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 35 1 (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 35 3 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 t he 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.