CELEX: 61982CJ0327
Export refunds for beef and veal
"thin flank"

1 BY JUDGMENT OF 17 DECEMBER 1982 , WHICH WAS RECEIVED AT THE COURT ON 20 DECEMBER 1982 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF COMMISSION REGULATION ( EEC ) NO 2787/81 OF 25 SEPTEMBER 1981 FIXING THE EXPORT REFUNDS ON BEEF AND VEAL ( OFFICIAL JOURNAL 1981 , L 271 , P . 44 ).
2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN EKRO BV VEE- EN VLEESHANDEL ( HEREINAFTER REFERRED TO AS ' ' EKRO ' ' ), WHICH IS A NETHERLANDS COMPANY EXPORTING BEEF AND VEAL , AND THE PRODUKTSCHAP VOOR VEE EN VLEES ( CATTLE AND MEAT BOARD , HEREINAFTER REFERRED TO AS ' ' THE BOARD ' ' ), RIJSWIJK . THE DISPUTE CONCERNS THE BOARD ' S REFUSAL TO GRANT EKRO REFUNDS ON EXPORTS OF BEEF AND VEAL TO A NON-MEMBER COUNTRY UNDER ARTICLE 18 OF REGULATION ( EEC ) NO 805/68 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 ) AND UNDER COMMISSION REGULATION NO 2787/81 .
3 AN ANNEX TO COMMISSION REGULATION NO 2787/81 SETS OUT THE LIST OF PRODUCTS WHICH QUALIFY FOR THE EXPORT REFUND REFERRED TO IN ARTICLE 18 OF REGULATION NO 805/68 . THAT LIST INCLUDES , UNDER THE HEADING ' ' EX 02.01 A II ' '  OF THE COMMON CUSTOMS TARIFF , ' ' MEAT OF BOVINE ANIMALS : ( A ) FRESH OR CHILLED : . . .; 4 . OTHER : . . . ( BB ) BONED OR BONELESS , EXCLUDING THE ' THIN FLANK ' , THE SHIN AND THE SHANK , EACH PIECE INDIVIDUALLY WRAPPED ' ' .
4 IN OCTOBER 1981 EKRO EXPORTED TO THE VATICAN CITY TWO CONSIGNMENTS OF VEAL , WEIGHING 2 380 KG UND 2 062 KG , IN RESPECT OF WHICH IT APPLIED FOR EXPORT REFUNDS UNDER THE PROVISION CITED ABOVE . EACH OF THOSE CONSIGNMENTS CONTAINED INTER ALIA PIECES OF BREAST , WEIGHING IN TOTAL 1 156 KG , TO WHICH WERE ATTACHED PIECES OF MEAT CUT IN THE SHAPE OF A PISTOL WHICH , ACCORDING TO THE BOARD , MUST BE CONSIDERED TO FORM PART OF THE ' ' THIN FLANK ' ' . THE TOTAL WEIGHT OF THE LAST-MENTIONED PIECES WAS 201 KG . THE BOARD REFUSED TO GRANT EKRO EXPORT REFUNDS ON THE 1 156 KG OF BREAST .
5 EKRO APPEALED AGAINST THAT REFUSAL TO THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN . IT ARGUED , FIRST , THAT THE AFOREMENTIONED PIECES , CUT IN THE FORM OF A PISTOL AND ATTACHED TO THE PIECES OF BREAST , WERE NOT TO BE REGARDED AS FORMING PART OF THE ' ' THIN FLANK ' '  AND , SECONDLY , THAT THE REFUNDS OUGHT IN ANY CASE TO BE CALCULATED ACCORDING TO THE TOTAL WEIGHT OF THE MEAT EXPORTED LESS THE PROPORTION OF ' ' THIN FLANK ' '  THAT IT COMPRISED , SO THAT EVEN THE EXPORTATION OF PIECES OF BREAST OF BOVINE ANIMALS TO WHICH PIECES OF THIN FLANK WERE ATTACHED WOULD ATTRACT A PROPORTIONATE REFUND .
6 TO ENABLE IT TO GIVE JUDGMENT THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
1 . ON A CORRECT INTERPRETATION OF HEADING 02.01 A II 4 . EX ( BB ) OF THE COMMON CUSTOMS TARIFF WHAT IS TO BE UNDERSTOOD BY ' ' THIN FLANK ' '  AND HOW MAY ' ' THIN FLANK ' ' , WHICH DOES NOT FALL WITHIN THAT TARIFF HEADING , BE DISTINGUISHED FROM BONED OR BONELESS CUTS , WHICH DO?
