C-88/82

JUDGMENT OF 22. 3. 1983 — CASE 88/82

in poultrymeat with non-member not treated less favourably than their countries customs duties other than competitors who import meat from those provided for in the Common non-member countries. Customs Tariff or charges having an equivalent effect is intended to lay down, on a provisional basis pending the implementation of a Community 3. As regards imports of fresh poultry- system of health inspection of imports meat from non-member countries the of fresh poultrymeat from non- derogation introduced by Article 15 member countries, a rule applicable to of Council Directive 71/118 on health the national arrangements for health problems affecting trade in fresh inspection remaining in force. The poultrymeat from the prohibition of object of the rule is to ensure that the levying of customs duties and inspections effected on imports from charges having an equivalent effect non-member countries, and charges contained in Article 11 (2) of Regu- levied in respect of such inspections lation No 123/67 applies from the should not be more favourable than date of the notification of the said those which apply under the directive directive to the Member State in to intra-Community trade and thus question, whether or not that Member the rule seeks to ensure that traders State has already adopted the who put on the market fresh meat necessary measures to comply with originating within the Community are the provisions of the directive.

In Case 8 8 / 8 2

R E F E R E N C E to t h e C o u r t u n d e r Article 177 of the E E C T r e a t y by t h e C o r t e Suprema di C a s s a z i o n e [Supreme C o u r t of Cassation] for a p r e - liminary ruling in the proceedings p e n d i n g before that court between

composed of: J. M e n e n s d e W i l m a n , President, P . Pescatore, A. O'Keeffe and U. Everling (Presidents of C h a m b e r s ) , Lord M a c k e n z i e Stuart, G. Bosco, T . K o o p m a n s , O . D u e and K. Bahlmann, J u d g e s ,

Advocate G e n e r a l : G. Reischl Registrar: H . A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of laid down in Article 43 (2) of the Treaty the procedure and the observations on a proposal from the Commision, the submitted under Article 20 of the following shall be prohibited: Protocol on the Statute of the Court of Justice of the EEC may be summarized The levying of any customs duty or as follows: charge having equivalent effect;

of the directive. As regard imports from The Tribunale, Trieste, allowed the non-member countries Article 15 of the claim and by judgment dated 21 October directive provides : 1977 ordered the Amministrazione delle Finanze to refund to the plaintiffs the sum of LIT 23 938 555. The judgment of "Until the entry into force of the court of first instance was confirmed Community provisions concerning by the Corte d'Appello [Court of imports of fresh poultrymeat from third Appeal], Trieste, by judgment dated 17 countries, Member States shall apply to March 1979. such imports provisions which are at- least equivalent to those of this directive." The Amministrazione delle Finanze thereupon appealed in cassation and Article 16 of the directive is worded as cited the judgment of 28 June 1978 in follows : Case 70/77 Simmenthal [1978] ECR 1453 in which the Court expressly recognized the lawfulness of health "Without prejudice to Article 14, charges levied on imports from non- Member States shall bring into force the member countries. laws, regulations and administrative provisions necessary to comply with this directive and its annexes: Before the Corte Suprema di Cassazione the respondents relied on the judgment (a) in respect of intra-Community trade: of 22 January 1980 in Case 30/79 Wigei within two years following [1980] ECR 151. In that judgment the notification of the directive; Court, whilst recognizing in certain circumstances the lawfulness of charges (b) in respect of fresh poultrymeat under Article 15 of Directive 71/118, produced and marketed in their justified them by the fact that the said territory: within a maximum of five provision requires Member States tó years following notification of the apply to imports from non-member directive." countries provisions which are "at least equivalent", to those required by the directive in relation to intra-Community 2. Armando and Ottavio Leonelli trade. According to the respondents the brought an action against the Italian Republic had not at the relevant Amministrazione delle Finanze before time brought into force the directive in the Tribunale [District Court], Trieste, relation to intra-Community trade. for an order requiring the Am- ministrazione to refund the sums they had paid by way of veterinary and public 3. The Corte Suprema di Cassazione health inspection charges on imports took the view that the case involved effected between 1968 and 1975 of live problems of the interpretation of poultry and other farmyard animals from Community law and by order dated 15 Hungary. In support of their claim they May 1981 stayed the proceedings and alleged that the charges ought not to referred the following question to the have been levied because they were Court of Justice pursuant to Article 177 prohibited by Regulation No 123/67 of of the EEC Treaty: the Council of 13 June 1967 as interpreted in the light of the judgment of 5 February 1976 in Case 87/75 "Is Article 15 of Council Directive Bresciani [1976] ECR 129. 71/118/EEC on health problems

