontiers of the community and on considerations of common commercial policy.

26 It follows from the same considerations that the prohibitions is not absolute in so far as trade with third countries is concerned, and that when they impose that prohibition the council or, where appropriate, the Commission may make exceptions or derogations from it.

27 However, it follows from consideration of the objectives mentioned that in the case of pecuniary charges levied in addition to customs duties introduced by the community the intrinsic effect of such charges on the relevant trade with third countries must be uniform in all the member states.

28 Accordingly, the council has not in any respect infringed the treaty or the rules adopted for its implementation by providing in article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68 that such exceptions or derogations might be made.

29 Therefore it is necessary to consider whether the charges having equivalent effect to which the national Court refers come under one of the exceptions or derogations provided for in the regulations cited.

30 Article 12 (2) of regulation No 14-64 provides that: ' ' in respect of imports from third countries, the following shall be incompatible with the application of the present regulation: the charging of any customs duty or charge having equivalent effect, other than as provided in the present regulation... ' '.

31 However, in so far as health inspection charges are concerned, that regulation does not itself provide for any exception to the prohibition which it lays down.

32 Nevertheless, it is to be observed that that regulation was repealed with effect from 29 July 1968 and replaced by regulation No 805-68.

33 Article 20 (2) of regulation No 805-68, which is part of title ii of that regulation concerning trade with third countries, provides that: ''save as otherwise provided in this regulation or where derogation therefrom is decided by the council, acting in accordance with the voting procedure laid down in article 43 (2) of the treaty on a proposal from the Commission, the following shall be prohibited: the levying of any charge having effect equivalent to a customs duty... ' '.

34 Although regulation No 805-68 contains no exception relating to health inspection charges, it must be considered whether the existence of a derogation such as that indicated in article 20 (2) may be inferred from other provisions.

35 In fact the third and fourth questions asked by the referring Court are essentially designed to ascertain whether articles 12 (8), 23 (4) and 26 of directive No 72-462 contain such a derogation.

36 Council directive No 72-462 of 12 December 1972 (official journal, English special edition, 1972 (31 December); journal officiel l 302, p.28) on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries provides for the organization of a uniform health inspection, the detailed rules for which are to be established by the council, the Commission or the member states, as the case may be.

37 Article 12 (1) and (7) and articles 23, 24 and 25 of the directive place a duty on member states to carry out a health inspection upon importation of animals (article 12) and fresh meat (articles 23, 24 and 25), and articles 12 (8), 23 (4) and 26 provide that the expenditure incurred pursuant to the articles in question ''shall be chargeable to the consignor, the consignee or their agents, without repayment by the state ' '.

38 In providing that the expenses of the veterinary and public health inspections at issue must be charged to the traders specified, those provisions do not prohibit the attribution of those expenses from being effected by means of the imposition of charges, provided that the latter do not exceed the actual cost of the inspections.

39 Thus they constitute a derogation, within the meaning of article 20 of regulation No 805-68, from the prohibition placed by that provision on the levying of charges having equivalent effect.

40 However, in order to enable those derogations to take effect, the inspections of which they are designed to cover the costs must have been organized in accordance with the directive and applied by the member states concerned.

41 In fact, each of the provisions referred to clearly states that the expenditure which is to be recovered is that incurred pursuant to articles 12, 23, 24 and 25 of the directive.

42 Article 32 of directive No 72-462 provides that:

' ' 1. The member states shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive and its annexes:

(a) not later than 1 October 1973 as regards the provisions of article 23 (1) and (3) (a), (b) and (c);

(b) not later than 1 January 1976 as regards all the other provisions, except those which make provisions for a community procedure.

2. They shall comply with provisions involving a community procedure laid down by the directive not later than 1 January 1977. However a minimum of two years must pass between the adoption of the measures adopted under these provisions and the date mentioned above. ' '

43 Furthermore, article 32 (3) of the directive provides that:

' 'On the date laid down in paragraph (2), articles 4 and 11 of the council directive of 26 june 1964, on animal health problems affecting intra- community trade in bovine animals and swine, and article 9 of the council directive of 26 June 1964, on health problems affecting intra-community in fresh meat, shall be revoked' '.

44 Thus, as is indicated moreover in the last recital in the preamble to directive No 72-462, a large number of the provisions of that directive cannot be implemented until the necessary measures have been taken by the community authorities, particularly in the context of the standing veterinary committee procedure which is referred to in articles 29 and 30 of the directive.

