Judgment of the Court (First Chamber) of 4 July 1990. - Vleeswarenbedrijf Roermond BV and others v Produktschap voor Vee en Vlees. - References for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Common Customs Tariff - Export refunds for pigmeat - Fore-end or shoulder - Loin. - Joined cases C-354/88, C-355/88 and C-356/88.



European Court reports 1990 Page I-02753



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Agriculture - Common organization of the markets - Pigmeat - Export refunds - Products qualifying for refunds - Parts of specific cuts treated in the same way as those cuts - Conditions - Maintenance of natural proportions of muscle tissue and bone

( Commission Regulations Nos 3602/82, Arts 2(2 ) and 3, and 263/83, Annex )

Summary

The requirement under the first subparagraph of Article 2(2 ) and under Article 3, inserting Additional Note No 2 to Chapter 2 of the Common Customs Tariff, of Regulation No 3602/82, that parts of certain cuts of pigmeat must contain muscle tissue and bones "in natural proportion to the entire cuts" in order to fall within the same tariff subheading as those cuts and thus qualify for export refunds under Regulation No 263/83, must be interpreted as meaning that, after cutting, the natural proportions of muscle tissue and bones in the cuts must not be altered .

Parties

In Joined Cases C-354/88, C-355/88 and C-356/88,

REFERENCES to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven ( Administrative court of last instance in matters of trade and industry ), The Hague ( The Netherlands ), for a preliminary ruling in the proceedings pending before that court between

Vleeswarenbedrijf Roermond BV

and

Produktschap voor Vee en Vlees ( Cattle and Meat Board ),

between

Sleegers Vleeswarenfabriek BV

and

Produktschap voor Vee en Vlees,

and between

Kuehne en Heitz BV

and

Produktschap voor Vee en Vlees,

on the validity and interpretation of the first subparagraph of Article 2(2 ) of Commission Regulation ( EEC ) No 3602/82 of 21 December 1982 fixing coefficients for calculating levies on pigmeat products other than pig carcasses, amending the Annex to Council Regulation ( EEC ) No 950/68 on the Common Customs Tariff and repealing Regulation ( EEC ) No 747/79 ( Official Journal 1982 L 376, p . 23 ),

THE COURT ( First Chamber )

composed of : Sir Gordon Slynn, President of Chamber, R . Joliet and G . C . Rodríguez Iglesias, Judges,

Advocate General : F . G . Jacobs

Registrar : D . Louterman, Principal Administrator,

after considering the observations submitted on behalf of

Sleegers Vleeswarenfabriek BV, plaintiff in the main proceedings, by P . G . J . Wertenbroek, of the Eindhoven Bar;

Kuehne en Heitz BV, plaintiff in the main proceedings, by A . J . Braakman and P . Glazener, of the Rotterdam Bar;

the Produktschap voor Vee en Vlees, the defendant in the main proceedings, by Ch . M . den Hoed, its Deputy Secretary; and

the Commission of the European Communities, by R . C . Fischer, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 6 March 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 29 March 1990,

gives the following

Judgment

Grounds

1 By orders dated 16 September 1988, which were received at the Court on 12 December 1988, the College van Beroep voor het Bedrijfsleven, The Hague, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the validity and interpretation of the first subparagraph of Article 2(2 ) of Commission Regulation ( EEC ) No 3602/82 of 21 December 1982 fixing coefficients for calculating levies on pigmeat products other than pig carcasses, amending the Annex to Council Regulation ( EEC ) No 950/68 on the Common Customs Tariff and repealing Regulation ( EEC ) No 747/79 ( Official Journal 1982 L 376, p . 23 ).

2 Those questions arose in the context of three sets of proceedings between three meat exporters and the Produktschap voor Vee en Vlees concerning a claim for the payment of export refunds and, in certain cases, monetary compensatory amounts to which the plaintiffs consider themselves entitled in respect of the exportation to non-member countries of a number of consignments of pigmeat .

