CELEX: 61994CC0086
Language: en
Date: 1995-11-30
Title: Opinion of Mr Advocate General Jacobs delivered on 30 November 1995. # H. J. A. M. van Iersel (liquidator of Pluimvee- en wildverwerkende industrie De Venhorst BV) v Staatssecretaris van Landbouw, Natuurbeheer en Visserij. # Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. # Health inspections and controls - Circumstances in which an undertaking is obliged to pay the fee for cutting operations. # Case C-86/94.

OPINION OF ADVOCATE GENERAL
      JACOBS
      delivered on 30 November 1995 (
            *1
         )
      
               1. 
            
            
               This case comes to the Court by way of a reference for a preliminary ruling ordered by the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry), The Hague. The applicant in the main proceedings is the liquidator of Pluimvee- en wildverwerkende industrie De Venhorst BV (‘De Venhorst’), which operated a slaughterhouse and engaged in the poultry trade until it was put into liquidation. The slaughterhouse comprised a production line which started with the slaughter of live poultry and ended with the storing of the plucked and eviscerated chickens which had been sorted according to weight and wrapped in plastic. About 95% of the chickens slaughtered in the applicant's slaughterhouse were not cut up and boned but stored whole. De Venhorst only cut and boned those chickens which weighed less than a certain amount and which were of inferior quality. All the operations relating to the slaughter, plucking, evisceration, sorting, weighing, cutting, wrapping and storage of the chickens took place on the same premises. The cutting operations did not take place in separate premises but in the same room in which the chickens ready for human consumption were wrapped whole.
            
         
               2. 
            
            
               The premises of De Venhorst were inspected by the Dutch veterinary authorities, the Rijksdienst voor de keuring van Vee en Vlees (‘RVV’), on a regular basis. They carried out three types of inspections:
               
                        (a)
                     
                     
                        ‘ante mortem’ and ‘post mortem’ inspections relating to the slaughter of the poultry;
                     
                  
                        (b)
                     
                     
                        inspections in respect of cutting;
                     
                  
                        (c)
                     
                     
                        inspections in respect of storage.
                     
                  
         
               3. 
            
            
               The RW charged De Venhorst a fee for the inspections carried out. The fee was fixed by four decisions of the RW taken in 1991 and 1992 on the basis of the Regeling Keuring en Handelsverkeer Vers Vlees Pluimvee (Regulation on the inspection of, and trade in, fresh poultrymeat, ‘the Dutch Regulation’) adopted on 20 June 1985. (
                     1
                  ) Article 22a of that Regulation provides:
               
                        ‘1.
                     
                     
                        For an inspection within trading hours in a cutting plant authorized under Article 16, the plant is liable to pay a charge amounting to HFL 6.97 per tonne of unboned meat intended for cutting.
                     
                  
                        2.
                     
                     
                        By derogation from paragraph 1 above, the cutting plant is liable to pay a charge of HFL 3.50 per tonne of unboned meat intended for cutting, if the cutting operations are carried out in the plant in which the meat is obtained.’
                     
                  The fee for the inspections of De Venhorst's cutting operations was fixed at HFL 3.50 per tonne of meat in accordance with Article 22a(2) of the Dutch Regulation.
            
         
               4. 
            
            
               The applicant lodged a complaint with the Dutch Minister of Agriculture against those four decisions on the grounds that the amount charged in relation to the inspection of the cutting operations was excessive and the basis of its calculation was unfair. The parts of the fees concerning the other types of inspections were not in issue. It appears from the order for reference that the RW calculated the component of the fee relating to the inspection of the cutting operations on the basis of the weight of all the chickens placed in the room in which the cutting operations took place. The applicant considered that basis to be unfair because only 5% of the chickens placed in the room in question were cut and boned while the remaining 95% were wrapped there without being cut and boned. The complaint was rejected by the Minister. The applicant then appealed to the College van Beroep voor het Bedrijfsleven against the rejection of his complaint. Since the Dutch rules on the inspection fees are based on Community rules, in particular Council Decision 88/408/EEC, (
                     2
                  ) the College van Beroep decided to seek a ruling from the Court on the following questions:
               ‘Is Article 3(1) of Council Decision 88/408/EEC of 15 June 1988 to be interpreted as meaning that the part of the fees referred to therein is payable only in respect of meat which is actually boned or cut up in the production stage between slaughter of the animal and storage of the meat, or must that provision be interpreted as meaning that the fees are payable in respect of all the meat which is brought into the cutting plant, whether or not it undergoes any processing there in the form of boning or cutting?
               If the provision is to be interpreted differently, what is the correct interpretation?’
            