2.DOES THE CORRECT INTERPRETATION OF REGULATION NO 2787/81 MEAN THAT NO REFUND MAY BE GRANTED IN RESPECT OF THE EXPORT TO NON-MEMBER COUNTRIES OF A BONED OR BONELESS CUT IF A PIECE OF ' ' THIN FLANK ' '  IS ATTACHED TO IT , OR DOES IT MEAN RATHER THAT IN SUCH A CASE THE REFUND MUST BE GRANTED ON THE BASIS OF THE TOTAL WEIGHT OF THE MEAT EXPORTED LESS THE WEIGHT OF THE ' ' THIN FLANK ' ' ?
THE FIRST QUESTION
7 THE PURPOSE OF THE FIRST QUESTION IS TO ESTABLISH A PRECISE DEFINITION OF THE CUT OF MEAT FROM BOVINE ANIMALS WHICH IS DESIGNATED ' ' THIN FLANK ' '  IN THE LIST ANNEXED TO COMMISSION REGULATION NO 2787/81 .
8 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION , IN THEIR WRITTEN OBSERVATIONS TO THE COURT , AND EKRO , IN ITS SUBMISSIONS IN THE MAIN PROCEEDINGS , HAVE EACH ARGUED IN FAVOUR OF A DIFFERENT ANATOMICAL DEFINITION OF THE CUT IN QUESTION , EXPLAINING , WHERE NECESSARY WITH THE AID OF DRAWINGS , WHERE THAT PART OF THE ABDOMINAL WALL IS SITUATED IN RELATION TO THE HINDQUARTERS AND FOREQUARTERS OF A BOVINE CARCASE AND IN RELATION TO THE RIBS AND BREAST .
9 IT WAS ARGUED BY THE BOARD AND BY THE COMMISSION , IN ITS ORAL OBSERVATIONS , THAT FOR THE DEFINITION OF THE CUT IN QUESTION THE AUTHORITIES IN EACH MEMBER STATE SHOULD REFER TO THE CUSTOMS AND PRACTICES EXISTING IN THAT STATE AS REGARDS THE CUTTING AND BONING OF BOVINE CARCASES . THE COMMISSION ADDED , HOWEVER , THAT IN DOING SO THEY MUST PAY HEED TO THE PURPOSE OF THE REFUND SYSTEM SET UP BY THE COMMUNITY REGULATIONS .
10 IT IS CLEAR FROM THE EVIDENCE BEFORE THE COURT THAT , AS REGARDS THE CUTTING AND BONING OF BOVINE CARCASES , THERE ARE MANY CUSTOMS AND PRACTICES , WHICH MAY VARY NOT ONLY FROM MEMBER STATE TO MEMBER STATE BUT EVEN FROM REGION TO REGION . THE VARIOUS CUTTING AND BONING METHODS ORIGINATE IN PARTICULAR IN CONSUMER HABITS AND TRADE PRACTICES IN THE DIFFERENT MEMBER STATES AND REGIONS . THE MEANING OF THE TERMS USED IN THE VARIOUS LANGUAGE VERSIONS OF     REGULATION NO 2787/81 MAY THEREFORE VARY FROM ONE MEMBER STATE OR REGION TO ANOTHER , DEPENDING ON THE METHOD HABITUALLY USED TO CUT AND BONE BOVINE CARCASES .
11 THE NEED FOR A UNIFORM APPLICATION OF COMMUNITY LAW AND THE PRINCIPLE OF EQUALITY REQUIRE THAT THE TERMS OF A PROVISION OF COMMUNITY LAW WHICH MAKES NO EXPRESS REFERENCE TO THE LAW OF THE MEMBER STATES FOR THE PURPOSE OF DETERMINING ITS MEANING AND SCOPE MUST NORMALLY BE GIVEN AN INDEPENDENT AND UNIFORM INTERPRETATION THROUGHOUT THE COMMUNITY ; THAT INTERPRETATION MUST TAKE INTO ACCOUNT THE CONTEXT OF THE PROVISION AND THE PURPOSE OF THE RELEVANT REGULATIONS .
