C-36/97

KELLINGHUSEN AND KETELSEN

JUDGMENT OF THE COURT (Sixth Chamber) 22 October 1998 *

In Joined Cases C-36/97 and C-37/97,

REFERENCES to the Court under Article 177 of the EC Treaty by the Schleswig- Holsteinisches Verwaltungsgericht (Germany) for a preliminary ruling in the pro­ ceedings pending before that court between

Hilmar Kellinghusen

and

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JUDGMENT OF 22. 10. 1998 —JOINED CASES C-36/97 AND C-37/97

Amt für Land- und Wasserwirtschaft Husum,

Joined party: Ministerium für ländliche Räume, Landwirtschaft, Ernährung und Tourismus des Landes Schleswig-Holstein,

on the interpretation and validity, in Case C-36/97, of Article 15(3) of Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (OJ 1992 L 181, p . 12), and, in Case C-37/97, of Article 30a of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organisation of the market in beef and veal (OJ, English Special Edition 1968 (I), p . 187), as amended by Council Regulation (EEC) No 2066/92 of 30 June 1992 amending Regulation No 805/68 and repealing Regulation (EEC) No 468/87 laying down general rules applying to the special premium for beef producers and Regulation (EEC) No 1357/80 introducing a system of premiums for maintaining suckler cows (OJ 1992 L 215, p . 49),

THE COURT (Sixth Chamber),

— the Amt für Land- und Wasserwirtschaft Kiel, the Amt für Land- und Wasser­ wirtschaft Husum and the Ministerium für ländliche Räume, Landwirtschaft, Ernährung und Tourismus des Landes Schleswig-Holstein, by Jürgen Gün- disch, Rechtsanwalt, Hamburg,

— the German Government, by Ernst Roder, Ministerialrat in the Federal Min­ istry of Economic Affairs, and Bernd Kloke, Oberregierungsrat in that Min­ istry, acting as Agents,

— the Greek Government, by Ioannis Chalkias, Deputy Legal Adviser to the State Legal Council, and Elli-Markela Mamouna, lawyer in the Special Legal Service for the European Communities of the Ministry of Foreign Affairs, acting as Agents,

— the Swedish Government (C-37/97), by Erik Brattgård, Departementsråd, acting as Agent,

— the Council of the European Union, by Jan-Peter Hix and Lauri Railas, of its Legal Service, acting as Agents,

— the Commission of the European Communities, by Klaus-Dieter Borchardt, of its Legal Service, acting as Agent,

gives the following

Judgment

1 By orders of 18 October 1996, received at the Court on 27 January 1997, the Schleswig-Holsteinisches Verwaltungsgericht (Schleswig-Holstein Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation and validity, in Case C-36/97, of Article 15(3) of Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a sup­ port system for producers of certain arable crops (OJ 1992 L 181, p. 12), and, in Case C-37/97, of Article 30a of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organisation of the market in beef and veal (OJ, English Special Edition 1968 (I), p . 187), as amended by Council Regulation (EEC) No 2066/92 of 30 June 1992 amending Regulation No 805/68 and repealing Regulation (EEC) No 468/87 laying down general rules applying to the special premium for beef producers and Regulation (EEC) No 1357/80 introducing a system of pre­ miums for maintaining suckler cows (OJ 1992 L 215, p . 49).

2 Those questions were raised in proceedings brought before the Verwaltungsgericht by Mr Kellinghusen and Mr Ketelsen against decisions taken respectively by the Amt für Land- und Wasserwirtschaft Kiel (Office for Agriculture and Water, Kiel) and the Amt für Land- und Wasserwirtschaft Husum (Office for Agriculture and Water, Husum), concerning the grant of direct income subsidies to agricultural pro­ ducers.

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ELLINGHUSEN AND KETELSEN

6 The Land Schleswig-Holstein charges administrative fees in consideration of the payment of direct income subsidies to producers. Those fees are charged pursuant to the Landesverordnung über Verwaltungsgebühren (Land Regulation on Admin­ istrative Fees), tariff headings 15.15 to 15.17 of which, inserted by the Landesver­ ordnung of 29 October 1993 (hereinafter 'the Land regulation'), extend the charging of administrative fees to certain areas, with effect from 1 January 1994.

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JUDGMENT OF 22. 10. 1998 — JOINED CASES C-36/97 AND C-37/97

7 Those tariff headings are worded as follows:

'15.15 Grant of a compensatory payment pursuant to Article 2(1) of Regulation (EEC) No 1765/92 ...

a) Basic fee (in DM )

maximum of 10 bovine animals 30

between 10 and 30 bovine animals 50

more than 30 bovine animals 80

b) plus, per bovine animal, (in DM) 2

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KELLINGHUSEN AND KETELSEN

The main proceedings

8 By decisions of 30 September 1994, 30 November 1994 and 31 March 1995, the Amt für Land- und Wasserwirtschaft Kiel (hereinafter 'the Amt in Kiel') granted Mr Kellinghusen, as applied for, compensatory payments for the marketing year 1994/1995 of a total of DM 175 945.07 for a total area of 236.5 hectares and for growing cereals, protein crops and oil seeds and for economic set-aside. By separate decision of 30 September 1994, the Amt in Kiel also charged him an administrative fee of DM 788 therefor, in accordance with tariff heading 15.15 of the Land regula­ tion, made up of a basic fee of DM 80 and an additional amount of DM 3 per hectare of the area under crops.

