Judgment of the Court (Fourth Chamber) of 24 October 1996. - H. J. A. M. van Iersel (liquidator of Pluimvee- en wildverwerkende industrie De Venhorst BV) v Staatssecretaris van Landbouw, Natuurbeheer en Visserij. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Health inspections and controls - Circumstances in which an undertaking is obliged to pay the fee for cutting operations. - Case C-86/94.



European Court reports 1996 Page I-05261



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Agriculture ° Approximation of laws on health policy ° Financing of health inspections and controls of fresh meat ° Directive 85/73 ° Fee levels fixed by Decision 88/408 ° Part of the fee connected with cutting operations ° Limitation to the quantities of meat actually boned or cut in the cutting plant

(Council Directive 85/73; Council Decision 88/408, Art. 3(1))

Summary

Article 3(1) of Decision 88/408 on the fee levels for health inspections and controls of fresh meat pursuant to Directive 85/73 on the financing thereof is to be interpreted as meaning that the part of the fee covering controls and inspections connected with cutting operations is payable only in respect of meat which is actually boned or cut during the production stage between the slaughter of the animal and the storage of the meat, and not in respect of all the meat which is present in the cutting plant, whether or not it is boned or cut there.

Parties

In Case C-86/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the College van Beroep voor het Bedrijfsleven (Netherlands) for a preliminary ruling in the proceedings pending before that court between

H.J.A.M. van Iersel (liquidator of Pluimvee- en wildwerkende industrie De Venhorst BV)

and

Staatssecretaris van Landbouw, Natuurbeheer en Visserij

on the interpretation of Council Decision 88/408/EEC of 15 June 1988 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73/EEC (OJ 1988 L 194, p. 24),

THE COURT (Fourth Chamber),

composed of: J.L. Murray (Rapporteur), President of the Chamber, C.N. Kakouris and P.J.G. Kapteyn, Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

° H.J.A.M van Iersel, liquidator of Pluimvee- en wildwerkende industrie De Venhorst BV, by P.A. Wackie Eysten, of the Hague Bar,

° the Government of the Netherlands by A. Bos, legal adviser at the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities by T. van Rijn, Legal Adviser, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 30 November 1995,

gives the following

Judgment

Grounds

1 By order of 24 December 1993, received at the Court on 9 March 1994, the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Council Decision 88/408/EEC of 15 June 1988 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73/EEC (OJ 1988 L 194, p. 24).

2 That question was raised in proceedings between Pluimvee- en wildwerkende industrie De Venhorst BV (hereinafter "De Venhorst") and Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Secretary of State for Agriculture, Nature Conservancy and Fisheries) concerning the payment of the fee claimed for the inspection of a cutting plant. Following the insolvency of De Venhorst, Mr H.J.A.M. van Iersel, appointed as liquidator of the company under Netherlands law, took over the action.

3 Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat (OJ, English Special Edition 1971 (I), p. 106), which has frequently been amended since, approximates the provisions of the Member States on hygiene requirements in respect of poultrymeat in slaughterhouses and during transportation. Article 3(1) of the directive provides that each dispatching Member State must establish a system of health inspections and controls by veterinarians. Those inspections and controls concern the establishments in which the meat is treated, the operations carried out and the condition of the meat itself.

4 Article 3(1)B of Directive 71/118, as amended by Council Directive 75/431/EEC of 10 July 1975 (OJ 1975 L 192, p. 6), provides that trade is to be allowed only in poultrymeat which meets the following requirements:

"B. In the case of parts of carcases or boned meat:

(a) It has been cut in cutting premises approved and supervised in accordance with Article 5(1);

(b) It has been cut and obtained in accordance with the requirements of Chapter VIII of Annex I and comes from:

° fresh meat from animals slaughtered in the Member State and complying with the requirements of this directive,

° fresh meat introduced from another Member State and complying with the requirements of this directive,

° fresh meat imported from third countries in accordance with the conditions laid down by the Community provisions for the importation of fresh poultrymeat from third countries;

(c) It has been stored under conditions complying with Chapter XII of Annex I;

(d) It has been subject to control by an official veterinarian in accordance with Chapter IX of Annex I;

(e) It satisfies the conditions of A (c), (e), (g) and (h)."

