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Cite as: [2003] EUECJ C-2/02, [2003] EUECJ C-2/2

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JUDGMENT OF THE COURT (Second Chamber)

16 October 2003 (1)

(Common agricultural policy - Fees for health inspections and controls of fresh meat - Directive 85/73/EEC)

In Case C-2/02,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgericht Mainz (Germany) for a preliminary ruling in the proceedings pending before that court between

Emil Färber GmbH & Co.

and

Landkreis Alzey-Worms,

on the interpretation of Annex A, Chapter I, point 2, indent (a), to Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC (OJ 1985 L 32, p. 14), as amended and consolidated by Council Directive 96/43/EC of 26 June 1996 (OJ 1996 L 162, p. 1),

THE COURT (Second Chamber),

composed of: R. Schintgen (Rapporteur), President of the Chamber, V. Skouris and N. Colneric, Judges,

Advocate General: A. Tizzano,

Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

- Emil Färber GmbH & Co., by M. Stephani, Rechtsanwalt,

- Landkreis Alzey-Worms, by D. Sell, acting as Agent,

- the Italian Government, by I.M. Braguglia, acting as Agent, assisted by M. Salvatorelli, avvocato dello Stato,

- the Commission of the European Communities, by G. Braun, acting as Agent,

having regard to the Report for the Hearing,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

after hearing the oral observations of Emil Färber GmbH & Co., represented by M. Stephani and L. Liebenau, Rechtsanwalt, and the Commission, represented by G. Braun, at the hearing on 8 May 2003,

gives the following

Judgment

By order of 10 December 2001, received at the Court on 7 January 2002, the Verwaltungsgericht (Administrative Court) Mainz referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Annex A, Chapter I, point 2, indent (a), to Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC (OJ 1985 L 32, p. 14), as amended and consolidated by Council Directive 96/43/EC of 26 June 1996 (OJ 1996 L 162, p. 1) (Directive 85/73).

That question was raised in proceedings between Emil Färber GmbH & Co. (Färber) and Landkreis Alzey-Worms (the Landkreis) concerning the recovery of fees claimed by the latter from Färber for health inspections and controls of meat carried out in the cutting plant Färber operates in Alzey (Germany).

Legal background

Community legislation

With the aim of promoting intra-Community trade in fresh meat, Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat (OJ, English Special Edition 1963-1964, p. 185), in the version codified by Council Directive 91/497/EEC of 29 July 1991 (OJ 1991 L 268, p. 69), as amended by Council Directive 95/23/EC of 22 June 1995 (OJ 1995 L 243, p. 7) (Directive 64/433), approximates the provisions of the Member States on health and intends in particular to standardise health requirements for meat in slaughterhouses and cutting plants and during storage and transportation (see the second, third and fourth recitals in the preamble to Directive 64/433).

To that end, Directive 64/433 prescribes inter alia, in Article 3(1)(A) and (B), that Member States are to ensure that slaughtering and cutting operations respectively take place in approved slaughterhouses and cutting plants in accordance with the rules and under the health conditions defined in more detail in Annex I to that directive.

As regards cutting operations, Article 3(1)(B) of Directive 64/433 prescribes that each Member State is to ensure that:

cuts and pieces smaller than those referred to in Section A, or boned meat whether or not wrapped:

(a) are boned or cut or wrapped in a cutting plant meeting the conditions laid down in Chapters I and III of Annex I and approved and supervised in accordance with Article 10;

(b) are boned or cut or wrapped and obtained in accordance with Chapter IX of Annex I and come from:

- fresh meat which complies with the requirements set out in Section A, except those referred to in subparagraph (h), and which is transported in accordance with Chapter XV of Annex I, or

- fresh meat imported from third countries in accordance with Directive 90/675/EEC;

(c) have been stored under conditions which comply with Chapter XIV of Annex I in establishments approved in accordance with Article 10 and supervised in accordance with Chapter X of Annex I;

(d) have been checked by an official veterinarian in accordance with Chapter X of Annex I;

(e) meet the wrapping and packaging requirements laid down in Chapter XII of Annex I;

(f) meet the requirements of Section A(c), (e), (f) and (h).

