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 FOLLOWING QUESTIONS :
' ' 1 . ARE 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 ) APPLICABLE BY ANALOGY TO THE IMPORTATION OF GAME , WITH THE RESULT THAT THE MEMBER STATES ARE ENTITLED OR OBLIGED TO CARRY OUT HEALTH INSPECTIONS AND MAY IMPOSE CHARGES FOR SUCH INSPECTIONS?
2 . AFTER THE INTRODUCTION OF THE COMMON CUSTOMS TARIFF BY REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 275 ) MAY NATIONAL CHARGES STILL BE INCREASED TO THE EXTENT OF THE GENERAL RISE IN COSTS?
' '
2THOSE QUESTIONS ARE REFERRED IN THE CONTEXT OF A DISPUTE BETWEEN THE ADMINISTRATIVE AUTHORITIES OF THE CITY OF FRANKFURT-AM-MAIN AND AN UNDERTAKING IMPORTING GAME ( RED DEER , ROE DEER AND WILD BOAR ) FROM THIRD COUNTRIES WHICH CALLS IN QUESTION THE COMPATIBILITY WITH COMMUNITY LAW OF CHARGES IMPOSED BY THOSE ADMINISTRATIVE AUTHORITIES IN RESPECT OF A HEALTH INSPECTION CARRIED OUT ON THAT MEAT IN JANUARY 1975 .
GENERAL CONSIDERATIONS
3IT APPEARS FROM THE STATEMENT OF GROUNDS OF THE ORDER MAKING THE REFERENCE THAT THE QUESTION ASKED RELATE TO IMPORTS OF MEAT ON THE ASSUMPTION THAT THE MEAT DOES NOT COME WITHIN A COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS .
HOWEVER , IT MUST BE POINTED OUT THAT GAME IS REFERRED TO IN REGULATION NO 827/68 OF THE COUNCIL ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 209 ) ON THE COMMON ORGANIZATION OF THE MARKET IN CERTAIN PRODUCTS LISTED IN ANNEX II TO THE TREATY .
THAT ORGANIZATION OF THE MARKET GOVERNS THE PRODUCTS LISTED IN THE ANNEX TO THE SAID REGULATION , WHICH INCLUDE ALL THE VARIETIES OF MEAT COMING WITHIN TARIFF HEADING 02.04 , ' ' OTHER MEAT AND EDIBLE MEAT OFFALS , FRESH , CHILLED OR FROZEN ' ' , SUBHEADING 02.04 B OF WHICH COVERS GAME EXCEPT WILD BOAR MEAT , WHICH BY VIRTUE OF AN EXPLANATORY NOTE TO THE COMMON CUSTOMS TARIFF COMES UNDER TARIFF SUBHEADING 02.01 A III ( B ), ' ' MEAT AND EDIBLE OFFALS OF THE ANIMALS FALLING WITHIN HEADINGS NOS . 01.01 TO 01.04 , FRESH , CHILLED OR FROZEN . . . III . . . ( B ) OTHER ' ' , WHICH PRODUCTS ARE HOWEVER ALSO GOVERNED BY THE MARKET ORGANIZATION INTRODUCED BY REGULATION NO 827/68 .
ACCORDING TO ARTICLE 2 ( 2 ) OF REGULATION NO 827/68 : ' ' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION , AND SAVE DEROGATIONS DECIDED ON 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 , AND
- THE APPLICATION OF ANY QUANTITATIVE RESTRICTION OR MEASURE HAVING EQUIVALENT EFFECT , SUBJECT TO THE PROVISIONS OF THE PROTOCOL ON THE GRAND DUCHY OF LUXEMBOURG ' ' .
THEREFORE GAME COMES UNDER THAT PROHIBITION AND NOT MERELY UNDER THE MORE LIMITED PROHIBITION , WHICH WAS IMPOSED ON MEMBER STATES AS A RESULT OF THE INTRODUCTION OF THE COMMON CUSTOMS TARIFF , FROM UNILATERALLY INTRODUCING NEW CHARGES HAVING EQUIVALENT EFFECT OR FROM RAISING THE LEVEL OF THOSE IN FORCE PRIOR TO 1 JULY 1968 , THE DATE ON WHICH THE COMMON CUSTOMS TARIFF ENTERED INTO FORCE .
4THESE POINTS ARE TO BE TAKEN INTO ACCOUNT IN ANSWERING THE QUESTIONS ASKED .
THE FIRST QUESTION
5COUNCIL DIRECTIVE NO 72/462 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 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 2 ( 2 ) OF REGULATION NO 827/68 , FROM THE PROHIBITION PLACED BY THAT PROVISION ON THE LEVYING OF CHARGES HAVING EQUIVALENT EFFECT .
6IN 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 GAME , THE NATIONAL COURT HAS RAISED THE QUESTION WHETHER THAT DEROGATION IS APPLICABLE BY ANALOGY .
7BEFORE 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 BY THE ADMINISTRATIVE AUTHORITIES OF THE MEMBER STATES IN ORDER TO JUSTIFY THE IMPOSITION OF CHARGES .
8IN 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 .
9A 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 , 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 ' ' .
10SINCE AT THE DATE OF THIS JUDGMENT ARTICLE 12 ( 1 ), ( 7 ) AND ( 8 ) AND ARTICLES 23 , 24 AND 26 OF COUNCIL DIRECTIVE NO 72/462 HAVE NOT YET TAKEN EFFECT IN THE AREAS TO WHICH THEY EXPRESSLY REFER , THERE CAN BE NO QUESTION OF APPLYING THOSE PROVISIONS BY ANALOGY .
11MOREOVER , EVEN IF ARTICLES 12 ( 8 ), 23 ( 4 ) AND 26 OF DIRECTIVE NO 72/462 WERE TO BE REGARDED AS BEING APPLICABLE AT THE BEGINNING OF 1975 , 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 .
12THEREFORE 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 2 ( 2 ) OF REGULATION NO 827/68 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 .
THE SECOND QUESTION
13IT FOLLOWS FROM THE GENERAL CONSIDERATIONS ABOVE THAT THE SECOND QUESTION HAS BECOME PURPOSELESS .
COSTS
14THE 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 QUESTIONS 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 .