         The Community rules
      
               5.
            
            
               Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat (
                     3
                  ) approximates the provisions of the Member States on hygiene requirements in respect of poultrymeat in slaughterhouses and during transportation. At the time of the facts in issue in these proceedings, that Directive had been amended by Council Directive 75/431/EEC of 10 July 1975. (
                     4
                  ) The Directive contains provisions regarding slaughterhouses and cutting premises and also lays down conditions in respect of health and hygiene which must be fulfilled if the meat obtained in those establishments is to be placed on the market.
            
         
               6.
            
            
               As regards slaughterhouses and cutting premises, the Directive provides that each Member State shall ensure that trade is allowed only in fresh poultrymeat obtained from a slaughterhouse which has been approved and supervised by it (Article 3(1 )A(a)). Approval may only be granted if the slaughterhouse fulfils the conditions laid down in Article 5 and Chapters I and III of Annex I of the Directive. Cutting operations may take place only in cutting premises which have been approved and supervised by the Member States (Article 3(1 )B(a)). Approval may only be granted if the cutting premises fulfil the conditions laid down in Article 5 and Chapters II and III of Annex I of the Directive.
            
         
               7.
            
            
               As regards the meat obtained in approved establishments, Article 3 provides that it must be inspected and considered suitable for trade by an official veterinarian. Carcasses and offal may be traded only if the slaughter process fulfilled the hygiene requirements of Chapter V of Annex I and if the poultry has undergone ‘ante mortem’ and ‘post mortem’ health inspections by the official veterinarians (Chapter IV of Annex I) and has been declared fit for human consumption in accordance with Chapter VII of Annex I. Article 3(1 )B lays down specific requirements which must be met in the case of parts of carcasses or boned meat. The cutting process and premises must comply with Chapter VIII of Annex I of the Directive and veterinary controls must be carried out by an official veterinarian in accordance with Chapter IX of Annex I. The veterinary inspections in Chapter IX of Annex I are described in broad terms in point 42 thereof as follows:
               ‘Supervision by the official veterinarian shall consist of:
               
                        (a)
                     
                     
                        checking records of fresh meat having entered and cut meat having left the premises;
                     
                  
                        (b)
                     
                     
                        health inspection of fresh meat having entered the cutting room;
                     
                  
                        (c)
                     
                     
                        inspecting the cleanliness of the premises, installations and tools, and staff hygiene;
                     
                  
                        (d)
                     
                     
                        the taking of any necessary samples for laboratory examinations designed to detect, for example, the presence of noxious germs, additives or any other unauthorized chemical substances. The results of such examinations shall be recorded in a register;
                     
                  
                        (e)
                     
                     
                        any other checks which he considers will contribute to the observance of the Directive.’
                     
                  
         
               8.
            
            
               Directive 71/118 has since been further amended by Council Directive 92/116/EEC of 17 December 1992 amending and updating Directive 71/118 on health problems affecting trade in fresh poultrymeat. (
                     5
                  ) The date set by that Directive for its implementation in the Netherlands is 1 January 1994 and as a consequence it does not apply in the present proceedings.
            
         
               9.
            
            
               Formerly Member States charged a fee which they set themselves for the inspections and controls undertaken by their authorities but the variations in the levels of those fees were such that competition could be distorted. The Council therefore adopted Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat. (
                     6
                  ) Article 1 provides that Member States shall collect fees for the costs occasioned by health inspections and controls. Article 1 also provides that any direct or indirect refund of fees is prohibited. The Directive itself does not set the level of fees but Article 2 provides that the Council shall take a decision on the standard level or levels of those fees.
            
         
               10.
            
            
               The Council accordingly adopted Decision 88/408/EEC of 15 June 1988 (
                     7
                  ) on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73 (‘the Decision’). According to the Decision, a single fee is charged which comprises several components. An amount is charged by the authorities of the Member State for inspections carried out in respect of the slaughter of the poultry (Article 2(3)), in respect of administrative costs and the examination for the presence of residues (Article 2(4)), in respect of inspections relating to the cutting operations (Article 3) and in respect of the actual expenditure necessary for entry and exit controls or inspections of the meat stored (Article 4). The amounts to be charged for the inspections relating to slaughter are expressed, in Article 2(3), as an amount in ECU per animal. The amounts in respect of the administrative costs and of the examination for the presence of residues are calculated on the basis of an amount in ECU per tonne.
            
