61979CJ0135_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 135/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
GEDELFI GROSSEINKAUF GMBH & CO ., KG, COLOGNE,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS
Subject of the case
ON THE VALIDITY OF ARTICLE 2 OF COUNCIL REGULATION NO 516/77 OF 14 MARCH 1977 ( OFFICIAL JOURNAL L 73, P . 1 ) ON THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES,
Grounds
1 BY AN ORDER OF 20 JULY 1979 WHICH WAS RECEIVED AT THE COURT ON 21 AUGUST 1979 THE FINANZGERICHT HAMBURG REFERRED THREE QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY ON THE VALIDITY AND THE INTERPRETATION OF CERTAIN PROVISIONS OF COUNCIL REGULATION NO 516/77 OF 14 MARCH 1977 ON THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES ( OFFICIAL JOURNAL L 73, P . 1 ).
2 THOSE QUESTIONS AROSE IN THE COURSE OF AN ACTION BROUGHT BY A WHOLESALER AGAINST THE DISMISSAL BY THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS OF AN OBJECTION . THE OBJECTION WAS MADE AGAINST A NOTICE OF CORRECTIVE ASSESSMENT ISSUED BY THE HAUPTZOLLAMT IMPOSING A LEVY ON THE UNDERTAKING OF DM 23 672.59 IN REGARD TO THE IMPORTATION OF FOUR CONSIGNMENTS OF ORANGE JUICE FROM ISRAEL . WHEN THOSE GOODS WERE IMPORTED THE CUSTOMS OFFICE FOLLOWED THE DECLARATION SUBMITTED BY THE UNDERTAKING IMPORTING THE GOODS CLASSIFYING THEM UNDER SUBHEADING 20.07 B II ( A ) 1 OF THE COMMON CUSTOMS TARIFF ( ' ' FRUIT JUICES, UNFERMENTED, NOT CONTAINING SPIRIT, OF A SPECIFIC GRAVITY OF 1.33 OR LESS AT 15 OC, OF A VALUE EXCEEDING 30 UNITS OF ACCOUNT PER KG NET WEIGHT, ORANGE JUICE ' ' ). BY NOTICE OF CORRECTIVE ASSESSMENT THE HAUPTZOLLAMT CLASSIFIED THE GOODS UNDER SUBHEADING 20.07 B II ( B ) 1 ( AA ) ( ' ' FRUIT JUICES, UNFERMENTED, NOT CONTAINING SPIRIT, OF A SPECIFIC GRAVITY OF 1.33 OR LESS AT 15 OC, OF A VALUE OF 30 UNITS OF ACCOUNT OR LESS PER 100 KG NET WEIGHT, ORANGE JUICE, WITH AN ADDED SUGAR CONTENT EXCEEDING 30 % BY WEIGHT ' ' ). THE RATE OF CUSTOMS DUTY IS THE SAME FOR BOTH SUBHEADINGS BUT THE IMPORTATION OF PRODUCTS CLASSIFIED UNDER THE LATTER SUBHEADING IS IN ADDITION CHARGEABLE WITH A LEVY .
3 REGULATION NO 516/77, REFERRED TO ABOVE, GOVERNS THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES WHICH INCLUDE CERTAIN FRUIT JUICES . ARTICLE 2 ( 2 ) OF THAT REGULATION MAKES PROVISION FOR THE CHARGING OF A LEVY ON VARIOUS ADDED SUGARS ON THE IMPORTATION OF PRODUCTS LISTED IN ANNEX I TO THE REGULATION WHICH INCLUDES INTER ALIA THE ORANGE JUICE FALLING WITHIN SUBHEADING 20.07 B II ( B ) 1 ( AA ). THE RECITALS IN THE PREAMBLE TO THE REGULATION EXPLAIN THAT SUGAR HAS A DIRECT AND SUBSTANTIAL EFFECT ON THE COST PRICE OF CERTAIN PROCESSED PRODUCTS ; AND THAT THE TRADING SYSTEM FOR THE LATTER MUST THEREFORE BE BROUGHT INTO LINE WITH THAT FOR SUGAR ; AND THAT PROVISIONS MUST THEREFORE BE ADOPTED TO ENSURE THAT A LEVY IS CHARGED ON THE SUGAR COMPONENT INCORPORATED IN PROCESSED PRODUCTS UNDER CONDITIONS SIMILAR TO THOSE OPERATIVE UNDER COUNCIL REGULATION NO 3330/74 OF 19 DECEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL L 359, P . 1 ).
