C-284/00

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complied with in respect of intra-Commu- conditions described by Council Directive nity trade in meat, especially meat from 77/96/EEC, 7 must have undergone an bovine animals and swine. Its aim was thus examination for trichinae and, under to put an end to the disparities which Article 5 of Directive 64/433, meat which existed between the requirements in force has been found to have trichinae may not in the Member States which were liable to be sent to another Member State. curtail such trade. 5

5. Directive 64/433 provides that Member 8. In order to guarantee uniform conditions States which send fresh meat 6from their of health protection for consumers and to territory must ensure that the meat fulfils ensure the free movement of products certain conditions intended to ensure that it subject to common organisation of the 8 is fit for human consumption. market, Council Directive 88/409/EEC extended the requirements of Directive 64/433 to fresh meat produced by Member States to be sold on their domestic market.

6. Thus, Article 3(1)(A)(d) of Directive 64/433 states that carcases or parts of carcases must have undergone a post-mor­ tem inspection, conducted by an official veterinarian, in the course of which lab­ oratory tests may be carried out, if (b) Directive 64/433, as amended by Direc­ required. The content of the post-mortem tive 91/497/EEC inspection is described in detail in Chapter VII of Annex I to Directive 64/433.

9. The purpose of Council Directive 91/497/EEC 9is to extend the requirements

11. Following the example of Directive 64/433, Directive 64/433 as amended lays down that fresh pigmeat which has not been tested for trichinosis in accordance with Annex I to Directive 77/96 must 14. Directive 85/73 is intended to prevent undergo cold treatment in accordance with the restrictions of competition resulting the procedures laid down in Annex IV to from differences in the financing of health 13 that directive. inspections in the Member States. 16 It provides that the Member States are to charge a fee for those inspections when animals are slaughtered and that any direct or indirect refund of that fee is prohibited. It states that the Council is to decide on the standard level or levels of the fees, on the 12. Also, Article 5(1)(a) of Directive detailed rules and principles for the imple­ 64/433 as amended indicates that meat mentation of the directive, and on possible from animals that are affected by trichino­ exceptions. The Member States are auth- sis must be declared unfit for human consumption. 14 — Directive of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1985 L 32, p. 14), the applicable version of which from 1 January 1991 is as amended by Directive 88/409 10 — Sixth recital in the preamble to Directive 91/497. ('Directive 85/73'). 11 — Hereinafter 'Directive 64/433 as amended'. 15 — Decision of 15 June 1988 on the levels of the fees to be 12 — See Article 3(l)(A)(d) and Chapter VIII of Annex I to charged for health inspections and controls of fresh meat Directive 64/433 as amended. pursuant to Directive 85/73 (OJ 1988 L 194, p. 24). 13 — Article 6 of Directive 64/433 as amended. 16 — Fifth recital in its preamble.

19. The aim of Council Directive 18 93/118/EC is, in particular, to amend Directive 85/73 taking into account the 19 new provisions concerning controls. In Article 2, it repeals Decision 88/408 with 16. Article 2(2) of Decision 88/408 states effect from 1 January 1994. that the Member States may depart from the set standard amounts through increases or reductions to the real figure for inspec­ tion costs, if their salary costs or certain other factors differ from the Community average adopted for the calculation of those 20. In line with Directive 85/73 and amounts. The annex to the decision pro­ Decision 88/408, Directive 85/73, as vides that the amended amounts may apply 20 amended by Directive 93/118, provides generally or to individual establishments. that the Member States are to collect a standard Community fee covering all of the harmonised control measures and that any direct or indirect refund of the fee is 21 prohibited. The Member States may exceptionally reduce the standard amounts under the same conditions as those 17. Article 5(1) of Decision 88/408 states 22 described in Decision 88/408. that the amount referred to in Article 2 is to replace all other health charges or fees for the inspection and control of fresh meat as 18 — Directive of 22 December 1993 amending Directive 85/73 provided for by Directive 64/433. (OJ 1993 L 340, p. 15). 19 — Fifth recital in its preamble. 20 — Hereinafter 'Directive 85/73 as amended'. 21 — Article 1 of Directive 85/73 as amended. 17 — For young bovine animals and for pigs, the fee is fixed at 22 — Point 5 of Chapter I of the Annex to Directive 85/73 as ECU 2.5 and ECU 1.30 per animal respectively. amended.

