C-18/87
ECLI:EU:C:1988:327
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- 61987CC0018
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COMMISSION v GERMANY
O P I N I O N O F MR ADVOCATE GENERAL MANCINI delivered on 21 June 1988 *
Mr President, 2. I shall begin with a brief reference to the Members of the Court, relevant rules. At the Community level the rules relating to the protection of animals during international transport are contained in Council Directive 77/489 of 18 July 1977 (Official Journal 1977, L 200, p. 10) and Council Directive 81/389 of 12 May 1981 1. The Commission of the European (Official Journal 1981, L 150, p. 1). Articles Communities has brought an application for 2 and 3 of Directive 81/389 are of a declaration that the Federal Republic of particular importance. Article 2 empowers Germany has failed to fulfil its obligations the authorities of the Member States of under Articles 9 and 12 of the EEC Treaty. transit and of destination to check the The Federal Republic of Germany permits manner in which the persons responsible for the authorities of certain Länder to charge a transport comply with the obligations and fee for inspections carried out on the trans- conditions laid down in Directive 77/489. portation of live animals imported into Article 3 provides that those authorities are Germany or in transit to other destinations to prescribe the measures required to within the Community. remedy any irregularities discovered by them, and to carry out such measures if they are not complied with.
However, they contain no provisions It is apparent from the documents before regarding the manner in which such checks the Court that the administrations of the are to be financed and, in particular, the Länder Bremen, Hessen, Niedersachsen, possibility of the national administrations Nordrhein-Westfalen and Rheinland-Pfalz charging a fee to recoup part of the costs charge transporters a fee for the inspections incurred. In that respect the Verordnung carried out by the Länder with regard to the (order) of 29 March 1983 by which the conditions of transport under which live Bundesminister für Ernährung, Land- animals are in transit in their territories or wirtschaft und Forsten (Federal Minister are imported into those territories. On 19 for Food, Agriculture and Forestry) February 1985 the Commission informed implemented the Community provisions in the German Government, pursuant to Germany is also silent. It is the five Länder Article 169 of the EEC Treaty, of its view which are alleged to have introduced a fee that that practice was incompatible with the and to have laid down rules governing the aforementioned Community prohibitions manner in which it is collected and the and requested it to bring the practice to an amount thereof. end. As the German Government firmly refused to adopt the measures necessary for that purpose, the Commission brought 3. The Commission maintains that since the proceedings before the Court of Justice by fees at issue are levied solely in respect of application lodged on 26 January 1987. intra-Community trade they constitute a -
* Translated from the Italian.
OPINION OF MR MANCINI — CASE 18/87
charge having an effect equivalent to a such cases the amount charged must not customs duty and are therefore contrary to exceed the actual cost of the inspection. the prohibition laid down in Article 12 of the EEC Treaty. It states that the fees do In the case before the Court it is clear that not form part of a general system of dues the German regional authorities are acting also applied to livestock transported within in accordance with the provisions of Germany and that since the sole purpose of Directives 77/489 and 81/389 and in fact the inspections in respect of which they are for the purpose of ensuring compliance charged is protection of the animals the fees
therewith. The purpose of the two directives do not constitute the consideration for a is namely to protect livestock during inter- benefit provided for the person concerned. national transport. It is evident that such an objective may be attained solely by the establishment of a system of inspections aimed at determining whether the trans- The German Government disputes those porter holds the health certificate for the contentions and bases its defence on the animals in question and is complying principles laid down by the Court in its throughout the course of the journey with judgment of 25 January 1977 in Case 46/76 the conditions of transport laid down by the (Baubais v Netherlands State [1977] ECR 5) Community provisions. and the subsequent line of consistent
decisions. It states that, as in that case, the fees at issue are intended to finance a The method of transport and the system of uniform health inspections estab- surrounding circumstances may vary during lished by a directive in order to satisfy one the course of the journey. In order to of the general interests of the Community, be able to check that the necessary namely the protection of animals trans- requirements are being complied with at ported within its territory. Far from consti- every stage it is therefore necessary that the tuting a charge having an effect equivalent aforementioned inspections should not be to a customs duty the fees therefore limited to the countries of departure and contribute to the realization of Community arrival but should extend to the countries of objectives. transit. Article 2 of Directive 81/389 itself provides, moreover, that it is for the auth- orities of the 'Member States of transit and of destination' to check that the transport is effected properly.
4. What view should be taken of those submissions? It follows from the Court's judgment in the Bauhuis case that the fees Consequently, intermediate inspections are charged on the imported goods or on goods in complete accordance with the general in transit to other Member States by reason interests of the Community in this area. The of the fact that they cross a frontier do not Commission's submission that the interest of fall under the prohibition in Article 12 of the Community consists solely in the facili- the EEC Treaty if: (a) they constitute the tation of intra-Community trade and that it consideration for a benefit actually provided is served by the elimination or reduction of for the transporter or the importer, (b) they inspections cannot be accepted.
Such a form part of a general system of internal requirement undoubtedly exists, but it dues applied in accordance with the same cannot set aside or even take precedence criteria to domestic goods and to imports over the specific need to ensure adequate and exports, (c) they are charged in protection for animals in the course of connection with inspections prescribed by a transportation. I would add, furthermore, Community directive. It is evident that in all that the requirement cannot have such an
COMMISSION v GERMANY
effect even in the absence of rules regarded as a charge having an effect equi- harmonizing the fees charged by the valent to a customs duty. Member States for the checks carried out by them (see paragraph 36 of the decision in Moreover the level of the fees does not the Bauhuis case). exceed the actual cost of the inspections and the inspections are carried out only once on the territory of the Federal Republic of 5. In the light of the foregoing comments Germany. The former was accepted by the the Commission's application appears Commission; the latter information was unfounded. Although the fees charged by supplied by the German Government in the five Lander are not directly provided for reply to a question put by the Court and by the Community rules, they are in fact dispels the suspicion of abuse expressed by levied in respect of inspections required by the Commission in the course of the those rules and, consequently, may not be proceedings.
6. In view of all the foregoing considerations I propose t h a t the action b r o u g h t b y the Commission of the E u r o p e a n C o m m u n i t i e s on 26 J a n u a r y 1987 against the Federal Republic of G e r m a n y should be dismissed and t h a t the unsuccessful p a r t y should be o r d e r e d to pay the costs.