C-137/77

Reference to the Court under Article 177 of the EEC Treaty by the Bun­ desverwaltungsgericht for a preliminary ruling in the action pending before that court between:

City of Frankfurt-am-Main

and

Firma Max Neumann

Intervener:

Federal Republic of Germany

Advocate General : J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The decision making the reference and payment of charges (Gebühren für the written observations submitted Einfuhruntersuchungen) for the health pursuant to Article 20 of the Protocol inspections carried out on that game on the Statute of the Court of Justice of which the plaintiff in the main action the EEC may be summarized as denies that it must pay because it follows: considers them as charges having an effect equivalent to customs duties on imports which were introduced after the I — Facts and procedure entry into force on 1 July 1968 of the Common Customs Tariff (Regulation At the beginning of 1975 Firma Max No 950/68 of the Council of 28 June Neumann, the plaintiff in the main 1968, Official Journal, English Special action and the respondent (hereinafter Edition 1968 (I), p. 275) and which are referred to as "the plaintiff in the main therefore incompatible with Community action") imported red deer, roe deer law. and wild boar from third countries into the Federal Republic of Germany. The On the other hand, the defendant in the city authority for Frankfurt-am-Main, main action maintains that the levying the defendant in the main anion and of the charges in question is in the appellant, (hereinafter referred to as accordance with Community law "the defendant in the main action") because Council Directive No claimed from that undertaking the 72/462/EEC of 12 December 1972 on

CITY OF FRANKFURT-AM-MAIN v NEUMANN

Justice by order of 26 August 1977 Game in general comes within tariff issued on 16 September 1977 to give a heading 02.04: "Other meat and edible preliminary ruling on the following meat offals, fresh, chilled or frozen: A. questions: ... B. Of game", except for wild boar 1. Are Article 12 (1), (7) and (8) and which, in pursuance of an explanatory Articles 23, 24 and 26 of Council note come within subheading 02.01 A Directive No 72/462/EEC of III (b) : "Meat ... of the animals falling 12 December 1972 (Official Journal, within heading No 01.01, 01.02,. 01.03 English Special Edition 1972 (31 De­ or 01.04 ... III. Of swine: [(a) Of cember); Journal Officiel L 302, p. domestic swine] (b) Other". 28) applicable by analogy to the In both cases, therefore, they are agri­ importation of game, with the result cultural products within the meaning of that the Member States are entitled Annex II to the Treaty, which covers or obliged to carry out health under the heading "Chapter 2 Meat and inspections and may impose charges edible meat offals" all the headings for such inspections? coming within Chapter 2. Moreover, 2. After the introduction of the they are products covered by Regu­ Common Customs Tariff by Regu­ lation No 827/68 of the Council of lation (EEC) No 950/68 of the 28 June 1968 (Official Journal, English Council of 28 June 1968 (Official Special Edition 1968 (I), p. 209) on the Journal, English Special Edition 1968 common organization of the market in (I), p. 275) may national charges still certain products listed in Annex II to

— the levying of any charge having Observations of the plaintiff in the main effect equivalent to a customs duty, action and With regard to the first question, the — the application of any quantitative plaintiff in the main action observes that restriction or measure having the field of application of Directive No equivalent effect, subject to the 72/462 has been clearly laid down in provisions of the Protocol on the Article 1 thereof. As far as fresh meat is Grand Duchy of Luxembourg". concerned, the directive covers only meat of domestic animals of the The fact that the products in question following species: bovine animals, are covered by the express prohibition swine, sheep and goats and solipeds. laid down in Article 2 (2) quoted above The methods of control and inspection in no way however makes them are likewise specifically laid down with irrelevant to the questions submitted by regard to these species of animals. The the national court. The problem of the application by analogy of the directive effect of Directive No 72/462 or of its to game would be contrary to the terms application by analogy to the and express meaning of the directive. prohibition on levying charges having Moreover, to extend the application of equivalent effect in the form of charges the directive to game would amount to for health inspections upon the impor­ replacing the contents of a Community tation of products from third countries provision by a different provision. This arises in fact in exactly the same terms would be to exceed the bounds of whether the specific prohibition authority and to adopt a legislative resulting from an express provision laid measure which the Council alone is down in a regulation on the organi- empowered to take in this case.

