CELEX: 62001CJ0423
Common agricultural policy
Fees for health inspections and controls of fresh meat
Directive 85/73/EEC

By order of 30 July 2001, received at the Court on 26 October 2001, the Verwaltungsgericht (Administrative Court) Neustadt
an der Weinstraße referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation
of the second paragraph of Annex A, Chapter I, point 2, 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).
Those questions were raised in proceedings between Emil Färber GmbH & Co. (
Färber) and Stadt Neustadt/Weinstraße 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 Neustadt an der Weinstraße (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).
Article 2 of Directive 64/433 reads as follows: For the purposes of this Directive:...
(k)
establishment means an approved slaughterhouse, an approved cutting plant, an approved cold store or a unit grouping together several such
establishments;
...
Article 3(1)(A) and (B) of Directive 64/433 prescribes
inter alia
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.
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 those 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 I of Annex A to Directive 85/73 fixes, in accordance with Article 5(1) of that directive, the fees applicable to meat
covered
inter alia
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).
Annex A, Chapter I, points 4 and 5, to Directive 85/73 provides:
4.
In order to cover increased costs, Member States may:
(a)
either: increase the standard amounts of fees as laid down in points 1 and 2(a) for individual establishments. Apart from that laid down in point 5(a), the conditions to be met might be the following:
─
higher inspection costs due to a particular lack of uniformity in the animals for slaughter from the point of view of age,
size, weight and state of health,
─
longer waiting and otherwise non-productive periods for inspection staff owing to inadequate advance planning by the establishment
of animal deliveries or technical inadequacies or failures, for example in older establishments,
─
frequent delays in the slaughtering process, e.g. as a result of insufficient slaughter staff and hence under-employment of
inspection staff,
─
higher costs due to special travelling times,
─
more time taken up on inspections due to frequently changing slaughter periods beyond the control of inspection staff,
─
frequent interruptions in the slaughtering process to meet cleaning and disinfecting requirements,
─
inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours. The amount of the increases in the central standard rate for fees depends on the level of the costs to be covered;
(b)
or: charge a special fee covering actual costs.
5.
Member States in which salary costs, the structure of establishments and the relationship between veterinarians and inspectors
diverge from the Community average taken as a basis for calculation of the standard amounts fixed in points 1 and 2(a) may
exceptionally reduce them to meet the real costs of inspection:
(a)
in general, where there are substantial differences in the cost of living and salary costs;
(b)
for individual establishments, where the following conditions are met:
─
a minimum daily slaughter rate enabling the deployment of the relevant inspection staff to be planned in advance,
─
the number of slaughtered animals is constant, so that animal deliveries may be planned in advance, thus enabling rational
use to be made of the inspection staff,
─
strict organisation and planning within the establishment together with a rapid slaughter rate, permitting optimum use of
inspection staff,
─
no waiting or otherwise non-productive periods for inspection staff;
─
the animals for slaughter are as far as possible uniform in age, size, weight and state of health. In no case should the application of these exemptions result in reductions of more than 55% of the levels indicated in points
1 and 2(a).
National legislation
Paragraph 24 of the Fleischhygienegesetz (Law on meat hygiene) of 8 July 1993, as amended by the Law of 17 July 1996 (BGBl.
1996 I, p. 991), provides:
1.
Fees shall be levied to cover the cost of official acts under this law and the legislative provisions enacted to implement
this law.
2.
The situations giving rise to fees under paragraph 1 shall be determined by the laws of the
Länder
. Fees shall be assessed in accordance with the legal provisions adopted by the European Community concerning the financing
of inspections and health controls on meat ...
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) and the Landesverordnung
über die Gebühren und Auslagen für Untersuchungen und Hygienekontrollen nach fleisch- und geflügelfleischhygienerechtlichen
Vorschriften (
Land
regulation on fees and expenses for inspections and hygiene controls under provisions concerning meat and poultrymeat hygiene)
of 17 February 1999 (GVBl. 1999, p. 32,
the
Land
regulation).
