Land Berlin v Firma Wigei, Wild-Geflügel-Eier-Import GmbH & Co. KG (30/79)

Contents

In Case 30/79REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Bundesverwaltungsgericht [Federal Administrative Court] for a preliminary ruling in the proceedings pending before that court betweenThe Land of Berlin, represented by the Senator für Gesundheit und Umweltschutz [Senator for Health and the Environment],andWigei, Wild-Geflügel-Eier-Import GmbH & Co. KG, Munich,THE COURTcomposed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, G. Bosco and O. Due, Judges,Advocate General: J.-P. WarnerRegistrar: A. Van Houttegives the following

Judgment

Facts and Issues

The judgment making the reference to the Court and the written observations submitted pursuant to Article 20 of the Protocol on the Statue of the Court of Justice of the EEC may be summarized as follows:

I —Facts and procedure

1.The common organization of the market in poultry-meat is dealt with in Regulation (EEC) No 2777/75 of the Council of 29 October 1975 (Official Journal L 282, p. 77). Article 11 (2) of that regulation provides:“Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council acting by a qualified majority on a proposal from the Commission, the following shall be prohibited:— The levying of any customs duty or charge having equivalent effect;— The application of any quantitative restriction or measure having equivalent effect.^note...”Article 15 of Council Directive No 71/118/EEC on health problems affecting trade in fresh poultry-meat provides:“Until the entry into force of Community provisions concerning imports of fresh poultry-meat from third countries, Member States shall apply to such imports provisions which are at least equivalent to those of this directive”.

2.In the course of 1976 Wigei GmbH & Co. KG (hereinafter referred to as “Wigei”), plaintiff and respondent to the appeal on a point of law in the main action, imported several consignments of deep-frozen poultry-meat (tiefgefrorenes Geflügel) from Hungary into (West) Berlin. On the basis of those transactions the competent authorities of the Land of Berlin, defendant and appellant on a point of law in the main action, carried out the health inspections required by the German laws in force at the time, namely the Geflügelfleischhygienegesetz [Poultry-meat hygiene Law] of 12 July 1973 (Bundesgesetzblatt I, p. 776) and levied charges for health inspections on imports from third countries amounting to DM 7636.60 as laid down by that Law and the implementing regulations, in particular the Gebührenverordnung — Geflügelfleischhygiene [Regulation on charges in connexion with poultry-meat hygiene] of 24 July 1973 (Bundesgesetzblatt I, p. 897).Wigei takes the view that those charges constitute charges having an effect equivalent to customs duties which are prohibited by Article 11 (2) of Regulation No 2777/75 and contends that it is not obliged to pay them.The Land of Berlin for its part does not deny that they are charges having an effect equivalent to customs duties but takes the view that the levying of those charges is justified by the application of Article 15 of Directive No 71/118/EEC. According to the Land of Berlin that provision constitutes a “derogation... decided by the Council”, within the meaning of Article 11 (2) of Regulation No 2777/75, from the prohibition on the levying of charges having an effect equivalent to customs duties on imports of the goods in question from third countries.The dispute came before the Verwaltungsgericht [Administrative Court] Berlin which, by order of 26 April 1977, acceded to Wigei's request for the matter to be referred to the Bundesverwaltungsgericht [Federal Administrative Court] as a direct appeal on a point of law [Sprungrevision].

3.That court took the view that the dispute raised problems concerning the interpretation of Community law and, by order of 1 December 1978, asked the Court of Justice to deliver a preliminary ruling on the following questions :“Does Article 15 of Council Directive No 71/118/EEC of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106) authorize the levying of charges which are intended to cover the costs of an 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 where, under the law of that Member State, the importation of such meat is permitted 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?Is the amount of the charges imposed in the nonmember country decisive?”

