Opinion of the Advocate General — ECLI:EU:C:2010:372
Date: 2010-06-24
Language of the case: German
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary conclusion 123. The foregoing survey has revealed nothing to indicate that the imposition of a specific rate of duty of EUR 222 per 100 kg drained net weight on preserved mushrooms which were imported into the Community outside the quota opened pursuant to Regulation No 1864/2004, as amended, is inconsistent with the principle of proportionality. 124. It may also be added that the ad valorem duty amounts to 14.9%, and not 18.4%, as assumed by the referring court. (51) VII – Conclusion 125. Against that background, I propose that the Court should reply as follows to the question referred by the Finanzgericht Hamburg: Examination of the specific rate of duty, applicable pursuant to Commission Regulation (EC) No 1719/2005 of 27 October 2005 amending Annex I to Regulation (EEC) No 2658/87, of EUR 222 per 100 kg drained net weight, charged on imports of preserved mushrooms of the genus Agaricus (CN subheading 2003 10 30) outside the quota opened pursuant to Commission Regulation (EC) No 1864/2004 of 26 October 2004 opening and providing for the administration of tariff quotas for preserved mushrooms imported from third countries, as amended by Commission Regulation (EC) No 1995/2005 of 7 December 2005 amending Regulation No 1864/2004, has, in relation to the principle of proportionality, disclosed nothing capable of affecting the validity of that specific rate of duty. 1 – Original language: German. 2 – Pursuant to the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007 C 306, p. 1), the preliminary-reference procedure is now regulated in Article 267 TFEU. 3 – Case 245/81 Edeka Zentrale [1982] ECR 2745; Case 345/82 Wünsche [1984] ECR 1995; Case C-24/90 Werner Faust [1991] ECR I‑4905; Case C-25/90 Wünsche [1991] I‑4939; Case C‑26/90 Wünsche [1991] ECR I‑4961; C-295/94 Hüpeden, [1996] I‑3375; and Case C-296/94 Pietsch [1996] ECR I‑3409. 4 – OJ 1994 L 336, p. 1. 5 – Ibid., p. 20. 6 – Ibid., p. 22. 7 – See Council Decision 2006/398/EC of 20 March 2006 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and the People’s Republic of China pursuant to Article XXIV:6 and Article XXVIII of the General Agreement on Tariffs and Trade (GATT) 1994 relating to the modification of concessions in the schedules of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic in the course of their accession to the European Union (OJ 2006 L 154, p. 22). 8 – In this Opinion the term ‘Community law’ is used in so far as Community law, and not European Union law, still applies ratione temporis. 9 – OJ 1987 L 256, p. 1. 10 – OJ. 2000 L 28, p. 16. 11 – OJ 2005 L 286, p. 1. 12 – OJ 2004 L 325, p. 30. 13 – OJ 2005 L 320, p. 34. 14 – OJ 2005 L 169, p. 1. 15 – Cited in footnote 3. 16 – Cited in footnote 3. 17 – OJ 1981 L 183, p. 1. 18 – Cases 345/82 Wünsche, C‑24/90 WernerFaust, Case C-25/90 Wünsche, Case C-26/90 Wünsche, Case C‑295/94 Wünsche, Hüpeden, Pietsch, all cited in footnote 3. 19 – WernerFaust, paragraph 19; C-25/90 Wünsche, paragraph 20; C‑26/90 Wünsche, paragraph 20; Hüpeden, paragraph 19, and Pietsch, paragraph 22, all cited in footnote 3. 20 – Pietsch, paragraph 26 et seq., cited in footnote 3. 21 – Werner Faust, paragraphs 23 and 28; C-25/90 Wünsche, paragraphs 24 and 29; C‑26/90 Wünsche, paragraphs 24 and 29; Hüpeden, paragraph 26, and Pietsch, paragraphs 29 and 34, all cited in footnote 3. 22 – Pietsch, paragraph 34, cited in footnote 3. 23 – Pietsch, paragraph 29, cited in footnote 3. 24 – Case 265/87 Schräder [1989] ECR 2237, paragraph 21; Werner Faust, cited in footnote 3, paragraph 12; C-25/90 Wünsche, cited in footnote 3, paragraph 13; Case C-26/90 Wünsche, cited in footnote 3, paragraph 13; Hüpeden, cited in footnote 3, paragraph 14, and Pietsch, cited in footnote 3, paragraph 15. 25 – See points 19 to 22 of this Opinion. 26 – See recitals 7 and 10 in the preamble to Regulation No 1864/2004, as amended. 27 – Geboye Desta, M., The Law of International Trade in Agricultural Products, Kluwer Law International, 2002, p. 9, points out that the most significant achievements of the Agreement on Agriculture are that there is now a reasonable degree of certainty, predictability and respect for the rights of others in international relations in the agriculture sector. 28 – See McMahon, J., The WTO Agreement on Agriculture, Oxford University Press, 2006, p. 33, who points out that the tariff classification of goods is probably the most important aspect of the entire Agreement on Agriculture because tariff measures are more transparent and can be negotiated more easily. 29 – Case C-351/04 Ikea Wholesale [2007] ECR I‑7723, paragraph 40, and Case C‑34/08 Azienda Agricola Disarò Antonio and Others [2009] ECR I‑4023, paragraph 76. 