1. Federal law

25. The Verordnung zur Ausführung des 23. Paragraph 24 of the version of the nordrheinwestfälischen Fleisch- und Geflü­ Fleischhygienegesetz (Law on Meat gelfleischhygienekostengesetzes (Regu­ lation implementing the North Rhine- 23 — Article 2(3) of Directive 85/73 as amended. 24 — Points 4(a) and (b) of Chapter I of the Annex to Directive 85/73 as amended. 26 — BGBl. I, p. 649 ('the FlHG'). 25 — Article 2(4) of Directive 85/73 as amended. 27 — GV. NRW, p. 775.

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Westphalia Law mentioned above) of shandlungen nach dem Fleischhygienerecht 6 May 1999, as amended by a regulation (By-laws on the levying of fees for official 29 of 27 September 1999, also entered into acts performed under the law on meat 31 force with retroactive effect from 1 January hygiene) of 10 June 1999, which also 1991 so far as concerns the provisions entered into force with retroactive effect relevant to the main proceedings. It lays from 1 January 1991. For 1991, these down the matters giving rise to fees for by-laws fix the special fee payable in which Directive 85/73, in its relevant respect of bacteriological examinations at version, prescribes a Community fee and DEM 45 per animal, in addition to the those for which the directive is said not to standard fee for post-mortem inspections. envisage a fee. The latter category includes examinations for trichinae and bacteri­ ological examinations.

II — Facts and procedure

gericht Düsseldorf (Administrative Court, for the inspection of fresh meat intended Düsseldorf, Germany), then partly success­ for the domestic market in accordance with ful before the Oberverwaltungsgericht für Council Directive 64/433/EEC of 26 June das Land Nordrhein-Westfalen (Higher 1964 (which is applicable pursuant to Administrative Court for the Land of Council Directive 88/409/EEC of 15 June North Rhine-Westphalia, Germany), Strat- 1988), mann brought an application for review on a point of law before the Bundesverwal­ tungsgericht (Federal Administrative Court). This action was now concerned only with the question whether the Land- rätin was entitled to levy a special fee in respect of the examination of pigmeat for (a) as amended by Directive 89/662/EEC trichinae. of 11 December 1989; and

30. Since the Bundesverwaltungsgericht considered that it could not be concluded (b) as amended by Directive 91/497/EEC with certainty from the applicable Com­ of 29 July 1991, munity legislation that the standard fee, possibly increased, also covered costs occa­ sioned by examinations for trichinae, it decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling: also cover the costs of carrying out examin­ ations of fresh pigmeat for trichinae?'

'Does the standard fee applicable under

(a) Council Directive 85/73/EEC of B — Case C-288/00 29 January 1985 in conjunction with Council Decision 88/408/EEC of 15 June 1988; and

31. In January 1991, Fleischversorgung Neuss GmbH und Co. KG ('Fleischversor­ gung Neuss') had calves slaughtered in the (b) Council Directive 85/73/EEC, as abattoirs of Kreis Neuss. By notice of amended by Council Directive 1 February 1991, the Landrat (Chief 93/118/EC of 22 December 1993, Administrative Officer) of Kreis Neuss ('the

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35. The national court is seeking to ascer­ quality of the meat from the point of view tain by means of these questions whether of health which cannot be settled by other the costs of examining fresh pigmeat for examination methods, and the latter are trichinae and of bacteriological examin­ obligatory if the meat in question has not ations are covered by the standard Com­ undergone cold treatment. munity fee although those measures are not carried out systematically.

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take place over several days, does not we shall see, is covered by the standard fee appear to me to be a sufficient reason for in accordance with the wording of the excluding them from the laboratory tests provisions relating to the financing of those referred to in those provisions. inspections.

