Case C-430/07

Exportslachterij J. Gosschalk & Zoon BV

v

Minister van Landbouw, Natuur en Voedselkwaliteit

(Reference for a preliminary ruling from the Raad van State)

(Decision 2000/764/EC – Testing and epidemio-surveillance of bovine spongiform encephalopathy – Regulation (EC) No 2777/2000 – Market support measures – Veterinary measures – Community contribution to the financing of part of the costs of the tests – Directive 85/73/EEC – Whether possible for the Member States to finance the part of the costs not covered by the Community by charging national fees for the inspection of meat and fees for combating epizootic diseases)

Summary of the Judgment

1. Agriculture – Approximation of laws on animal health – Veterinary and zootechnical checks in intra-Community trade in live animals and animal products – Protection measures against bovine spongiform encephalopathy

(Commission Regulation No 2777/2000, as amended by Regulation No 111/2001, Arts 2(1) and 3(4); Commission Decision No 2000/764, Art. 1(3))

2. Agriculture – Approximation of laws on animal health – Veterinary and zootechnical checks in intra-Community trade in live animals and animal products – Protection measures against bovine spongiform encephalopathy

(Council Regulation No 1258/1999, Arts 1(2)(d) and 3(2); Commission Regulation No 2777/2000, as amended by Regulation No 111/2001, Art. 2(1))

3. Agriculture – Approximation of laws on animal health – Financing of health inspections and controls of fresh meat – Directive 85/73

(Commission Regulation No 2777/2000, as amended by Regulation No 111/2001, Art. 2(2); Council Directive 85/73, as amended and consolidated by Directive 96/43, Arts 4 and 5(4), second para.)

1. Article 2(1) of Regulation No 2777/2000 adopting exceptional support measures for the beef market, as amended by Regulation No 111/2001, must be interpreted as covering the obligatory tests for bovine spongiform encephalopathy carried out in a Member State in May and June 2001 on all meat from bovine animals aged more than 30 months slaughtered for human consumption.

In order to determine whether such tests are tests within the meaning of Article 2(1) of Regulation No 2777/2000, it does not matter whether the obligation to carry out those tests was imposed by a national legislature which decided to bring forward the application of Article 1(3) of Decision 2000/764 on the testing of bovine animals for the presence of bovine spongiform encephalopathy and updating Annex IV of Decision 98/272, the Member State concerned having been authorised to stop the application of the special purchase scheme under Article 3(4) of Regulation No 2777/2000, or whether the source of that obligation was Article 2(1) of that regulation, applied in a Member State which, not having sufficient capacity to subject all the animals to a test, also applied that purchase scheme, since only meat which produced a negative result in one of the three tests could be authorised for consumption and since all three tests were technically identical.

(see paras 42-43, operative part 1)

2. Article 2(1) of Regulation No 2777/2000 adopting exceptional support measures for the beef market, as amended by Regulation No 111/2001, must be interpreted as meaning that the prohibition on marketing meat from bovine animals aged more than 30 months which did not produce a negative result in the bovine spongiform encephalopathy test which it imposed with effect from 1 January 2001, constitutes a veterinary measure, within the meaning of Article 1(2)(d) of Council Regulation No 1258/1999 on the financing of the common agricultural policy, which forms part of the programmes of eradication and monitoring of bovine spongiform encephalopathy.

With regard to a veterinary measure, Community financing is granted, pursuant to Article 3(2) of Regulation No 1258/1999 on the financing of the common agricultural policy, on the basis of Article 1(2)(d) of that regulation.

(see paras 60, 62, operative part 2)

3. Article 2(2) of Regulation No 2777/2000 adopting exceptional support measures for the beef market, as amended by Regulation No 111/2001, and Article 4 and Article 5(4), second subparagraph, of Directive 85/73 on the financing of veterinary inspections and controls covered by Directives 89/662, 90/425, 90/675 and 91/496, as amended and consolidated by Directive 96/43, must be interpreted as not precluding Member States from charging national fees intended to finance the cost of testing for bovine spongiform encephalopathy. The total amount of the fees concerning the slaughter procedures for bovine animals intended for human consumption must be set in accordance with the principles adopted for Community fees, according to which that amount may not exceed the costs incurred, which cover salary and social-security costs and the administrative costs of carrying out those tests and any direct or indirect refund of such fees is prohibited.

