OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 2 MAY 1978

My Lords,

These two cases, which come to the Court by way of references for preliminary rulings by the Bundesverwaltungsgericht, belong to the same area of Community law as Case 70/77 Simmenthal S.p.A. v Amministrazione delle Finanze dello Stato, in which I delivered an Opinion on 21 February 1978 but in which Your Lordships have deferred delivering Judgment, in order, so I understand, to be able to consider the three cases together. The area in question is that concerning the lawfulness of charges imposed by Member States for veterinary and public health inspections of meat imported from third countries and, more particularly, the impact, in that respect, of Council Directive No 72/462/EEC of 12 December 1972 (Official Journal L 302 of 31 December 1972). The precise questions raised by these cases are however different from those raised in Case 70/77.

In Case 137/77 the Appellant before the Bundesverwaltungsgericht is the City of Frankfurt-am-Main. The Respondent is a firm, which I shall call for short the Firma Max Neumann, which, early in 1975, imported game — venison and wild boar — killed in third countries into the Federal Republic of Germany.

In Case 138/77 the Appellant is the Firma Hermann Ludwig which was responsible for the importation into the Federal Republic, in 1974, of a consignment of tins of beef goulash from Hungary. The Respondent there is the City of Hamburg.

In each case the imported meat was inspected on behalf of the City authorities and charges were made for such inspection in accordance with the relevant German legislation. In each case the importer appealed to the local Verwaltungsgericht against the imposition of the charges, contending that they were incompatible with Community law.

In the first case the Verwaltungsgericht of Frankfurt gave effect to the importer's contention. In the second case the Verwaltungsgericht of Hamburg rejected it, on the grounds that Directive No 72/462/EEC, which in terms applies only to importations of live ‘domestic bovine animals and swine’ and of fresh and frozen meat of those and certain other domestic animals, should be extended by analogy to importations of tinned meat, and that it authorized the imposition of charges for the inspection of meat imported from third countries.

In each case an appeal was, by leave, taken straight to the Bundesverwaltungsgericht (by way of ‘Sprungrevision’).

The Bundesverwaltungsgericht makes it clear in its Orders for Reference that its own view accords with that of the Verwaltungsgericht of Frankfurt but that, having regard to the contrary view of the Verwaltungsgericht Hamburg, it has felt bound to hold that there was enough doubt about the matter to warrant reference to this Court.

In both cases the Bundesverwaltungsgericht asks this Court to rule on the question whether the provisions of Directive No 72/462/EEC relating to inspections (i.e. Article 12 (1), (7) and (8), and Articles 23, 24 and 26) are applicable by analogy, ‘with the result that the Member States are entitled or obliged to carry out health inspections and may impose charges for such inspections’.

In Case 137/77 the Bundesverwaltungsgericht asks a second question, namely whether, after the introduction of the Common Customs Tariff by Council Regulation (EEC) No 950/68 of 28 June 1968, national charges may still be increased to the extent of the general rise in costs.

The reason for that second question is that, before the Bundesverwaltungsgericht, Case 137/77 was argued on the footing that the game there in question was not among the products listed in Annex II to the EEC Treaty and that there was no express provision of Community law forbidding the imposition by Member States of charges having an effect equivalent to customs duties on imports of such game from third countries. The Bundesverwaltungsgericht thus assumed that the relevant principles of Community law were those laid down by this Court in Cases 37 & 38/73 Diamantarbeiders v Indiamex [1973] II ECR 1609 where it was held that, in the absence of such a prohibition, Member States were precluded, after the establishment of the Common Customs Tariff, from unilaterally introducing new charges on goods imponed from third countries or raising the level of those in existence at that time, but entitled to continue to collect the latter at their existing level. The German legislation as it stood at the time of the introduction of the Common Customs Tariff (1 July 1968) did not prescribe for imported venison any inspection for which a charge might be levied, but the position was otherwise in the case of wild boar meat. However, the amount claimed by the City of Frankfurt from the Firma Max Neumann for the inspection of the wild boar meat that it had imponed (DM 47.45) substantially exceeded the amount that would have been chargeable at the end of June 1968 (DM 27.20). The City of Frankfurt contends that the increase is no more than is necessary to take account of the general rise in costs.

