JUDGMENT OF 22. 3. 1983 — CASE 88/82 AMMINISTRAZIONE DELLE FINANZE v LEONELLI

In Case 88/82 REFERENCE to the Court under Article 177 of the EEC Treaty by the Corte Suprema di Cassazione [Supreme Court of Cassation] for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: J. Menens de Wilman, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, T. Koopmans, O. Due and K. Bahlmann, Judges, Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted under 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

1. The common organization of the market in poultrymeat, at present governed by Regulation No 2777/75 of the Council of 29 October 1975 (Official Journal, L 282, p. 77) was at the time of the facts in issue governed by Regulation No 123/67 of the Council of 13 June 1967. Article 11 (2) thereof, substantially identical to Article 11 (2) of Regulation No 2777/75, provides: Further, Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat seeks to standardize hygiene requirements in respect of poultrymeat in slaughterhouses and during storage and transport. As regards intra-Community trade in such meat the said directive basically provides that the exporting Member State shall deliver a health certificate giving the authorities of the Member State of destination an assurance that the consignment complies with the provisions of the directive. As regard imports from nonmember countries Article 15 of the directive provides : Article 16 of the directive is worded as follows :

“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 Commision, the following shall be prohibited:

The levying of any customs duty or charge having equivalent effect;

The application of any quantitative restriction or measure having equivalent effect, subject to the provisions of the Protocol on the Grand Duchy of Luxembourg.”

“Until the entry into force of Community provisions concerning imports of fresh poultrymeat from third countries, Member States shall apply to such imports provisions which are atleast equivalent to those of this directive.”

“Without prejudice to Article 14, Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive and its annexes:

a) in respect of intra-Community trade: within two years following notification of the directive;

b) in respect of fresh poultrymeat produced and marketed in their territory: within a maximum of five years following notification of the directive.”

2. Armando and Ottavio Leonelli brought an action against the Amministrazione delle Finanze before the Tribunale [District Court], Trieste, for an order requiring the Amministrazione to refund the sums they had paid by way of veterinary and public health inspection charges on imports effected between 1968 and 1975 of live poultry and other farmyard animals from Hungary. In support of their claim they alleged that the charges ought not to have been levied because they were prohibited by Regulation No 123/67 of the Council of 13 June 1967 as interpreted in the light of the judgment of 5 February 1976 in Case 87/75 Bresciani [1976] ECR 129. The Tribunale, Trieste, allowed the claim and by judgment dated 21 October 1977 ordered the Amministrazione delle Finanze to refund to the plaintiffs the sum of LIT 23938555. The judgment of the court of first instance was confirmed by the Corte d'Appello [Court of Appeal], Trieste, by judgment dated 17 March 1979. The Amministrazione delle Finanze thereupon appealed in cassation and cited the judgment of 28 June 1978 in Case 70/77 Simmenthal [1978] ECR 1453 in which the Court expressly recognized the lawfulness of health charges levied on imports from nonmember countries. Before the Corte Suprema di Cassazione the respondents relied on the judgment of 22 January 1980 in Case 30/79 Wigei [1980] ECR 151. In that judgment the Court, whilst recognizing in certain circumstances the lawfulness of charges under Article 15 of Directive 71/118, justified them by the fact that the said provision requires Member States tó apply to imports from nonmember countries provisions which are “at least equivalent”, to those required by the directive in relation to intra-Community trade. According to the respondents the Italian Republic had not at the relevant time brought into force the directive in relation to intra-Community trade.

3. The Corte Suprema di Cassazione took the view that the case involved problems of the interpretation of Community law and by order dated 15 May 1981 stayed the proceedings and referred the following question to the Court of Justice pursuant to Article 177 of the EEC Treaty: In the grounds of the order it is stated that when Articles 15 and 16 of Directive 71/118 are correlated doubt arises whether the power to derogate from the prohibition of levying veterinary and public health inspection charges is subject also to the proviso that the Member State has already taken the necessary measures to comply with the provisions of the said directive — a condition which had not been satisfied by Italy at the relevant time.

