C-1/83

JUDGMENT OF 31. 1. 1984 — CASE 1/83

valid for the whole of the Com- 3. Article 11 of Directive 72/461 on munity, before the goods are dis- health problems affecting intra-Com- patched to other Member States. munity trade in fresh meat permits the Common rules on the levying of levying on imports of fresh meat from health inspection charges are non-member countries of a charge to compatible with the rules of the cover the cost of issuing an auth- Treaty provided that the amount of orization to import based on the the charges is sufficiently closely national legislation on health con- related to the actual cost of the trols, provided that there is a inspections. sufficiently close connection between the amount of the charge levied and 2. The health inspection of goods the cost of the controls. imported from non-member countries is carried out in a different factual and legal context from the inspection of goods originating in the Com- The legality of the levying of a charge munity. In such a context the levying for health controls on fresh meat of health inspection charges by the imported from non-member countries Member States does not appear to be cannot be subject to the proof of the prohibited in principle, provided, existence of comparable charges in all however, that there is a sufficiently the other Member States of the close connection between the amount Community, if the amount of the of those charges and the actual cost charge corresponds to the cost of the of the inspections. controls.

In Case 1/83

R E F E R E N C E to the C o u r t u n d e r Article 177 of the E E C T r e a t y by the Bayerisches Verwaltungsgericht M ü n c h e n [Bavarian Administrative C o u r t , M u n i c h ] , for a preliminary ruling in the proceedings p e n d i n g before t h a t court between

composed of: J. Merterts de Wilmars, President, T . K o o p m a n s , K. Bahlmann and Y. G a l m o t (Presidents of Chambers), P. Pescatore, G. Bosco, O . D u e , U . Everling and C. Kakouris, J u d g e s ,

Advocate General: G. F. Mancini Registrar: P. H e i m

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the Article 17 (2), which also prohibits procedure and the observations sub- charges having an effect equivalent to mitted pursuant to Article 20 of the customs duties and quantitative restric- Protocol on the Statute of the Court of tions or measures having equivalent Justice of the EEC may be summarized effect. as follows:

JUDGMENT OF 31. 1. 1984 — CASE 1/83

Bavarian State Ministry for the Interior granted IFG authorization to import The implementation of the Community 1 000 tonnes of beef and pigmeat from inspection procedure requires the Romania. The Bavarian authorities, adoption by the competent Community pursuant to the Bayerisches Kostengesetz authorities of a number of implementing [Bavarian Law on Costs] as published on measures. 25 June 1969 (Gesetz- und Verordnungs- blatt, p. 165) and most recently amended Thus the list provided for in Article 3 of by the Law of 14 April 1980 (Gesetz- Directive 72/462 of non-member und Verordnungsblatt, p. 179), charged countries from which the Member States a fee of D M 856 in respect of the impor- authorize imports was drawn up by tation. Council Decision 79/542/EEC of 21 December 1976 [sic] (Official Journal That charge was levied on the basis of 1979 L 146, p. 15); the animal health the following provisions of the conditions to which imports must, Kostengesetz: according to Article 16, be subject were laid down, in particular in relation to Paragraph 1 (1): Romania, by Commission Decision "The State authorities shall charge costs 82/132/EEC of 4 February 1982 (fees and expenses) in accordance with (Official Journal L 60, p. 16); the list of the provisions of this chapter, in respect establishments approved for the purpose of duties performed by them in of the importation of fresh meat into the pursuance of their official powers, Community, provided for in Article 4, (administrative acts) . . . " was drawn up, as regards Romania, by Commission Decision 83/218/EEC of Paragraph 2 (1): 22 April 1983 (Official Journal L 121, p.