4 FROM THE REGULATIONS QUOTED IT CAN BE SEEN THAT ORANGE JUICE OF A VALUE EXCEEDING 30 UNITS OF ACCOUNT PER 100 KG AND FALLING WITHIN SUBHEADING 20.07 B II ( A ) 1 ARE CONSIDERED TO HAVE SUCH A HIGH NATURAL SUGAR CONTENT THAT THERE IS NO REASON TO CHARGE A LEVY ON IT IN RESPECT OF ADDED SUGAR .
5 BY ARTICLE 13 ( 1 ) OF REGULATION NO 516/77 THE GENERAL RULES FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF SHALL APPLY TO THE TARIFF CLASSIFICATION OF THE PRODUCTS COVERED BY THAT REGULATION . AT THE TIME OF THE IMPORTATION WHICH GAVE RISE TO THE DISPUTE IN THE MAIN ACTION THOSE GENERAL RULES, APPLICABLE BY VIRTUE OF COUNCIL REGULATION NO 2500/77 OF 7 NOVEMBER 1977 AMENDING REGULATION NO 950/68 ON THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL L 289, P . 1 ) INCLUDED IN SECTION I.C GENERAL RULES APPLICABLE BOTH TO NOMENCLATURE AND TO DUTIES . RULE C.3 PROVIDED THAT THE UNIT OF ACCOUNT ( U.A .), BY REFERENCE TO WHICH THE SCOPE OF CERTAIN SUBHEADINGS IS DEFINED, HAS A VALUE OF 0.88867088 GRAMME OF FINE GOLD AND THAT THE EXCHANGE RATE TO BE USED IN CONVERTING IT INTO THE CURRENCY OF A MEMBER STATE SHALL BE THAT CORRESPONDING TO THE PAR VALUE COMMUNICATED TO AND RECOGNIZED BY THE INTERNATIONAL MONETARY FUND IN RESPECT OF THAT CURRENCY .
6 ON THAT BASIS THE PARTIES TO THE MAIN ACTION HAVE AGREED TO TAKE THE AMOUNT OF 30 UNITS OF ACCOUNT USED AS THE LINE OF DEMARCATION BETWEEN THE TWO TARIFF SUBHEADINGS IN QUESTION AS BEING EQUIVALENT TO AN AMOUNT OF DM 109.80, ONE UNIT OF ACCOUNT CORRESPONDING TO DM 3.66 .
7 IN ORDER TO CALCULATE THE VALUE OF THE IMPORTED ORANGE JUICE, THE HAUPTZOLLAMT IN ITS NOTICE OF CORRECTIVE ASSESSMENT DECIDED THAT THE FACTORS DETERMINING THIS VALUE WERE EXPRESSED IN AMERICAN DOLLARS AND THOUGHT THAT THE RATE OF EXCHANGE TO BE USED HAD TO BE THE LATEST SELLING RATE RECORDED ON THE MOST REPRESENTATIVE EXCHANGE MARKET OR MARKETS OF THE FEDERAL REPUBLIC OF GERMANY IN ACCORDANCE WITH ARTICLE 12 OF COUNCIL REGULATION NO 803/68 OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 170 ). AT THE TIME OF THE IMPORTS IN QUESTION THIS RATE WAS DM 2.10 TO ONE AMERICAN DOLLAR . ON THAT BASIS THE VALUE OF THE IMPORTED ORANGE JUICE WOULD BE DM 103.64 PER 100 KG NET WEIGHT, IN OTHER WORDS, LESS THAN THE AMOUNT OF DM 109.80 TAKEN AS BEING EQUIVALENT TO 30 UNITS OF ACCOUNT .
8 THE IMPORTER DID NOT CONTEND THAT THIS METHOD OF CALCULATION WAS NOT IN ACCORDANCE WITH THE COMMUNITY PROVISIONS APPLICABLE . HOWEVER IT ARGUED THAT IF THE IMPORTATION HAD BEEN MADE ON THE SAME DATE INTO ANOTHER MEMBER STATE, THIS METHOD OF CALCULATION WOULD HAVE RESULTED IN THE ORANGE JUICE BEING VALUED AT MORE THAN 30 UNITS OF ACCOUNT PER 100 KG NET WEIGHT SO THAT IMPORTATION OF THE SAME GOODS INTO ANY OTHER MEMBER STATE WOULD HAVE BEEN EXEMPT FROM THE LEVY .
9 AFTER ACKNOWLEDGING THAT THIS WAS IN FACT THE CASE THE JUDGMENT MAKING THE REFERENCE FOUND THAT THE UNEQUAL TAXATION BETWEEN THE DIFFERENT MEMBER STATES IS A BREACH OF THE PROHIBITION OF DISCRIMINATION CONTAINED IN ARTICLE 40 OF THE TREATY AND MOREOVER A BREACH OF THE GENERAL PRINCIPLE OF EQUALITY .
