61979CJ0824_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 824 AND 825/79
REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE ITALIAN CORTE SUPREMA DI CASSAZIONE ( ITALIAN SUPREME COURT OF CASSATION ) FOR A PRELIMINARY RULING IN THE TWO PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
S.A.S . PRODOTTI ALIMENTARI FOLCI
AND
AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION )
Subject of the case
ON THE INTERPRETATION OF TARIFF HEADING 07.04 SET OUT IN ANNEX A TO REGULATION ( EEC ) NO 3055/74 OF THE COUNCIL OF 2 DECEMBER 1974 ( OFFICIAL
JOURNAL L 329, P . 114 ) AND TO REGULATION ( EEC ) NO 3011/75 OF 17 NOVEMBER 1975 ( OFFICIAL JOURNAL L 310, P . 114 ) ESTABLISHING IN RESPECT OF CERTAIN PRODUCTS FALLING WITHIN CHAPTERS 1 TO 24 OF THE COMMON CUSTOMS TARIFF A SCHEME OF GENERALIZED PREFERENCES IN FAVOUR OF DEVELOPING COUNTRIES,
Grounds
1 BY AN ORDER DATED 22 JUNE 1979 WHICH WAS RECEIVED AT THE COURT ON 21 DECEMBER 1979 THE CORTE SUPREMA DI CASSAZIONE ( ITALIAN SUPREME COURT OF CASSATION ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THE FOLLOWING QUESTION :
' ' MUST TARIFF HEADING 07.04 EX B . OTHER : WHOLE MUSHROOMS, DRIED, DEHYDRATED OR EVAPORATED, EXCLUDING CULTIVATED MUSHROOMS, REFERRED TO IN ANNEX A TO REGULATION ( EEC ) NO 3055/74 OF THE COUNCIL OF 2 DECEMBER 1974 ( OFFICIAL JOURNAL L 329, P . 114, AS AMENDED BY A CORRIGENDUM PUBLISHED IN OFFICIAL JOURNAL L 121 OF 14 MAY 1975 ) AND IN ANNEX A TO REGULATION ( EEC ) NO 3011/75 OF THE COUNCIL OF 17 NOVEMBER 1975 ( ESTABLISHING IN RESPECT OF CERTAIN PRODUCTS FALLING WITHIN CHAPTERS 1 TO 24 OF THE COMMON CUSTOMS TARIFF A SCHEME OF GENERALIZED PREFERENCES IN FAVOUR OF DEVELOPING COUNTRIES ( OFFICIAL JOURNAL L 310, P . 114 )) WHICH LAYS DOWN THE RATE OF 10 %, BE UNDERSTOOD AS MEANING THAT THE ABOVE-MENTIONED REDUCED RATE APPLIES TO UNCULTIVATED MUSHROOMS, DRIED, DEHYDRATED OR EVAPORATED, EVEN IF THEY ARE CUT OR SLICED ( PROVIDED THAT ALL THEIR PARTS ARE PRESENT : STALKS, CAPS ETC .), OR AS MEANING THAT IT APPLIES ONLY TO MUSHROOMS WHICH ARE NOT CUT OR SLICED, ARE DRIED, DEHYDRATED OR EVAPORATED AND ARE UNCULTIVATED?
' '
BY AN ORDER OF THE SAME DATE THE SAME COURT RAISED A SIMILAR QUESTION SAVE THAT IT RELATES ONLY TO REGULATION NO 3011/75 .
2 THE QUESTIONS HAVE BEEN RAISED DURING TWO ACTIONS BETWEEN S.A.S . PRODOTTI ALIMENTARI FOLCI AND AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION ) BROUGHT TO DECIDE WHETHER CUSTOMS DUTY AT THE CONVENTIONAL RATE OF 16 % LAID DOWN BY THE COMMON CUSTOMS TARIFF OR AT THE RATE OF 10 % LAID DOWN FOR DEVELOPING COUNTRIES SHOULD BE APPLIED TO TWO CONSIGNMENTS OF WILD, SLICED AND DRIED MUSHROOMS, INCLUDING THE STALK AND CAP, IMPORTED IN 1975 AND 1976 FROM YUGOSLAVIA INTO ITALY .
3 IT IS COMMON GROUND THAT THIS PRODUCT IS WITHIN SUBHEADING 07.04 B OF THE COMMON CUSTOMS TARIFF WHICH, IN THE VERSIONS OTHER THAN THE ENGLISH VERSION, IS WORDED AS FOLLOWS :
' ' LEGUMES ET PLANTES POTAGERES DESSECHES, DESHYDRATES OU EVAPORES, MEME COUPES EN MORCEAUX OU EN TRANCHES OU BIEN BROYES OU PULVERISES, MAIS NON AUTREMENT PREPARES :
. . .
