C-214/98

COMMISSION V GREECE

OPINION OF ADVOCATE GENERAL MISCHO delivered on 6 June 2000 *

1. By application lodged at the Court inspections and monitoring in slaughter- Registry on 10 June 1998, the Commission houses, with a view to ensuring that the of the European Communities brought an control arrangements operate effectively action under Article 169 of the EC Treaty and distortions of competition are avoided. (now Article 226 EC) for a declaration that, by not implementing or correctly transposing some provisions of Council Directive 93/118/EC of 22 December 1993 amending Directive 85/73/EEC on the financing of health inspections and controls of fresh meat and poultrymeat, 1 the Hellenic Republic has failed to fulfil its 3. Article 1(1) of the Directive requires obligations under the EC Treaty and, in Member States to collect a fee for the costs particular, points 1, 2 and 5 of Chapter 1 of occasioned by health inspections and con- the annex to that Directive. trols for the meat referred to in the various Community directives.

4. The standard rates to be collected for Legal background this fee are fixed in Chapter I of the annex to the Directive and vary, in particular, according to the species, age and weight of the animal.

2. Council Directive 85/73 of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultry- meat, as amended by Directive 93/118 (hereinafter the 'Directive'), 2aims to har- monise rules on the financing of health 5. The standard rates intended to cover the inspection costs linked to slaughter opera- tions are set in point 1 of Chapter I and the * Original language: French. amounts to be collected for controls and 1 — OJ 1993 L 340, p. 15 inspections linked to cutting operations are 2 — OJ 1985 L 32, p 14. set in point 2.

— it fails to refer, for the collection of fees on the occasion of slaughter opera- tions, to the category of solipeds/equi- 10. The Hellenic Republic contends that dae which is expressly mentioned in the Court should dismiss the action point 1(b) of Chapter I of the annex to brought by the Commission as unfounded. the Directive;

— it sets the amounts of the fees at 50% 11. I will now examine in turn the com- of the standard Community rates, plaints put forward by the Commission.

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14. The Commission contends that, in accordance with the case-law of the Court, directives must be transposed clearly and transparently, so as to allow individuals to 16. In any case, in view of the imminent be aware of their rights and obligations. 3 implementation of Council Directive In particular, Member States are bound to 96/43/EC of 26 June 1996 amending and consolidating Directive 85/73 in order to ensure financing of veterinary inspections 3 — Case C-339/87 Commission v Netherlands [19901 ECR I-851, and Case C-59/89 Commission v Germany [1991) and controls on live animals and certain ECR I-2607. animal products and amending Directives

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4 — OJ 1996 L 162, p 1. 22. Can this case-law be transposed to the 5 — OJ1979 L 103, p 1. present case?

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23. In my opinion, yes, although the Direc- Member States, the Community or private tive referred to in the case which we are parties'. 6 This applies a fortiori where it is examining does not prescribe a prohibition, alleged that the default is about to be but rather a positive obligation. The Greek remedied. Government relies on a purely factual situation. Even if, at the present time, there are no approved slaughterhouses and, as a result, no slaughter is carried out for the category of solipeds/equidae, it is not disputed that the present situation could 25. The first complaint raised by the Com- change. Thus there is no legal obstacle to mission therefore appears to me to be an approval being issued, as Presidential justified. Decree No 410/94, produced in annex to the defence, allows for such a possibility. The Greek Government itself recognises, moreover, that this situation is temporary. Thus it considered it worthwhile to submit, in its defence, that 'in any case, having regard to the imminent implementation and Fixing the rate of fees at 50% of the transposition of Directive 96/43 by the standard Community rates Presidential Decree in the course of adop- tion, express reference will be made to the category of solipeds/equidae, so that this category will also be provided for in 26. Presidential Decree No 34/94 laid future.' down the amounts of the fees to be collected for health checks on the slaughter of animals and those connected with cut- ting operations at 50% of the standard Community rates.

28. The Greek Republic maintains that, where the cost of living and salary costs in a Member State differ significantly from the 32. The Greek Government states that Community average on the basis of which neither the Directive nor any other Com- the standard fees have been fixed, the munity provision obliges the Member Directive allows a derogation from the States to send the Commission the infor- Community amounts fixed, as long as the mation which justifies such a reduction in Member State does not provide for a the fees. reduction of greater than 55% of the amounts specified in the Directive.

33. In any case, it is generally recognised that the cost of living and salary costs in Greece are significantly different from those of other Member States and addi- 29. Consequently, as long as this require- tional justification, detail or evidence is not ment is respected, the fixing of the fees is required, since the basic details of the within the discretion of the Member State economy of each Member State are well- concerned, which takes into account a known and accessible in particular to the multitude of material and social facts. Commission.