10 IT WAS ON THE BASIS OF THIS FINDING THAT THE FINANZGERICHT REFERRED THE FOLLOWING QUESTIONS TO THE COURT :
' ' 1 . IS ARTICLE 2 OF COUNCIL REGULATION ( EEC ) NO 516/77 OF 14 MARCH 1977 IN CONJUNCTION WITH ANNEX I THERETO AND WITH ARTICLE 1 OF COMMISSION REGULATION ( EEC ) NO 2857/77 OF 21 DECEMBER 1977 INVALID IN SO FAR AS IT PROVIDES FOR A LEVY ON PRODUCTS FALLING WITHIN TARIFF SUBHEADING 20.07 B II ( B ) 1 OF THE COMMON CUSTOMS TARIFF THE VALUE OF WHICH, ON THE BASIS OF THE RATE OF EXCHANGE LAID DOWN IN RULE 3 UNDER HEAD C OF THE GENERAL RULES CONTAINED IN SECTION I OF PART I OF THE ANNEX TO REGULATION ( EEC ) NO 950/68 OF THE COUNCIL ON THE COMMON CUSTOMS TARIFF IN THE VERSION OF COUNCIL REGULATION ( EEC ) NO 2500/77 OF 7 NOVEMBER 1977, IS 30 UNITS OF ACCOUNT OR LESS PER 100 KG NET WEIGHT WHEN THE PRODUCTS ARE IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY, IF THE VALUE OF THE SAME PRODUCTS WOULD BE MORE THAN 30 UNITS OF ACCOUNT WHEN IMPORTED INTO THE OTHER MEMBER STATES, ASSUMING THE SAME IMPORT PRICE ON THE BASIS OF THE DOLLAR, SO THAT IT WOULD NOT BE NECESSARY TO CHARGE A LEVY IN THE OTHER MEMBER STATES?
2 . IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE :
MAY THE NATIONAL AUTHORITIES OR COURTS THEMSELVES WAIVE THE CHARGING OF THE LEVY ON THE GROUND OF THE DECLARATION OF INVALIDITY MADE BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, OR DOES THIS REQUIRE AN ORDER BY THE COMPETENT LEGISLATURE?
3 . IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE :
MAY THE NATIONAL AUTHORITIES OR COURTS IN THE CASE MENTIONED IN QUESTION 1 WAIVE THE CHARGING OF THE LEVY ON THE GROUND THAT THE IMPOSITION OF A LEVY WOULD LEAD TO A VIOLATION OF THE PRINCIPLE OF EQUALITY WHICH WOULD CONFLICT WITH THE PRECEPTS AND VALUES OF THE LEGISLATURE?
' '
QUESTION 1
11 THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES INVOLVES, AS THE SECOND RECITAL IN THE PREAMBLE TO REGULATION
NO 516/77 STATES, SETTING UP A SINGLE TRADING SYSTEM AT THE FRONTIERS OF THE COMMUNITY IN ORDER TO STABILIZE THE COMMUNITY MARKET . A SINGLE TRADING SYSTEM WITH NON-MEMBER COUNTRIES CONSTITUTES ONE OF THE FUNDAMENTAL OBJECTIVES OF THE COMMON MARKET WHICH IS BASED, ACCORDING TO ARTICLE 3 ( B ) OF THE TREATY, ON THE ESTABLISHMENT OF A COMMON CUSTOMS TARIFF AND OF A COMMON COMMERCIAL POLICY TOWARDS THIRD COUNTRIES AND WHICH, BY ARTICLE 38, EXTENDS TO AGRICULTURE AND TRADE IN AGRICULTURAL PRODUCTS . UNDER ARTICLE 39 ( 1 ) ( C ) OF THE TREATY STABILIZING OF MARKETS IS ONE OF THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY WHICH MUST ACCOMPANY THE OPERATION AND DEVELOPMENT OF THE COMMON MARKET FOR AGRICULTURAL PRODUCTS .
12 IT FOLLOWS THAT THE ESTABLISHMENT OF A SINGLE TRADING SYSTEM AT THE FRONTIERS OF THE COMMUNITY MUST BE REGARDED AS ONE OF THE ESSENTIAL AIMS OF REGULATION NO 516/77 . THEREFORE THE PROVISIONS OF THAT REGULATION AND THOSE NEEDED TO APPLY IT MUST BE INTERPRETED WITH DUE REGARD FOR THIS AIM .
13 ANOTHER FACTOR IN THE INTERPRETATION OF THOSE PROVISIONS IS THAT THE LEVY PROVIDED FOR BY REGULATION NO 516/77 IS IMPOSED ON ADDED SUGAR IN ORDER TO BRING THE TRADING SYSTEM FOR ORANGE JUICE INTO LINE WITH THAT FOR SUGAR . THE PURPOSE OF THE PROVISIONS OF THAT REGULATION IS THUS TO IMPOSE A LEVY ONLY ON PRODUCTS PROCESSED WITH ADDED SUGAR .