45 The implementation of the veterinary and public health inspections relating to animals and fresh meat from third countries provided for in article 12, 23, 24 and 25 of the directive requires-at all events in so far as it concerns trade and transport other than transit through the community from one third country to another third country-various implementing measures to be adopted by the competent community authorities.

46 Thus, according to the first indent of article 23 (2), the inspection must show that the meat comes from a territory or part of a territory of a third country included on the list referred to in article 3, drawn up by the council and published in the official journal, whilst according to the third indent of article 23 (2) the meat must be accompanied by an animal health certificate which is in conformity with a specimen drawn up after obtaining the opinion of the standing veterinary committee and by a public health certificate complying with annex c to the directive.

47 Furthermore, article 4 of the directive provides that the list of third countries must be supplemented by a list of the establishments in those countries (slaughterhouses, cutting plants and cold stores) from which the member states may authorize importation of fresh meat.

48 Article 16 provides that meat may be imported only if it complies with the health requirements to be adopted in accordance with the standing veterinary committee procedure.

49 According to article 24 (1), each batch of fresh meat must be subjected to a public health inspection on importation and to an animal health inspection carried out by an official veterinarian, and according to article 24 (3), ''the implementing rules necessary to ensure that the inspections referred to in paragraph (1) are carried out in a uniform way'' shall be adopted in accordance with the procedure laid down in article 29.

50 Finally, article 27 provides that the member states shall draw up and communicate to the Commission lists of the inspection posts for the importing of animals and fresh meat, and that those posts must be approved in accordance with the standing veterinary committee procedure.

51 Although it appears that the list referred to in the second indent of article 23 (2) has been drawn up, at all events it has not been published in the official journal, and according to the statements of the Commission the implementing measures mentioned above have not yet been adopted, so that implementation of articles 12, 23, 24 and 25 of the directive is not possible.

52 It follows from these considerations that, since the conditions laid down by directive No 72-462 itself as the basis for the imposition of health inspection charges by way of derogation from the prohibition on the levying of charges having equivalent effect have not been fulfilled, at the present stage of its implementation that directive cannot justify the imposition of the said charges.

53 Moreover, it is not possible to accept the argument that, by applying the national animal health legislation in force at the time when the directive was adopted, the member states were in some sense applying the directive in anticipation, in that, for the purposes of public health, the inspection carried out pursuant to that legislation in fact offer guarantees similar to those which the directive is intended to achieve.

54 In fact, the purpose of the directive is not to reinforce the arrangements for the protection of public health in the member states, but to ensure the uniformity of the inspection systems with a view to preventing distortions of competition and deflections of trade within the common market.

55 Therefore the answer to the third and fourth questions must be as follows:

(a) the council does not infringe any provision of community law by providing in the regulations which it adopts, in particular in article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68, for the possibility of making exceptions or derogations-to be drawn up in a form determined by the council-from the prohibition on the levying of charges having equivalent effect in trade with third countries, provided however that the intrinsic effect of those charges on the relevant trade with third countries is uniform in all the member states.

(b) although, as regards expenditure on health inspection of imports of animals and fresh meat from third countries, articles 12 (8), 23 (4) and 26 of directive No 72-462 provide for derogations from the prohibition on the levying of charges having equivalent effect which is laid down in article 20 of regulation No 805-68, those derogations can take effect only after the member states have been given the opportunity to organize as prescribed in the directive the inspections referred to in articles 12, 23, 24 and 25 thereof.

The fifth and sixth questions

56 The answers given to the third and fourth questions render consideration of the other questions purposeless.

57 However, in order to provide the national Court with an appropriate answer for the purpose of the application of community law in the dispute before it, it must be considered whether an exception or derogation such as provided for in article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68 should not be recognized on the basis of other provisions of community law.

58 In this connexion, the Commission has referred to article 9 of directive No 64-433 of 26 June 1964 (official journal, English special edition 1963- 1964, p.185) on health problems affecting intra-community trade in fresh meat, according to which: ' 'if the community provisions relating to importation of fresh meat from third countries do not apply at the time when this directive enters into force, or pending their becoming applicable, national provisions relating to imports from those countries shall not be more favourable than those governing intra-community trade' '.

59 Although the said article 9 is part of a directive on health inspections in intra-community trade in fresh meat, its specific purpose is to lay down, on a provisional basis pending the implementation of the community system for imports of fresh meat from third countries, a rule applicable to the national arrangements remaining in force in order to prevent their being less strict or less onerous than the inspection arrangements laid down in the directive for intra-community trade.

