CELEX: 62009CJ0523
Language: en
Date: 2011-07-07 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 7 July 2011.#Rakvere Piim AS and Maag Piimatööstus AS v Veterinaar- ja Toiduamet.#Reference for a preliminary ruling: Tartu ringkonnakohus - Estonia.#Common agricultural policy - Fees for health inspections and controls in respect of milk production.#Case C-523/09.

Case C-523/09
      Rakvere Piim AS
      and
      Maag Piimatööstus AS
      v
      Veterinaar- ja Toiduamet
      (Reference for a preliminary ruling from the Tartu ringkonnakohus)
      (Common agricultural policy – Fees for health inspections and controls in respect of milk production)
      Summary of the Judgment
      Approximation of laws – Official control of animal feed and food – Financing – Fees payable for health inspections and controls
            in respect of milk production
      (European Parliament and Council Directive Regulation No 882/2004, Art. 27(3), (4) and (6), and Annex IV, Section B)
      Article 27(3) and (4) of Regulation No 882/2004 on official controls performed to ensure the verification of compliance with
         feed and food law, animal health and animal welfare rules must be interpreted as enabling a Member State to levy fees at the
         minimum rates laid down in Annex IV, section B to that regulation without having to adopt a measure of application at national
         level, even though the costs borne by the competent authorities in connection with the health inspections and controls laid
         down in that regulation are lower than those rates, when the specified conditions for applying Article 27(6) of that regulation
         are not satisfied.
      
      (see para. 29, operative part)
JUDGMENT OF THE COURT (Fifth Chamber)
      7 July 2011 (*)
      
      (Common agricultural policy – Fees for health inspections and controls in respect of milk production)
      In Case C‑523/09,
      REFERENCE for a preliminary ruling under Article 267 TFEU, from the Tartu ringkonnakohus (Estonia), made by decision of 6 November 2009,
         received at the Court on 15 December 2009, in the proceedings
      
      Rakvere Piim AS,
      Maag Piimatööstus AS
      v
      Veterinaar- ja Toiduamet,
      THE COURT (Fifth Chamber),
      composed of J.‑J. Kasel (Rapporteur), President of the Chamber, E. Levits and M. Safjan, Judges,
      Advocate General: P. Cruz Villalón,
      Registrar: A. Calot Escobar,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        the Estonian Government, by M. Linntam, acting as Agent,
      –        the European Commission, by A. Marcoulli and B. Schima, acting as Agents, assisted by C. Ginter, lawyer,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Article 27(3), (4)(a) and (6) of 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, and corrigenda OJ 2004
         L 191, p. 1, and OJ 2007 L 204, p. 29).
      
      2        The reference has been made in proceedings between Rakvere Piim AS (‘Rakvere Piim’) and Maag Piimatööstus AS (‘Maag’), companies
         established under Estonian law, and the Veterinaar- ja Toiduamet (Veterinary and Food Office) concerning the calculation of
         the fees payable for health inspections and controls in respect of milk production.
      
       Legal context
       European Union legislation
      3        Article 26 of Regulation No 882/2004 provides:
      
      ‘Member States shall ensure that adequate financial resources are available to provide the necessary staff and other resources
         for official controls by whatever means considered appropriate, including through general taxation or by establishing fees
         or charges.’
      
      4        Article 27(3), (4) and (6) of Regulation No 882/2004 provides:
      
      ‘(3)      Without prejudice to paragraphs 4 and 6, fees collected as regards the specific activities mentioned in Annex IV, section
         A and Annex V, section A shall not be lower than the minimum rates specified in Annex IV, section B and Annex V, section B.
         However, for a transitional period until 1 January 2008, as regards the activities referred to in Annex IV, section A, Member
         States may continue to use the rates currently applied pursuant to Directive 85/73/EEC.
      
      The rates in Annex IV, section B and Annex V, section B shall be updated at least every two years, in accordance with the
         procedure referred to in Article 62(3), in particular to take account of inflation. 
      