B . AUTRES ' ' ;
' ' GROENSAGER, TOERREDE, OGSAA SNITTEDE, KNUSTE ELLER PULVERISEREDE, MEN IKKE YDERLIGERE TILBEREDTE :
. . .
B . ANDRE ' ' ;
' ' GEMUSE UND KUCHENKRAUTER, GETROCKNET, AUCH IN STUCKE ODER SCHEIBEN GESCHNITTEN, ALS PULVER ODER SONST ZERKLEINERT, ABER NICHT WEITER ZUBEREITET :
. . .
B . ANDERE ' ' ;
' ' ORTAGGI E PIANTE MANGERECCE, DISSECCATI, DISIDRATATI O EVAPORATI, ANCHE TAGLIATI IN PEZZI O IN FETTE OPPURE MACINATI O POLVERIZZATI, MA NON ALTRIMENTI PREPARATI :
. . .
B . ALTRI ' ' ;
' ' GROENTEN EN MOESKRUIDEN, GEDROOGD, GEDEHYDREERD OF GEEVAPOREERD, OOK INDIEN IN STUKKEN OF IN SCHIJVEN GESNEDEN, DAN WEL FIJNGEMAAKT OF IN POEDERVORM, DOCH NIET OP ANDERE WIJZE BEREID :
. . .
B . ANDERE ' ' .
ALL THESES VERSIONS ARE CLEARLY BASED ON THE FRENCH VERSION OF THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE OF WHICH ONLY THE FRENCH AND ENGLISH VERSIONS ARE AUTHENTIC . THE ENGLISH WORDING, WHICH IS BASED ON THE ENGLISH VERSION OF THE SAID NOMENCLATURE, READS AS FOLLOWS :
' ' DRIED, DEHYDRATED OR EVAPORATED VEGETABLES, WHOLE, CUT, SLICED, BROKEN OR IN POWDER BUT NOT FURTHER PREPARED :
. . .
B . OTHER ' ' .
4 THE REGULATIONS WHICH GOVERN, FOR EACH YEAR, THE SCHEME OF GENERALIZED PREFERENCES IN FAVOUR OF DEVELOPING COUNTRIES INCLUDING YUGOSLAVIA, LIST IN ANNEX A THERETO THE PRODUCTS TO WHICH THE SCHEME APPLIES . AS FAR AS CONCERNS THE PRODUCTS FALLING WITHIN HEADING 07.04 THE ANNEXES REPRODUCE THE WORDING OF THE ABOVE-MENTIONED HEADING BUT LIST ONLY TWO PRODUCTS COMING UNDER SUBHEADING B, ONE OF WHICH IS MUSHROOMS, EXCLUDING CULTIVATED MUSHROOMS . THE DISAGREEMENT BETWEEN THE PARTIES IN THE MAIN ACTION DERIVES FROM THE FACT THAT, FOR THE YEARS IN QUESTION, AND ONLY THOSE YEARS, THE DESCRIPTION OF THE PRODUCT IN THE ANNEX CONTAINS AN ADDITIONAL CONDITION, NAMELY THAT THE MUSHROOMS MUST BE ' ' WHOLE ' ' .
5 FOLCI SUBMITS THAT THE WORD ' ' WHOLE ' '
NEED NOT NECESSARILY BE UNDERSTOOD AS MEANING THAT ALL THEIR PARTS ARE PRESENT .
6 HOWEVER, ALTHOUGH THE LANGUAGE VERSIONS WHICH ARE MODELLED ON THE FRENCH WORDING OF THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE MAKE IT POSSIBLE TO CONSIDER THE INTERPRETATION ADVOCATED BY FOLCI, THAT IS NOT SO IN THE CASE OF THE ENGLISH VERSION . THE LATTER CLEARLY INDICATES THAT THE WORD ' ' WHOLE ' '
APPLIES ONLY TO PRODUCTS WHICH ARE NOT ' ' CUT, SLICED, BROKEN OR IN POWDER ' ' . THESE QUALIFYING WORDS MAY BE REGARDED AS BEING IMPLICIT IN THE EXPRESSION ' ' EVEN CUT ' '
ETC . OF THE OTHER LANGUAGE VERSIONS .
7 FOLCI ALSO MAINTAINED BEFORE THE COURT THAT A LITERAL INTERPRETATION IS INADEQUATE BUT THAT THE WORDING MUST BE INTERPRETED REASONABLY AND PRAGMATICALLY . AS ALMOST ALL THE WILD MUSHROOMS ORIGINATING IN YUGOSLAVIA AND OTHER DEVELOPING COUNTRIES ARE BOLETI, AND AS BOLETI ARE NOT SUITABLE FOR DRYING UNLESS THEY HAVE FIRST BEEN SLICED, FOLCI ' S INTERPRETATION SHOULD BE ADOPTED . OTHERWISE THE PREFERENTIAL SYSTEM WOULD BE ILLUSORY AS FAR AS WILD MUSHROOMS ARE CONCERNED .
