Opinion of the Advocate General — ECLI:EU:C:2019:759
Date: 2019-09-18
Language of the case: Dutch
Subject matter: Agriculture and Fisheries;Approximation of laws;Public health
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-477/18 - 1 
Case C-477/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
23 July 2018 
Referring court:  
College van Beroep voor het Bedrijfsleven (Netherlands) 
Date of the decision to refer:  
17 July 2018 
Appellant:  
Exportslachterij J. Gosschalk en Zn. B.V. 
Respondent:  
Minister van Landbouw, Natuur en Voedselkwaliteit 
      
Subject of the action in the main proceedings  
The main proceedings concern the fees which the appellant, a slaughterhouse, has 
been charged by the respondent for official controls performed to ensure the 
verification of compliance with feed and food law, animal health and animal 
welfare rules. 
Subject and legal basis of the request for a preliminary ruling 
The respondent collects fees for controls performed at slaughterhouses pursuant to 
Article 27(4)(a) of Regulation No 882/2004 and Annex VI, points 1 and 2, to that 
Regulation and also pursuant to a national implementing regulation. The subject 
of the present request pursuant to Article 267 TFEU concerns the question of 
which costs may be charged on the basis of those provisions. In particular, the 
question arises as to the types of staff and the types of activities for which costs 
may be collected and also whether costs intended to create a buffer for emergency 
situations fall under those provisions. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-477/18 
 
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Questions referred 
1. Should the phrases ‘the staff involved in the official controls’ in point 1 of 
Annex VI to Regulation (EC) No 882/2004 of the European Parliament and of the 
Council of 29 April 2004 on official controls performed to ensure the verification 
of compliance with feed and food law, animal health and animal welfare rules 
(‘Regulation No 882/2004’) and ‘the staff involved in the official controls’ in 
point 2 of Annex VI to Regulation No 882/2004 be interpreted as meaning that the 
(salary) costs that may be taken into account when calculating the fees for official 
controls, may only be the (salary) costs of official veterinarians and official 
auxiliaries who perform the official inspections, or can they also include the 
(salary) costs of other staff employed by the Nederlandse Voedsel- en 
Warenautoriteit (Netherlands Food and Consumer Product Safety Authority; 
‘NVWA’) or by the private company Kwaliteitskeuring Dierlijke Sector (‘KDS’)? 
2. If the answer to question 1 is that the phrases ‘the staff involved in the 
official controls’ in point 1 of Annex VI to Regulation No 882/2004 and ‘the staff 
involved in the official controls’ in point 2 of Annex VI to Regulation No 
882/2004 may also include the (salary) costs of other staff employed by the 
NVWA or KDS, under what circumstances and within which limits is there then 
still such a relationship between the costs incurred for that other staff and the 
official controls, that the reimbursement of those (salary) costs can be based on 
Article 27(4) and Annex VI, points 1 and 2, of Regulation No 882/2004?  
3a. Should the provisions of Article 27(4)(a) and of Annex VI, points 1 and 2, of 
Regulation No 882/2004 be interpreted as meaning that the aforementioned 
Article 27(4)(a) and Annex VI, points 1 and 2, of Regulation No 882/2004 
preclude slaughterhouses from being charged fees in relation to official controls 
for quarter-hours requested by those slaughterhouses from the competent 
authorities but not actually worked for the purposes of official controls?   
3b. Does the answer to question 3a also apply in the case of official 
veterinarians contracted by the competent authority who do not receive a salary 
for quarter-hours which the slaughterhouse has requested from the competent 
authority but in which no activities related to official controls are actually carried 
out, whereas the amount which the slaughterhouse is charged for quarter-hours 
applied for but not worked is for the benefit of the general overhead cost structure 
of the competent authority? 
4. Should the provisions of Article 27(4)(a) and of Annex VI, points 1 and 2, of 
Regulation No 882/2004 be interpreted as meaning that the aforementioned 
Article 27(4) precludes the slaughterhouses from being charged an average rate 
for the activities for the purposes of official inspections performed by 
veterinarians employed by the NVWA and by (lower-salaried) contracted 
veterinary surgeons, so that slaughterhouses are charged a higher rate than is paid 
to the contracted veterinarians?   
EXPORTSLACHTERIJ J. GOSSCHALK 
 