30 – For the common agricultural policy, see Case C-33/08 Agrana Zucker [2009] ECR I‑5035, paragraph 33; Case C-310/04 Spain v Council. [2006] ECR I‑7285, paragraph 99; Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 83. For other areas, see, in particular, Case C‑58/08 Vodafone and Others [2010] ECR I‑0000, paragraph 52; Case C‑558/07 SPCM and Others [2009] ECR I-5783, paragraph 42; Joined Cases C-154/04 and C‑155/04 Alliance for Natural Healthand Others [2005] ECR I-6451, paragraph 52; C-434/02 Arnold André [2004] ECR I-11825, paragraph 46; Case C-210/03 Swedish Match [2004] ECR I‑11893, paragraph 48, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 123. 31 – See point 62 et seq.of my Opinion in Azienda Agricola Disarò Antonio, cited in footnote 29, and points 65 to 72 of my Opinion in Case C-365/08 Agrana Zucker [2010] ECR I‑0000. See also Mosbrucker, A.-L., ‘Contrôle du système des quotas laitiers’, Europe, Revue mensuelle NexisLexis Jurisclasseur, July 2009, p. 16, who agrees with the proposed three-stage approach and criticises the reduction of the test to manifest inappropriateness. 32 – See Vodafone (cited in footnote 30, paragraph 51 et seq.), in which the Court, in paragraphs 61 to 68, examined elements of necessity and, in paragraph 69, the appropriateness of the measure, as well as Agrana Zucker (cited in footnote 30 above, paragraph 42), British American Tobacco (Investments) and Imperial Tobacco (cited in footnote 30 above, paragraph 126 et seq.). See also Koch, O., Der Grundsatz der Verhältnismäßigkeit in der Rechtsprechung des Gerichtshofs der Europäischen Gemeinschaften, Berlin 2003, p. 212, who stresses that almost all the judgments in which the Court appeared to reduce the test to ‘inappropriateness’ dealt with possible alternative measures and sometimes included extensive reasoning as to why those measures were not to be preferred. Therefore, according to that writer, the term ‘manifest inappropriateness’ should be understood only as a synonym for a test of reduced depth in the context of the multi-stage examination of proportionality. An argument to the same effect is found in Kischel, U., ‘Die Kontrolle der Verhältnismäßigkeit durch den Europäischen Gerichtshof’, Europarecht 2000, p. 380, 398 ff., who points out that the Court’s own words, according to which the proportionality test in the relevant areas should be confined to the question of manifest inappropriateness, are not given by it the meaning which they prima facie appear to have. On the other hand, it is clear from the judgments in question that the discretion of the Community legislature does not restrict proportionality to manifest inappropriateness, but restricts the proportionality test to manifest errors. See also Zatschler, C., Finding facts, European Advocate, Spring 2010, p. 11, p. 12 et seq., who points out that discretion influences only the scope of examination, but not the structure of the examination as to proportionality. 33 – See the case-law discussed in points 58 to 64. 34 – See point 80 of this Opinion. 35 – See point 75 of this Opinion. 36 – This must be distinguished from the question whether this is justified in view of the additional burdens this entails for the undertakings affected. The question will be examined in connection with the necessity for and the appropriateness of the measure. 37 – See points 66 and 80 of this Opinion. 38 – See point 59 of this Opinion. 39 – See point 62 of this Opinion. 40 – In the present case the safeguard provision of Article 5 of the Agreement on Agriculture cannot be invoked because the products covered by CN code 2003 10 30 are not designated by the symbol ‘SSG’. 41 – See point 63 of this Opinion. 42 – See Geboye Desta, M. (cited in footnote 27, p. 21), who points out that a unilateral reduction in the agreed rates of customs duties is permissible under WTO law. 43 – Hüpeden, cited in footnote 3, paragraph 36. 44 – See point 59 above and the cases there cited. 45 – See the Report of the Appellate Body of the WTO, 23 September 2002, Chile –Price Band System, WT/DS207/AB/R, paragraphs 232 to 234. 46 – In paragraph 232 of the abovementioned report it is stated that the mere fact that duties are periodically adjusted does not necessarily mean that they are to be regarded as variable import levies within the meaning of footnote 1 to Article 4(2) of the Agreement on Agriculture. Rather, paragraph 233 of the Report refers to the fact that the duty rate varies automatically in accordance with a scheme or formula. 47 – See Geboye Desta, M. (cited in footnote 27, p. 23), who points out that the benefits granted to a Member State are rendered universal by the most-favoured nation principle. 48 – See point 97 et seq. above. 49 – Case 77/86 The National Dried Fruit Trade Association [1988] ECR 757, paragraph 29. 50 – See points 109 to 112 above. 51 – See the rules set out in points 19 to 22 and 70 of this Opinion.