4.Articles 18 and 19 of the Geflügelfleischhygienegesetz of 12 July 1973 contain the following provisions which are of relevance to the present dispute.Article 18(1) Fresh poultry-meat may be imported from nonmember countries only on condition that:1. The poultry was slaughtered in undertakings slaughtering animals for export and that the fresh poultry-meat was there obtained, cut up, stored, wrapped or prepared; and those slaughterhouses and the chilling and refrigerating rooms in which fresh poultry-meat is stored, situated outside the slaughterhouses, have been recognized by the Federal Minister and officially published in the Bundesanzeiger [Federal Gazette] ;2. The poultry and the carcasses and offal have been subject to the inspection laid down by Article 19 (3) (1) (b) and the meat was pronounced fit for consumption and marked as such;3. The conditions of slaughtering, of obtaining the meat, of cutting it up, refrigerating, storing, wrapping and preparing it and the transport and loading conditions satisfy the minimum requirements set out in Article 19 (3) (1) (c);4. The consignment is accompanied by the official veterinary health certificate required by Article 19 (3) (2).(2) .. ”Article 19(1) The recognition [by the Federal Minister] and the publication [in the Bundesanzeiger] of the names of the undertakings slaughtering animals for export, the chilling and refrigerating rooms situated outside the slaughterhouses pursuant to Article 18 (2) (1) and the recognition and publication of the names of the food processing undertakings pursuant to Article 18 (2) (1) presuppose that the highest veterinary authority in the exporting country:— Has recognized the various undertakings;— Has kept them under regular supervision;— Has issued to the slaughterhouses and processing undertakings a veterinary control number for the exportation of fresh or prepared poultry-meat for the purposes of this Law.(2) The recognition of undertakings in accordance with Article 1 and the maintenance of such recognition may be made conditional on those undertakings' being checked by veterinary officers appointed by the Federal Minister”.Under Article 19 (3) the Federal Minister is further empowered to lay down by regulation minimum veterinary and public health requirements. The last part of that article provides :“The minimum requirements must not be less stringent than the provisions laid down by law or on the basis of the Law relating to internal and intra-Community trade in fresh poultry-meat”.On 24 July 1973, in application of Article 19 (3), a regulation was issued laying down the minimum public health requirements for poultry-meat (Bundesgesetzblatt I, p. 873). Those requirements, set out in annexes relating to slaughtering and the cutting up and storage of poultry-meat, correspond for the most part to the criteria in Directive No 71/118/EEC. Article 24 of the Geflügelfleischhygienegesetz provides for the systematic inspection of fresh poultry-meat on its importation into the Federal Republic of Germany. The detailed rules relating to that inspection are set out in the Geflügelfleischunter-suchungs-Verordnung [Regulation on inspection of poultry-meat] of 24 July 1973 (Bundesgesetzblatt I, p. 882). That inspection includes checking that the prescribed formalities have been complied with (certification and marking) and examination of the state of the goods. Finally, the Gebührenverordnung Geflügelfleischhygiene [poultry-meat hygiene charges regulation] of 24 July 1973 (Bundesgesetzblatt I, p. 897) lays down the criteria for the levying of those charges for the application of the above provisions.

5.The order from the national court was registered at the Court on 23 February 1979.Written observations pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC were submitted by Wigei, represented by its lawyer, Mr Festge, by the Government of the Federal Republic of Germany, represented by its Agent, Martin Seidel, and by the Commission of the European Communities, represented by Manfred Beschel of its Legal Department, acting as Agent. On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without holding any preparatory inquiry.

II —Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —Observations of the plaintiff in the main action (Wigei)

—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.”

B —Observations of the German Government

—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.

C —Observations of the Commission

—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 1As 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:(a) The Member State confines itself to checking compliance with the health standards within the framework of an import inspection;(b) 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 2The Commission draws a distinction between the two national systems of inspection described above.(a) 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;(b) 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:(a) 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.(b) 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”.

III —Oral procedure

At the hearing on 7 November 1979 the plaintiff in the main action, represented by its lawyer, B. Festge, the Government of the Federal Republic of Germany, represented by M. Seidel, Ministerialrat [Ministerial Counsellor], of the Federal Ministry for Economic Affairs, Bonn, and the Commission of the European Communities, represented by its Agent, M. Beschel submitted oral observations.The parties to the action stated that they had agreed that deep-frozen meat must be regarded as fresh poultry-meat for the purpose of applying Regulation No 2777/75.The Advocate General delivered his opinion at the hearing on 27 November 1979.