Directives must be transferred to the Referring to the judgment of the Court national law. With this in mind, Article of 13 December 1973 (Joined Cases 37 32 of Directive No 72/462 requires the and 38/73, Sociaal Fonds voor de Member States to bring into force the Diamantarbeiders v NV Indiamex and laws, regulations and administrative Association de fait De Belder [1973] provisions necessary to comply with that ECR 1609), the plaintiff in the main directive and its annexes not later than action considers that the basic 1 January 1976. In view of that provisions laid down in Articles 3 (b) provision, the field of application of a and 110 et seq. of the EEC Treaty and directive must be clearly determined those laid down in the Common since if this were not so the Member Customs Tariff would be infringed if States would implement the directive Article 26 of Directive No 72/462 gave differently and in an unharmonized the Member States the power to levy at manner. If the argument put forward by will charges on imports of fresh meat the defendant in the main action was and to fix the amount thereof. Varying correct all the Member States would use of that power and the application of probably have been in breach of the varying rates of charge would duty laid down in Article 32 of the necessarily lead to fresh distortions of directive because they have not adopted competition. For that reason, it is provisions relating to game on the basis possible to create an exception to the of that directive. prohibition on charges having an effect The prohibition on levying charges equivalent to customs duties within the having an effect equivalent to customs context of the organizations of the duties is a basic principle of the customs market only if that exception defines union and therefore provisions dero­ uniformly within the Community the gating from that principle must be events which give rise to the levying of strictly interpreted. Even if Article 26 of a charge and fixes the amount of the Directive No 72/462 were regarded as charges authorized. an authorization to levy national The plaintiff in the main action observes charges that could only be within the moreover that under certain national framework laid down by the field of provisions the importation of game may application of the directive itself. In the only be carried out in the Federal absence of such a limitation the Republic of Germany by undertakings Member States might well apply the which are also expressly authorized to existing authorization to levy charges export the same product. These firms on the basis of the Community rules so are inspected and importers pay widely that they could more or less considerable fees in the form of charges maintain all charges having an effect for the sending and subsistence of veteri­ equivalent to customs duties. The narians in the third country in question. plaintiff in the main action therefore The levying of other charges on the rejects any possibility of applying importation of game would lead to Articles 12, 23, 24 and 26 of Directive doubling the financial burden and No 72/462 by analogy. therefore to discrimination vis-à-vis

and 38/73, Sociaal Fonds voor de imports of meat from third countries Diamantarbeiders v NV Indiamex and which must be applied by analogy to Association de fait De Belder [1973] other imports of meat which have not ECR 1623) and of 5 February 1963 yet been harmonized. In this connexion (Case 26/62, Van Gend en Loos v Neder it is necessary to attach fundamental landse Administratie der Belastingen importance to certain statements made [1963] ECR 3 that the effect of the by the Commission in Case 21/75 introduction of the Common Customs (Firma J. Schroeder KG v Oberstadt Tariff is to prohibit all the Member direktor der Stadt Köln).

These statements, Court to give a ruling to that effect. made with regard to meat preparations, also apply to the inspection of game Observations of the defendant in the main which is likewise not yet harmonized. action According to the defendant in the main The defendant in the main action, action it results necessarily from these statements that Directive No 72/462 is having emphasized the importance of health inspections for game, considers lawful and must be applied by analogy that in the absence of harmonized rules and that the arguments put forward on game there is no doubt that the against such applications must be Member States are authorized to carry rejected. Examining these arguments, out health inspections on imports of the defendant in the main action replies game from third countries. first to two preliminary objections put forward by the plaintiff in the main Broaching next the problem of charges, action.

