CELEX: 62004CJ0126
Language: en
Date: 2005-01-13 00:00:00
Title: Judgment of the Court (Fourth Chamber) of 13 January 2005.#Heinecken Brouwerijen BV v Hoofdproductschap Akkerbouw.#Reference for a preliminary ruling: College van Beroep voor het bedrijfsleven - Netherlands.#Cereals - Import regime - Community tariff quota for barley for malting - Discrimination.#Case C-126/04.

Case C-126/04
      Heineken Brouwerijen BV
      v
      Hoofdproductschap Akkerbouw
      (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven)
      (Cereals – Import regime – Community tariff quota for barley for malting – Discrimination)
      Judgment of the Court (Fourth Chamber), 13 January 2005  
      Summary of the Judgment
      Agriculture – Common organisation of the markets – Cereals – Import regime – Tariff quota – Barley – Quota referring only
            to high-graded barley – Breach of the principle of non-discrimination – None
      (Art. 34( 2), second para., EC; Council Regulations Nos 1269/1999 and 822/2001)
      The restriction of the scope of the Community tariff quotas opened by Regulations Nos 1269/1999 and 822/2001 to high-graded
         barley only, intended for the production of malt to be used in the manufacture of beers aged in tanks containing beechwood,
         does not constitute a breach of the principle of non-discrimination where it is objectively justified by the differences between
         that barley on the one hand, and barley intended for the production of other beers on the other.
      
       (see para. 22)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fourth Chamber)13 January 2005(1)
         
         
            
         
               (Cereals  –  Import regime  –  Community tariff quota for barley for malting  –  Discrimination)
               
            In Case C-126/04, REFERENCE for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands),
            made by decision of 18 February 2004, received at the Court on 8 March 2004, in the proceedings
            
            
             Heineken Brouwerijen BV 
            
            
            v
            
             Hoofdproductschap Akkerbouw ,
            
            
            
            THE COURT (Fourth Chamber),,
            
             composed of: K. Lenaerts (Rapporteur), President of the Chamber, E. Juhász and  M. Ilešič, Judges,
            
             Advocate General:  C. Stix-Hackl,Registrar:  R. Grass,
             having regard to the written procedure,after considering the observations submitted on behalf of:
            
            –
             Heineken Brouwerijen BV, by H. Bronkhorst, advocaat,
            
            –
             the Greek Government, by V. Kontolaimos and E. Svolopoulou, acting as Agents,
            
            –
             the Council of the European Union, by M. Balta and K. Michoel, acting as Agents,
            
            –
             the Commission of the European Communities, by F. Clotuche-Duvieusart and D.W.V. Zijlstra, acting as Agents,
            
            
            
            having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
         gives the following
         
         
         Judgment
         1
            
          The reference for a preliminary ruling concerns the validity of Council Regulation (EC) No 1269/1999 of 14 June 1999 and Council
         Regulation (EC) No 822/2001 of 24 April 2001 opening a Community tariff quota for barley for malting falling within CN code
         1003 00 (OJ 1999 L 151, p. 1, and OJ 2001 L 120, p. 1, respectively), the interpretation of Article 10 of Council Regulation
         (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals (OJ 1992 L 181, p. 21), as amended by
         Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture
         sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (OJ 1994
         L 349, p. 105) (‘Regulation No 1766/92’), and the interpretation of the provisions of Commission Regulation (EC) No 2023/2001
         of 15 October 2001 fixing the import duties in the cereals sector (OJ 2001 L 273, p. 18).
         
         
         
         2
            
          That reference was made in connection with proceedings between Heineken Brouwerijen BV (‘Heineken’) and Hoofdproductschap
         Akkerbouw (Central Marketing Office for Agricultural Products, ‘the HPA’) concerning the import duties due on barley for malting
         imported by Heineken into the Community.
         
         
            
                Relevant provisions 
               
            
         
         3
            
          Article 1 of Regulation No 1766/92 lists barley among the products under CN code 1003 00 covered by the common organisation
         of the market in cereals.
         
         
         
         4
            
          Article 10 of Regulation No 1766/92 provides:
         ‘1.      Unless this regulation provides otherwise, the rates of duty in the Common Customs Tariff shall apply to the products listed
         in Article 1.
          2.        Notwithstanding paragraph 1, the import duty on products covered by CN codes … 1003 … shall be equal to the intervention price
         valid for such products on importation and increased by 55%, minus the cif import price applicable to the consignment in question.
         However, that duty may not exceed the rate of duty in the Common Customs Tariff.
         …’
         
         
         
         5
            
          Regulation No 2023/2001 fixes the import duties in the cereals sector.
         
         
         
         6
            
          Article 2(5) of Commission Regulation (EC) No 1249/96 of 28 June 1996 on rules of application (cereal sector import duties)
         for Regulation No 1766/92 (OJ 1996 L 161, p. 125), in the version applicable until 1 July 2003, provides:
         ‘Import duties shall be reduced at a flat rate of … [EUR] 8 per tonne on malting barley … provided the importer shows that
         a quality premium on the normal product price was paid.
         …’
         
         
         
         7
            
          Article 1 of Regulation No 1269/1999 provides:
         ‘1.     An annual Community tariff quota of 50 000 tonnes is hereby opened for 1999 and 2000 for high-graded barley falling within
         CN code 1003 00 and intended for the production of malt to be used for the manufacture of certain beer aged in tanks containing
         beechwood.
          2.       The common customs tariff duty applicable to the quota shall be 50% of the full rate of duty in force, without the abatement
         applied on imports of barley for malting, on the day of import.’
         
         
         
         8
            
          Article 1 of Regulation No 822/2001 also opens the same annual Community tariff quota for 2001 and 2002 of ‘50 000 tonnes
         … for high-graded barley falling within CN code 1003 00 and intended for the production of malt used for the manufacture of
         certain beer aged in tanks containing beechwood.’
         
         
         
         9
            
          The first and second recitals in the preamble to Regulation No 1269/1999 and Regulation No 822/2001 read as follows:
         
         ‘(1) 
            The Community has undertaken, in the conclusion of the GATT [General Agreement on Tariffs and Trade] Article XXIV:6 negotiations,
               to examine problems identified if the functioning of the “representative price” system for cereals appears to be impeding
               trade. Certain consignments of barley for malting have been subject to impediment;
            
         
         
         (2) 
            In order to remedy such impediment, a Community tariff quota for barley for malting falling within CN code 1003 00 should
               be opened …’.
            
         
         
          The main proceedings and the questions referred for a preliminary ruling 
         
         10
            
          Heineken is a company of international standing engaged in the production and sale of beer sector.
         
         
         
         11
            
          By decision of 25 October 2001, the HPA demanded payment of the sum of EUR 254.82 for import duties due for the importation
         by that company of 15 177 kg of barley for malting. The objection brought by Heineken against that decision was rejected by
         the HPA by decision of 28 October 2002.
         
         
         
         12
            
          Heineken brought an appeal against the latter decision before the College van Beroep voor het bedrijfsleven (Administrative
         Court for Trade and Industry). Since producers such as Heineken which do not manufacture beers aged in tanks containing beechwood
         were not able to obtain the tariff quotas opened by Regulation No 1269/1999 and Regulation No 822/2001 for 1999 to 2002, that
         court raises the question of whether the Community legislation at issue is discriminatory.
         
         
         
         13
            
          In those circumstances, the College van Beroep voor het bedrijfsleven decided to stay the proceedings and refer the following
         questions to the Court for a preliminary ruling:
         
         ‘1.
            Are … Regulation No 1269/1999 and Regulation No 822/2001… , which fix Community tariff quotas only in respect of the importation
               of barley intended for the production of beer aged in tanks containing beechwood, valid in the light of the prohibition on
               discrimination between producers laid down in the second subparagraph of Article 34(2) EC?
            
         
         
         2.
            If the abovementioned regulations are invalid, does Article 10(2) of … Regulation … No 1766/92 of 30 June 1992 … in conjunction
               with … Regulation … No 2023/2001… nevertheless require that import duty be charged on high-graded barley falling within CN
               code 1003 00 which is intended for the manufacture of beer made from malt?’
            
         
         
          The questions referred for a preliminary ruling  The first question
         
         
         
         14
            
          Heineken observes that Regulation No 1269/1999 and Regulation No 822/2001 opened Community tariff quotas for 1999 to 2002
         only for high-graded barley falling within CN code 1003 00 intended for the production of certain types of beers. The regulations
         concerned infringe the second subparagraph of Article 34(2) EC, since they result in an unjustified difference in treatment
         between barley intended for the production of beers aged in tanks containing beechwood and barley intended for the production
         of beers in accordance with other methods.
         
         
         
         15
            
          By contrast, the Greek Government, the Council of the European Union and the Commission of the European Communities submit
         that Regulation No 1269/1999 and Regulation No 822/2001 do not infringe the principle of non‑discrimination. On the one hand,
         the opening of tariff quotas for barley intended for the production of malt to be used in the manufacture of beers aged in
         tanks containing beechwood takes account of the needs of supplying the Community market and safeguarding the balance of that
         market. On the other hand, it is objectively justified to treat differently barley intended for the production of different
         types of beers.
         
         
         
         16
            
          It should be noted that the Court has consistently held that the second subparagraph of Article 34(2) EC, which prohibits
         all discrimination in the context of the common agricultural policy, is merely a specific expression of the general principle
         of equal treatment, which requires that comparable situations not be treated differently and different situations not be treated
         alike unless such treatment is objectively justified (see, inter alia, Case 203/86  Spain  v  Council  [1988] ECR 4563, paragraph 25, Case C-15/95  EARL de Kerlast  [1997] ECR I-1961, paragraph 35, Case C-292/97  Karlsson and Others  [2000] ECR I-2737, paragraph 39, and Case C-14/01  Niemann  [2003] ECR I-2279, paragraph 49).
         
         
         
         17
            
          In this case, in accordance with Article 10(2) of Regulation No 1766/92, the import duties on cereals are to be calculated
         by reference to the intervention price on the one hand, and the representative import price determined on the basis of listings
         on the world market on the other. 
         
         
         
         18
            
          However, as the first and second recitals of Regulation No 1269/1999 and Regulation No 822/2001 show, the ‘representative
         price’ system has given rise to impediments to trade.
         
         
         
         19
            
          The Council and the Commission explain that the import duties affecting both feed barley and barley for malting – in the absence
         of separate listings available for the latter – are calculated by means of the listings for feed barley on the Minneapolis
         Grain Exchange (United States of America). Since the price of barley for malting is considerably higher than the price of
         feed barley, the calculation provided for in Article 10(2) of Regulation No 1766/92 has the effect of making the importation
         of barley for malting practically impossible. The reduction of the duties laid down in Article 2(5) of Regulation No 1249/96
         has not proven sufficient to remove the impediments to trade affecting the importation of barley.
         
         
         
         20
            
          It is apparent from the first and second recitals of Regulation No 1269/1999 and Regulation No 822/2001 that the opening of
         tariff quotas is intended in particular to remedy those impediments, which had been called into question by the United States
         of America in the light of the Community’s obligations flowing from the GATT.
         
         
         
         21
            
          As for the restriction of the scope of the Community tariff quotas opened by Regulation No 1269/1999 and Regulation No 822/2001,
         the Council and the Commission point out that barley for malting is available in sufficient quantities within the Community,
         with the exception of barley used for the production of beers in beechwood tanks which has to be imported from the United
         States. Producers of beers aged in beechwood tanks are therefore dependent on the importation of barley for malting coming
         from a third country, while the other Community producers easily find within the Community the barley for malting which they
         need for their beer production. Since the import duties are too high to be able to continue production of beers aged in beechwood
         tanks in the Community, and the reduction of the duties laid down in Article 2(5) of Regulation No 1249/96 is not sufficient
         to remove the impediments to trade affecting the importation of barley which can be used for the production of beer in beechwood
         tanks, it was objectively justified to open the tariff quotas only for barley intended for the production of those beers.
         Regulation No 1269/1999 and Regulation No 822/2001 thus balance the Community’s obligations flowing from the GATT and the
         common organisation of the market in cereals, while ensuring supply to the Community of a type of barley which is not produced
         on the Community market and the price of which, without the quotas concerned, would have been prohibitive.
         
         
         
         22
            
          It therefore follows that the restriction of the scope of the Community tariff quotas opened by Regulation No 1269/1999 and
         Regulation No 822/2001 is objectively justified by the differences between barley intended for the production of malt to be
         used in the manufacture of beers aged in tanks containing beechwood on the one hand, and barley intended for the production
         of other beers on the other.
         
         
         
         23
            
          It follows from the foregoing that consideration of the first question has disclosed no facts or circumstances to affect the
         validity of Regulation No 1269/1999 and Regulation No 822/2001.
         
          The second question 
         
         24
            
          The second question concerns the interpretation of the provisions of Article 10(2) of Regulation No 1766/92 in conjunction
         with those of Regulation No 2023/2001 if Regulation No 1269/1999 and Regulation No 822/2001 are invalid.
         
         
         
         25
            
          In the light of the answer to the first question, there is no longer any need to answer the second question.
         
         
         Costs
         26
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than the
         costs of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Fourth Chamber) rules as follows:
          Consideration of the questions raised has disclosed nothing capable of affecting the validity of Council Regulation (EC) No
               1269/1999 of 14 June 1999 and Council Regulation No 822/2001 of 24 April 2001 opening a Community tariff quota for barley
               for malting falling within CN code 1003 00.  
             Signatures.
      
      
          1 –
            
            Language of the case: Dutch.