9 By decision of 31 March 1995, the Amt für Land- und Wasserwirtschaft Husum granted Mr Ketelsen, for the calendar year 1994 and as applied for, the special pre­ mium for beef producers of DM 23 305.92 for 67 cows. By separate decision of

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JUDGMENT OF 22. 10. 1998 — JOINED CASES C-36/97 AND C-37/97

31 March 1995, it charged him a fee of DM 214 for the administrative work con­ nected with the grant of the premium.

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KELLINGHUSEN AND KETELSEN

tions for support payments, if those administrative fees correspond to the rates which are otherwise usual in national law and are so low that they are not capable of deterring applicants from applying for support payments?

(2) If Question 1 is answered in the affirmative:

Does Article 15(3) of the said Council Regulation infringe higher-ranking Community law, in particular the principle of cooperation in good faith under Article 5 of the EC Treaty, the principle of proportionality under the third paragraph of Article 3b of the EC Treaty, and the principle of subsidiarity under the second paragraph of Article 3b of the EC Treaty?'

Case C-37/97

The first question

14 The plaintiffs in the main proceedings, the German Government and the Commis­ sion submit that, having regard to their wording and purpose, the provisions in issue prohibit not only a direct deduction from the compensatory payments, but also an indirect reduction consisting, in particular, of the charging of administrative fees.

15 On the other hand, the defendants in the main proceedings and the Greek and Swedish Governments contend that the provisions in issue do not prohibit the levying of administrative fees, but merely demand that the payments should be made in full.

16 It should first be borne in mind that the provisions of Community regulations must be uniformly applied in all the Member States and have, so far as possible, the same effect throughout the territory of the Community (see Case 819/79 Germany v Commission [1981] ECR 21, paragraph 10).

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KELLINGHUSEN AND KETELSEN

21 Accordingly, Article 15(3) of Regulation No 1765/92, and Article 30a of Regula­ tion No 805/68, as inserted by Regulation No 2066/92, prohibit the authorities in the Member States from making a deduction from the payments made or from demanding the payment of administrative fees charged for processing applications and having the effect of reducing the amount of the aid.

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JUDGMENT OF 22. 10. 1998 — JOINED CASES C-36/97 AND C-37/97

22 In support of their argument that those provisions of the regulations do not pro­ hibit the deduction of administrative costs from the amount of aid granted, the defendants in the main proceedings and the Greek and Swedish Governments con­ tended that the Court had accepted such a practice in Case 233/81 Denkavit Fut- termittel v Germany [1982] ECR 2933, paragraph 10, which concerned the inter­ pretation of Article 10 of Commission Regulation (EEC) No 1725/79 of 26 July 1979 on the rules for granting aid to skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves (OJ 1979 L 199, p. 1).

23 In that respect, it should be pointed out that, whereas Regulations No 1765/92 and No 805/68, as amended, provide for the payment in full of the aid, Regulation No 1725/79 made no provision as to the costs of the inspections to be carried out by the Member States (see Denkavit Futtermittel, paragraph 7). Since the wording of Regulation No 1725/79 did not prevent Member States either from carrying out such inspections free of charge or from requiring the undertakings in question to reimburse the expenditure which such inspections entail, the Court therefore con­ cluded, at paragraphs 8 and 9 of the judgment in Denkavit Futtermittel, that the rules in question left Member States free to resolve the problem of financing the controls.

28 Consequently, that argument cannot be accepted either.

29 The answer to the first question must therefore be that Article 15(3) of Regulation No 1765/92, and Article 30a of Regulation No 805/68, as inserted by Regulation No 2066/92, prohibit the authorities in the Member States from charging applicants administrative fees for processing their applications for aid even if the administra­ tive fees fixed by those authorities correspond to the rates which are otherwise usual in national law and those fees are so low that they are not capable of deter­ ring applicants from applying for aid.

The second question

30 As to Article 5 of the Treaty, it should be borne in mind that, according to the case-law of the Court, the relations between the Member States and the Commu­ nity institutions are governed, under that provision, by a principle of sincere coop­ eration. That principle not only requires the Member States to take all the measures

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KELLINGHUSEN AND KETELSEN

35 Lastly, as to the breach of the principle of subsidiarity, it should be stated that the second paragraph of Article 3b of the Treaty was not yet in force when Regula­ tions No 1765/92 and No 2066/92 were adopted and that provision cannot have retroactive effect.

36 The answer to the second question must therefore be that consideration of the questions referred has disclosed no factor of such a kind as to affect the validity of Regulations No 1765/92 and No 2066/92.

Costs

37 The costs incurred by the German, Greek and Swedish Governments and by the Council and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceed­ ings, a step in the actions pending before the national court, the decision on costs is a matter for that court.

common organisation of the market in beef and veal, as inserted by Council Regulation (EEC) No 2066/92 of 30 June 1992 amending Regulation (EEC) No 805/68 and repealing Regulation (EEC) No 468/87 laying down general rules applying to the special premium for beef producers and Regulation (EEC) No 1357/80 introducing a system of premiums for maintaining suckler cows, prohibit the authorities in the Member States from charging applicants administrative fees for processing their applications for aid even if the admin- istrative fees fixed by those authorities correspond to the rates which are otherwise usual in national law and those fees are so low that they are not capable of deterring applicants from applying for aid.

2) Consideration of the questions referred has disclosed no factor of such a kind as to affect the validity of Regulations No 1765/92 and No 2066/92.

Kapteyn Hirsch Mancini

Ragnemalm Schintgen

Delivered in open court in Luxembourg on 22 October 1998.

R. Grass P. J. G. Kapteyn