Before this Court, however, the Commission pointed out that in fact venison and wild boar meat are both within Chapter 2 of what used to be called ‘the Brussels Nomenclature’ and respectively within Heading 02.04B and Heading 02.01 III (b) of the Common Customs Tariff. They are thus among the products listed in Annex II to the Treaty and within the (somewhat rudimentary) ‘common organization of the market in certain products listed in Annex II to the Treaty’ established by Council Regulation (EEC) No 827/68 of 28 June 1968. Article 2 (2) of that Regulation prohibits the levying of any charge having equivalent effect to a customs duty in trade with third countries. That prohibition is expressed to be subject to certain derogations, but none of them is relevant here, at all events unless the provisions of Directive No 72/462/EEC referred to in the Bundesverwaltungsgericht's first question are applicable.

In the case of the goulash with which Case 138/77 is concerned, the prohibition against the levying of charges having equivalent effect to customs duties on imports from third countries is contained in Article 20 (2) of Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal.

The true position is thus that in both cases there is an express prohibition of the imposition by Member States of charges having equivalent effect to customs duties on imports of the products in question from third countries.

Arguments were advanced before us on the question whether the charges sought to be exacted from the Firma Max Neumann and the Firma Hermann Ludwig by the City of Frankfurt and the City of Hamburg respectively were charges having equivalent effect to customs duties. It would not however be appropriate for me to discuss that question. The Bundesverwaltungsgericht is satisfied that the answer to it is in the affirmative and does not seek any guidance from this Court on it. Moreover, the reasoning of the Bundesverwaltungsgericht on the question seems to me to be in accord with the relevant law as laid down by this Court, which I summarized in my Opinion in Case 70/77.

So I turn to the first question raised by the Bundesverwaltungsgericht in Case 137/77 and the only question raised by it in Case 138/77, i.e. to the question whether the provisions about inspections contained in Directive No ,72/462/EEC are applicable by analogy to game and to tinned beef.

In my opinion the answer to that question is in the negative.

Before stating the reasons that have led me to that conclusion I should perhaps say this. The cases were argued on behalf of the City of Frankfurt and of the City of Hamburg on the footing that, if the answer was in the affirmative, the provisions of the Directive authorized the imposition of the charges here in question, by way of derogation from the prohibitions contained in Article 2 (2) of Regulation No 827/68 and Article 20 (2) of Regulation No 805/68. I do not think it by any means clear that that is so.

In the first place, as I pointed out in my Opinion in Case 70/77, the provisions of the Directive about ‘expenditure incurred’ in the application of the Articles prescribing inspections (i.e. Article 12 (8), Article 23 (4) and Article 26) can only relate to expenditure incurred in connexion with inspections carried out pursuant to the Directive. We were told in Case 70/77, and the Commission, at the Court's request, went into more detail about it in the present case, that, save as regards inspections under Article 23 of meat in transit through the Community from one third country to another, there remained a number of measures to be taken at Community level before the Directive could be implemented. It thus appears that Member States are not yet in a position to give effect to the Directive as regards imports from third countries even of products to which the Directive expressly applies.

Secondly, and this point too was touched upon in argument both in Case 70/77 and in the present cases, the wording of the provisions of the Directive about ‘expenditure incurred’ is ambiguous. It may be that those provisions, on their true interpretation, do not authorize Member States to impose charges for inspections but merely exclude any reimbursement by Member States of expenditure incurred by consignors or importers or their agents in connexion with them. It is after all (contrary to an assumption that seemed to underlie some of the submissions made on behalf of the City of Frankfurt and of the City of Hamburg) not a law of nature that the cost of such inspections must be borne by the consignor or importer and cannot be met out of public funds. The Commission, at the Court's request, produced a table showing the position in that respect under the laws of the different Member States. This shows that in Belgium, France and Luxembourg no charges are made for veterinary inspections of live animals, whilst in Denmark the only charges made in the case of imports of meat are in respect of the cost of laboratory tests.

The Bundesverwaltungsgericht, having regard to an argument put forward on behalf of the Firma Max Neumann and the Firma Hermann Ludwig, raised the question whether, if the Directive had the effect contended for by the City of Frankfurt and the City of Hamburg, it was compatible with the Treaty, inasmuch as it could result in the level of charges on imports from third countries differing from Member Sute to Member Sute. On the view I take it is not necessary to answer that question and I think it better to leave it aside.

So I come to the reasons why in my opinion, whatever the effect of the Directive may be in the case of products of the kinds to which it expressly applies, its application cannot be extended by analogy to other products.

The application of legislative provisions by analogy is not of course a process that is permissible in the legal systems of all the Member States. Nor was there, at the hearing of these cases, any consensus between Counsel as to the circumstances in which the process may be resorted to where it is, in principle, permissible. Happily, there are authorities in this Court as to when the process may be resorted to in relation to Community legislation.

Those authorities appear to me to establish a general rule and an exception. The general rule is that the application of a provision of Community legislation may not be extended to a case that is outside the express scope of that provision (see Case 21/64 Macchiorlati v High Authority [1965] 1 ECR 175, at pp. 190-191 (Rec. 1965 (I) p. 227, at p. 248) and Case 48/70 Bernardi v European Parliament [1971] 1 ECR 175, paras. 11 and 12 of the Judgment). The exception is that, where legislation contains an obvious lacuna, which must needs be filled, resort may be had to an analogy in order to fill it (see Cases 15/64 and 60/65 Moreau v Commission [1966] ECR 459, at p. 468 (Rec. 1966 p. 663, at p. 675), Case 31/71 Gigante v Commission [1973] 2 ECR 1353, paras. 9 to 11 of the Judgment, and Case 64/74 Reich v HZA Landau [1975] ECR 261, para. 3 of the Judgment).

The scope of Directive No 72/462/EEC is defined by Article 1, paragraph 1 of which is in these terms:

‘This Directive shall apply to imports from third countries of:

— domestic bovine animals and swine for breeding, production or slaughter;

— fresh meat of domestic animals of the following species: bovine animals, swine, sheep and goats and solipeds.’

Paragraph 2 lists a number of exceptions.

Article 2 (o) defines ‘fresh meat’ as follows:

‘fresh meat' means meat which has not undergone any preserving process; however, chilled and frozen meat shall be considered to be fresh.’

In the face of those provisions, the circumstance that the Directive does not apply to game or to tinned beef cannot, in my opinion, be regarded as constituting a lacuna that may be filled by judicial decision. It does not arise from anything in the nature of an oversight on the part of the Council, but from its deliberate intention to exclude any application of the Directive to those products. It is true that in the result there is, as yet, no Community legislation governing health inspections of game or of preserved meat. But that flows from the fan that the harmonization pursuant to Community legislation of the different legislations of Member States on such matters is a step by step process, necessitated, as the Commission pointed out, by their technical complexity. It is the same complexity that makes it unsuitable to apply to game and to meat that has undergone a preserving process provisions designed for live domestic animals and for their fresh and frozen meat. Nor do I think negligible the point made on behalf of the Firma Max Neumann and the Firma Hermann Ludwig, and also on behalf of the Commission, that, if the Directive were to be held applicable to game and to tinned meat, Member States who had not taken the steps necessary to apply it to those products would be amenable in that respect to proceedings under Article 169 of the Treaty.

In the result I am of the opinion that, in answer to the questions referred to the Court by the Bundesverwaltungsgericht, Your Lordships should rule as follows:

In Case 137/77

(1) None of the provisions of Council Directive No 72/462/EEC of 12 December 1972 is applicable to the importation of game.

(2) Article 2 (2) of Council Regulation (EEC) No 827/68 of 28 June 1968 prohibits the levying of any charge having effect equivalent to a customs duty on the importation from third countries of products to which that Regulation applies.

In Case 138/77

None of the provisions of Council Directive No 72/462/EEC of 12 December 1972 is applicable to the importation of meat that has undergone any preserving process, other than chilling or freezing.