Under Paragraph 1(1)(3) of the
Land
regulation read in conjunction with point 6.3 of Part 3 of the Annex to the
Land
regulation, the fee for
inspections and controls in approved cutting plants, including marking and issuing of certificates, per tonne of unboned meat
delivered and intended for cutting amounted for the period from 1 January to 31 December 1999 to DEM 5.76, the equivalent at the rate of conversion in force
at the time, according to the findings of the national court, to ECU 3.
Point 6.4 of Part 3 of the Annex to the
Land
regulation provides: Where official acts within the meaning of point 6 are carried out in the establishment where the meat is obtained, the fees
under points 6.1 to 6.3 are to be reduced appropriately, but by a maximum of 55%.
The main proceedings and the questions referred for a preliminary ruling
Färber operates an approved cutting plant on the territory of the town of Neustadt an der Weinstraße. In the same building
is the slaughterhouse of Schlachthof-Betriebs-GmbH, a company legally distinct from Färber, which supplies Färber with part
of the meat it cuts in its cutting plant.
For health inspections and controls carried out at Färber's cutting plant in 1999, Stadt Neustadt/Weinstraße claimed from
Färber fees calculated in accordance with the provisions of Paragraph 1(1)(3) of the
Land
regulation in conjunction with point 6.3 of Part 3 of the Annex to the
Land
regulation.
After its complaint against the payment notice was rejected by Stadt Neustadt/Weinstraße, Färber brought an action for annulment
in the Verwaltungsgericht Neustadt an der Weinstraße, arguing that part of the meat cut in its establishment came from the
slaughterhouse of Schlachthof-Betriebs-GmbH in the same building and that consequently, in accordance with Paragraph 1(1)(3)
of the
Land
regulation in conjunction with point 6.4 of Part 3 of the Annex to the
Land
regulation, the fees corresponding to those quantities of meat should be reduced by 55%. In support of its claim, Färber
also submitted that its cutting plant and that slaughterhouse should be regarded as a single
establishment within the meaning of Article 2(k) of Directive 64/433.
Stadt Neustadt/Weinstraße rejected that argument, submitting that a slaughterhouse and a cutting plant may be regarded as
a single
establishment within the meaning of the relevant Community legislation only if they are operated by the same natural or legal person.
Since it considered that in those circumstances the outcome of the dispute before it depended on the interpretation of the
second paragraph of Annex A, Chapter I, point 2, to Directive 85/73, the Verwaltungsgericht Neustadt an der Weinstraße decided
to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
1.
Must the second paragraph of Annex I, Chapter I, point 2, to Directive 85/73/EEC in the version of Directive 96/43/EC be interpreted
as meaning that an establishment which is situated in the same building as a cutting plant but whose owner is a natural or
legal person other than the owner of the cutting plant is also to be regarded as the
establishment where the meat is obtained?
2.
Which criteria are relevant to the decision of the authority to which the fee is owed regarding the extent to which it grants
a reduction of the fees of up to 55% as provided for in the second paragraph of Annex A, Chapter I, point 2, to the abovementioned
directive? In that regard, may in particular the fact that staff need less time to carry out the controls or inspections also be taken
into consideration where the fees in respect of such controls and inspections are fixed by the addition of a standard amount
in accordance with Annex A, Chapter I, point 2, indent (a), to the abovementioned directive? Moreover, if Question 1 is answered in the affirmative, when reducing the fee, may account nevertheless be taken of the fact
that the establishments situated in one building are attributable to owners who are distinct in law, and may this in principle
lead to a smaller reduction being granted in such cases than in cases where the slaughterhouse and cutting plant are not only
situated in the same building but are also operated by the same natural or legal person?
The first question
By its first question, the national court essentially asks whether the second paragraph of Annex A, Chapter I, point 2, to
Directive 85/73 is to be interpreted as meaning that the reduction it lays down of the amounts of the fees payable in respect
of the health controls and inspections connected with cutting operations applies also where the cutting plant and the establishment
where the meat is obtained, which are situated in the same place, belong to two different natural or legal persons.
