Rakvere Lihakombinaat AS v Põllumajandusministeerium and Maksu- ja Tolliameti Ida maksu- ja tollikeskus.
Date: 2009-10-29
32. The Court has already held that that provision precludes the obligations contained in Community legislation which has not been published in the Official Journal of the European Union  in the language of a new Member State, although that language is an official language of the Union, from being imposed on individuals in that Member State, even though those persons could have learned of that legislation by other means. However, the fact that a Community regulation is not enforceable against individuals in a Member State in the language of which it has not been published has no bearing on the fact that, as part of the acquis communautaire , its provisions are binding on the Member State concerned as from its accession ( Skoma-Lux , paragraphs 51 and 59).
34. In those circumstances, the Court has previously held that the rule stated in Skoma-Lux  does not prevent the enforcement against individuals of those of the provisions of Regulation No 1972/2003 which were taken up in the ÜLTS. That rule might nevertheless remain of residual application if certain provisions of that regulation which were not implemented by the ÜLTS were relied on by the Estonian authorities against individuals before the official publication of the regulation in Estonian. It is for the national court, if necessary, to interpret the ÜLTS in order to ascertain whether such circumstances exist (Case C-560/07 Balbiino  [2009] ECR I‑0000, paragraph 32).
42. It is settled case-law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and the notes to the sections or chapters (see, in particular, Case C‑183/06 RUMA  [2007] ECR I-1559, paragraph 27, and Joined Cases C‑208/06 and C‑209/06 Medion and Canon Deutschland  [2007] ECR I‑7963, paragraph 34).
43. The Court has already held that the Explanatory Notes to the CN and those to the HS are, for their part, an important aid for interpreting the scope of the various tariff headings but do not have legally binding force. The wording of those notes must therefore be consistent with the provisions of the CN and cannot alter their scope (Case C‑495/03 Intermodal Transports  [2005] ECR I‑8151, paragraph 48; Case C‑445/04 Possehl Erzkontor  [2005] ECR I‑10721, paragraph 20; and Case C‑500/04 Proxxon  [2006] ECR I‑1545, paragraph 22).
58. The Court has already held that Article 4(2) of Regulation No 1972/2003 does not contain any provision requiring the Member States to apply, or prohibiting them from applying, a coefficient uniformly to operators’ transitional stocks for the purpose of calculating the surplus stock ( Balbiino , paragraph 47).
59. That provision provides that, to determine each holder’s surplus stock, the new Member States are to take into account in particular the ‘averages of stocks available in the years preceding accession’. In the absence of more precise rules as to the relevant period or the method of calculating the averages of stocks available, such a formulation gives the Member States a discretion in defining the criteria on the basis of which those elements are implemented, in compliance with the objectives pursued by the regulation and the general principles of Community law ( Balbiino , paragraph 37).
60. Thus, Article 4(2) of Regulation No 1972/2003 sets out a non-exhaustive list of certain criteria for the calculation of operators’ surplus stocks, while leaving the Member States the option of supplementing them as they think fit in accordance with the discretion on their part (see, to that effect, Balbiino , paragraph 47).
61. Applying a coefficient of 1.2 to the transitional stock is prima facie favourable to operators, since it tends to reduce the surplus stock. According to the Estonian Government, the coefficient was fixed on the basis of the rate of growth of Estonian agricultural production observed during the period from 2000 to 2004. The coefficient thus makes it possible to update the average stock on 1 May of the years 2000 to 2003 in the light of that rate of growth and to determine a transitional stock – and hence a surplus stock – which reflects proportionately the development of growth observed across the whole agricultural sector in Estonia from 1 May 2000 to 1 May 2004. It thus helps to establish a basis of comparison between the stock on 1 May 2004 and the average stock on 1 May of the previous four years (see, to that effect, Balbiino , paragraph 48).
62. Having regard to those characteristics, the choice of such a coefficient does not undermine the objectives pursued by Regulation No 1972/2003 and does not infringe the principles of proportionality and equal treatment (see, to that effect, Balbiino , paragraph 49).
63. Thus, Article 4(2) of Regulation No 1972/2003 does not preclude the application of a coefficient such as that provided for in Article 6(1) of the ÜLTS for the purpose of calculating the transitional stock (see, to that effect, Balbiino , paragraph 50).
71. It is apparent from recitals 1 and 3 of Regulation No 1972/2003 that its objective was to preserve the common organisation of markets by avoiding, by means of a system of deterrent charges on surplus stocks in the new Member States, certain agricultural products being moved artificially to those States with a view to enlargement. The aim was thus to prevent abnormal patterns of trade from disrupting the common organisation of markets ( Balbiino , paragraph 57).
72. That regulation was not intended to penalise speculative conduct on the part of operators but, first, to prevent, by a system of deterrent charges, stocks from being built up for speculative purposes and, second, to neutralise the economic advantages anticipated by those holding them ( Balbiino , paragraph 69).
73. Consequently, the surplus stock charge established by Regulation No 1972/2003, intended to protect the common organisation of agricultural markets, is applicable to all surplus stocks within the meaning of the regulation, regardless of whether the holders of the stocks have actually derived an advantage from marketing them (see, to that effect, Balbiino , paragraph 71).