60 That rule is clearly intended to ensure that traders who put on the market fresh meat originating within the community should not be treated less favourably than their competitors who import meat from third countries, and it therefore refers not only to the charges imposed in respect thereof.

61 The same rule is expressed in the council resolution of 12 march 1968 (official journal, English special edition, second series, vol. Ix, p.19) on community measures to be taken in the veterinary sector, in article 11 of council directive No 64-432 of 26 June 1964 (official journal, English special edition 1963-1964, p.164) on animal health problems affecting intra-community trade in bovine animals and swine, in article 15 of council directive No 71-118 of 15 February 1971 (official journal, English special edition 1971 (i), p.106) on health problems affecting trade in fresh poultrymeat and in article 17 of council directive No 77-99 of 21 December 1976 (official journal 1977 l 26, p.85) on health problems affecting intra-community trade in meat products.

62 The rule was also repeated in 1972, in article 11 of council directive No 72-461 of 12 December 1972 (official journal, English special edition 1972 (31 December); journal officiel l 302, p.24) on health problems affecting intra-community trade in fresh meat, supplementing directive No 64-433.

63 According to the last recital in the preamble to directive No 72-461, the provision in question is intended to set down ' ' in this directive the general principle of non-discrimination; whereas it should accordingly be expressly laid down, pending specific community rules covering imports from third countries, that the treatment to be applied to third countries by each member state should not be more favourable than the treatment applied, pursuant to this directive, to trade between the member states ' '.

64 Finally, it should be pointed out that the rule is expressly referred to in article 32 (3) of directive No 72-462, cited by the pretura, alessandria, which provides that article 9 of directive No 64-433 shall remain in force until such time as the member states are able to implement the provisions of the directive ' 'involving a community procedure' '.

65 It follows from these considerations that, as regards veterinary and public health inspections of fresh meat from third countries, article 9 of directive No 64-433 in conjunction with article 20 (2) of regulation No 805-68 derogates from the prohibition on the imposition of health inspection charges to the extent necessary to ensure non-discriminatory treatment, on the one hand, of traders who put fresh meat on the market in intra- community trade and thereby become liable to pay health inspection charges in the exporting member state and, on the other hand, of those who import from third countries, provided that those charges do not exceed the actual cost of the inspections.

66 Although, on a literal interpretation of article 12 (2) of regulation No 14-64, that regulation could not strictly be said to lay down an exception, it cannot be accepted that by using the words ' ' the present regulation ' ' the council intended to exclude regulation No 14-64 alone from the application of a rule which it has taken care to repeat in a large number of provisions of the same kind.

67 The intention to maintain the principle of non-discrimination expressed in article 9 of directive No 64-433 is confirmed by article 6 of council directive No 77-98 of 21 December 1976 (official journal l 26 of 31 January 1977, p.81) amending inter alia article 33 of directive No 72-462, which in its amended version provides that when articles 8 and 16 of directive No 72-462 are being applied, the community provisions to be adopted in the context of trade with third countries must lay down health requirements ' 'at least as strict as those which the... Member states apply in the framework of intra-community trade' '.

68 This is the answer which must be given to the national Court.

Costs

69 The costs incurred by the Italian government, the council and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

70 As these proceedings are, in so far as the parties to the main action are concerned, 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 pretura, alessandria, by an order of 28 may 1977, hereby rules:

1. Pecuniary charges, whatever their amount, imposed by reason of veterinary or public health inspections of bovine animals and meat imported from third countries are to be regarded as charges having an effect equivalent to customs duties within the meaning of article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68, unless they relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic products and imported products alike.

2. The provisions of article 12 (1) and (2) of regulation No 14-64 took effect on 1 November 1964, and those of article 20 (2) of regulation No 805-68 on 29 July 1968.

3. (a) the council does not infringe any provision of community law by providing in the regulations which it adopts, in particular in article 12 (2) of regulation No 14-64 and article 20 (2) of regulation No 805-68, for the possibility of making exceptions or derogations-to be drawn up in a form determined by the council-from the prohibition on the levying of charges having equivalent effect in trade with third countries, provided however that the intrinsic effect of those charges on the relevant trade with third countries is uniform in all the member states.

(b) although, as regards expenditure on health inspection of imports of animals and fresh meat from third countries, articles 12 (8), 23 (4) and 26 of directive No 72-462 provide for derogations from the prohibition on the levying of charges having equivalent effect which is laid down in article 20 of regulation No 805-68, those derogations can take effect only after the member states have been given the opportunity to organize as prescribed in the directive the inspections referred to in articles 12, 23, 24 and 25 thereof.