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Cite as: [1978] EUECJ R-138/77

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61977J0138
Judgment of the Court of 5 July 1978.
Firma Hermann Ludwig v Free and Hanseatic City of Hamburg.
Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany.
Case 138/77.
European Court reports 1978 Page 01645
Greek special edition 1978 Page 00539
Portuguese special edition 1978 Page 00583

COMMON AGRICULTURAL POLICY - APPROXIMATION OF LEGISLATION ON PUBLIC HEALTH AND VETERINARY INSPECTIONS - IMPORTS FROM THIRD COUNTRIES - HEALTH INSPECTIONS - CHARGES - DIRECTIVE NO . 72/462 - APPLICATION BY ANALOGY - NOT PERMISSIBLE
( COUNCIL DIRECTIVE NO 72/462/EEC , ARTS . 12 , 23 , 24 AND 26 )

COUNCIL DIRECTIVE NO 72/462/EEC , WHICH PLACES A DUTY ON MEMBER STATES TO CARRY OUT HEALTH INSPECTIONS UPON THE IMPORTATION OF BOVINE ANIMALS AND SWINE AND FRESH MEAT FROM THIRD COUNTRIES AND PROVIDES THAT THE RESULTING EXPENSES MUST BE PAID BY THE TRADERS CONCERNED , CANNOT BE APPLIED BY ANALOGY TO THE IMPORTATION OF OTHER PRODUCTS ( IN THIS CASE , PRESERVED MEAT ).

IN CASE 138/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESVERWALTUNGSGERICHT ( FEDERAL ADMINISTRATIVE COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
FIRMA HERMANN LUDWIG
AND
FREE AND HANSEATIC CITY OF HAMBURG

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF COUNCIL DIRECTIVE NO 72/462/EEC OF 12 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 31 DECEMBER ); JOURNAL OFFICIEL L 302 , P . 28 ) ON HEALTH AND VETERINARY INSPECTION PROBLEMS UPON IMPORTATION OF BOVINE ANIMALS AND SWINE AND FRESH MEAT FROM THIRD COUNTRIES ,

1BY AN ORDER OF 16 SEPTEMBER 1977 WHICH WAS RECEIVED AT THE COURT ON 16 NOVEMBER 1977 , THE BUNDESVERWALTUNGSGERICHT REQUESTED THE COURT OF JUSTICE TO GIVE A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY ON THE QUESTION WHETHER ' ' ARTICLE 12 ( 1 ), ( 7 ) AND ( 8 ) AND ARTICLES 23 , 24 AND 26 OF COUNCIL DIRECTIVE NO 72/462/EEC OF 12 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 31 DECEMBER ); JOURNAL OFFICIEL L 302 , P . 28 ) ARE APPLICABLE BY ANALOGY TO THE IMPORTATION OF PREPARED MEAT , WITH THE RESULT THAT THE MEMBER STATES ARE ENTITLED OR OBLIGED TO CARRY OUT HEALTH INSPECTIONS AND MAY IMPOSE CHARGES FOR SUCH INSPECTIONS ' ' .

2THAT QUESTION IS REFERRED IN THE CONTEXT OF A DISPUTE BETWEEN THE ADMINISTRATIVE AUTHORITIES OF THE FREE AND HANSEATIC CITY OF HAMBURG AND AN UNDERTAKING IMPORTING PREPARED BEEF IN TINS ( GOULASH ) FROM HUNGARY , CONCERNING THE COMPATIBILITY WITH COMMUNITY LAW OF CHARGES IMPOSED BY THOSE ADMINISTRATIVE AUTHORITIES IN RESPECT OF A HEALTH INSPECTION CARRIED OUT ON THAT MEAT IN JUNE 1974 .
3UNDER ARTICLE 1 OF REGULATION NO 805/68 OF THE COUNCIL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 187 ) PRESERVED BOVINE MEAT COMES WITHIN THE COMMON ORGANIZATION OF THE MARKET IN BEEF AND VEAL WHICH WAS ESTABLISHED BY THAT REGULATION .

