Anton Feyrer v Landkreis Rottal-Inn.
Date: 1999-09-09
4 Article 1(2) provides:
`The fees referred to in paragraph 1 shall be fixed so as to cover the costs incurred by the competent authority for
- salary costs, including social-security costs,
- administrative costs, which may include the expenditure required for in-service training of inspectors
for carrying out the controls and inspections referred to in paragraph 1.'
21 The Court has consistently held (see, inter alia, Case C-76/97 Tögel [1998] ECR I-5357, paragraph 42) that whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied on by individuals against the State where the State fails to transpose the directive into national law within the prescribed period or where it fails to do so correctly.
24 The Court has already held, in relation to Decision 88/408 (which the Directive replaced) that the fact that a decision allows the Member States to which it is addressed to derogate from clear and precise provisions contained therein does not in itself deprive those provisions of direct effect and that, in particular, such provisions may have direct effect where recourse to the possibilities of derogation thus provided for is subject to judicial review (Case C-156/91 Hansa Fleisch [1992] ECR I-5567, paragraph 15).
25 Accordingly, the Court held that the option, available to Member States under Article 2(2) of Decision 88/408 but subject to the conditions referred to in the Annex thereto, of derogating from the standard levels of the fees laid down by Article 2(1), did not deprive that provision of direct effect (Hansa Fleisch, cited above, paragraphs 16 and 17).
26 In the case of the Directive, it should be noted that point 4 of Chapter I of the Annex thereto authorises Member States to cover increased costs by allowing them - in respect of a given establishment and subject to certain conditions identical in substance to those laid down in the Annex to Decision 88/408 - not only to increase the standard amounts fixed (point 4(a)), but also to collect a special fee covering actual costs (point 4(b)).  Moreover, Article 2(3) of the Directive gives Member States general authorisation to collect an amount exceeding the levels of the standard fees, provided that the total fee collected is not greater than the actual figure for inspection costs.
27 Thus, whereas the option made available to Member States under point 4(a) of Chapter I of the Annex to the Directive of increasing the standard levels of fees offers them the possibility of derogating from Community levels in respect of particular establishments and subject to certain conditions open to judicial review, the option made available under point 4(b) of collecting a special fee covering actual costs is one which they may exercise generally and at their own discretion, provided only that the fee does not exceed the actual costs incurred.
29 The answer to the first question must therefore be that, where a Member State has not transposed the Directive into national law within the period prescribed, individuals cannot oppose the collection of fees higher than the levels of the standard amounts fixed in point 1 of Chapter I of the Annex to the Directive, where those fees do not exceed the actual costs.
Question 2
34 The first point to note here is that, as the Court has held, each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Hansa Fleisch, cited above, paragraph 23).
35 Next, it should be recalled that the Court held in Hansa Fleisch that no provision of Decision 88/408 precluded Member States from entrusting to regional or local authorities the powers to derogate from the standard levels of fees, under the conditions and within the limits laid down by Article 2(2) of that decision (paragraph 24).
40 That conclusion is not invalidated by considerations based on the aim of the Directive.  By authorising, in addition to the collection of fees at the standard level, collection of fees at a higher level covering inspection costs actually incurred, the Directive does not seek to establish uniform fees throughout the Community but rather, as the sixth and seventh recitals in its preamble indicate, to prevent distortions of competition arising from the fact that, as regards the financing of health inspections and controls introduced by Community law, the rules applied vary from Member State to Member State.