12 AS THE COMMISSION HAS EXPLAINED , THE PURPOSE OF THE PROVISION IN QUESTION IS TO PREVENT THE PAYMENT OF REFUNDS ON LOW-VALUE CUTS OF MEAT , FOR WHICH THERE IS SUFFICIENT DEMAND IN THE COMMUNITY MEAT-PROCESSING INDUSTRY . HOWEVER , LIKE THE VARIOUS METHODS FOR CUTTING AND BONING BOVINE CARCASES , THE DETERMINATION OF THE SHAPE AND EXACT SIZE OF THE PART OF THE ABDOMINAL WALL WHICH SHOULD BE REGARDED AS HAVING A LOWER VALUE DEPENDS ON CONSUMER HABITS AND TRADE PRACTICES , WHICH VARY FROM ONE MEMBER STATE OR REGION TO ANOTHER . IT IS THEREFORE IMPOSSIBLE TO DEDUCE A PRECISE ANATOMICAL DEFINITION OF THAT PART OF THE CARCASE FROM THE PURPOSE OF THE RELEVANT COMMUNITY PROVISION .
13 IN THE ABSENCE OF ANY SUCH INDICATION IN REGULATION NO 2787/81 , IT CANNOT BE ASSUMEND THAT THE COMMUNITY LEGISLATURE INTENDED , IN A REGULATION GOVERNING REFUNDS ON EXPORTS OF MEAT , TO HARMONIZE OR STANDARDIZE THE CUTTING AND BONING METHODS USED IN THE VARIOUS MEMBER STATES . ON THE CONTRARY , IT IS CLEAR FROM THE COMMISSION ' S REPLY TO A QUESTION PUT BY THE COURT THAT WHEN REGULATION NO 2787/81 WAS ADOPTED THE COMMISSION WAS AWARE OF THE DIFFERENCES IN THE EXACT MEANING OF THE TERMS USED IN THE REGULATION BUT CONSIDERED THAT THEY WERE OF MINOR IMPORTANCE AND DID NOT JUSTIFY MODIFYING THE EXISTING PRACTICES AND METHODS .
14 BY THUS ACCEPTING THAT THOSE TERMS MIGHT HAVE DIFFERENT MEANINGS THE COMMISSION INCORPORATED INTO ITS REGULATION AN IMPLIED REFERENCE TO THE     CUTTING AND BONING METHODS USED IN THE VARIOUS MEMBER STATES AND REGIONS . THEREFORE , NOTWITHSTANDING THE AFOREMENTIONED PRINCIPLE THAT PROVISIONS OF COMMUNITY LAW SHOULD BE INTERPRETED UNIFORMLY , IT IS NOT FOR THE COURT TO GIVE A UNIFORM COMMUNITY DEFINITION OF THOSE TERMS .
15 FOR THE PRECISE ANATOMICAL DEFINITION OF THE CUT OF MEAT CALLED ' ' THIN FLANK ' '  REFERENCE MUST THEREFORE BE MADE TO THE METHOD NORMALLY USED IN THE MEMBER STATE OR REGION CONCERNED FOR CUTTING AND BONING BOVINE CARCASES . IT IS FOR THE NATIONAL COURT TO ESTABLISH WHAT THAT DEFINITION IS .
16 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT IT IS FOR THE NATIONAL COURT TO ESTABLISH WHAT , ACCORDING TO THE METHOD NORMALLY USED TO CUT AND BONE BEEF AND VEAL IN THE MEMBER STATE OR REGION CONCERNED , IS THE PRECISE ANATOMICAL DEFINITION OF THE PART OF THE ABDOMINAL WALL WHICH IS DESIGNATED ' ' THIN FLANK ' '  IN SUBHEADING EX 02.01 A II ( A ) 4 . EX ( BB ) OF THE LIST ANNEXED TO COMMISSION REGULATION NO 2787/81 OF 25 SEPTEMBER 1981 .
THE SECOND QUESTION
17 BY ITS SECOND QUESTION THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN SEEKS TO ESTABLISH WHETHER A REFUND MUST BE GRANTED UNDER REGULATION NO 2787/81 WHERE THE PIECES OF MEAT EXPORTED COMPRISE A PIECE OF ' ' THIN FLANK ' '  AND , IF SO , WHETHER THE REFUND MUST BE CALCULATED ON THE BASIS OF THE TOTAL WEIGHT OF THE MEAT EXPORTED OR ON THE BASIS OF THAT WEIGHT LESS THE WEIGHT OF THE ' ' THIN FLANK ' ' .
