C-138/77

JUDGMENT OF THE COURT OF 5 JULY 1978 <apnote>1</apnote>

Firma Hermann Ludwig v Free and Hanseatic City of Hamburg (preliminary ruling requested by the Bundesverwaltungsgericht)

Case 138/77

Common agricultural policy — Approximation of legislation on public health and veterinary inspections — Imports from third countries — Health inspections — Charges — Directive No. 72/462 — Application by analogy — Not permissible (Council Directive No 72/462/EEC, Arts. 12, 23, 24 and 26)

Council Directive No 72/462/EEC, countries and provides that the resulting which places a duty on Member States expenses must be paid by the traders to carry out health inspections upon the concerned, cannot be applied by importation of bovine animals and analogy to the importation of other swine and fresh meat from third products (in this case, preserved meat).

In Case 138/77

JUDGMENT OF S. 7. 1978 — CASE 138/77

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

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

gives the following

JUDGMENT

LUDWIG v FREE AND HANSEATIC CITY OF HAMBURG

Verwaltungsgericht Hamburg (Ham obliged to carry out health inspections burg Administrative Court) dismissed and may impose charges for such that application, on the grounds that, inspections? ." having regard to Article 26 of Directive The order making the reference was No 72/462 of 12 December 1972 registered at the Court Registry on 16 (Official Journal, English Special November 1977. In accordance with Edition, 1972 (31 December); Journal Article 20 of the Protocol on the Statute Officiel L 302, 31 December 1972) on of the Court of Justice of the EEC, the health and veterinary inspection appellant in the main action, the problems upon importation of bovine respondent in the main action and the animals and swine and fresh meat Commission submitted written obser from third countries, the German vations. After hearing the report of the provisions laid down by law and regu Judge-Rapporteur and the views of the lation which authorize the imposition of Advocate General the Court decided to the charge (the Fleischbeschaugesetz, open the oral procedure without any Law on the inspection of meat, and preparatory inquiry. the Auslandfleischbeschaugebühren- Verordnung, Regulation on charges for the inspection of imported meat) are II — Written observations sub compatible with Community law. It held mitted under Article 20 of the that although that directive, which Protocol on the Statute of the governs health inspections for the Court of Justice of the EEC animals and meat to which it refers expressly and which — particularly in Observations of the appellant in the main Article 26 — authorizes Member States

raised. In fact the issue is whether the meat and process it within the national territory. Member States, by application by analogy of the provisions of Directive The appellant in the main action lodged No 72/462, are, on the one hand, a Sprungrevision (direct appeal on a point of law) to the Bundesverwaltungs entitled or obliged to carry out health gericht (Federal Administrative Court), inspections and, on the other, entitled and by an order of 16 September 1977 to impose charges for such inspections. that court referred the following It is submitted that, having regard to question to the Court of Justice for a Article 36 of the Treaty, the first part of preliminary ruling: the question should be answered in the

affirmative, but that the answer is Regulations Nos 121/67 and 805/68 on different for the question of the costs the organization of the market apply, relating to such inspections. for their part, to preserved meat, it would have been a simple matter for the Article 17 (2) of Regulation No 121/67 legislature also to refer to preserved of the Council on the common organi meat in Directive No 72/462, which it zation of the market in pigmeat precisely refrained from doing.

Although charges having an effect equivalent to customs duties are Observations of the respondent in the prohibited in principle, the Council main action made a derogation from that prohibition in Articles 12, 23, 24 and 26 In the submission of the respondent in of Directive No 72/462 in so far as the the main action, the question referred to the Court of Justice is of particular health inspections provided for by that directive are concerned. The question importance to the Länder (states of the Federal Republic) and the local auth raised by the Bundesverwaltungsgericht

legislature. The title of the directive tungsgericht has reserved the right to mentions the importation of fresh meat, refer the matter to the Bundesverfas which Article 2 (0) of the directive sungsgericht (Federal Constitutional defines as "meat which has not Court) for examination of the undergone any preserving process". As compatibility of Article 20 (2) of Regu-