Annex I to Directive 64/433 contains Chapter X, entitled Health control of cut meat and stored meat, to which Article 3(1)(B)(d) of the directive refers. That chapter reads as follows:

47. Approved cutting plants and approved cold stores must be supervised by an official veterinarian.

48. Supervision by the official veterinarian must include the following tasks:

- supervision of the entry and exit of fresh meat,

- health inspection of fresh meat held in the establishment referred to in point 47,

- health inspection of fresh meat prior to cutting and when it leaves the establishments referred to in point 47,

- supervision of the cleanliness of the premises, facilities and instruments provided for in Chapter V, and of staff hygiene, including their clothing,

- any other supervision which the official veterinarian considers necessary for ensuring compliance with this Directive.

To avoid distortions of competition liable to occur as a result of differences between the various Member States in the field of financing of health inspections and controls, Directive 85/73 lays down harmonised rules on the financing of such inspections and controls (see the fifth and seventh recitals in the preamble to Directive 96/43).

For that purpose, Directive 85/73 provides inter alia, in Article 1, that Member States are to ensure, in accordance with the arrangements laid down in Annex A to that directive, that a Community fee is collected to cover the costs occasioned by inspections of and controls on the products listed in that annex.

Under Article 5(1) of Directive 85/73:

The Community fees shall be set at a level which covers the costs borne by the competent authority in respect of:

- salary costs and social-security costs involved in the inspection service,

- administrative costs incurred in carrying out controls and inspections, which may include the expenditure required for in-service training of inspectors,

for the controls and inspections referred to in Articles 1, 2 and 3.

Chapter 1 of Annex A to Directive 85/73 fixes, in accordance with Article 5(1) of that directive, the fees applicable inter alia to meat covered by Directive 64/433. In point 1 of Chapter I, standard amounts are thus laid down according to animal species for inspection costs relating to slaughter.

Annex A, Chapter I, point 2, to Directive 85/73 provides:

The controls and inspections connected with the cutting operations referred to in, inter alia, Article 3(1)(B) of Directive 64/433/EEC and Article 3(1)(B) of Directive 71/118/EEC must be covered

(a) either: at a standard rate by the addition of a standard amount of ECU 3 per tonne on meat entering a cutting plant.

That amount is added to the amounts referred to in 1 above;

(b) or: by charging the actual costs of inspection per hour worked.

Where the cutting operations are carried out in the establishment where the meat is obtained, the amounts laid down in the first subparagraph shall be reduced by up to 55%.

A Member State which opts to levy fees by the hour worked must be able to demonstrate to the Commission that the actual costs cannot be covered by charging fees in accordance with (a).

In its original version, Directive 85/73 provided, in the first subparagraph of Article 2(1), that the Council, acting by a qualified majority on a proposal from the Commission, was to decide the standard level or levels of the fees the charging of which by the Member States it provided for. Pursuant to that provision, the Council adopted Decision 88/408/EEC of 15 June 1988 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73 (OJ 1988 L 194, p. 24).

Under Article 3(1) of Decision 88/408:

The part of the fees covering the controls and inspections connected with the cutting operations referred to in Article 3(1)(B) of Directive 64/433/EEC and Article 3(1)(B)(b) of Directive 71/118/EEC shall be fixed at a standard rate of 3 ECU/tonne of unboned meat intended for cutting.

Council Directive 93/118/EC of 22 December 1993 amending Directive 85/73 (OJ 1993 L 340, p. 15) repealed Decision 88/408 with effect from 1 January 1994. From that date, the fees applicable inter alia to meat covered by Directive 64/433 were fixed directly by the directives amending Directive 85/73. Thus Chapter I, point 2 of the Annex to Directive 85/73, as amended by Directive 93/118, provided:

The controls and inspections connected with the cutting operations referred to in Article 3(1) (B) of Directive 64/433/EEC and Article 3(1)(B) of Directive 71/118/EEC shall be covered

(a) either at a standard rate by the addition of a standard amount of ECU 3 per tonne on meat entering a cutting plant.

