# C_2007199EN.01002001.xml

| 25.8.2007 | EN | Official Journal of the European Union | C 199/20 |
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25.8.2007

EN

Official Journal of the European Union

C 199/20

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Action brought on 6 June 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-270/07)

(2007/C 199/31)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: F. Erlbacher and A. Szmytkowska, acting as Agents)

Applicant:

Defendant: Federal Republic of Germany

Defendant:

Form of order sought

| — | Declare that the Federal Republic of Germany has failed, or is continuing to fail, to fulfil its obligations under Article 1 and Article 5(3) and (4) of Directive 85/73 (1) and — as from 1 January 2007 — under Article 27(2), (4) and (10) of Regulation No 882/2004 (2) by failing to amend Paragraph 4 of the Ausführungsgesetz zum Fleischhygienerecht und zum Geflügelfleischrecht (Law on the implementation of the meat hygiene and poultrymeat laws) of the Land of Schleswig-Holstein to conform to those Community rules. |
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Declare that the Federal Republic of Germany has failed, or is continuing to fail, to fulfil its obligations under Article 1 and Article 5(3) and (4) of Directive 85/73 (1) and — as from 1 January 2007 — under Article 27(2), (4) and (10) of Regulation No 882/2004 (2) by failing to amend Paragraph 4 of the Ausführungsgesetz zum Fleischhygienerecht und zum Geflügelfleischrecht (Law on the implementation of the meat hygiene and poultrymeat laws) of the Land of Schleswig-Holstein to conform to those Community rules.

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Land

| — | order the Federal Republic of Germany to pay the costs. |
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order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Under Article 1(1) of Directive 85/73/EEC, the Member States are to ensure that fees are collected for the costs occasioned by the health controls and inspections of meat provided for under the various directives. The detailed rules for the calculation and collection of those Community fees, which are to replace any other charge or fee for health inspections and controls that is collected by the State, regional or local authorities of the Member States, are set out in the annexes to the Directive. Article 5(1) of Directive 85/73 provides that the Community fees are to be set at a level which covers the costs borne by the competent authority in carrying out the controls and inspections. According to Article 5(3), the Member States are to be authorised to charge a greater amount, provided that the total fees charged by each Member State do not exceed the actual cost of inspection. In its judgment in Joined Cases C-284/00 and C-288/00 Stratmann, the Court has already determined that it is clear from the wording and purpose of Directives 85/73 and 64/433 that the costs of bacteriological examinations are covered by the Community fee. The legal position remains substantially unchanged following the replacement of Directive 85/73 by Regulation No 882/2004 with effect from 1 January 2007.

Stratmann

The Commission takes the view that the provisions of the Ausführungsgesetz (Law on Implementation) of the Land Schleswig-Holstein, which provide for the collection of fees for bacteriological examinations in addition to the flat-rate fees for meat inspections, do not comply with those Community law provisions and fail to take account of the Court's interpretation of those provisions in Stratmann.

Land

Stratmann

In particular, it should be noted that bacteriological examinations are included in the health inspections and controls provided for in Regulation No 854/2004, the costs of which are to be covered by the Community fee. Although the Member States can collect a greater fee than is laid down in the annex to Directive 85/73/EEC, provided that the total fees charged by each Member State do not exceed the actual cost of inspection, every increase imposed by a Member State must apply to the flat-rate fee itself. Special fees exceeding the level of the Community fee must cover all of the costs actually incurred. That provision for higher costs cannot be said to apply to a rule of domestic law which provides for the costs of bacteriological examinations to be charged in addition to the flat-rate fees, as that is not a general increase in the flat-rate Community fee, which incorporates all of the costs actually incurred.

A provision such as the rule of the Ausführungsgesetz of the Land Schleswig-Holstein in the present case also runs counter to the relevant Community rules' practical effectiveness. These harmonised provisions are, after all, intended to eliminate the distortion of competition in the financing of health inspections and controls of fresh meat which is to be expected where there are differences between the Member States in that area. The Court of Justice took the view also that this objective might not be achieved if certain inspections laid down by Community law could fall outside that harmonised system of Community financing and instead be subject to special national fees.

Land

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(1)  OJ 1985 L 32, p. 14.

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(2)  OJ 2004 L 165, p. 1.

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