JUDGMENT OF 5. 7. 1978 — CASE 138/77 LUDWIG v FREE AND HANSEATIC CITY OF HAMBURG

In Case 138/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesverwaltungsgericht (Federal Administrative Court) for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The decision making the reference and the written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and procedure

As stated in Article 1 thereof, Regulation (EEC) No 806/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187) covers inter alia prepared or preserved bovine meat coming within subheading 16.02 B III (b) 1 of the Common Customs Tariff. Article 20 (2) of the regulation in the following terms prohibits Member States from levying charges having an effect equivalent to customs duties on imports of those products from third countries:

‘Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission, the following shall be prohibited: the levying of any charge having effect equivalent to a customs duty; the application of any quantitative restriction or measure having effect, subject to the provisions of the Protocol on the Grand Duchy of Luxembourg.’

In June 1974 the transpon undertaking H. Ludwig, the appellant in the main action, imported into the Federal Republic of Germany a consignment of 14400 kg. of beef goulash in tins, from Hungary, accompanied by an official Hungarian veterinary certificate. Pursuant to German provisions laid down by law and regulation, those imports were subjected to a health inspection which gave rise to the imposition of a charge of DM 576 by the city of Hamburg, the respondent in the main action.

Taking the view that this was a charge having an effect equivalent to a customs duty, the levying of which is prohibited by the aforementioned Article 20 (2), the appellant in the main action sought reimbursement of the amount paid before the competent courts of the Federal Republic of Germany.

By a judgment of 10 April 1975, the Verwaltungsgericht Hamburg (Hamburg Administrative Court) dismissed that application, on the grounds that, having regard to Article 26 of Directive No 72/462 of 12 December 1972 (Official Journal, English Special Edition, 1972 (31 December); Journal Officiel L 302, 31 December 1972) on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries, the German provisions laid down by law and regulation which authorize the imposition of the charge (the Fleischbeschaugesetz, Law on the inspection of meat, and the Auslandfleischbeschaugebühren-Verordnung, Regulation on charges for the inspection of imported meat) are compatible with Community law. It held that although that directive, which governs health inspections for the animals and meat to which it refers expressly and which — particularly in Article 26 — authorizes Member States to impose charges in that connexion, does not refer to imports of preserved meat, it should however be applied by analogy in the present case, in particular as regards Articles 24 and 26. Otherwise importers of prepared meat from abroad would be placed in a more favourable position than those who import fresh meat and process it within the national territory.

The appellant in the main action lodged a Sprungrevision (direct appeal on a point of law) to the Bundesverwaltungsgericht (Federal Administrative Court), and by an order of 16 September 1977 that court referred the following question to the Court of Justice for a preliminary ruling:

‘Are Article 12 (1), (7) and (8) and Articles 23, 24 and 26 of Council Directive No 72/462/EEC of 12 December 1972 (Official Journal, English Special Edition, 1972 (31 December); Journal Officiel L 302, p. 28) applicable by analogy to the importation of prepared meat, with the result that the Member States are entitled or obliged to carry out health inspections and may impose charges for such inspections?.’

The order making the reference was registered at the Court Registry on 16 November 1977. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, the appellant in the main action, the respondent in the main action and the Commission submitted written observations. After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Observations of the appellant in the main action

The appellant in the main action first points out that the preserved meat imported from Hungary underwent in that country a health inspection offering every guarantee and resulting in the issue of a certificate, and then submits that there are two parts to the question raised. In fact the issue is whether the Member States, by application by analogy of the provisions of Directive No 72/462, are, on the one hand, entitled or obliged to carry out health inspections and, on the other, entitled to impose charges for such inspections.

It is submitted that, having regard to Article 36 of the Treaty, the first part of the question should be answered in the affirmative, but that the answer is different for the question of the costs relating to such inspections.

Article 17 (2) of Regulation No 121/67 of the Council on the common organization of the market in pigmeat (Official Journal, English Special Edition, 1967, p. 46) and Article 20 (2) of Regulation No 805/68 of the Council on the common organization of the market in beef and veal (Official Journal, English Special Edition, 1968 (I), p. 187), which apply to preserved meat under Article 1 of each of those regulations, prohibit Member States in trade with third countries from levying any customs duty or charge having equivalent effect, save as otherwise provided in those regulations or where derogation therefrom is decided by the Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission.

