C-272/95
ECLI:EU:C:1997:6
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BUNDESANSTALT FÜR LANDWIRTSCHAFT U N D E R N Ä H R U N G v DEUTSCHES M I L C H - K O N T O R
OPINION OF ADVOCATE GENERAL LÉGER delivered on 9 January 1997
1. The Bundesverwaltungsgericht has Darmon in the case —, I would merely referred to the Court the same questions in remind the Court that the case raises essen- every respect, arising out of the same dis- tially two problems. The questions put to the pute, as those which gave rise to the Court's Court concern, on the one hand, the fre- judgment of 22 June 1994 in Deutsches quency and type of inspections which may Milch-Kontor l (hereinafter 'the judgment' or be carried out under the relevant Commu- 'the judgment of 22 June 1994'). nity rules and, on the other hand, on the compatibility with Community law of charging to traders the costs of the analyses carried out on the occasion of systematic inspections of milk intended to be exported Those questions are concerned with the for the purposes of processing. interpretation of various Community regula- tions governing the conditions for granting Community aid for skimmed-milk powder produced in a Member State and intended for processing in another Member State.
4. By way of reminder, I would mention that the applicable Community legislation was introduced in order to support the dis- 2. The national court considers that the posal on the market of the products falling answers given in the judgment of 22 June within its scope, through their use in animal 1994 relate to a factual situation different feed. Under the system established the aid is from that set out in its request and that in principle to be granted in the Member therefore they are not such as to dissipate the State in which the processing took place. 2 doubts which it entertains regarding the However, it is also open to the Member interpretation of Community law which it States to derogate from that system by sought. authorizing payment of the aid by the State in which the product is manufactured and not by the State in which it is processed. The Member States have had recourse to this option only as regards the export of 3. Without repeating in detail the context of skimmed-milk powder to Italy. As regards the case — I would refer, so far as may be products intended for that country, it there- necessary, to the judgment of 22 June 1994 fore falls to the exporting Member State to and to the Opinion of Advocate General
2 — Regulation (EEC) N o 986/68 of the Council of 15 July 1968 laying down general rules for granting aid for skimmed milk * Originai language: French. and skimmed-milk powder for use as feed (OJ, English Spe- 1 — Case C-426/92, ECR 1-2757. cial Edition 1968 (I), p. 176).
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pay the aid for skimmed-milk powder pro- 7. In its order for reference in this case 5 the duced in its territory but intended for dena- Bundesverwaltungsgericht states that that turing or processing in Italy. 3 The payment office is situated in Hamburg and that the of the aid is made subject to certain condi- inspections are carried out as part of cross- tions. 4 border operations, but within the country, a long way from the frontier (German- Austrian or German-Swiss) which is to be crossed.
5. Deutsches Milch-Kontor (hereinafter 'DMK') exports skimmed-milk powder from Germany to Italy, where it is intended for 8. Since the parties were in disagreement on processing into compound feedingstuffs for the question whether DMK could require animals. Transport is effected in lorries, each from the BEF reimbursement of those costs, one conveying a batch of around 25 tonnes. the national court referred to this Court, in Case C-426/92, the following questions:
6. In order to determine whether the milk '1. Is the first subparagraph of Article 2(4) could qualify for aid, the Bundesamt für of Regulation (EEC) N o 1624/76 of 2 July Ernährung und Forstwirtschaft (Federal 1976, as amended by Article 1 of Regulation Office for Food and Forestry) (hereinafter (EEC) N o 1726/79 of 26 July 1979, to be 'the BEF') arranged for inspections to be car- interpreted as meaning that, where skimmed- ried out by the competent customs dispatch milk powder produced in Germany is office. Those inspections were carried out exported by lorry to Italy for use in the systematically, and consisted in taking manufacture of compound feedingstuffs, the samples from each lorry-load, which were competent authority is required to take a subsequently analysed. The cost of analysis sample from each lorry-load and have it relating to those inspections were charged to analysed in order to be able to issue the cer- DMK by the BEE tificate referred to in that provision?