Article 2 (2) of Regulation No 827/68. The statement that if it were necessary The determining factor is whether, by to consider those provisions, in the provisions on costs contained in particular Article 26, as empowering the Directive No 72/462, the Community Member States to levy charges they legislature has adopted an essential would infringe a superior rule of decision of principle which is applicable Community law is also incorrect. The to the treatment under tax law of plaintiff in the main action invokes in

this connexion the judgment of the nization of the system of charges at the Court of Justice of 13 December 1973 Community level. The defendant in the (Joined Cases 37 and 38/73, cited main action states that in this sector the above) and the provisions of the Treaty national charges relating to the relating to the common commercial inspection of imports do not appreciably policy but its arguments are not well affect the functioning of the common founded. In fact even if Article 100 et commercial policy nor the application of seq. of the Treaty on commercial policy the Common Customs Tariff and could prohibit independent measures concludes that the question whether being adopted by the Member States Articles 12, 23 and 26 of Directive No they would not nevertheless restrict the 72/462 may be applied by analogy freedom of the Community itself in the cannot be answered in the negative on choice of measures of commercial the ground that it is necessary for

It is therefore necessary to impossible not to take into account the reply to the first question in the affir fact that within the context of Directive mative in the case of imports of meat of No 72/462, the Community legislature roe deer or red deer because it is has not harmonized the charges necessary to carry out essentially the themselves. It is clear that because of same inspections as in the case of different cost structures national charges domestic animals. cannot be identical. Although it is The argument that Articles 12, 23 and possible within the context of the 26 of Directive No 72/462 are harmonized inspections on imports provisions laying down exceptions from which are subject to Directive No the prohibition on the levying of 72/462 to waive harmonization of the charges having an effect equivalent to charges neither the interests of the customs duties and that provisions Community nor the principles of the laying down exceptions must be common commercial policy require that interpreted strictly does not result in the import charges should be made rejection of the application by analogy

charges. Consequently, likewise outside third countries are based on the the scope of the rules laid down by principle that all charges relating to the Directive No 72/462, the permissibility inspection of imports may lawfully be of national charges for inspections on levied on those imports by the Member imports of meat from third countries States. In so far as the field of cannot depend upon the prior harmo- application is clear it is unnecessary to

interpret them restrictively. The action the Court of Justice considered defendant in the main action adds that this question in relation to the Common the case-law of the Court of Justice, Customs Tariff and ruled to the effect which states that it is necessary to that it is prohibited for the Member interpret exceptions strictly (see Case States to amend "the level of protection 29/72, S.p.A. Marimex v Italian Finance as defined by the Common Customs Administration [1972] ECR 1309 and Tariff ([1973] ECR 1623).

Such an system of charges laid down in adjustment in no way amends the Directive No 72/462 were extended to previous level of protection, so that areas in which there is no doubt that the there would only be an increase in the Community legislature would have laid charges having an effect equivalent to down provisions to the same effect if it customs duties within the meaning of had already adopted rules. the judgment of the Court of Justice of Since a reply to the first question in the 13 December (Joined Cases 37 and affirmative makes the second question 38/73) if the increase in the charges exceeded the ascertainable increase in purposeless, the defendant in the main action replies to the second question only general costs and in particular the increase in the costs of the

continue to levy those charges. Since the veterinary law comes within the charges were increased during the concurrent legislative power of the period from 1968 to 1975, the question Federation and the Länder. It observes, arises whether that increase is first, that there is no provision for a permissible within the meaning of the public health inspection in the case of judgment of 13 December 1973 (Joined red deer and roe deer slaughtered on Cases 37 and 38/73, quoted above). the national territory. Only wild boar

CITY OF FRANKFURT-AM-MAIN v NEUMANN

trichinosis. prohibition on levying charges having The Commission points out, secondly, equivalent effect laid down by that same from the point of view of Community provision. Although that derogation is law, that meat of red deer and roe deer contained in a directive the Commission (tariff subheading 02.04 B) and meat of takes the view that it fulfils the wild boar (tariff subheading 02.01 A III conditions of the procedure laid down (b)) are included in the list of agri in Article 43 (2) of the EEC Treaty. cultural products in Annex II to the

The Commission deduces from this that if the goods in The Commission then emphasizes that question were covered by Directive No while the various common organizations 72/462, there would be no doubt as to of the market cover all kinds of meat, the legality of the levying of the fresh or prepared, the harmonization of charges. the health inspections on animals and meat coming within those organizations Continuing next to the examination of has only been partially attained. In the first question, the Commission particular, so far as products imported wonders whether it is permissible to from third countries are concerned, extend by analogy to meat other than only Directive No 72/462 has been that covered by the directive the issued and it relates only to domestic application of the authorization to levy bovine animals and swine and fresh charges for health inspections on meat of domestic animals of the imports from third countries.