      (4)      Fees collected for the purposes of official controls in accordance with paragraph 1 or 2:
      (a)      shall not be higher than the costs borne by the responsible competent authorities in relation to the items listed in Annex
         VI;
      
      and
      (b)      may be fixed at a flat-rate on the basis of the costs borne by the competent authorities over a given period of time or, where
         applicable, at the amounts fixed in Annex IV, section B or in Annex V, section B.
      
      … 
      (6)      When, in view of own-check and tracing systems implemented by the feed or food business as well as of the level of compliance
         found during official controls, for a certain type of feed or food or activities, official controls are carried out with a
         reduced frequency or to take account of the criteria referred to in paragraph 5(b) to (d), Member States may set the official
         control fee below the minimum rates referred to in paragraph 4(b), provided that the Member State concerned provides the Commission
         with a report specifying:
      
      (a)      the type of feed or food or activity concerned;
      (b)      the controls performed in the feed and food business concerned;
      and
      (c)      the method for calculating the reduction of the fee.’
      5        In accordance with Annex IV, section B to Regulation No 882/2004, the minimum rates for fees or charges applicable to milk
         production are fixed at ‘EUR 1 per 30 tonnes and EUR 0,5 per tonne, thereafter’.
      
      6        Annex VI to Regulation No 882/2004 provides that the criteria to be taken into consideration for the calculation of fees are:
      
      ‘1.      The salaries of the staff involved in the official controls
      2.      The costs for the staff involved in the official controls, including facilities, tools, equipment, training, travel and associated
         costs
      
      3.      The laboratory analysis and sampling costs.’
       National legislation
      7        Under Paragraph 351(1) of the law on veterinary arrangements (veterinaarkorralduse seadus, RT I 1999, 58, 608), in the version published in RT
         I 2008, 30, 191, applicable at the time of the facts in the main proceedings:
      
      ‘The veterinary control fee (“the control fee”) shall be the sum charged for the performance of activities of veterinary control
         of animals and animal products, the examination of the relevant declarations and the delivery of documents, in the amount
         laid down in the present law, having regard to the principles and purposes laid down in Articles 27 to 29 of Regulation [No
         882/2004]. The control fee shall be paid into the clearing account of the Veterinaar- ja Toiduamet within the group account
         of the treasury of the Ministry of Finance. Among the costs of performing a veterinary control activity shall be the costs
         of sending a control official to a factory ship in order to carry out a control.’
      
      8        Paragraph 353 of the law on veterinary arrangements, which deals with the fixing of the control fee and the amounts of the control fee,
         provides:
      
      ‘(1)      The personnel and business costs of the performance of activities of the veterinary control of animals and animal products
         by the Veterinaar- ja Toiduamet shall be taken as the basis of calculation of the amount of the control fee.
      
      (2)      The control fee shall be charged for performance of the veterinary control activities listed in Regulation [No 882/2004],
         as follows:
      
      … 
      3)      as regards milk production, the operator shall pay for a veterinary control action in accordance with the amount of milk processed;
      … 
      (3)      For the performance of the veterinary control activities listed in points 1 to 6 of subparagraph 2 of this paragraph, the
         control fee shall be charged in accordance with the minimum rate stated in Part B of Annex IV and Part B of Annex V to Regulation
         [No 882/2004].
      
      (4)      An operator dealing in animals or animal products, other than an operator of small quantities of products defined in accordance
         with Paragraph 26(3) of the Food Law [Toiduseadus], shall pay the control fee for determining the content of pollutants in
         animals and animal products, as follows:
      
      … 
      3)      buyer-in of milk – 35 cents per 1 000 litres of milk;
      … ‘
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      9        Between February 2008 and January 2009, the Veterinaar- ja Toiduamet adopted a number of decisions imposing control fees on
         Rakvere Piim and Maag for milk production.
      
      10      In support of the actions brought by Rakvere Piim and Maag before the Tartu halduskohus (administrative court, Tartu) against
         those decisions, those companies claimed that the national legislation on control fees was contrary to, inter alia, Regulation
         No 882/2004, since the fees levied exceeded the actual costs of the controls.
      