lation No 805/68 with the German Although the Bundesverwaltungsgericht Grundgesetz. has already held that the charges at issue do not come within either of the The respondent in the main action first two cases, and although its proposes to consider the question raised question essentially concerns the third in two separate parts: case, the respondent in the main action (A) It will first consider whether the considers that it should submit obser­ charges imposed in respect of vations on each of the three cases health inspections in imports of mentioned. preserves from third countries are still to be described as charges I — Consideration for a service having equivalent effect, and it will actually provided propose that that question should The Bundesverwaltungsgericht's finding be answered in the negative; that health inspections are carried out (B) Then, in the event that those not in the interest of the importer but in charges do have to be classified as the public interest is incorrect because it charges having equivalent effect, it is too broadly stated. It cannot be will consider whether they are denied that the inspection is at the very justified because they come within least carried out in the importer's own interest as well. the exemption from prohibition provided in Article 20 (2) of Regu­ lation No 805/68. II — Charges relating to a general system of internal taxation (A) Do the charges at issue constitute The respondent in the main action charges having an effect equivalent argues that, in holding that a financial to a customs duty? charge on imported goods comes within a general system of internal taxation The respondent in the main action states that, in accordance with the only if it is levied on them at the same suge of production as that at which it is case-law of the Court of Justice, the levied on domestic products, the Bun­ Bundesverwaltungsgericht held that desverwaltungsgericht misunderstood although charges imposed in respect of the import of the judgment of the Court health controls on imports of meat from of 5 February 1976 in Case 87/75 third countries generally constitute (Bresciani [1976] ECR 129), the 11th charges having an effect equivalent to paragraph of the decision in which customs duties, there are three cases, reads as follows: according to that case-law, in which the position is different, namely: "(...) unless those charges and the duty in question are applied according to the — If the charge represents the same criteria and at the same suge of consideration for a service actually production (...)." provided for the importer; or It is argued a contrario from that — If the charge relates to a general paragraph that the charge levied upon system of internal taxation applied importation comes within a system of systematically in accordance with internal taxation where the charges are the same criteria to domestic and levied either according to the same imported products alike; or, finally, criteria or at the same suge of — If the charge is imposed in respect production. of health inspections which are The national court also overesumated required to be carried out by a the scope of the requirement that provision of Community law. charges on domestic and imported

III — Charges imposed by Com­ munity law (5) Veterinary and public health (1) The respondent in the main action inspections upon importation are based states that it follows from the judgments on entirely different principles of the Court of Justice of 25 January according to whether intra-Community trade or trade with third countries is 1977 (Case 46/76, Bauhuis [1977] ECR concerned. 5) and 12 July 1977 (Case 89/76, Commission v Netherlands [1977] ECR The three directives relating to intra- 1355) that charges imposed in respect of Community health inspections (No inspections which are required by 64/433 of 26 June 1964 — fresh meat — Community law do not constitute Official Journal, English Special Edition charges having an effect equivalent to a 1963-1964, p. 185; No 71/118 of 15 customs duty in so far as they do not February 1971 — fresh poultrymeat — exceed the actual cost of the inspection. Official Journal, English Special Edition The charges in dispute, which are fixed 1971 (I), p. 106; No 77/99 of 21 pursuant to the principle of the covering December 1976 — meat products — of costs, comply with that criterion. Official Journal 1977 L 26, p. 85) are based on the principle of mutual trust. (2) Since at the time of the impor­ tation at issue there were no specific On the other hand, Directive No Community arrangements for health 72/462 relating to health inspections on inspections on imports of prepared meat bovine animals and swine and fresh from third countries, the question arises meat from third countries is based on