18 THE BOARD AND THE COMMISSION TAKE THE VIEW THAT NO EXPORT REFUND IS PAYABLE IF A CUT OF MEAT COMPRISES A PIECE OF ' ' THIN FLANK ' ' . IN THEIR SUBMISSION , THERE IS NO PROVISION IN THE REGULATION FOR THE GRANTING OF A REDUCED REFUND , WHILST THE GRANTING OF A REFUND CALCULATED ON THE BASIS OF THE TOTAL WEIGHT OF THE CUT WOULD MEAN GRANTING A HIGH REFUND ON MEAT OF LOW VALUE AND THUS ENCOURAGING UNDESIRABLE EXPORTS OF SUCH MEAT , FOR WHICH THERE IS DEMAND IN THE COMMUNITY MEAT-PROCESSING INDUSTRY . THEY ARGUE THAT THEIR VIEW HAS IN FACT BEEN CONFIRMED , SINCE THE OCCURRENCE OF THE     RELEVANT EVENTS , BY AN AMENDMENT OF THE ANNEX IN QUESTION EFFECTED BY COMMISSION REGULATION ( EEC ) NO 2773/82 OF 13 OCTOBER 1982 FIXING THE EXPORT REFUNDS ON BEEF AND VEAL ( OFFICIAL JOURNAL 1982 , L 292 , P . 20 ).
19 IT WAS SUBMITTED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY EKRO , IN ITS ORAL OBSERVATIONS , THAT , IN ACCORDANCE WITH ARTICLE 20 ( 1 ) OF REGULATION NO 805/68 AND THE GENERAL RULES FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF , PARTICULARLY RULE 3 ( B ) IN SECTION I , PART A , A CUT OF MEAT COMPRISING A PIECE OF ' ' THIN FLANK ' '  MUST , BEING A COMPOSITE PRODUCT , BE CLASSIFIED AS IF IT CONSISTED OF THE PART WHICH GIVES IT ITS ESSENTIAL CHARACTER . IN EKRO ' S VIEW , A CUT OF MEAT CONTAINING UP TO 20% OF ' ' THIN FLANK ' '  MAY STILL QUALIFY FOR REFUNDS .
20 IN THIS REGARD , IT MUST FIRST BE OBSERVED THAT ARTICLES 20 ( 1 ) OF COUNCIL REGULATION NO 805/68 OF 27 JUNE 1968 , ON THE BASIS OF WHICH THE REFUNDS IN QUESTION ARE FIXED , PROVIDES THAT : ' ' THE GENERAL RULES FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF AND THE SPECIAL RULES FOR ITS APPLICATION SHALL APPLY TO THE TARIFF CLASSIFICATION OF PRODUCTS COVERED BY THIS REGULATION ' ' . GENERAL RULE 3 ( B ) FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF STATES THAT ' ' COMPOSITE GOODS . . . SHALL BE CLASSIFIED AS IF THEY CONSISTED OF THE MATERIAL OR COMPONENT WHICH GIVES THEM THEIR ESSENTIAL CHARACTER ' ' .
21 EVEN THOUGH REGULATION NO 2787/81 DOES NOT SIMPLY REFER TO THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF BUT ESTABLISHES ITS OWN NOMENCLATURE FOR THE PURPOSE OF FIXING EXPORT REFUNDS , THAT GENERAL RULE APPLIES TO THE CLASSIFICATION OF COMMODITIES UNDER THE SPECIAL NOMENCLATURE OF REGULATION NO 2787/81 , UNLESS SOME OTHER SOLUTION IS DICTATED BY THE TERMS OF THAT REGULATION OR BY THE AIMS OF THE SYSTEM OF EXPORT REFUNDS .
22 AS FAR AS THE TERMS OF THE ANNEX TO REGULATION NO 2787/81 ARE CONCERNED , THE WORDING OF SUBHEADING EX 02.01 A II ( A ) 4 . EX ( BB ) - ' ' BONED OR BONELESS , EXCLUDING THE THIN FLANK , THE SHIN AND THE SHANK , EACH PIECE INDIVIDUALLY WRAPPED ' '  - EXCLUDES ONLY CUTS CONSISTING ENTIRELY OF ' ' THIN FLANK ' ' , SHIN OR SHANK ; IT SAYS NOTHING ABOUT CUTS CONSISTING ONLY PARTLY OF ' ' THIN FLANK ' ' , SHIN OR SHANK . THE INTERPRETATION OF THE PROVISION IN FORCE AT     THE MATERIAL TIME CANNOT BE AFFECTED BY THE FACT THAT THE UNCERTAINTY ABOUT THE TREATMENT TO BE ACCORDED TO SUCH CUTS WAS SUBSEQUENTLY REMOVED WITHOUT RETROACTIVE EFFECT BY THE INSERTION IN THE ANNEX TO REGULATION NO 2773/82 OF NOTE 7 , WHICH STATES THAT : ' ' BONED CUTS WHICH CONSIST , ENTIRELY OR PARTIALLY , OF THIN FLANKS , SHIN OR SHANK ARE INELIGIBLE FOR THE REFUND ' ' .