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5. Should the provisions of Article 26 and Article 27(4)(a), and of Annex VI, 
points 1 and 2, of Regulation No 882/2004 be interpreted as meaning that, when 
calculating the fees for official controls, costs may be taken into account for the 
purposes of building the buffer reserves of a private company (KDS) from which 
the competent authority contracts official auxiliaries, reserves which, in the event 
of a crisis, can be used to pay the salary and training costs of staff who actually 
perform the official controls as well as of staff who make it possible to perform 
the official controls?   
6. If the answer to the question formulated under [5] is in the affirmative: what 
is the maximum amount that can be accumulated in such buffer reserves and what 
is the length of the period which may be covered by such reserves?   
Provisions of Union law cited 
Regulation (EC) No 882/2004 of the European Parliament and of the Council of 
29 April 2004 on official controls performed to ensure the verification of 
compliance with feed and food law, animal health and animal welfare rules; 
recital 11, Articles 2, 26, 27 and Annex VI. 
Regulation (EC) No 854/2004 of the European Parliament and of the Council of 
29 April 2004 laying down specific rules for the organisation of official controls 
on products of animal origin intended for human consumption; Articles 2, 4, 5. 
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 (‘Directive 85/73/EEC’); Article 5. 
Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 
March 2017 on official controls and other official activities performed to ensure 
the application of food and feed law, rules on animal health and welfare, plant 
health and plant protection products; Article 81. 
Provisions of national law cited 
Algemene wet bestuursrecht (General Law on Administrative Law; ‘Awb’); 
Article 3:2 and 7:12. 
Regeling van de Minister van Landbouw, Natuur en Voedselkwaliteit van 4 mei 
2009, nr. 2164, houdende retributies betreffende werkzaamheden van de VWA en 
AID (Decree of the Minister of Agriculture, Nature and Food Quality of 4 May 
2009, No 2164, laying down fees for activities of the VWA and AID) (‘Regeling 
retributies veterinaire en hygiënische aangelegenheden I’; Regulation on fees for 
veterinary and hygiene issues), applicable in the period from 3 April 2013 to 28 
February 2014; Articles 1, 15, 16, 50, 51, 52, 53 en 54. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-477/18 
 
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Regeling van de Staatssecretaris van Economische Zaken van 20 februari 2014, 
nr. WJZ/14033284, houdende vaststelling van tarieven voor werkzaamheden van 
de NVWA (Regulation of the State Secretary for Economic Affairs of 20 February 
2014, No WJZ/14033284, setting rates for the activities of the NVWA; ‘Regeling 
NVWA-tarieven’), Articles 1, 3, 10, 20, 22 en 23. 
Brief summary of the facts and the procedure in the main proceedings 
1 The appellant operates a slaughterhouse where beef and pork are processed and 
placed on the market. In order to ensure compliance with feed and food law, 
veterinary and animal welfare rules, official veterinarians and auxiliaries carry out 
official controls as referred to in Articles 4 and 5 of Regulation No 854/2004. The 
term inspection activities is mainly used to refer to those controls. The 
veterinarians and auxiliaries work for the designated competent authority, the 
Nederlandse Voedsel- en Warenautoriteit (Netherlands Food and Consumer 
Product Safety Authority; ‘NVWA’) or are hired by the NVWA from the private 
company Kwaliteitskeuring Dierlijke Sector (‘KDS’). 
2 The appellant lodged objections against various invoices for inspection activities 
by the NVWA and KDS in the years 2013 to 2016. In 18 different decisions, the 
respondent declared almost all the objections unfounded (in one decision some of 
the objections were declared well-founded and some were declared unfounded). 
The appellant then lodged an appeal with the referring court against all 18 
decisions. 
3 The main proceedings concern various points of contention, some of which the 
referring court has already decided without asking the CJEU to interpret Union 
law. In the related Case C-478/18, similar objections to the respondent’s decisions 
are at issue as in the present case. The referring court has therefore also referred 
questions 1, 2 and 3a for a preliminary ruling in that case. The other questions are 
relevant only to the present Case C-477/18.  
Main submissions of the parties to the main proceedings 
4 In the main proceedings there are four points of contention which the referring 
court considers require the interpretation of Union law. 
(1) Interpretation of Annex VI, points 1 en 2, to Regulation No 882/2004 
5 Referring to the judgment of 17 March 2016, Kødbranchens Fællesråd, Case C-
112/15, ECLI:EU:C:2016:185, the appellant submitted that Annex VI of 
Regulation No 882/2004 gives an exhaustive account of the criteria that the 
respondent may take into consideration in setting the fees for the inspection 
activities. The respondent may therefore only charge for the salaries mentioned in 
point 1 of that Annex and for the costs mentioned in point 2 of that Annex of the 
staff involved in the official controls. However, the rates charged by the 
EXPORTSLACHTERIJ J. GOSSCHALK 
 
