Opinion of the Advocate-General



Opinion of the Advocate-General

Introduction

1. By this reference for a preliminary ruling, the Raad van State (Council of State, Netherlands) has referred to the Court questions concerning, on the one hand, the interpretation of Commission Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional support measures for the beef market, (2) and the validity of Article 2(2) thereof, and, on the other hand, the interpretation of Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, (3) as amended and consolidated by Council Directive 96/43/EC of 26 June 1996. (4)

2. Those questions arose in the course of legal proceedings between Exportslachterij J. Gosschalk & Zoon BV (‘Gosschalk’) and the Minister van Landbouw, Natuur en Voedselkwaliteit (Netherlands Minister for Agriculture, Nature and Food Quality) concerning the legality of decisions to charge fees for tests to detect bovine spongiform encephalopathy (‘BSE’) carried out between May and December 2001 at Gosschalk’s premises.

Legislative context

Community legislation

3. Article 1(2) of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (5) provides as follows:

‘The Guarantee Section [of the European Agricultural Guidance and Guarantee Fund] shall finance:

…

(b) intervention intended to stabilise the agricultural market;

…

(d) the Community’s financial contribution towards specific veterinary measures, inspection measures in the veterinary field and programmes for the eradication and monitoring of animal diseases (veterinary measures) as well as towards plant health measures;

…’

4. Under Article 2(2) of Regulation No 1258/1999, ‘[i]ntervention intended to stabilise the agricultural markets, undertaken in accordance with Community rules within the framework of the common organisation of agricultural markets, shall be financed under Article 1(2)(b)’. Furthermore, according to Article 3(2) of that regulation, ‘[v]eterinary and plant health measures undertaken in accordance with Community rules shall be financed under Article 1(2)(d)’.

5. Article 38 of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (6) provides as follows:

‘1. When a substantial rise or fall in prices is recorded on the Community market and this situation is likely to continue, thereby disturbing or threatening to disturb the market, the necessary measures may be taken.

2. Detailed rules for the application of this Article shall be adopted by the Commission in accordance with the procedure laid down in Article 43.’

6. Article 45 of Regulation No 1254/1999 provides that Regulation No 1258/1999 and the provisions adopted in implementation thereof are to apply to products subject to the common organisation of the market in beef and veal.

7. Article 1 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (7) requires Member States to ensure that the veterinary checks to be carried out on specified products of animal origin which are intended for trade, including fresh bovine meat, are no longer carried out at frontiers but are carried out in accordance with the directive.

8. Article 9 of Directive 89/662 provides as follows:

‘1. Each Member State shall immediately notify the other Member States and the Commission of any outbreak in its territory, other than an outbreak of diseases referred to in Directive 82/894/EEC, of any zoonoses, diseases or other cause likely to constitute a serious hazard to animals or to human health.

The Member State of origin shall immediately implement the control or precautionary measures provided for in Community rules, in particular the determination of the buffer zones provided for in those rules, or adopt any other measure which it deems appropriate.

The Member State of destination or transit which, in the course of a check referred to in Article 5, has established the existence of one of the diseases or causes referred to in the first subparagraph may, if necessary, take the precautionary measures provided for in Community rules.

Pending the measures to be taken in accordance with paragraph 4, the Member State of destination may, on serious public or animal health grounds, take interim protective measures with regard to the establishments concerned or, in the case of an epizootic disease, with regard to the area of protection provided for in Community rules.

The measures taken by Member States shall be notified to the Commission and to the other Member States without delay

…

4. The Commission shall in all cases review the situation in the Standing Veterinary Committee at the earliest opportunity. It shall adopt the necessary measures for the products referred to in Article 1 and, if the situation so requires, for the originating products or products derived from those products in accordance with the procedure laid down in Article 17. The Commission shall monitor the situation and, by the same procedure, shall amend or repeal the decisions taken, depending on how the situation develops.

…’

9. Similarly, Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (8) provides, with reference to specified live animals, including those of the bovine species, and products of animal origin (other than fresh meats), for the abolition of veterinary checks at frontiers and lays down rules with which veterinary checks must comply. Article 10 of the directive sets out provisions which entirely mirror those of Article 9 of Directive 89/662.

10. Adopted on the basis of Article 9(4) of Directive 89/662 and of Article 10(4) of Directive 90/425, Commission Decision 2000/764/EC of 29 November 2000 on the testing of bovine animals for the presence of bovine spongiform encephalopathy and amending Decision 98/272/EC on epidemio‑surveillance for transmissible spongiform encephalopathies (9) approved a revised programme of tests for the diagnosis of BSE in bovine animals with a view to extending testing, which had previously been limited to certain risk groups of animals, in the first phase to all bovine animals over 30 months of age at risk and in the second phase to bovine animals over 30 months of age without clinical symptoms slaughtered for human consumption. To that end, Article 1 of Decision 2000/764 provides as follows:

‘1. Member States shall ensure that all bovine animals over 30 months of age:

– subject to “special emergency slaughtering” as defined in Article 2(n) of Council Directive 64/433/EEC, [(10) ] or

– slaughtered in accordance with Annex I, Chapter VI, point 28(c), [to] Directive 64/433/EEC

are examined by one of the approved rapid tests listed in Annex IV(A) to Decision 98/272/EC as of 1 January 2001.

…

2. Member States shall ensure that bovine animals over 30 months of age, which have died on the farm or in transport, but which have not been slaughtered for human consumption, are examined in accordance with Annex I(A) to Decision 98/272/EC as of 1 January 2001.

3. Member States shall ensure that all bovine animals over 30 months of age subject to normal slaughter for human consumption are examined by one of the approved rapid tests listed in Annex IV(A) to Decision 98/272/EC as of 1 July 2001, at the latest.

…’

11. Adopted on the basis of Article 38(2) of Regulation No 1254/1999, Regulation No 2777/2000, which, according to Article 11 thereof, was applicable from 1 January to 30 June 2001, provides, in particular, as follows:

‘ Article 2

1. Meat from bovine animals aged more than 30 months and slaughtered in the Community after 1 January 2001 can only be released for human consumption in the Community or for export to third countries if tested negatively [for BSE] by an approved rapid test as referred to in Annex IV(A) [to] Commission Decision 98/272/EC.

2. The Community shall co-finance the tests referred to in paragraph 1. The financial participation by the Community shall be at the rate of 100% of the costs (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 15 per test in respect of tests carried out on animals slaughtered before the entry into force of the obligatory testing program[me] as provided for in Article 1(3) of Decision 2000/764/EC, and in any case before 1 July 2001.

Excluded from this co-financing are tests performed on:

– animals which are referred to in Article 1(1) of Decision 2000/764/EC,

– animals which benefit from the purchase scheme as provided for in Article 3(3) of this Regulation.

Member States shall take the necessary measures to avoid any double payment from the Community budget.

Article 3

1. A Member State shall purchase, in view of its slaughter and full destruction without being subject to a test as referred to in Article 2(1), any animal aged more than 30 months offered to it by any producer or his agent.

…

4. Member States [which] can demonstrate to the satisfaction of the Commission that sufficient capacity is available for testing as referred to in Article 2(1) of the normal slaughter throughput of animals above 30 months of age may be authorised by the Commission, following the procedure for in Article 43 of Regulation (EC) No 1254/1999, to stop the application of the purchase scheme provided for in paragraph 1 unless a decision as referred to in paragraph 3 is taken.

…

Article 10

The measures taken under this Regulation shall be considered to be intervention measures within the meaning of Article 1(2) of Regulation (EC) No 1258/1999.

…’

12. In accordance with Article 3(4) of Regulation No 2777/2000, the Commission adopted Decision 2001/3/EC of 3 January 2001 providing for specific measures in the beef sector for Denmark and the Netherlands under Regulation (EC) No 2777/2000, (11) authorising the Netherlands to stop the application of the purchase scheme laid down in Article 3 of that regulation.

13. Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies, (12) applicable as of 1 July 2001, provides for a monitoring system based, in particular, on the requirement for Member States, under Article 6(1) thereof, to carry out an annual programme for monitoring BSE, in particular, in accordance with Annex III, Chapter A, thereto. That programme, which applies inter alia to bovine animals over 30 months of age slaughtered normally for human consumption, must include a screening procedure using rapid tests.

14. Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field (13) lays down the procedures governing the Community’s financial contribution, in particular towards inspection measures in the veterinary field and towards programmes for the eradication and monitoring of animal diseases. Article 24(1) of that decision provides for a Community financial measure for the eradication and monitoring of the diseases listed in an annex to the decision, including, under ‘zoonoses or epizootics not covered elsewhere’, BSE. That measure, according to Article 24(3) and (4), takes the form of a financial contribution granted in respect of each individual programme submitted to the Commission by the Member State concerned and approved by the Commission. In addition, Article 27 of Decision 90/424 provides that the Community ‘shall contribute towards improving the efficiency of veterinary inspection’ inter alia by making a financial contribution towards inspections aimed at the prevention of zoonoses. That financial contribution, according to Articles 29 and 30 of the decision, may be sought by Member States, once Community rules to control zoonoses have been introduced, in respect of each national control plan submitted to and approved by the Commission.