3 — Commission Regulation (EEC) N o 1624/76 of 2 July 1976 concerning special arrangements for the payment of aid for skimmed-milk powder denatured and processed into com- pound feedingstuffs in the territory of another Member State (OJ 1976 L 180, p. 9). 4 — Laid down by Commission Regulation (EEC) N o 1726/79 2. If Question 1 is answered in the negative, of 26 July 1979 amending Regulation (EEC) N o 1624/76, what criteria are to be elicited from Article Regulation (EEC) N o 368/77, Regulation (EEC) N o 443/77 and Regulation (EEC) N o 1844/77 on aid measures and spe- cial sales operations for skimmed-milk powder for use in feed and by Commission Regulation (EEC) N o 1725/79 of 26 July 1979 on the rules for granting aid to skimmed milk processed into compound feedingstuffs and skimmed-milk 5 — Page 6, second paragraph of the French translation of the powder intended for feed for calves (OJ 1979 L 199, p. 1). order for reference.
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2(1 )(a) of Regulation (EEC) N o 1624/76, as Regulation (EEC) N o 1725/79 of 26 July amended by Article 1 of Regulation (EEC) 1979 on the rules for granting aid to N o 1726/79, in conjunction with Article 10 skimmed milk processed into compound of Regulation (EEC) N o 1725/79 for the feedingstuffs and skimmed-milk powder purpose of determining the frequency with intended for feed for calves, in conjunction which samples must and may be taken in the with Article 34 of the EEC Treaty, must be case of skimmed-milk powder exported by interpreted as not permitting systematic lorry to Italy? inspections to be carried out at the frontier with a view to verifying compliance with the conditions as to the composition and quality of skimmed-milk powder intended for pro- cessing into compound feeding-stuffs in another Member State, on which entitlement to export refunds depends. However, those provisions do not preclude frontier inspec- 3. Is it compatible with the prohibition of tions, provided that they are carried out only charges having an effect equivalent to cus- by means of spot checks. toms duties (Articles 9, 12 and 16 of the EEC Treaty), the prohibition of discrimi- nation (Article 95 of the EEC Treaty) and other provisions of Community law to make the exporter bear the full costs under national law of systematic or occasional inspections?'
2. A charge levied in respect of the system- atic frontier inspections referred to above constitutes a charge having an effect equiva- 9. In its judgment of 22 June 1994 this lent to a customs duty on exports which is Court ruled as follows: prohibited under Articles 9 and 12 of the Treaty, even if it corresponds to the actual cost of each inspection.'
' 1 . Article 2(1) and (4) of Commission Regulation (EEC) N o 1624/76 of 2 July 1976 concerning special arrangements for the pay- ment of aid for skimmed-milk powder dena- tured or processed into compound feeding- stuffs in the territory of another Member 10. Notwithstanding that judgment, the State, as amended by Article 1 of Commis- Bundesverwaltungsgericht has referred the sion Regulation (EEC) N o 1726/79 of 26 same questions to the Court, justifying their July 1979, and Article 10 of Commission repetition as follows.