IFG v FREISTAAT BAYERN

having an effect equivalent to a customs 1972 (BGBl. I p. 1363) and most duty, prohibited by Article 20 (2) of recently amended by Order of 5 Regulation No 805/68 and Article 17 (2) April 1976 (BGBl. I p. 914)? of Regulation No 2759/75. 2. If the answer to Question 1 is in the The Free State of Bavaria for its part,

In accordance with Article 20 of the action before the Verwaltungsgericht Protocol on the Statute of the Court of München [Administrative Court, Justice of the EEC, written observations Munich] challenging the fee imposed were submitted on 8 March 1983 by the upon it and certain restrictions by which Commission of the European Com- the authorization to import was munities, represented by Jörn Sack and accompanied. Bernhard Jansen, members of its Legal The Verwaltungsgericht ordered that the Department, on 22 March by IFG, the other matters in dispute be tried as a plaintiff in the main action, represented separate issue and took note of the fact by Dietrich Ehle, Rechtsanwalt of that the authorization fee had been Cologne, on 30 March 1983 by the reduced to D M 100, the sole amount still Government of the Federal Republic in dispute, by an administrative decision of Germany, represented by Jochim

dello Stato. " 1 . Does Article 11 of Council Directive 72/461 / E E C of 12 December 1972 Upon hearing the report of the Judge- on health problems affecting intra- Rapporteur and the views of the Community trade in fresh meat Advocate General, the Court decided (Official Journal, English Special to open the oral procedure without Edition 1972 (31 December), p. 3 — any preparatory inquiry. However, it

The legality of the charging of the fee II — W r i t t e n o b s e r v a t i o n s sub- cannot be evaluated on the basis of mitted to the C o u r t Article 11 of Directive 72/461: health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from non-member According to the plaintiff in the main countries are governed exclusively by action, the charging of a fee for the issue Directive 72/462. As a result of the of an authorization to import is expiry of the period prescribed in Article incompatible with the prohibition of 32 (2) of the directive and the failure to charges having an effect equivalent to implement the directive, it has since customs duties laid down in Article 17 become directly applicable. It is true that (2) of Regulation No 2759/75 and the Court stated in its judgment of 28 Article 20 (2) of Regulation No 805/68. June 1978 in Case 70/77 (Simmenthal v Amministrazione delle Finanze dello Stato, [1978] ECR 1453) that, in the absence of Such a fee cannot be based on Article 11 implementing measures, certain pro- of Directive 72/461; that provision is not visions of that directive were not yet applicable in this case and does not applicable. However, the continuing confer authority to levy charges of this failure to act on the part of the kind. Nor can the contested fee be Community and national authorities can justified by Directive 72/462 on imports no longer be tolerated; in the interests of of meat from non-member countries. uniformity and harmonization in that Moreover, the charging of the fee is a sector, the Court ought to declare breach of the prohibition of discrimi- Directive 72/462 directly applicable. nation under Community law. Account should be taken of Article 32 (3) of the directive, which provides in detail for the earlier rules to be revoked, without making such revocation (a) First question conditional upon positive action on the part of the Community authorities or Member States to implement the new The charging of a fee for the issue of an rules. authorization to import constitutes a charge having an effect equivalent to a customs duty, prohibited in trade with Directive 72/462, which is of exclusive non-member countries by Article 17 (2) application in this case, does not itself of Regulation No 2759/75 and Article contain any provision which may be 20 (2) of Regulation No 805/68. Dero- relied upon in support of the charging of gations from that prohibition are fees for the issue of an import author- permitted only if they are provided for in ization. the regulations themselves or are decided upon by the Council, acting by a qualified majority on a proposal from the Furthermore, Article 11 of Directive Commission. 72/461, even if it were applicable, does

That interpretation of Article 11 of "Article 11 of Directive 72/461 docs not Directive 72/461 is not incompatible authorize the charging of a fee to cover with the judgment of the Court of 22 the cost of issuing an authorization January 1980 in Case 30/79 (Land of to import under Paragraphs 7 and 15 Berlin v Wigei, [1980] ECR 151), of the Klauentiere-Einfuhrverordnung as concerning Article 15 of Council published on 30 August 1972 and Directive 71/118/EEC of 15 February amended by an order of 5 April 1976 1971 on health problems affecting trade on the importation into the Federal in fresh poultry meat (Official Journal, Republic of Germany of fresh beef find English Special Edition 1971 (I), p. 106): pigmeat from Romania." those two provisions are fundamentally different. According to Article 11, national provisions applicable to imports from non-member countries must not be "more favourable" than those applicable (b) Second question to intra-Community trade, whereas Article 15 states that the charges must be "at least equivalent". There is a decisive difference in the spirit and scope of those If the Court answers the first question in two provisions, since Article 15 permits, the affirmative, it should nevertheless at least indirectly, discrimination in trade rule that the charging of a fee, although with non-member countries. lawful in principle, is subject to the condition that similar fees are charged in all the Member States in trade with non- member countries. The prohibition of discrimination laid down in Article 11 of Directive 72/461 does not require the charging of fees for the issue of an authorization to import. In Simmenthal, the Court stressed that Intra-Community trade is not placed at a the prohibition of charges having an