(see para. 81, operative part 3)

JUDGMENT OF THE COURT (Third Chamber)

25 June 2009 ( )

(Decision 2000/764/EC – Testing and epidemio-surveillance of bovine spongiform encephalopathy – Regulation (EC) No 2777/2000 – Market support measures – Veterinary measures – Community contribution to the financing of part of the costs of the tests – Directive 85/73/EEC – Whether possible for the Member States to finance the part of the costs not covered by the Community by charging national fees for the inspection of meat and fees for combating epizootic diseases)

In Case C‑430/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Raad van State (Netherlands), made by decision of 12 September 2007, received at the Court on 17 September 2007, in the proceedings

Exportslachterij J. Gosschalk & Zoon BV

v

Minister van Landbouw, Natuur en Voedselkwaliteit,

THE COURT (Third Chamber),

composed of A. Rosas, President of Chamber, J.N. Cunha Rodrigues, J. Klučka, U. Lõhmus (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: P. Mengozzi,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure,

further to the hearing on 11 September 2008,

after considering the observations submitted on behalf of:

– Exportslachterij J. Gosschalk & Zoon BV, by K. Defares and S.M. Goossens, advocaten,

– the Netherlands Government, by C.M. Wissels, D.J.M. de Grave and M. de Mol, acting as Agents,

– the Commission of the European Communities, by F. Erlbacher and M. van Heezik, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 November 2008,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 2 of Commission Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional support measures for the beef market (OJ 2000 L 321, p. 47), as amended by Commission Regulation (EC) No 111/2001 of 19 January 2001 (OJ 2001 L 19, p. 11) (‘Regulation No 2777/2000’), the validity of Article 2(2) of Regulation No 2777/2000, and the interpretation of the second subparagraph of Article 5(4) of Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC (OJ L 32, p. 14), as amended and consolidated by Council Directive 96/43/EC of 26 June 1996 (OJ 1996 L 162, p. 1) (‘Directive 85/73’).

2 The reference was made in legal proceedings between Exportslachterij J. Gosschalk & Zoon BV (‘Gosschalk’) and the Minister van Landbouw, Natuur en Voedselkwaliteit (Netherlands Ministry of Agriculture, Nature and Food Quality), with regard to the financing of testing for bovine spongiform encephalopathy (‘BSE’) carried out between May and December 2001 on bovine animals over 30 months of age on Gosschalk’s farm.

Legal framework

Community legislation

3 Chapter VI of Annex I to Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (OJ, English Special Edition 1963-1964, p. 185), as amended by Council Directive 95/23/EC of 22 June 1995 (OJ 1995 L 243, p. 7) (‘Directive 64/433’) provides, with regard to the ‘ante mortem’ inspection:

‘...

27. The inspection must determine:

a) whether the animals are suffering from a disease which is communicable to man and to animals or whether they show symptoms or are in a general condition such as to indicate that such a disease may occur;

...’

4 Article 1 of Directive 85/73 provides:

‘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, including those aimed at ensuring animal production in slaughterhouses, in accordance with the requirements of Directive 93/119/EEC.’

5 Article 4 of Directive 85/73 provides:

‘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.’

6 Article 5 of Directive 85/73 provides:

‘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.

2. No direct or indirect refund of the fees provided for in this Directive shall be permitted. However the possible application by a Member State of the standard average provided for in Annexes A, B and C shall not be considered an indirect refund in the assessment of individual cases.

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. ...

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

7 Under Chapter 1 of Annex A of Directive 85/73, which relates to the fees applicable to meat covered by Directives 64/433/EEC, 71/118/EEC, 91/495/EEC and 92/45/EEC:

‘The fee referred to in Article 1 is fixed in accordance with Article 5 (1), as follows:

1. Without prejudice to points 4 and 5, Member States will collect for inspection costs relating to slaughter:

(a) beef and veal:

– adult bovine animals: [EUR] 4.5 per animal,

– young bovine animals: [EUR] 2.5 per animal;

...’

8 Commission Decision 98/272/EC of 23 April 1998 on epidemio-surveillance for transmissible spongiform encephalopathies and amending Decision 94/474/EC (OJ 1998 L 122, p. 59) required Member States inter alia to carry out an annual programme of monitoring in accordance with the conditions laid down in its Annex, intended to warn of new cases of sick animals.

9 Decision 98/272, as amended by Commission Decision 2000/374/EC of 5 June 2000 (OJ 2000 L 135, p. 27) contains, in its Annex IV A, the three tests found to have an excellent sensitivity and an excellent specificity for the detection of transmissible spongiform encephalopathy in animals in the clinical stage of the disease.