ACCORDINGLY , IMPORTS OF THOSE PRODUCTS FROM THIRD COUNTRIES COME UNDER ARTICLE 20 ( 2 ) OF THE SAID REGULATION , ACCORDING TO WHICH : ' ' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION OR WHERE DEROGATION THEREFROM IS DECIDED BY THE COUNCIL , ACTING IN ACCORDANCE WITH THE VOTING PROCEDURE LAID DOWN IN ARTICLE 43 ( 2 ) OF THE TREATY ON A PROPOSAL FROM THE COMMISSION , THE FOLLOWING SHALL BE PROHIBITED :
- THE LEVYING OF ANY CHARGE HAVING EFFECT EQUIVALENT TO A CUSTOMS DUTY ;

- THE APPLICATION OF ANY QUANTITATIVE RESTRICTION OR MEASURE HEAVING EQUIVALENT EFFECT , SUBJECT TO THE PROVISIONS OF THE PROTOCOL ON THE GRAND DUCHY OF LUXEMBOURG ' ' .

4COUNCIL DIRECTIVE NOS 72/462 OF 12 DECEMBER 1972 ( OFFICIAL JOURNAL , LOC . CIT .) ON HEALTH AND VETERINARY INSPECTION PROBLEMS UPON IMPORTATION OF BOVINE ANIMALS AND SWINE AND FRESH MEAT FROM THIRD COUNTRIES PROVIDES FOR THE ORGANIZATION OF A UNIFORM HEALTH INSPECTION , THE DETAILED RULES FOR WHICH ARE TO BE ESTABLISHED BY THE COUNCIL , THE COMMISSION OR THE MEMBER STATES , AS THE CASE MAY BE .

ARTICLE 12 ( 1 ) AND ( 7 ) AND ARTICLES 23 , 24 AND 25 OF THE DIRECTIVE PLACE A DUTY ON MEMBER STATES TO CARRY OUT A HEALTH INSPECTION UPON IMPORTATION OF ANIMALS ( ARTICLE 12 ) AND FRESH MEAT ( ARTICLES 23 , 24 AND 25 ), AND ARTICLES 12 ( 8 ), 23 ( 4 ) AND 26 PROVIDE THAT THE EXPENDITURE INCURRED PURSUANT TO THE ARTICLES IN QUESTION ' ' SHALL BE CHARGEABLE TO THE CONSIGNOR , THE CONSIGNEE OR THEIR AGENTS , WITHOUT REPAYMENT BY THE STATE ' ' .

AS THE COURT FOUND IN ITS JUDGMENT OF 28 JUNE 1978 IN CASE 70/77 SIMMENTHAL , IN PROVIDING THAT THE EXPENSES OF THE VETERINARY AND PUBLIC HEALTH INSPECTIONS AT ISSUE MUST BE CHARGED TO THE TRADERS SPECIFIED , THOSE PROVISIONS DO NOT PROHIBIT THE ATTRIBUTION OF THOSE EXPENSES FROM BEING EFFECTED BY MEANS OF THE IMPOSITION OF CHARGES , PROVIDED THAT THE LATTER DO NOT EXCEED THE ACTUAL COST OF THE INSPECTIONS .

THUS THEY CONSTITUTE A DEROGATION , WITHIN THE MEANING OF ARTICLE 20 ( 2 ) OF REGULATION NO 805/68 , FROM THE PROHIBITION PLACED BY THAT PROVISION ON THE LEVYING OF CHARGES HAVING EQUIVALENT EFFECT .

5IN VIEW OF THE FACT THAT DIRECTIVE NO 72/462 CONCERNS ONLY HEALTH INSPECTIONS UPON IMPORTATION OF BOVINE ANIMALS AND SWINE AND FRESH MEAT OF CERTAIN DOMESTIC ANIMALS , BUT DOES NOT MENTION PREPARED OR PRESERVED MEAT , THE NATIONAL COURT HAS RAISED THE QUESTION WHETHER THAT DEROGATION IS APPLICABLE BY ANALOGY .

6BEFORE DECIDING THE QUESTION WHETHER THOSE PROVISIONS ARE APPLICABLE BY ANALOGY , IT MUST BE CONSIDERED WHETHER THEY WERE ALREADY APPLICABLE AT THE TIME OF THE IMPORTATION AT ISSUE AND COULD BE RELIED UPON THE ADMINISTRATIVE AUTHORITIES OF THE MEMBER STATES IN ORDER TO JUSTIFY THE IMPOSITION OF CHARGES .