effect equivalent to customs duties in before the products arrive at its border; trade with non-member countries is it must also be able to make its decisions intended to harmonize charges at the on imports subject to restrictions or external frontiers of the Community and special conditions in order to protect to ensure compliance with the require- itself against the risks involved in impor- ments of the common commercial policy. tation. In the absence of a Community According to that judgment, the effect of system of controls, the application of such charges on trade with non-member preventive health inspections in the countries must be uniform in all the framework of a formal· authorization Member States. Thus the Court makes procedure is essential. the legality of the charging of fees in trade with non-member countries depend upon whether or not similar charges are In intra-Community trade there is a levied in all the Member States. uniform system of inspection before dispatch, making the prior authorization of imports superfluous. The application of such a system presupposes a high Only by the imposition of that require- degree of confidence in the accuracy of ment can distortions of competition and the certificates drawn up in the exporting deflection of trade in the common State. Such confidence may be assumed market be prevented. within the Community; however, in the present state of Community law, it cannot, be extended to relations with That approach is further justified on the non-member countries, in connection ground that traders must not be required with which more stringent requirements to bear alone the consequences of the are justified. failure on the part of the Community institutions and the Member States to implement Directive 72/462 within the The fees in question cover the costs of prescribed period; in a situation of this the processing of applications by the kind, it is for the Court to create the veterinary authorities, the collection of conditions needed for harmonization. information on the absence of disease in the exporting region, and controls at the frontier.' The. amount of the fees complies with the principle that costs The Government of the Federal Republic may be covered. of Germany, after supplying the back- ground to the questions submitted to the Court and mentioning the origin of the dispute in the main action and the Even if the formal authorization positions adopted by the parties to the procedure in question were to be action, argues that authorizations to described as a measure having an effect import are justified in respect of health equivalent to a quantitative restriction, it control by the fundamental need for the is in any event justified under Article 36 protection of health from the danger of of the EEC Treaty. epizootic diseases. In order to meet that need, it is necessary to obtain infor- mation on imports planned as early as With regard to the dispute in the main possible, which is the purpose of ' the action, the only question to be health controls carried out by the considered is who should bear the cost exporting State. The importing State, for of an administrative measure which is its part, must be capable of taking action lawful under both national and

Community law and is needed for the control provided for in the directive was protection of health. not yet in existence. Consequently, according to the Simmenthal judgment, the exceptions in relation to trade with (a) First question non-member countries provided for during a transitional period in the directives on intra-Community trade The questions to be settled are: whether continued to apply pending the entry Article 11 of Directive 72/461 is into force of the Community system and applicable to the dispute in the main were certainly applicable in December action; whether, in the light of the 1977. judgments of the Court of Justice, it may be regarded as a derogation from the basic prohibition of any charge having an effect equivalent to a customs duty; Derogation from the prohibition of whether that derogation applies solely to charges having equivalent effect charges for inspection or also covers administrative charges levied in the It cannot be disputed that Article 11 of framework of measures needed for the Directive 72/461 contains a derogation protection of health and adopted by the from the prohibition of charges having competent veterinary authorities; and an effect equivalent to customs dudes, whether the absence of "similar" charges similar to that expressly recognized by in intra-Community trade results in the Court, in Simmenthal and Wigei, in unlawful discrimination against imports Article 9 of Council Directive 64/433 from non-member countries. on health problems affecting intra- Community trade in fresh meat (Official Journal, English Special Edition 1963- The applicability of Directive 72/462 1964, p. 185) and in Article 15 of Directive 71/118. Directive 72/462 provides for the intro- duction at Community level of a uniform The differences in the wording of the system of control for imports from non- three provisions are of little importance. member countries. On the entry into In the Wigei judgment, the Court took force of that Community system, there as its basis the similar wording of Articles would be no justification for the 15 and 9 in order to attribute to them application of special national rules the saine derogative effect as regards the which may be maintained under Article prohibition of charges having equivalent 11 of Directive 72/461 for a transitional effect; the same interpretation should period. Thus Article 32 (3) of Directive therefore apply to Article 11. 72/461 provides that the various transitional provisions such as Article 11 Furthermore, in Simmenthal, the Court are to be revoked on the entry into force described the three provisions — of the Community procedure. including Article 11 — as individual expressions of the Community principle of non-discrimination, whose specific With regard to Article 32 (2) of purpose is to lay down on a provisional Directive 72/462 it should be noted that basis a rule applicable to the national at the time at which the contested fee arrangements remaining in force in order was charged the competent Community to prevent their being less strict or less authorities had not yet adopted a whole onerous than the inspection arrange- series of implementing provisions ments laid down in the directive for needed; the Community system of intra-Community trade.

It follows from the wording of Article 11 of Directive 72/461 that the legality of a charge levied on the importation of fresh The Court makes no distinction in meat from non-member countries cannot relation to the laying down of charges depend upon the nature of the health which may be levied in intra-Community control in respect of which it is charged. trade in the framework of health In particular, there can be no distinction inspections; it requires merely that the between an administrative transaction charges should be levied "for veterinary and an inspection in the strict sense. and public health inspections". The collection and processing of information on the absence of epizootic diseases in certain regions, carried out in the course Article 11 does not define the nature of of a procedure for the authorization of the national provisions in question: imports, is a health control measure pre- according to its wording, it relates to any scribed by Community law in the form of charges on imports from non- interests of the protection of health in member countries in the framework of the same way as a health inspection of health controls on importation. meat intended for export. In that case an administrative charge levied to cover the corresponding administrative costs is justified. In Simmenthal and Wigei, the Court stressed the Community rule that national arrangements applicable to products from non-member countries The meaning and object of Article 11, must not be less strict or less onerous set out in the recitals in the preamble to than the inspection arrangements in the directive, are to prevent discrimi- intra-Community trade. In relation to nation against intra-Community trade in financial charges connected with impor- relation to trade with non-member tation, the Court uses the word countries and therefore to safeguard the "onerous" without drawing a distinction principle of Community preference. In according to the nature of the health view of that objective, it is necessary inspection upon which the charge is only to compare the total charges based. resulting from health controls in intra- Community trade on importation, without taking into account the nature of So far as the legality of the contested the health control measures in respect of charge is concerned, the only important which fees are levied.

Since according to the judgments of the In view of the differences in the nature Court, the charging of a national fee for of the arrangements applicable, the health controls on meat from non- "similarity" between the charges levied member countries, as a derogation from in respect of health inspections in intra- the prohibition of charges having an Community trade and those levied in effect equivalent to customs duties, is trade with non-member countries must justified only in the event of a danger of be recognized where the charges are discrimination in the case of meat from levied in respect of measures adopted by Member States, it is necessary to the health authorities with the common examine whether similar charges are objective of the protection of health. The levied in intra-Community trade. absence of authorizations to import in intra-Community trade docs not prevent a charge levied in respect of an author- ization to import in trade with non- It is clear from the judgments of the member countries from being lawful. Court that the scope of the concept of The charge levied in respect of an auth- "similarity" cannot be restricted so as to orization to import must be compared include only charges levied in respect of with charges imposed on meat in intra- an identical administrative measure or Community trade in respect of health transaction. The charges imposed on inspections in the exporting State. meat in intra-Community trade in respect of the costs of inspections on exportation must be compared with the charges affecting meat imported from In that regard, the charges imposed in non-member countries imposed in the intra-Community trade cannot be framework of importation. required to correspond exactly to those in trade with non-member countries. It is clear from Baulmis that it is sufficient in intra-Community trade that the charges In the present state of Community law, levied in each Member State should be the health controls effected in trade with fixed according to the principle of non-member countries cannot normally covering costs and should not exceed the be carried out within the framework of expenses incurred as a result of the control on dispatch applicable in the inspection, without their necessarily harmonized part of intra-Community being identical. trade which in the main makes the exporting State responsible for health inspection. That arrangement requires a In Wigei the Court stated that health high degree of mutual confidence inspections carried out on meat from between the health authorities of the non-member countries may be more various Member States. Such a principle onerous than inspections carried out in of mutual confidence does not apply in the framework of intra-Community relations with non-member countries; trade. However, those fees are no longer at that level, responsibility for health covered by the scope of the corre- inspection falls mainly on the importing sponding derogation if they clearly country. However, according to the exceed the cost of the inspections or if Court, the disparities in the structure of the inspections carried out are out of all

proportion to the objective sought. The of that derogation, which are to prevent principle of proportionality and the discrimination against meat in intra- principle that the costs should be covered Community trade and to guarantee define, the upper limit accepted under Community preference in that sphere. Community law for charges levied in respect of public health inspection of The prohibition of discrimination by no meat imported from non-member means requires that a similar charge countries. should be levied in all the Member States; on the contrary, the principle of There is no indication that that upper Community preference requires that the limit is exceeded by the fee at issue in the Member States should levy charges on main action. imports from non-member countries in order to prevent discrimination against meat in intra-Community trade where The first question submitted to the Court the latter may lawfully be subject, to should be answered as follows: charges levied in respect of public health controls. "Article 11 of Directive 72/461 justifies the levying of a charge to cover the cost The only consideration is whether there of issuing an authorization to import are charges imposed on intra-Com- based on the applicable provisions on munity trade, not the way in which other health control." Member States deal, where necessary, with the resulting risk that products from non-member countries may be placed in (b) Second question an advantageous position. The fact that only one Member State levies charges which are recognized as lawful in intra- The judgment in Simmenthal did not Community trade creates a risk that decide that a national charge levied in meat produced within the Community the non-harmonized area on the basis of will be at a competitive disadvantage and the transitional provision in Article 11 of will be discriminated against. Directive 72/461 was lawful only if comparable charges were levied in all the other Member States; the passage in that The fundamental principle of Com- judgment stating that "the intrinsic effect munity preference makes it unnecessary of such charges on the relevant trade to prove actual discrimination against with third countries must be uniform in meat imported from a non-member all the Member States" relates only to a country. It is necessary to compare the harmonized system of charges. It does charge levied on imports from non- not permit any conclusions to be drawn member countries with the charges in relation to the question under what provided for in the various relevant conditions the Member States are Community directives which may entitled to maintain charges levied at lawfully be levied in the framework of national level, pending harmonization. intra-Community trade.

The Commission considers that this case should enable the Court to examine in The Government of the Italian Republic greater detail and consolidate its considers that the principle embodied in case-law on the legality of national the judgments of the Court that any charges on the importation of meat from discrimination against intra-Community non-member countries. trade must be avoided justifies the levying of a charge on products imported from non-member countries in respect of health control measures. In so far as the charge is not fundamentally different from the cost of the service performed, it It may be seen in particular from the constitutes a measure which is needed so long line of cases that the charges levied as to avoid conditions unfavourable to by a Member State in respect of health intra-Community trade. inspections of imported meat may be lawful on certain conditions. In that regard the case-law relating, on the one hand, to intra-Community trade, concerning either national controls and fees levied unilaterally or charges imposed by a Member State in respect of harmonized health inspections and based In addition, the objective of preventing on Community law or an international conditions of extra-Community trade agreement, and, on the other hand, from being more favourable than those health inspections on the importation of in trade between Member States would products from non-member countries be jeopardized if the lawfulness of the is not without ambiguity or even levying of such charges were subject to inconsistencies. The differences in the the condition that comparable charges be definitions given to the concept of levied in all the Member States. In the charges having an effect equivalent to absence of common rules, account must customs duties in particular present be taken of the diversity of the national problems. In order to overcome the systems. The principle that the charge resulting difficulties, it is necessary to and the cost of the service should be examine, also in relation to trade with equivalent is at present the only criterion non-member countries, whether the which is capable of ensuring that sub- advantage connected with the intro- stantially equivalent conditions are duction of harmonized inspections at the applied at the external frontiers of the external frontiers of the Community, Community. To require that comparable namely the simultaneous abolition of charges should be levied in all the States systematic inspections at national would mean that products from non- frontiers, is not substantial enough to be member countries would be able to enter capable of being regarded as the and circulate in the Community under provision of a service.