3 Article 15(1 ) of Council Regulation ( EEC ) No 2759/75 of 29 October 1975 on the common organization of the market in pigmeat ( Official Journal 1975 L 282, p . 1 ) provides that, to the extent necessary to enable the products covered by that common organization of the market to be exported "on the basis of quotations or prices for those products on the world market, the difference between those quotations or prices and prices within the Community may be covered by an export refund ".

4 Article 17(1 ) of that regulation provides that the general rules for the interpretation of the Common Customs Tariff and the special rules for its application are to apply to the tariff classification of products covered by the regulation and that the tariff nomenclature resulting from the application of the regulation is to form part of the Common Customs Tariff .

5 The definitions of a number of products in that sector were modified by Article 2 of Commission Regulation No 3602/82 . Under the first subparagraph of Article 2(2 ), parts of inter alia "fore-end", "shoulder" and "loin" cuts fall within the same subheading as entire cuts "only if they contain the muscle tissue and the bones in natural proportion to the entire cuts ".

6 In accordance with Article 17(1 ) of Regulation No 2759/75, cited above, it was necessary to make certain amendments to the nomenclature and special rules for the application of the Common Customs Tariff . Those amendments were effected by Article 3 of Regulation No 3602/82, cited above, which adds Additional Note No 2 to Chapter 2 of the Common Customs Tariff, incorporating the text of Article 2 .

7 The adjustments to the list of products qualifying for export refunds were made by Commission Regulation ( EEC ) No 263/83 of 28 January 1983 ( Official Journal 1983 L 30, p . 72 ), which entered into force on 1 February 1983 . In accordance with the annex to that regulation, refunds are granted for inter alia products falling within tariff subheadings 02.01 A III ( a ) 3 ( fore-ends or shoulders and parts thereof ) and 02.01 A III ( a ) 4 ( loins and parts thereof ) but not for products falling under subheading 02.01 A III ( a ) 6 ( bb ) ( other, miscellaneous ).

8 Whilst parts of fore-end, shoulder and loin had previously always fallen within the same tariff subheading as the corresponding entire cuts, as a result of the amendments referred to above they now do so "only if they contain the muscle tissue and the bones in natural proportion to the entire cuts ". If that condition is not satisfied, they fall under tariff subheading 02.01 A III ( a ) 6 ( bb ) and therefore do not qualify for any refund .

9 Between the beginning of February 1983 and the end of March 1986, the plaintiffs in all three cases exported a number of consignments of pigmeat to non-member countries; those consignments were declared for export refund purposes under tariff subheadings 02.01 A III ( a ) 3 ( fore-ends or shoulders and parts thereof ) and 02.01 A III ( a ) 4 ( loins and parts thereof ).

10 The customs authorities, however, considered that the consignments in question should fall under tariff subheading 02.01 A III ( a ) 6 ( bb ) and therefore rejected a number of applications for refunds and, in certain cases, for monetary compensatory amounts, and took steps to recover sums which had already been paid . The plaintiffs in the main proceedings appealed against those decisions to the College van Beroep voor het Bedrijfsleven, which ordered an experts' report on inter alia the concept of the "natural proportion" of muscle tissue to bone in "fore-end", "shoulder" and "loin" cuts of pigmeat and whether the actual proportion of muscle tissue to bone in the ribs contained in the consignments in issue could be objectively determined .

11 The experts stated that the natural proportion of muscle tissue to bone could not be expressed as a generally valid percentage, nor was it possible to state what tolerance should be allowed in that regard, in view of the many sources of variation, such as differences in the way in which the parts are cut, in the breed, age and sex of the pig and in the manner in which it is reared and fattened .

12 The national court therefore stayed the proceedings and sought a preliminary ruling from the Court on the following questions :

"( 1 ) Is the first subparagraph of Article 2(2 ) of Regulation ( EEC ) No 3602/82 valid?

( 2 ) If so, what criteria should be used to determine the natural proportion of muscle tissue and bone in the entire cuts, referred to in the provision cited in Question 1?"

13 Reference is made to the Report for the Hearing for a fuller account of the facts of the cases, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

14 It must first be observed that although in its orders for reference the national court mentioned only the first subparagraph of Article 2(2 ) of Regulation No 3602/82, the questions raised also concern Article 3 of that regulation, inserting Additional Note No 2 to Chapter 2 of the Common Customs Tariff, which incorporates the text of Article 2 .

