2.

As regards the question of the application of Article 15 of Directive 71/118, Armando Leonelli, who has made observations in the proceedings and cited the case-law of the Court on the question of the direct application of directives, takes the view that the derogation becomes effective only when the Member States have attained a uniform application of the provisions laid down in the directive. The harmonizing Directive 71/118 which was substantially amended by Council Directive 75/431/EEC of 10 July 1975 (Official Journal, L 192, 24. 7. 1975, p. 6) inter alia with regard to the periods for implementation, is neither clear nor unconditional but leaves the Member States a certain discretion. He states that the Council allowed the Member States the possibility of exceeding the timelimits laid down in order to be able to undertake the prescribed adjustments. In Italy the two directives accordingly became effective only on 1 January 1977 after the national legal system had been adapted, to the provisions of the directives. On the other hand the Italian Government and the Commission, having regard to the wording, meaning and aim of the provision in question and to the case-law of the Court on this problem, basically agree that the Member States have been empowered since the entry into force of the directive to levy charges for health inspections in trade with nonmember countries. (a) In my opinion too it is apparent already from the wording of Article 15 and its place in the context of Directive 71/118 that the validity of the provision, which is a derogation from the prohibition of the levying of charges having an effect equivalent to customs duties, does not depend on the Member States' having adopted the laws, regulations and administrative provisions needed to comply with the directive. In that respect it must first of all be pointed out that the relevant provision is part of a directive which clearly and unmistakably has the aim in the interests of intra-Community trade of harmonizing the various health provisions for poultrymeat existing in the individual Member States. Only in that respect does Article 16 allow the Member States transitional periods for implementing the directive, differing according to whether it is a matter of provisions for intra-Community trade or provisions for trade within the territory of a Member State. On the other hand Article 15, as its wording shows, takes account of the fact that at the time at which the directive was adopted there were no corresponding “Community provisions concerning imports of fresh poultrymeat from third countries”. Since this sector was not yet harmonized it was provided that the Member States in order to harmonize the provisions on health inspections in trade with nonmember countries should apply to imported goods only provisions “which are at least equivalent to those of this directive”. That provision applies, as the Court has expressly made clear in the cases of Simmenthal and Wigei which have already been cited, not only as regards the health inspections themselves but also in respect of the charges imposed therefor. Thus, as already the wording of that provision shows, the Community legislature basically assumes that the Member States, in derogation from the prohibition contained in Article 11 (2) of Regulation No 123/67, are empowered as previously to carry out health inspections in respect of trade with nonmember countries and to impose charges therefor. Accordingly the Court expressly held in the Wigei case that “The prohibition of the levying of charges having an effect equivalent to customs duties laid down in Article 11 (2) of Regulations Nos 123/67 and 2777/75 cannot be relied on for the purpose of preventing Member States levying at the external frontiers of the Community charges for the health inspections which they carry out of imports of fresh poultrymeat from third countries” (paragraph 10). As regards the amount of the charges the Court further decided that it follows from the wording of Article 15 that: “This provision allows stricter inspections at the external frontiers than those provided for by the directive in the case of intra-Community trade” (paragraph 14). In that respect it was expressly stressed that Community law does not require Member States to show the same degree of confidence towards nonmember countries as that which, on the basis of the relevant directive, should characterize relations between Member States. For the purposes of ensuring as uniform protection as possible vis-à-vis the outside the Court simply set the Member States an upper limit to their discretion when it held that: “In the event of the public health inspections at the external frontiers of the Community being out of all proportion to the objectives sought to be attained or if the charges were clearly to exceed the cost of those inspections, they would be outside the field of application of the derogation allowed by Article 11 (2) of the abovementioned Regulations Nos 123/67 and 2777/75” (paragraph 12). A lower limit for the health inspections to be carried out by Member States in respect of imports from nonmember countries and the resulting charges is finally established by Article 15. As the Court held in the Wigei case with regard to this article and in the Simmenthal case with regard to the corresponding article of Council Directive 64/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition, 1963-64, p. 185) the specific purpose of these provisions is: “to lay down on a provisional basis pending the implementation of the Community system for imports of fresh meat from third countries, a rule applicable to the national arrangements remaining in force in order to prevent their being less strict or less onerous than the inspection arrangements laid down in the directive for intra-Community trade.” That rule is thus intended, as the Court made clear, to avoid distortions of competition by ensuring that traders who put on the market fresh meat originating within the Community should not be treated less favourably than their competitors who import meat from nonmember countries. The provision in question is thus intended to safeguard the principle of Community preference by preventing Member States from applying on the import of products from nonmember countries in respect of which the health requirements for intra-Community trade have been harmonized provisions which are lower than the standard sought by the harmonizing directives, since, when such goods cross the internal frontiers of the Community, in principle no further inspections should be carried out. In contrast to intra-Community trade, where the concern is that goods from other Member States should not be at a disadvantage, this provision is intended to exclude preference for goods from nonmember countries. It is apparent however from that aim of Article 15 that only observance of the lower limit referred to in the provision but irrelevant to the main action is dependent on implementation of the directive by the Member States. The power of the Member States as such to levy charges for health inspections on imports of fresh poultrymeat from nonmember countries does not on the other hand presuppose such implementation. Such a power has existed since the entry into force of the derogation in Article 15, that is since Directive 71/118 was notified to the Member State in question. (b) Finally, contrary to the view of Mr Leonelli, no other conclusion is to be drawn from the Simmenthal judgment. The particular feature of that case, which was concerned with charges for health inspections on the import of beef and veal from Uruguay, was that apart from the prohibition in the organization of the market for beef and veal of levying charges having an effect equivalent to customs duties there were on the one hand two Council directives which provided for veterinary inspections for beef and veal in intra-Community trade and on the other hand a further Council directive which in contrast to the present case provided for veterinary inspection on the import of beef and veal from nonmember countries. On the question from the court making the reference whether the provisions of the latter directive were to be interpreted as authorizing the Member States to introduce health inspection charges on goods imported from nonmember countries and, if so, with effect from what date, the Court held that the levying of charges for veterinary or public health inspections on the basis of Community rules on imports from nonmember countries was lawful provided that the effect thereof on the relevant trade with nonmember countries was uniform in all the Member States. Since the directive in question provided for the establishment of uniform veterinary and public health inspections the particulars of which were to be determined according to the circumstances by the Council, the Commission or the Member States, the Court consequently held that the derogation was applicable only when the Member States were in a position to establish the inspections provided for in the directive in accordance with the provisions of the directive. The present case however differs from that case by the very fact that the health inspections and the related charges have not been harmonized in trade with nonmember countries and Community rules exist only in respect of intra-Community trade. If the Member States' power conferred by Article 15 of Directive 71/118 to levy charges in trade with nonmember countries were to depend on implementation of the directive which relates to intra-Community trade, it would mean, as the Italian Government and the Commission rightly point out, that ultimately in contrast to the principle of Community preference products from nonmember countries which reach the common market via a Member State which has not yet implemented the directive would be more favourably treated than products coming from Member States where the directive has already been implemented.