4.

The German court, however, wonders whether the fact that, of all the Member States, only the Federal Republic of Germany charges to undertakings the costs of inspections offends against the principle of equal treatment laid down in the second subparagraph of Article 40 (3) of the EEC Treaty. As the Court will remember, that provision provides that the common organization of the market “shall exclude any discrimination between producers or consumers within the Community”. That however does not preclude differences of treatment, within the context of the application of common rules, owing to the divergences between the internal legal systems of the Member States. It is of course the national authorities which apply the common agricultural policy and in particular operate the machinery for intervening in the market and, for those purposes, undertakings enter into legal relationships directly with those authorities. The logical consequence of that system is that, in the absence of harmonization of all the branches of public law which come into play (for instance the numerous provisions which govern the actions of the public administration, public contracts, rights of action in favour of individuals and the like), certain differences of treatment between undertakings from one Member State to another remain possible and must be regarded as being compatible with Community law since they come about within the framework of provisions which reflect the discretionary powers still available to national authorities. In other words, to the extent to which the Community authorities, for reasons of necessity or expediency, consider it necessary to avail themselves of the collaboration of national authorities to put into effect Community intervention schemes and leave them free to regulate certain aspects relating to the application of the common rules, there may be slight differences in the treatment of traders in the various Member Sutes, but those differences do not constitute an infringement of the abovementioned principle of nondiscrimination. The reason for their existence and their justification are to be found in the fact that it is impossible or inexpedient to subject the whole functioning of the common organization to a system of Community law or to make it dependent upon a complete harmonization of the internal laws in all the branches which are relevant to the application of provisions of Community law. Finally, the court making the reference seems to be inclined to evaluate the present case in the light of the principle that the Member States may charge inspection costs only in consideration of services which may be regarded as having been rendered to the person concerned. Until now the Court has in fact only acknowledged that principle in connection with Article 9 of the EEC Treaty namely when it was necessary to interpret the concept of charges having an effect equivalent to customs duties, which of course are imposed on goods by reason of their crossing a frontier. But, according to the court making the reference, it may be inferred from the Bustone case and in particular from the juxtaposition of paragraphs 34 and 35 of the decision and the opinion of Mr Advocate General Reischl in thai case thai the abovementioned principle has a wider-ranging scope. In fact, in that case which concerned the lustificauon tor the payment claimed bv a Member State for the release or the bands and labels provided for bv Community provisions for the marketing of eggs, the Court stated inter alia, at paragraph 34: “Nor is it ruled out that in that case the costs of printing and distributing the bands and labels, and those arising from the implementation of the specific checks required by the basic regulations, should be regarded as a service rendered to the user such as to justify the imposition of a pecuniary charge, on condition that it does not exceed the real cost of the supervisory system in question.” From that citation may be inferred the principle asserted as to the relation between the pecuniary charge imposed by the State and the service rendered to the user and thus it is easy to arrive at the conclusion that the charge provided for in this case is unlawful since it is difficult to attribute to the inspections carried out on the basis of Commission Regulation No 1725/79 the nature of an individual service. In fact, although they constitute a precondition which every undertaking must satisfy in order to receive the aid, those inspections are founded on the general interest in guaranteeing respect for the provisions governing the machinery of Community support. However, there is a further reason why the reasoning set out by the national court cannot be followed. In the first place, the principle that a pecuniar) charge is only justified in so far as it is the consideration for a service rendered by the State must be rigorously applied in order to safeguard the free movement of goods, which constitutes one of the foundations of the common market, but that is no reason for extending that principle to the question of the costs relating to inspection operations on given products, which are not carried out in connection with their importation or exportation, but simply so as to ensure that a Community aid is correctly granted. In that respect I would add that the factor mentioned by Denkavit as to the substantial identity between the level of aids in question and that of Community export refunds, seems to me irrelevant. In the second place, the quotation referred to above from the Bustone judgment shows, from the way in which it is worded, that the Court confined itself to mentioning a case in which the costs in question were linked to a service rendered to the user but certainly did not elevate that case to a principle which might have a bearing on the solution to the question under examination. The question, as appears from paragraph 26 of the decision in Bussone, consisted in establishing whether the directly applicable nature of the regulations, which were the subject of a request for interpretation, might be jeopardized “by the adoption of national provisions which, whilst purporting to implement the regulations in question, introduce additional conditions, such as those reserving to the public authorities the right to prepare and distribute bands and labels and making the issue of such bands and labels subject to the payment of a pecuniary consideration.” The Court's replv was based essentially on the two arguments which emerged from paragraphs 32 and 36 of the decision: on the one hand, namely, the fact that the regulation in question left to the Member States the task of adopting “the necessary legislative, regulatory, administrative and financial measures to ensure the effective application of the provisions of that regulation”; and, on the other hand, the consideration that the national rules for their implementation were in accordance with the purpose of Community rules, even if they introduced additional conditions and imposed the payment of a consideration which was not disproportionate to the cost of the supervisory system. Following clarification of that point, the reasoning of the decision in the Bussone case may be adapted to the problem which we are examining (even if the difference found to exist between the rules which were the subject of interpretation in that case and the rules under discussion here did not enable us to extract directly from that decision the reply to be given to the Verwaltungsgericht Frankfurt). It may be said therefore that the immediate efficacy of Commission Regulation No 1725/79 is not impaired if a Member State requires the reimbursement of the inspection costs since that regulation, in providing for Member States to earn out inspections, did not preclude them from introducing additional detailed conditions of an administrative or procedural nature compatible with the objectives of the Community provisions. In connection with that compatibility a final consideration may be stated analogous to that expressed by the Court in paragraph 35 of its judgment in Bussone; the fact that receipt of the aid is made subject to the payment, by the recipient undertaking of a pecuniar. charge proportionate to the normal cost or the inspections carried out by national authorities (and characterized bv a ven' minor effect on the amount of the aid) does not disturb the functioning of the common organization of the market.