No objection can be made under Com- In Wigei, the Court acknowledged that munity law to the German provisions the Member States have some discretion according to which an authorization was in the application of those criteria: they required in 1977 for imports of fresh may require a health certificate to be beef and pigmeat from a non-member drawn up on dispatch, without having to country. take into account the charges levied on that occasion in calculating the charge levied for inspections on importation. In the framework of an inspection procedure beginning with the issue of an import authorization, it is lawful to require at that stage a charge calculated In relation to the legality of the fee on the basis of the cost of the inspections charged for the issue of the author- on importation to be carried out at a ization to import, it follows from the later date. That levying of charges on the Simmenthal and Wigei judgments that issue of the authorization constitutes derogations from the prohibition of merely the advance fixing of the amount charges having equivalent effect laid due. It is for the national court to ensure

IFG v FREISTAAT BAYERN

JUDGMENT OF 31. 1, 1984 — CASE 1/83

The Government of the Federal Republic The Commission stated that according to of Germany stressed in particular the fact the case-law of the Court the prohibition that the rules at issue in the main action of charges having an effect equivalent to constituted a transitional system, with a customs duty does not prevent the the exclusive objective of preventing charging of fees in consideration of a discrimination against intra-Community service, and that a distinction should be trade. The contested fee complies with drawn between measures adopted the principle of proportionality and the exclusively in the general interest and principle that costs may be covered. In those which, as in this case, provide a the context of the scheme of Directive service for the benefit specifically of the 72/461, Article 11 cannot be interpreted imported goods. narrowly. Fees charged in a non-member country cannot be taken into account. The Advocate General delivered his The matter is governed by the principle opinion at the sitting on 29 November of Community preference. 1983.

Decision

1 By o r d e r of 27 O c t o b e r 1982 which was received at the C o u r t o n 4 J a n u a r y 1983, the Bayerisches Verwaltungsgericht M ü n c h e n [Bavarian Administrative C o u r t , M u n i c h ] referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y t w o questions o n the interpretation of Article 11 of Council Directive 7 2 / 4 6 1 / E E C of 12 D e c e m b e r 1972 o n health problems affecting i n t r a - C o m m u n i t y trade in fresh meat (Official J o u r n a l , English Special Edition 1972 (31 D e c e m b e r ) , p. 3 — corrigenda published in the Consolidated Edition of C o r r i g e n d a 1952-1972 of July 1975).

They take the view that, as long as there was no Community system of inspection for imports from non-member countries, it was for the national authorities to cany out the health inspections needed, in such a way as to prevent more favourable treatment of those goods than that applied in intra- Community trade.

5 The plaintiff in the main action for its part claims that Article 11 of Directive 72/461 is no longer applicable since the period prescribed for the implementation of Directive 72/462 has expired, and since that directive has not been properly implemented, it should therefore be possible to rely upon it directly. Even if Article 11 of Directive 72/461 is applicable, the plaintiff's position is not affected by the judgment of 22 January 1980 in Case 30/79 (Land of Berlin v Wigei, [1980] ECR 151), in which the Court accepted that it was lawful to levy a charge for the health inspection of poultry meat imported from non-member countries by virtue of Article 15 of Council Directive 71/118 of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106). That provision, which lays down that:

"Until the entry into force of Community provisions concerning imports of fresh poultry meat from third countries, Member States shall apply to such imports provisions which are at least equivalent to those of this directive",

is in fact different in wording from Article 11 of Directive 72/461.