         
               11.
            
            
               The Decision provides both for the case in which the slaughterhouse and cutting premises are separate establishments and for the case in which they are part of the same establishment. As regards the former eventuality, the fifth recital states:
               ‘Whereas it is possible that slaughtering, cutting and storage operations may take place in separate plants; whereas, as a result in such cases, not all the health inspections and controls to be covered by the fees under [Directive 71/118/EEC] are consequently carried out in the slaughterhouse; whereas, in accordance with the first subparagraph of Article 2(1) of Directive 85/73/EEC these exceptional cases should be covered by providing for fees to be charged in proportion to the different health controls and inspections to be carried out.’
               In order to govern both of those cases, Article 3 provides:
               
                        ‘1.
                     
                     
                        The part of the fees covering the controls and inspections connected with the cutting operations referred to in Article 3(1)B(b) of Directive 71/118/EEC shall be fixed at a standard rate of 3 ECU/tonne of unboned meat intended for cutting.
                     
                  
                        2.
                     
                     
                        The amount referred to in paragraph 1 shall be added to the amounts referred to in Article 2(1).
                     
                  
                        3.
                     
                     
                        The provisions of Article 2(2) and (5) shall apply mutatis mutandis.
                        
                     
                  
                        4.
                     
                     
                        Where the cutting operations arc carried out in the establishment where the meat is obtained, the amounts laid down in paragraph 1 may be reduced by up to 50%.’
                     
                  
         
               12.
            
            
               It appears that, in fixing the amount of the fees charged for the inspection of the cutting operations at De Venhorsťs establishment at HFL 3.50 per tonne, the RW used the possibility offered by Article 3(4) of the Decision to reduce the amount charged by up to 50%.
            
         
               13.
            
            
               Article 6 of the Decision provides:
               
                        ‘1.
                     
                     
                        Fees shall be payable by the natural or legal person who has the slaughtering, cutting or storage operations carried out.
                     
                  
                        2.
                     
                     
                        The full amount of the fees, including the amounts provided for in Articles 2 and 3, shall in principle be collected at the slaughterhouse. However, in the event of the conditions laid down in Article 3(4) and Article 4 not being fulfilled, the amounts provided for in Articles 2 and 3 shall be collected in the cases concerned at the slaughterhouse, cutting plant and cold store, as appropriate.’
                     
                  
         
               14.
            
            
               It should be noted finally that Article 2(2) of the Decision and the Annex set out certain circumstances in which the Member States may depart from the standard amounts of the fees and increase or decrease the amounts charged to particular establishments.
            
         The issue
      
               15.
            
            
               The issue in this case is whether the amount of HFL 3.50 per tonne charged in respect of the inspection of the cutting premises should have been levied by the RW on the quantities of poultry meat which were actually cut and boned by De Venhorst, that is on less than 5% of its total output, or whether the RW was correct in charging an amount calculated on the basis of all the meat present in the room in which cutting operations took place.
            
         
               16.
            
            
               The applicant submits that the inspection fee should have been levied on the quantities of poultry meat actually cut and boned. He sets out a number of reasons why that should be so. Essentially, he argues that, by referring to ‘cutting operations’ in Article 3(1), the Decision does not seek to make the fees chargeable simply by virtue of the presence of meat in the place where the cutting operations take place. The words ‘intended for cutting’ in the English version and ‘destinées à la découpe’ in the French version refer to the action of cutting the meat. The RW is wrong, according to the applicant, to consider that the Dutch term ‘uitsnijderij’ refers to the cutting premises rather than the action of cutting.
            
         
               17.
            
            
               The Dutch Government and the Commission, on the other hand, submit that the amount of the fees relating to the cutting operations should be calculated on the basis of all the meat present in the cutting room, whether or not it is actually cut and boned. They both submit that the inspections carried out in relation to the cutting process are those laid down by Annex I, Chapter IX, of Directive 71/118. The controls which take place are not solely connected with the operation of cutting and the principal clement to be inspected is not primarily each animal. The inspection covers all aspects of the cutting room and the operations that take place therein. Indeed, the only particular type of inspection to be carried out which relates to each piece of meat is that laid down by point 42(b) of Chapter IX of Annex I of the Directive. The Dutch Government confirmed, when asked by the Court in a written question what inspections take place in cutting premises, that the inspection of those operations comprises four elements. First, when the meat arrives in the cutting premises the inspectors check the quality, temperature, wrapping and marking of the meat. They also examine the state of cleanliness of the means of transport and the premises in which the meat is kept. The documentation of the meat is examined. Second, the treatment of the meat is checked by the inspectors to ensure that it is quick and hygienic and that the boxes used for carriage are clean. The state of the premises is checked. Third, the inspectors check the conditions in which the meat is transported after treatment and the cleanliness of the premises and means of transport. They inspect the cleanliness of the employees present and of their sanitary installations. Fourth, various administrative formalities accompany the inspections mentioned above.
            