14 IF THEREFORE REGULATION NO 516/77 LAYS DOWN A FIXED LIMIT OF VALUE OF 30 UNITS OF ACCOUNT PER 100 KG FOR ORANGE JUICE ABOVE WHICH GOODS IMPORTED INTO THE COMMUNITY ESCAPE FROM THE APPLICATION OF THE LEVY, AND IF IT LAYS DOWN CRITERIA TO CONVERT THIS AMOUNT INTO NATIONAL CURRENCY, IT IS ONLY IN ORDER TO FACILITATE THE CONTROLS AND CUSTOMS CHECKS CARRIED OUT AT THE FRONTIERS OF THE COMMUNITY .
15 THESE TWO FACTORS SHOULD ASSIST THE FINANZGERICHT IN OVERCOMING THE PROBLEMS OF THE KIND REFERRED TO IN ITS FIRST QUESTION .
16 IF UNDER A SINGLE TRADING SYSTEM WITH NON-MEMBER COUNTRIES THE IMPORTATION OF ORANGE JUICE INTO CERTAIN MEMBER STATES DOES NOT GIVE RISE TO THE CHARGING OF THE LEVY PROVIDED FOR BY REGULATION NO 516/77 BECAUSE THOSE PRODUCTS ARE TAKEN TO CONTAIN NO ADDED SUGAR, THOSE SAME PRODUCTS CANNOT BE DEEMED TO CONTAIN ADDED SUGAR AND CONSEQUENTLY BE TAXED FOR THIS REASON ON THEIR IMPORTATION INTO OTHER MEMBER STATES .
17 THIS CONCLUSION IS ALL THE MORE COMPELLING SINCE IT DOES NOT ALLOW FORTUITOUS CURRENCY FLUCTUATIONS TO OCCASION A TARIFF CLASSIFICATION BY THE CUSTOMS AUTHORITIES OF A MEMBER STATE WHICH IS DIFFERENT FROM THE ONE APPLIED BY THE CUSTOMS AUTHORITIES OF OTHER MEMBER STATES .
18 IN THESE CIRCUMSTANCES THE ARGUMENT THAT SOME ORANGE JUICES MIGHT FALL WITHIN A CERTAIN SUBHEADING OF THE COMMON CUSTOMS TARIFF AND THEREBY BECOME SUBJECT TO THE CHARGING OF A LEVY IN CERTAIN MEMBER STATES, AND FALL WITHIN ANOTHER SUBHEADING EXEMPTING THEM FROM THE CHARGING OF THAT LEVY IN OTHER MEMBER STATES, IS UNFOUNDED .
19 CONSEQUENTLY THE ANSWER TO QUESTION 1 SHOULD BE THAT ARTICLE 2 OF REGULATION NO 516/77 IN CONJUNCTION WITH ANNEX I TO THAT REGULATION SHOULD BE INTERPRETED AS MEANING THAT A LEVY IS NOT CHARGEABLE IN RESPECT OF ADDED SUGAR ON THE IMPORTATION OF ORANGE JUICE INTO A MEMBER STATE IF IT IS ESTABLISHED THAT THE SAME ORANGE JUICE IS EXEMPT FROM THE LEVY IN OTHER MEMBER STATES .
20 IT THEREFORE FOLLOWS THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 2 OF REGULATION NO 516/77 AS SO INTERPRETED .
QUESTIONS 2 AND 3
21 IN VIEW OF THE ANSWER GIVEN TO QUESTION 1 THERE IS NO NEED TO EXAMINE QUESTIONS 2 AND 3 WHICH HAVE LOST THEIR PURPOSE .
Decision on costs
22 THE COSTS INCURRED BY THE COUNCIL AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THE 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 .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY AN ORDER OF THAT COURT OF 20 JULY 1979, HEREBY RULES :
1 . ARTICLE 2 OF REGULATION NO 516/77 IN CONJUNCTION WITH ANNEX I TO THAT REGULATION SHOULD BE INTERPRETED AS MEANING THAT A LEVY IS NOT CHARGEABLE IN RESPECT OF ADDED SUGAR ON THE IMPORTATION OF ORANGE JUICE INTO A MEMBER STATE IF IT IS ESTABLISHED THAT THE SAME ORANGE JUICE IS EXEMPT FROM THE LEVY IN OTHER MEMBER STATES .
2 . CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF ARTICLE 2 OF REGULATION NO 516/77 AS SO INTERPRETED .