5 Chapter VIII of Annex I, headed "Provisions concerning meat intended for cutting", to which Article 3(1)B(b) of Directive 71/118 as amended by Directive 75/431 refers, lays down provisions concerning meat intended for cutting. Chapter XII of Annex I, to which Article 3(1)B(c) of Directive 71/118 as amended by Directive 75/431 refers, specifies the temperature at which fresh poultrymeat must be stored after chilling.

6 Chapter IX of Annex I, headed "Health control of cut meat", to which Article 3(1)B(d) of Directive 71/118 as amended by Directive 75/431 refers, provides:

"41. Cutting rooms shall be subject to supervision by an official veterinarian.

42. Supervision by the official veterinarian shall consist of:

(a) checking records of fresh meat having entered and cut meat having left the premises;

(b) health inspection of fresh meat having entered the cutting room;

(c) inspecting the cleanliness of the premises, installations and tools, and staff hygiene;

(d) the taking of any necessary samples for laboratory examinations designed to detect, for example, the presence of noxious germs, additives or any other unauthorized chemical substances. The results of such examinations shall be recorded in a register;

(e) any other checks which he considers will contribute to the observance of the Directive."

7 Until the adoption of Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1985 L 32, p. 14), each Member State itself determined the question of how to finance the inspections and controls specified in Directive 71/118. Taking the view that that situation was capable of affecting competitive conditions within the Community, the Council adopted Directive 85/73, laying down harmonized rules for financing such inspections and controls. The first indent of Article 1(1) of that directive provides:

"As from 1 January 1986 the Member States shall ensure that:

° fees are collected when the animals referred to in paragraph 2 are slaughtered for the costs occasioned by health inspections and controls."

8 Article 2(1) of Directive 85/73 provided that the Council was to take a decision on the standard level or levels of the fees, the detailed rules and principles for the implementation of the directive, and on possible exceptions.

9 The Council then adopted Decision 88/408.

10 The fee prescribed by Decision 88/408 covers all health inspections and controls. The decision provides that the authorities of the Member States are to charge a single fee for all inspections in respect of the slaughter of the poultry (Article 2(3)), in respect of administrative costs and examination for the presence of residues (Article 2(4)), and in respect of inspections relating to the cutting operations (Article 3). Article 4 of Decision 88/408 provides that Member States are to levy an amount corresponding to the actual expenditure necessary for entry and exit controls or inspections of the meat stored.

11 Article 5(1) of the decision provides that the amount referred to in Article 2 is to replace all other health inspection charges or fees levied by the national, regional or local authorities of the Member States for the inspection and control of fresh meat referred to in Article 1 and the certification thereof.

12 Article 6(1) of Decision 88/408 provides that the fees are payable by the natural or legal person who has the slaughtering, cutting or storage operations carried out.

13 Article 3 of Decision 88/408 is worded as follows:

"(1) The part of the fees covering the controls and inspections connected with the cutting operations referred to in Article 3(1)B of Directive 64/433/EEC and Article 3(1)B(b) of Directive 71/118/EEC shall be fixed at a standard rate of 3

ECU/tonne of unboned meat intended for cutting.

(2) The amount referred to in paragraph 1 shall be added to the amounts referred to in Article 2(1).

(3) The provisions of Article 2(2) and (5) shall apply mutatis mutandis.

(4) Where the cutting operations are carried out in the establishment where the meat is obtained, the amounts laid down in paragraph 1 may be reduced by up to 50%."

14 Directive 71/118 was further amended by Council Directive 92/116/EEC of 17 December 1992 (OJ 1993 L 62, p. 1). Directive 92/116 did not have to be transposed by the Kingdom of the Netherlands until 1 January 1994, and it does not therefore apply to the dispute in the main proceedings.

15 The Netherlands regulation of 1985 on the inspection of, and trade in, fresh poultrymeat (hereinafter "the national regulation"), adopted by the Secretary of State for Agriculture, Nature Conservancy and Fisheries on 20 June 1985 pursuant to Articles 13(1) and (2), 19(1) and 26 of the Netherlands Law on Agriculture, as amended by the Regulation of 13 December 1990, and made in implementation of Decision 88/408, provides inter alia:

"Article 22a

1. For an inspection within trading hours in a cutting plant authorized under Article 16, the plant is liable to pay a charge amounting to HFL 6.97 per tonne of unboned meat intended for cutting.

2. By derogation from paragraph 1 above, the cutting plant is liable to pay a charge of HFL 3.50 per tonne of unboned meat intended for cutting, if the cutting operations are carried out in the plant in which the meat is obtained."

16 Until it was put into liquidation, De Venhorst operated a slaughterhouse and engaged in the poultry trade.

17 The slaughterhouse comprised a production line which started with the slaughter of live poultry and ended with the storing of the plucked and eviscerated chickens which had been sorted according to weight and wrapped in plastic. About 95% of the chickens slaughtered in the applicant' s slaughterhouse were not cut up and boned but stored whole. De Venhorst only cut and boned those chickens which weighed less than a certain amount and which were of inferior quality. All the operations relating to the slaughter, plucking, evisceration, sorting, weighing, cutting, wrapping and storage of the chickens took place on the same premises.

18 By four decisions adopted on 10 April 1991, 8 July 1991, 24 January 1992 and 18 February 1992, pursuant to the national regulation, the District Director of the Rijksdienst voor de keuring van Vee en Vlees (Department for the Inspection of Cattle and Meat, hereinafter "the RVV") claimed health inspection fees from De Venhorst in relation to the slaughter, cutting and storage aspects of its production process. The dispute is concerned only with the fees charged in connection with the stage of the production process which took place in a cutting plant.

19 The order for reference shows that the RVV calculated the component of the fee relating to the inspection of the cutting operations on the basis of the weight of all the chickens placed in the room in which the cutting operations took place.

20 De Venhorst considered that basis to be unfair because only 5% of the chickens placed in the room in question were cut and boned. It therefore brought a complaint against the RVV' s decisions before the Secretary of State for Agriculture, Nature Conservancy and Fisheries, who rejected the complaint.

21 Taking the view that the phrase "unboned meat intended for cutting" appearing in Article 22a(1) of the national regulation and Article 3 of Decision 88/408 implied that a fee may be demanded only in relation to meat with bone which is actually cut in the cutting plant, De Venhorst appealed against that decision to the College van Beroep voor het Bedrijfsleven.

22 The College van Beroep considered that the dispute raised a problem concerning the interpretation of Article 3(1) of Decision 88/408, and therefore decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

"Is Article 3(1) of Council Decision 88/408/EEC of 15 June 1988 to be interpreted as meaning that the part of the fees referred to therein is payable only in respect of meat which is actually boned or cut up in the production stage between slaughter of the animal and storage of the meat, or must that provision be interpreted as meaning that the fees are payable in respect of all the meat which is brought into the cutting plant, whether or not it undergoes any processing there in the form of boning or cutting?

If the provision is to be interpreted differently, what is the correct interpretation?"

23 By that question, the national court effectively asks whether the part of the fee referred to in Article 3(1) of Decision 88/408, which is levied in respect of controls and inspections connected with cutting operations, is to be calculated on the basis of the quantities of poultrymeat actually boned and cut during the production stage between the slaughter of the animal and the storage of the meat, or on the basis of all the meat present in the room in which the cutting operations take place.

24 It should be noted that Decision 88/408 is concerned only with the levels of fees to be levied in respect of the inspections and controls enumerated in Directive 71/118, as amended by Directive 75/431, and the bases on which those fees are to be calculated. The decision has, intrinsically, no impact on the inspection and control obligations set out in that directive.