This amount is added to the amounts referred to in point 1 above;

(b) or by collecting the actual costs of inspection per hour worked, any hour started being counted as an hour worked.

Where the cutting operations are carried out in the establishment where the meat is obtained, the amounts laid down in the first subparagraph may be reduced by up to 55%.

National legislation

Directive 85/73 was transposed into the law of the Land of Rhineland-Palatinate by the Landesgesetz zur Ausführung fleisch- und geflügelfleischhygienerechtlicher Vorschriften (Land law implementing provisions concerning meat and poultrymeat hygiene) of 17 December 1998 (GVBl. 1998, p. 422), which, with effect from 1 January 2000, transferred to the Landkreise (districts) competence to fix and levy the fees for health inspections and controls of fresh meat and poultrymeat.

In the exercise of that competence, the Landkreis adopted the Satzung über die Erhebung von Gebühren nach fleisch- und geflügelfleischhygienerechtlicher Vorschriften (Rules on the charging of fees under provisions concerning meat and poultrymeat hygiene) of 24 February 2000 (the Satzung). Paragraph 9(1) of the Satzung, as corrected by a decision of the Landkreis of 17 May 2000, provides:

For supervision, controls and inspections connected with the cutting of meat, a fee is charged whose amount is determined by the weight of the unboned meat entering the cutting plant. The amount of the fee is determined by reference to Annex A, Chapter I, point 2, indent (a), to Directive 85/73/EEC in the codified version currently applicable (see Annex 5). If cutting takes place in the establishment in which the meat is obtained, that fee is reduced, in relation to the meat obtained there, by 55%.

Under Annex 5 to the Satzung, the fee for official acts performed in cutting plants approved under the Community legislation is fixed at EUR 3 or DEM 5.87 per tonne of unboned meat entering the cutting plant.

The main proceedings and the question referred for a preliminary ruling

Färber operates a slaughterhouse and cutting plant in Alzey. The cutting plant also receives whole halves and quarters of carcases which are not cut there but sold from it as they are. In respect of health controls carried out in Färber's cutting plant, the Landkreis charged fees calculated, in accordance with Paragraph 9(1) of the Satzung, by reference to the total quantity of meat entering the cutting plant, irrespective of whether the meat was actually cut there.

Färber complained against the fee notices issued by the Landkreis on 25 February, 6 April, 10 May and 23 June 2000, arguing that in calculating those fees no account had been taken of the fact that part of the meat had been sold as whole halves or quarters of carcases and that, under Community law, that meat could not give rise to the charging of a fee because it had not been cut in its cutting plant.

On 12 October 2000 Färber brought an action in the Verwaltungsgericht Mainz against the decision of the Landkreis rejecting those complaints. In support of its action it submitted in particular that it follows from Case C-86/94 De Venhorst [1996] ECR I-5261 that, for the purposes of fees payable in respect of controls and inspections carried out in its cutting plant, only the meat that is actually cut may be taken into account.

Before the Verwaltungsgericht, the Landkreis submitted inter alia that even meat which is not to be cut gives rise, simply because it enters and is present in the cutting plant, is subject to compulsory handling measures there and leaves the plant, to health control or inspection measures which involve the payment of fees. That is why the Community legislature did not distinguish between meat that is cut and meat that is not cut, but provided that the basis of calculation of the fees is constituted by all the meat entering a cutting plant.

Since it considered that, in those circumstances, the outcome of the dispute before it depended on the interpretation of Annex A, Chapter 1, point 2, indent (a), to Directive 85/73, the Verwaltungsgericht Mainz decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

Is Annex A, Chapter I, point 2, indent (a), to Directive 85/73/EEC, in the version of Directive 96/43/EC, to be interpreted as meaning that the standard fee amount laid down by that paragraph covering controls and inspections connected with cutting operations is payable only in respect of meat that is actually cut in the cutting plant, or is it to be interpreted as meaning that the standard fee amount is payable in respect of all meat entering the cutting plant, irrespective of whether it is cut?