“Is Article 15 of Council Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat to be interpreted as meaning that the derogation provided for therein from the prohibition of the levying of customs duties, other than those specified in the Commons Customs Tariff, and national charges having equivalent effect (a prohibition laid down by Regulation No 123/67/EEC of the Council of 13 June 1967 on the common organization of the market in poultrymeat) and, therefore, the right of each Member State to continue to levy such charges are subject to the additional condition that the Member State in question has already adopted the laws, regulations and administrative provisions needed to comply with the aforesaid directive?”

4. The order making the reference was lodged at the Court Registry on 12 March 1982. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were lodged by Armando Leonelli, represented by Mario Simonazzi, of the Milan Bar, and Guido Sadar, of the Trieste Bar; by the Italian Government, represented by Sergio Laporta, Avvocato dello Stato; and by the Commission of the European Communities, represented by its Legal Adviser, Gianluigi Campogrande. Upon 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

1. Mr Leonelli argues that the prohibition in Article 11 (2) of Regulations Nos 123/67 and 2777/75 of levying customs duties and charges having an equivalent effect in trade with nonmember countries applies where Member States have not yet adopted the measures necessary to apply the derogations provided in Directive 71/118 as amended by Council Directive 75/431 of 10 July 1975 (Official Journal, L 192, p. 6). According to the case-law of the Court any pecuniary charges imposed by reason of veterinary or public health inspection on imports from nonmember countries are to be regarded as charges having an effect equivalent to customs duties unless they relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic products and imported products alike (judgment of 15 February 1976 in Case 87/75 Bresciani [1976] ECR 129; judgment of 28 June 1978 in Case 70/77 Simmenthal[197%] ECR 1453). The Court nervertheless recognized that there may be stricter inspection in relation to trade with nonmember contries pursuant to Article 15 of Directive 71/118 (judgment of 22 January 1980 in Case 30/79 Wigei [1980] ECR 151). In the light of that case-law the question submitted for a preliminary ruling calls for the following answer: To show the validity of that contention Mr Leonelli emphasizes the derogative nature of Article 15 of Directive 71/118. The said article has been replaced by Article 12 of Directive 75/431 which refers to “the implementation” (and not “entry into force”) of Community provisions concerning imports of fresh poultrymeat from nonmember countries. The latter directive fundamentally amended Directive 71/118. In particular it allowed additional periods for the implementation of Directive 71/118 extending from 15 August 1977 at the earliest until 15 August 1981 at the latest. In other words, in pursuing the objective of approximating the rules and structures existing in the Member States the Council allowed the Member States an opportunity to derogate from the periods laid down in order to allow them to make the prescribed adaptations whilst at the same time establishing Community inspection to check whether the prescribed measures were uniformly applied in all the Member States. Mr Leonelli then proceeds to review the measures adopted in Italy to implement Directives 71/118 and 75/431. The adoption of laws, regulations and administrative provisions was begun by Decree No 1000 of the President of the Republic of 12 November 1976 and completed by ministerial orders of 7 September 1977 and 25 July 1979 implementing Article 3 of Decree No 1000 of the President of the Republic. It is apparent from that legislation that for the implementation of the provisions contemplated by Directives 71/118 and 75/431 the Italian State laid down periods extending until 15 August 1979 and, in certain special cases, until 15 August 1981. Thus, says Mr Leonelli, Italy proceeded before 1 January 1977 to make the necessary adaptations to its legislation but subsequently specified periods which were to elapse before the Community provisions were to enter into force. The result is that Directive 71/118 cannot apply in the present case at least as regards the Community procedure in all its complexity. The obligations under that directive take effect at the earliest when the Member States are in a position to comply with the provisions of the subsequent Directive 75/431. In particular as regards Italy the two directives take effect only on the adaptation by the Italian State of its own national legal system to the directives, that is to say at the earliest, 1 January 1977. That proposition finds support in the judgment of 22 January 1980 in the aforesaid case of Wigei where the Court found that “Community law does not require Member States to show the same degree of confidence towards nonmember countries as that which ... should characterize relations between Member States”. Since according to the relevant directives health inspections of imported meat from nonmember countries must be at least as strict as those which the directives impose on intra-Community trade, it follows that such inspections cannot take place until the Member States have uniformly made the necessary material and legal amendments.