      11      After those actions were dismissed, Rakvere Piim and Maag brought an appeal before the national court. Before that court they
         argue, inter alia, that, in accordance with the national legislation, it is impossible for an operator who has been issued
         with a decision levying a control fee to check whether that legislation actually provides for the adoption of a decision affecting
         him levying a fee for the activities performed and corresponding to the amount demanded from him. There remains, in addition,
         the fact that that amount is derived from an EU regulation, not directly applicable, that may be amended irrespective of the
         will of the national legislature. Although that legislature must itself determine the amount of the control fee, on the basis
         of discretion deriving from EU law, merely referring to the ‘minimum’ rate contained in Regulation No 882/2004 would not be
         consistent with the requirements of the Estonian Constitution.
      
      12      The Veterinaar- ja Toiduamet submits, in particular, that the national legislation defines all the elements of the control
         fee either directly or by reference to the provisions of Regulation No 882/2004. All the elements of the control fee are provided
         for in the law and in Regulation No 882/2004, none of them falling under administrative practice. The references to the EU
         legislation instituted by the law do not have the effect of making the legislation in question contrary to the Estonian Constitution,
         since EU regulations are an integral part of the national legal system.
      
      13      On 18 September 2009, Maag informed the national court that Rakvere Piim no longer existed because of a merger of itself and
         that company. By a decision of 23 September 2009, the Tartu ringkonnakohus gave Maag leave to take part in the proceedings
         in Rakvere Piim’s place.
      
      14      As is apparent from the order for reference, the Tartu ringkonnakohus seeks to ascertain, first, whether the law on veterinary
         arrangements, as an implementing measure, is in accordance with Regulation No 882/2004 and, second, the extent of the leeway
         available to the national legislature in applying that regulation. Moreover, the Tartu ringkonnakohus questions whether, in
         the present case, the limits of that leeway were exceeded, and whether the national legislature could legitimately take as
         a basis the minimum rates laid down in Regulation No 882/2004, even though they exceed the actual costs of the controls.
      
      15      In those circumstances, the Tartu Ringkonnakohus decided to stay the proceedings and to refer the following questions to the
         Court for a preliminary ruling:
      
      ‘1.      Must Article 27(4)(a) of Regulation [No 882/2004] be interpreted as not prohibiting the demanding of a fee from an operator
         at the minimum rate laid down in Part B of Annex IV to that regulation for the activities listed in Part A of Annex IV to
         the regulation, even if the costs borne by the responsible competent authorities in connection with the items listed in Annex
         VI to that regulation are lower than the abovementioned minimum rates? 
      
      2.      Is a Member State entitled, on the conditions mentioned in the previous question, to establish fees for the activities listed
         in Part A of Annex IV to [Regulation No 882/2004] that are lower than the minimum amounts laid down in Part B of Annex IV
         to that regulation, if the costs borne by the responsible competent authorities in connection with the items listed in Annex
         VI to that regulation are lower than the abovementioned minimum rates, without the conditions laid down in Article 27(6) of
         that regulation being satisfied?’
      
       Consideration of the questions referred
      16      By its two questions, which may appropriately be examined together, the national court asks, in essence, whether Article 27(3)
         and (4) of Regulation No 882/2004 must be interpreted as allowing a Member State to levy fees at the minimum rates laid down
         in Annex IV, section B to that regulation without having to adopt a measure of application at national level, even though
         the costs borne by the competent authorities in connection with the health inspections and controls provided for in that regulation
         are lower than those rates, when the specified conditions for applying Article 27(6) of that regulation are not satisfied.
      
      17      In order to answer that question, it must be borne in mind that, by virtue of the very nature of regulations and of their
         function in the system of sources of EU law, the provisions of a regulation, as a general rule, have immediate effect in the
         national legal systems without its being necessary for the national authorities to adopt measures of application (see Case
         93/71 Leonesio [1972] ECR 287, paragraph 5, and Case C‑278/02 Handlbauer [2004] ECR I‑6171, paragraph 25).
      
      18      Some of the provisions of regulations may none the less necessitate, for their implementation, the adoption of measures of
         application by the Member States (Handlbauer, paragraph 26).
      