Although charges having an effect equivalent to customs duties are prohibited in principle, the Council made a derogation from that prohibition in Articles 12, 23, 24 and 26 of Directive No 72/462 in so far as the health inspections provided for by that directive are concerned. The question raised by the Bundesverwaltungsgericht is designed to ascertain whether the authorization to impose charges in Articles 12, 23, 24 and 26 can be extended by analogy to health inspections of meat — in particular preserved meat — not expressly provided for by the directive.

The appellant in the main action considers that application by analogy of the provisions cited to preserved meat is contrary both to the terms of the directive and to the intention of the legislature. The title of the directive mentions the importation of fresh meat, which Article 2 (0) of the directive defines as ‘meat which has not undergone any preserving process’. As Regulations Nos 121/67 and 805/68 on the organization of the market apply, for their part, to preserved meat, it would have been a simple matter for the legislature also to refer to preserved meat in Directive No 72/462, which it precisely refrained from doing. Moreover, Annex B to the directive, concerning slaughterhouses, packaging of fresh cut meat and so on, does not contain any provision relating to the equipping of meat-preserving factories or to the preserving of meat.

Furthermore, application by analogy cannot be allowed because the principle of the free movement of goods is one of the essential principles of the EEC Treaty and can be displaced only by an exception, which moreover must be interpreted restrictively (see the judgment of the Court of 12 February 1974, Case 152/73, Sotgiu [1974] ECR 153; and the judgment of the Court of 21 June 1974, Case 2/74, Reyners [1974] ECR 631).

Observations of the respondent in the main action

In the submission of the respondent in the main action, the question referred to the Court of Justice is of particular importance to the Länder (states of the Federal Republic) and the local authorities, as the implementation of the Federal laws concerning health inspections upon importation and the levying of charges comes under the jurisdiction of the Länder and the local authorities by virtue of Article 83 of the Grundgesetz (Basic Law). The respondent in the main action argues that the budgetary sovereignty of the Länder would be called in question if the Court of Justice held that the charge at issue is incompatible with Community law, and states that the Bundesverwaltungsgericht has reserved the right to refer the matter to the Bundesverfassungsgericht (Federal Constitutional Court) for examination of the compatibility of Article 20 (2) of Regulation No 805/68 with the German Grundgesetz.

The respondent in the main action proposes to consider the question raised in two separate parts:

A) It will first consider whether the charges imposed in respect of health inspections in imports of preserves from third countries are still to be described as charges having equivalent effect, and it will propose that that question should be answered in the negative;

B) Then, in the event that those charges do have to be classified as charges having equivalent effect, it will consider whether they are justified because they come within the exemption from prohibition provided in Article 20 (2) of Regulation No 805/68.

(A) Do the charges at issue constitute charges having an effect equivalent to a customs duty?

The respondent in the main action states that, in accordance with the case-law of the Court of Justice, the Bundesverwaltungsgericht held that although charges imposed in respect of health controls on imports of meat from third countries generally constitute charges having an effect equivalent to customs duties, there are three cases, according to that case-law, in which the position is different, namely:

If the charge represents the consideration for a service actually provided for the importer; or

If the charge relates to a general system of internal taxation applied systematically in accordance with the same criteria to domestic and imported products alike; or, finally,

If the charge is imposed in respect of health inspections which are required to be carried out by a provision of Community law.

Although the Bundesverwaltungsgericht has already held that the charges at issue do not come within either of the first two cases, and although its question essentially concerns the third case, the respondent in the main action considers that it should submit observations on each of the three cases mentioned.

I — Consideration for a service actually provided

The Bundesverwaltungsgericht's finding that health inspections are carried out not in the interest of the importer but in the public interest is incorrect because it is too broadly stated. It cannot be denied that the inspection is at the very least carried out in the importer's own interest as well.

