C-374/97

FEYRER V LANDKREIS ROTTAL-INN

OPINION OF ADVOCATE GENERAL LÉGER delivered on 18 March 1999 *

1. In this case the Bayerischer Verwaltungs- reduction or abolition of the fees 4 charged gerichtshof (Bavarian Administrative in respect of such inspections and controls. Court) is seeking an interpretation by the Court of certain provisions of Community law concerning harmonisation of the fees to be charged for health inspections in slaugh- terhouses. The Court is requested in parti- 3. Article 1(1) of Directive 85/73 requires cular to rule on whether certain provisions Member States to charge a Community fee of Council Directive 85/73/EEC of 29 Jan- for the costs occasioned by health inspec- uary 1985 on the financing of health tions and controls of the meat referred to in inspections and controls of fresh meat and the various Community directives. poultrymeat, 1 as amended by Council Directive 93/118/EC of 22 December 1993 2(hereinafter 'the Directive'), which were not transposed into German law 4. Article 1(2) specifies the costs covered within the prescribed period, have direct by those fees. It provides: 'The fees referred effect. to in paragraph 1 shall be fixed so as to cover the costs incurred by the competent authority for

— salary costs, including social-security costs; The relevant Community legislation

— administrative costs, which may 2. The purpose of the Directive is to include the expenditure required for harmonise the rules on the financing of in-service training of inspectors health inspections and controls in slaugh- terhouses 3 and to prevent distortion of competition occurring as a result of the for carrying out the controls and inspec- tions referred to in paragraph 1'. * Original language: French. 1 — OJ 1985 L 32, p. 14. 2 — OJ 1993 L 340, p. 15. 3 — Fourth recital in the preamble to the Directive. 4 — Sixth recital in the preamble to the Directive.

9. Paragraph 24(1) of the Fleischhygiene- gesetz (Law on Meat Hygiene; hereinafter 'In order to cover increased costs, Member 'the FlHG') of 18 December 1992, 5in the States may, version in force at the time when the decisions contested in the main proceedings were taken, 6provides that the measures giving rise to collection of fees are to be determined by Land legislation and that the fees are to be calculated 'pursuant to Council Directive 85/73/EEC of 29 January (a) increase the standard amounts for fees pursuant to points 1 and 2(a) for 5 — BGBl. I, p. 2022. individual establishments; 6 — See point 14 of this Opinion.

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14. Mr Feyrer, who runs a butcher's busi- ness within the jurisdiction of the Land- kreis Rottal-Inn — attending to his own 11. Paragraph 3(1) of the AGFIHG pro- slaughtering operations — is challenging vides that the competent authorities of the the amount of the fees which he was Land concerned must bear the costs con- charged following health inspections and nected with performance of the tasks controls of meat carried out by the compe- allocated to them, whether or not such tent authorities in 1995.

9 — The Fleischhygiene-Verordnung (meat hygiene regulations) 7 — GVB1. I, p. 336. of 30 October 1986 (BGBl. I, p. 1678), amended by the 8 — Abi. des Landkreises Rottal-Inn 1997, p. 123. regulation of 11 March 1988 (BGBl. I, p. 303).

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19. The national court states that the wording of the provisions concerning the Member States' option of collecting an 17. The judgment of the Bayerisches Ver- amount exceeding the standard amounts waltungsgericht Regensburg, the national laid down was amended by Directive court seised of the dispute at first instance, 93/118. Point 4(b) of the Annex relating was the subject of an appeal by Landkreis to Article 2(1) of the Directive, in particu- Rottal-Inn before the Bayerischer Verwal- lar, was thereby amended. tungsgerichtshof, which speculates whether t h e j u d g m e n t of t h e C o u r t in Case C-156/91 Hansa Fleisch 10 may be applied to the present case. In that case the Court was asked whether it would regard 20. Since the Bayerischer Verwaltungsger- as unconditional and sufficiently precise ichtshof was uncertain as to the meaning Article 2(1) of Council Decision 88/408/ and scope of the judgment in Hansa EEC of 15 June 1988 on the levels of the Fleisch, cited above, and as to the inter- fees to be charged for health inspections pretation of the new provisions of Directive and controls of fresh meat pursuant to 93/118, which have a direct bearing on the Directive 85/73/EEC, 11 which laid down outcome of the case pending before it, it stayed proceedings and referred the follow-

10 — [1992] ECR I-5567. 11 — OJ 1988 L 194, p. 24. 12 — Paragraph 1 of the operative part.