      19      It is therefore necessary to establish whether Article 27(3) and (4) of Regulation No 882/2004 and Annex IV, section B to
         that regulation leave the Member States any leeway as regards determining the minimum rates referred to in those provisions
         or whether they call for them to adopt additional measures of application.
      
      20      In that regard, it must be borne in mind, first, that Article 27(3) of Regulation No 882/2004 provides that fees collected
         by Member States applying that regulation are not to be lower than the minimum rates fixed in, inter alia, Annex IV, section
         B to that regulation.
      
      21      Second, it should be noted that Regulation No 882/2004 lays down, in Annex IV, section B thereto, minimum rates applicable
         to various animal species that, having regard to their accuracy and completeness, do not require the adoption of any additional
         measure of application by Member States.
      
      22      It follows that the minimum rates thus fixed must be considered as being basic rates from which the Member States are not,
         in principle, free to derogate.
      
      23      The fact that, under Article 27(4)(a) of Regulation No 882/2004, the fees collected by the Member States must not be higher
         than the costs borne by the responsible competent authorities in relation to controls is not of such a kind as to invalidate
         the foregoing interpretation, in so far as that provision must be understood as fixing only the ceiling rate of non-standard
         fees that may be collected by the Member States.
      
      24      On the other hand, concerning fees fixed according to Article 27(4)(b) of Regulation No 882/2004, namely, on a flat-rate basis,
         that ceiling rate may not be applied.
      
      25      First, concerning fees where the standard rates are defined on the basis of the costs borne by the competent authorities over
         a given period of time, it should be noted that the amount of those costs is already taken into account when determining those
         rates. In addition, as the Court has already ruled, a standard fee by its very nature exceeds the actual cost of the measures
         which it is intended to finance in certain cases and is lower than that cost in other cases (Case C‑270/07 Commission v Germany [2009] ECR I‑1983, paragraph 32).
      
      26      Second, as regards fees fixed at the minimum amounts laid down in Annex IV, section B to Regulation No 882/2004, it is clear
         that the EU legislature defined those amounts without referring in any way to the costs actually borne by the competent authorities.
         Those costs may not therefore, in principle, be taken into account by the Member States in order to reduce, generally, those
         fees to a level below that laid down in Annex IV, section B to Regulation No 882/2004.
      
      27      The interpretation to the effect that the Member States are not, in principle, able to derogate in a general and discretionary
         manner from the minimum rates set out in Annex IV, section B to Regulation No 882/2004 is borne out by the fact that even
         use of the option provided for in Article 27(6) of that regulation, which allows those States to set the official control
         fee below the minimum rates referred to in that annex for certain undertakings, is subject to certain conditions. In a situation
         such as that described by the national court, Article 27(6) of Regulation No 882/2004 does not, therefore, allow a Member
         State to fix the fees in question below the minimum rates laid down in Annex IV, section B to that regulation.
      
      28      It follows that Article 27(3) and (4) of Regulation No 882/2004 and Annex IV, section B to that regulation leave no discretion
         to the Member States as regards the fixing of the minimum rates referred to in those provisions, nor do they call for the
         adoption of implementing measures by those Member States.
      
      29      In light of all those considerations, the answer to the questions referred is that Article 27(3) and (4) of Regulation No
         882/2004 must be interpreted as enabling a Member State to levy fees at the minimum rates laid down in Annex IV, section B
         to that regulation without having to adopt a measure of application at national level, even though the costs borne by the
         competent authorities in connection with the health inspections and controls laid down in that regulation are lower than those
         rates, when the specified conditions for applying Article 27(6) of that regulation are not satisfied.
      
       Costs
      30      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 (Fifth Chamber) hereby rules:
      Article 27(3) and (4) of 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
            must be interpreted as enabling a Member State to levy fees at the minimum rates laid down in Annex IV, section B to that
            regulation without having to adopt a measure of application at national level, even though the costs borne by the competent
            authorities in connection with the health inspections and controls laid down in that regulation are lower than those rates,
            when the specified conditions for applying Article 27(6) of that regulation are not satisfied.
      [Signatures]
      * Language of the case: Estonian.