II — Charges relating to a general system of internal taxation

The respondent in the main action argues that, in holding that a financial charge on imported goods comes within a general system of internal taxation only if it is levied on them at the same suge of production as that at which it is levied on domestic products, the Bundesverwaltungsgericht misunderstood the import of the judgment of the Court of 5 February 1976 in Case 87/75 (Bresciani [1976] ECR 129), the 11th paragraph of the decision in which reads as follows:

‘(…) unless those charges and the duty in question are applied according to the same criteria and at the same suge of production (…).’

It is argued a contrario from that paragraph that the charge levied upon importation comes within a system of internal taxation where the charges are levied either according to the same criteria or at the same suge of production.

The national court also overesumated the scope of the requirement that charges on domestic and imported products should be similar in that it confused similarity and identity and required that the bases of calculation for the charge should be identical for imported goods and domestic products. Such an interpretation is contrary to the principle of equality, which the Court recognized, in its judgment of 19 October 1977 (Joined Cases 117/76 and 16/77, Ruckdeschel and Diamalt [1977] ECR 1753), as constituting an unwritten principle of Community law according to which fundamentally similar situations must not arbitrarily be treated differently, but fundamentally different situations must also not arbitrarily be treated on a footing of equality. To stipulate, as a condition for regarding the health inspection charges at issue as part of a general system of internal taxation, that inspections on the manufacture of preserves within a Member State and inspections on imported tins of preserves should take place at the same stage, is to subject fundamentally different situations to the same treatment.

III — Charges imposed by Community law

(1). The respondent in the main action states that it follows from the judgments of the Court of Justice of 25 January 1977 (Case 46/76, Bauhuis [1977] ECR 5) and 12 July 1977 (Case 89/76, Commission v Netherlands [1977] ECR 1355) that charges imposed in respect of inspections which are required by Community law do not constitute charges having an effect equivalent to a customs duty in so far as they do not exceed the actual cost of the inspection. The charges in dispute, which are fixed pursuant to the principle of the covering of costs, comply with that criterion.

(2). Since at the time of the importation at issue there were no specific Community arrangements for health inspections on imports of prepared meat from third countries, the question arises whether that legal lacuna should not be filled by the application by analogy of certain provisions of Directive No 72/462.

(3). Starling from the premise — supported by learned writing and case-law — that reasoning by analogy may be employed in interpreting Community law, the respondent in the main action submits that it should be considered whether the Council patently intended the legal consequences of Directive No 72/462 to be extended to a factual situation which the Council did not deal with, and whether such an extension is demanded by the purpose at which the directive is aimed.

(4). The respondent in the main action states that the questions raised by the national court are not concerned with application by analogy of all the provisions of that directive, but only with application by analogy of Article 12 (1), (7) and (8) and Articles 23, 24 and 26.

(5). Veterinary and public health inspections upon importation are based on entirely different principles according to whether intra-Community trade or trade with third countries is concerned. The three directives relating to intra-Community health inspections (No 64/433 of 26 June 1964 — fresh meat — Official Journal, English Special Edition 1963-1964, p. 185; No 71/118 of 15 February 1971 — fresh poultrymeat — Official Journal, English Special Edition 1971 (I), p. 106; No 77/99 of 21 December 1976 — meat products — Official Journal 1977 L 26, p. 85) are based on the principle of mutual trust. On the other hand, Directive No 72/462 relating to health inspections on bovine animals and swine and fresh meat from third countries is based on the principle of distrust with regard to third countries. Articles 12, 23 and 24 of that directive provide — in the respondent's submission — that prepared meat from third countries must, on arrival in the territory of the Community, first undergo a health inspection, and then, on importation into the Member State of destination, undergo a public health inspection and an animal health inspection. Moreover, the 14th recital in the preamble states that the inspection must be applied to each individual consignment.

(6). Another feature of Directive No 72/462 is that it states who is to bear the costs pertaining to the inspections upon importation, whereas the directives relating to intra-Community trade do not contain any provision on the imposition of a charge in respect of such inspection.

