C-423/01

FÄRBER

O P I N I O N OF ADVOCATE GENERAL LÉGER delivered on 27 February 2003 1

1. Fresh meat intended for human con- I — Legal background sumption is covered, in the Member States, by different harmonised health inspection and control measures. These inspection and control measures apply inter alia to slaughtering and then to cutting operations. The conditions for financing these measure have also been subject to harmonisation at A — The Community law Community level.

3. The relevant Community law consists of the rules in respect of inspection of fresh meat and those relating to financing these inspections.

1. The rules in respect of inspection

5. Directive 64/433 is designed to eliminate 8. According to this Annex, these inspec- differences between the health require- tions and these controls relate, firstly, to ments of Member States concerning meat the hygiene of staff, premises and equip- in order to facilitate the free movement of ment in the establishments 6 and, secondly, fresh meat. 4Consequently, it undertakes to to the state of health of the meat. There- approximate the provisions of the Member fore, on slaughtering, a post-mortem health States with the object of standardising inspection shall be carried out inter alia on health requirements for meat in slaughter- all parts of the animal for the purposes of houses and cutting rooms and during determining whether the meat is fit for storage and transportation. 5 human consumption. 7 With regard to cutting, the operator of the plant, the owner or his agent must be able on request to inform the supervising official veterin- arian of the source of the meat brought into his establishment and of the origin of slaughtered animals. 8Similarly, the official veterinarian must supervise the entry and 6. To that end, Directive 64/433, Article 2 exit of fresh meat and the health inspection contains a number of definitions. Accord- of fresh meat held in the cutting plant, as ing to Article 2(k), 'establishment' means well as the health inspection of fresh meat 'an approved slaughterhouse, an approved prior to cutting and when it leaves the cutting plant, an approved cold store or a establishment in question. 9 unit grouping together several such estab- lishments'.

10. The veterinary approval numbers of sioned by harmonised inspections and con- slaughterhouses and cutting plants shall be trols. 14 reproduced on the documents which accompany meat and on packaging labels under the conditions provided for by Direc- tive 64/433. 10 14. According to Directive 85/73, Article 5, this fee must cover the costs borne by the competent authority, firstly for salary costs and social security costs involved in the 2. The rules in respect of financing inspection service and, secondly, for admin- istrative costs incurred in carrying out controls and inspections, which may include the expenditure required for in- service training of inspectors. No direct or 11. The harmonised rules on the financing indirect refund of this fee shall be per- of measures for inspection and control of mitted. fresh meat are laid down by Council Directive 85/73/EEC, 11 in the version r e s u l t i n g from Council D i r e c t i v e 96/43/EC 12 (or 'Directive 85/73'). 15. The amount of this fee is defined in Chapter I of Annex A to Directive 85/73. According to paragraph 1, the Member States shall collect for inspection costs 12. The harmonisation of these rules aims relating to slaughter standard amounts to prevent the distortions of competition fixed by this provision in accordance with which could result from the collection of the kind of animal, its age and weight. different fees in the various Member States. 13

16. The costs of inspection connected with 13. Consequently, Directive 85/73 imposes cutting operations are dealt with in on Member States the collection of a Chapter I(2) of Annex A to Directive 85/73 Community fee to cover the costs occa- in the following terms:

That amount is added to the amounts referred to in 1 above; 18. Under Chapter 1(5) in Annex A to Directive 85/73, Member States may also exceptionally reduce the standard amounts fixed in points 1 and 2(a) of the Chapter in question. This exemption is authorised (b) or: by charging the actual costs of either in general, where the cost of living inspection per hour worked. and salary costs are substantially lower than the Community average, or for indi- vidual establishments under certain con- ditions. Inter alia, uniformity of number and type of animals for slaughter should Where the cutting operations are carried enable the deployment of the relevant out in the establishment where the meat is inspection staff to be planned in advance obtained, the amounts laid down in the and waiting periods to be avoided. In no first subparagraph shall be reduced by up case should the application of these exemp- to 55%. tions result in reductions of more than 55% of the levels indicated in points 1 and 2(a).

