Court of Justice 22-01-1980 ECLI:EU:C:1980:20

The compatibility of the disputed charges with Community law

According to Wigei the charges in question constitute charges having an effect equivalent to customs duties because they do not constitute remuneration for a service provided to the importer and they do not relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic products and imported products alike. At the time of the imports in question (1976) the German health legislation did not as yet make any provision for comparable domestic charges as the Geflügelfleischhygienegesetz, which was amended on 25 January 1976, entered into force as regards domestic trade only on 1 January 1977.

As the charges in question are in principle prohibited it remains to be considered whether they are authorized by a derogative provision based on Article 11 (2) of Regulation No 2777/75. Wigei takes the view that Article 15 of Directive No 71/118/EEC does not have such a scope. Analysing the judgment delivered by the Court of Justice on 28 June 1978 (Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453) which interpreted Artide 9 of Directive No 64/433 of 26 June 1964 (Official Journal, English Special Edition 1963-1964, p. 185) as derogation from the prohibition on the imposition of charges having an equivalent effect to customs duties laid down by Article 20 (2) of Regulation No 805/68 of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187), Wigei takes the view that that interpretation cannot automatically be extended to Article 15 of Directive No 71/118 in order to infer from that a derogation from the prohibition of charges having an effect equivalent to customs duties set out in Article 11 (2) of Regulation No 2777/75. According to Wigei:

1. Whereas Council Directive No 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries (Official Journal, English Special Edition 1972 (31 December) p. 7; Journal Officiel L 302, p. 28) contains provisions relating to the amount of the costs of inspecting animals, Directive No 71/118 contains no such provision. Article 15 of Directive No 71/118 and, in particular, the phrase “at least equivalent to those of this directive” should therefore be understood as affecting only the health requirements laid down in the various Member States but not the inspection costs.

2. If Article 15 of the directive did constitute the alleged “derogation”, there would exist an infringement of Article 11 (2) of Regulation No 2777/75. In fact any exception to the prohibition on the levying of charges having an effect equivalent to customs duties must be decided in accordance with the Community procedure set out in Article 11 (2) and Wigei therefore observes that the national conditions do not satisfy those requirements. As exceptions from that prohibition may have detrimental effects a wide interpretation of Article 15 of Directive No 71/118/EEC would be contrary to the principle of legal certainty.

3. Application of the national conditions relating to charges by means of Directive No 71/118/EEC would lead to discrimination against trade with nonmember countries in comparison with intra-Community trade. In fact the conditions set out in Article 18 et seq. of the Geflügelfleischhygienegesetz of 1973 for trade with nonmember countries in conjunction with those laid down by Directive No 71/118/EEC would have the effect of rendering more expensive poultry-meat imported from nonmember countries.

   It would further lead to discrimination against importers in certain Member States in comparison with those in other Member States as the levying of charges is not provided for in all the Member States or is not everywhere at the same rate. Such an unequal charge would run contrary to the prohibition on discrimination which is precisely what Article 11 (2) of Regulation No 2777/75 sought to avoid.

In Wigei's opinion the following answer should therefore be given to the question submitted :

“Article 15 of Council Directive No 71/118/EEC of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106) does not authorize the levying of charges which are intended to cover the costs of an inspection on importation of fresh poultry-meat from nonmember countries.

In the alternative:

Where, under the law of the importing Member State, the importation of fresh poultry-meat is permitted only on condition that in the exporting country all the health provisions which Directive No 71/118/EEC imposes on the exporting country in relation to intra-Community trade have been complied with and where charges are imposed therefor in the nonmember country under its national law, it is not permissible to levy, by means of Article 15 of Directive No 71/118/EEC, charges to cover the costs of such inspection on importation of fresh poultry-meat from nonmember countries which is designed to ascertain whether the consignments bear the requisite markings and are accompanied by the requisite certificates and whether, on the basis of samples taken, the poultry-meat intended for importation is fit for consumption. In this connexion the amount of the charges imposed in the nonmember country is not relevant.”

The compatibility of the disputed charges with Community law

In the view of the German Government the charges in question do not infringe Article 11 (2) of Regulation No 2777/75 because they relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic products and imported products alike. While it is certainly true that the scales of charges applicable to domestic poultry-meat and foreign poultry-meat do not coincide exactly they are none the less basically equivalent.

In the alternative the German Government considers that the charges in question are covered by the derogation in Article 11 (2) of Regulation No 2777/75. In fact the principle of equivalence set out in Article 15 of Directive No 71/118/EEC signifies that the levying of charges is required by Community law in so far as the import controls are necessary in order to ensure equivalent health inspection standards for meat imported from nonmember countries. Article 15 contains not only an obligation to carry out inspections but it also lays down the obligation to levy charges to cover the relevant costs. Relying on the Simmentbal judgment cited above the German Government takes the view that the levying of charges is inevitable as, if it were not done, poultry-meat from nonmember countries would be subject to a lesser charge than poultry-meat coming from intra-Community trade.

The German Government admits that the levying of charges should be in accordance with the principle, confirmed by the Court of Justice in its judgment in Case 70/77, Simmentbal, that the charges should not exceed the actual cost of the inspections; the Gebührenverordnung of 24 July 1973, cited above, does comply with that requirement.

The German Government then turns to the question submitted by the national court oh the point whether, in order to fix the level of charges, each Member State must take account of the rate of charges already levied in the exporting nonmember country and takes the view that the charges payable in the country of origin should not be taken into consideration. The fact that the inspection charges are consequently greater for poultry-meat imported from nonmember countries than for meat imported from a Member State does not give rise to any objection from the point of view of Community law as Community law does not lay down the obligation to take account, in external trade, of charges levied in the country of origin. In fact in providing that the provisions to be applied in trade with nonmember countries must be at least equivalent Article 15 of Directive No 71/118/EEC does not exclude the possibility of Member States' laying down more onerous rules for imports from nonmember countries.

