CELEX: 61993CC0143(01)
Language: en
Date: 1995-06-20
Title: Opinion of Mr Advocate General Elmer delivered on 20 June 1995. # Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen. # Reference for a preliminary ruling: Tariefcommissie - Netherlands. # Effect of the repeal of a Council regulation on a Commission regulation concerning customs classification adopted on the basis of the former regulation - Commission's discretionary powers when drawing up a classification regulation. # Case C-143/93.

OPINION OF ADVOCATE GENERAL
      ELMER
      delivered on 20 June 1995 (
            *1
         )
      
               1. 
            
            
               Advocate General Gulmann delivered his Opinion in this case on 12 July 1994. That Opinion is particularly detailed and contains a very thorough and comprehensive examination of the case.
            
         
               2. 
            
            
               For the factual and legal background to the case as a whole I would therefore refer the Court to that Opinion.
            
         
               3. 
            
            
               As it makes clear, the case raises two main questions. First, it must be decided whether Article 1 of Regulation (EEC) No 482/74 of the Commission (
                     1
                  )is still applicable. If the answer is in the affirmative, the second question is whether the requirement laid down in that provision of a starch content of less than 45% as a condition for the classification of residues resulting from the extraction of maize germ oil in subheading 23069091 of the combined nomenclature is invalid.
            
         Is Regulation No 482/74 still applicable?
      
               4.
            
            
               The discussion in the Advocate General Gulmann's Opinion concerning that question is based on the Court's judgment in the Pennacchiotti case (
                     2
                  ) and an interpretation of Article 15(1) of Council Regulation (EEC) No 2658/87. (
                     3
                  )
            
         
               5.
            
            
               Article 15(1) of that regulation contains rules regarding the transition from the Common Customs Tariff to the combined nomenclature and lays down that the codes and the descriptions of goods established on the basis of the combined nomenclature are to replace those established on the basis of the nomenclatures of the Common Customs Tariff and the Nimexe, and that ‘Community acts which include the tariff or statistical nomenclature shall be amended accordingly by the Commission’ (emphasis added).
            
         
               6.
            
            
               As point 30 of the Opinion points out, Article 15(1) must be interpreted as the Community legislature's implied decision to maintain in force the legal measures enacted pursuant to the earlier legal basis. The use of the word ‘amended’ in Article 15(1) must necessarily presuppose that some rules have been maintained in force to amend, and does not appear to be open to a construction that those rules have been repealed before amendment. If it had been intended that those rules should only be applicable once the adjustment had been made, the provision should have been formulated so as to enable the Commission to adopt new, adjusted regulations without setting in motion the procedure laid down in Articles 9 and 10.
            
         
               7.
            
            
               It should also be pointed out that under Article 17 of the regulation, Article 15 was to be applied from 1 January 1988, the same day as the combined nomenclature entered into force. If it was intended that the adjustment for which provision is made in Article 15(1) was to be a condition of validity, it would have been natural to allow the Commission a period of time before the combined nomenclature entered into force to make such adjustment.
            
         
               8.
            
            
               It must therefore be concluded that Regulation No 482/74 remained valid under the combined nomenclature in so far as the Commission did not amend it.
            
         
               9.
            
            
               It follows from the foregoing that it is not necessary to have recourse to considerations drawn from the above-cited Pennacchiotti judgment in order to answer the question whether Regulation No 482/74 continued in force under the combined nomenclature. In assessing the relevance of the general legal situation as expressed in that judgment, it must be noted that it is extremely important, not only with regard to the citizen's acceptance of the Community and Community law, but also for the effective application of Community law, that rules should be made as clear and transparent as possible. In this connection it is worth pointing out that to a much greater extent than previously there is an inclination to codify legislation. (
                     4
                  ) The Court of Justice must support these efforts to make Community law as clear and transparent as possible for the citizen. I am not convinced that the principle laid down in the Pennacchiotti case is likely to promote those overriding requirements of clarity and transparency in Community law. Greater clarity and transparency is ensured for the citizen if implementing regulations lapse when the regulations constituting their legal basis are repealed unless there is an express statement to the contrary.
            
         
               10.
            