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ing questions to the Court of Justice for a total fee collected by the local authority preliminary ruling: is not greater than the actual figure for inspection costs incurred by that authority?'

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inspection services and the option of rules which confer on him rights but also exceeding the standard amount is open to impose on him obligations, since 'it would Member States with no obligation to be incompatible with the binding effect demonstrate in advance that certain condi- attributed to [directives] by Article 189 to tions have been satisfied. exclude in principle the possibility that persons affected may invoke the obligation imposed by the [directive]'. 14

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derogation thus provided for is subject to the period laid down by Article 11 of the judicial review...'. 17 decision'. 19

29. It was therefore only because the period for transposition had not yet expired that the Court refused to recognise that the 27. The Court also stated that 'the possi- applicant could rely on Article 2(1) of the bility granted to individuals of relying on a Decision before the competent national decision as against the Member States to courts in order to oppose demands for the which it is addressed is based on the payment of fees issued after the expiry of binding nature of the decision vis-à-vis its the period laid down by Article 11 of that addressees. Consequently, where the deci- Decision. However, where derogations sion grants the Member States a specified from the principle of a standard Commu- period in which to comply with the obliga- nity fee are subject to strict compliance tions resulting from it, the decision may not with conditions which are subject to judi- be relied on by individuals as against the cial review, the contested provision may Member States before the expiry of the have direct effect. period in question'. 18

ber States ample opportunity to provide for required only in order to charge less than fees exceeding the standard levels in ques- the standard amount fixed by the Commu- tion. nity legislature. 21 There are no longer any conditions for charging more than the standard amount. In other words, the Directive relaxed the conditions for taking the option, available to Member States under Decision 88/408, of collecting fees 31. Let us compare the Community legisla- higher than the standard amount. Arti- tion at issue. cle 2(3) of the Directive provides simply that 'Member States shall be authorised to collect an amount exceeding the level or levels of the Community fees, provided that the total fee collected by each Member 32. Under Article 2(2) of Decision 88/408, State is not greater than the actual figure Member States could reduce or increase the for inspection costs'. Moreover, point 4 of amount of the Community fee fixed at the the annex relating to Article 2(1) of the standard level in paragraph 1 to meet the Directive merely provides that: 'in order to real figure for inspection costs only where cover increased costs, Member States may... 'salary costs, the structures of establish- (b) or collect a special fee covering actual ments, and the ratio between veterinarians costs'. and inspectors differ[ed] from those of the Community average adopted for the calcu- lation of the standard amounts laid down in paragraph 1'. Also, the second subpar- agraph of Article 2(2) provides: 'Member States shall have recourse to the exemptions laid down in the first paragraph on the basis of the principles set out in the Annex'. The annex set out a series of conditions to be met in order to depart — upwards or 35. Since Member States are no longer downwards — from the Community aver- required to satisfy pre-conditions in order age. to increase the standard amount of fees provided for in Article 2(1) of the Direc- tive, they are at liberty to choose either the fee at the standard rate fixed by the Community legislature or a specific fee in a higher amount, covering the actual costs 33. The inference was that the Community legislature permitted only a narrow discre- tion to Member States in determining the 21 — See point 5 of the Annex relating to Article 2(1) to the amount of the fee. Directive, which provides: '(5) Member States in which salary costs, the structure of establishments and the relationship between veteri- narians and inspectors diverge from the Community average taken as a basis for calculation of the standard amounts fixed in points 1 and 2(a) may exceptionally reduce them to meet the real costs of inspection: (a) in general, where there are substantial differences 34. Since the entry into force of Directive in the cost of living and salary costs; (b) for individual establishments, where the following 93/118, compliance with pre-conditions is conditions are met...'.