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respondent also include other cost items, including costs for the deployment of 
support and administrative staff who are not involved in the actual performance of 
the inspection activities, as well as various other general costs of both the NVWA 
and KDS.  
6 According to the respondent, it can be inferred from the abovementioned 
judgment that costs for the staff actually carrying out the inspection activities may 
be passed on in the rates charged. The same applies to costs that make it possible 
for the inspection activities to be carried out.  
7 The referring court identifies two issues in this debate on the interpretation of 
Article 27(4) of Regulation No 882/2004 and Annex VI to that Regulation. First, 
there is the question of what is meant by ‘the staff involved in the official 
controls’ within the meaning of points 1 and 2 of Annex VI to Regulation No 
882/2004. The second question concerns the circumstances under which and the 
limits within which there is still such a relationship between the costs incurred for 
that other staff who make the inspection activities possible (such as administrative 
staff, other staff members, managers and couriers) and the official controls, that 
the fee for those (salary) costs can be based on Article 27(4) of Regulation No 
882/2004 and Annex VI, points 1 and 2, to that Regulation.    
8 As far as the first question is concerned, it is not disputed that the official 
veterinarians and official auxiliaries are included in the staff referred to in those 
provisions. Unlike the appellant, the respondent is of the view that the costs of 
administrative and other staff may also be charged. According to the referring 
court, it is not apparent either from Regulation No 882/2004 or from the 
Kødbranchens Fællesråd judgment what is to be understood by the phrase ‘staff 
involved in the official controls’ in Annex VI, points 1 and 2, of Regulation No 
882/2004. In the view of the referring court, the appellant’s position that the 
judgment in question provides clarity in that regard cannot be supported.  
9 However, the referring court doubts whether the broader interpretation of the 
abovementioned provisions by the respondent is correct. Those doubts are related 
to the differences between the current Regulation No 882/2004, the previously 
applicable Directive 85/73 and Regulation 2017/625 which has entered into force 
but is as yet (in so far as is relevant here) not applicable. In both Directive 85/73 
(Article 5(1)) and Regulation 2017/625 [Article 81(a)], the European legislature 
leaves room for the reimbursement of the administrative costs and (salary) costs of 
support and administrative staff. It is unclear, however, whether it can be deduced 
from the fact that the possibility of such a charge does not explicitly follow from 
Regulation No 882/2004 that it is prohibited to charge those costs. An argument in 
favour of a broader interpretation which is in line with the previous and future 
rules, is that ‘involved in’ is not an unambiguous and well-defined concept and 
that there is no indication that the European legislature favoured a derogation in 
Regulation No 882/2004. That point is not dealt with in Regulation 2017/625 or 
its recitals. Since that point concerns the interpretation of Union law and the 
referring court considers that interpretation to be essential for the resolution of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-477/18 
 
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dispute, it will refer a question to the Court of Justice of the EU for a preliminary 
ruling (question 1).   
10 If the (salary) costs of staff other than the official veterinarian and the official 
auxiliary may indeed also be charged, it raises the second question referred to 
above with respect to the interpretation of Annex VI. That question arises because, 
as stated in the previous paragraph, the words ‘involved in’ in that Annex are not 
indicative of an unambiguous and well-defined concept. The referring court will 
therefore also submit a question in that regard to the Court of Justice of the EU 
(question 2).  
(2) Quarter-hours requested but not worked 
11 Slaughterhouses must apply to the NVWA for the inspection activities to be 
carried out. In doing so, they must indicate how many official veterinarians and 
official auxiliaries need to be deployed and how much time (in quarter-hours) the 
inspection work will involve. If the inspection activities take up more quarter-
hours than requested, the slaughterhouse must also pay a surcharge for each 
additional quarter-hour. However, if the inspection activities take up fewer 
quarter-hours than requested by the slaughterhouse, the slaughterhouse must pay 
for the quarters requested but not worked.  
12 According to the appellant, no costs may be charged for those inspection activities 
not actually carried out, but the respondent points out that employees who needed 
less time for the activities requested still had to continue to be paid. The referring 
court has doubts as to whether those quarter-hours can be considered costs that the 
Member States must incur in order to carry out official controls, so that collecting 
them, having regard to the judgment in Kødbranchens Fællesråd, could be 
contrary to Article 27(4) of Regulation No 882/2004 and Annex VI thereto.   
(3) Rates for contracted veterinarians 
13 The appellant points out that the NVWA contracts some of the official 
veterinarians and auxiliaries who perform inspection work from KDS and 
temporary employment agencies. The NVWA pays those veterinarians and 
auxiliaries less than its own staff. Also, those contracted veterinarians and 
auxiliaries are not paid for the hours requested but not worked. Nevertheless, the 
NVWA charges the same rate for all activities, regardless of who performed them. 
According to the appellant, therefore, costs not actually incurred are also charged. 
The respondent claims that it is trying to maintain a uniform cost structure in 
which the differences in costs for contracted veterinarians and auxiliaries would 
benefit the general overhead cost structure of the NVWA. The referring court does 
not rule out the possibility that such a pricing structure is permissible, but 
nevertheless questions such an interpretation of Union law. 
EXPORTSLACHTERIJ J. GOSSCHALK 
 