23 AS REGARDS THE AIMS OF THE REFUND SYSTEM , AND IN PARTICULAR THE DESIRE TO PREVENT THE PAYMENT OF REFUNDS ON MEAT OF LOW VALUE , IT MUST BE BORNE IN MIND THAT , AS WAS EXPLAINED IN REPLY TO THE FIRST QUESTION , VIEWS AS TO WHAT MUST BE CONSIDERED MEAT OF LOW VALUE IN THIS RESPECT VARY GREATLY FROM ONE MEMBER STATE TO ANOTHER . THE AIMS OF THE REFUND SYSTEM CANNOT THEREFORE BE INVOKED IN ORDER TO JUSTIFY DISCARDING THE AFOREMENTIONED GENERAL RULE FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF WHEN CONSTRUING THE RELEVANT SUBHEADING OF THE ANNEX TO REGULATION NO 2787/81 , SO AS TO ARRIVE AT THE VIEW THAT THE PRESENCE IN A CUT OF MEAT OF EVEN A SMALL PIECE OF MEAT WHICH , ACCORDING TO THE METHODS USED IN A MEMBER STATE , MAY BE CLASSIFIED AS ' ' THIN FLANK ' '  NECESSARILY PREVENTS REFUNDS FROM BEING GRANTED IN THAT MEMBER STATE .
24 THE ESSENTIAL CHARACTER OF A CUT OF MEAT DOES NOT DEPEND , AS EKRO HAS SUGGESTED , ON A SPECIFIC PERCENTAGE OF ANOTHER KIND OF MEAT ATTACHED TO IT BUT MUST BE DETERMINED IN ACCORDANCE WITH THE CONSUMER HABITS , TRADE PRACTICES AND NORMAL METHODS OF CUTTING AND BONING BEEF AND VEAL IN THE MEMBER STATE OR REGION CONCERNED . THESE ARE MATTERS TO BE DECIDED BY THE NATIONAL COURT .
25 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT REGULATION NO 2787/81 MUST BE INTERPRETED AS MEANING THAT EXPORT REFUNDS ARE PAYABLE ON CUTS OF MEAT COMPRISING A PORTION OF ' ' THIN FLANK ' ' , PROVIDED THAT , HAVING REGARD TO THE CONSUMER HABITS , TRADE PRACTICES AND NORMAL METHODS OF CUTTING AND BONING BEEF AND VEAL IN THE MEMBER STATE OR REGION CONCERNED , THE PORTION OF ' ' THIN FLANK ' '  DOES NOT DETERMINE THE ESSENTIAL CHARACTER OF THE CUT .
Decision on costs
COSTS
26 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIFTH CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY JUDGMENT OF 17 DECEMBER 1982 , HEREBY RULES :
1 . IT IS FOR THE NATIONAL COURT TO ESTABLISH WHAT , ACCORDING TO THE METHOD NORMALLY USED TO CUT AND BONE BEEF AND VEAL IN THE MEMBER STATE OR REGION CONCERNED , IS THE PRECISE ANATOMICAL DEFINITION OF THE PART OF THE ABDOMINAL WALL WHICH IS DESIGNATED ' ' THIN FLANK ' '  IN SUBHEADING EX 02.01 A II ( A ) 4 . EX ( BB ) OF THE LIST ANNEXED TO COMMISSION REGULATION ( EEC ) NO 2787/81 OF 25 SEPTEMBER 1981 .
2.REGULATION ( EEC ) NO 2787/81 MUST BE INTERPRETED AS MEANING THAT EXPORT REFUNDS ARE PAYABLE ON CUTS OF MEAT COMPRISING A PORTION OF THIN FLANK , PROVIDED THAT , HAVING REGARD TO THE CONSUMER HABITS , TRADE PRACTICES AND NORMAL METHODS OF CUTTING AND BONING BEEF AND VEAL IN THE MEMBER STATE OR REGION CONCERNED , THE PORTION OF THIN FLANK DOES NOT DETERMINE THE ESSENTIAL CHARACTER OF THE CUT .