affecting trade in fresh poultrymeat to be Advocate General the Court decided to interpreted as meaning that the dero- open the oral procedure without any gation provided for therein from the preparatory inquiry. prohibition of the levying of customs duties, other than those specified in the Commons Customs Tariff, and national charges having equivalent effect (a prohibition laid down by Regulation No II — W r i t t e n o b s e r v a t i o n s 123/67/EEC of the Council of 13 June 1967 on the common organization of the market in poultrymeat) and, therefore, 1. Mr Leonelli argues that the the right of each Member State to prohibition in Article 11 (2) of Regu- continue to levy such charges are subject lations Nos 123/67 and 2777/75 of to the additional condition that the levying customs duties and charges Member State in question has already having an equivalent effect in trade with adopted the laws, regulations and non-member countries applies where administrative provisions needed to Member States have not yet adopted the comply with the aforesaid directive?" measures necessary to apply the dero- gations provided in Directive 71/118 as amended by Council Directive 75/431 of In the grounds of the order it is stated 10 July 1975 (Official Journal, L 192, that when Articles 15 and 16 of Directive p. 6). 71/118 are correlated doubt arises whether the power to derogate from the prohibition of levying veterinary and According to the case-law of the Court public health inspection charges is any pecuniary charges imposed by reason subject also to the proviso that the of veterinary or public health inspection Member State has already taken the on imports from non-member countries necessary measures to comply with the are to be regarded as charges having an provisions of the said directive — a effect equivalent to customs duties unless condition which had not been satisfied they relate to a general system of by Italy at the relevant time. internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic 4. The order making the reference was products and imported products alike lodged at the Court Registry on 12 (judgment of 15 February 1976 in Case March 1982. 87/75 Bresciani [1976] ECR 129; judgment of 28 June 1978 in Case 70/77 Pursuant to Article 20 of the Protocol on Simmenthal[197%] ECR 1453). the Statute of the Court of Justice of the EEC written observations were lodged by Armando Leonelli, represented by The Court nervertheless recognized that Mario Simonazzi, of the Milan Bar, and there may be stricter inspection in Guido Sadar, of the Trieste Bar; by the relation to trade with non-member Italian Government, represented by contries pursuant to Article 15 of Sergio Laporta, Avvocato dello Stato; Directive 71/118 (judgment of 22 and by the Commission of the European January 1980 in Case 30/79 Wigei Communities, represented by its Legal [1980] ECR 151). Adviser, Gianluigi Campogrande. In the light of that case-law the question Upon hearing the report of the Judge- submitted for a preliminary ruling calls Rapporteur and the views of the for the following answer:

The latter directive fundamentally amended Directive 71/118. In particular it allowed additional periods for the ' implementation of Directive 71/118 The result is that Directive 71/118 extending from 15 August 1977 at the cannot apply in the present case at least earliest until 15 August 1981 at the latest. as regards the Community procedure in In other words, in pursuing the objective all its complexity. The obligations under of approximating the rules and structures that directive take effect at the earliest existing in the Member States the when the Member States are in a Council allowed the Member States an position to comply with the provisions of opportunity to derogate from the periods the subsequent Directive 75/431. In laid down in order to allow them to particular as regards Italy the two make the prescribed adaptations whilst at directives take effect only on the adap- the same time establishing Community tation by the Italian State of its own inspection to check whether the pre- national legal system to the directives, scribed measures were uniformly applied that is to say at the earliest, 1 January in all the Member States. 1977.

