Malvino Cervati and Società Malvi Sas di Cervati Malvino v Agenzia delle Dogane and Agenzia delle Dogane – Ufficio delle Dogane di Livorno.
Date: 2016-04-14
26


As a preliminary point, it must be observed that, under the procedure laid down by Article 267 TFEU, providing for cooperation between referring courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may, where appropriate, reformulate the questions referred to it. The Court may extract from all the information provided by the referring court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute (judgments in Fuß, C‑243/09, EU:C:2010:609, paragraphs 39 and 40, and Cimmino and Others, C‑607/13, EU:C:2015:448, paragraphs 37 and 38 and the case-law cited).
32


However, it is settled case-law of the Court that EU law may not be relied on for abusive or fraudulent ends. The application of EU legislation may not be extended to cover abusive practices by economic operators, that is to say, transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages under EU law (see, inter alia, judgments in Halifax and Others, C‑255/02, EU:C:2006:121, paragraphs 68 and 69 and the case-law cited, and SICES and Others, C‑155/13, EU:C:2014:145, paragraphs 29 and 30).
33


According to equally settled case-law of the Court, a finding of abusive practices requires, first, an objective element, resulting from the fact that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved (see, to that effect, inter alia, judgments in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 52, and SICES and Others, C‑155/13, EU:C:2014:145, paragraph 32).
34


Such a finding also requires, second, a subjective element to the effect that it must be apparent from a number of objective circumstances that the essential aim of the transactions concerned is to obtain an undue advantage by the artificial creation of the conditions necessary for its achievement. The prohibition of abusive practices is not relevant where the transactions at issue carried out may have some explanation other than the mere attainment of an advantage (see, to that effect, inter alia, judgments in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 53, and SICES and Others, C‑155/13, EU:C:2014:145, paragraph 33). The existence of that subjective element must, furthermore, be established on the part of the entity concerned (see, to that effect, judgment in Emsland-Stärke, C‑110/99, EU:C:2000:695, paragraph 55).
35


Although the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the referring court guidance in its interpretation, it is nevertheless for the referring court to establish whether the factors constituting such abuse are present in the case before it. In establishing such abuse, the referring court must take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue (judgments in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 34 and the case-law cited, and Cimmino and Others, C‑607/13, EU:C:2015:448, paragraph 60).
46


As regards, in the second place, the subjective element referred to in paragraph 34 above, the Court notes, as a preliminary point, that it is relevant to search for such a subjective element, in the case in the main proceedings, only in the event that the referring court were to find that the mechanism at issue in the main proceedings compromises the objectives pursued by Regulation No 565/2002, the finding of abusive practice requiring the combination of both objective and subjective elements (see, to that effect, judgment in SICES and Others, C‑155/13, EU:C:2014:145, paragraphs 31 to 33).
47


As regards the circumstances that would allow for a finding of such a subjective element, it is clear from the case-law of the Court that, in order for it to be considered that the essential aim of a mechanism such as that at issue in the main proceedings is to confer an undue advantage on the second buyer in the European Union, it is necessary that the imports be intended to confer such an advantage on that buyer and that the transactions be devoid of any economic and commercial justification for the importers and the other operators involved in the mechanism, a matter which it is for the referring court to establish (see, by analogy, judgments in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 37, and Cimmino and Others, C‑607/13, EU:C:2015:448, paragraph 65).
48


The finding, by the referring court, that such a mechanism is not devoid of any economic and commercial justification could, for example, be based on the fact that the sale price of the goods was fixed at a level that allowed the importer and the other operators to derive normal or ordinary profit, in the relevant market, from the type of goods and transactions at issue (see, to that effect, judgment in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 37). In that regard, the referring court states that the goods at issue were sold ‘for an appropriate price’. Against that background, the mere fact that such a price is lower than the specific duty owed for imports outside the quota is irrelevant, if that price may be considered as normal or ordinary, in the relevant market, for the type of goods and transactions at issue, a matter which it is for the referring court to establish.
49


In order to support such a finding, the referring court could also take account of the fact that it follows from recital 5 and Article 3(1) and (4) of Regulation No 565/2002 read in conjunction with Articles 8(1) and 35(2) of Regulation No 1291/2000, that importers are obliged to use the import certificates which were issued to them, subject to penalties, and therefore have a genuine interest in importing, including new importers in a transaction such as that at issue in the main proceedings (see, by analogy, judgment in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 37).
50


In that context, even if the establishment of a mechanism such as that at issue in the main proceedings is based on the desire of the first or second buyer in the European Union to benefit from the preferential rate of duty, and thus to be supplied with goods cheaper than goods imported outside of the quota, and even if the importer and the other operators concerned are aware of that, such transactions may not a priori be regarded as being devoid of economic and commercial justification for that importer and the other operators as a whole (see, to that effect, judgments in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 38, and Cimmino and Others, C‑607/13, EU:C:2015:448, paragraph 65).
51


It cannot, however, be excluded that, in certain circumstances, a mechanism such as that at issue in the main proceedings could have been established with the essential aim of artificially creating the requisite conditions for the application of the preferential rate of duty. Amongst the factors that could allow the artificial nature of such a mechanism to be established are the facts that the importer holding the import licences did not accept any commercial risk or that the importer’s profit margin is insignificant or that the price of the garlic sold by the importer to the first buyer in the European Union, then by the latter to the second buyer in the European Union, is lower than the market price (see, to that effect, judgments in SICES and Others, C‑155/13, EU:C:2014:145, paragraph 39, and Cimmino and Others, C‑607/13, EU:C:2015:448, paragraph 67).