1.As to the absence of Community rules rehting to the charges, Denkavit observes that Article 10 of Regulation No 1725/79 contains no provision relating to the costs of the regular inspections of all undertakings manufacturing the products in question which the authorities are required to carry out. On the other hand Article 9 (4) of that regulation does provide for the recovery of costs in respect of a special investigation carried out at the claimant's request and in his interest.The regulation thus makes a clear distinction between those two types of inspection. Therefore, Denkavit maintains that the legislature deliberately refrained from stipulating that the recipient of aid must bear the costs relating to regular inspections. Regulation No 1725/79 constitutes an exhaustive set of rules. The Member States may thus not claim fees to cover the costs of regular inspections.Denkavit alleges, furthermore, that the Member States are not empowered to adopt national provisions relating to charges. The judgment of the Court of 30 November 1978 in Case 31/78 Bussone v Italian Ministry for Agriculture and Forestry [1978] ECR 2429 appears to be based on a different idea but that judgment is not relevant to the present case. On the one hand the organization of the market in eggs which was at issue in that case did not lead to a standardization of prices unlike the provisions governing the market for milk products which is relevant in this case. On the other hand that case concerned quality controls carried out in the interest of the consumer whilst the present case concerns inspections carried out solely in the general interest.Furthermore, the rules concerning the charges at issue are not procedural rules bui have the erteci of imposing a supplementär}. condition for the grant of the aid, a condition not stipulated by Regulation No 1725/79 which governs the matter.According to Denkavit even the Commission has no power under Regulation No 1725/79_ip~ impose on the undertakings concerned an obligation to bear the charges of those inspections. In fact Article 4 (2) of Regulation No 986/68 of the Council, as amended by Regulation No 1038/72 of the Council of 18 May 1972 (Official Journal, English Special Edition 1972 (II), p. 456), provides that “Member States shall take the measures necessary” to ensure the application of the provisions laid down in Article 2 (4) and (5) and Article 3 (2). The implementing regulation adopted by the Commission could not amend the basic regulation or derogate from it. Provisions governing charges are not necessary for the exercise of supervisory control by the State (see judgments of the Court of 14 December 1972 in Case 29/72 Marimex v Amminstrazione delle Finanze dello Stato [1972] ECR 1309 at paragraph 5, and of 25 January 1977 in Case 46/76 Bauhuis v Netherlands [1977] ECR 5 at paragraph 14. The same argument applies a fortiori to the relationship of a Commission regulation to a national implementing regulation (see judgment of the Court of 11 February 1971 in Case 39/70 Norddeutscher Vieh- und Fleischkontor v Hauptzollamt Hamburg-St. Annen [1971] ECR 49 at paragraph 4).Finally Denkavit emphasizes that no support for the obligation to pay the charges may be drawn from the rules governing the obligation to furnish proof underlying Regulation No 1725/79. Two distinct rules are involved which in the present case bear no relation to each other. Community law admits of no general principle according to which legitimate administrative controls justify the charging of a fee for the costs which thev entail (see judgment of the Court of 5 July 1978 in Case 137/77 City of Frankfurt am Main v Neumann [1978] ECR 1637 at paragraph 12).The Government of the Federal Republic of Germany considers that the inspection charges provided for in Article 10 of Regulation No 1725/79 constitute one of the preconditions for entitlement to benefit from the aid. Those preconditions are laid down in Article 1, 3 and 4 of Regulation No 1725/79 and in Article 1 of Regulation No 986/68. In accordance with the general rules governing the obligation to furnish proof it is the person claiming entitlement who must prove at his own expense that those preconditions have been satisfied. That proof cannot be established without a laboratory inspection of the compound feedingstuffs for animals manufactured in accordance with Article 4 of Regulation No 1725/79. For that reason the cost of those inspections should be borne by the undertaking concerned.In fact the rules governing those charges are an integral pan of the procedural rules which must be applied when the regulation is implemented. In accordance with the case-law of the Court it is for the Member States, in the absence of Community rules, to adopt the necessary procedural provisions or to apply, if appropriate, existing national rules of procedure. If that argument is accepted the charging of national fees intended to cover costs of inspections imposed by Community law must be considered to be lawful (see the judgments of the Court of 30 November 1978 in Bussone, mentioned above, of 16 December 1976 in Case 33/76 REWE v Landwirtschafiskammer Saarland [1976] ECR 1989, of 16 December 1976 in Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043 and of 12 June 1980 in Joined Cases 119 and 126/79 Lippische Hauptgenossenschafi and Westfälische Central-Genossenschaft v Bundesanstalt fur landwirtschafiliche Marktordnung [1980] ECR 1863.Such an interpretation does not conflict with Article 9 (4) of Regulation (EEC) No 1725/79. That provision is concerned more with a specific case namely that of a special investigation carried out in the sole interest of the recipient of the aid if that person, after an initial inspection under Article 10 has led to a negative result, nevenheless still wishes to prove his entitlement to the aid.The Commission observes that the detailed rules governing inspection procedures must be laid down by the Member States since the Community legislature refrained from laying down all the procedural details. In the same way the question of the financing of the inspections must be a matter for the discretion of the Member States (see judgment in Bussone mentioned above and the judgment of the Coun of 12 June 1980 in Case 130/79 Express Dairy Foods [1980] ECR 1887).The Commission considers that Article 9 (4) of Regulation No 1725/79 is intended to cover an exceptional case. In this panicular case involving the recovery of an aid unduly paid the Community legislature thought fit following regular inspections which achieved negative results to provide for the possibility of a “special” investigation enabling the person concerned to prove that a pan only of his production failed to satisfy the conditions laid down by the regulation. It is not possible to draw any conclusions from that as to the financing of general inspection measures laid down by Article 10.
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