LUDWIG v FREE AND HANSEATIC CITY OF HAMBURG

Moreover, reached on the grounds that those the 14th recital in the preamble states charges constitute charges having an that the inspection must be applied to effect equivalent to a customs duty. On each individual consignment. the contrary, those charges should be regarded as being without that char (6) Another feature of Directive No acteristic prior to the aforementioned 72/462 is that it states who is to bear date. the costs pertaining to the inspections upon importation, whereas the (B) At all events the charges at issue directives relating to intra-Community come within the exception provided trade do not contain any provision on in Article 20 (2) of Regulation No the imposition of a charge in respect of 805/68 such inspection. The foregoing observations by the respondent in the main action were (7) The respondent in the main action based on the assumption that the charge concludes that the basic structure of the imposed does not constitute a charge Community rules on trade in meat in having equivalent effect. If the Court of any form leave no doubt as to the fact Justice held to the contrary, the that the Community rules on prepared question raised could be interpreted as meat from third countries which the meaning that the Bundesverwaltungs Council may have in mind to adopt will gericht wishes to ascertain whether it is also be based on the principle of distrust possible to apply by analogy only such and will impose compulsory public provisions as relate to the cost of health inspections as well as animal inspections (Articles 12 (8), 23 (4) and health inspections upon importation into 26 of Directive No 72/462). the Member Sute of destination. Citing the Commission's observations in Case 21/75, Schnieder [1975] ECR 911 Accordingly, it should be accepted that it is in accordance with the intention of (judgment of 9 July 1975), the respondent in the main action argues the Council for prepared meat, on importation from a third country, to that the said provisions are an exception undergo public health and animal health to the prohibition laid down in Article 20 (2) of Regulation No 805/68.

JUDGMENT OF S. 7. 1978 — CASE 138/77

It points seq. of the EEC Treaty concerning aid out, first, that preserved meat manu would be infringed if the public health factured in German territory undergoes inspection of prepared meat from third foodstuffs inspection by sampling countries, unlike the arrangements without fees or charges. The fresh meat applicable to all meat imported in other used, whether imported or slaughtered forms, were to be carried out at the in domestic territory, has first expense of the public authorities. undergone public health inspection.

The that the costs of health inspections have Commission points out, secondly, that not been standardized, and referring to from the point of view of Community its foregoing observations and to law preserved meat comes under Regu paragraphs 35 and 36 of the Decision of lation No 805/68 on the common the Court of 25 January 1977 (Case organization of the market in beef and 46/76, Bauhuis loc. cit.), the respondent veal, Article 20 (2) of which prohibits in the main action concludes that the the levying of any charge having provisions of the directive relating to equivalent effect on the inspection of the cost of health inspection are meat from third countries, save as compatible with Community law. otherwise provided in the Regulation itself or where derogation from the regu In conclusion the respondent in the lation is decided by the Council. main anion proposes the following answer to the question referred by the The Commission then emphasizes that Bundesverwaltungsgericht : while the various common organizations of the market cover all kinds of meat, "Article 12 (1), (7) and (8), Article 23, fresh or prepared, the harmonization of Article 24 and Article 26 of Directive the health inspections on animals and No 72/462/EEC are to be applied by meat coming within those organizations analogy to prepared meat from third has only been partially attained.

Although the

inspections provided for in Articles 12 their entirety. In fact, regardless of that and 23 to 26 of that directive are not problem, those provisions render yet wholly applicable since various specific a guiding legislative concept of implementing measures which should the Community legislature which aims have been adopted at the Community to make the costs of the public health level have not yet been taken, the measures applied uniformly on the basis Commission is of the opinion that to the of Community law payable by the extent to which it is necessary to traders concerned. Moreover, the scope consider the charges levied for the of such rules with regard to economic inspections as charges having an effect policy, and more particularly com equivalent to customs duties, Articles 12 petition policy, is incontestable.

provision. Although that derogation is of the "anticipation" of future contained in a directive the Commission Community legislation. However, that takes the view that it fulfils the finding by the Verwaltungsgericht conditions of the procedure laid down Hamburg clearly shows up the problems in Article 43 (2) of the EEC Treaty. which application by analogy raises in Therefore the imposition of charges by the area of public law and in that of the competent national authorities is not respect for fundamental rights. an infringement of a superior provision The Commission claims, first, that since of Community law, since the Treaty the provisions in question come within itself contains no absolute prohibition tax law their content must be subject to on the imposition of charges equivalent strict requirements for the due to customs duties in relation to third protection of interested parties and that countries and since in adopting therefore application by analogy is Directive No 72/462 the Council used prohibited for that very reason.