15 It is clear from the orders for reference that the question of the validity of the first subparagraph of Article 2(2 ) and of Article 3 of the regulation is dependent on the interpretation to be given to those articles . The second question should therefore be answered first .

The second question

16 It is clear from the documents before the Court that this question seeks, essentially, to determine how the requirement under the first subparagraph of Article 2(2 ) and under Article 3 of Regulation No 3602/82 that parts of cuts must contain muscle tissue and bones in natural proportion to the entire cuts should be interpreted .

17 The Commission proposes that the basis for calculation should be the natural proportions in entire cuts, taken from a normal slaughter pig, comparable to those from which the parts were taken, in the various possible combinations of fore-end, shoulder and loin defined in the Community legislation . The national authorities would therefore be able to determine with sufficient precision the upper and lower limits of the natural proportions .

18 That interpretation cannot be followed . On the one hand, it would have the effect of disqualifying, for refund purposes, not only parts of cuts containing a high proportion of bone to meat, but also those having a high proportion of meat to bone . On the other, it would entail a high degree of uncertainty for exporters, who could not be sure, when negotiating contracts with purchasers from non-member countries, whether or not they would be entitled to an export refund, the very purpose of which is to enable products to be exported to non-member countries by compensating for the difference between prices for those products within the Community and on the world market .

19 The plaintiffs in the main proceedings submit that the parts of cuts themselves are the decisive factor, and not the natural proportions of the entire cuts . Parts of cuts can be classified under the same tariff subheading as entire cuts if they contain muscle tissue and bone in the same proportion as parts not yet separated from the entire cut, which means that the natural balance of the proportion of muscle tissue to bone in parts of cuts must not have been altered . Consequently, shoulder cuts may not be boned, and the muscle tissue between ribs may not be removed from chuck back ribs, after separation from the shoulder .

20 That interpretation offers a practical, uniform and non-arbitrary criterion .

21 First, it prevents differences in the way in which the parts are cut, in the breed, age and sex of the pig or in the manner in which it is reared and fattened from having any effect on the granting of export refunds .

22 Secondly, it enables exporters to know with certainty, provided that they cut parts in accordance with normal market practice without removing any tissue from the bone, whether or not they will be entitled to an export refund, thus avoiding doubt during negotiations with purchasers from non-member countries and ensuring that the purpose of export refunds, as laid down in Article 15 of Regulation No 2759/75, is achieved .

23 The answer to the second question must therefore be that the requirement under the first subparagraph of Article 2(2 ) and under Article 3 of Regulation No 3602/82 that parts of cuts must contain muscle tissue and bones "in natural proportion to the entire cuts" in order to fall within the same tariff subheading must be interpreted as meaning that, after cutting, the natural proportions of muscle tissue and bones in the cuts must not be altered .

The first question

24 It is clear from the orders for reference that the national court raises the question of the validity of the provisions concerned only because it considers that the criteria of natural proportions cannot be applied uniformly throughout the Community . Since the answer given to the second question obviates that danger, the first question is no longer relevant .

Decision on costs

Costs

25 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

Operative part

On those grounds,

THE COURT ( First Chamber ),

in answer to the question referred to it by the College van Beroep voor het Bedrijfsleven, by order of 16 September 1988, hereby rules :

The requirement under the first subparagraph of Article 2(2 ) and under Article 3, inserting Additional Note No 2 to Chapter 2 of the Common Customs Tariff, of Commission Regulation ( EEC ) No 3602/82 of 21 December 1982 fixing coefficients for calculating levies on pigmeat products other than pig carcasses, amending the Annex to Council Regulation ( EEC ) No 950/68 on the Common Customs Tariff and repealing Regulation ( EEC ) No 747/79, that parts of cuts must contain muscle tissue and bones "in natural proportion to the entire cuts" in order to fall within the same tariff subheading must be interpreted as meaning that, after cutting, the natural proportions of muscle tissue and bones in the cuts must not be altered .