34. According to the Commission, the argument based on the standard of living 30. The Commission maintains that any and salary costs in Greece does not con- derogation must be justified on the basis of stitute satisfactory justification for the specific data, having regard to the aim of reduction in question, since the Greek the Directive, which is to ensure the correct authorities should, for this purpose, have operation of the control system and to produced the data relating to salary costs avoid distortions of competition. and administrative expenses in the field in

question, the structure and operating cost spontaneously to notify the Commission of of establishments, the cost of examination the distribution and use of the fees, two of residues which are included in the years after the establishment of the new amount of the fees and the relationship system and later at its request. On the other between veterinarians and inspectors, on hand, regarding the method of calculating the basis of which the decision was taken to the fees, the aforementioned provision reduce the fees by 50%. simply states that the member States must be able to communicate their method of calculation. This implies that the national authorities are only bound to do this if the Commission requests this. It could only be otherwise if this provision had specified that the data relating to the distribution 35. It seems to me that the Commission's and use of fees must be accompanied by argument may be supported by the text of information to justify the method of calcu- point 5 of Chapter I of the annex to the lation of these fees. Directive, since, according to its wording, the Member States may reduce the amounts fixed by points 1(a) and 2(a) 'to meet the real costs of inspection', which cannot mean that, as long as the conditions to which the collection of fees at a lower rate than the standard Community rates are subject have been met, the extent of the 38. This interpretation is corroborated by reduction is fully at the discretion of the Article 8(1) of the Directive, which national authorities. expressly authorises the Hellenic Republic to 'derogate from the principles laid down in this Directive where, because of geogra- phical characteristics, the costs of collecting a fee in geographically remote regions are greater than the yield from the fee.' In this specific case, the aforementioned provision 36. However, as the Commission's objec- specifies that: 'The Greek authorities shall tion is not to the amount of the fees inform the Commission of the territorial collected in Greece but to the lack of extent of the derogations granted. The justification by the Greek Government for information shall be accompanied by any these amounts, the Court must examine necessary explanations.' whether the Hellenic Republic is at fault with regard to the obligations imposed on Member States by Article 2(5) of the Directive.

40. During the proceedings before the Court, the Commission maintained that, on several occasions, it requested that the 43. The letter of formal notice must, there- Hellenic Republic send it this information, fore, briefly identify a supposed violation of but that it obtained no response, not even Community law by a Member State and after sending the letter of formal notice and invite it to submit its observations. The the reasoned opinion in this procedure. violation complained of must, therefore, necessarily exist prior to the letter of formal notice. In the present case, the substantive infringement attributed to the Greek Gov- ernment consists in a failure to communi- cate the information on which the calcula- tion of the reduced fees was based. But the Directive merely provides that Member States must justify their method of calcula- tion at the request of the Commission, not 41. The letter of formal notice indicated that they are obliged to do so sponta- that the reduction of 50% made by the neously. Consequently, the Commission Greek authorities could be considered as cannot criticise the Greek Government for conforming to Community regulations, but its lack of action, since it has not proved that it would 'nonetheless be necessary to that it requested that details of the calcula- justify the correctness of this reduction by tion be communicated prior to the opening sending the information on which the of the official phase of the pre-litigation calculation of the fees was based.' How- procedure. ever, no reference is made to any request to communicate data prior to the letter of formal notice. It is up to the Commission to establish the existence of the alleged failure to fulfil obligations and it has not proved the existence of a prior request for justifi- 44. Moreover, the Commission cannot cri- cation of the method of calculation, which ticise the Greek authorities for not having the Greek Government omitted or refused responded to the formal notice and the to send. The assertion, in the reply, that reasoned opinion, since these acts form part such a request had been made on several of 'a preliminary procedure, which does not occasions prior to sending the letter of formal notice cannot remedy the absence of this proof. 7 — In particular, see Case C-289/94 Commission v Italy [1996] ECR I-4405.

47. The Hellenic Republic rejects the Com- mission's complaint, on the ground that 50. We may say straight away that this last poultrymeat is not exempt from the fee for argument by the Greek Government can- the cutting of fresh meat. Article 3 of the not, in any way, succeed since, in accor- said decree clearly provides for such a fee dance with settled case-law, neither mere since it refers directly to Presidential administrative practices nor even the exis- Decrees No 599/85 and No 959/81, now tence of factual situations corresponding to the directive's requirements can remedy the failure to introduce into national legislation and regulations rules contained in the 8 — Case C-272/97 Commission v Germany [1999] ECR I-2175. directive which is to be transposed. Cer-

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52. In this connection, it must be said that the structuring of the Greek legislation does not allow the conclusion that it satisfies this requirement for clarity. It is indisputable that, as the Commission observes, Arti- 55. Thus, it is in vain that the Greek cle 3(2) of Presidential Decree No 34/94 Government states that, in reality, if two (which provides that the amount referred to other Presidential Decrees (namely Presi- in paragraph 1 is added to the sums dential Decrees No 599/85 and No 959/81, referred to in Article 2(1)(a), (b) and (c)) now replaced by Presidential Decrees does not refer to poultrymeat, whereas it No 410/94 and No 291/96) are taken into states very clearly that, for beef and veal, account, the conclusion is that a fee is sheepmeat, pigmeat and goatmeat, the actually due specifically for cutting opera- amount of the fee linked to cutting is to tions for poultrymeat. Moreover, it has not been explained to us why the Greek authorities should have chosen, for poul- 9 — Case 29/84 Commission v Germany [1985] ECR 1661. trymeat, to transpose the Directive with a 10 — Case 236/85 Commission v Netherlands [1987] ECR 3989. combination of texts which is, by defirii-

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COMMISSION V GREECE

tion, less transparent for economic opera- Costs tors than a single text, while, for other meat, all the provisions which transpose the Directive have been gathered into a single 57. Given that two of the three complaints text, Presidential Decree No 34/94. raised by the Commission appear to be well founded, but that the Commission has not made a claim for costs, it seems to me that pursuant to Article 69(2) and (3) of the Rules of Procedure it should be concluded that the Commission shall bear, in addition 56. The third complaint raised by the to its own costs, one-third of the costs of Commission therefore appears to me to be the Hellenic Republic, which shall bear its well founded. own costs.