(7). The respondent in the main action concludes that the basic structure of the Community rules on trade in meat in any form leave no doubt as to the fact that the Community rules on prepared meat from third countries which the Council may have in mind to adopt will also be based on the principle of distrust and will impose compulsory public health inspections as well as animal health inspections upon importation into the Member Sute of destination. Accordingly, it should be accepted that it is in accordance with the intention of the Council for prepared meat, on importation from a third country, to undergo public health and animal health inspections in the same way as live animals and fresh meat. Doubtless, Member States are bound to comply with the provisions on the Community procedure only as from 1 January 1977 (Article 32), but in accordance with the characteristics of the directives they are none the less empowered to do so before that date, which should be taken into account if appropriate in answering the question raised. The respondent in the main action submits that there is no valid reason to penalize a Member Sute which has complied with a directive before the latest date stipulated for its entry into force by prohibiting the charges imposed by it in implementation of those measures until that date has been reached on the grounds that those charges constitute charges having an effect equivalent to a customs duty. On the contrary, those charges should be regarded as being without that characteristic prior to the aforementioned date.

(B) At all events the charges at issue come within the exception provided in Article 20 (2) of Regulation No 805/68

The foregoing observations by the respondent in the main action were based on the assumption that the charge imposed does not constitute a charge having equivalent effect. If the Court of Justice held to the contrary, the question raised could be interpreted as meaning that the Bundesverwaltungsgericht wishes to ascertain whether it is possible to apply by analogy only such provisions as relate to the cost of inspections (Articles 12 (8), 23 (4) and 26 of Directive No 72/462).

Citing the Commission's observations in Case 21/75, Schnieder [1975] ECR 911 (judgment of 9 July 1975), the respondent in the main action argues that the said provisions are an exception to the prohibition laid down in Article 20 (2) of Regulation No 805/68. It is submitted that in the present case that exception is applicable by analogy to prepared meat from third countries for the following reasons.

It is possible to infer from the provisions relating to the cost of inspections a principle of Community law according to which if public health controls upon importation are carried out in the public interest, the financing of the expenses connected with them must be borne not by the budgets of the public institutions but by the shipper or importer. Secondly, the prohibition enacted by the combined provisions of Article 24 of Regulation No 805/68 and Article 92 et seq. of the EEC Treaty concerning aid would be infringed if the public health inspection of prepared meat from third countries, unlike the arrangements applicable to all meat imported in other forms, were to be carried out at the expense of the public authorities.

Citing, so far as relevant, the questions referred by the Pretore d'Alessandria in Case 70/77, Simmenthal, concerning the compatibility of certain provisions of Directive No 72/462 with superior rules of Community law in view of the fan that the costs of health inspections have not been standardized, and referring to its foregoing observations and to paragraphs 35 and 36 of the Decision of the Court of 25 January 1977 (Case 46/76, Bauhuis loc. cit.), the respondent in the main action concludes that the provisions of the directive relating to the cost of health inspection are compatible with Community law.

In conclusion the respondent in the main anion proposes the following answer to the question referred by the Bundesverwaltungsgericht :

‘Article 12 (1), (7) and (8), Article 23, Article 24 and Article 26 of Directive No 72/462/EEC are to be applied by analogy to prepared meat from third countries, with the consequence that Member States were entitled to carry out health controls upon importation until 31 December 1976 and are obliged to do so as from that date, and that both before and after 31 December 1976 they are empowered to impose charges in so far as such charges do not exceed the actual costs of the inspections.’

Observations of the Commission

The Commission gives a summary of the provisions of national law and Community law applicable and then observes that German public health and veterinary law comes within the concurrent legislative power of the Federation and the Lander. It points out, first, that preserved meat manufactured in German territory undergoes foodstuffs inspection by sampling without fees or charges. The fresh meat used, whether imported or slaughtered in domestic territory, has first undergone public health inspection. On the other hand, imported preserved meat is regarded as meat subject to official inspection and is liable to fees and charges. After it has been imported, such preserved meat undergoes foodstuffs inspection in the same way as identical domestic products. The Commission points out, secondly, that from the point of view of Community law preserved meat comes under Regulation No 805/68 on the common organization of the market in beef and veal, Article 20 (2) of which prohibits the levying of any charge having equivalent effect on the inspection of meat from third countries, save as otherwise provided in the Regulation itself or where derogation from the regulation is decided by the Council.

The Commission then emphasizes that while the various common organizations of the market cover all kinds of meat, fresh or prepared, the harmonization of the health inspections on animals and meat coming within those organizations has only been partially attained. In particular, so far as products imported from third countries are concerned, only Directive No 72/462 has been issued and it relates only to domestic bovine animals and swine and fresh meat of domestic animals of the following species: bovine animals, swine, sheep and goats and solipeds (Article 1 (1)) but not therefore to preserved meat. Although the inspections provided for in Articles 12 and 23 to 26 of that directive are not yet wholly applicable since various implementing measures which should have been adopted at the Community level have not yet been taken, the Commission is of the opinion that to the extent to which it is necessary to consider the charges levied for the inspections as charges having an effect equivalent to customs duties, Articles 12 (8), 23 (4) and 26 of Directive No 72/462 in any case constitute a derogation within the meaning of Article 20 (2) of Regulation No 805/68 from the prohibition on levying charges having equivalent effect laid down by that same provision. Although that derogation is contained in a directive the Commission takes the view that it fulfils the conditions of the procedure laid down in Article 43 (2) of the EEC Treaty.

Therefore the imposition of charges by the competent national authorities is not an infringement of a superior provision of Community law, since the Treaty itself contains no absolute prohibition on the imposition of charges equivalent to customs duties in relation to third countries and since in adopting Directive No 72/462 the Council used its powers validly when it ordered standard inspections upon importation of certain goods and when it provided that the costs arising therefrom should be borne by the business circles concerned.

Going on to consider the question referred for a preliminary ruling, the Commission observes that since products are concerned which do not come directly under the provisions of Directive No 72/462, the latter's rules on costs could at most be considered to apply by analogy. Such an application by analogy should not be rejected on the sole ground that the arrangements for defraying the costs were not yet applicable at the date of the importation in question (June 1974) and that even at present they still cannot be applied in their entirety. In fact, regardless of that problem, those provisions render specific a guiding legislative concept of the Community legislature which aims to make the costs of the public health measures applied uniformly on the basis of Community law payable by the traders concerned. Moreover, the scope of such rules with regard to economic policy, and more particularly competition policy, is incontestable. It is in fact probable that future rules will contain a solution to the problem of costs which is in accordance with the present approach. For that reason, the Verwaltungsgericht Hamburg rightly spoke, in its judgment of 10 April 1975, of the ‘anticipation’ of future Community legislation. However, that finding by the Verwaltungsgericht Hamburg clearly shows up the problems which application by analogy raises in the area of public law and in that of respect for fundamental rights.

The Commission claims, first, that since the provisions in question come within tax law their content must be subject to strict requirements for the due protection of interested parties and that therefore application by analogy is prohibited for that very reason. Legal certainty would be jeopardized if the substantive field of application of a tax law, having once been laid down in detail, were to be given a wide interpretation. However, in the present case the category of goods to which Directive No 72/462 applies and the authorization to levy charges relating thereto are clearly delimited.

The Commission then draws attention to the close relationship established by the directive between the inspections and the responsibility for the costs involved therein. To apply the provisions on costs by analogy would amount to applying the inspections by analogy; but such an application by analogy of the inspections provided for fresh meat to preserved meat is prohibited in substance. On the other hand nothing in the system applied until now by Community law in the field of preventive public health measures enables the conclusion to be drawn that national inspections caried out on goods from third countries without authorization from Community law must be subject to a charge levied on the importer.

The interdependence between the inspections and the responsibility for the costs shows that the function of case-law cannot be to ‘encroach upon’ the task entrusted to the Community legislature with regard to harmonization by filling the lacunae therein by judicial process. In its case-law, the Court of Justice has always emphasized most strongly the importance of fundamental rights in the Community. According to the Commission, the fact that Community law must uphold these rights prohibits the extension in this case of the application of the compulsory levying of charges for public health inspections carried out on imports from third countries to goods other than those listed in the directive.

The Commission concludes from the foregoing that it is necessary to reply in the negative to the question referred to the Court.

III — Oral procedure

At the public hearing on 18 April 1978 oral argument was presented by the appellant in the main action, represented by B. Festge of the Hamburg Bar, the respondent in the main action, represented by P. Wendt, also of the Hamburg Bar, and the Commission of the European Communities, represented by its Agent, Mr Beschel.

The Commission of the European Communities answered certain questions concerning the application of Directive No 72/462.

The Advocate General delivered his opinion at the hearing on 2 May 1978.

After examining certain documents which the Commission had mentioned during the oral procedure and which it lodged after the oral procedure had been closed, counsel for the respondent in the main action asked the Court in a letter of 29 May 1978 to consider whether it would be advisable to reopen the oral procedure ‘in case the Court of Justice should wish to take account of those documents in order to reach its decision’.

During the oral procedure, the Commission had commented upon those documents in support of its observations concerning the extent to which Directive No 72/462 had been implemented, and the respondent in the main action had replied on that point.

The documents produced do not introduce any fresh evidence in relation to that which was known at the end of the written procedure, in particular following the questions asked by the Court of Justice and the answers which were given to them.

After hearing the views of the Advocate General and finding in the Deliberation Room on 7 June 1978 that all the evidence necessary for it to give an answer to the question referred to it in this case was in its possession, the Court decided that it was not necessary to reopen the oral procedure.

Decision

1. By an order of 16 September 1977 which was received at the Court on 16 November 1977, the Bundesverwaltungsgericht requested the Court of Justice to give a preliminary ruling under Article 177 of the Treaty on the question whether ‘Article 12 (1), (7) and (8) and Articles 23, 24 and 26 of Council Directive No 72/462/EEC of 12 December 1972 (Official Journal, English Special Edition 1972 (31 December); Journal Officiel L 302, p. 28) are applicable by analogy to the importation of prepared meat, with the result that the Member States are entitled or obliged to carry out health inspections and may impose charges for such inspections’.

2. That question is referred in the context of a dispute between the administrative authorities of the Free and Hanseatic City of Hamburg and an undertaking importing prepared beef in tins (goulash) from Hungary, concerning the compatibility with Community law of charges imposed by those administrative authorities in respect of a health inspection carried out on that meat in June 1974.

3. Under Article 1 of Regulation No 805/68 of the Council (Official Journal, English Special Edition 1968 (I), p. 187) preserved bovine meat comes within the common organization of the market in beef and veal which was established by that regulation. Accordingly, imports of those products from third countries come under Article 20 (2) of the said regulation, according to which: ‘Save as otherwise provided in this regulation or where derogation therefrom is decided by the Council, acting in accordance with the voting procedure laid down in Article 43 (2) of the Treaty on a proposal from the Commission, the following shall be prohibited : the levying of any charge having effect equivalent to a customs duty; the application of any quantitative restriction or measure heaving equivalent effect, subject to the provisions of the Protocol on the Grand Duchy of Luxembourg’.

4. Council Directive Nos 72/462 of 12 December 1972 (Official Journal, loc cit) on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries provides for the organization of a uniform health inspection, the detailed rules for which are to be established by the Council, the Commission or the Member States, as the case may be. Article 12 (1) and (7) and Articles 23, 24 and 25 of the directive place a duty on Member States to carry out a health inspection upon importation of animals (Article 12) and fresh meat (Articles 23, 24 and 25), and Articles 12 (8), 23 (4) and 26 provide that the expenditure incurred pursuant to the articles in question ‘shall be chargeable to the consignor, the consignee or their agents, without repayment by the State’. As the Court found in its judgment of 28 June 1978 in Case 70/77 Simmenthal, in providing that the expenses of the veterinary and public health inspections at issue must be charged to the traders specified, those provisions do not prohibit the attribution of those expenses from being effected by means of the imposition of charges, provided that the latter do not exceed the actual cost of the inspections. Thus they constitute a derogation, within the meaning of Article 20 (2) of Regulation No 805/68, from the prohibition placed by that provision on the levying of charges having equivalent effect.

