C-30/79

JUDGMENT OF 22. 1. 1980 — CASE 30/79

at the external frontiers of the equivalent to those which the directive Community charges for the health lays down in the case of trade inspections which they carry out of between Member States have been imports of fresh poultry-meat from complied with in the non-member non-member countries. Nevertheless, exporting country and even though if the inspections were clearly out of these inspections already give rise in all proportion to the objective sought the non-member exporting country to or if the charges were clearly to the levying of charges. The fact that exceed the cost of the inspections, charges for public health inspections they would be outside the field of have been levied in the non-member application of the derogation allowed exporting country does not in by Article 11 (2) of the aforesaid principle have any effect on the level regulations. of the charges levied by Member States for public health inspections at 2. Article 15 of Directive No the external frontiers of the 71/118/EEC authorizes a Member Community. These inspections may State to levy a charge to cover the be systematic and designed to costs of an inspection of imports of ascertain whether the consignments fresh poultry-meat from non-member imported bear the requisite markings countries, even though the law of that and whether, on the basis of samples Member State allows such impor- taken, the poultry-meat produced for tation only if provisions for public importation proves to be fit for health inspection of a standard consumption.

on the interpretation of Council Directive N o 71/118/EEC of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106) on health problems affecting trade in fresh poultry-meat,

LAND OF BERLIN v WIGEI

THE COURT

composed of: H . Kutscher, President, A. O'Keeffe a n d A. Touffait (Presidents of C h a m b e r s ) , J. M e r t e n s de Wilmars, P . Pescatore, G. Bosco and O . D u e , J u d g e s ,

Advocate G e n e r a l : J . - P . W a r n e r Registrar: A. V a n H o u t t e

gives the following

JUDGMENT OF 22. 1. 1980 — CASE 30/79

2. In the course of 1976 Wigei GmbH to be referred to the Bundesverwaltungs- & Co. KG (hereinafter referred to as gericht [Federal Administrative Court] as "Wigei"), plaintiff and respondent to the a direct appeal on a point of law appeal on a point of law in the main [Sprungrevision]. action, imported several consignments of deep-frozen poultry-meat (tiefgefrorenes 3.

charges is justified by the application of the non-member country decisive?" Article 15 of Directive No 71/118/EEC. According to the Land of Berlin that 4. Articles 18 and 19 of the provision constitutes a "derogation . . . Geflügelfleischhygienegesetz of 12 July decided by the Council", within the 1973 contain the following provisions meaning of Article 11 (2) of Regulation which are of relevance to the present No 2777/75, from the prohibition on the dispute.

Article 18 recognition and publication of the names of the food processing "(1) Fresh poultry-meat may be undertakings pursuant to Article 18 imported from non-member (2) (1) presuppose that the highest countries only on condition that: veterinary authority in the 1. The poultry was slaughtered in exporting country: undertakings slaughtering ani- — Has recognized the various mals for export and that the undertakings; fresh poultry-meat was there obtained, cut up, stored, — Has kept them under regular wrapped or prepared; and those supervision; slaughterhouses and the chilling and refrigerating rooms in which — Has issued to the slaugh- fresh poultry-meat is stored, terhouses and processing under- situated outside the slaugh- takings a veterinary control terhouses, have been recognized number for the exportation of by the Federal Minister and fresh or prepared poultry-meat officially published in the Bun- for the purposes of this Law. desanzeiger [Federal Gazette] ; (2) The recognition of undertakings in 2. The poultry and the carcasses accordance with Article 1 and the and offal have been subject to maintenance of such recognition the inspection laid down by may be made conditional on those Article 19 (3) (1) (b) and the undertakings' being checked by meat was pronounced fit for veterinary officers appointed by the consumption and marked as Federal Minister". such; 3. The conditions of slaughtering, Under Article 19 (3) the Federal Minister of obtaining the meat, of cutting is further empowered to lay down by it up, refrigerating, storing, regulation minimum veterinary and wrapping and preparing it and public health requirements. The last part the transport and loading of that article provides : conditions satisfy the minimum requirements set out in Article "The minimum requirements must not be 19 (3) (1) (c); less stringent than the provisions laid down by law or on the basis of the Law 4. The consignment is accompanied relating to internal and intra-Community by the official veterinary health trade in fresh poultry-meat". certificate required by Article 19 (3) (2). On 24 July 1973, in application of Article 19 (3), a regulation was issued (2) .. " laying down the minimum public health requirements for poultry-meat (Bun- Article 19 desgesetzblatt I, p. 873). Those "(1) The recognition [by the Federal requirements, set out in annexes relating Minister] and the publication [in to slaughtering and the cutting up and the Bundesanzeiger] of the names storage of poultry-meat, correspond for of the undertakings slaughtering the most part to the criteria in Directive animals for export, the chilling and N o 71/118/EEC. Article 24 of the refrigerating rooms situated outside Geflügelfleischhygienegesetz provides for the slaughterhouses pursuant to the systematic inspection of fresh Article 18 (2) (1) and the poultry-meat on its importation into the