15. Adopted on the basis of Decision 90/424, and in particular Arti cle 24 thereof, Commission Decision 2000/773/EC of 30 November 2000 approving the programmes for the monitoring of BSE presented for 2001 by the Member States and fixing the level of the Community’s financial contribution (14) increased the Community’s financial contribution to those programmes which had originally been set by Commission Decision 2000/639/EC of 13 October 2000. (15) This was done because those programmes, which had to be submitted by 1 June 2000, could not have taken into account the requirements set out in the revised programme for the carrying-out of rapid tests for the diagnosis of BSE (‘rapid BSE tests’) adopted by the Commission on the following 6 December by Decision 2000/764. Accordingly, Article 17 of Decision 2000/773 provides that ‘[i]n addition to the measures foreseen in the programmes approved … financial participation by the Community shall also be granted for tests carried out in accordance with Article 1(3) of Decision 2000/764/EC provided that the applying Member State submits an amended programme to the Commission by 15 June 2001 at the latest’.

16. Commission Decision 2001/499/EC of 3 July 2001 amending Decisions 2000/639/EC and 2000/773/EC on the Community’s financial contribution to the Member States’ BSE monitoring programmes for 2001, (16) which was also adopted on the basis of Decision 90/424, in particular Article 24 thereof, again revised the maximum amount of the Community’s financial participation for each programme, in view of the expanded BSE monitoring programme introduced by Regulation No 999/2001.

17. Article 18 of Decision 2000/773, as replaced by Decision 2001/499, provides that ‘[t]he financial participation by the Community for the programmes approved … shall be:

– at the rate of 100% of the cost (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 30 per test for tests carried out between 1 January and 30 June 2001 on animals referred to in Article 1(1) and (2) of Commission Decision 2000/764/EC,

– …

– at the rate of 100% of the cost (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 15 per test for tests carried out between 1 July and 31 December 2001 on animals referred to in Annex III, Chapter A, Part I, points 2.2, 4.2 and 4.3, to Regulation (EC) No 999/2001’, with point 2.2 concerning ‘bovine animals over 30 months of age subject to normal slaughter for human consumption’. (17)

18. The Community’s financial contribution to the Netherlands BSE monitoring programme for the period from 1 January to 31 December 2001, as set by Decision 2001/499, amounted to a maximum of EUR 5 245 000.

19. Finally, Directive 85/73, (18) as amended and consolidated by Directive 96/43 (‘Directive 85/73’), lays down harmonised rules on the financing of veterinary inspections and checks on the animals covered by Directives 89/662 and 90/425, inter alia, in order to prevent distortions of competition resulting from differences in the fees charged by Member States.

20. Article 1 of Directive 85/73 requires Member States to ‘ensure, in accordance with the arrangements laid down in Annex A, that a Community fee is collected to cover the costs occasioned by inspections of and controls on the products listed in that Annex …’, which include fresh bovine meat as defined in Directive 64/433.

21. Directive 85/73 further provides, in particular, as follows:

‘ Article 4

1. Pending the adoption of provisions governing Community fees, Member States shall ensure the financing of inspections and controls not covered by Articles 1, 2 and 3.

2. For the purposes of paragraph 1, Member States may charge national fees in accordance with the principles adopted for Community fees.

Article 5

1. The Community fees shall be set at a level which covers the costs borne by the competent authority in respect of:

– salary costs and social-security costs involved in the inspection service,

– administrative costs incurred in carrying out controls and inspections, which may include the expenditure required for in-service training of inspectors,

for the controls and inspections referred to in Articles 1, 2 and 3.

…

3. Member States shall be authorised to charge an amount exceeding the levels of the Community fees provided that the total fees charged by each Member State do not exceed the actual cost of inspection.

4. Without prejudice to the choice of the authority empowered to charge Community fees, Community fees shall replace all other health inspection charges or fees levied by the Member States’ national, regional or local authorities for the inspections and controls referred to in Articles 1, 2 and 3 and the certification thereof.

This Directive shall not prevent Member States from charging fees for combating epizootic and enzootic diseases.’

The national legislation

22. In the Netherlands, the requirement to carry out rapid BSE tests on all bovine animals over 30 months subject to slaughter for human consumption, as laid down in Article 1(3) of Decision 2000/764, was introduced, with effect from 1 January 2001, by Article 14b(1) of the Onderzoekingsregulatief 1994 (Regulation on Testing of 1994) enacted by the Minister van Welzijn, Volksgezondheid en Cultuur (Netherlands Minister for Welfare, Health and Culture), (19) as amended by the Wijziging Onderzoekingsregulatief 1994 (Regulation amending the Regulation on Testing of 1994) enacted by the Minister van Volksgezondheid, Welzijn en Sport (Netherlands Minister for Health, Welfare and Sport) on 15 December 2000. (20) The explanatory memorandum to that regulation cites Decision 2000/764, which it is intended to transpose, and states that the Netherlands decided to bring forward to 1 January 2001 the introduction of the requirement, which the decision in question prescribes only as from 1 July 2001, to have the rapid BSE tests also carried out on bovine animals without clinical symptoms or not suspected of having the disease. The stated intention behind this early introduction was to enable the Netherlands to avoid the application of the purchase scheme for bovine animals provided for in Regulation No 2777/2000. The Netherlands Government has stated during the course of these proceedings that the legislation in question concerns only meat intended for domestic consumption.

23. Furthermore, Article 2 bis (1)(y) of the Regeling uitvoer vers vlees en vleesbereidingen 1985 (Regulation of 1985 on the Export of Fresh Meat and Meat Preparations; ‘the Export Regulation’) enacted by the Minister van Landbouw, Natuurbeheer en Visserij (Netherlands Minister for Agriculture, the Environment and Fisheries), (21) inserted by the Wijziging Regeling uitvoer vers vlees en vleesbereidingen 1985 (Regulation amending the Regulation of 1985 on the Export of Fresh Meat and Meat Preparations) enacted by the same minister on 21 December 2000, (22) imposed a ban, with effect from 1 January 2001, on the export of meat from bovine animals over 30 months which had not undergone one of the rapid BSE tests specified in Annex IV(A) to Decision 98/272 or which had tested positive. The explanatory memorandum to this second regulation cites Decision 2000/764, in particular Article 1(3) thereof, states that the purpose of the amendment of the law made by the regulation is to require that the bovine animals in question be tested at the abattoirs whose output is bound for export and notes that the Netherlands avoids the application of the aforementioned purchase scheme since it has sufficient capacity to carry out the requisite tests.

24. Under the Regeling tarieven keuring vlees en vleesprodukten 1993 (Regulation of 1993 on Fees for Inspection of Meat and Meat Products; ‘the Fees Regulation’), (23) the cost of the rapid BSE tests was, until 31 March 2001, borne entirely by the national authorities, apart from the Community’s contribution of EUR 15 per test to the cost of the test-kits and reagents. From 1 April 2001, however, under Article 3b of the Fees Regulation, as amended by interministerial regulations of 30 March 2001 (24) and of 1 November 2001, (25) a fee of NLG 70 (equivalent to EUR 31.76) per animal became payable by traders for the testing of bovine animals over 30 months of age. Then from 1 January 2002, the cost of the test, which averaged NLG 198.35 (equivalent to EUR 90) according to the Netherlands Government, was transferred in its entirety to the traders.

National proceedings and questions referred for a preliminary ruling

25. By decisions of 22 February, 8 March and 19 April 2002, the Minister van Landbouw, Natuurbeheer en Visserij charged Gosschalk a total of EUR 1 681 279.12 for rapid BSE tests carried out on cattle aged over 30 months on its premises by the Rijksdienst voor de Keuring van Vee en Vlees (National Department for the Inspection of Livestock and Meats) during the period between May and December 2001, at a unit cost of EUR 31.76 per test.

26. After being upheld on administrative appeal, those decisions were then challenged by Gosschalk in the national administrative court of competent jurisdiction which held, in substance, that the defendant minister was not entitled to pass on even a part of the cost of the rapid BSE tests by way of the imposition of a fee since Community law requires such costs to be paid for out of public funds.

27. In the course of the resulting litigation, which went through a number of stages, the Raad van State, by order lodged on 17 September 2007, deemed it necessary to refer the following questions to the Court for a preliminary ruling:

‘(1) Are the BSE tests which from 1 January 2001 were obligatory under the [Export Regulation], which served to implement Article 1(3) of Decision 2000/764/EC …, tests within the meaning of Article 2(1) of Regulation No 2777/2000 …?

(2) If so, should Article 2(1) of Regulation No 2777/2000 be seen as an intervention intended to stabilise the beef market (market support) within the meaning of Article 1(2)(b) of Regulation No 1258/1999 …, or as a specific veterinary measure within the meaning of subparagraph (d) of this provision, or both …?

(3) If it is (also) a case of market support, does it then mean, given the judgment of the Court in Case C‑239/01, [(26) ] that the tests should be financed exclusively by the Community and that therefore Article 2(2) of Regulation No 2777/2000 is invalid because of conflict with Regulation No 1254/1999 in that it provides that the Community only partially contributes to the costs of the BSE tests?

(4) If Article 2(2) of Regulation No 2777/2000 is valid, does this regulation then preclude the Member States from passing on the costs for carrying out BSE tests to the economic operators?

(5) Must the last sentence of Article 5(4) of Directive 85/73/EEC …, as amended and consolidated by Council Directive 96/43/EC, be interpreted as meaning that this directive does not preclude the Member State from passing on the costs of the BSE tests which were carried out? If so, what requirements must be met by a fee for the BSE tests which were carried out?’

Legal analysis

28. The first four questions concern Regulation No 2777/2000, which was applicable from 1 January to 30 June 2001. As the referring court itself points out, they relate only to the BSE tests carried out at Gosschalk in May and June 2001 and not to those carried out in the second half of that year. The fifth question on the other hand concerns all the BSE tests at issue in the national proceedings.

The first three questions referred

Preliminary remarks

29. As is well known, under the system of judicial cooperation established by Article 234 EC, it is for the national court trying the main proceedings to apply the relevant rules of Community law to the case at hand while the role of the Court of Justice is to rule on the interpretation or validity of those rules.

30. The first question referred by the Raad van State must therefore be construed as seeking clarification from the Court of the concept of a BSE test for the purposes of Article 2(1) of Regulation No 2777/2000 so as to enable the referring court to decide whether or not that concept includes the BSE tests carried out in May and June 2001, pursuant to the Export Regulation, on Gosschalk’s cattle aged over 30 months subject to normal slaughter.

31. By the second question referred, the Raad van State asks whether the same provision, in particular the condition it imposes that a BSE test must be carried out in order for the meat to be placed on the market, constitutes a market support measure as referred to in Article 1(2)(b) of Regulation No 1258/1999 or a specific veterinary measure within the meaning of Article 1(2)(d), or both at once.

32. By the first part of the third question, the referring court asks whether, in the event that Article 2(1) of Regulation No 2777/2000 is held to constitute (inter alia) a market support measure, the tests it prescribes must be financed exclusively by the Community.

33. The above questions seek to confirm the validity of the interpretation suggested in the order for reference whereby Article 2(1) of Regulation No 2777/2000, in so far as it makes the sale for human consumption of the meat of bovine animals over 30 months conditional on a negative result in a rapid BSE test with a view to restoring consumer confidence in beef, constitutes a market support measure on a par with the purchase scheme provided for under Article 3(1) of the said Regulation No 2777/2000, in which case the cost of carrying out the test, unlike that of veterinary measures, should be funded entirely by the Community in accordance with Regulations No 1254/1999 and No 1258/1999.

34. It is common ground, in these proceedings, and it flows from the judgment in Germany v Commission (27) referred to in the order for reference, that the financial consequences arising from market support measures undertaken in accordance with Community rules within the framework of the common organisation of agricultural markets are, under Articles 1(2)(b) and 2(2) of Regulation No 1258/1999, financed entirely by the Community, whereas in the case of veterinary and plant health measures undertaken in accordance with Community rules the Community only makes a financial contribution to the cost, in accordance with Articles 1(2)(d) and 3(2) of Regulation No 1258/1999.

35. By the second part of the third question referred, the Court is asked to rule on the validity vis-à-vis Regulation No 1254/1999 of Article 2(2) of Regulation No 2777/2000 in so far as it provides for only partial financing by the Community of the costs of BSE tests.

The measures adopted by the Community in November and December 2000

36. Community intervention to combat the spread of BSE, which had steadily expanded throughout the 1990s, was considerably stepped up at the end of 2000, with the perfecting of tests for the diagnosis of BSE and with an increased incidence in various Community countries of cases of BSE and, in terms of human disease, of a new variant of Creutzfeld-Jakob disease linked to BSE, and the ensuing collapse of consumer confidence in the safety of beef and veal. A major package of measures was adopted by the Community in November and December 2000. In what follows, I will mention only those relevant to the present case.

37. On 29 November 2000, by Decision 2000/764, a revised BSE testing programme for bovine animals was agreed as an exceptional measure. That programme, addressed to the Member States, was in two stages. The first stage involved the mandatory carrying-out, as from 1 January 2001, of rapid BSE tests on all bovine animals over 30 months of age subject to special emergency slaughtering or displaying clinical symptoms at slaughter and on a random sample of cattle not slaughtered for human consumption but having died on the farm or during transport (Article 1(1) and (2) of the decision), while the second stage extended the mandatory carrying-out of rapid BSE tests, as from 1 July 2001 at the latest, to all bovine animals over 30 months of age slaughtered normally for human consumption (Article 1(3) of the decision). (28)

38. On 30 November 2000, by Decision 2000/773, a financial contribution by the Community was provided for, both with respect to BSE tests carried out from 1 January to 31 December 2001 on animals referred to in Article 1(1) and (2) of Decision 2000/764 (Article 18 (29) ), as well as with respect to those carried out in the period between 1 July and 31 December 2001 in accordance with Article 1(3) of that decision (Articles 17 and 19 (30) ).

39. Then, on 18 December 2000, the Commission adopted Regulation No 2777/2000, recital 1 in the preamble to which notes that the Community beef market is going through a deep crisis due to BSE and to the substantial fall in beef consumption, production and producer prices. The regulation provided for ‘exceptional market support measures’ on the basis of Article 38(1) of Regulation No 1254/1999.

40. Essentially there are three measures involved: (i) a ban on the release for human consumption of bovine animals aged more than 30 months and slaughtered in the Community after 1 January 2001 which have not tested negative for BSE (Article 2(1)); (ii) withdrawal from meat production – through a purchasing scheme operated by the Member States and co-financed by the Community – and subsequent destruction of any bovine animal aged more than 30 months offered by a producer (Articles 3 and 4); (iii) co-financing by the Community of BSE testing, within the limits discussed below (Article 2(2)).

Assessment

41. It is the first of those measures that is at issue in the first question referred, by which the Court is asked to rule on the scope of the concept of a BSE test as in Article 2(1) of Regulation No 2777/2000.

42. The BSE tests mentioned in that provision are, as it expressly states, those performed ‘by an approved rapid test as referred to in Annex IV(A) [to] Commission Decision 98/272/EC’ (31) on ‘bovine animals aged more than 30 months’ slaughtered for human consumption. It is therefore a concept that covers the mandatory BSE testing required under Article 1(3) of Decision 2000/764 but also goes further, extending in particular to BSE testing carried out by the same methods and on the same animals on a voluntary basis, in other words, outside a programme of mandatory BSE testing adopted in pursuance of the decision in question.

43. On that view of the scope of the concept of BSE tests for the purposes of Article 2(1) of Regulation No 2777/2000, the referring court, when applying the legislation, should regard the BSE tests made mandatory by the Dutch regulations as from 1 January 2001 for that category of bovine animals, in pursuance of Article 1(3) of Decision 2000/764, as falling within that scope, as Gosschalk, the Netherlands Government and the Commission unanimously submitted.

44. That conclusion, however, means only that the meat of that category of bovine animals which have produced a negative result in such BSE tests in the Netherlands is not subject to the sales ban imposed by Article 2(1) of Regulation No 2777/2000. It therefore has little practical relevance for the purposes of the main proceedings, as indeed the Netherlands Government noted in its written observations.

45. By its second question, the referring court essentially seeks to clarify whether requiring a negative BSE test in accordance with Article 2(1) of Regulation No 2777/2000 as a precondition for releasing meat for human consumption constitutes a market support measure for the purposes of Article 1(2)(b) of Regulation No 1258/1999.

46. In that regard, it must be emphasised that the purpose of the measure in Article 2(1), which is addressed directly to the traders, is by no means that of imposing as from 1 January 2001 a requirement of BSE testing for the category of bovine animals covered by that provision. The measure in question is, in fact, as I have already pointed out, simply a ban on the sale of meat from bovine animals belonging to that category which have not produced a negative result in a BSE test.

47. Under Article 2(1) of Regulation No 2777/2000, a negative BSE test is simply a condition for placing meat on the market and not an obligation. Other options remained open to traders, such as offering the animal for sale under the purchase scheme established by Article 3 of the regulation or postponing slaughter of the animal until the expiry of the regulation. An obligation to carry out a BSE test on bovine animals aged more than 30 months slaughtered for human consumption had however already been provided for under Decision 2000/764, which required Member States to transpose it into their domestic law by no later than 1 July 2001. Nothing in Regulation No 2777/2000 supports an interpretation whereby that regulation made such testing mandatory for that category of bovine animals as from 1 January 2001. On the contrary, recital 3 in the preamble to Regulation No 2777/2000 states that ‘voluntary testing of animals above 30 months should be encouraged in the meantime’ thereby confirming that it was not the purpose of the regulation to introduce new testing obligations or to bring forward their introduction from the date laid down in Decision 2000/764, adopted barely 20 days previously.

48. Now the measure contained in Article 2(1) of Regulation No 2777/2000 – the ban on the sale of beef from animals of the specified category not having tested negative for BSE – was certainly intended to stabilise the beef market (see point 39 above), which clearly makes it a support measure for the purposes of Article 38(1) of Regulation No 1254/1999 . However, as it does not by its nature (being simply a prohibition) involve any expenditure, it cannot of itself be regarded as an intervention intended to stabilise an agricultural market within the meaning and for the purposes of Article 1(2)(b) of Regulation No 1258/1999 , and this is so notwithstanding the letter of Article 10 of Regulation No 2777/2000, which when it specifies that the measures it establishes ‘shall be considered to be intervention measures within the meaning of Article 1(2) of Regulation (EC) No 1258/1999’ must actually be understood as referring only to the purchase scheme provided for in Article 3 and to the Community co-financing provided for in Article 2(2). By the same token, being simply a prohibition not entailing expenditure, the measure in question cannot be regarded either as a specific veterinary measure within the meaning and for the purposes of Article 1(2)(d) of the same regulation .

49. Nor can the BSE tests contemplated by Article 2(1) of Regulation No 2777/2000 be regarded as constituting, by reason of that provision, a market support measure in themselves. Those of them that were made mandatory by Decision 2000/764 were and remained, even after the adoption of the regulation, veterinary measures within the meaning of Articles 1(2)(d) and 3(2) of Regulation No 1258/1999, for which a financial contribution from the European Agricultural Guidance and Guarantee Fund was provided for under Article 17 of Decision 2000/773.

50. It must be remembered that Decision 2000/764 was adopted on the basis of Article 9(4) of Directive 89/662 and of Article 10(4) of Directive 90/425, in other words, on the basis of Community legislation on veterinary measures, and that Decision 2000/773, adopted on the basis of Decision 90/424 concerning Community financial contributions in respect of veterinary measures, specifies in its recital 12 that ‘[p]ursuant to Article 3(2) of Regulation (EC) No 1258/1999, veterinary and plant health measures undertaken in accordance with Community rules shall be financed under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund’.

51. On the other hand, I do not think there can be any doubt but that the Community co-financing of BSE testing provided for under Article 2(2) of Regulation No 2777/2000, with the objective that ‘voluntary testing of animals above 30 months should be encouraged’ (see recital 3) in order to help restore consumer confidence in beef as quickly as possible, constitutes an intervention measure for the purposes of Articles 1(2)(b) and 2(2) of Regulation No 1258/1999.

52. But this finding too appears to be of no relevance for the purposes of the resolution of the dispute before the referring court, since, if I correctly interpret the scope of that co-financing provision, the BSE tests made mandatory by the Dutch regulations pursuant to Article 1(3) of Decision 2000/764, including those for which Gosschalk was charged fees in the present case, do not fall within it.

53. The wording of the first subparagraph of Article 2(2) of Regulation No 2777/2000 does admittedly leave room for doubt in interpreting the scope of that co-financing.

54. In particular, considered in isolation, the reference in the first sentence to ‘the tests referred to in paragraph 1’ might lead one to believe that the co‑financing provided for concerns all BSE tests carried out using one of the methods specified in Annex IV(A) to Decision 98/272, on meat from bovine animals aged more than 30 months, after 1 January 2001 (and before 1 July 2001, the date on which Regulation No 2777/2000 ceased to have effect).

55. In fact, however, on closer analysis, this appears not to be the case.

56. In the first place, it must be remembered that financial participation by the Community in BSE tests carried out in 2001 had already been put in place by Decision 2000/773, which provided both for tests carried out on animals referred to in Article 1(1) and (2) of Decision 2000/764 (see Article 18, which also specifies the amount of the Community contribution to the cost of such tests) and for tests ‘carried out in accordance with Article 1(3) of Decision 2000/764/EC’. It is difficult to believe that the Community legislature intended by Article 2(2) of Regulation No 2777/2000 to replace the financial contribution already established for BSE tests under Decision 2000/773 with a different financial contribution established under separate legislation. If that had been the case, the Community legislature would have made it explicit by abrogating the relevant provisions of Decision 2000/773. Article 2(2) of Regulation No 2777/2000 must therefore be construed less broadly than might be suggested by reading the first sentence of its first subparagraph in isolation.

57. In the second place, I would point out that the second sentence of that subparagraph actually seems intended to define and limit the scope of the Community co-financing concerned by restricting it to ‘tests carried out on animals slaughtered before the entry into force of the obligatory testing program[me] as provided for in Article 1(3) of Decision 2000/764/EC, and in any case before 1 July 2001’.

58. That limitation must be interpreted as referring to BSE tests carried out in a Member State prior to the entry into force, in that Member State, of the national rules requiring traders to carry out such tests on bovine animals aged over 30 months. (32) The ‘obligatory testing program[me]’ to which the provision refers cannot be other than the national programme, addressed to traders , giving effect, possibly even before 1 July 2001, to Article 1(3) of Decision 2000/764. The phrase cannot be construed as referring to the obligation imposed on Member States by the latter provision, since otherwise, given that that obligation takes effect on 1 July 2001, the words ‘and in any case before 1 July 2001’ would be redundant.

59. There is, admittedly, uncertainty as to the proper literal interpretation of the second sentence of the first subparagraph of Article 2(2) of Regulation No 2777/2000, the phrasing of which differs in the various language versions, particularly due to differences in punctuation. The uncertainty concerns not so much the substance as the object of the reference, by way of limitation, to ‘tests carried out on animals slaughtered before the entry into force of the obligatory testing program[me] as provided for in Article 1(3) of Decision 2000/764/EC, and in any case before 1 July 2001’.

60. In a number of language versions (French, Spanish, Greek, Danish and Swedish), that limitation would appear to refer to the maximum amount of the co‑financing, which the provision states as EUR 15 per test. This is because the reference to that maximum amount, which is preceded by a comma, is followed, without another comma, by the words of limitation.

61. In other language versions, by contrast, the limitation seems to refer to the actual financial participation by the Community, either because the reference to the maximum amount is in parenthesis set off by two commas (Italian, Dutch and Portuguese versions) or because of a different sentence structure which, by placing the maximum amount at the beginning, does not allow the words of limitation to be connected to it in any way (German version).

62. Other language versions, such as the English and Finnish, seem consistent with both interpretations, since the reference to the maximum amount is neither preceded nor followed by a comma.

63. The key to interpreting the object of that limitation clause therefore seems to me to be recital 3 in the preamble to Regulation No 2777/2000, quoted above, which makes clear that the intention behind the Community co-financing in question is that ‘voluntary testing of animals above 30 months should be encouraged’, in the light of the fact that Decision 2000/764 had made BSE testing of such animals obligatory only as from 1 July 2001 at the latest, as noted in recital 2 in the preamble to the regulation.

64. Of course, at first sight one might also think that recital 3 refers to testing which is voluntary for the Member States , in which case the co-financing in Article 2(2), like the exemption from the application of the purchase scheme provided for in Article 3(4) of Regulation No 2777/2000, would have represented an incentive for Member States to bring forward the entry into force of the obligatory testing programme provided for under Article 1(3) of Decision 2000/764 from the deadline of 1 July 2001, and would therefore concern all testing carried out on animals covered by the latter provision prior to 1 July 2001.

65. It seems to me, however, that that reading cannot be correct for the reasons given in point 58 above. Considered together, recital 3 in the preamble to and the first subparagraph of Article 2(2) of Regulation No 2777/2000 seem to me to suggest that the co-financing provided for under the latter provision was intended to encourage, and therefore covers only, BSE tests carried out on that category of animals before the date on which such testing became mandatory under the national rules implementing Article 1(3) of Decision 2000/764. (33)

66. It follows, for the purposes of the present case, that even the tests carried out at Gosschalk’s premises in May and June 2001, and not only those carried out thereafter, fall outside the category for which Regulation No 2777/2000 establishes Community co-financing. This is because those tests were carried out subsequent to the entry into force in the Netherlands, on 1 January 2001, of the regulations implementing Article 1(3) of Decision 2000/764 by requiring traders to carry out BSE testing on all bovine animals aged more than 30 months presented for slaughter.

67. If the above analysis, which I am proposing to the Court, is valid, it must follow that the provisions of Regulation No 2777/2000 are not relevant to the resolution of the dispute in the main proceedings.

68. It is therefore not necessary to consider in these proceedings whether the BSE tests referred to in Article 2(2) of that regulation should have been financed wholly and exclusively by the Community nor, accordingly, whether that provision is valid having regard to Regulations No 1254/1999 and No 1258/1999.

69. BSE tests such as those carried out at Gosschalk’s premises in May and June 2001 accordingly constitute, as argued by the Netherlands Government and by the Commission, (34) acts required by veterinary measures and not prescribed or aided by beef market support measures. They are therefore potentially eligible only for a Community financial contribution in accordance with Article 1(2)(d) of Regulation No 1258/1999.

70. The fact referred to by the Commission at the hearing that for BSE tests such as those carried out at Gosschalk’s premises in May and June 2001 a Community contribution had, ‘for purely practical reasons’ and in view of the urgency of the situation, been taken from the budget line already opened pursuant to Article 2(2) of Regulation No 2777/2000 cannot in any way alter the outcome of the foregoing legal analysis. (35)

71. I therefore propose that the Court answer the first three questions referred as follows:

BSE tests on bovine animals aged more than 30 months slaughtered for human consumption, carried out to comply with an obligation laid down by national rules implementing Article 1(3) of Decision 2000/764, fall within the meaning of BSE tests for the purposes of Article 2(1) of Regulation No 2777/2000. However, such tests are not covered by the Community co-financing established by Article 2(2) of that regulation but constitute acts prescribed by veterinary measures and potentially eligible for a Community financial contribution in accordance with Article 1(2)(d) of Regulation No 1258/1999.

The fourth question referred

72. By its fourth question, the national court seeks to know whether, assuming that Article 2(2) of Regulation No 2777/2000 is not found to be invalid as suggested in the third question, the regulation precludes Member States from passing on the costs of BSE testing to traders.

73. The national court is thus asking whether Gosschalk is correct in arguing that the very concept of Community ‘co-financing’, referred to in recital 3 in the preamble to the regulation, entails that the portion of the expenses in question not covered by such co-financing has to be financed by the Member States, which may therefore not pass it on, even in part, to traders.

74. As shown in my discussion of the first three questions referred, the provisions on Community co-financing of BSE testing contained in Regulation No 2777/2000 do not concern tests, such as those carried out at Gosschalk’s premises in May and June 2001, which were mandatory under the national rules implementing Article 1(3) of Decision 2000/764. Clearly, therefore, those provisions cannot be construed as preventing Member States from charging the costs of such testing to the individual traders.

75. The question referred by the national court could of course arise in relation to BSE tests to which Community co-financing does apply. But that does not require an answer in these proceedings since the answer would have no relevance to the dispute before the national court.

76. It must be remembered, however, that, according to the case-law, it is for the Court, when faced with questions which are not framed in an appropriate manner or which go beyond its functions under Article 234 EC, to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of Community law which require interpretation, having regard to the subject-matter of the dispute. (36) In order to provide a satisfactory answer to a national court which has referred a question to it, the Court may deem it necessary to consider provisions of Community law to which the national court has not referred in its question. (37)

77. With a view to giving a satisfactory answer to the fourth question referred by the national court, it may therefore be asked whether a prohibition on Member States charging traders the costs of BSE testing prescribed by national rules implementing Article 1(3) of Decision 2000/764 or, after 30 June 2001, Regulation No 999/2001, might not arise, by analogy with that suggested by the national court in relation to Regulation No 2777/2000, from provisions that do potentially provide for Community co-financing of those costs.

78. This requires reference to Decision 2000/773.

79. Article 17 of that decision provided that ‘financial participation by the Community shall also be granted for tests carried out in accordance with Article 1(3) of Decision 2000/764/EC’, in line with recital 8 in the preamble to the decision whereby ‘[f]inancial participation of the Community should also be foreseen for the tests carried out in accordance with the second phase of the revised testing regime’ adopted under Decision 2000/764.

80. That participation was not however specifically ordained by the original Decision 2000/773, Article 19 of which provided that the decision itself would be reviewed by 1 July 2001 ‘in order to establish the financial participation by the Community for the period 1 July to 31 December 2001 ... for tests carried out in animals referred to in Article 1(3) of Decision 2000/764/EC’.

81. That review then took the form of Decision 2001/499, adopted inter alia in view of the expanded BSE monitoring programme which had in the meantime been introduced by Regulation No 999/2001 (see recitals 4, 5 and 7 in the preamble to the decision). In particular, Article 2 of Decision 2001/499 replaced Article 18 of Decision 2000/773 (which provided for Community financial participation only for tests carried out in 2001 under Article 1(1) and (2) of Decision 2000/764) with a new provision, the third indent of which provides, in combination with point 2.2 of Annex III, Chapter A, Part I, to Regulation No 999/2001, as amended by Regulation No 1248/2001, that the Community’s financial contribution to the national BSE monitoring programmes will also cover the cost of purchase of test-kits and reagents up to a maximum of EUR 15 per test ‘for tests carried out between 1 July and 31 December 2001’ on bovine animals over 30 months of age subject to normal slaughter for human consumption.

82. It should be noted that Article 19 of Decision 2000/773, as thus amended, fixes a specific financial contribution for BSE testing on that category of bovine animals only in respect of the period between 1 July and 31 December 2001. Tests carried out on the same category of bovine animals in the first half of 2001 appear therefore not to be covered, whereas by contrast Article 17 of the same decision laid down the principle that the Community financial contribution applied in respect of all tests carried out under Article 1(3) of Decision 2000/764, irrespective of the date of testing.

83. There is therefore a discrepancy in Decision 2000/773 itself between Article 17 and Article 19 thereof as to the relevant period for the purposes of the Community’s financial contribution for tests carried out under Article 1(3) of Decision 2000/764.

84. It may well be the case that it was precisely the lack of a Commission decision specifically fixing the Community’s financial contribution for tests carried out under Article 1(3) of Decision 2000/764 before 1 July 2001 (such as those carried out at Gosschalk’s premises in May and June 2001) that was at the origin of the ‘purely practical’ solution which the Commission says it adopted by granting a contribution for such tests from the budget line already opened pursuant to Article 2(2) of Regulation No 2777/2000.

85. It is not necessary however to delve deeper into that issue since it does not concern the tests carried out at Gosschalk’s premises in the second half of 2001, which qualify in any case for a financial contribution under the third indent of Article 18 of Decision 2000/773 as amended by Decision 2001/499. What is relevant for the purposes of providing the national court with a satisfactory answer to the fourth question referred is that Decision 2000/773, firstly, unlike Regulation No 2777/2000, does not use the term ‘co-financing’, but instead the term ‘financial participation’ – for which reason Gosschalk’s argument in relation to the regulation based on the former term could not hold in relation to the decision – and, secondly, contains nothing else, in my view, to suggest that the portion of the BSE testing costs not covered by the Community’s financial participation has necessarily to be borne by the Member States, with no possibility of it being passed on, in whole or in part, to the traders. The same applies with respect to Decision 90/424, and in particular Article 24 thereof, which formed the legal basis for the adoption of Decision 2000/773.

86. The fact relied on by Gosschalk in its written observations that Article 24 of Decision 90/424 makes no mention of any discretion for Member States to impose a charge on traders clearly does not mean that that article is intended to preclude that possibility. It cannot be accepted that there is a general rule of Community law by which, unless expressly provided otherwise, the mere fact that the Community makes a financial contribution in respect of certain expenses incurred by a Member State means that the Member State is precluded from recovering the balance of those expenses, in whole or in part, from the traders concerned.

87. I therefore propose that the fourth question referred be answered as follows:

Decisions 90/424 and 2000/773 do not preclude a Member State from passing on to the traders concerned the part not covered by a Community financial contribution of the cost of BSE tests carried out by its officials pursuant to national rules implementing Article 1(3) of Decision 2000/764.

The fifth question referred

88. By its fifth question, the national court essentially seeks to know whether or not Directive 85/73, having particular regard to the second subparagraph of Article 5(4) thereof, precludes a Member State from passing on to traders the costs of BSE tests such as those carried out at Gosschalk’s premises and at issue in the main proceedings. If not, the national court seeks to know what requirements must be met by a fee to that effect imposed by the Member State.

89. In the order for reference, it is assumed that the BSE tests carried out at Gosschalk’s premises do not fall within the scope of Articles 1, 2 and 3 of Directive 85/73 and that a Community fee has not therefore been set for those tests under that directive. The national court therefore infers that a Member State may, in relation to BSE tests, opt to charge a national fee in accordance with Article 4(2) of Directive 85/73 or a fee based on other legislation, relating to combating an epizootic disease and hence removed from the scope of the directive by the second subparagraph of Article 5(4).

90. The Commission, for its part, argues that the charging of a national fee to cover the costs of BSE testing could be justified both on the basis of the second subparagraph of Article 5(4) (BSE being both an epizootic and an enzootic disease) and on that of Article 4(2) of Directive 85/73 (there having been no provision at the material time for a Community fee for such tests under Articles 1, 2 and 3 of the directive).

91. I would first of all observe that the legal parameters applicable to national fees under those two provisions are not the same. While it is expressly provided under Article 4(2) that national fees within the meaning of that provision must comply with the principles adopted for Community fees, there is greater freedom for Member States in setting a national fee for combating an epizootic or enzootic disease under the second subparagraph of Article 5(4) since Directive 85/73 lays down no specific requirement in that respect.

92. For that reason, I do not share the view of the Netherlands Government and the Commission that it is unnecessary to determine which of the two provisions applies to the fees charged to Gosschalk for the BSE tests carried out on its premises.

93. In that regard, what matters is not the legal status ascribed to the fee by the national authorities (38) but its objective characteristics and purpose.

94. Counsel for Gosschalk argued at the hearing that the fee is not within the scope of the second subparagraph of Article 5(4) of Directive 85/73 because the BSE tests concerned, carried out on prima facie healthy animals, were a measure to ‘prevent’ rather than to ‘combat’ BSE. I do not find that argument convincing as the term ‘combating’ in the second subparagraph of Article 5(4) of Directive 85/73 does not seem to refer necessarily to measures relating to diseased animals, given that it can be construed in a more general sense to include measures for the prevention of the disease.

95. It is rather my view that the phrase ‘fees for combating epizootic and enzootic diseases’ as used in that provision does not include a fee charged specifically to cover all or part of the cost of carrying out a veterinary inspection or control. Such a fee must come under the rules laid down by Directive 85/73. The purpose of that directive is to introduce harmonised rules on the financing of veterinary inspections and controls in order to avoid differences in the fees charged for them in the different Member States leading to distortions of competition between products covered by common organisations of the market and to deflections of trade (see the fifth and sixth recitals in the preamble to Directive 96/43). The practical effect of the directive would be jeopardised if Member States were permitted to charge fees which, although clearly intended to finance specific veterinary inspections and controls , were determined according to different criteria from those laid down in the harmonised rules simply on the strength of a declared connection with combating an epizootic or enzootic disease.

96. In the case at hand, it is common cause that the fee charged to Gosschalk under the Fees Regulation is calculated to cover part of the cost of the BSE testing carried out at its premises and, in general, is imposed only on the owners of the bovine animals actually tested for BSE.

97. I therefore take the view that the second subparagraph of Article 5(4) of Directive 85/73 is not relevant for the purposes of this case.

98. As to the applicability of Article 4(2) of the directive, I note that it allows Member States to charge national fees ‘[f]or the purposes of paragraph 1’ of that article, that is, to ‘ensure the financing of inspections and controls not covered by Articles 1, 2 and 3’. (39)

99. This raises the question, which is not easy to answer given the rather obscure wording of the provisions concerned, whether BSE tests such as those carried out at Gosschalk’s premises are included among the inspections or checks covered by any of those articles.

100. In the case of fresh meat from bovine animals raised in the Community, only Article 1 of Directive 85/73 is relevant, as confirmed by the Commission in its reply to the Court’s written questions.

101. According to that article, ‘Member States shall ensure, in accordance with the arrangements laid down in Annex A, that a Community fee is collected to cover the costs occasioned by inspections of and controls on the products listed in that Annex …’.

102. Annex A, Chapter I, to Directive 85/73 lays down harmonised rules on ‘[f]ees applicable to meat covered’ by a number of directives, including Directive 64/433, Article 1 of which, in the version in force in 2001, ‘lays down health rules for the production and placing on the market of fresh meat intended for human consumption from domestic animals’ of various species, including bovine animals.

103. At the hearing, counsel for Gosschalk suggested an affirmative answer to the question asked in point 99 above, arguing that the costs of carrying out the BSE tests are already covered by the Community fee fixed ‘for inspection costs relating to slaughter’ in Annex A, Chapter I, point 1, to Directive 85/73, which had already been discharged by Gosschalk. (40) Those tests, it was submitted, constituted ‘laboratory tests’ which must be carried out ‘where necessary’ as part of the post-mortem inspection, in accordance with Annex I, Chapter VIII, point 40(e), to Directive 64/433, in the version in force at the material time. Member States were therefore not entitled to impose an additional charge specifically for BSE testing.

104. The Commission, for its part, maintains that while BSE testing could, in theory, fall within the inspections or checks covered by Article 1 of Directive 85/73, (41) a Community fee within the meaning of that article had not been specifically fixed for those inspections or checks at the material time. If I interpret this argument correctly, it is that Article 4 of the directive falls to apply in such circumstances by analogy with the situation, expressly contemplated by that article, of an inspection or control not covered by Articles 1, 2 and 3.

105. I confess that I find the logic of this argument difficult to understand. If the BSE tests, which relate to slaughter, can come within the inspections and controls contemplated by Directive 64/433, then the Community fee fixed in Annex A, Chapter I, point 1(a), to Directive 85/73 should include, as Gosschalk maintains, the costs of carrying out such tests, with the result that there would be no reason and no scope to apply a separate Community fee for BSE tests.

106. In Stratmann and Fleischversorgung Neuss , (42) the Court had to consider, inter alia, whether the Community fee charged for the inspection of fresh meat under Directive 64/433 covered the costs of a bacteriological examination that had been found necessary in the case before the national court. The Court replied in the affirmative, taking the view that such an examination came within the meaning of ‘laboratory tests’ to be carried out ‘where necessary’ in accordance with Annex I, Chapter VIII, point 40(e), to Directive 64/433.

107. BSE tests were not expressly contemplated by the provisions of Directive 64/433 in force at the material time. Although they were not, as the Commission pointed out, routine checks on fresh bovine meat prior to the Commission’s adoption of Decision 2000/764, they could none the less correspond – not only to the requirement, relied upon by Gosschalk, laid down in Annex I, Chapter VIII, point 40(e), to Directive 64/433, concerning the aforesaid ‘laboratory tests’ to be carried out ‘where necessary’ as part of the post-mortem inspection – but also to the requirement laid down in Annex I, Chapter VI, point 27(a), to Directive 64/433, according to which the ante-mortem health inspection ‘must determine’, in particular, ‘whether the animals are suffering from a disease which is communicable to man and to animals’.

108. The fact that at the material time the BSE tests were mandatory, as far as non-risk cattle were concerned, only for those over 30 months of age, does not of itself appear to remove the tests from the scope of those provisions of Directive 64/433 and, accordingly, from that of the combined provisions of Article 1 of and Annex A, Chapter I, point 1(a), to Directive 85/73. As was held by the Court in Stratmann and Fleischversorgung Neuss , the Community fee in question cannot be deemed to cover only the costs of examinations that take place in every case. (43)

109. In his Opinion in that case, (44) Advocate General Léger observed, with reference to the bacteriological examinations, that, although they are not mentioned specifically in the provisions of Directive 64/433, they do however fall within the appropriate ‘laboratory tests’ intended to establish, in accordance with those provisions, that the meat examined is not unfit for human consumption or dangerous to human health and that the fact that the bacteriological examinations are costly and take place over several days does not constitute a sufficient reason for excluding them from the ‘laboratory tests’ referred to in those provisions.

110. He noted that while the harmonised system of financing veterinary inspections and controls has the consequence that part of the cost of certain examinations is borne by owners of animals which have not required such checks, it is however ‘the very essence of a fee fixed at a standard rate that a fee is imposed on owners of animals which, in certain cases, exceeds the actual cost of the inspections and controls required by their animal and, in other cases, is less than that cost’. (45)

111. Notwithstanding the points made in points 107 to 110 above, there are two reasons which lead me to the conclusion that BSE tests cannot be regarded as being included among the inspections and controls required by Directive 64/433 which, as such, are covered by the Community fee provided for by the combined provisions of Article 1 of and Annex A, Chapter I, point 1(a), to Directive 85/73.