5. In view of the fact that Directive No 72/462 concerns only health inspections upon importation of bovine animals and swine and fresh meat of certain domestic animals, but does not mention prepared or preserved meat, the national court has raised the question whether that derogation is applicable by analogy.

6. Before deciding the question whether those provisions are applicable by analogy, it must be considered whether they were already applicable at the time of the importation at issue and could be relied upon the administrative authorities of the Member Sutes in order to justify the imposition of charges.

7. In order to enable those derogations to take effect, the inspections of which they are designed to cover the costs must have been organized in accordance with the directive and applied by the Member States concerned. In fact, each of the provisions referred to clearly states that the expenditure which is to be recovered is that incurred pursuant to Articles 12, 23, 24 and 25 of the directive.

8. A large number of the provisions of the directive cannot be applied until the necessary measures have been taken by the Community authorities, particularly in the context of the procedure for obtaining the opinion of the Standing Veterinary Committee which is referred to in Articles 29 and 30 of the directive. In particular, the implementation of the inspections provided for in Articles 12, 23, 24 and 25 of the directive requires — at all events in so far as it concerns trade and transport other than transit through the Community from one third country to another third country — various implementing measures to be adopted by the competent Community authorities. As the Court found in its aforementioned judgment of 28 June 1978 in Case 70/77, Simmenthal, most of those measures have not yet been adopted, so that application of Articles 12, 23, 24 and 25 of the directive is not possible. Thus, since the conditions laid down by Directive No 72/462 itself as the basis for the imposition of health inspection charges by way of derogation from the prohibition on the levying of charges having equivalent effect have not been fulfilled, at the present stage of its implementation that directive cannot justify the imposition of the said charges. Moreover, it is not possible to accept the argument that, by applying the national animal health legislation in force at the time when the directive was adopted, the Member States were in some sense applying the directive in anticipation, in that, for the purposes of public health, the inspections which they apply pursuant to that legislation in fact offer guarantees similar to those which the directive is intended to achieve. In fact, the purpose of the directive is not to reinforce the arrangements for the protection of public health in the Member States, but to ensure the uniformity of the inspection systems with a view to preventing distortions of competition and deflections of trade within the Common Market. However, it should be pointed out, in so far as it is relevant, that, as the Court found in its aforementioned judgment of 28 June 1978, Simmenthal, as regards imports of fresh meat from third countries, an exception is made to the prohibition on the imposition of health inspection charges to the extent provided for in Article 9 of Directive No 64/433 of 26 June 1964 (Official Journal, English Special Edition 1963-1964, p. 185) concerning intra-Community trade in fresh meat, according to which: ‘If the Community provisions relating to importation of fresh meat from third countries do not apply at the time when this directive enters into force, or pending their becoming applicable, national provisions relating to imports from those countries shall not be more favourable than those governing intra-Community trade’.

9. Since at the date of this judgment Article 12 (1), (7) and (8) and Articles 23, 24 and 26 of Council Directive No 72/462 of 12 December 1972 have not yet taken effect in the areas to which they expressly refer, there can be no question of applying those provisions by analogy.

10. Moreover, even if Articles 12 (8), 23 (4) and 26 of Directive No 72/462 were to be regarded as being applicable in June 1974, the date of the importation at issue, application of those provisions by analogy should be rejected. The imposition of charges in the cases referred to in the directive is directly linked to the introduction of a uniform Community system of inspection answering the demands of the introduction of a Common Customs Tariff. On the other hand, charges unilaterally determined by Member States run counter to that need, and therefore the provisions which allow them to be imposed cannot be extended beyond their own field of application.

11. Therefore Directive No 72/462 is not a particular application of a general principle of Community law to the effect that any inspection at the external frontiers of the Community may give rise to the imposition of charges fixed by Member States, but merely an application of the derogation made possible by Article 20 (2) of Regulation No 805/68 from the prohibition laid down in that article on the levying of charges having an effect equivalent to customs duties in trade in the products concerned.

Costs

12. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds, THE COURT, in answer to the question submitted to it by the Bundesverwaltungsgericht by an order of 16 September 1977, hereby rules: