delivered on 18 September 2019 (1)

Joined Cases C‑477/18 and C‑478/18

Exportslachterij J. Gosschalk en Zn. BV (C‑477/18)

and

Compaxo Vlees Zevenaar BV,

Ekro BV,

Vion Apeldoorn BV,

Vitelco BV (C‑478/18)

Minister van Landbouw, Natuur en Voedselkwaliteit

(Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands))

(References for a preliminary ruling — Regulation (EC) No 882/2004 — Official controls on feed and food — Financing — Fees that may be collected by Member States to cover the costs occasioned by official controls — Annex VI — Concept of ‘staff involved in the official controls’ — Concept of ‘associated costs’ — Article 27 — Costs occasioned by official controls — Costs borne by the competent authorities — Quarter-hour periods reserved but not worked — Average rates — Buffer reserves built up within a private company which can be used to pay the training costs of staff who actually perform the controls in the event of an epidemic)

In the requests for a preliminary ruling forming the subject of this Opinion, the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands) asks the Court inter alia about the interpretation of Article 27(1) and (4) of, and points 1 and 2 of Annex VI to, 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. (2)

Broadly speaking, the Court is asked to rule on the conditions and the limits which Regulation No 882/2004 imposes on the right of the national authorities competent for the official veterinary checks to require the slaughterhouses, in which those checks are performed, to pay fees intended to cover the costs borne in order to perform those checks.

In that context, the Court will have to determine, inter alia, whether the competent national authorities are entitled to pass on to the slaughterhouses the salaries of and the costs for staff other than the staff who actually perform the official controls, the inspection times which the slaughterhouse has determined in advance and reserved with the competent authority but which were not worked, and the build-up of buffer reserves within a private company which provides the competent authority with official auxiliaries for those controls.

Legal context

European Union law

Regulation No 882/2004

Recitals 11 to 14 and 32 of Regulation No 882/2004 state:

(11)‘(11)

The competent authorities for performing official controls should meet a number of operational criteria so as to ensure their impartiality and effectiveness. They should have a sufficient number of suitably qualified and experienced staff and possess adequate facilities and equipment to carry out their duties properly.

The official controls should be carried out using appropriate techniques developed for that purpose, including routine surveillance checks and more intensive controls such as inspections, verifications, audits, sampling and the testing of samples. The correct implementation of those techniques requires appropriate training of the staff performing official controls. Training is also required in order to ensure that the competent authorities take decisions in a uniform way, in particular with regard to the implementation of the Hazard Analysis and Critical Control Points (HACCP) principles.

The frequency of official controls should be regular and proportionate to the risk …

Official controls should take place on the basis of documented procedures so as to ensure that these controls are carried out uniformly and are of a consistently high quality.

…

Adequate financial resources should be available for organising official controls. Hence, the competent authorities of the Member States should be able to levy the fees or charges to cover the costs incurred through official controls. In the process, the competent authorities of the Member States will be at liberty to establish the fees and charges as flat-rate amounts based on the costs incurred and taking the specific situation of the establishments into account. Where fees are imposed on operators, common principles should apply. It is appropriate therefore to lay down the criteria for setting the level of inspection fees. …’

Article 2(1) of that regulation defines an ‘official control’ as ‘any form of control that the competent authority or the Community performs for the verification of compliance with feed and food law, animal health and animal welfare rules’.