112. In the first place, the order of magnitude of the average cost of the BSE tests – stated by the Netherlands Government as being, at the material time, EUR 90 for materials, sample taking and transport, and testing (46) – appears out of all proportion to the standard-rate Community fee in question (EUR 4.5 per adult bovine animal), being 20 times greater.

113. In the second place, despite the fact that they too are intended to establish that the meat examined is not unfit for human consumption or dangerous to human health, the BSE tests at issue in the main proceedings were carried out not case by case following an assessment by the official veterinarian responsible for the ante-mortem and post-mortem inspections of Gosschalk’s cattle, but systematically on all bovine animals over 30 months of age owned by Gosschalk. Directive 64/433 lays down a series of examinations which, as part of the post‑mortem inspection, the official veterinarian must ‘systematically carry out’ (Annex I, Chapter VIII, point 42, Part A) – including, for example, the investigation for trichinae of fresh meat from swine containing striated muscles which was taken into account, together with the bacteriological examinations, by the Court in Stratmann and Fleischversorgung Neuss – but BSE tests are not listed among those examinations. BSE tests were carried out systematically on Gosschalk’s cattle over 30 months of age in accordance with a requirement laid down in national rules implementing Decision 2000/764, that is to say, in legislation other than Directive 64/433. If a general requirement to carry out BSE tests were already provided for among the inspection and control measures harmonised by the latter directive, there would have been no need to impose it by means of Decision 2000/764.

114. The considerable cost of BSE testing by comparison with the amount of the standard-rate Community fee specified in Annex A, Chapter I, point 1(a), to Directive 85/73, and the fact that testing was systematic for a substantial proportion of the herds without there being any express provision to that effect in Directive 64/433 would appear to nullify, if the tests are regarded as among those covered by the fee, the fee’s capacity to represent a reasonable approximation of the average cost of carrying out the inspections and controls harmonised by Directive 64/433 in relation to bovine animals. This would presumably upset the balance of the basis of calculation of the amount of the fee.

115. I therefore lean towards a negative answer to the question asked in point 99 above and thus to the view that BSE tests such as those carried out at Gosschalk’s premises are not included among the inspections or checks covered by Articles 1, 2 and 3 of Directive 85/73 and consequently by a Community fee in accordance with that directive.

116. It follows that, as argued by the Commission and by the Netherlands Government, Article 4(2) of the directive is applicable in the case at hand. The Netherlands State was therefore entitled, under that provision, to prescribe a national fee payable by traders in order to finance the BSE testing required under Article 1(3) of Decision 2000/764.

117. As regards the requirements which must be met by a national fee within the meaning of Article 4(2) of Directive 85/73 – as per the second part of the fifth question referred – the provision itself states, as noted by the Commission, that such a fee must be in accordance with ‘the principles adopted for Community fees’. As the Commission points out, those principles are laid down in Article 5(1) to (3) of the directive. According to those provisions, national fees:

– must be set at a level which covers the costs borne by the competent authority in respect of salary costs and social security costs involved in the inspection service and administrative costs incurred in carrying out controls and inspections, which may include the expenditure required for in-service training of inspectors (Article 5(1));

– cannot be directly or indirectly refunded (Article 5(2));

– may exceed the levels of the Community fees provided that the total fees charged by the Member State do not exceed the actual cost of inspection (Article 5(3)).

118. Naturally, only those costs actually borne by the relevant authority may be taken into account for these purposes, which means that the financial contribution from the Community must be deducted. I note in this regard that counsel for the Netherlands Government stated at the hearing that the fee charged to Gosschalk for BSE testing was determined, under the Fees Regulation, by deducting from the actual costs of the tests the amount of the Community’s financial contribution.

119. The answer to be given to the second part of the fifth question referred would be otherwise, however, if it were to be decided, as submitted by Gosschalk and contrary to what I have suggested, that BSE testing does fall within the harmonised inspections and controls for which the standard-rate Community fee referred to in Annex A, Chapter I, point 1(a), to Directive 85/73 was set up.

120. In that case, reference would have to be made, with regard to the latitude allowed to the Member State by the directive, to Annex A, Chapter I, points 4 and 5. Point 4 permits the Member State, ‘[i]n order to cover increased costs’, either to ‘increase the standard amounts of fees as laid down in points 1 and 2(a) for individual establishments’ (point 4(a)) or to ‘charge a special fee covering actual costs’ (point 4(b)). Point 5, for its part, permits a Member State to exceptionally reduce the standard amounts in line with the real costs of inspection, where certain conditions are met.

121. With reference to point 4, in particular, the Court, in Stratmann and Fleischversorgung Neuss , (47) explained that under point 4(a), on the one hand, ‘any increase decided on by a Member State must relate to the standard amount of the Community fee itself and take the form of an increase in the standard amount’ and that under point 4(b), on the other hand, ‘a special fee exceeding the levels of the Community fees must cover the entire actual costs’.

122. On the alternative premiss outlined in point 119 above, counsel for Gosschalk was therefore correct, at the hearing, to infer from those statements by the Court that the Netherlands State was not entitled to charge the company, o n top of the Community fee already discharged by it, a specific fee intended to cover, even if only in part, the cost of the BSE tests. It was open to the Netherlands State, in order to cover those costs, only to increase ‘for individual establishments’ the standard amount of the Community fee referred to in Annex A, Chapter I, point 1(a), to Directive 85/73 or to impose, instead of that fee , a fee of a different amount such as would cover the totality of the actual costs for the harmonised inspections and controls, pursuant to Annex A, Chapter I, point 1(a), to the directive.

123. With regard to the latter option, the Court has held, in Feyrer , (48) that, while it is one which Member States may exercise ‘generally and at their own discretion’, they may do so ‘provided only that the fee does not exceed the actual costs incurred’. As Advocate General Léger pointed out in his Opinion in Stratmann and Fleischversorgung Neuss , (49) ‘compliance with that condition requires account to be taken of all the actual costs incurred by the Member State concerned in respect of the harmonised inspections and controls and therefore precludes simultaneous levying of the standard Community fee and a special fee for a particular measure’.

124. I can deal briefly, finally, with Gosschalk’s assertion, relying on the judgments in Bresciani , (50) Ligur Carni and Others (51) and Dubois and Général Cargo Services , (52) that Community law requires the costs of inspections carried out in the public interest to be met by the general public and not by the traders concerned.

125. In those judgments the Court did indeed state that:

– ‘[t]he activity of the administration of the State intended to maintain a public health inspection system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge’, as a consequence of which ‘the costs ... must be met by the general public which, as a whole, benefits from the free movement of Community goods’; (53)

– the activity of the importing Member State at the time of health checks and inspections permitted on its territory under Directive 64/433 ‘is carried out in the public interest and cannot be considered as a service rendered to the importer’, as a result of which ‘the expense occasioned by such inspections must be met by the general public which, as a whole, benefits from the free movement of Community goods’, while ‘[t]he levying of ... charges on importers ... constitutes an obstacle to that free movement which is prohibited by the Treaty’; (54)

– ‘the costs occasioned by health inspections must be met by the general public which, as a whole, benefits from the free movement of Community goods’. (55)

126. However these statements cannot be taken out of their proper context. In the judgments in question, the national rules at issue in each case were scrutinised in the light of the Treaty provisions on free movement of goods. The facts of those cases involved pecuniary charges imposed unilaterally by the importing Member State to pay for controls, in particular veterinary inspections, carried out at the border or in the municipality of transit or destination of the goods. The present case, by contrast, concerns pecuniary charges imposed in respect of veterinary inspections required of all Member States under Community legislation and which have to be carried out in the Member State of production irrespective of whether the goods in question (fresh bovine meat) are for domestic consumption or for export. The case-law cited cannot therefore be transposed to the case at hand. (56)

127. I therefore propose that the Court answer the fifth question referred as follows:

Directive 85/73 does not preclude a Member State from charging the traders concerned a national fee to cover the cost of BSE tests carried out by its officials pursuant to national rules implementing Article 1(3) of Decision 2000/764. Article 4(2) of the directive requires such fees to comply with the principles adopted for Community fees under Article 5(1) to (3) thereof and to be limited to that part of the cost which is not covered by a financial contribution from the Community.

Conclusion

128. In the light of the foregoing, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Raad van State:

(1) Tests for bovine spongiform encephalopathy (BSE) on bovine animals aged more than 30 months slaughtered for human consumption, carried out to comply with an obligation laid down by national rules implementing Article 1(3) of Commission Decision 2000/764/EC of 29 November 2000 on the testing of bovine animals for the presence of bovine spongiform encephalopathy and amending Decision 98/272/EC on epidemio-surveillance for transmissible spongiform encephalopathies, fall within the meaning of BSE tests for the purposes of Article 2(1) of Commission Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional support measures for the beef market. However, such tests are not covered by the Community co-financing established by Article 2(2) of that regulation but constitute acts prescribed by veterinary measures and potentially eligible for a Community financial contribution in accordance with Article 1(2)(d) of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy.

(2) Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field and Commission Decision 2000/773/EC of 30 November 2000 approving the programmes for the monitoring of BSE presented for 2001 by the Member States and fixing the level of the Community’s financial contribution do not preclude a Member State from passing on to the traders concerned the part not covered by a Community financial contribution of the cost of BSE tests carried out by its officials pursuant to national rules implementing Article 1(3) of Decision 2000/764.

(3) Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, as amended and consolidated by Council Directive 96/43/EC of 26 June 1996, does not preclude a Member State from charging the traders concerned a national fee to cover the cost of BSE tests carried out by its officials pursuant to national rules implementing Article 1(3) of Decision 2000/764. Article 4(2) of that directive requires such fees to comply with the principles adopted for Community fees under Article 5(1) to (3) thereof and to be limited to that part of the cost which is not covered by a financial contribution from the Community.

(1) .

(2) – OJ 2000 L 321, p. 47.

(3) – OJ 1985 L 32, p. 14.

(4) – Directive amending and consolidating Directive 85/73/EEC in order to ensure financing of veterinary inspections and controls on live animals and certain animal products and amending Directives 90/675/EEC and 91/496/EEC (OJ 1996 L 162, p. 1).

(5) – OJ 1999 L 160, p. 103.

(6) – OJ 1999 L 160, p. 21. This regulation was repealed, with effect as of 1 July 2008, by Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

(7) _ OJ 1989 L 395, p. 13.

(8) OJ 1990 L 224, p. 29.

(9) – OJ 2000 L 305, p. 35. That decision – amended by Commission Decision 2001/8/EC of 29 December 2000 amending Decision 2000/764/EC on the testing of bovine animals for the presence of bovine spongiform encephalopathy and updating Annex IV to Decision 98/272/EC on epidemio-surveillance for transmissible spongiform encephalopathies (OJ 2001 L 2, p. 28) – was repealed, effective as of 1 July 2001, by Commission Regulation (EC) No 1248/2001 of 22 June 2001 amending Annexes III, X and XI to Regulation (EC) No 999/2001 of the European Parliament and of the Council as regards epidemio-surveillance and testing of transmissible spongiform encephalopathies (OJ 2001 L 173, p. 12).

(10) – Council directive of 26 June 1964 on health conditions for the production and marketing of fresh meat (OJ, English Special Edition 1963-1964, p. 185 ), amended several times then codified by Council Directive 91/497/EEC of 29 July 1991 (OJ 1991 L 268, p. 69). Directive 64/433, after further amendments, was repealed as from 1 January 2006 by Directive 2004/41/EC of the European Parliament and of the Council of 21 April 2004 repealing certain directives concerning food hygiene and health conditions for the production and placing on the market of certain products of animal origin intended for human consumption and amending Council Directives 89/662/EEC and 92/118/EEC and Council Decision 95/408/EC (OJ 2004 L 157, p. 33).

(11) – OJ 2001 L 1, p. 23.

(12) – OJ 2001 L 147, p. 1.

(13) – OJ 1990 L 224, p. 19.

(14) – OJ 2000 L 308, p. 35.

(15) – OJ 2000 L 269, p. 54.

(16) – OJ 2001 L 181, p. 36.

(17) – See Regulation No 1248/2001.

(18) – Directive 85/73 was repealed, effective as of 1 January 2008, by 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 (OJ 2004 L 165, p. 1).

(19) – Nederlandse Staatscourant 1994, No 10.

(20) – Nederlandse Staatscourant 2000, No 247, p. 39.

(21) – Nederlandse Staatscourant 1984, No 252.

(22) – Nederlandse Staatscourant 2000, No 249, p. 45.

(23) – Nederlandse Staatscourant 1993, No 99. According to the Netherlands Government, that regulation was repealed on 24 December 2005.

(24) – Nederlandse Staatscourant 2001, No 64, p. 31.

(25) – Nederlandse Staatscourant 2001, No 212, p. 16.

(26) – Germany v Commission [2003] ECR I‑10333.

(27) – Cited in the preceding footnote.

(28) – As the Commission observes, the later deadline of 1 July 2001 was set because at 1 January 2001 the Member States generally did not yet have the capacity to carry out rapid BSE tests on all bovine animals in the category specified by Article 1(3) of Decision 2000/764.

(29) – That article specifies that the contribution ‘shall be at the rate of 100% of the cost (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 30 per test’.

(30) – The amount of the contribution to be granted for those tests was however left to be determined by a subsequent decision to be taken by 1 July 2001. This was done by Decision 2001/499 which amended Article 18 of Decision 2000/773 to provide for a contribution of 100% of the cost (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 15 per test.

(31) – Annex IV(A) to Decision 98/272, as amended by Decision 2001/8, specifies the following three test methods: (i) ‘Immunoblotting test based on a western blotting procedure for the detection of the protease-resistant fragment PrP Res (prionics check test)’; (ii) ‘Chemiluminescent ELISA involving an extraction procedure and an ELISA technique, using an enhanced chemiluminescent reagent (Enfer test)’; (iii) ‘Sandwich immunoassay for PrP Res carried out following denaturation and concentration steps (Bio-Rad)’.

(32) – I believe we can disregard the fact that the provision refers not to tests carried out before a certain date but to tests carried out ‘on animals slaughtered’ before a certain date. It is evident from recital 2 in the preamble to Regulation No 2777/2000 that BSE testing is normally carried out ‘at slaughter’.

(33) – The words ‘and in any case before 1 July 2001’ at the end of the first subparagraph of Article 2(2) of Regulation No 2777/2000 are intended to exclude from the co-financing in question tests carried out before the introduction at national level of the obligatory testing programme provided for in Article 1(3) of Decision 2000/764 in the case of a Member State having failed to implement the provision by the deadline of 1 July 2001.

(34) – The Netherlands Government and the Commission arrive at that conclusion by lines of reasoning somewhat different from mine. According to the Commission, in particular, the Community co-financing referred to in Article 2(2) of Regulation No 2777/2000 did not apply to the Netherlands as that Member State had been given exemption under Decision 2001/3, for having introduced as of 1 January 2001 the requirement of BSE testing on the animals referred to in Article 1(3) of Decision 2000/764, from the application of the purchase scheme referred to in Article 3 of the regulation, leaving no room therefore for the application of Article 2(2) thereof, which constitutes, in the Commission’s submission, an exception to that scheme.

(35) – Counsel for the Commission observed at the hearing that this fact has no bearing on the legal nature to be attributed to the BSE tests in question, which, in his opinion, were veterinary measures that could have been financed by the Community in other ways, for example on the basis of Decision 90/424.

(36) – See, of the many cases in point, Case 35/85 Tissier [1986] ECR 1207, paragraph 9, and Case C‑107/98 Teckal [1999] ECR I‑8121, paragraph 34.

(37) – Tissier , paragraph 9; Case C-315/92 Verband Sozialer Wettbewerb [1994] ECR I‑317, paragraph 7; and Joined Cases C-228/01 and C-289/01 Bourrasse and Perchicot [2002] ECR I‑10213, paragraph 33.

(38) – The Netherlands Government, in paragraph 53 of its written observations, stated that the fee in question ‘is based (in particular) on Article 5(4) of Directive 85/73’.

(39) – My emphasis.

(40) – Point 1 of Chapter I provides for collection by Member States of the following standard amounts ‘for inspection costs relating to slaughter’ of bovine animals: EUR 4.5 per adult bovine animal and EUR 2.5 per young bovine animal.

(41) – See the Commission’s written observations, paragraph 47.

(42) – Joined Cases C-284/00 and C-288/00 [2002] ECR I‑4611.

(43) – Stratmann and Fleischversorgung Neuss , paragraph 50.

(44) – Opinion delivered on 21 March 2002, point 39.

(45) – Ibidem , point 58.

(46) – Written observations of the Netherlands Government, paragraph 30.

(47) – Paragraph 56.

(48) – Case C-374/97 [1999] ECR I-5153, paragraph 27.

(49) – Point 62.

(50) – Case 87/75 [1976] ECR 129.

(51) – Joined Cases C-277/91, C-318/91 and C-319/91 [1993] ECR I‑6621.

(52) – Case C-16/94 [1995] ECR I‑2421.

(53) – Bresciani , paragraph 10.

(54) – Ligur Carni and Others , paragraph 31.

(55) – Dubois and Général Cargo Services , paragraph 14.

(56) – For a partly similar line of reasoning, see Case C-27/95 Bakers of Nailsea [1997] ECR I‑1847, paragraphs 44 to 46, and the Opinion of Advocate General La Pergola in the same case (footnote 6 to point 8).