Such an application by analogy should inspections and the responsibility for the not be rejected on the whole ground costs involved therein. To apply the that the arrangements for defraying the provisions on costs by analogy would costs were not yet applicable at the date amount to applying the inspections by of the importation in question (the analogy. Such an application of the beginning of 1975) and that even at inspections is prohibited in substance. present they still cannot be applied in On the other hand nothing in the their entirety.

present approach. Although purely by filling the lacunae therein by judicial economic considerations tell in favour process. In its case-law, the Court of of the application by analogy of the Justice has always emphasized most abovementioned provisions of Directive strongly the importance of fundamental No 72/462, the Commission however rights in the Community. According to takes the view that considerations the Commission, the fact that relating to the effects of the application Community law must uphold these by analogy must lead to the rejection of rights prohibits the extension in this that solution from both a legal point of case of the application of the view and from that of the upholding of compulsory levying of charges for fundamental rights. public health inspections carried out on It claims, first, that since the provisions imports from third countries to goods other than those listed in the directive. in question come within tax law their

given a wide interpretation. However, No 827/68, a reply to that question has in the present case the category of become purposeless. goods to which Directive No 72/462 applies and the authorization to levy charges relating thereto are clearly III — Oral procedure delimited. The Commission then draws attention to the close relationship At the hearing on 18 April 1978 oral established by the directive between the argument was presented by the plaintiff

2 Those questions are referred in the context of a dispute between the administrative authorities of the City of Frankfurt-am-Main and an under­ taking importing game (red deer, roe deer and wild boar) from third countries which calls in question the compatibility with Community law of charges imposed by those administrative authorities in respect of a health inspection carried out on that meat in January 1975.

General considerations

3 It appears from the statement of grounds of the order making the reference that the question asked relate to imports of meat on the assumption that the meat does not come within a common organization of the agricultural markets.

JUDGMENT OF 5. 7. 1978 — CASE 137/77

However, it must be pointed out that game is referred to in Regulation No 827/68 of the Council (Official Journal, English Special Edition 1968 (I), p. 209) on the common organization of the market in certain products listed in Annex II to the Treaty.

That organization of the market governs the products listed in the annex to the said regulation, which include all the varieties of meat coming within tariff heading 02.04, "Other meat and edible meat offals, fresh, chilled or frozen", subheading 02.04 B of which covers game except wild boar meat, which by virtue of an explanatory note to the Common Customs Tariff comes under tariff subheading 02.01 A III (b), "Meat and edible offals of the animals falling within headings Nos. 01.01 to 01.04, fresh, chilled or frozen ... III ... (b) other", which products are however also governed by the market organization introduced by Regulation No 827/68.

5 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

CITY OF FRANKFURT-AM-MAIN v NEUMANN

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.

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".

As the Court found in its judgment of 28 June 1978 in Case 70/77 Simmenthal, 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.

Thus they constitute a derogation, within the meaning of Article 2 (2) of Regulation No 827/68, from the prohibition placed by that provision on the levying of charges having equivalent effect.

In particular, the implementation of the inspections provided for in Articles 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.

As the Court found in its aforementioned judgment of 28 June 1978, Simmenthal, most of those measures have not yet been adopted, so that application of Articles 12, 23, 24 and 25 of the directive is not possible.

Thus, 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.

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 inspections which they apply pursuant to that legislation in fact offer guarantees similar to those which the directive is intended to achieve.

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.

On the other hand, charges unilaterally determined by Member States run counter to that need, and therefore the provisions which allow them to be imposed cannot be extended beyond their own field of application.

12 Therefore Directive No 72/462 is not a particular application of a general principle of Community law to the effect that any inspection at the external frontiers of the Community may give rise to the imposition of charges fixed by Member States, but merely an application of the derogation made possible by Article 2 (2) of Regulation No 827/68 from the prohibition laid down in that article on the levying of charges having an effect equivalent to customs duties in trade in the products concerned.

The second question

13 It follows from the general considerations above that the second question has become purposeless.

Costs

14 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 5 July 1978.

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 2 MAY 1978