7IN ORDER TO ENABLE THOSE DEROGATIONS TO TAKE EFFECT , THE INSPECTIONS OF WHICH THEY ARE DESIGNED TO COVER THE COSTS MUST HAVE BEEN ORGANIZED IN ACCORDANCE WITH THE DIRECTIVE AND APPLIED BY THE MEMBER STATES CONCERNED .

IN FACT , EACH OF THE PROVISIONS REFERRED TO CLEARLY STATES THAT THE EXPENDITURE WHICH IS TO BE RECOVERED IS THAT INCURRED PURSUANT TO ARTICLES 12 , 23 , 24 AND 25 OF THE DIRECTIVE .

8A LARGE NUMBER OF THE PROVISIONS OF THE DIRECTIVE CANNOT BE APPLIED UNTIL THE NECESSARY MEASURES HAVE BEEN TAKEN BY THE COMMUNITY AUTHORITIES , PARTICULARLY IN THE CONTEXT OF THE PROCEDURE FOR OBTAINING THE OPINION OF THE STANDING VETERINARY COMMITTEE WHICH IS REFERRED TO IN ARTICLES 29 AND 30 OF THE DIRECTIVE .

IN PARTICULAR , THE IMPLEMENTATION OF THE INSPECTIONS PROVIDED FOR IN ARTICLES 12 , 23 , 24 AND 25 OF THE DIRECTIVE REQUIRES - AT ALL EVENTS IN SO FAR AS IT CONCERNS TRADE AND TRANSPORT OTHER THAN TRANSIT THROUGH THE COMMUNITY FROM ONE THIRD COUNTRY TO ANOTHER THIRD COUNTRY - VARIOUS IMPLEMENTING MEASURES TO BE ADOPTED BY THE COMPETENT COMMUNITY AUTHORITIES .

AS THE COURT FOUND IN ITS AFOREMENTIONED JUDGMENT OF 28 JUNE 1978 IN CASE 70/77 , SIMMENTHAL , MOST OF THOSE MEASURES HAVE NOT YET BEEN ADOPTED , SO THAT APPLICATION OF ARTICLES 12 , 23 , 24 AND 25 OF THE DIRECTIVE IS NOT POSSIBLE .

THUS , SINCE THE CONDITIONS LAID DOWN BY DIRECTIVE NO 72/462 ITSELF AS THE BASIS FOR THE IMPOSITION OF HEALTH INSPECTION CHARGES BY WAY OF DEROGATION FROM THE PROHIBITION ON THE LEVYING OF CHARGES HAVING EQUIVALENT EFFECT HAVE NOT BEEN FULFILLED , AT THE PRESENT STAGE OF ITS IMPLEMENTATION THAT DIRECTIVE CANNOT JUSTIFY THE IMPOSITION OF THE SAID CHARGES .

MOREOVER , IT IS NOT POSSIBLE TO ACCEPT THE ARGUMENT THAT , BY APPLYING THE NATIONAL ANIMAL HEALTH LEGISLATION IN FORCE AT THE TIME WHEN THE DIRECTIVE WAS ADOPTED , THE MEMBER STATES WERE IN SOME SENSE APPLYING THE DIRECTIVE IN ANTICIPATION , IN THAT , FOR THE PURPOSES OF PUBLIC HEALTH , THE INSPECTIONS WHICH THEY APPLY PURSUANT TO THAT LEGISLATION IN FACT OFFER GUARANTEES SIMILAR TO THOSE WHICH THE DIRECTIVE IS INTENDED TO ACHIEVE .

IN FACT , THE PURPOSE OF THE DIRECTIVE IS NOT TO REINFORCE THE ARRANGEMENTS FOR THE PROTECTION OF PUBLIC HEALTH IN THE MEMBER STATES , BUT TO ENSURE THE UNIFORMITY OF THE INSPECTION SYSTEMS WITH A VIEW TO PREVENTING DISTORTIONS OF COMPETITION AND DEFLECTIONS OF TRADE WITHIN THE COMMON MARKET .