40. With regard to examinations for trichi­ nae, it should be noted that Directive 64/433, in its initial version adopted in 1964, did not affect measures of the 2. Provisions relating to the financing of Member States relating to detection of the inspections and controls 33 presence of trichinae in fresh pigmeat. 34 As I have indicated, Directive 64/433 and Directive 64/433 as amended provide that this examination is obligatory for all fresh pigmeat which has not undergone cold 43. The provisions on the financing of treatment under the conditions laid down inspections and controls clearly do not by Directive 77/96 and that the presence of provide that the Community fee would trichinae prohibits the affected meat from cover only the costs of measures which being sent to another Member State or must be carried out systematically. On the requires it to be declared unfit for con­ contrary, the provisions expressly refer to sumption. all the harmonised measures, without dis­ tinction.

41. In the light of those provisions, I consider that the Community legislature clearly wished to add the examination of 44. Thus, the first indent of Article 1(1) of fresh pigmeat for trichinae to the harmon­ Directive 85/73 provides that 'the Member ised inspection measures. States shall ensure that... fees are collected when [animals of the bovine species and swine] are slaughtered for the costs occa­ sioned by health inspections and controls'.

45. Similarly, the first indent of Article 1(1) 36 of Directive 85/73 as amended provides that the Member States are to ensure 'the collection of a Community fee for the costs occasioned by health inspections and con­ 48. In the absence of any requirement or trols on the meat referred to in [Directive] restriction to contrary effect, I consider that 64/433/EEC...'. Chapter I of the annex the Community legislature wished the thereto states that, without prejudice to standard fee to cover all the controls laid the application of points 4 and 5, Member down by Directive 64/433, and sub­ States will collect the standard fees 'for sequently by Directive 64/433 as amended, inspection costs relating to slaughter'. and therefore to cover costs relating to the examination of fresh pigmeat for trichinae and to bacteriological examinations. This analysis appears to me to be confirmed by the broad logic of the relevant provisions.

46. Furthermore, in accordance with the Court's case-law stating that the interpre­ tation of a provision of Community law involves a comparison of the different 37 language versions, it should be noted that the versions of the aforementioned provisions in the majority of the other B — The broad logic of the relevant Com- official languages use wording which fully munity provisions accords with the French version from the semantic point of view.

35 — Emphasis added. 36 — Unlike the Commission (paragraph 12 of its observations) I consider, in view of Article 2 and the first sentence of 49. First, the broad logic of the provisions Article 3(1) of Directive 93/118, that Directive 85/73 as amended applies with effect from 1 January 1994. That relating to inspections and controls con­ position was also adopted by the Court in its judgment in firms, in my view, the proposition that the Case C-27/95 Bakers of Nailsea [1997] ECR I-1847, at paragraphs 10 and 50, which concerned the costs of examinations for trichinae and bacteri­ veterinary inspections carried out and invoiced between 1 January 1993 and 4 March 1994. ological examinations cannot be separated 37 — Case 283/81 Cilfit [1982] ECR 3415, paragraph 18. from the other measures.