AMMINISTRAZIONE DELLE FINANZE v LEONELLI

The first is assumed from an alleged necessary correlation between Articles 15 and 16 of the said directive inasmuch as the application to imports from non- The foregoing considerations are member countries of "provisions which confirmed by the aforesaid judgment are at least equivalent" presupposes the in Case 70/77 Simmenthal which prior adoption by the Member State of recognized inter alia that Article 15 of Directive 71/118 has its origin in the the necessary rules to make its national principle of non-discrimination. That legislation comply with the directive. principle of a general scope is obviously intended provisionally to ensure pending the establishment of Community rules in relation to inspections on the importation The Italian Government denies that that of goods from non-member countries argument is well founded and cites in the that traders who market products of first place the interpretation given to Community origin should not be at Article 15 of Directive 71/118 in the a disadvantage as compared with

JUDGMENT OF 22. 3. 1983 — CASE 88/82

The Italian Government also challenges "The application of the derogation that validity of that consideration. In that allowed by Article 15 of Directive respect it refers to another ground in the 71/118 to the prohibition laid down in same judgment (paragraph 59) in which Article 11 (2) of Regulation (EEC) No the Court in relation to a provision 123 of 13 June 1967 is subject to no similar to that of Article 15 of Directive condition other than the entry into force 71/118 recognized that although the of the Community provisions on health provision in question was part of a inspections in trade in poultrymeat directive on health inspections in intra- between Member States." Community trade in fresh meat "its specific purpose is to lay down, on a provisional basis pending the implementation of the Community 3. The Commission states as a pre- system for imports of fresh meat from liminary that the Italian Republic third countries, a rule applicable to the has inadequately and incompletely national arrangements remaining in force implemented Directive 71/118. For that in order to prevent their being less strict reason, the Commission has started or less onerous than the inspection proceedings against Italy for failure to arrangements laid down in the directive fulfil its obligations. for ¡ntra-Community trade."

As regards the subject-matter of the In conclusion the Italian Government present reference the Commissioa considers that the lawfulness of the observes that the main action relates to levying of health inspection charges on imports of live poultry and other live

(a) As regards Community inspections, that is to say those required by a The Commission adds that the rule is directive, the Court has stated that tempered by the power of derogation charges therefor could be made only given to the Council, but that the when the specific inspections required by Council has not exercised that power in the directive and giving rise to the costs relation to trade in live poultry. have been made by the Member States Consequently the levying of health (judgment in Case 70/77 Simmentbal). charges on those products solely oh import and not as part of a system of internal taxation within the meaning of Article 95 of the Treaty must be regarded as prohibited as from 20 June (b) As regards national inspections, that 1967 when Regulation No 123/67 is to say those made in order to comply entered into force. with the provisions of a directive, the Court has confined itself to declaring that the charges levied must not exceed the cost of inspection and that the inspections must ensure that traders who Additionally, however, the Commission market products of Community origin develops its line of argument in relation are not put at a disadvantage as against

JUDGMENT OF 22. 3. 1983 — CASE 88/82

AMMINISTRAZIONE DELLE FINANZE v LEONELLI

notification of the directive to each notification of the directive to each of the Member States. of the Member States independently of whether or not the Member States As regards Italy, that date is 18 February have adopted the measures necessary 1971. to comply with the other provisions In conclusion the Commission proposes óf that directive." the following answers: " 1 . Article 15 of Council Directive Ill — Oral procedure 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat does not apply to Armando Leonelli, represented by Mario imports from non-member countries Simonazzi of the Milan Bar; the Italian of live poultry. Government, represented by Sergio Laporta, Avvocato dello Stato; and the 2. The derogation introduced by Commission of the European Com- Article 15 of Directive 71/118/EEC munities, represented by its Legal Ad- from the prohibition of customs viser, Gianluigi Campogrande, presented duties differing from those specified oral argument at the sitting on 18 in the Common Customs Tariff and January 1983. national charges having an equivalent effect applies to imports The Advocate General delivered his from non-member countries of fresh opinion at the hearing on 22 February poultrymeat as from the date of 1983.