Article 3 of that regulation, which is entitled ‘General obligations with regard to the organisation of official controls’, provides in paragraph 1 inter alia:

‘Member States shall ensure that official controls are carried out regularly, on a risk basis and with appropriate frequency, so as to achieve the objectives of this Regulation …’

Article 4 of that regulation, which is entitled ‘Designation of competent authorities and operational criteria’, provides, in paragraph 2:

‘The competent authorities shall ensure:

…

that they have, or have access to, an adequate laboratory capacity for testing and a sufficient number of suitably qualified and experienced staff so that official controls and control duties can be carried out efficiently and effectively;

that they have appropriate and properly maintained facilities and equipment to ensure that staff can perform official controls efficiently and effectively;

…’

Devoted to the ‘Staff performing official controls’, Article 6 of Regulation No 882/2004 provides:

‘The competent authority shall ensure that all of its staff performing official controls:

receive, for their area of competence, appropriate training enabling them to undertake their duties competently and to carry out official controls in a consistent manner. This training shall cover as appropriate the areas referred to in Annex II, Chapter I;

keep up to date in their area of competence and receive regular additional training as necessary; and

have aptitude for multidisciplinary cooperation.’

Title II of that regulation, which sets out the rules concerning the ‘Official controls by Member States’, contains inter alia a Chapter VI on the ‘Financing of official controls’, which consists of Articles 26 to 29.

Under Article 26 of the regulation, which is entitled ‘General principle’:

‘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.’

Article 27 of that regulation, which is entitled ‘Fees or charges’, provides:

‘1. Member States may collect fees or charges to cover the costs occasioned by official controls.

…

4. Fees collected for the purposes of official controls in accordance with paragraph 1 or 2:

shall not be higher than the costs borne by the responsible competent authorities in relation to the items listed in Annex VI; and

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.

…

10. Without prejudice to the costs deriving from the expenses referred to in Article 28, Member States shall not collect any fees other than those referred to in this Article for the implementation of this Regulation.

…’

Entitled ‘Criteria to be taken into consideration for the calculation of fees’, Annex VI to that regulation refers to:

1.‘1.

The salaries of the staff involved in the official controls;

The costs for the staff involved in the official controls, including facilities, tools, equipment, training, travel and associated costs;

The laboratory analysis and sampling costs.’

Regulation (EC) No 854/2004

Article 2 of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, (3) which is entitled ‘Definitions’, provides:

‘For the purposes of this Regulation, the following definitions shall apply:

…

“competent authority” means the central authority of a Member State competent to carry out veterinary checks or any authority to which it has delegated that competence;

…

“official veterinarian” means a veterinarian qualified, in accordance with this Regulation, to act in such a capacity and appointed by the competent authority;

…

“official auxiliary” means a person qualified, in accordance with this Regulation, to act in such a capacity, appointed by the competent authority and working under the authority and responsibility of an official veterinarian;

…’

Netherlands law

Decree No 2164 of the Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for Agriculture, Nature and Food Quality, ‘the Minister’) of 4 May 2009 sets the fees for the work carried out by the Nederlandse Voedsel- en Warenautoriteit (Netherlands Food and Consumer Product Safety Authority, ‘NVWA’) and the Algemene Inspectie (General Inspectorate Service) (‘the Decree on NVWA rates’). The version of that decree applicable in the cases in the main proceedings is that which was in force from 3 April 2013 to 28 February 2014.

Facts at the origin of the disputes, main proceedings and questions referred for a preliminary ruling

Case C‑477/18

Exportslachterij J. Gosschalk en Zn.BV (‘Gosschalk’) operates a slaughterhouse where pork meat and beef meat are processed and placed on the market. Accordingly, it was subject to official controls intended to ensure that it was complying with feed and food legislation and animal health and animal welfare rules, as governed by Regulation No 882/2004 and by the Decree on NVWA rates.

Those controls are carried out inter alia in the course of ante-mortem and post-mortem inspections by, first, official veterinarians and auxiliaries working at NVWA, which is the designated competent authority, and, second, by contracted official auxiliaries from the private company Kwaliteitskeuring Dierlijke Sector (Quality Inspection within the Animal Sector, ‘KDS’).

In order to cover the costs incurred by that inspection work, the Ministry collects fees from the slaughterhouses pursuant to Article 27(4)(a) of Regulation No 882/2004, and points 1 and 2 of Annex VI thereto, and in accordance with the Decree on NVWA rates.