As the charges in question are in principle prohibited it remains to be considered whether they are authorized by a derogative provision based on Article 11 (2) of Regulation N o 2777/75. Written observations pursuant to Article Wigei takes the view that Article 15 of 20 of the Protocol on the Statute of the Directive No 71/118/EEC does not have Court of Justice of the EEC were such a scope. Analysing the judgment submitted by Wigei, represented by its delivered by the Court of Justice on 28 lawyer, Mr Festge, by the Government June 1978 (Case 70/77 Simmenthal v of the Federal Republic of Germany, Amministrazione delle Finanze dello Stato represented by its Agent, Martin Seidel, [1978] ECR 1453) which interpreted and by the Commission of the European Artide 9 of Directive N o 64/433 of 26 Communities, represented by Manfred June 1964 (Official Journal, English Beschel of its Legal Department, acting Special Edition 1963-1964, p. 185) as as Agent. On hearing the report of the derogation from the prohibition on the Judge-Rapporteur and the views of the imposition of charges having an Advocate General, the Court decided to equivalent effect to customs duties laid open the oral procedure without holding down by Article 20 (2) of Regulation N o any preparatory inquiry. 805/68 of 27 June 1968 on the common

LAND OF BERLIN v WIGEI

2. If Article 15 of the directive did "Article 15 of Council Directive No constitute the alleged "derogation", 71/118/EEC of 15 February 1971 there would exist an infringement of (Official Journal, English Special Edition Article 11 (2) of Regulation No 1971 (I), p. 106) does not authorize the 2777/75. In fact any exception to the levying of charges which are intended to prohibition on the levying of charges cover the costs of an inspection on having an effect equivalent to customs importation of fresh poultry-meat from duties must be decided in accordance non-member countries. with the Community procedure set out in Article 11 (2) and Wigei therefore observes that the national In the alternative: conditions do not satisfy those requirements. As exceptions from that Where, under the law of the importing prohibition may have detrimental Member State, the importation of fresh effects a wide interpretation of Article poultry-meat is permitted only on 15 of Directive No 71/118/EEC condition that in the exporting country would be contrary to the principle of all the health provisions which Directive legal certainty. No 71/118/EEC imposes on the