10 According to that Annex, the agreed detection methods are as follows:

‘1. Immunoblotting test based on a Western blotting procedure for the detection of the protease-resistant fragment PrPRes (Prionics check test).

2. Chemiluminescent ELISA involving an extraction procedure and an ELISA technique, using an enhanced chemiluminescent reagent (Enfer test).

3. Sandwich immunoassay for PrPRes carried out following denaturation and concentration steps (CEA test).’

11 Under 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 of Decision 98/272 (OJ 2001 L 2, p. 28 (Corrigendum Journal Officiel 2001 L 31, p. 23, not applicable to the English version)), applicable from 1 January 2001, the CEA test in point 3 of Annex IV A to Decision 98/272 is designated ‘Bio-Rad’ and, in the French version, that Annex IV ‘A’ became Annex IV ‘bis’.

12 Article 38 of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21), provides:

‘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.’

13 Article 1 of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103), states:

‘…

2. 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;

…’

14 Under Article 3 of Regulation No 1258/1999:

‘...

2. Veterinary and plant health measures undertaken in accordance with Community rules shall be financed under Article 1(2)(d).

...’

15 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 (OJ 2000 L 305, p. 35), as amended by Commission Decision 2001/8, provides in Article 1:

‘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 ..., or

– slaughtered in accordance with Annex I, Chapter VI, point 28(c) of Directive 64/433

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

The provisions of this paragraph shall also apply to animals, as referred to in the first subparagraph, which are purchased for destruction in accordance with Regulation … No 2777/2000.

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 … 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.

...’

16 Decision 2000/764 was repealed, as from 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).

17 Article 12 of 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 (OJ 2000 L 308, p. 35), approved the programme presented by the Kingdom of the Netherlands and fixed the financial participation of the Community at a maximum of EUR 1 260 000 for that Member State.

18 Article 17 of Decision 2000/773 provides:

‘In addition to the measures foreseen in the programmes approved in Articles 2 to 16, financial participation by the Community shall also be granted for tests carried out in accordance with Article 1(3) of Decision 2000/764 …, provided that the applying Member State submits an amended programme to the Commission by 15 June 2001 at the latest.’

19 Article 18 of Decision 2000/773 provides:

‘The financial participation by the Community for the programmes approved in Articles 2 to 16 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 31 December 2001 in animals referred to in Article 1(1) and (2) of Decision 2000/764 …’

20 The first three recitals of the preamble to Regulation No 2777/2000 state:

‘(1) The Community beef market is currently going through a deep crisis due to a lack of consumer confidence in beef created by the appearance of new cases of bovine spongiform encephalopathy (BSE). Consumption as well as production has recently fallen to unprecedented levels followed by substantial reduction of producer prices … In such circumstances, Article 38(1) of Regulation … No 1254/1999 provides for exceptional market support measures to be taken with a view to re-balancing the market. One of those measures should be a scheme whereby animals which otherwise would produce heavy surpluses on the market are withdrawn from meat production through a purchasing scheme with subsequent destruction of the animals.

(2) Decision 2000/764 … lays down specific rules for testing for BSE of animals above 30 months and in particular the approved methods for such testing. In accordance with that Decision, at the latest from 1 July 2001 all animals above 30 months subject to normal slaughter for human consumption must be tested for BSE. Until then, it is appropriate to concentrate the withdrawal of animals from the market as referred to above to animals of that age which at slaughter are not tested for BSE and only allow for human consumption in the Community and in third countries meat from animals which have been tested negatively.

(3) In order to seek a quick improvement of the beef market, voluntary testing of animals above 30 months should be encouraged in the meantime. Provisions should therefore be adopted providing for Community co-financing of the tests required while guaranteeing that no double payments are made from the Community budget.’

21 Under Article 2 of Regulation 2777/2000:

‘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) of Commission Decision 98/272 ... .

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 programme as provided for in Article 1(3) of Decision 2000/764 …, 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 … ,

– 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.’

22 Article 3 of Regulation No 2777/2000 provides:

‘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 who 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.

…’

23 Article 11 of Regulation No 2777/2000 provides that it was applicable from 1 January 2001 to 30 June 2001.

24 On the basis of Article 3(4) of Regulation No 2777/2000, the Commission adopted Decision 2001/3/EC of 3 January 2001 laying down specific measures in the beef sector for Denmark and the Netherlands under Regulation (EC) No 2777/2000 (OJ 2001 L 1, p. 23), according to which:

‘… the Netherlands shall be authorised to stop the application of the purchase scheme laid down in Regulation … No 2777/2000.’

National legislation

25 According to the order for reference, under Article 68(1) of the Law of 26 March 1920 on State veterinary controls (Wet van 26 maart 1920, houdende bepalingen tot regeling van het Veeartsenijkundig Staatstoezicht) (‘Law on veterinary controls’), in the version applicable at the relevant time, it is prohibited to export or to attempt to export fresh meat or to present such meat for carriage for purposes of export, unless the consignment, in accordance with regulations laid down by the Minister, bears one or more distinguishing marks, or other item of evidence, applied or issued pursuant to an inspection conducted by the public authorities as proof of compliance with the export requirements set by them.

26 Under Article 73 of that law, in the case of an inspection by the public authorities, within the meaning of Articles 68 and 69, the reimbursement of inspection costs is to be collected according to a rate laid down by the Minister.

27 The requirements referred to in Article 68(1) of the Law on veterinary controls are set out in the Regulation of 1985 on the export of fresh meat and meat preparations (Regeling uitvoer vers vlees en vleesbereidingen 1985). That regulation was amended on 21 December 2000 in order to implement Decision 2000/764.

28 Article 2(1)(y) of the regulation provides that the meat may not originate from bovine animals over 30 months of age which have not been subjected to an approved BSE test or for which the result of the test was positive.

29 The statement of reasons for the amendment referred to in paragraph 27 of this judgment reads, with regard to Regulation No 2777/2000, as follows:

‘The fact that the Netherlands has sufficient capacity to carry out testing means that it is not covered by the Commission Regulation adopting exceptional support measures for the beef market. That regulation provides for the purchase, which is in principle obligatory, of any bovine animal aged more than 30 months which has not been subjected to the BSE test. Since the Netherlands has in fact the capacity to subject all bovine animals aged more than 30 months to that test, there is no reason to purchase all the non-tested bovine animals.’

30 The level of reimbursement of costs referred to in Article 73 of the Law on veterinary controls is laid down in the Regulation of 1993 on fees for inspection of meat and meat products (Regeling tarieven keuring vlees en vleesproducten 1993).

31 According to the observations submitted by the Netherlands Government, under that legislation, in the period from 1 January to 1 April 2001, the cost of BSE testing was borne entirely by the national authorities, subject to Commission participation in the financing of test-kits and reagents up to a maximum of EUR 15 per test. From 1 April 2001, a fee was charged for those BSE tests, at a fixed rate of NLG 70 (EUR 31.76) per animal, pursuant to Article 3b of the Regulation on fees for inspection of meat and meat products. From 1 January 2002, the cost of the required tests was entirely passed on to the economic operators. The total cost of a rapid BSE text is, on average, NLG 198.35 (EUR 90) per animal. That amount covers the costs of material, the taking and transportation of samples and the carrying out of the tests.

The dispute in the main proceedings and the questions referred for a preliminary ruling

32 Between May and December 2001, the Rijksdienst voor de keuring van Vee en Vlees (National Department for the Inspection of Livestock and Meat) carried out, in the context of the inspection of meat intended for export, a series of rapid BSE tests on bovine animals over 30 months of age present on Gosschalk’s farm.

33 By invoices addressed to Gosschalk between February and April 2002, the Netherlands authorities demanded payment from Gosschalk of a fee of EUR 31.76 per BSE test, amounting to EUR 1 681 279.12 in total, of which EUR 92 675.68 is attributable to the tests carried out in May and June 2001.

34 Gosschalk contested those invoices, but its objections were rejected. In the action subsequently brought before the Rechtbank Zutphen (Zutphen District Court) those objections were declared inadmissible, since that court considered that those invoices were not administrative decisions capable of being challenged in court.

35 In May 2004, Gosschalk appealed against the decision of the Rechtbank Zutphen to the Raad van State (Council of State) which, by judgment of 3 November 2004, declared the appeal to be well-founded, set aside the contested judgment and referred the case back to the Rechtbank Zutphen. By decision of 17 November 2005, the Rechtbank Zutphen declared Gosschalk’s appeal to be unfounded and rejected its claim for compensation.

36 Gosschalk appealed against that judgment to the Raad van State, which decided to stay the proceedings and to refer for a preliminary ruling questions (1) to (4) below (in relation to the BSE tests carried out in May and June 2001) and question (5) below (in relation to the tests carried out in the period from 1 May to 31 December 2001):

‘1. Are the BSE tests which from 1 January 2001 were obligatory under the Regulation on the export of fresh meat and meat preparations … , which served to implement Article 1(3) of Decision 2000/764 … 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 Federal Republic of Germany v Commission [2003] ECR I‑10333, 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 second subparagraph of Article 5(4) of Directive 85/73/EEC … be interpreted as meaning that this Directive does not preclude the Member State from charging a fee on account of 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?’

The questions referred for a preliminary ruling

First question

37 By its first question, the national court asks, essentially, whether Article 2(1) of Regulation No 2777/2000 must be interpreted as covering the obligatory BSE tests carried out by the Netherlands, under the national legislation implementing Article 1(3) of Decision 2000/764, on all bovine animals over 30 months of age subject to normal slaughter for human consumption in May and June 2001.

38 It must be held, in that regard, that both Article 1 of Decision 2000/764 and Article 2 of Regulation No 2777/2000 identify the approved rapid BSE tests as those referred to in Annex IV A of Decision 98/272, that is the ‘Prionics Check’, and the ‘Enfer’ and ‘Bio-Rad’ tests. Therefore, technically, they are the same tests.

39 With regard to the scope of the obligation to carry out those tests, it must be pointed out, first, that according to Article 1(3) of Decision 2000/764, adopted on 29 November 2000 and applicable from 1 January 2001, Member States were to ensure that all bovine animals over 30 months of age subject to normal slaughter for human consumption were examined by one of those tests as of 1 July 2001 at the latest.

40 Second, Regulation No 2777/2000, adopted on 18 December 2000 and also applicable from 1 January 2001, gave Member States the choice either of subjecting to BSE testing the bovine animals normally produced for slaughter fulfilling the age condition, provided they had the capacity and necessary technical means, or of setting up a mixed system combining the special purchase scheme leading to the destruction of the animals and, in so far as they had the capacity, testing, which would allow the meat to be marketed if the test results were negative.

41 According to those provisions of the regulation, while it is true that, in order to contribute to the re-balancing of the beef market and to enhance consumer confidence, Member States were left to choose the scheme to apply in May and June 2001, the fact remains that, irrespective of the scheme selected, all animals whose meat was intended for human consumption had to undergo BSE testing.

42 Therefore, in order to determine whether the obligatory tests carried out by the Netherlands during that period were tests within the meaning of Article 2(1) of Regulation No 2777/2000, it does not matter whether the obligation to carry out those tests was imposed by a national legislature which decided to bring forward to 1 January 2001 the application of Article 1(3) of Decision 2000/764, the Member State concerned having been authorised to stop the application of the special purchase scheme under Article 3(4) of Regulation No 2777/2000, or whether the source of that obligation was Article 2(1) of that regulation, applied in a Member State which, not having sufficient capacity to subject all the animals to a test, also applied that purchase scheme, since only meat which produced a negative result in one of the three tests could be authorised for consumption and since all three tests were technically identical.

43 Consequently, the answer to the first question is that Article 2(1) of Regulation No 2777/2000 must be interpreted as covering the obligatory BSE tests carried out in the Netherlands in May and June 2001 on all meat from bovine animals aged more than 30 months slaughtered for human consumption.

The second and third questions

44 By its second and third questions, which should be examined together, the national court asks, essentially – in order to determine who is responsible for the financing of the BSE tests – whether Article 2(1) of Regulation No 2777/2000 is to be interpreted as meaning that the prohibition on marketing the meat from bovine animals aged more than 30 months which did not produce a negative result in the BSE test which it imposed with effect from 1 January 2001, constituted an intervention intended to stabilise the beef market, within the meaning of Article 1(2)(b) of Regulation No 1258/1999, or a specific veterinary measure, within the meaning of Article 1(2)(d) of Regulation No 1258/1999, or both. If that provision introduced an intervention measure, the national court also raises a question as to the validity of Article 2(2) of Regulation No 2777/2000, to the extent to which it provides for only partial Community financing of the cost of the tests.

45 According to the order for reference, those questions are asked in the light of Case C‑239/01 Germany v Commission, in which the Court held that all the Community support measures intended to stabilise the beef market must be financed exclusively by the Community.

46 It should be observed, at the outset, that Regulation No 2777/2000 was adopted by the Commission on the basis of Article 38 of Regulation No 1254/1999, paragraph 2 of which entitles the Commission to adopt, in accordance with the committee procedure laid down in Article 43 of the Regulation, the detailed rules necessary for the stabilisation of the beef market.

