WRITTEN QUESTION E-0455/00

by Elisabeth Jeggle (PPE-DE) to the Commission

(24 February 2000)

Subject: Health inspection fees for meat Directive 85/73/EEC

Application of Directives 85/73/EEC(1) and 64/433/EEC(2), in conjunction with the ECJ judgment of 9 September 1999, is causing major problems in Germany with regard to competition law owing to the ambiguities and contradictions contained in those legal bases, and this has resulted in a number of court cases.

The Commission is requested to answer the following questions in order to provide legal certainty on this issue:

1. Pursuant to the ECJ decision of 9 September 1999, the authorisation granted in Chapter I(4)(b) of the Annex to Directive 85/73, as amended by Directive 93/118(3), to collect a special fee which is higher than the standard amounts laid down in Chapter I(1) may be used unconditionally, but subject to the general proviso that the special fee does not exceed the actual costs. In the light of this, will the Commission explain:

- whether the decision applies also to the wording of Chapter I(4)(b) of Annex A to Directive 85/73, as amended by Directive 96/43(4)?

- whether the basis for assessing the level of fee that covers actual costs is to be determined by the competent authority at its discretion, and what is meant by actual costs?

- whether a fee within the meaning of Chapter I(4)(b) of Annex A to Directive 85/73, as amended by Directive 96/43, means an average fee calculated on the basis of costs country-wide, that is to say across the territory of the competent authority?

- whether, pursuant to Chapter I(4)(b) of Annex A, it is possible to levy fees that are differentiated according to category of business?

- whether fees may be levied on the basis of a combination of the provisions of Chapter I(4)(a) and (b) of Annex A?

2. Do the standard amounts pursuant to Chapter I(1)(b) and (c) of the Annex already include the proportion of costs attributable to trichinosis testing?

(1) OJ L 32, 5.2.1985, p. 14.

(2) OJ 121, 29.7.1964, p. 2012.

(3) OJ L 340, 31.12.1993, p. 15.

(4) OJ L 162, 1.7.1996, p. 1.

Answer given by Mr Byrne on behalf of the Commission

(25 April 2000)

The Commission is aware of the problems, particularly in Germany, of implementing the provisions of Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat referred to in Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC(1).

1. A priori, the principles of interpretation outlined by the Court of Justice in its judgement of 9 September 1999 (Case C 347/97 Reference for a preliminary ruling: Bayerischen Verwaltungsgerichtshof: Anton Feyrer v Landkreis Rottal-Inn 1999 C 352/08) are also valid for interpreting Annex A, Chapter I, point 4 (b) of Directive 85/73/EEC as amended and consolidated by Directive 96/43/EEC, in the sense that in order to cover increased costs, Member States may mldr collect a special fee covering actual costs.

Article 5 (1) of Directive 85/73/EEC lays down that 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. Thus on this point the Directive provides only a general framework. As the Commission has already pointed out in its reply to written question E-1121/98(2), estimating actual costs or expenses may be a complex process since it involves adding together total expenditure (staff costs, social contributions, analysis costs, administrative

expenses, etc.). Moreover, certain items, such as the costs of constructing or modernising buildings, may be subject to different accounting processes. It should also be remembered that in the ideal case scenario the official statement of costs can only be provided at the end of year n+1, year n being the year in which the veterinary checks and inspections in question are carried out. On this subject, it is clear that the working documents used to establish standard amounts are for guidance only. Only the text of the Directive is legally binding.

Paragraph 3 of the above-mentioned judgement of 9 September 1999 by the Court of Justice states that in cases where a Member State has delegated to local authorities the collection of fees relating to health inspections and controls of fresh meat, Article 2(3) of Directive 85/73, as amended by Directive 93/118, authorises it to collect an amount higher than Community fee levels so long as it does not exceed the actual costs of inspection incurred by the competent local authority. If competence is delegated to local authorities, these are the costs incurred by the authorities in national territory. In the absence of such delegation, there is in principle no difference between the costs incurred at national level and the costs incurred by the authorities in national territory.

With regard to the provisions of Annex A, Chapter I, point 4 (a) of Directive 85/73/EEC, the text itself indicates that differences are possible between establishments. In order to cover increased costs, Member States may mldr increase the standard amounts of fees as laid down in points 1 and 2 (a) for individual establishments. The provisions of Annex A, Chapter I, point 4 (b) do not refer specifically to this possibility. The relevant concept is that of actual costs. It is not made clear whether calculation of these costs can be for a given establishment or whether it should be done at the level of the competent authority, which can carry out an equalisation for the establishments for which it is responsible.

The question needs to be clarified. In the context of Annex A, Chapter I, point 4 (a) of Directive 85/73/EEC, a Member State may as a general rule, in order to cover increased costs, provide for standard fees and increase these amounts for certain establishments meeting the conditions referred to. Such a system has its own internal coherence. The other option referred to in Annex A, Chapter I, point 4 (b) for covering increased costs gives Member States the possibility of charging a special fee covering actual costs. This option also has its own internal coherence. It is therefore difficult to come up with a combination of these two systems.

2. In the context of Annex A, Chapter I, the standard amounts are laid down in points 1 and 2 (a) and not in points 4 (a) and (b). These amounts cover all the checks laid down by the Directives concerned and, therefore, the checks relating to the detection of trichinosis.

(1) See the consolidated version in Council Directive 96/43/EC of 26 June 1996 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.

(2) OJ C 402, 6.1.1999.