Commission of the European Communities v Federal Republic of Germany.
Date: 2009-03-19
30. As regards, secondly, the interpretation of point 4(b) of Chapter I of Annex A to Directive 85/73, it must be stated first of all that, contrary to what the Commission claims, the Court did not hold, in paragraph 56 of Stratmann and Fleischversorgun g Neuss , that the special fee provided for in that provision must take the form of a standard-rated payment.
31. The increases referred to by the Court in paragraph 56 of that judgment are those laid down in point 4(a) of Chapter I of Annex A to Directive 85/73, that provision being the only one to use the terms ‘increase’ and ‘standard amounts’. The second part of paragraph 56, which concerns the option available to the Member States to charge a special fee exceeding the levels of the Community fees, does not refer to a standard-rated payment, but merely makes the use of that option subject to the single condition that that fee must cover the entire actual costs.
32. It follows that that fee must, first, not exceed the amount of the actual costs and, secondly, take into account all those costs, none of which may be excluded. It cannot therefore take the form of a ‘standard’ fee in the sense in which the Commission construes that term since, as the Court held in paragraph 52 of Stratmann and Fleischversorgung Neuss , 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.
33. It must be added that that interpretation of paragraph 56 of Stratmann and Fleischversorgung Neuss  is completely consistent with the scheme of that judgment, since that paragraph forms part of a wider argument intended to address the issue of whether the costs of bacteriological examinations and examinations for trichinae carried out in accordance with Community secondary legislation are covered by the Community fee charged by the Member States for health inspections and controls of fresh meat pursuant to that Community legislation or if that legislation authorises those States to charge a special fee which should be added to the Community fee in order to cover those costs.
34. Since, in addressing the question referred for a preliminary ruling in the case which gave rise to the judgment in Stratmann and Fleischversorgung Neuss , the Court did not answer the question whether a fee charged pursuant to point 4(b) of Chapter I of Annex A to Directive 85/73 must take the form of a standard-rated payment, it is impossible to infer any conclusion as to the answer to that question from that judgment.
35. Secondly, it must be pointed out that the judgment in Feyrer  calls into question an interpretation of point 4(b) of Chapter I of Annex A to Directive 85/73, according to which a fee charged under that provision cannot consist of several elements.
36. In paragraph 26 of Feyrer , in which point 4(b) of Chapter I of Annex A to Directive 85/73 is referred to, the Court observed that, pursuant to Article 2(3) of that directive, which is now Article 5(3) thereof, the ‘total fee collected’ to which that provision refers must not exceed the actual figure for inspections. The ‘total’ fee necessarily results from the addition of the various constituent elements of that fee.
38. It must be added in this connection that, in the present case, it is common ground that the fee at issue does not exceed the actual costs. Accordingly, the fee does not infringe point 4(b) of Chapter I of Annex A to Directive 85/73 in that regard either (see, to that effect, Feyrer , paragraphs 27 and 29).
42. As regards, secondly, the objective of taking action to counteract distortions of competition, that action takes the form, not of the introduction of a fee of a uniform amount applicable throughout the European Community, but of the adoption of harmonised rules on the financing of health inspections and controls of fresh meat (see, to that effect, Feyrer , paragraph 40). Accordingly, the measures for inspection and control have been harmonised as have, as is shown by Article 5(1) of Directive 85/73 and points 4 and 5 of Chapter I of Annex A thereto, the various cost elements which may be taken into consideration to determine the Community fee.
49. It is the Court’s settled case-law in that regard that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, Case C‑365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 32, and Case C‑275/04 Commission  v Belgium  [2006] ECR I-9883, paragraph 34).
50. Although the heads of claim set out in the application cannot in principle be extended beyond the failures to fulfil obligations alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less the case that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community measure, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the measure in question, as otherwise it would constitute a breach of the essential procedural requirements governing infringement proceedings (see, to that effect, Case C‑363/00 Commission  v Italy  [2003] ECR I‑5767, paragraph 22, and Commission  v Belgium , paragraph 35).