“Although as regards the levying of health inspection charges for fresh poultrymeat Article 15 of Directive 71/118/EEC establishes an exception to the prohibition in Article 11 of Regulation No 123/67 of levying charges having an equivalent effect, that exception can take effect only after the Member States have succeeded in uniformly applying the provisions required by the said directive and in any event only after 1 January 1977 at the earliest when, according to Directive 75/431, the Member States should have adopted the laws, regulations and administrative provisions needed to comply with the directive in question.”

2. The Italian Government states that the question submitted to the Court asks basically whether the derogation contained in Article 15 of Directive 71/118 and thus the levying of charges for health inspections are subject to specific conditions. In that respect it observes that the doubts in the order making the reference seem to be based upon two considerations. The first is assumed from an alleged necessary correlation between Articles 15 and 16 of the said directive inasmuch as the application to imports from nonmember countries of “provisions which are at least equivalent” presupposes the prior adoption by the Member State of the necessary rules to make its national legislation comply with the directive. The Italian Government denies that that argument is well founded and cites in the first place the interpretation given to Article 15 of Directive 71/118 in the aforesaid Case 30/79 Wigei. The Advocate General in that case expressed the view that there was no principle of Community law prohibiting discrimination against nonmember countries. Further, where the provisions of the directive in question concern intra-Community trade and the duty of Member States to comply with the standards of the directive exists only in relation to that sector it seems logical to infer that there is no relation between making national law comply with that directive and the application of health inspection measures to imports from nonmember countries. The Italian Government also contends that Article 15 of Directive 71/118 does not specify detailed procedures for inspection of imports from nonmember countries. Consequently it is in the discretion of each Member State to provide for such inspections and the only restriction on its power is that inspections of imports from nonmember countries should not be on more favourable terms. The foregoing considerations are confirmed by the aforesaid judgment in Case 70/77 Simmenthal which recognized inter alia that Article 15 of Directive 71/118 has its origin in the principle of nondiscrimination. That principle of a general scope is obviously intended provisionally to ensure pending the establishment of Community rules in relation to inspections on the importation of goods from nonmember countries that traders who market products of Community origin should not be at a disadvantage as compared with competitors who import the same products from nonmember countries. It thus involves the possibility of levying charges on the occasion of health inspections carried out at the external frontiers of the Community and such inspections need not correspond precisely to the terms laid down for corresponding inspections of goods from member countries. The second consideration in the order making the reference alludes to certain grounds in the aforesaid judgment in the Simmenthal case to the effect that derogations from the prohibition of levying charges having an equivalent effect may not take effect until after the Member States are in a position to organize health inspections of imports from nonmember countries pursuant to a directive adopted to that effect by the Council. The Italian Government also challenges that validity of that consideration. In that respect it refers to another ground in the same judgment (paragraph 59) in which the Court in relation to a provision similar to that of Article 15 of Directive 71/118 recognized that although the provision in question was part of a directive on health inspections in intra-Community trade in fresh meat “its specific purpose is to lay down, on a provisional basis pending the implementation of the Community system for imports of fresh meat from third countries, a rule applicable to the national arrangements remaining in force in order to prevent their being less strict or less onerous than the inspection arrangements laid down in the directive for intra-Community trade.” In conclusion the Italian Government considers that the lawfulness of the levying of health inspection charges on imports does not appear to depend on whether or not national rules are adopted to make Italian law comply with Directive 71/118. Alternatively it is to be observed that Decree No 1000 of the President of the Republic of 12 November 1976, from which according to the order making the reference it is to be inferred that the conditions for applying Article 15 of the said directive are not fulfilled, on the contrary evidences the implementation of Article 16 thereof since extension of the period allowed inter alia for adapting slaughterhouses and health inspections of products does not concern intra-Community trade. Following those considerations the Italian Government proposes that the question put to the Court should be answered as follows:

“The application of the derogation allowed by Article 15 of Directive 71/118 to the prohibition laid down in Article 11 (2) of Regulation (EEC) No 123 of 13 June 1967 is subject to no condition other than the entry into force of the Community provisions on health inspections in trade in poultrymeat between Member States.”

3. The Commission states as a preliminary that the Italian Republic has inadequately and incompletely implemented Directive 71/118. For that reason, the Commission has started proceedings against Italy for failure to fulfil its obligations. As regards the subject-matter of the present reference the Commissioa observes that the main action relates to imports of live poultry and other live farmyard animals whereas Directive 71/118/EEC and the subsequent Directive 75/431 concern only health problems in relation to trade in fresh poultrymeat. It is apparent from Regulations Nos 123/67 and 2777/75 and Directive 71/118 that the concepts of “poultry” and “fresh poultrymeat” are to be distinguished one from the other so that the concept of “fresh meat” does not cover live animals. Consequently the provision in Article 15 of Directive 71/118 does not apply to those products. Trade in live poultry with nonmember countries is on the contrary governed solely by Regulation No 123/67, replaced as from 1 November 1975 by Regulation No 2777/75 and in particular as regard the present case, by Article 11 (2) of the said regulations. Those provisions prphibit the levying of any customs duty or charge having an equivalent effect in trade with nonmember countries in products governed by the two regulations. The Commission adds that the rule is tempered by the power of derogation given to the Council, but that the Council has not exercised that power in relation to trade in live poultry. Consequently the levying of health charges on those products solely oh import and not as part of a system of internal taxation within the meaning of Article 95 of the Treaty must be regarded as prohibited as from 20 June 1967 when Regulation No 123/67 entered into force. Additionally, however, the Commission develops its line of argument in relation to the interpretation of Article 15 of Directive 71/118. It observes that the prohibition of levying charges having an effect equivalent to customs duties in trade with nonmember countries is not based on any specific provision in the Treaty but upon considerations of expediency. The Council has systematically prohibited the levying of any customs duty or charge having an equivalent effect in all the basic regulations establishing the organizations of the market. As regards the present case the Court has recognized the lawfulness, subject to certain conditions, of pecuniary charges made on health inspections of imports from nonmember countries. In that respect it has distinguished between charges made for Community inspections and those made for national inspections. (a) As regards Community inspections, that is to say those required by a directive, the Court has stated that charges therefor could be made only when the specific inspections required by the directive and giving rise to the costs have been made by the Member States (judgment in Case 70/77 Simmentbal). (b) As regards national inspections, that is to say those made in order to comply with the provisions of a directive, the Court has confined itself to declaring that the charges levied must not exceed the cost of inspection and that the inspections must ensure that traders who market products of Community origin are not put at a disadvantage as against their competitors who import products from nonmember countries. Since the Community rules are silent as to the nature of the second kind of inspection and the procedures therefor the Member States are free to organize them as they think best provided always on the one hand that the inspection and charges therefor are at least equivalent to those required by Community directives on health problems in relation to intra-Community trade in agricultural products and on the other hand that they do not involve “inspections which are excessive, unnecessarily strict and charges which are out of proportion to the costs of the inspections” (judgment in Case 30/79 Wigei). As regards the question referred to the Court for a preliminary ruling, namely whether national inspections are subject also to the condition that Member States already carry out inspections in intra-Community trade, the Commission observes that Directive 71/118 does not itself lay down any inspection in trade with nonmember countries nor does it require Member States to make the same inspections in such trade as it requires in intra-Community trade; the sole restriction laid down is that there should be equivalence between the charges in intra-Community trade and those in trade with nonmember countries. According to the interpretation given to Article 15 of that directive in Cases 70/77 Simmenthal and 30/79 Wigei its aim is to ensure that no trader marketing Community products in a Member State should be in a less advantageous position than that of importers of similar products from nonmember countries. Since as from the date of notification every Member State may independently implement all the measures provided for by the directive its producers would be at a serious disadvantage if in another Member State in which their products may be sold goods from nonmember countries may enter without being subject to measures at least as onerous as those imposed pursuant to the directive in the latter Member State. That would be tantamount to no longer applying even the principle of Community preference and producers in Member States which are more careful about complying with Community rules would be penalized not only as against producers in less scrupulous Member States but also as against their competitors in nonmember countries. It follows from the aforegoing considerations and in particular: (a) from the aim pursued by Article 15 ; (b) the absence in the legislation of any reference either to any parallelism in the application of the various measures in one and the same Member State or to the possibility of postponing the application of Article 15; and (c) the lawfulness of more onerous measures applying to imports from nonmember countries in comparison with those applying to intra-Community trade, that Article 15 of Directive 71/118 must be regarded as applicable, as from the date of notification of the directive to each of the Member States. As regards Italy, that date is 18 February 1971. In conclusion the Commission proposes the following answers:

“1) Article 15 of Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat does not apply to imports from nonmember countries of live poultry.

2) The derogation introduced by Article 15 of Directive 71/118/EEC from the prohibition of customs duties differing from those specified in the Common Customs Tariff and national charges having an equivalent effect applies to imports from nonmember countries of fresh poultrymeat as from the date of notification of the directive to each of the Member States independently of whether or not the Member States have adopted the measures necessary to comply with the other provisions óf that directive.”

III — Oral procedure

Armando Leonelli, represented by Mario Simonazzi of the Milan Bar; the Italian Government, represented by Sergio Laporta, Avvocato dello Stato; and the Commission of the European Communities, represented by its Legal Adviser, Gianluigi Campogrande, presented oral argument at the sitting on 18 January 1983.

The Advocate General delivered his opinion at the hearing on 22 February 1983.

Decision

1. By order dated 15 May 1981, received at the Court on 12 March 1982, the Corte Suprema di Cassazione [Supreme Court of Cassation] referred a question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of Article 15 of Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 106).

2. The question was raised in proceedings brought by Armando and Ottavio Leonelli against the Italian Amministrazione delle Finanze for an order that the Amministrazione refund sums paid as charges for health inspections in respect of imports of inter alia live poultry and fresh poultrymeat from Hungary, made between 1968 and 1975. Messrs. Leonelli claimed that the said charges had been levied in breach of Article 11 (2) of Regulation No 123/67 of the Council of 13 June 1967 on the common organization of the market in poultrymeat (Official Journal, English Special Edition 1967, p. 63). Save as otherwise provided in the regulation or where derogation therefrom is decided upon by the Council, that provision prohibits inter alia the levying of any customs duty or charge having equivalent effect on imports of poultrymeat from nonmember countries.

3. Article 15 of the aforesaid Council Directive 71/118 provides, however, that: “Until the entry into force of Community provisions concerning imports of fresh poultrymeat from third countries, Member States shall apply to such imports provisions which are at least equivalent to those of this directive.”

4. Under Article 16 of the same directive the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive in respect of intra-Community trade within two years following notification of the directive.

5. The Corte Suprema di Cassazione, taking the view that its judgment depended upon the interpretation of the aforesaid provisions of Community law and in particular the correlation between those provisions, thereupon stayed the proceedings and put to the Court the following question:

“Is Article 15 of Council Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat to be interpreted as meaning that the derogation provided for therein from the prohibition of the levying of customs duties, other than those specified in the Common Customs Tariff, and national charges having equivalent effect (a prohibition laid down by Regulation No 123/67/EEC of the Council of 13 June 1967 on the common organization of the market in poultrymeat) and, therefore, the right of each Member State to continue to levy such charges are subject to the additional condition that the Member State in question has already adopted the laws, regulations and administrative provisions needed to comply with the aforesaid directive?”