            
               It might have been desirable for Article 15(1) of Council Regulation No 2658/87 to have stated more clearly that the previous implementing regulations continued in force. However, since it is possible to achieve the same result with a general interpretation, I do not see any difficulty pertaining to legal certainty which might preclude a finding that Regulation No 482/74 continued in force after the implementation of the combined nomenclature.
            
         Was Article 1 of Regulation No 482/74 invalid at the point in time material to this case?
      
               11.
            
            
               Under Article 9(l)(a) of Regulation No 2658/87 the Commission is authorized to adopt measures relating to the application of the combined nomenclature and the explanatory notes thereto in accordance with the committee procedure prescribed in Article 10. This is partly to ensure uniform application in the Member States and partly to facilitate administration.
            
         
               12.
            
            
               In assessing whether the Commission exceeded its powers in laying down a requirement of a starch content of under 45% as a condition for the classification of residues resulting from the extraction of maize germ oil in subheading 23069091 of the combined nomenclature, Advocate General Gulmann based himself in his Opinion on the Vismans judgment. (
                     5
                  ) In that judgment the Court held, following its settled case-law, that the Commission is authorized to define the subject-matter of tariff headings, provided only that the provisions adopted do not amend the text of the Tariff, since the interests of legal certainty and ease of verification require that the decisive criterion for the customs classification of goods must generally be their objective characteristics and properties, as defined by the wording of the headings. (
                     6
                  )
            
         
               13.
            
            
               This case can be distinguished from Vismans inasmuch as the Commission did not use its discretion wrongly when it adopted the measure. Rather, subsequent developments overtook, as it were, the Commission's regulation, and the problem consists in the fact that the regulation was not adjusted to take those developments into account. To set aside the regulation would therefore in fact mean holding that the Commission is obliged to adjust such rules on a permanent basis. That difference cannot, however, in my view be decisive, since the same considerations of legal certainty operate.
            
         
               14.
            
            
               The national court proceeded on the basis that the imported products were residues resulting from the extraction of maize germ oil not containing ingredients which were not obtained with maize and that has not been disputed by the Commission before the Court. As stated in Advocate General Gulmann's Opinion, it must therefore be assumed that on an objective assessment what are involved are residues which properly fall under subheading 23069091. The maximum limit of 45% given in Regulation No 482/74 thus led to the product's not being classified under a heading corresponding to its objective characteristics and properties as they appear in the nomenclature. An unjustified loss was therefore caused to the importer, which it would be difficult to remedy while the regulation remains in force. It is further clear that the measure adopted by the Commission is merely explanatory and cannot therefore amend the content of the tariff heading in question.
            
         
               15.
            
            
               The nature of the measure and the abovementioned principle of legal certainty therefore indicate, in my opinion, that the requirement as to the starch content in Article 1 of Regulation No 482/74 should be set aside, regardless of the fact that the situation which arose did not exist at the time when the regulation was adopted, but is a consequence of later developments. I must therefore also agree with Advocate General Gulmann's Opinion as far as the answer to Question 2 is concerned.
            
         Conclusion
      
               16.
            
            
               In view of the foregoing, I would suggest that the Court reply to the questions referred to it for a preliminary ruling in accordance with the Opinion of Advocate General Gulmann of 12 July 1994.
            
         (
            *1
         )	Original language: Danish.
      (
            1
         )	Regulation (EEC) No 482/74 of the Commission on the classification of goods within subheading No 23.04 B of the Common Customs Tariff, OJ 1974 L 57, p. 23.
      (
            2
         )	Case C-315/88 [1990] ECR I-1323.
      (
            3
         )	Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L 256, p. 1.
      (
            4
         )	See, for example, the Parliament's ‘Rapport sur un accord interinstitutionnel en matière de codification officielle de la législation communautaire’, 1995: the Parliament's ‘Résolution sur la transparence du droit communautaire et la nécessité de sa codification’ and the Commission's statements in COM (93) 391 final — Codification constitutive pour le renforcement de la transparence du droit communautaire dans le domaine du marché ultérieur.
      (
            5
         )	Judgment in Case C-265/89, Vismans Nederland [1990] ECR I-3411.
      (
            6
         )	Loc. cit., at paragraphs 13 and 14. See further the judgment in Case C-401/93 GoldStar Europe [1994] ECR 5587, at paragraph 19, and Case C-111/93 Siemens Nixdorf [1994] ECR I-1945, at paragraph 11.