To answer that question, it must be noted, first, that the wording of that provision of Annex A to Directive 85/73 does not
contain any condition or restriction under which the reduction it lays down of the amounts of the fees applies only where
the cutting plant and the establishment where the meat is obtained belong to the same natural or legal person.
Second, the application of that reduction where the cutting plant and the establishment where the meat is obtained do not
belong to the same natural or legal person is not capable of affecting the aim pursued by Directive 85/73, which, as follows
from paragraph 6 above, is intended 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.
On the contrary, realisation of that aim is made easier if the grant of that reduction does not depend on factors relating
to the circumstances of ownership of the plants in which the cutting operations are carried out and the establishments where
the meat is obtained.
In those circumstances, the answer to the first question must be that the second paragraph of Annex A, Chapter I, point 2,
to Directive 85/73 must be interpreted as meaning that the reduction it lays down of the amounts of the fees payable in respect
of the health controls and inspections connected with cutting operations applies also where the cutting plant and the establishment
where the meat is obtained, which are situated in the same place, belong to two different natural or legal persons.
The second question
By its second question, the national court essentially asks what criteria should govern the determination, by the authority
to which the fee is owed in respect of the health controls and inspections connected with cutting operations, of the extent
of the reduction referred to in the second paragraph of Annex A, Chapter I, point 2, to Directive 85/73.
In the absence of any express indication in Directive 85/73, the scheme of the directive must be taken into consideration
in order to answer the second question.
It must be recalled, first of all, that under Article 5(1) of Directive 85/73, the fees it provides for are to be set at a
level which covers the costs borne by the competent authority in respect of the salary costs and social security costs involved
in the inspection service and the administrative costs incurred in carrying out the controls and inspections.
The conclusion therefore follows that the extent of the reduction granted under the second paragraph of Annex A, Chapter I,
point 2, to Directive 85/73 must depend on the savings made as regards the salary and social security costs of the inspection
staff and the administrative costs incurred in carrying out the controls and inspections as a result of the fact that the
cutting operations take place in the establishment where the meat is obtained.
It should be observed here, in particular, that, in accordance with Annex A, Chapter I, point 5, to Directive 85/73, the absence
of waiting and other non-productive periods for inspection staff is taken into account for the purpose of reducing the standard
amounts of the fees as fixed in point 1 and point 2, indent (a) of the said Chapter I.
Moreover, since the extent of the reduction to be granted under the second paragraph of Annex A, Chapter I, point 2, to Directive
85/73 depends on the actual savings made in salary and social security costs and administrative costs as a result of the fact
that the cutting operations take place in the establishment where the meat is obtained, the circumstance that that establishment
and the cutting plant belong to the same natural or legal person cannot in itself justify an additional reduction.
Accordingly, the answer to the second question must be that the extent of the reduction to be granted under the second paragraph
of Annex A, Chapter I, point 2, to Directive 85/73 depends on the savings made as regards the salary and social security costs
of the inspection staff and the administrative costs incurred in carrying out the controls and inspections as a result of
the fact that the cutting operations take place in the establishment where the meat is obtained.
Costs
The costs incurred by the Swedish Government and by the Commission, which have submitted observations to the Court, are not
recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before
the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Verwaltungsgericht Neustadt an der Weinstraße by order of 30 July 2001, hereby
rules:
1.
The second paragraph of Annex A, Chapter I, point 2, 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 reduction it lays down
of the amounts of the fees payable in respect of the health controls and inspections connected with cutting operations applies
also where the cutting plant and the establishment where the meat is obtained, which are situated in the same place, belong
to two different natural or legal persons.
2.
The extent of the reduction to be granted under the second paragraph of Annex A, Chapter I, point 2, to Directive 85/73, as
amended and consolidated by Directive 96/43, depends on the savings made as regards the salary and social security costs of
the inspection staff and the administrative costs incurred in carrying out the controls and inspections as a result of the
fact that the cutting operations take place in the establishment where the meat is obtained.
Puissochet
Schintgen
Gulmann
Skouris
Colneric
Delivered in open court in Luxembourg on 16 October 2003.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: German.