         
               18.
            
            
               The Dutch Government places particular emphasis on the need to recover the costs incurred by the inspections. It points out that Article 2(2) of the Decision allows Member States to increase the amounts charged over and above those set in the Decision if such an increase is necessary to recover the costs of the inspections. All of the meat present in the cutting premises, it submits, forms part of the cost basis for the inspections. It follows, according to the Dutch Government, that to restrict the basis for calculation of the fees to the proportion of the meat actually cut and boned would lead to a situation where all the costs would not necessarily be recovered.
            
         
               19.
            
            
               The Commission further submits that Article 3(1) of the Decision does not require the meat cut or boned to be weighed or quantified. In practice, therefore, it will not be known at the time that the inspection fee is payable exactly how much meat was cut and boned. The only obligation which Article 3(1) places on the operator of the cutting premises is to weigh the meat which enters those premises. If the fees were calculated on any other basis, the result would be to impose an extra obligation in respect of weighing which is not foreseen by the terms of the Decision.
            
         
               20.
            
            
               I am not convinced that the interpretation advanced by the Dutch Government and the Commission is consistent with the structure of the Decision or with its aim as stated in the preamble. It is clear from the preamble that in principle a single fee is to cover all inspections and controls, while the preamble recognizes that provision had to be made for those cases where cutting takes place in a separate installation. Where as in the present case the cutting takes place in the slaughterhouse itself, one would not expect the charge to be based on the entire quantity of meat present in the slaughterhouse.
            
         
               21.
            
            
               Turning to the language of the Decision, I should state at the outset that its drafting is not wholly felicitous and that the wording of Article 3 could support either the interpretation proposed by the applicant or that proposed by the Dutch Government and the Commission. The words ‘unboned meat intended for cutting’ used in Article 3(1) could be interpreted as being wider in scope than, for example, ‘meat actually cut’. On the other hand, the reference to ‘the controls and inspections connected with the cutting operations’ could lead to the conclusion that the basis for calculation is the operation of cutting itself.
            
         
               22.
            
            
               It seems to me that, where a provision which imposes a charge on an individual is ambiguous, the benefit of the ambiguity should accrue to the person charged. That result accords with the principle consistently upheld by the Court according to which preference should be given to the interpretation which renders the provision in question consonant with the Treaty and the general principles of Community law. (
                     8
                  ) As regards provisions which entail financial consequences, the Court has held repeatedly that they must be drafted in a clear and unambiguous manner. In particular, in Ireland v Commission (
                     9
                  ) the Court stated:
               ‘... Community legislation must be certain and its application foreseeable by those subject to it. That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them.’
            
         
               23.
            
            
               Where the Court has had to interpret an ambiguous provision which affected the financial position of the person subject to it, the Court has preferred the interpretation which entailed the lesser financial burden for that person. (
                     10
                  ) In view of the ambiguity of Article 3 of the Decision, it should be given the meaning which is less costly for the slaughterhouse concerned.
            
         
               24.
            
            
               Moreover, it would be illogical, and inconsistent with the principle of proportionality, to calculate the part of the fee relating to the inspection of the cutting premises on the basis of all the meat present in the cutting premises when those premises are part of the same establishment as the slaughterhouse. All the poultry present in the cutting premises will have undergone the ‘ante mortem’ and ‘post mortem’ inspections in accordance with Chapter IV of Annex I of Directive 71/118, and will have been declared fit for human consumption in accordance with Chapter VII of Annex I. After leaving the cutting room, in which the poultry will have been selected either for cutting or for packaging whole, the meat is placed in storage, which gives rise to further inspections for which a charge is levied in accordance with Article 4 of the Decision. Where the cutting premises form part of the same plant as the slaughterhouse, all the inspections arc carried out at the same establishment and all the poultry slaughtered will have served as a basis for calculating the amount of the fees in accordance with Articles 2(3) and 4 of the Decision. To charge the slaughterhouse an amount for inspection of the cutting operations based on all the meat present in the cutting room, when only a proportion of that meat will actually be cut and boned, would as I have suggested be illogical and would run counter to the principle of proportionality.
            
