OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 21 OCTOBER 1982 ( 1 )

Mr President,

Members of the Court,

1. In the case I am to discuss today, Vismans, the Tariefcommissie, Amsterdam, has referred the following question to the Court.

“Are the words ‘Beans of the genus Phaseolus mungo ... Free’ used under subheading 07.05 B I in Annex A to Council Regulation (EEC) No 2792/79 of December 1979 (Official Journal L 328, p. 83) meant to exempt from import duties:

(i) beans of the type known as ‘green gram’;

(ii) beans of the type known as ‘black gram’; or

(iii) both types of beans?”

The principal reason for the Tariefcommissie's doubts on the matter is that in the expert opinion considered by it, and the scientific literature cited in the report, beans of the ‘green gram’ type and beans of the “black gram” type were both designated as, among other names, “Phaseolus mungo”, although the description was amplified in the first case by the addition of the abbreviation “Roxb.” and in the second by the addition of “L”. Its doubts were reinforced by another scientific study, extracts of which were quoted by the Commission. In that study, too, one of the many names used to designate black gram is “Phaseolus mungo L.”. The Commission attaches no decisive importance in its observations to the fact that no reference to the designation “Phaseolus mungo Roxb.” is made in the study in addition to the six different names listed for green gram since Dr Westphal's paper, which the Dutch expert opinion also cites, does refer to that synonym. I would therefore conclude likewise that the literature which has been quoted certainly does not provide adequate support for the view that the designation “Phaseolus mungo”, not further specified by the addition of the letter “L.” (for Linnaeus), may be used to refer exclusively to beans of the black gram type.

That conclusion is borne out by the reply given by the Commission to the question put by the Court as to the reasons for its choice of the expression “Phaseolus mungo” in the annex to the regulation in question. The reasons appear to be derived exclusively from the fact that that expression was used in the applications submitted by a number of developing countries for a tariff preference to be granted for that type of bean. There is thus nothing to indicate that the wording of the exemption was based on a thorough-going scrutiny of the scientific literature.

On the contrary, the statement in the Commission's written observations to the effect that the exemption was introduced principally for the benefit of India, and that in that country beans of both the green gram type and the black gram type are produced, indicates that the intention was to use a wide definition embracing both types of bean. As I have said, the scientific literature does not, in fact, clearly exclude that construction.

2. The relevant provisions

The Court's reply must naturally be based, apart from the scientific names and the background to the exemption, on a careful scrutiny of the relevant provisions.

The first observation I must make, therefore, is that the relevant heading of the Common Customs Tariff itself, No 07.05, speaks only of “the species ‘Phaseolus’”, a concept which undoubtedly embraces both types of bean.

The annex to Regulation (EEC) No 2792/79 refers in the exempting provision here at issue to “Phaseolus mungo” but that term was replaced in the subsequent regulation, No 3603/81, by the more general term used in the Common Customs Tariff cited above. It appears from the Commission's reply, amplified in the course of the oral procedure, to the second of the questions put by the Court that the change of terminology was due solely to the practical reason that it was more manageable, and that it did not signify any change of policy.

The official EEC Explanatory Notes on the concept under discussion refer to mungo beans (Phaseolus mungo) (Phaseolus aureus or radiatus) and urd beans. There follow the words: “Some of these beans are sometimes marketed as ‘green soya beans’ or ‘green beans’”. The Commission sees in that note a reflection of the confusion which reigns in the scientific literature, and observes that in particular the assimilation of the words “mungo beans” to the Latin designation “Phaseolus mungo” is questionable since it is precisely beans of the green gram type that are commonly referred to as “mung”, whereas the designation “Phaseolus mungo” which is equated with the latter in the Explanatory Notes seems to be applied, as distinguished from the designation Phaseolus aureus, rather to beans of the black gram rype. Nevertheless, I believe that a sensible interpretation of the Explanatory Note in question may be achieved by interpreting the designation “Phaseolus mungo” (not further defined by the addition of the letter “L.”) in a liberal fashion, in accordance with the literature cited by the Tariefcommissie, so as to embrace both of the types in question. The second meaning given in the Explanatory Notes then refers, in accordance with its semantic sense, likewise not exclusively to urd beans (which, it is unanimously agreed in the literature, covers not merely “sometimes” but exclusively beans of the green gram type). It includes mungo beans, so that only if the broader interpretation is adopted may it be said that: “Some of these beans are sometimes marketed as ‘green soya beans’ or ‘green beans’”.

3. Conclusion

My conclusion, based principally on the description which was provided of the background to the exemption in question, on the wording of that provision, which does not provide a restrictive description the expression“Phaseolus mungo” such as sometimes appear in the literature, and on the Explanatory Note relating to that provision which has been discussed and which, like the methods of interpretation just described, provides a number of arguments in favour of a fresh interpretation, is that the question which has been referred to the Court must be answered in the manner suggested by the Commission. That the intention was to adopt a broad approach in the matter is further borne out by the change. I mentioned which was made to the wording of the exemption in 1981, and the written and oral explanations for the change which were given by the Commission. I therefore join with the Commission in suggesting that the Court reply to the Tariefcommissie's question as follows:

“The words used in Annex A to Council Regulation (EEC) No 2792/79 in relation to tariff subheading 07.05 B I, that is to say, ‘Beans of the genus Phaseolus mungo... Free’, indicate that the beans which are to be exempt from import duties are both those of the kind known as ‘green gram’ and those of the kind known as ‘black gram’.”

( 1 ) Translated from the Dutch.