JUDGMENT OF 22. 1. 1980 — CASE 30/79

In the view of the German Government The German Government then turns to the charges in question do not infringe the question submitted by the national Article 11 (2) of Regulation N o 2777/75 court oh the point whether, in order to because they relate to a general system fix the level of charges, each Member of internal taxation applied systemati- State must take account of the rate of cally in accordance with the same criteria charges already levied in the exporting and at the same stage of marketing to non-member country and takes the view domestic products and imported that the charges payable in the country products alike. While it is certainly true of origin should not be taken into that the scales of charges applicable to consideration. The fact that the domestic poultry-meat and foreign inspection charges are consequently poultry-meat do not coincide exactly greater for poultry-meat imported from they are none the less basically non-member countries than for meat equivalent. imported from a Member State does not give rise to any objection from the point In the alternative the German of view of Community law as Com- Government considers that the charges munity law does not lay down the in question are covered by the dero- obligation to take account, in external gation in Article 11 (2) of Regulation No trade, of charges levied in the country of 2777/75. In fact the principle of origin. In fact in providing that the equivalence set out in Article 15 of provisions to be applied in trade with Directive No 71/118/EEC signifies that non-member countries must be at least the levying of charges is required by equivalent Article 15 of Directive No

71/118/EEC does not exclude the question whether Article 15 of Directive possibility of Member States' laying No 71/118/EEC also constitutes a dero- down more onerous rules for imports gation from the prohibition on levying from non-member countries. charges having an effect equivalent to customs duties for the charges levied for Consequently, the Government of the systematic inspections on importation of Federal Republic of Germany proposes goods coming from non-member that the first part of the question should countries where: be answered in the affirmative and that it should be ruled that Article 15 of 1. The Member State in question auth- Directive No 71/118/EEC authorizes orizes the importation of fresh the levying of charges intended to cover poultry-meat only on condition that the cost of inspection of fresh poultry- in the exporting country all the health meat imported from non-member provisions applicable in intra- countries at least to the same extent as Community trade have been complied for inspections on export carried out in with and that that fact has been intra-Community trade even where confirmed by the authorities of the charges have already been levied in this exporting country. respect by the non-member country in accordance with its law and without its 2. The exporting State levies a charge being necessary to take account of the for carrying out the requisite amounts of the charges already levied in inspections. the non-member country. As to Point 1 As Article 15 of Directive No C — Observations of the Commission 71/118/EEC does not lay down any criteria concerning the detailed rules for — The compatibility of the disputed inspection of imports coming from non- charges with Community law member countries Member States are at liberty to organize the inspections The Commission submits that the themselves. In the Commission's view charges in question satisfy the criteria two types of national scheme may be drawn up by the Court of Justice to envisaged: define charges having an effect equivalent to customs duties. However, (a) The Member.State confines itself to as Article 11 (2) of Regulation No checking compliance with the health 2777/75 provides for the possibility of standards within the framework of derogation it is necessary to examine an import inspection; whether Article 15 of Directive N o 71/118/EEC contains such an exception. (b) The importing Member State The Commission analyses the judgment requires the exporting State to of the Court in Case 70/77, Simmenthal, comply with certain conditions cited above, and submits that that article regarding hygiene and permits permits the Member States, on the one imports only after an additional hand, to subject goods coming from inspection on importation has non-member countries to a system of confirmed that the rules laid down inspection which is at least as stringent as have been complied with (mixed that on corresponding Community goods system). and, on the other, to levy charges in order to cover the cost of those The latter system, which is the one inspections. chosen by the German legislature, is not open to any objection as Community law In the Commission's view the Bundesver- now stands. The German provisions are waltungsgericht seeks clarification of the intended to ensure that the minimum

criteria laid down by Community law are it possible to prohibit the Member complied with. On the other hand Article State in question from levying any 15 of Directive No 71/118/EEC permits charges intended to cover the costs. the Member States to subject poultry- meat coming from non-member coun- tries to a more stringent system of The Commission examines the question inspection than that laid down by the whether the Member State concerned said directive for Community goods. In must take account, in fixing the level of fact the obligation imposed unilaterally charges for health inspections, of the on a non-member country to comply charges levied in the exporting non- with certain minimum conditions of member country and it distinguishes two hygiene cannot be treated in the same possibilities: way as the system of health inspection set up by Directive No 71/118/EEC (a) The charges levied in the exporting which provides for a Community country for the requisite inspections procedure. do not go beyond the principle of

costs incurred. The condition that applied to Community goods and to there should be no discrimination levy for such inspections a charge contained in Article 15 of Directive intended to cover the costs. No 71/118/EEC applies, according to the judgment of the Court in Case (b) Problems might possibly arise in the 70/77 (Simmenthal, cited above), not hypothetical case in which the only to the inspections but also to exporting State levied charges the charges levied in respect of those greater than the costs incurred.

Apart from the fact that country, the Member State no longer that situation hardly corresponds to has the right to levy a charge for that economic realities the Commission part of the inspection as it does not takes the view that the answer to occasion it any expense. However, in that question should be negative, on respect of that part of the health the one hand, because the Member measures which remain the respon- States do not have the necessary sibility of the importing Member information regarding costs incurred State Community law does not make in non-member countries and, on the

Decision

1 By an o r d e r of 1 D e c e m b e r 1978, which was received at the C o u r t Registry o n 23 February 1979, the Bundesverwaltungsgericht [Federal Administrative C o u r t ] referred t o the C o u r t of Justice for a preliminary ruling, p u r s u a n t to Article 177 of the E E C T r e a t y , a question relating t o the interpretation of Article 15 of Council Directive N o 7 1 / 1 1 8 / E E C of 15 February 1971 (Official J o u r n a l , English Special Edition 1971 (I), p. 106) on health problems affecting t r a d e in fresh poultry-meat.

2 This question asks: " D o e s Article 15 of Council Directive N o 7 1 / 1 1 8 / E E C of 15 February 1971 [Official J o u r n a l , English Special Edition 1971 (I), p. 106] a u t h o r i z e the levying of charges which are intended t o cover the costs of an inspection on importation of fresh p o u l t r y - m e a t from n o n - m e m b e r countries which is designed to ascertain w h e t h e r the consignments bear the requisite markings and are accompanied by the requisite certificates and w h e t h e r , on the basis of samples taken, the p o u l t r y - m e a t intended for importation is fit for consumption w h e r e , u n d e r the law of t h a t M e m b e r

JUDGMENT OF 22. 1. 1980 — CASE 30/79

State, the importation of such meat is permitted only on condition that in the exporting country all the health provisions which the said directive imposes on the exporting country in relation to intra-Community trade have been complied with and where charges are imposed therefor in the non-member country under its national law?

— The application of any quantitative restriction or measure having equivalent effect.

ĪĪ

LAND OF BERLIN v WIGEI

4 The authorities of the Land of Berlin challenged this view and contended, in the first place, that, when the concept of charges having an effect equivalent to customs duties was applied to charges levied for public health inspections, its meaning differed according to whether the imports in question came from non-member countries or derived from intra-Community trade.

6 Although Article 11 (2) of Regulations Nos 123/67 and 2777/75 in fact prohibits the levying, in trade with non-member countries in fresh poultry- meat, of customs duties other than those laid down by the Common Customs Tariff or domestic charges having equivalent effect, this prohibition only applies subject either to any provisions to the contrary contained in the said regulations — this is not the case as far as the charges in this dispute are concerned — or to any derogation therefrom decided by the Council acting by a qualified majority on a proposal from the Commission.

7 Article 15 of Council Directive N o 71/118/EEC of 15 February 1971, which the national court has mentioned, is in fact a derogation within the meaning of Article 11 (2) of Regulations Nos 123/69 and 2777/75 from the

JUDGMENT OF 22. 1. 1980 — CASE 30/79

prohibition of the levying by Member States of charges having an effect equivalent to customs duties. The wording of this provision is in fact similar to that of Article 9 of Council Directive N o 64/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1963-1964, p. 185) and the wording of the two articles clearly indicates that they have the same meaning.

io Consequently the prohibition of the levying of charges having an effect equivalent to customs duties laid down in Article 11 (2) of Regulations Nos 123/67 and 2777/75 cannot be relied on for the purpose of preventing

LAND OF BERLIN v WIGEI

Member States levying at the external frontiers of the Community charges for the health inspections which they carry out of imports of fresh poultry- meat from third countries.