A Member State which opts to levy fees by the hour worked must be able to demon- strate to the Commission that the actual 19. According to Chapter I(6) in Annex A costs cannot be covered by charging fees in to Directive 85/73, the fees referred to accordance with (a).' above must be collected at the slaughter- house or cutting plant. They shall be payable by the operator or the owner carrying out the slaughtering or cutting operations, who may, however, pass on the 17. According to Chapter 1(4) in Annex A fee charged for the operation concerned to to Directive 85/73, Member States may, in the natural or legal person on whose behalf I - 11990

15 — BGBl. I, p. 991. 17 — GVBl. p. 32. 16 — GVBl. p. 422. 18 — Sec the order for reference, paragraph 2.1.1.

I - 11991

OPINION OF MR LÉGER — CASE C-423/01

I I — Facts and proceedings 27. The municipality of Neustadt an der Weinstraße objected to this argument on the ground that a slaughterhouse and a cutting plant can be viewed as the same establishment only where they are operated by the same natural or legal person. 24. Färber GmbH & Co. (or 'Färber') operates an approved meat-cutting plant in the municipal area of Neustadt an der Weinstraße (Germany). The slaughterhouse Schlachthof-Betriebs-GmbH, a company which is not the same as Färber, from which Färber purchases some of the meat for its cutting operations, is situated in the I I I— The questions same building.

28. The Verwaltungsgericht Neustadt an der Weinstraße took the view that, because of the consistency between, firstly, Part 3, 25. The municipality of Neustadt an der paragraph 6.4 of the Annex to the Rhine- Weinstraße charged Färber fees in respect land-Palatinate regulation and, secondly, of 1999 for the inspections and health Chapter I(2)(b) in Annex A to Directive controls conducted in the cutting plant, 85/73, the decision in the case before it calculated at the rate of DEM 5.76. turns on the interpretation of the latter provision.

In that regard, may in particular the fact that staff need less time to carry out the controls or inspections also be taken into consideration where the fees in respect of such controls and inspec- 3 1 . The Commission maintains that tions are determined by the addition of ownership of the slaughterhouse and the a standard amount pursuant to the first cutting plant in question is not a relevant subparagraph under (a) of Chapter 1(2) criterion. It goes on to say, however, that in Annex A to the abovementioned their geographical proximity is not enough Directive? to confer entitlement to the disputed reduc- tion. For this, it would be necessary for the slaughterhouse and the cutting plant to form a production unit and be operated in a coordinated manner. Thus, each of them should be planning in advance, organising Moreover, if Question I is answered in and carrying out at least a part of its the affirmative, when reducing the fee, relevant production stages in step with the may account nevertheless be taken of relevant part carried out by the other, and the fact that the establishments situated some health advantages should result. in one building are attributable to operators regarded in law as distinct, and may this in principle lead to a situation where in such cases less of a reduction is granted than in cases where the slaughterhouse and cutting 32. The Swedish Government considers plant are not only situated in the same that the benefit of a reduction is acquired building but are also operated by the only if the slaughterhouse and the cutting same natural or legal person?' plant are operated by the same natural or

20 — See the order for reference, paragraph 2.1.2. 21 — See Färber's written observations, paragraph 2.2, those of 34. These provisions are, firstly, the second the Swedish Government, paragraph 3, and those of the Commission, paragraph 9. subparagraph of Chapter 1(2) in Annex A 22 —In this connection, see Council Directive 71/118/EEC of to Directive 85/73 a n d , secondly, 15 February 1971 on health problems affecting trade in fresh poultrymeat (OJ, English Special Edition 1971 (I), Article 2(k) of Directive 64/433. p. 106), Council Directive 91/495/EEC of 27 November 1990 concerning public health and animal health problems affecting the production and placing on the market of rabbit meat and farmed game meat (OJ 1991 1. 268. n. 411: and Council Directive I2/45/EEC0Í 16 June 1992 on 19 — Case C-491/01 British American Tobacco (investments) public health and animal health problems relating to the and Imperial Tobacco [2002] ECRI-11453, paragraph 203 killing of wild game and the placing on the market of and case-law cited. wild-game meat (OJ 1992 L 268, p. 35).

I - 11994

FÄRBER

37. Nor does the wording of Article 2(k) of 40. This interpretation of the wording of Directive 64/433 make any reference to these provisions is confirmed by their legal ownership, since it is limited to stipulating context. that the concept of 'establishment' covers at the same time an approved slaughter- house, an approved cutting plant, an approved cold store or a unit grouping together several such establishments. Thus, the Community legislature did not require that this unit should take a particular legal 2. The context of the relevant provisions form.

39. It follows that the argument defended by the municipality of Neustadt an der Weinstraße and referred to by the Swedish Government, according to which the appli- 42. It seems to me that two factors must be cation of the reduction provided for in the emphasised, one historical and the other second subparagraph of Chapter I(2) in relating to the broad logic of Chapter I in Annex A to Directive 85/73 is subject to the Annex A to the Directive. condition that the cutting plant and the slaughterhouse operating in the same build- ing belong to the same natural or legal person, has no basis in the wording of the relevant provisions. 43. Firstly, as far as the historical context is 23 — A reservation must be expressed as far as the German concerned, it must be borne in mind that version is concerned. This concludes with the words 'oder the origin of the provision to be interpreted rein aus diesen Betrieben bestehender Gebäudekomplex', which mean 'or a complex made up of these establish- is one of the factors that the Court may ments'. However, this differing version strengthens the take into account to corroborate the inter- view that the concept of 'establishment' does not depend on a condition of ownership. pretation which follows from the wording

I - 11995

OPINION OF MR LÉGER — CASE C-423/01

It should be pointed out that, among the conditions laid down in paragraphs (4) and (5) for implementing these exemptions, at no time is there any reference to the ownership of the slaughterhouse and of the cutting plant 44. Next, the broad logic of Chapter I in concerned. All the criteria laid down relate Annex A to Directive 85/73 shows, in my to the conditions in which slaughtering is opinion, that the Community legislature carried out or those in which the inspec- tions are carried out, or to the cost of living and salary costs in the Member State 24 — In support of this, see the judgments in Case 18/76 concerned. Germany v Commission [1979] ECR 343, paragraph 5 and in Joined Cases C-95/99 to C-98/99 and C-180/99 Khalil and Others [2001] ECR I-7413, paragraph 43.

. . shall be fixed at a standard rate of 3 ECU/tonne of unboned meat intended for cutting'. 46. If the Community legislature thought Paragraph 4 of the same Article provides that '[w]here the cutting operations are carried out in the establishment that the increases and the reductions laid where the meat is obtained, the amounts laid down in paragraph 1 may be reduced by up to 50%.' down in Chapter 1(4) and (5) in Annex A to 26 — The fifth recital is formulated as follows: '[w]hereas it is Directive 85/73 could be applied regardless possible that slaughtering, cutting and storage operations of the issue of whether the slaughterhouse mav take place in separate plants; whereas, as a result, in such cases, not all the health inspections and controls to be and the cutting plant belong to the same covered by the fees under Directives 64/433/EEC.

I - 11996

FÄRBER

down in paragraph 2 of the same Chapter, (b) The broad logic of Directive 64/433 which applies only to the fee payable by the cutting plant.

27 — Article 3(1)(A)(a) and (B)(a). 48. The broad logic of Directive 85/73 as I 28 — Article 10. 29 — Chapters I to IV in Annex I. have described it is confirmed by that of 30 — Chapters I to III in Annex I, Annex IV and Annex V to Directive 64/433. Directive 64/433.

I-11997

OPINION OF MR LÉGER — CASE C-423/01

I-11998

FÄRBER

concept dependent on that of 'ownership', These requirements enable the different which, under Article 295 EC, would be a stages of meat processing to be followed matter for the legislative competence of the and checks to be made that they are being Member States. carried out in an establishment which observes Community health provisions. As I have stated above, to take the view that an approved slaughterhouse and cutting plant belonging to different natural or legal 56. In other words, the objective pursued persons constitute the same establishment by Directive 85/73 would be undermined if, within the meaning of Chapter 1(2) in in application of the Directive, the concept Annex A to Directive 85/73 does not call of 'establishment' were to depend on the into question the fact that each of them has ownership of the slaughterhouse and of the its own approval and person responsible. cutting plant concerned, since the issue of whether these two establishments belong to the same natural or legal person could, given the same factual situation, lead to differing responses in different Member States. 31

I - 11999

OPINION OF MR LÉGER — CASE C-423/01

60. Furthermore, this condition does not the criteria are which the fee-levying auth- relate to the scope of the disputed reduc- ority must take into account in fixing the tion. The reduction in question, unlike that amount of the reduction provided for in the provided for in Chapter 1(5) in Annex A to second subparagraph of Chapter 1(2) in Directive 85/73, relates only to the fee Annex A to Directive 85/73. payable for controls and inspections con- nected with cutting operations. Therefore, it benefits primarily only the operator or the owner of the cutting plant. Thus, it would not be logical to make acquisition of the right to such a reduction subject to the condition that the slaughterhouse plans in advance, organises and carries out all or 63. It should be borne in mind that, under part of its activity in step with the benefits the terms of the second subparagraph of achieved by the cutting plant. Coordination Chapter 1(2) in Annex A to Directive 85/73, of the cutting plant's activities with those of the authority levying the fee for inspections the slaughterhouse is, in my opinion, one of and controls connected with cutting oper- the criteria which serve to determine the ations may grant a reduction in the fee by size of the reduction to be granted, which up to 55% of the amounts laid down in the are covered by the second question referred first subparagraph. The words 'by up to for a preliminary ruling. 55%' mean than this reduction may vary within the limit of the stated percentage.

the legislation, the reduction would lead to controls and inspections. According to a fee lower than the actual costs of the Directive 85/73, Article 5, these costs are inspection and control measures in the made up, firstly, of staff costs arising from cutting plant concerned. Such a situation the salaries of members of the inspection could have the effect of giving an improper service and from the corresponding social advantage to marketing within the Com- security costs and, secondly, of adminis- munity of meat cut in that establishment. trative costs incurred in carrying out con- trols and inspections, which may include the expenditure required for in-service training of inspectors. I infer from this that the reduction in the fee for inspections and controls connected with cutting operations must logically depend on the size of the decrease in staff costs and administrative 65. The Commission proposes that the costs connected with these controls and Court's reply to the referring court should inspections when the cutting plant is close be that the extent of the disputed reduction to the slaughterhouse. must be mainly based on the degree of integration of the parts of the establishment concerned, on the health advantages to be gained from this and, in so far as it does not already come into the calculation of the fee, on lessening the workload for the organi- sations which effect the controls. 68. Next, it cannot be disputed that such proximity is very likely to reduce these costs. Thus, we have seen that Directive 64/433 provides that the qualification required to effect the controls and inspec- tions connected, respectively, with slaught- 66. This response does not seem to me to ering and cutting operations is identical, be satisfactory, because the criteria adopted since, in both cases, these inspections and are not precise enough and do not allow a these controls must be carried out by an clear understanding of how the disputed official veterinarian. 3 3Furthermore, these reduction may be calculated. Like Färber, I controls and these inspections must be consider that savings on the costs of staff in carried out on the spot, since they relate charge of the controls and inspections to the slaughterhouse and cutting plant constitute one of the relevant criteria. I premises and equipment as well as to the base this analysis on the following factors. meat found there. Finally, the health inspections and controls provided for in regard to cutting duplicate to some extent those provided for in regard to slaughter- ing. The veterinarian concerned must, in regard to slaughtering, carry out a