HOWEVER , IT SHOULD BE POINTED OUT , IN SO FAR AS IT IS RELEVANT , THAT , AS THE COURT FOUND IN ITS AFOREMENTIONED JUDGMENT OF 28 JUNE 1978 , SIMMENTHAL , AS REGARDS IMPORTS OF FRESH MEAT FROM THIRD COUNTRIES , AN EXCEPTION IS MADE TO THE PROHIBITION ON THE IMPOSITION OF HEALTH INSPECTION CHARGES TO THE EXTENT PROVIDED FOR IN ARTICLE 9 OF DIRECTIVE NO 64/433 OF 26 JUNE 1964 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 185 ) CONCERNING INTRA-COMMUNITY TRADE IN FRESH MEAT , ACCORDING TO WHICH : ' ' IF THE COMMUNITY PROVISIONS RELATING TO IMPORTATION OF FRESH MEAT FROM THIRD COUNTRIES DO NOT APPLY AT THE TIME WHEN THIS DIRECTIVE ENTERS INTO FORCE , OR PENDING THEIR BECOMING APPLICABLE , NATIONAL PROVISIONS RELATING TO IMPORTS FROM THOSE COUNTRIES SHALL NOT BE MORE FAVOURABLE THAN THOSE GOVERNING INTRA-COMMUNITY TRADE ' ' .

9SINCE AT THE DATE OF THIS JUDGMENT ARTICLE 12 ( 1 ), ( 7 ) AND ( 8 ) AND ARTICLES 23 , 24 AND 26 OF COUNCIL DIRECTIVE NO 72/462 OF 12 DECEMBER 1972 HAVE NOT YET TAKEN EFFECT IN THE AREAS TO WHICH THEY EXPRESSLY REFER , THERE CAN BE NO QUESTION OF APPLYING THOSE PROVISIONS BY ANALOGY .

10MOREOVER , EVEN IF ARTICLES 12 ( 8 ), 23 ( 4 ) AND 26 OF DIRECTIVE NO 72/462 WERE TO BE REGARDED AS BEING APPLICABLE IN JUNE 1974 , THE DATE OF THE IMPORTATION AT ISSUE , APPLICATION OF THOSE PROVISIONS BY ANALOGY SHOULD BE REJECTED .

THE IMPOSITION OF CHARGES IN THE CASES REFERRED TO IN THE DIRECTIVE IS DIRECTLY LINKED TO THE INTRODUCTION OF A UNIFORM COMMUNITY SYSTEM OF INSPECTION ANSWERING THE DEMANDS OF THE INTRODUCTION OF A COMMON CUSTOMS TARIFF .

ON THE OTHER HAND , CHARGES UNILATERALLY DETERMINED BY MEMBER STATES RUN COUNTER TO THAT NEED , AND THEREFORE THE PROVISIONS WHICH ALLOW THEM TO BE IMPOSED CANNOT BE EXTENDED BEYOND THEIR OWN FIELD OF APPLICATION .

11THEREFORE DIRECTIVE NO 72/462 IS NOT A PARTICULAR APPLICATION OF A GENERAL PRINCIPLE OF COMMUNITY LAW TO THE EFFECT THAT ANY INSPECTION AT THE EXTERNAL FRONTIERS OF THE COMMUNITY MAY GIVE RISE TO THE IMPOSITION OF CHARGES FIXED BY MEMBER STATES , BUT MERELY AN APPLICATION OF THE DEROGATION MADE POSSIBLE BY ARTICLE 20 ( 2 ) OF REGULATION NO 805/68 FROM THE PROHIBITION LAID DOWN IN THAT ARTICLE ON THE LEVYING OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES IN TRADE IN THE PRODUCTS CONCERNED .

COSTS
12THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS 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 AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BUNDESVERWALTUNGSGERICHT BY AN ORDER OF 16 SEPTEMBER 1977 , HEREBY RULES :
ARTICLE 12 ( 1 ), ( 7 ) AND ( 8 ) AND ARTICLES 23 , 24 AND 26 OF COUNCIL DIRECTIVE NO 72/462 OF 12 DECEMBER 1972 ARE NOT APPLICABLE BY ANALOGY .