         
               25.
            
            
               The interpretation proposed by the Dutch Government and the Commission would moreover have anomalous results. If no cutting operations whatsoever take place, there are no operations which need to be controlled and inspected in accordance with Chapter IX of Annex I of Directive 71/118. As no inspections are required, no charge can be levied on the basis of Article 3 of the Decision. If, on the other hand, only a small proportion of the poultry is cut and boned, then according to the interpretation of the Dutch Government and the Commission, a charge is levied on the basis of all the poultry slaughtered which is present at some stage in the cutting room. Such a result seems anomalous when contrasted with the situation which prevails when no cutting operations take place. A charge based on the quantity of meat actually cut and boned produces a result which is better founded in logic.
            
         
               26.
            
            
               I am not convinced by the submission of the Dutch Government according to which charges calculated on a pro rata basis would not allow Member States to recover the costs of the inspections concerned. In the first place, it does not follow from the nature of the inspections laid down in point 42 in Chapter IX of Annex I of Directive 71/118 that they are completely unrelated to the level of activity and that the mere presence of poultry in the cutting premises constitutes the appropriate cost basis for the level of the charge. In addition, some of the administrative formalities will duplicate the formalities accomplished elsewhere on the premises which would have been covered by the charge levied in accordance with Article 2(4) of the Decision. If the costs of the inspections are not recovered, Member States may always have recourse to the possibility of an adjustment of the level of the fees in accordance with Article 2(2) of the Decision, which applies in the context of Article 3 also.
            
         
               27.
            
            
               Finally, the Commission submits that the interpretation proposed by the applicant causes practical difficulties and in particular that it results in imposing an extra obligation on the slaughterhouse to weigh the cut and boned chicken which leaves the cutting premises. According to the Commission, the only weighing obligation imposed is that in respect of the quantity of meat entering the cutting premises. I am not convinced of the force of that argument. There is no reason to construe point 42(a) of Chapter IX of Annex I of Directive 71/118 as requiring the meat entering the cutting premises to be weighed but not the meat leaving them. Indeed, it requires that records be kept in respect of both events. It seems practicable for the slaughterhouse to keep accurate records of the quantity of meat that it actually cuts in the cutting premises connected to the slaughterhouse. Furthermore, in the particular case of De Venhorst, the only chickens cut were those which weighed less than a given amount. That indicates clearly that De Venhorst was in a position to know the weight of the poultry concerned. In any event, a requirement to weigh it does not seem a particularly onerous one.
            
         Conclusion
      
               28.
            
            
               Accordingly, I am of the opinion that the question referred by the College van Beroep should be answered as follows:
               Article 3(1) of Council Decision 88/408/EEC of 15 June 1988 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Council Directive 85/73/EEC should be interpreted as meaning that the part of the fees referred to therein is to be calculated on the basis of the weight of the meat which is cut and boned.
            
         (
            *1
         )	Original language: English.
      (
            1
         )	Nederlandse Staatscourant 1985, 120; as modified by a regulation of 13 December 1990, Staatscourant 1990, 247.
      (
            2
         )	OJ 1988 L 194, p. 24.
      (
            3
         )	OJ 1971 L 55. p. 23.
      (
            4
         )	OJ 1975 L 192, p. 6.
      (
            5
         )	OJ 1992 L 62, p. 1.
      (
            6
         )	OJ 1985 L 32, p. 14.
      (
            7
         )	Cited at note 2.
      (
            8
         )	Sec in particular Case C-314/89 Rauh [1991] ECR I-1647, paragraph 17 of the judgment and Joined Cases 201/85 and 202/85 Klensch v Secrétaire d'Etat [1986] ECR 3477, paragraph 21.
      (
            9
         )	Case 325/85 [1987] ECR 5041, paragraph 18 of the judgment.
      (
            10
         )	Sec in particular Case 169/80 Administration des Douanes v Gondrand Frères [1981] ECR 1931; Case 70/83 Kloppenburg v Finanzamt Leer [1984] ECR 1075; Case 325/85 Ireland v Commission, cited at note 9 and Case 326/85 Netherlands v Commission [1987] ECR 5091.