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11. It points out that mention is expressly put to it must receive the same answer where made, not only in the operative part but also the inspections are carried out in the context in the grounds of the Court's judgment, of of a cross-frontier transaction, but within the systematic 'inspections at the frontier'. It State, at a great distance from the frontier to considers that, in so doing, this Court based be crossed, as where the inspections are car- itself on facts which depart from those which ried out when the frontier is crossed. had been set out in the order for reference and that, for this reason, the case is still not ready for hearing and determination. According to the Bundesverwaltungsgericht, the language used in the judgment of 22 June 1994 suggests that this Court had in mind '... inspections -which take place close to the frontier and not to inspections within a State 14. In my opinion this question, as reformu- on the occasion of a proposed frontier cross- lated, must be answered in the affirmative. ing', these inspections being 'exclusively inspections carried out immediately next to the frontier when it is being crossed'. 6
15. Let us look in turn at each of the two questions formulated by the national court 12. However, in the present case the and let us set the answers which the Court Bundesverwaltungsgericht makes it clear that has given to them against the facts as clari- the inspections at issue '... at the competent fied today. dispatch customs office in Hamburg, and thus in respect of a cross-frontier transac- tion, but within the country, at a great dis- tance from the frontier to be crossed'. 7
16. In replying to the first two questions, the Court considered that, since inspections 13. Thus the sole object of the present refer- which are carried out systematically through ence for a preliminary ruling is ultimately to taking samples in the Member State of dis- obtain clarification from this Court on the patch, and which are intended to check the point whether the judgment of 22 June 1994 composition and quality of the milk from applies to the factual situation as specified, the point of view of receipt of aid, are nei- without there being any need to review the ther prescribed by the relevant Community solution adopted. In other words, the Court rules nor justified by one of the require- is solely being asked whether the questions ments recognized by Article 36 of the Treaty, they constitute measures having an effect equivalent to quantitative restrictions on exports in trade between Member States, 6 — Order for reference, p. 5 of the French translation 7 — Ibid., p. 6, second paragraph, sixth line. prohibited by Article 34 of the Treaty.
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17. The fact that the Court referred to 19. The grounds stated in the Court's judg- inspections at the frontier does not appear to ment moreover remain valid irrespective of me to be in any way a deciding factor in the the place where the inspections at issue take reasoning which it followed. place.
18. A reading of the judgment shows that the place where those inspections are carried out is of little consequence. It was the fre- 20. Referring to its earlier case-law, 10 the quency and the nature of the inspections Court first pointed out that: prescribed in this case by national law — that is to say, systematic inspections carried out by the taking of samples — which the Court held to be contrary to Community law.
'... in intra-Community trade, any systematic inspection at a frontier constitutes an obstacle which may be in breach of Articles 30 and 34 of the Treaty'. n Thus, the Court made it clear that inspec- tions at the frontier having the same purpose would be permissible if their nature and fre- quency were different:
In order to fall under the prohibition laid down in those provisions, it is sufficient that the measures at issue be liable to impede, directly or indirectly, actually or potentially, '... they [the Member States] cannot be pre- imports or exports between Member States. vented from maintaining frontier inspections Measures of that kind include all inspections in respect of consignments intended for which, as a result of the delays inherent in export, provided that such inspections take them and of the additional transport costs place on a random hasis'; 8 '... Those provi- which the trader may incur thereby, are '... sions [the Community provisions at issue] likely to make imports or exports more dif- do not preclude frontier inspections, pro- ficult or more costly'. , 2 vided that they are carried out only by means of spot checks'. 9 10 — Judgments in Case 35/76 Simmenthal [1976] ECR 1871, point 14, and in Case 190/87 Moorman [1988] ECR 4689, point 8, cited in paragraphs 20 and 21 of the judgment. 8 — Paragraph 44, my emphasis. 11 — Paragraph 22. 9 — Paragraph 45, my emphasis. 12 — Paragraph 20.
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Whether these inspections are in practice car- which were set out by the Court. As the ried out when the goods actually cross the Court pointed out, with regard to the prac- frontier with a view to exportation or prior tical and financial reasons invoked, '... it need to this, but still with the object of crossing only be pointed out that Article 36 of the the frontier, makes no difference to the fact Treaty cannot be relied on to justify rules or that, owing to their systematic nature and practices which, even though they are benefi- the manner in which they are carried out, cial, contain restrictions which are explained they are 'likely to make trade more difficult primarily by the concern to lighten the or more costly' and thus infringe Article 34 administration's burden or reduce public of the Treaty. expenditure ...', 13 and, with regard to the second argument, '... suffice it to point out that systematic inspections not provided for under the relevant Community rules cannot constitute a counterpart of that kind'. 14
21. Once it is accepted that inspections such as those described by the national court con- stitute quantitative restrictions on exports, prohibited by Community law, irrespective of the place where they are carried out, it is necessary to examine the question whether taking that place into consideration can cast doubt on the finding at which the Court arrives on the basis of the absence of any jus- tification for such inspections under Article 36 of the Treaty.