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(4) Buffer reserves 
14 The appellant emphasises that the rates charged also include the costs of building 
up the buffer reserves of KDS. That financial buffer would be built up to cover 
possible future costs incurred in the event of emergencies, for example, and is 
therefore not directly related to the inspection activities actually carried out. Such 
costs can therefore not be regarded as the costs of persons who are actually 
involved in the performance of the inspection activities and, according to the 
appellant, are therefore being wrongfully charged. The respondent acknowledges 
the build-up of such buffer reserves at KDS. They are intended to ensure that in 
unforeseen circumstances, such as a long-term animal disease crisis where the 
slaughter of animals comes to a standstill for some time, staff and training costs 
can be paid and no staff has to be dismissed. According to the respondent, the 
quarter-hourly rate charged is not higher than necessary and is therefore in 
accordance with Article 27 of Regulation No 882/2004. Furthermore, in its ruling 
of 14 October 2010 (ECLI:NL:CBB:2010:B02557), the referring court has also 
confirmed that the part of the rates charged that is intended to build up buffer 
reserves can be regarded as actually incurred inspection costs.    
15 The referring court finds that the Kødbranchens Fællesråd judgment does not 
contain any pointers as to how that point of contention should be resolved. It can, 
however, imagine an interpretation of Union law which allows the build-up of 
such buffer reserves. To begin with, however, it is unclear in that case on the basis 
of which criteria the maximum extent of those buffer reserves should be 
determined. Moreover, those buffer reserves are being built up in a private 
company (KDS) from which the NVWA contracts official auxiliaries. It is unclear 
what significance should be attributed to that fact in the present case. The loss of 
income for a private company can in itself be considered part of the normal 
business risk. Furthermore, there is no indication of who would benefit from the 
build-up of buffer reserves in the event of the company closure or bankruptcy of 
KDS.  
Brief summary of the reasons for the referral 
16 In the view of the referring court, the doubts that exist in relation to the four points 
of contention about the application of Article 27(4)(a) of Regulation No 882/2004 
and Annex VI, points 1 and 2, to that Regulation, is sufficient reason for referring 
questions to the CJEU for a preliminary ruling. Since the other points of 
contention have already been decided, it could in principle be sufficient to uphold 
the application for annulment of the contested decisions on account of the defects 
mentioned. However, the referring court would then be ignoring the doubts that 
exist about the interpretation of Union law. Consequently, the respondent would 
then have to make new decisions on objections without there being any clarity on 
the points of contention which can only be settled after the interpretation of Union 
law by the CJEU. Those points of contention might later also be submitted to the 
referring court for further consideration in other appeal procedures, after which 
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the formulated questions would still have to be asked. The referring court 
therefore considers it appropriate to submit the questions concerned to the CJEU 
in the present case, whilst noting that questions 1, 2 and 3a have also been referred 
in Case C-478/18.    
17 The referring court considers it relevant in that regard that more than four hundred 
appeals are currently pending before it against decisions on objections made by 
the respondent similar to the contested decisions at issue here. In all those 
proceedings there are identical or more or less the same type of grounds of appeal 
as those submitted against the decisions contested in the present proceedings. 
What all those appeals have in common is that, on a general and fundamental 
level, the lawfulness of the fees collected by the respondent to cover the costs of 
official controls within the framework of Regulation No 882/2004 and the 
Regeling NVWA-tarieven is called into question. The outcome of the present 
proceedings will also be decisive for those other appeal proceedings.