Decision

1 By o r d e r dated 15 M a y 1981, received at the C o u r t on 12 M a r c h 1982, the C o r t e S u p r e m a di Cassazione [Supreme C o u r t of Cassation] referred a question to the C o u r t of Justice for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y o n the interpretation of Article 15 of Council Directive 7 1 / 1 1 8 of 15 F e b r u a r y 1971 on health problems affecting t r a d e in fresh p o u l t r y m e a t (Official J o u r n a l , English Special Edition 1971 (I), p. 106).

"Is Article 15 of Council Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat to be interpreted as meaning that the derogation provided for therein from the prohibition of the levying of customs duties, other than those specified in the Common Customs Tariff, and national charges having equivalent effect (a prohibition laid down by Regulation No 123/67/EEC of the Council of 13 June 1967 on the common organization of the market in poultrymeat) and, therefore, the right of each Member State to continue to levy such charges are subject to the additional condition that the Member State in question has already adopted the laws, regulations and administrative provisions needed to comply with the aforesaid directive?"

6 That question basically asks whether as regards imports of fresh poultrymeat from non-member countries the derogation contained in Article 15 of Directive 71/118 to the prohibition of levying customs duties or charges having an equivalent effect in Article 11 (2) of Regulation N o 123/67 applies

AMMINISTRAZIONE DELLE FINANZE v LEONELLI

from notification of the said directive to the particular Member State in question or whether its application depends on the additional condition that the Member State has already adopted the measures necessary to comply with the provisions of the said directive.

7 As the Court found in the judgment of 22 January 1980 in Case 30/79 Wigei [1980] ECR 151, Article 11 (2) of Regulation N o 123/67 in fact prohibits, subject to any derogation decided by the Council, the levying, in trade with non-member countries in fresh poultrymeat, of customs duties other than those laid down by the Common Customs Tariff or domestic charges having equivalent effect. According to established case-law of the Court the concept of charge having an effect equivalent to a customs duty covers all pecuniary charges, whatever their amount, imposed by reason of veterinary or public health inspections of animals and meat imported from non-member countries, 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 and imported products alike.

io That idea is consistent with the objective of the provision in question, the efficacy of which would be compromised if the derogation therein contained were to apply only after the Member State in question has complied with the provisions of the directive. If such an interpretation were accepted products from non-member countries would be able to enter the Community through a Member State which had not yet complied and circulate freely without having to bear the costs relating to their health inspection even though other Member States had already complied with the directive. That would penalize imports from the latter Member States not only in relation to products from the Member State in question but also as regards products fron non-member countries imported into the Community through that Member State and would be contrary to the principle of Community preference.

n It should be added that the derogation contained in Article 15 of Directive 71/118 applies only to imports of fresh poultrymeat and not to live poultry as is clearly apparent both from the wording of the provision and the objective of the said directive as defined in Article 1 thereof.

i2 The answer to the question put by the Corte Suprema di Cassazione should therefore be that as regards imports of fresh poultrymeat from non-member countries the derogation introduced by Article 15 of Council Directive 71/118 of 15 February 1971 from the prohibition of the levying of customs duties and charges having equivalent effect contained in Article 11 (2) of Regulation N o 123/67 of the Council of 13 June 1967 applies from the date of the notification of the said directive to the Member State in question, whether or not that Member State has already adopted the necessary measures to comply with the provisions of the directive.

As regards imports of fresh poultrymeat from non-member countries the derogation introduced by Article 15 of Council Directive 71/118 of 15 February 1971 from the prohibition of the levying of customs duties and charges having equivalent effect contained in Article 11 (2) of Regu- lation No 123/67 of the Council of 13 June 1967 applies from the date of the notification of the said directive to the Member State in question, whether or not that Member State has already adopted the necessary measures to comply with the provisions of the directive.

Mertens de Wilmars Pescatore O'Keeffe Everling Mackenzie Stuart Bosco Koopmans Due Bahlmann

Delivered in open court in Luxembourg on 22 March 1983.

P. Heim J. Mertens de Wilmars Registrar President