8 THE COMMISSION, IN ANSWER TO A QUESTION PUT TO IT BY THE COURT, EXPLAINED WHY THE WORD ' ' WHOLE ' '
WAS INSERTED IN THE TWO REGULATIONS IN QUESTION AND THEN REMOVED FROM THE REGULATIONS GOVERNING THE PREFERENTIAL SYSTEM FOR THE FOLLOWING YEARS : THE PURPOSE OF THIS CONDITION IS TO PREVENT PRESERVED MUSHROOMS FROM ALSO CONTAINING CULTIVATED MUSHROOMS WHICH COULD NOT BE IDENTIFIED IN THE FORM OF PRESERVED, CUT MUSHROOMS . HOWEVER, IT WAS DISCOVERED THAT CERTAIN DEVELOPING COUNTRIES WERE ONLY PRODUCING PRESERVED, CUT MUSHROOMS AND IT WAS THEREFORE THOUGHT MORE IMPORTANT TO ALLOW THEM TO PARTICIPATE IN THE PREFERENTIAL SCHEME THAN TO MAKE SURE OF EXCLUDING PRESERVES ILLEGALLY CONTAINING CULTIVATED MUSHROOMS . FOR THAT REASON, IT IS STATED, THE CONDITION WAS ABOLISHED FOR 1977 AND SUBSEQUENT YEARS .
9 IN FACT THE MERE REPRODUCTION OF THE TITLE OF TARIFF HEADING 07.04 - WHICH INCLUDES NOT ONLY CUT OR SLICED PRODUCTS BUT ALSO THOSE WHICH ARE BROKEN OR IN POWDER - AND THE EXCLUSION AT THE SAME TIME OF CULTIVATED MUSHROOMS ARE LIKELY TO CREATE PROLEMS WITH REGARD TO INSPECTION . THE QUESTION WHETHER SUCH PROBLEMS MUST PREVAIL OVER THE INTERESTS OF CERTAIN DEVELOPING COUNTRIES IS THE RESPONSIBILITY OF THE POLITICAL INSTITUTIONS OF THE COMMUNITY .
10 CONSEQUENTLY THE SOLUTION WHICH APPEARS EXPRESSLY IN ONE OF THE LANGUAGE VERSIONS, WHICH IS IN NO WAY INCONSISTENT WITH THE OTHER VERSIONS AND MOREOVER SUPPLIES A COMPLETE ANSWER TO ANY PROBLEMS CONCERNING INSPECTION, SHOULD BE UPHELD .
11 THEREFORE THE APPROPRIATE ANSWER TO THE QUESTION REFERRED TO THE COURT BY THE CORTE SUPREMA DI CASSAZIONE IS THAT TARIFF HEADING 07.04 ' ' EX B . OTHER ' '
SET OUT IN ANNEX A TO REGULATION ( EEC ) NO 3055/74 OF THE COUNCIL OF 2 DECEMBER 1974 AND TO REGULATION ( EEC ) NO 3011/75 OF THE COUNCIL OF 17 NOVEMBER 1975 ESTABLISHING IN RESPECT OF CERTAIN PRODUCTS FALLING WITHIN CHAPTERS 1 TO 24 OF THE COMMON CUSTOMS TARIFF A SCHEME OF GENERALIZED PREFERENCES IN FAVOUR OF DEVELOPING COUNTRIES FOR THE YEARS 1975 AND 1976 MUST BE INTERPRETED AS MEANING THAT THE REDUCED RATE DOES NOT APPLY TO CUT OR SLICED MUSHROOMS EVEN IF ALL THE PARTS ARE PRESENT .
Decision on costs
12 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTIONS ARE CONCERNED, IN TH NATURE OF A STEP IN THE ACTIONS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE, BY ORDER OF 22 JUNE 1979, HEREBY RULES :
TARIFF HEADING 07.04 ' ' EX B . OTHER ' '
SET OUT IN ANNEX A TO REGULATION ( EEC ) NO 3055/74 OF THE COUNCIL OF 2 DECEMBER 1974 AND TO REGULATION ( EEC ) NO 3011/75 OF THE COUNCIL OF 17 NOVEMBER 1975 ESTABLISHING IN RESPECT OF CERTAIN PRODUCTS FALLING WITHIN CHAPTERS 1 TO 24 OF THE COMMON CUSTOMS TARIFF A SCHEME OF GENERALIZED PREFERENCES IN FAVOUR OF DEVELOPING COUNTRIES FOR THE YEARS 1975 AND 1976 MUST BE INTERPRETED AS MEANING THAT THE REDUCED RATE DOES NOT APPLY TO CUT OR SLICED MUSHROOMS EVEN IF ALL THE PARTS ARE PRESENT .