6. That question basically asks whether as regards imports of fresh poultrymeat from nonmember countries the derogation contained in Article 15 of Directive 71/118 to the prohibition of levying customs duties or charges having an equivalent effect in Article 11 (2) of Regulation No 123/67 applies from notification of the said directive to the particular Member State in question or whether its application depends on the additional condition that the Member State has already adopted the measures necessary to comply with the provisions of the said directive.

7. As the Court found in the judgment of 22 January 1980 in Case 30/79 Wigei [1980] ECR 151, Article 11 (2) of Regulation No 123/67 in fact prohibits, subject to any derogation decided by the Council, the levying, in trade with nonmember countries in fresh poultrymeat, of customs duties other than those laid down by the Common Customs Tariff or domestic charges having equivalent effect. According to established case-law of the Court the concept of charge having an effect equivalent to a customs duty covers all pecuniary charges, whatever their amount, imposed by reason of veterinary or public health inspections of animals and meat imported from nonmember countries, unless they relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic and imported products alike.

8. The derogation to that prohibition introduced by Article 15 of Directive 71/118 is intended, as the Court has also already found in its aforesaid judgment of 22 January 1980, to lay down, on a provisional basis pending the implementation of a Community system of health inspection of imports of fresh meat from nonmember countries, a rule applicable to the national arrangements for health inspection remaining in force. The object of the rule is to ensure that inspections effected on imports from nonmember countries and charges levied in respect of such inspections should not be more favourable than those which apply under the directive to intra-Community trade and thus the rule seeks to ensure that traders who put on the market fresh meat originating within the Community are not treated less favourably than their competitors who import meat from nonmember countries.

9. It is apparent from the actual wording of Article 15 of Directive 71/118 and its position within the directive that the obligation which it imposes on Member States to subject imports from nonmember countries to their national systems, being at least as strict and exacting as the system imposed by the directive is not subject to the condition that the necessary measures have already been taken to comply with the provisions of the directive and does not depend on any condition other than that of notification of the directive to the Member State.

10. That idea is consistent with the objective of the provision in question, the efficacy of which would be compromised if the derogation therein contained were to apply only after the Member State in question has complied with the provisions of the directive. If such an interpretation were accepted products from nonmember countries would be able to enter the Community through a Member State which had not yet complied and circulate freely without having to bear the costs relating to their health inspection even though other Member States had already complied with the directive. That would penalize imports from the latter Member States not only in relation to products from the Member State in question but also as regards products fron nonmember countries imported into the Community through that Member State and would be contrary to the principle of Community preference.

11. It should be added that the derogation contained in Article 15 of Directive 71/118 applies only to imports of fresh poultrymeat and not to live poultry as is clearly apparent both from the wording of the provision and the objective of the said directive as defined in Article 1 thereof.

12. The answer to the question put by the Corte Suprema di Cassazione should therefore be that as regards imports of fresh poultrymeat from nonmember countries the derogation introduced by Article 15 of Council Directive 71/118 of 15 February 1971 from the prohibition of the levying of customs duties and charges having equivalent effect contained in Article 11 (2) of Regulation No 123/67 of the Council of 13 June 1967 applies from the date of the notification of the said directive to the Member State in question, whether or not that Member State has already adopted the necessary measures to comply with the provisions of the directive.

Costs

13. The costs incurred by the Italian Government and the Commission, which have submitted observations to the Court, are not recoverable. Since 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 on costs is a matter for that court.

On those grounds, THE COURT, in answer to the question referred to it by the Italian Corte Suprema di Cassazione by order dated 15 May 1981, hereby rules: