Opinion of Mr Advocate General Mancini delivered on 21 June 1988. - Commission of the European Communities v Federal Republic of Germany. - Charging of fees for inspections carried out during intra-Community transport of live animals. - Case 18/87.



European Court reports 1988 Page 05427



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Commission of the European Communities has brought an application for a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty . The Federal Republic of Germany permits the authorities of certain Laender to charge a fee for inspections carried out on the transportation of live animals imported into Germany or in transit to other destinations within the Community .

It is apparent from the documents before the Court that the administrations of the Laender Bremen, Hessen, Niedersachsen, Nordrhein-Westfalen and Rheinland-Pfalz charge transporters a fee for the inspections carried out by the Laender with regard to the conditions of transport under which live animals are in transit in their territories or are imported into those territories . On 19 February 1985 the Commission informed the German Government, pursuant to Article 169 of the EEC Treaty, of its view that that practice was incompatible with the aforementioned Community prohibitions and requested it to bring the practice to an end . As the German Government firmly refused to adopt the measures necessary for that purpose, the Commission brought proceedings before the Court of Justice by application lodged on 26 January 1987 .

2 . I shall begin with a brief reference to the relevant rules . At the Community level the rules relating to the protection of animals during international transport are contained in Council Directive 77/489 of 18 July 1977 ( Official Journal 1977, L 200, p . 10 ) and Council Directive 81/389 of 12 May 1981 ( Official Journal 1981, L 150, p . 1 ). Articles 2 and 3 of Directive 81/389 are of particular importance . Article 2 empowers the authorities of the Member States of transit and of destination to check the manner in which the persons responsible for transport comply with the obligations and conditions laid down in Directive 77/489 . Article 3 provides that those authorities are to prescribe the measures required to remedy any irregularities discovered by them, and to carry out such measures if they are not complied with .

However, they contain no provisions regarding the manner in which such checks are to be financed and, in particular, the possibility of the national administrations charging a fee to recoup part of the costs incurred . In that respect the Verordnung ( order ) of 29 March 1983 by which the Bundesminister fuer Ernaehrung, Landwirtschaft und Forsten ( Federal Minister for Food, Agriculture and Forestry ) implemented the Community provisions in Germany is also silent . It is the five Laender which are alleged to have introduced a fee and to have laid down rules governing the manner in which it is collected and the amount thereof .

3 . The Commission maintains that since the fees at issue are levied solely in respect of intra-Community trade they constitute a charge having an effect equivalent to a customs duty and are therefore contrary to the prohibition laid down in Article 12 of the EEC Treaty . It states that the fees do not form part of a general system of dues also applied to livestock transported within Germany and that since the sole purpose of the inspections in respect of which they are charged is protection of the animals the fees do not constitute the consideration for a benefit provided for the person concerned .

The German Government disputes those contentions and bases its defence on the principles laid down by the Court in its judgment of 25 January 1977 in Case 46/76 Bauhuis v Netherlands State (( 1977 )) ECR 5 and the subsequent line of consistent decisions . It states that, as in that case, the fees at issue are intended to finance a system of uniform health inspections established by a directive in order to satisfy one of the general interests of the Community, namely the protection of animals transported within its territory . Far from constituting a charge having an effect equivalent to a customs duty the fees therefore contribute to the realization of Community objectives .

4 . What view should be taken of those submissions? It follows from the Court' s judgment in the Bauhuis case that the fees charged on the imported goods or on goods in transit to other Member States by reason of the fact that they cross a frontier do not fall under the prohibition in Article 12 of the EEC Treaty if : ( a ) they constitute the consideration for a benefit actually provided for the transporter or the importer, ( b ) they form part of a general system of internal dues applied in accordance with the same criteria to domestic goods and to imports and exports, ( c ) they are charged in connection with inspections prescribed by a Community directive . It is evident that in all such cases the amount charged must not exceed the actual cost of the inspection .

In the case before the Court it is clear that the German regional authorities are acting in accordance with the provisions of Directives 77/489 and 81/389 and in fact for the purpose of ensuring compliance therewith . The purpose of the two directives is namely to protect livestock during international transport . It is evident that such an objective may be attained solely by the establishment of a system of inspections aimed at determining whether the transporter holds the health certificate for the animals in question and is complying throughout the course of the journey with the conditions of transport laid down by the Community provisions .

The method of transport and the surrounding circumstances may vary during the course of the journey . In order to be able to check that the necessary requirements are being complied with at every stage it is therefore necessary that the aforementioned inspections should not be limited to the countries of departure and arrival but should extend to the countries of transit . Article 2 of Directive 81/389 itself provides, moreover, that it is for the authorities of the "Member States of transit and of destination" to check that the transport is effected properly .

Consequently, intermediate inspections are in complete accordance with the general interests of the Community in this area . The Commission' s submission that the interest of the Community consists solely in the facilitation of intra-Community trade and that it is served by the elimination or reduction of inspections cannot be accepted . Such a requirement undoubtedly exists, but it cannot set aside or even take precedence over the specific need to ensure adequate protection for animals in the course of transportation . I would add, furthermore, that the requirement cannot have such an effect even in the absence of rules harmonizing the fees charged by the Member States for the checks carried out by them ( see paragraph 36 of the decision in the Bauhuis case ).

5 . In the light of the foregoing comments the Commission' s application appears unfounded . Although the fees charged by the five Laender are not directly provided for by the Community rules, they are in fact levied in respect of inspections required by those rules and, consequently, may not be regarded as a charge having an effect equivalent to a customs duty .

Moreover the level of the fees does not exceed the actual cost of the inspections and the inspections are carried out only once on the territory of the Federal Republic of Germany . The former was accepted by the Commission; the latter information was supplied by the German Government in reply to a question put by the Court and dispels the suspicion of abuse expressed by the Commission in the course of the proceedings .

6 . In view of all the foregoing considerations I propose that the action brought by the Commission of the European Communities on 26 January 1987 against the Federal Republic of Germany should be dismissed and that the unsuccessful party should be ordered to pay the costs .

(*) Translated from the Italian .