n The fact that Directive N o 71/118 does not expressly mention the levying of charges for health inspections in the course of intra-Community trade is irrelevant in this connexion. The Court has in fact held in its judgment of 25 January 1977 in Case 46/76 W.J. G. Baubuis v The Netherlands State [1977] ECR 5, that national fees charged for veterinary and public health inspections, which are prescribed by a Community provision, — such as Directive N o 71/118 (poultry-meat) in this case — which are uniform and are required to be carried out before dispatch within the exporting country do not constitute charges having an effect equivalent to customs duties and may therefore be introduced by Member States, provided that they do not exceed the actual cost of the inspection for which they are charged. The existence of those fees justifies in turn the levying by Member States of charges for public health inspections at the Community's external frontiers so that they fulfil the obligation imposed upon them by Article 15 of Directive No 71/118 to apply to imports from third countries provisions which are "at least equivalent" to those of that directive relating to intra-Community trade in the same goods.

H In the present state of Community law systematic public health inspections of the kind described in the question raised by the Bundesverwaltungsgericht and the charges relating thereto do not call for any reservations even if the inspections prove to be more onerous and the charges higher than those deriving, in the case of intra-Community trade, from the application of Directive No 71/118. In fact it follows from the actual wording of Article 15 of Directive N o 71/118 that this provision allows stricter inspections at the external frontiers than those provided for by the directive in the case of intra-Community trade. Furthermore Community law does not require Member States to show the same degree of confidence towards non-member countries as that which, on the basis of Directive N o 71/118, should charac- terize relations between Member States and which results in the abolition of systematic inspections in trade between Member States.

is The same considerations lead to the conclusion that the fact that charges for public health inspections have been levied in the non-member exporting country does not in principle have any effect on the level of the charges for public health inspections levied by the Member States on the external frontiers of the Community. As far as concerns the kind of inspections carried out and the level of the charges the only limit is the one which has already been mentioned above, namely that the exception in Article 15 of

LAND OF BERLIN v WIGEI

Directive N o 71/118 would not cover inspections which are excessive, unnecessarily strict and charges which are out of proportion to the costs of the inspections, the Member States having nevertheless, in this respect, a reasonable discretion.

Costs

i7 The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since 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 on costs is a matter for that court.

JUDGMENT OF 22. 1. 1980 — CASE 30/79

On those grounds,

THE COURT

in answer to the questions referred to it by the Bundesverwaltungsgericht by an order of that court of 1 December 1978 which was registered at the Court on 23 February 1979, hereby rules:

Kutscher O'Keeffe Touffait

M e r t e n s d e Wilmars Pescatore Bosco Due

Delivered in o p e n c o u r t in L u x e m b o u r g o n 22 J a n u a r y 1980.

A. V a n H o u t t e H. Kutscher Registrar President

OPINION OF MR ADVOCATE GENERAL WARNER DELrVERED ON 27 NOVEMBER 1979

My Lords, of public health inspections. Wigei paid the charges but subsequently sued for This case comes to the Court by way of restitution of the amount of them in the a reference for a preliminary ruling by Verwaltungsgericht of Berlin on the the Bundesverwaltungsgericht. ground that their imposition was incompatible with Community law. The Verwaltungsgericht upheld Wigei's The appellant before that Court is the contention and ordered the Land of Land of Berlin. The respondent is the Berlin to repay the amount of the Firma Wigei Wild-Gefliigel-Eier-Import charges, viz 7 636.60 DM, to Wigei. GmbH & Co. KG, which I shall call for short "Wigei". The Land of Berlin now appeals (by way In July 1976 Wigei imported into West of "Sprungrevision") to the Bundesver- Berlin a number of consignments of waltungsgericht. deep-frozen poultry from Hungary. Pursuant to the relevant German legislation the Land of Berlin assessed Council Regulation (EEC) No 2777/75 Wigei, on those importations, to charges on the common organization of the at the rate of 2 pfennigs per kg in respect market in poultry-meat (which replaced