The question referred for a preliminary ruling

To answer this question, it should be observed, as the national court, the parties to the main proceedings, the Italian Government and the Commission have done, that the De Venhorst judgment relates to the interpretation of Article 3(1) of Decision 88/408, under which the part of the fee covering the controls and inspections connected with the cutting operations referred to in Article 3(1)(B) of Directive 64/433 was fixed at a standard rate of ECU 3 per tonne, including the bone, of unboned meat intended for cutting.

However, as may be seen from paragraph 14 above, Decision 88/408 was repealed as from 1 January 1994 by Directive 93/118, which, in place of Article 3(1) of Decision 88/408, introduced in Chapter I of the Annex to Directive 85/73, in the version then in force, a point 2, indent (a) which provided that those controls and inspections were now to be covered inter alia by the addition to the fee payable for the cost of inspections connected with slaughtering operations, as fixed in point 1 of that chapter, of a standard amount of ECU 3 per tonne on meat entering a cutting plant. So far as material to the present case, that provision in the annex to Directive 85/73, in the version resulting from Directive 93/118, is taken over unchanged in Annex A, Chapter I, point 2, indent (a), to Directive 85/73.

Having regard to that new version of that provision, it must be concluded, first, that the interpretation given by the Court in paragraph 29 of De Venhorst, namely that the part of the fee referred to in Article 3(1) of Decision 88/408 is to be calculated on the basis of the unboned weight of the meat which is actually cut in the cutting plant, cannot be applied to the provision which now appears in Annex A, Chapter I, point 2, indent (a), to Directive 85/73.

Second, because of the unequivocal and clear terms of the latter provision, it must be accepted that, by providing that the additional standard amount of the fee, intended to cover the controls and inspections connected with cutting operations, is to be applied to meat entering a cutting plant, the Community legislature deliberately intended to depart from the rule established by Decision 88/408 and to prescribe expressly that that amount applies also to meat which enters a cutting plant without being cut there.

As the Landkreis, the Italian Government and the Commission have pointed out, such a literal interpretation of Annex A, Chapter I, point 2, indent (a), to Directive 85/73 is all the more justified in that, as is apparent inter alia from Chapter X of Annex I to Directive 64/433, all meat, even that which is not cut, gives rise simply because of entering and being present in and leaving the cutting plant to health control and inspection measures, the costs of which must be covered by the fees prescribed for that purpose.

Moreover, as the Commission rightly submits, the additional amount as fixed in Annex A, Chapter I, point 2, indent (a), to Directive 85/73 is a standard amount, so that the fact that the meat which enters a cutting plant and is actually cut there gives rise to control and inspection costs greater than those entailed by the control and inspection of meat which is not cut there cannot preclude the application of that standard additional amount to all that meat.

In the light of all the foregoing, the answer to the national court's question must be that Annex A, Chapter I, point 2, indent (a), to Directive 85/73 must be interpreted as meaning that the standard additional amount laid down by that provision to cover the cost of the controls and inspections connected with cutting operations is payable for all meat entering the cutting plant, irrespective of whether it is actually cut in that cutting plant.

Costs

On those grounds,

THE COURT (Second Chamber),

in answer to the question referred to it by the Verwaltungsgericht Mainz by order of 10 December 2001, hereby rules:

Annex A, Chapter I, point 2, indent (a), to Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, as amended and consolidated by Council Directive 96/43/EC of 26 June 1996, must be interpreted as meaning that the standard additional amount laid down by that provision to cover the cost of the controls and inspections connected with cutting operations is payable for all meat entering the cutting plant, irrespective of whether it is actually cut in that cutting plant.

SchintgenSkouris Colneric

Delivered in open court in Luxembourg on 16 October 2003.

R. Grass V. Skouris

Registrar President

1: Language of the case: German.