47 Regulation No 2777/2000 provided for a number of measures aiming to achieve a rapid improvement in the situation on the beef market, which, at the end of 2000, was going through a deep crisis due to a lack of consumer confidence.

48 First, according to the first recital to the preamble of Regulation No 2777/2000, in order to prevent surpluses arising on the market, that regulation introduced an exceptional support measure for the beef market, on the basis of Article 38(1) of Regulation No 1254/1999, with a view to re-balancing the market.

49 Under Article 3(1) of Regulation No 2777/2000, the Member States were bound, under certain conditions, to purchase with a view to its slaughter and full destruction, without being subject to a BSE test, any animal offered to them by a producer, except the animals referred to in the first indent of Article 1(1) of Decision 2000/764 which were subject, in any event, to such a test. According however to the second indent of Article 1(1) of Decision, if they fulfilled the age condition, the animals acquired with a view to their destruction also had to undergo such a test.

50 Second, it follows from the wording of Article 2(1) of Regulation No 2777/2000 that the date from which, in order to be authorised for human consumption in the Community or for export to third countries, meat from bovine animals aged more than 30 months and slaughtered in the Community must have produced a negative result in an approved rapid test for BSE, was brought forward to 1 January 2001.

51 Third, according to the third recital to the preamble of Regulation 2777/2000, in order to encourage voluntary testing in the period concerned (1 January to 30 June 2001) as an alternative to the scheme involving purchase by each Member State, Article 2(2) of that regulation provided for the co-financing by the Community of the BSE tests, the financial participation being set at 100% of the costs (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 15 per test.

52 Fourth, in the light of one of the objectives of Regulation No 2777/2000, namely that meat from bovine animals aged more than 30 months should be capable of authorisation for human consumption from 1 January 2001 only if it had produced a negative result in a BSE test, Article 3(4) of that regulation provided that Member States with sufficient capacity for testing the normal slaughter throughput of animals above 30 months of age could stop the application of the special purchase scheme provided for in Article 3(1).

53 It should be added however that the fact that Regulation No 2777/2000 was adopted on the basis of Article 38(1) of Regulation No 1254/1999 does not mean that all the measures it provided for were interventions intended to stabilise an agricultural market within the meaning of Article 1(2)(b) of Regulation No 1258/1999, in the present case the market in beef and veal.

54 First, recital (1) of the preamble to Regulation No 2777/2000 refers to Article 38(1) of Regulation No 1254/1999 only with regard to the introduction of the special purchase scheme followed by destruction of the animals.

55 Second, according to recital (2) of the preamble to Regulation No 2777/2000 and Article 2 of that regulation, the withdrawal of the animals from the market, provided for under the special purchase scheme, was to be applied in conjunction with the specific rules relating to BSE testing put in place by Decision 2000/764 and with the approved methods of testing provided for under Decision 98/272.

56 It should also be noted, with a view to the monitoring and eradication of BSE in the Community, that Decision 2000/764, adopted, as indicated in its citations, on the basis inter alia 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 (OJ 1989 L 395, p. 13) provided that, in 2001, bovine animals over 30 months of age would be subjected to one of the approved rapid tests mentioned in Annex IV A to Decision 98/272, in two stages.

57 Thus, under Article 1(1) and (2) of Decision 2000/764, the first stage, which began on 1 January 2001, concerned all bovine animals which, being over 30 months of age, were subject to special emergency slaughtering, including those acquired in view of their destruction in accordance with Regulation No 2777/2000, or which showed clinical symptoms at the time of slaughtering, and a random sample of bovine animals which died on the farm.

58 The second stage, which was to be implemented in principle on 1 July 2001 at the latest concerned, under Article 1(3) of Decision 2000/764, all the bovine animals which, while also fulfilling the age requirement, were subject to normal slaughter for human consumption.

59 Therefore, Article 2(1) of Regulation No 2777/2000 served merely to bring forward to 1 January 2001 the date, fixed by Decision 2000/764 at 1 July 2001, from which all bovine animals aged over 30 months and slaughtered in the Community for human consumption had to have been subject to one of the BSE tests referred to in Annex IV A to Decision 98/272, with only meat having produced a negative result in those tests being authorised for marketing.

60 It follows that the obligation to subject bovine animals to BSE tests constituted a veterinary measure which formed part of the programmes of eradication and monitoring of that disease. With regard to such a measure, Community financing is granted, pursuant to Article 3(2) of Regulation No 1258/1999, on the basis of Article 1(2)(d) of that regulation.