50. As we have seen, the Community protection of public health, so that they legislature set up a harmonised health present the same interest and must be inspection system, based on a complete considered an integral part of the harmon­ check of fresh meat in the Member State ised inspections and controls, irrespective from which it is despatched, replacing that of whether or not they are carried out of the Member State to which it is sent. systematically. Within this framework, the Community legislature entrusted the official veterin­ arian of the Member State of origin with the Community responsibility of ensuring that the meat is fit for human consump­ 39 tion and, therefore, of guaranteeing the 40 protection of public health. 53. Second, in my view it is apparent from the broad logic both of Directive 85/73 and Decision 88/408, and of Directive 85/73 as amended, that the standard Community fee necessarily covers bacteriological examin­ 51. Given the quantity of meat to be ations and examinations for trichinae. examined, the variation in its condition and the cost of controls, it is clear that the Community legislature could not draw up an exhaustive list of inspection measures to be carried out in respect of all fresh meat. 41 The post-mortem inspection, as defined, therefore includes, first, various types of 42 operations of which only the minimum 54. The harmonisation of the conditions content is described and which the official governing the financing of inspections and veterinarian must carry out to the extent controls is essentially based on the estab­ that he considers necessary and, second, lishment of a standard fee, whose amount systematic examinations, such as the exam­ 43 is fixed per animal. As I have stated, the ination for trichinae which may be waived fee must cover all those inspections and under certain strictly defined conditions. controls, without distinction. The Commu­ nity legislature also provided that, within the limit of actual inspection costs, this fee 44 can be increased. Finally, according to Article 5(1) of Decision 88/408 and 52. However, all those measures are laid Article 2(4) of Directive 85/73 as amended, down for the same purpose, namely the the fee is to replace all other health inspection charges or fees levied by the national, regional or local authorities of the 38 — Points 4 to 12 of this Opinion. Member State for the inspection and con­ 39 — As laid down in paragraph 38 in Chapter VII of Annex I to trol of fresh meat. The only exceptions to Directive 64/433 and paragraph 39 in Chapter VIII of Annex I to Directive 64/433 as amended. this prohibition of any other charge or fee 40 — Case C-105/95 Daut [1997] ECR I-1877, paragraph 20. 41 — See Chapter VII of Annex I to Directive 64/433 and Chapter VIII of Annex I to Directive 64/433 as amended. 42 — Visual inspection, palpation of organs, incisions, investi­ 43 — Points 42 to 48 of this Opinion. gation of anomalies in consistency, colour, smell and taste, 44 — Article 2(2) of Directive 85/73 and Article 2(2) of Decision and, where necessary, laboratory tests. 88/408. Article 2(3) of Directive 85/73 as amended.

55. In my view, it follows from all those provisions that the collection of the stan­ dard fee as laid down in Decision 88/408 and Directive 85/73 as amended excludes any possibility of levying, in addition, a 57. So far as concerns costs incurred in special fee for a control or inspection respect of examinations for trichinae, my covered by Directive 64/433 or Directive analysis appears to be borne out by the 64/433 as amended, such as examinations declaration included in the minutes of the for trichinae or bacteriological examin­ Council when Decision 88/408 was 47 ations. adopted. That declaration specifies the criteria which were used to calculate the standard fee levels. Thus, it is stated that the accepted average time for inspecting a pig is two minutes and that this may be increased by the time needed, in particular, in order to examine for trichinae. The declaration confirms that the examination for trichinae is covered by the standard 48 fee. 56. It is also clear from the foregoing that a Member State which considered that the standard fee did not cover the entire costs 47 — Cited by the Bundesverwaltungsgericht in its order for reference in Case C-284/00 (p. 9 of the English version). incurred in respect of all the harmonised 48 — According to the case-law of the Court, while an inter­ inspections and controls could only, under pretative declaration cannot properly be relied upon to justify an interpretation which departs from the very Directive 85/73 and Decision 88/408, wording of the provision concerned (Case 429/85 Com- mission v Italy [19881 ECR 843, paragraph 9) or where its increase the amount of that fee for a group content is not referred to in the wording of the provision in question (Case C-292/89 Antonissen [1991] ECR I-745, of establishments or a given establishment paragraph 18), such a declaration can nevertheless be and, under Directive 85/73 as amended, taken into consideration where it serves to clarify a general concept the interpretation of which is requested (Case make such an increase or collect a special C-368/96 Generics (UK) and Others [1998] ECR I-7967, paragraph 27). More recently, to confirm its interpretation of a provision of a directive on direct insurance, the Court referred to a declaration on the interpretation of that provision, made by the insurance committee set up 45 — The final sentence of Article 5(1) of Decision 88/408. pursuant to a later directive (Kvaerner, cited above, 46 — Article 2(4) of Directive 85/73 as amended. paragraph 54).