25 Article 3(1) of Decision 88/408 defines the part of the fees covering the controls and inspections connected with the cutting operations referred to in Article 3(1)B(b) of Directive 71/118, as amended by Directive 75/431. Those fees are fixed at a standard rate of 3 ECU/tonne of unboned meat intended for cutting. Article 3(1)B(b) of Directive 71/118, as amended by Directive 75/431, provides that, in the case of parts of carcases or boned meat, the latter must have been cut and obtained in accordance with the requirements of Chapter VIII of Annex I. Chapter VIII of Annex I lays down provisions concerning meat intended for cutting. It specifies, in particular, the places where fresh meat intended for cutting must be placed, and requires that, as soon as the prescribed cutting and packaging are completed, the meat must be transported to a chilling room.

26 The provisions specifying the controls which must take place in the cutting plant are Article 3(1)B(d) of Directive 71/118, as amended by Directive 75/431, and Chapter IX of Annex I to the directive, to which Article 3(1)B(d) refers. Article 3(1)B(d) requires the parts of carcases or boned meat to be subject to control by an official veterinarian in accordance with Chapter IX of Annex I.

27 Chapter IX of Annex I to Directive 71/118, as amended by Directive 75/431, which specifies the controls and inspections in connection with cutting operations is headed: "Health control of cut meat". The chapter provides for checking by the official veterinarian of the records of fresh meat having entered and cut meat having left the premises, and for the inspection of fresh meat in the cutting room. It also provides for supervision of the state of cleanliness, the taking of any necessary samples for laboratory examinations, and any other checks which the official veterinarian considers will contribute to the observance of the directive.

28 The level of fees to be charged for the inspections and controls laid down by Chapter IX of Annex I is governed by Article 3(1) of Decision 88/408. That is the sole provision specifying the level of fees for inspections and controls in connection with cutting operations. The application of that article is expressly limited to unboned meat intended for cutting. Therefore, the fee to be charged for the inspections and controls specified in Chapter IX of Annex I to Directive 71/118, as amended by Directive 75/431 must likewise be limited to inspections and controls relating to quantities of poultrymeat actually cut and boned.

29 It is not the presence of meat in the cutting room which gives rise to the fee. Each part of the fee laid down by Decision 88/408 is calculated on the basis of the weight of the meat. Article 3(1) of Decision 88/408 states that the fee covering the controls and inspections connected with the cutting operations is to be calculated on the basis of the unboned weight of the meat intended to be boned and cut. Therefore, that fee is payable only in respect of the unboned meat which is actually cut in the cutting room.

30 The Netherlands Government considers, however, that the aim of the regulation is to pass on all costs connected with health inspections and controls concerning cutting operations to the persons on account of whom such costs are incurred. If the principle were not accepted that the fee is payable for all meat present in the cutting room, whether or not it is boned or cut there, the result, in the case of meat arriving in the cutting room but not being cut or boned there, would be that the costs of the controls and inspections for the production stage between slaughter and storage would not be passed on by means of the fee, and would remain at the expense of the Member States.

31 That argument must be rejected.

32 As has already been stated, Decision 88/408 determines the levels of the fees to be charged for inspections and controls connected with cutting operations. Article 2(2) of that decision provides for only a few cases in which Member States may depart from those levels. Having regard to the existence of such a provision, there can be no question of a Member State which considers the standard levels fixed in the decision insufficient to cover the costs of inspections and controls interpreting Article 3(1) of Decision 88/408 in the way advocated by the Netherlands Government, such interpretation being moreover incompatible with the aim of that provision.

33 Accordingly, the answer must be that Article 3(1) of Decision 88/408 is to be interpreted as meaning that the part of the fees referred to therein is payable only in respect of meat which is actually boned or cut during the production stage between the slaughter of the animal and the storage of the meat.

Decision on costs

Costs

34 The costs incurred by the Netherlands Government and the Commission of the European Communities, 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.

Operative part

On those grounds,

THE COURT (Fourth Chamber),

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven, by order of 24 December 1993, hereby rules:

Article 3(1) of Council Decision 88/408/EEC of 15 June 1988 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73/EEC is to be interpreted as meaning that the part of the fees referred to therein is payable only in respect of meat which is actually boned or cut during the production stage between the slaughter of the animal and the storage of the meat.