61 In those circumstances, it is not necessary to examine whether Article 2(2) of Regulation No 2777/2000, to the extent that it provides that the Community finances only part of the cost of the BSE tests, is invalid because it is contrary to Regulation 1254/1999.

62 In the light of the foregoing, the answer to the second and third questions is that Article 2(1) of Regulation No 2777/2000 must be interpreted as meaning that the prohibition on marketing meat from bovine animals aged more than 30 months which did not produce a negative result in the BSE test which it imposed with effect from 1 January 2001, constitutes a veterinary measure, within the meaning of Article 1(2)(d) of Regulation No 1258/1999, which forms part of the programmes of eradication and monitoring of BSE.

The fourth and fifth questions

63 By its fourth and fifth questions, which should be examined together, the national court asks, essentially, whether Article 2(2) of Regulation No 2777/2000 and Articles 4 and 5(4), second subparagraph, of Directive 85/73 must be interpreted as meaning that the Member States may pass on to economic operators, by requiring them to pay a fee, the cost of the BSE tests and if so, according to what criteria.

64 In that regard, it should be noted that Decision 2000/773 fixed Community participation in the programmes of BSE monitoring by the Member States for the year 2001. First, with regard to the animals referred to in Article 1(1) and (2) of Decision 2000/764, that is those subject to special emergency slaughtering, those acquired in view of their destruction, those displaying clinical symptoms during slaughtering, and animals which have died on the farm and are included in a random sample, Article 18 of Decision 2000/773 fixed the amount of the contribution at 100% of the cost (VAT excluded) of the purchase of test-kits and reagents up to a maximum of EUR 30 per test.

65 Second, Article 17 of Decision 2000/773 establishes the principle of financial participation by the Community in tests carried out in accordance with Article 1(3) of Decision 2000/764, that is, on bovine animals over 30 months of age subject to normal slaughter for human consumption, without however laying down the amount.

66 According to Article 2 of Regulation No 2777/2000, the Community must also, until the entry into force of the obligatory testing programme provided for under Article 1(3) of Decision 2000/764, and in any case before 1 July 2001, pay a contribution representing 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 intended for human consumption.

67 It follows therefore from the wording of Articles 17 and 18 of Decision 2000/773 and of Article 2 of Regulation 2777/2000 that those articles only establish the principle of Community co-financing of the costs of those tests, the two last-mentioned articles also referring to the products covered by the financing, with an indication of the maximum amount to be paid in relation to the animals having to be tested. There is, however, nothing in those texts which says how the costs which are not covered are to be financed or who is finally responsible for paying them.

68 It must be pointed out in that regard that Directive 85/73 set up harmonised rules for the financing of veterinary health inspections and controls of animals and of products originating from animals, in order to safeguard both public and animal health. Under Article 1 of that directive, the Member States are to ensure, according to the detailed rules provided for in Annex A of the directive, that a Community fee is collected for the costs occasioned by health inspections and controls of products intended for human consumption referred to in that annex.

69 Chapter 1 of Annex A to Directive 85/73 specifies the fees applicable to fresh meat falling, inter alia, within Directive 64/433. With regard to beef and veal, the Member States collect for inspection costs relating to slaughter a standard fee of EUR 4.5 per animal for adult bovine animals and EUR 2.5 per animal for young bovine animals.

70 It must therefore be held that, while it is true that point 27(a) of Chapter VI of Annex I to Directive 64/433 provides that the ‘ante mortem’ health inspection must determine whether the animals are suffering from a disease which is communicable to man and to animals or whether they show symptoms or are in a general condition such as to indicate that such a disease may occur, the fact remains that BSE is not among the diseases listed in Article 5 of that directive, which the veterinary inspections and controls carried out on bovine animals are supposed to detect.

71 It follows that the costs of the BSE tests do not fall within Annex A to Directive 85/73, which deals with the Community fees relating to the costs of inspections concerning slaughter procedures. Consequently, in the absence of harmonisation, it was permissible to fix the amount due to be paid in respect of such tests, in each Member State, according to the cost of the procedures required to carry them out.

72 First, Article 4(1) of Directive 85/73 provides that, pending the adoption of provisions governing Community fees, Member States are to ensure the financing of inspections and controls not covered by, inter alia, Article 1 of that directive.

73 Second, under the second subparagraph of Article 5(4) of Directive 85/73, the directive is not to prevent Member States from charging fees for combating epizootic and enzootic diseases.

74 It follows from both the wording and the scheme of the provisions of Directive 85/73 that Article 4 of that directive covers, qua national fees, those laid down by the Member States for health inspections and controls which, while linked to the slaughter procedures for animals intended for human consumption, in the present case bovine animals, correspond to the examinations or even tests such as those for BSE which are not provided for under Directive 64/433, whereas the fees covered by the second subparagraph of Article 5(4) of Directive 85/73 are those collected by the Member States when combating epizootic and enzootic diseases outside the context of slaughter procedures.

75 In the main proceedings, with regard to the BSE tests which are obligatory pursuant to Article 1(1) and (2) of Decision 2000/764, it must be held that, although carried out when the animals are slaughtered, those tests aim to confirm that the bovine animals belonging to certain risk groups are infected with that disease and that their meat is not intended for human consumption. Since they therefore form part of the fight against an epizootic disease, the fees which the Member States may lay down in order to finance such tests are covered by the second subparagraph of Article 5(4) of Directive 85/73.

76 By contrast, the BSE tests provided for in Article 1(3) of Decision 2000/764 and in Article 2(1) of Decision 2777/2000 are linked to the slaughter procedures for bovine animals intended for human consumption and may therefore be financed by the collection of national fees within the meaning of Article 4 of Directive 85/73.

77 With regard to the criteria to take into consideration when laying down such fees, that is, in the main proceedings, those intended to finance the BSE tests, according to Article 4 of Directive 85/73, in the absence of Community fees, Member States may charge national fees in accordance with the principles adopted for Community fees.

78 In that regard, according to Article 5(1) to Article 5(3) of Directive 85/73: first, those Community fees are to be set at a level which covers the costs borne by the competent authority in respect of salary costs and social-security costs, and administrative costs incurred in carrying out controls and inspections; second, the total fee charged may not exceed the actual costs of the inspections; and third, any direct or indirect refund of those fees is prohibited.

79 It must be held that the same principles are applicable by analogy where, as in the main proceedings, the Member States charge national fees within the meaning of Article 4 of Directive 85/73, such as those intended to cover the costs of the BSE tests carried out on bovine animals subject to slaughter for human consumption.

80 It must be added that the second subparagraph of Article 5(4) of Directive 85/73 does not require Member States to act in accordance with the principles adopted for Community fees where they charge a fee for combating epizootic and enzootic diseases, such as that intended to cover the costs of carrying out the BSE tests on bovine animals referred to in Article 1(1) and (2) of Decision 2000/764.

81 In the light of the foregoing considerations, the answer to the fourth and fifth questions is that Article 2(2) of Regulation No 2777/2000 and Article 4 and Article 5(4), second subparagraph, of Directive 85/73 must be interpreted as not precluding Member States from charging national fees intended to finance the cost of BSE tests. The total amount of the fees concerning the slaughter procedures for bovine animals intended for human consumption must be set in accordance with the principles adopted for Community fees, according to which that amount may not exceed the costs incurred, which cover salary and social-security costs and the administrative costs of carrying out those tests and any direct or indirect refund of such fees is prohibited.

Costs

82 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

1. Article 2(1) of Commission Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional support measures for the beef market, as amended by Commission Regulation No 111/2001 of 19 January 2001, must be interpreted as covering the obligatory tests for bovine spongiform encephalopathy carried out in the Netherlands in May and June 2001 on all meat from bovine animals aged more than 30 months slaughtered for human consumption.

2. Article 2(1) of Regulation No 2777/2000, as amended by Regulation No 111/2001, must be interpreted as meaning that the prohibition on marketing meat from bovine animals aged more than 30 months which did not produce a negative result in the bovine spongiform encephalopathy test which it imposed with effect from 1 January 2001, constitutes a veterinary measure, within the meaning of Article 1(2)(d) of Council Regulation No 1258/1999 on the financing of the common agricultural policy, which forms part of the programmes of eradication and monitoring of bovine spongiform encephalopathy.

3. Article 2(2) of Regulation No 2777/2000, as amended by Regulation No 111/2001, and Article 4 and Article 5(4), second subparagraph, of Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary 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, must be interpreted as not precluding Member States from charging national fees intended to finance the cost of testing for bovine spongiform encephalopathy. The total amount of the fees concerning the slaughter procedures for bovine animals intended for human consumption must be set in accordance with the principles adopted for Community fees, according to which that amount may not exceed the costs incurred, which cover salary and social-security costs and the administrative costs of carrying out those tests and any direct or indirect refund of such fees is prohibited.

[Signatures]