61. First, it is not disputed that the increase provided for in Directive 85/73 and Decision 88/408, like the increase referred to in point (4)(a) of Chapter I of the Annex to Directive 85/73 as amended, can allow only the setting of a 'general' fee, calculated and applied in respect of a given establish­ 59. In this regard, I need only refer to the 49 ment or group of establishments. Such an description of the post-mortem health increase cannot therefore result in special inspection, as set out in Chapter VII of fees demanded for particular inspection Annex I to Directive 64/433 and in measures, such as those at issue in the main Chapter VIII of Annex I to Directive proceedings. 64/433 as amended. As we have already seen, the post-mortem inspection includes a number of examinations which the veterin­ arian must carry out only in cases of doubt. The conditions for carrying out the inspec­ tions and controls therefore vary, in prac­ tice, from one animal to another. In my view, therefore, contrary to that of the 62. Second, as regards the option of col­ Landrätin and the Landrat, the fact that it lecting 'a special fee covering actual costs', is possible to identify the animals which provided for in point (4)(b) of Chapter I of have undergone an examination for trichi­ the Annex to Directive 85/73 as amended, 50 nae or have required bacteriological exam­ the Court ruled in Feyrer that while the inations does not mean that it is unfair to Member States may exercise the option take account of the costs of such measures generally and at their own discretion, this is in the amount of the standard fee, in the conditional upon the fee not exceeding the same way as an average inspection time and other measures carried out in the case of doubt, and that, with regard to those 49 — With regard to Decision 88/408, see the Opinion of Advocate General Jacobs in Case C-156/91 Hansa fleisch particular measures, the wording and Ernst Mundi [1992] ECR I-5567, paragraph 30. See also broad logic of the applicable provisions point 2 of the Annex to Decision 88/408. 50 — Case C-374/97 [1999] ECR I-5153, paragraphs 27, 31 and are departed from. 32.

67. As regards the provisions concerning inspections and controls, it is apparent from the preambles to Directive 64/433 and Directive 64/433 as amended that the purpose of that legislation is to standardise the health guarantees offered to con­ 51 sumers. The Community legislature thus 64. It follows that the broad logic both of wished to ensure the unity of the Commu­ the provisions concerning inspections and nity market and the free movement of fresh controls and of the rules relating to the meat within the Community, while guar­ 5 financing of inspections and controls con­ anteeing the protection of public health. 2 firms their literal interpretation, under which the costs of examinations for trichi­ nae and bacteriological examinations are 51 — First to fourth recitals in the preamble to Directive 83/90. covered by the standard fee and cannot give Fourth to sixth recitals in the preamble to Directive 91/497. rise to special fees over and above that fee. 52 — Daut, cited above, paragraph 20.

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68. As we have already seen, all the meas­ absence of bacteriological infection, the ures referred to in Directive 64/433 and arguments of the Landrätin and the Land- Directive 64/433 as amended form part of rat seeking to demonstrate that examin­ the measures harmonised at Community ations for trichinae and bacteriological level and this harmonisation related both to examinations are not part of the harmon­ the circumstances in which they must be ised inspections and controls, even if those carried out and the methods of doing so. arguments are put forward only in proceed­ ings concerning the financing of the inspec­ tions and controls, appear to me to be such as to compromise consumer confidence in the quality of the Community control system.

72. It is apparent from the preambles to 53 Directive 85/73 and Directive 85/73 as 54 70. In my view it would also be contrary to amended that the Council wished to put completion of the internal market. In an an end to the differences in the Member area such as that of fresh-meat consump­ States concerning the financing of inspec­ tion, where consumer confidence is very tions and controls, because those differ­ important, it is essential that everybody is ences were liable to affect conditions of entirely satisfied that the products offered competition between lines of production to them on the market have been subject to which were, for the most part, covered by the same inspections and controls, which­ common organisations of the markets. ever Member State they come from. Given the importance, for the health quality of 53 — Fifth and sixth recitals in the preamble to Directive 85/73. pigmeat, of the check as to the absence of 54 — Fourth and sixth recitals in the preamble to Directive trichinae and, for fresh meat in general, the 93/118.

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55 — Page 4.

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IV — Conclusion

76. In view of all of the foregoing matters, I propose that the Court answer the questions referred by the Bundesverwaltungsgericht as follows:

(1) In Case C-284/00, the costs of examinations for trichinae are covered by the standard fee payable under the following provisions applied in conjunction with one another:

— Directive 85/73 and Decision 88/408,

— Directive 64/433, as amended in particular by Directive 83/90 and, lastly, by Directive 89/662.

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