apply by analogy. Such an application involved therein. To apply the by analogy should not be rejected on provisions on costs by analogy would the sole ground that the arrangements amount to applying the inspections by for defraying the costs were not yet analogy; but such an application by applicable at the date of the importation analogy of the inspections provided for in question (June 1974) and that even at fresh meat to preserved meat is present they still cannot be applied in prohibited in substance. On the other

hand nothing in the system applied until munities, represented by its Agent, Mr now by Community law in the field of Beschel. preventive public health measures The Commission of the European enables the conclusion to be drawn that Communities answered certain ques­ national inspections caried out on goods tions concerning the application of from third countries without authori­ Directive No 72/462. zation from Community law must be The Advocate General delivered his subject to a charge levied on the importer. opinion at the hearing on 2 May 1978. The interdependence between the After examining certain documents inspections and the responsibility for the which the Commission had mentioned costs shows that the function of during the oral procedure and which it case-law cannot be to "encroach upon" lodged after the oral procedure had the task entrusted to the Community been closed, counsel for the respondent legislature with regard to harmonization in the main action asked the Court in a by filling the lacunae therein by judicial letter of 29 May 1978 to consider process. In its case-law, the Court of whether it would be advisable to re­ Justice has always emphasized most open the oral procedure "in case the strongly the importance of fundamental Court of Justice should wish to take rights in the Community. According to account of those documents in order to the Commission, the fact that reach its decision". Community law must uphold these During the oral procedure, the rights prohibits the extension in this Commission had commented upon case of the application of the those documents in support of its obser­ compulsory levying of charges for vations concerning the extent to which public health inspections carried out on Directive No 72/462 had been imports from third countries to goods implemented, and the respondent in the other than those listed in the directive. main action had replied on that point. The Commission concludes from the The documents produced do not foregoing that it is necessary to reply in introduce any fresh evidence in relation the negative to the question referred to to that which was known at the end of the Court. the written procedure, in particular following the questions asked by the Court of Justice and the answers which III — Oral procedure were given to them. At the public hearing on 18 April 1978 After hearing the views of the Advocate oral argument was presented by the General and finding in the Deliberation appellant in the main action, Room on 7 June 1978 that all the represented by B. Festge of the evidence necessary for it to give an Hamburg Bar, the respondent in the answer to the question referred to it in main action, represented by P. Wendt, this case was in its possession, the Court also of the Hamburg Bar, and the decided that it was not necessary to re­ Commission of the European Com- open the oral procedure.

— the levying of any charge having effect equivalent to a customs duty;

— the application of any quantitative restriction or measure heaving equivalent effect, subject to the provisions of the Protocol on the Grand Duchy of Luxembourg".

4 Council Directive Nos 72/462 of 12 December 1972 (Official Journal, loc cit) on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries provides for

JUDGMENT OF S. 7. 1978 — CASE 118/77

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.

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".

LUDWIG v FREE AND HANSEATIC CITY OF HAMBURG

8 A large number of the provisions of the directive cannot be applied until the necessary measures have been taken by the Community authorities, parti­ cularly in the context of the procedure for obtaining the opinion of the Standing Veterinary Committee which is referred to in Articles 29 and 30 of the directive.

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 in Case 70/77, 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.

The imposition of charges in the cases referred to in the directive is directly linked to the introduction of a uniform Community system of inspection answering the demands of the introduction of a Common Customs Tariff.

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.

11 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 20 (2) of Regulation No 805/68 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.

Costs

12 The costs incurred by the Commission of the European Communities, which has 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 action pending before the national court, the decision as to costs is a matter for that court.

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 (see Case 137/77, p. 1638)