Consequently, the Government of the Federal Republic of Germany proposes that the first part of the question should be answered in the affirmative and that it should be ruled that Article 15 of Directive No 71/118/EEC authorizes the levying of charges intended to cover the cost of inspection of fresh poultry-meat imported from nonmember countries at least to the same extent as for inspections on export carried out in intra-Community trade even where charges have already been levied in this respect by the nonmember country in accordance with its law and without its being necessary to take account of the amounts of the charges already levied in the nonmember country.

The compatibility of the disputed charges with Community law

The Commission submits that the charges in question satisfy the criteria drawn up by the Court of Justice to define charges having an effect equivalent to customs duties. However, as Article 11 (2) of Regulation No 2777/75 provides for the possibility of derogation it is necessary to examine whether Article 15 of Directive No 71/118/EEC contains such an exception. The Commission analyses the judgment of the Court in Case 70/77, Simmenthal, cited above, and submits that that article permits the Member States, on the one hand, to subject goods coming from nonmember countries to a system of inspection which is at least as stringent as that on corresponding Community goods and, on the other, to levy charges in order to cover the cost of those inspections.

In the Commission's view the Bundesverwaltungsgericht seeks clarification of the question whether Article 15 of Directive No 71/118/EEC also constitutes a derogation from the prohibition on levying charges having an effect equivalent to customs duties for the charges levied for systematic inspections on importation of goods coming from nonmember countries where:

1. The Member State in question authorizes the importation of fresh poultry-meat only on condition that in the exporting country all the health provisions applicable in intra-Community trade have been complied with and that that fact has been confirmed by the authorities of the exporting country.

2. The exporting State levies a charge for carrying out the requisite inspections.

As to Point 1

As Article 15 of Directive No 71/118/EEC does not lay down any criteria concerning the detailed rules for inspection of imports coming from nonmember countries Member States are at liberty to organize the inspections themselves. In the Commission's view two types of national scheme may be envisaged:

1. The Member State confines itself to checking compliance with the health standards within the framework of an import inspection;

2. The importing Member State requires the exporting State to comply with certain conditions regarding hygiene and permits imports only after an additional inspection on importation has confirmed that the rules laid down have been complied with (mixed system).

The latter system, which is the one chosen by the German legislature, is not open to any objection as Community law now stands. The German provisions are intended to ensure that the minimum criteria laid down by Community law are complied with. On the other hand Article 15 of Directive No 71/118/EEC permits the Member States to subject poultry-meat coming from nonmember countries to a more stringent system of inspection than that laid down by the said directive for Community goods. In fact the obligation imposed unilaterally on a nonmember country to comply with certain minimum conditions of hygiene cannot be treated in the same way as the system of health inspection set up by Directive No 71/118/EEC which provides for a Community procedure.

As to Point 2

The Commission draws a distinction between the two national systems of inspection described above.

1. If a Member State merely carries out an inspection on importation it has the right to levy a charge for the inspection which does not exceed the costs incurred. The condition that there should be no discrimination contained in Article 15 of Directive No 71/118/EEC applies, according to the judgment of the Court in Case 70/77 (Simmenthal, cited above), not only to the inspections but also to the charges levied in respect of those inspections;

2. If, on the other hand, a Member State adopts the mixed system and requires some of the inspection measures to be carried out at the place of slaughtering and makes the lawfulness of the importation dependent on certain inspections being carried out in the nonmember country, the Member State no longer has the right to levy a charge for that part of the inspection as it does not occasion it any expense. However, in respect of that part of the health measures which remain the responsibility of the importing Member State Community law does not make it possible to prohibit the Member State in question from levying any charges intended to cover the costs.

The Commission examines the question whether the Member State concerned must take account, in fixing the level of charges for health inspections, of the charges levied in the exporting nonmember country and it distinguishes two possibilities:

1. The charges levied in the exporting country for the requisite inspections do not go beyond the principle of covering costs. In such a case the importer would pay the charges levied in the nonmember country and the charges for the inspection on importation. That charge would be lawful as Article 15 of Directive No 71/118/EEC leaves the Member States at liberty to subject imports from nonmember countries to more stringent inspections than those applied to Community goods and to levy for such inspections a charge intended to cover the costs.

2. Problems might possibly arise in the hypothetical case in which the exporting State levied charges greater than the costs incurred. It might then be asked whether the importing Member State should not, in order to compensate for that additional charge, reduce the rate of its own charges by an amount corresponding to the difference between the charges levied for the inspection in the nonmember country and the costs actually incurred. Apart from the fact that that situation hardly corresponds to economic realities the Commission takes the view that the answer to that question should be negative, on the one hand, because the Member States do not have the necessary information regarding costs incurred in nonmember countries and, on the other, because it would continually be necessary to make adjustments for any changes in such information.

On the basis of the considerations set out above the Commission proposes that the following answer should be given to the questions submitted by the Bundesverwaltungsgericht:

“Article 15 of Council Directive No 71/118 of 15 February 1971 authorizes a Member State to levy a charge which is intended to cover the costs of an inspection carried out for health purposes on the importation of fresh poultry-meat from nonmember countries even if the law of those Member States permits the importation of such meat only on condition that in the exporting country all the health provisions which the said directive imposes on the exporting country in relation to intra-Community trade have been complied with and where charges are imposed therefor in the nonmember country under its national law. The amounts of the charges imposed in the nonmember country are of no importance in that respect”.