24. In Case C-426/92 the Commission attempted to justify the inspections at issue by a third argument — also put forward at the hearing in the present case by the repre- sentative of the BEF — namely that '... fron- 22. Three grounds of justification have been tier inspections are the only way to prevent put forward. fraud during the journey between the fac- tory where the goods are produced and the processing undertaking'. , s Nor, in rejecting that view on the ground, in conformity with its case-law, 16 that '... systematic frontier inspections are not compatible with the pro- 23. As regards the first two, one involving visions governing the free movement of arguments of an economic and practical goods ...', I 7 did the Court have recourse to a nature, the other based on an analysis of the inspections as constituting a counterpart of the advantages deriving from voluntary 13 — Paragraph 39. acceptance of a system of export refunds, the 14 — Paragraph 40. taking into account of the place of inspection 15 — Paragraph 37, my emphasis. cannot in my view call in question the rejec- 16 — Judgment in Case 39/70 Fleischkontor [1971] ECR 49, point 5. tion of these arguments on the grounds 17 — Paragraph 42.
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criterion based on the place of those inspec- 26. By its last question the Bundesverwal- tions. The Court pointed out that: tungsgericht wishes to ascertain whether all the costs occasioned by the inspections at issue can be charged to the exporter.
'... even if the frontier inspections in question are likely to prevent fraud during transporta- 27. On this point, too, I think I must adhere tion within Germany, they provide no guar- to the answer which the Court gave in the antee that the goods will still satisfy the first preliminary ruling proceedings. Once minimum conditions as to composition and again, the place of the inspections cannot quality required by the Community rules alter the fact that a charge levied in respect of when they reach the processing undertaking. the systematic inspections at issue '... consti- Fraud cannot be ruled out during transport tutes a charge having an effect equivalent to a within the territory of transit States or customs duty on exports which is prohibited within that of the State of destination under Articles 9 and 12 of the Treaty, even if itself.' 18 it corresponds to the actual cost of each inspection'. 19
Nor, similarly, do inspections carried out on account of the crossing of the frontier, but within the territory of the State of dispatch, 28. The 'frontier inspections' referred to in provide any guarantee that no fraud will be the judgment of the Court are in my view to committed during the remainder of the jour- be understood without any reference to the ney. place in which they are carried out. It is of no account whether they are carried out close to the actual frontier between two States or within one of those States, provided that a crossing of the frontier is intended.
25. The answers which you gave to the first two questions therefore remain valid in cir- cumstances where the inspections did not take place when the frontier was crossed but 29. The deciding factor is not the place did so at the competent customs dispatch where these inspections are carried out but office in Hamburg. the reason for which they are carried out,
18 — Paragraph 43. 19 — Paragraph 56.
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that is to say because the transported goods 30. The decisive factors are the nature and are intended to cross the frontier. It makes frequency of the inspections carried out. In no difference whether the samples are taken the context of the rules at issue, systematic directly at the frontier, when it is crossed, or inspections carried out by the taking of at the competent customs dispatch office. samples are, according to the judgment of 22 June 1994, not permissible.
3 1 . I therefore p r o p o s e that the questions p u t b y the Bundesverwaltungsgericht, as reformulated, be answered as follows:
T h e j u d g m e n t of the C o u r t delivered o n 22 J u n e 1994 in Deutsches Milch-Kontor (Case C-426/92) falls t o be applied irrespective of the place w h e r e the inspections at issue are carried out, and d o e s so in particular w h e r e t h e y are carried o u t w i t h i n t h e c o u n t r y , at a great distance from t h e frontier w h i c h is t o b e crossed, p r o v i d e d t h a t it is actually intended t h a t t h e r e will b e such a crossing.
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