Decision

1By an order of 1 December 1978, which was received at the Court Registry on 23 February 1979, the Bundesverwaltungsgericht [Federal Administrative Court] referred to the Court of Justice for a preliminary ruling, pursuant to Article 177 of the EEC Treaty, a question relating to the interpretation of Article 15 of Council Directive No 71/118/EEC of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106) on health problems affecting trade in fresh poultry-meat.

2This question asks: “Does Article 15 of Council Directive No 71/118/EEC of 15 February 1971 [Official Journal, English Special Edition 1971 (I), p. 106] authorize the levying of charges which are intended to cover the costs of an 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 where, under the law of that Member State, the importation of such meat is permitted 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?Is the amount of the charges imposed in the nonmember country decisive?”

3This question has been raised during an action brought against the authorities of the Land of Berlin by an undertaking, which, having imported into West Berlin from Hungary during 1976 consignments of fresh poultry-meat, found that in compliance with the “Gebührenverordnung — Geflügelfleischhygiene” (Regulation on charges in connexion with poultry-meat hygiene) charges for health inspections, to which the said poultry-meat was subjected on importation, were levied on it pursuant to the German Poultry-meat hygiene Law (Geflügelfleischhygienegesetz of 12 July 1973: BGBl. I, p. 776).The undertaking in question contended that it did not have to pay them on the ground that they were charges having an effect equivalent to customs duties the levying whereof was incompatible with Article 11 (2) of Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultry-meat (Official Journal L 282, p. 77) which replaced, with effect from 1 November 1975, Article 11 (2) of Regulation No 123/67/EEC of the Council of 13 June 1967 (Official Journal, English Special Edition 1967, p. 63).According to the said Article 11 (2) as worded at the time of the imports at issue in this case “Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council acting by a qualified majority on a proposal from the Commission, the following shall be prohibited:— The levying of any customs duty or charge having equivalent effect;— The application of any quantitative restriction or measure having equivalent effect....”

4The authorities of the Land of Berlin challenged this view and contended, in the first place, that, when the concept of charges having an effect equivalent to customs duties was applied to charges levied for public health inspections, its meaning differed according to whether the imports in question came from nonmember countries or derived from intra-Community trade.

5After the Bundesverwaltungsgericht had acknowledged that the disputed charges are in fact charges having an effect equivalent to customs duties within the meaning af Article 9 of the EEC Treaty and also of Article 11 (2) of Regulation Nos 123/67 and 2777/75 (to which reference has already been made) it pointed out that it is possible under the latter provision to derogate from the prohibition which that provision lays down. In the light of the judgment of the Court of Justice of 28 June 1978 (Case 70/77 Simmenthal S.p.A. v Amministrazione delle Finanze dello Stato [1978] ECR 1453), in which it was held that Article 9 of Council Directive No 64/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1963-1964, p. 185) derogates from the prohibition on levying health inspection charges in the organization of the market concerned, the national court refers to the Court of Justice the question whether Article 15 of Council Directive No 71/118/EEC of 15 February 1971 also amounts to a similar derogation. That provision lays down that “Until the entry into force of Community provisions concerning imports of fresh poultry-meat from third countries, Member States shall apply to such imports provisions which are at least equivalent to those of this directive”. While the Bundesverwaltungsgericht has no doubt as to the derogative effect which is to be attributed to the said Article 15 it nonetheless considers that it is necessary to refer the abovementioned question of interpretation to the Court of Justice in order to clarify the legal situation.

6Although Article 11 (2) of Regulations Nos 123/67 and 2777/75 in fact prohibits the levying, in trade with nonmember countries in fresh poultry-meat, of customs duties other than those laid down by the Common Customs Tariff or domestic charges having equivalent effect, this prohibition only applies subject either to any provisions to the contrary contained in the said regulations — this is not the case as far as the charges in this dispute are concerned — or to any derogation therefrom decided by the Council acting by a qualified majority on a proposal from the Commission.

7Article 15 of Council Directive No 71/118/EEC of 15 February 1971, which the national court has mentioned, is in fact a derogation within the meaning of Article 11 (2) of Regulations Nos 123/69 and 2777/75 from the prohibition of the levying by Member States of charges having an effect equivalent to customs duties. The wording of this provision is in fact similar to that of Article 9 of Council Directive No 64/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1963-1964, p. 185) and the wording of the two articles clearly indicates that they have the same meaning.

8The Court in its judgment of 28 June 1978 (Case 70/77 Simmenthaį to which reference has already been made) held that the specific purpose of Article 9 is to lay down, on a provisional basis pending the implementation of a Community system of health inspections of imports of fresh meat from third countries, a rule applicable to the national arrangements for health inspection remaining in force. In order to prevent these national arrangements from being less strict and less onerous when applied to products from third countries than the system of health inspections laid down by the directive in question for intra-Community trade, which would lead to distortions of competition, Article 9 of Council Directive No 64/433 provides that national provisions relating to imports from “third countries” shall not be “more favourable” than those governing intra-Community trade by virtue of that directive. The Court has stated that this rule is intended to ensure that traders who put on the market fresh meat originating within the Community are not treated less favourably than their competitors who import meat from third countries and that in consequence it refers not only to the inspections themselves but also to the charges levied in respect thereof.

9The similar wording of Article 15 of Directive No 71/118 and Article 9 of Directive No 64/433 leads to the conclusion that, in so far as Member States are able to levy charges for health inspections, the same derogative effect must be attributed to Article 15 of Directive No 71/118 as that which should be attributed to Article 9 of Directive No 64/433.

10Consequently the prohibition of the levying of charges having an effect equivalent to customs duties laid down in Article 11 (2) of Regulations Nos 123/67 and 2777/75 cannot be relied on for the purpose of preventing Member States levying at the external frontiers of the Community charges for the health inspections which they carry out of imports of fresh poultry-meat from third countries.

11The fact that Directive No 71/118 does not expressly mention the levying of charges for health inspections in the course of intra-Community trade is irrelevant in this connexion. The Court has in fact held in its judgment of 25 January 1977 in Case 46/76 W.J. G. Baubuis v The Netherlands State [1977] ECR 5, that national fees charged for veterinary and public health inspections, which are prescribed by a Community provision, — such as Directive No 71/118 (poultry-meat) in this case — which are uniform and are required to be carried out before dispatch within the exporting country do not constitute charges having an effect equivalent to customs duties and may therefore be introduced by Member States, provided that they do not exceed the actual cost of the inspection for which they are charged. The existence of those fees justifies in turn the levying by Member States of charges for public health inspections at the Community's external frontiers so that they fulfil the obligation imposed upon them by Article 15 of Directive No 71/118 to apply to imports from third countries provisions which are “at least equivalent” to those of that directive relating to intra-Community trade in the same goods.

12Consequently it is for the national courts before which actions have been brought relating to charges for public health inspections levied by a Member State in connexion with imports into that Member State of fresh poultry-meat from a nonmember country to compare those charges with the domestic charges which that Member State levies for the domestic inspections prescribed by Directive No 71/118 in the case of intra-Community trade. Although the two types of charges cannot be required to be similar in all respects, on the one hand, because under Article 15 of Directive No 71/118 only charges may be levied at the external frontiers which are “at least equivalent” to the charges deriving from the implementation of the said directive on the intra-Community level and, on the other hand, because the possibility of inspections at the external frontiers of the Community proving to be more onerous than the inspections carried out in the Member State concerned before dispatch cannot be ruled out, it must nevertheless be borne in mind that, in the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objective sought to be attained or if the charges were clearly to exceed the cost of those inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of the abovementioned Regulations Nos 123/69 and 2777/75.

13It is clear both from the wording of the question referred to the Court and from the grounds of the order making the reference that the Bundesverwaltungsgericht also seeks clarification on the question whether the derogation mentioned in Article 15 of Directive No 71/118 may be relied on in the Member State concerned for the purpose of levying charges for public health inspections if (1) the laws of the said Member State allow imports of poultry-meat only if several public health provisions in the nonmember exporting country of a standard equivalent to those which Community directives lay down for intra-Community trade, in particular inspections before dispatch have been complied with, and (2) in addition these inspections give rise in the exporting nonmember country to the levying of charges.

14In the present state of Community law systematic public health inspections of the kind described in the question raised by the Bundesverwaltungsgericht and the charges relating thereto do not call for any reservations even if the inspections prove to be more onerous and the charges higher than those deriving, in the case of intra-Community trade, from the application of Directive No 71/118. In fact it follows from the actual wording of Article 15 of Directive No 71/118 that this provision allows stricter inspections at the external frontiers than those provided for by the directive in the case of intra-Community trade. Furthermore Community law does not require Member States to show the same degree of confidence towards nonmember countries as that which, on the basis of Directive No 71/118, should characterize relations between Member States and which results in the abolition of systematic inspections in trade between Member States.

15The same considerations lead to the conclusion that the fact that charges for public health inspections have been levied in the nonmember exporting country does not in principle have any effect on the level of the charges for public health inspections levied by the Member States on the external frontiers of the Community. As far as concerns the kind of inspections carried out and the level of the charges the only limit is the one which has already been mentioned above, namely that the exception in Article 15 of Directive No 71/118 would not cover inspections which are excessive, unnecessarily strict and charges which are out of proportion to the costs of the inspections, the Member States having nevertheless, in this respect, a reasonable discretion.

16Therefore the answer to the question asked by the Bundesverwaltungsgericht must be that Article 15 of Council Directive No 71/118 EEC of 15 February 1971 on health problems affecting trade in fresh poultry-meat authorizes a Member State to levy a charge to cover the costs of an inspection of imports of poultry-meat from nonmember countries, even though the law of that Member State allows such importation only if provisions for public health of a standard equivalent to those which Directive No 71/118 lays down in the case of trade between Member States have been complied with in the nonmember exporting country and even though these inspections already give rise in the nonmember exporting country to the levying of charges. The fact that charges for public health inspections have been levied in the nonmember exporting country does not in principle have any effect on the level of the charges levied by Member States for public health inspections at the external frontiers of the Community. These inspections may be systematic and designed to ascertain whether the consignments imported bear the requisite markings and whether, on the basis of samples taken, the poultry-meat produced for importation proves to be fit. for consumption. It must nevertheless be borne in mind that in the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objective sought or if the charges were clearly to exceed the cost of these inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of Regulation No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultry-meat.

Costs

17The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURTin answer to the questions referred to it by the Bundesverwaltungsgericht by an order of that court of 1 December 1978 which was registered at the Court on 23 February 1979, hereby rules:

1.Article 15 of Council Directive No 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultry-meat authorizes a Member State to levy a charge to cover the costs of an inspection of imports of fresh poultry-meat from nonmember countries, even though the law of that Member State allows such importation only if provisions for public health inspection of a standard equivalent to those which Directive No 71/118 lays down in the case of trade between Member States have been complied with in the nonmember exporting country and even though these inspections already give rise in the nonmember exporting country to the levying of charges.

2.The fact that charges for public health inspections have been levied in the nonmember exporting country does not in principle have any effect on the level of the charges levied by Member States for public health inspections at the external frontiers of the Community. These inspections may be systematic and designed to ascertain whether the consignments imported bear the requisite markings and whether, on the basis of samples taken, the poultry-meat produced for importation proves to be fit for consumption.

3.In the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objective sought or if the charges were clearly to exceed the cost of these inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of Regulation No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultry-meat.

Delivered in open court in Luxembourg on 22 January 1980.