incurred by the inspection services, without 38. Indeed, the aim of this piece of legisla- any need to justify their choice. It must be tion is not to harmonise the amount of the inferred from this that the Directive offers fee to be collected for health inspections Member States an alternative: either a and controls of fresh meat, but to harmo- standard rate Community fee fixed in nise the rules for financing such controls accordance with Article 2(1) of the Direc- and to prevent distortion of competition. tive and point 1 of the annex thereto, or a Provision is thus made for a minimum specific fee in an amount determined by the amount which may be departed from where competent national authorities and cover- the actual costs of inspections and controls ing the costs actually incurred. It appears differ from the levels set by the Community from the documents in the case that the legislature. Those costs comprise inter alia Federal Republic of Germany legitimately salary costs, including the social-security chose the second option. costs of the inspectors. 22 Suchcosts are not identical throughout the Community. Hence, the aim of the directive cannot be to harmonise the amount of the fee. However, by determining the procedure which must be followed in order to fix the amount of the fee and the parameters which must be taken into account in order to calculate it, the Community legislature 36. I must therefore conclude that, follow- has put into effect instruments which will ing upon the entry into force of Direc- prevent distortion of competition. tive 93/118, persons liable to pay fees cannot rely before the national courts on an obligation to comply with the standard amounts set by the Community legislature as against the administrative authorities of their Member State in order to oppose the collection of fees which are higher than the amount provided for in Article 2(1) of the Directive and which correspond to the actual figure for inspection costs. In other words, Article 2(1) of the Directive, from which Member States may easily derogate, does not impose an unconditional obliga- tion on a Member State. 39. It is apparent therefore that Article 2(1) of the Directive cannot, on account of its conditional nature, directly enable indivi- duals, in the absence of measures to transpose the Directive within the pre- scribed period, to rely on the obligation to pay the standard amount laid down 37. Further support for this interpretation therein, where a Member State fixes a of Article 2(1) of the Directive is offered by the fact that it is consistent with the purpose of that Directive. 22 — Article 1(2) of the Directive.

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Community fees following the procedures them, is therefore the regional or local laid down in the Annex...'. 23 level, not the national level.

44. The Court has already held that 'each 46. Moreover, in my view, the very concept Member State is free to allocate powers of the 'actual figure for inspection costs' internally and to implement Community precludes the interpretation proposed by acts which are not directly applicable by Mr Feyrer. If one accepts that, where a means of measures adopted by regional or Member State delegates its powers to local local authorities, provided that that alloca- authorities, the amount of the fee is calcu- tion of powers enables the Community lated at national level, this can only be an legal measures in question to be implemen- average of the total costs incurred by each ted correctly'. 24 veterinary service operating in national territory, never the actual costs incurred by the competent service concerned.

45. Consequently, where a Member State has delegated authorisation to collect the Community fee referred to in Article 2(3) 47. Consequently, Article 2(3) of the Direc- of the Directive, the 'competent authority' tive should be interpreted as meaning that, for the purposes of Articles 1(2) and 2(1) of where a Member State has delegated the the Directive is the regional or local collection of fees to local authorities, the authority. According to those provisions, 'actual figure for inspection costs' referred the geographical level at which to deter- to in that provision means the actual figure mine the actual figure for inspection costs, for the costs incurred by the local autho- incurred by the veterinary inspection ser- rities in question, not the total costs vices which carry out the tasks entrusted to incurred in the Member State.

(2) Article 2(3) of Directive 85/73, as amended by Directive 93/118, should be interpreted as meaning that where a Member State has delegated the collection of fees to local authorities, the 'actual figure for the inspection costs' mentioned in that provision means the costs incurred by the local authorities in question, not the total costs incurred in the Member State.

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