6 The plaintiff in the main action claims secondly that this case does not concern a genuine charge for health inspections but an administrative charge

9 However, the Court has taken the view that that prohibition loses its purpose where the levying of health inspection charges is authorized by Community provisions adopted in the interests of the free movement of goods, in particular in order to permit the carrying out of public health inspections in

IFG v FREISTAAT BAYERN

the State of origin, valid for the whole of the Community, before the goods are dispatched to other Member States. In that case the Court has acknowledged the compatibility with the provisions of the Treaty of common rules on the levying of health inspection charges, provided that they are sufficiently closely related to the actual cost of the inspections (judgment of 25. 1. 1977 in Case 46/76, Baubuis v The Netherlands, [1977] ECR 5; see also judgment of 12. 7. 1977 in Case 89/76, Commission v The Netherlands, [1977] ECR 1355.

10 Finally, the Court has acknowledged that the health inspection of goods imported from non-member countries is carried out in a different factual and legal context from the inspection of goods originating in the Community and in such a context the levying of health inspection charges by the Member States does not appear to be prohibited in principle, provided, however, that there is a sufficiently close connection between the amount of those charges and the actual cost of the inspections (see the following judgments: judgments of 28. 6. 1978 in Case 70/77, Simmentbal, cited above; of 5. 7. 1978 in Case 138/77, Ludwig v Free and Hanseatic City of Hamburg, [1978] ECR 1645; of 22. 1. 1980 in Case 30/79, Wigei, cited above; and of 22. 3. 1983 in Case 88/82, Amministrazione delle Finanze dello Stato v Leonelli, [1983] ECR 1061).

H The distinction which the plaintiff in the main action has sought to establish between Article 11 of Directive 72/461 and Article 15 of Directive 71/118, to which the Court referred in its judgment of 22 January 1980 in Wigei, has no relevance to the answer to the question submitted, since the two provisions pursue the same objective, namely to prevent products imported from non-member countries from being treated more favourably, as regards health control, than products originating in the Community.

is The objection by. the plaintiff in the main action, to the effect that the fee charged is not a health inspection charge in the true sense of the expression but is a general administrative fee, cannot be upheld either.

i6 During the procedure before the Court, the Government of the Federal Republic of Germany has in fact shown, without its being challenged, that the fee charged is justified by the fact that the authorities must, in order to facilitate imports, continually investigate and obtain information on the health situation in the States in which the goods concerned originate. The sole purpose of levying the charge at issue is therefore to pass those costs on to undertakings, at the time at which the health certificate for importation is issued to them.

i7 Since Article 11 of Directive 72/461 makes a general reference to the "national provisions" applicable to imported fresh meat, a Member State cannot be prevented from passing on to the importer, either at the time at which the import documents are issued or on the occasion of importation

21 In that judgment the Court, whilst acknowledging that in certain circum- stances Member States are entitled to levy health inspection charges on imports from non-member countries, stated that those charges must nevertheless be limited so as to prevent distortions of competition and deflections of trade within the Common Market. It must be noted that such effects are avoided to the extent to which the health charges do not exceed the actual cost of the controls in question. Therefore it cannot be inferred from those considerations that the charging of fees for health inspections of

JUDGMENT OF 31. 1. 1984 — CASE 1/83

products imported from non-member countries is subject to proof that identical or comparable charges are levied by all the other Member States.

22 The answer to the second qeustion must therefore be that the legality of the levying of a charge for health controls on fresh meat imported from non- member countries cannot be subject to proof of the existence of comparable charges in all the other Member States of the Community, if the amount of the charge corresponds to the cost of the controls.

Costs

23 The costs incurred by the Governments of the Federal Republic of Germany and the Italian Republic and by the Commission of the European Communities, which have 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 proceedings before the national court, the decision on costs is a matter for that court.

Mertens de Wilmars Koopmans Bahlmann Galinot

Pescatore Bosco Due Everling Kakouris

Delivered in open court in L u x e m b o u r g on 31 J a n u a r y 1984.

J. A. P o m p e J. Mertens de Wilmars Deputy Registrar President

OPINION OF MR ADVOCATE GENERAL MANCINI D E L I V E R E D O N 29 N O V E M B E R 1983 1

Mr President, Finanze dello Stato v Leonelli, [1983] Members of the Court, ECR 1061).