thorough post-mortem check of all parts of what these costs and expenses would be if the animal in order to verify that the meat this plant were not close to the slaughter- is fit for human consumption. In regard to house. Determining these two sets of data cutting, it is again required, under does not seem to me inevitably to pose real Chapter X of Annex I to Directive 64/433, difficulties. For the first, it is enough to that control and health inspection of fresh summarise the time spent by the inspection meat be carried out before cutting services on health measures in the cutting operations. plant and the administrative expenditure that these measures have generated over a given period. The second may be deter- mined from the staff costs and the adminis- trative expenditure generated by the inspec- tions and controls carried out in one or more cutting plants which are not close to a slaughterhouse. 69. It follows that, when the cutting plant is close to the slaughterhouse, the inspec- tions and controls in respect of cutting operations may be carried out by the veterinarian who dealt with the health measures in respect of slaughtering. Fur- thermore, their progress may be made a great deal easier or quicker if the organi- 71. According to my analysis, the disputed sation of the cutting plant's activity in reduction must be granted in step with the relation to that of the slaughterhouse decrease in staff costs and administrative allows this veterinarian to follow the meat expenditure connected with the inspections from its post-mortem inspection to its and controls in the cutting plant concerned, cutting. The effect of this is a saving of and this is borne out by the conditions set time and, therefore, a decrease in the staff out in Chapter 1(5) of Annex A to Directive costs and administrative costs connected 85/73. As I have already stated, these with inspection and control measures, such conditions, which govern the Member as, inter alia, delivery costs. States' right to reduce exceptionally the standard amounts fixed in Chapter I(1) and (2)(a) of that Annex, relate inter alia to salary costs and to advance planning of deployment of the inspection services. It is true that this provision does not specify the criteria under which the reduction in stan- dard amounts must be calculated, since it 70. Finally, these savings on staff costs and indicates that Member States may waive administrative expenditure may be subject these amounts up to a maximum of the to an assessment to allow determination of actual inspection costs, as long as this the value of the reduction being granted by reduction does not exceed 55% of these the fee-levying authority. This assessment amounts. However, it seems to me that, in necessitates knowing, firstly, the staff costs all logic, the criteria used in calculating the and the administrative expenditure gener- reduction thus provided for should cor- ated by carrying out inspections and con- respond to the conditions for acquisition of trols in the cutting plant and, secondly, the right to the reduction.

74. Like both the intervening parties who have submitted observations on the second question referred for a preliminary ruling, I consider that the disputed reduction is applicable in this situation and on the basis of the same criteria. It is apparent from the wording of the second subparagraph of 77. The fact that the slaughterhouse and Chapter I(2) in Annex A to Directive 85/73 the cutting plant have the same operator that this reduction may relate 'to the may not in itself be capable of reducing the amounts laid down in the first subpara- costs described in Directive 85/73, Article 5. graph'. It follows that this reduction is It is true that ownership of the two intended to apply in the same conditions establishments may allow the operator to not only to the actual 'costs of inspection organise them to function in such a way per hour worked', laid down in this first that the progress of the inspections and subparagraph of paragraph (2)(b), where controls connected with the cutting oper- these costs are fixed by the competent ations is made much easier and quicker. authorities for the whole territory of the However, this situation will be taken into Member State or part thereof, but also to account by the competent authorities the standard amount of ECU 3 per tonne, through the decrease in staff costs and laid down in the first subparagraph of administrative expenditure connected to paragraph (2)(a). these inspections and to these controls.

I - 12003

OPINION OF MR LÉGER — CASE C-423/01

78. Having regard to these considerations, costs and administrative expenditure result- I propose that the Court's reply to the ing from the proximity of the cutting plant second question referred for a preliminary and the slaughterhouse, at the time the ruling should be that the disputed reduction controls and inspections connected to the must be proportional to the saving in staff cutting operations are carried out.