1 By order of 10 July 1990, which was received at the Court Registry on 5 September 1990, the Finanzgericht Muenchen (Finance Court, Munich) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 3(1) of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries (Official Journal 1985 L 156, p. 13).
2 The question was raised in proceedings between Franc Soba KG ("Soba") and the Hauptzollamt (Principal Customs Office), Augsburg ("the Hauptzollamt"), concerning the payment of a sum of DM 1 134 138.17 by way of countervailing charge. That sum was demanded by the Hauptzollamt on the ground that Soba had not observed the minimum import price provided for in Regulation No 1626/85.
3 Article 1(1) of Regulation No 1626/85 provides for a minimum import price for, inter alia, "Morello cherries" "containing added sugar, in immediate packings...". According to Article 1(2), if the minimum import price is not respected a countervailing charge is to be applied.
4 According to Article 3(1) of Regulation No 1626/85, "The following factors shall constitute the import price: (a) the FOB price in the country of origin; and (b) transportation and insurance cost up to the place of entry into the customs territory of the Community."
5 According to the second paragraph of Article 5, Regulation No 1626/85 was to apply until 9 May 1986. It was subsequently extended until 9 May 1987 by Commission Regulation (EEC) No 1257/86 of 29 April 1986 (Official Journal 1986 L 113, p. 37).
6 It appears from the order for reference that over the period 5 December 1985 to 10 September 1986 Franc Soba KG imported 103 consignments of stoned Morello cherries in glass jars which it had purchased from a Yugoslav producer. When completing the import formalities for those Morello cherries, Soba submitted with each customs declaration the calculation of the import price. For that purpose, it added to the invoice price of the Morello cherries the value of the packing material and containers (glass jars, lids, labels, cardboard boxes and shrink-wrapping materials) which it had made available to the supplier free of charge.
7 Although the Hauptzollamt did not initially demand payment of any countervailing charge, it subsequently took the view that the value of the packing material and containers should not be taken into account in determining the import price. It thus concluded that Soba had not respected the minimum import price provided for in Regulation No 1626/85 and applied a countervailing charge of DM 80.02 per 100 kg net of imported Morello cherries and, by decision of 29 October 1986, required Soba to pay the abovementioned sum.
8 A complaint lodged by it was dismissed by the Hauptzollamt, whereupon Soba brought proceedings before the Finanzgericht Muenchen. That court, considering that the outcome of the dispute depended on the interpretation of Article 3 of Regulation No 1626/85, stayed the proceedings and, by order of 10 July 1990, referred the following question to the Court of Justice for a preliminary ruling: "Is Article 3(1) of Regulation No 1626/85 to be interpreted as meaning that, for the purpose of determining the import price, the costs of the containers and packing material, which the buyer has made available to the supplier free of charge, must be regarded as adding to the price?"
9 Reference is made to the Report for the Hearing for a fuller account of the facts, the relevant legislation and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
10 The Commission observes in the first place that the costs of the packing material made available free of charge by the buyer to the supplier should not be taken into account in determining the import price; in its opinion, the term "immediate packings" in Article 1(2) of Regulation No 1626/85, being exactly the same as that used in the Common Customs Tariff, serves only to identify the goods, not to determine their price.
11 That interpretation is unfounded. Although it is true that that provision does not relate to determination of the import price, it nevertheless contains a definition of the goods which, according to that provision, includes the immediate packings.
12 That interpretation is supported by the fact that, as the Commission indicated in reply to a written question put to it by the Court, the minimum import price of the goods in question was calculated taking account of the normal packings.
13 As regards Article 3(1) of Regulation No 1626/85, the Commission considers that, for determination of the import price, the reference made by that article to the FOB price in the country of origin must be understood as meaning that only the costs included in the invoice issued by the seller must be taken into account. Any other costs, with the exception of those of transport and insurance, which are expressly mentioned in Article 3(1)(b) of Regulation No 1626/85, do not in its view form part of the price of the goods but only of its value and cannot be taken into account in determining the import price.
14 In the Commission' s opinion, the interpretation which it advocates also derives from interpretative note 2/85 (VI/4681/85) which was drawn up by its officials and was discussed by the relevant management committee and brought to the notice of the Member States.
15 That interpretation cannot be upheld.
16 The FOB price is the price paid by the buyer of the goods, which are defined, as indicated above, as comprising the Morello cherries with added sugar and their immediate packings. It must be emphasized that that definition does not include all types of packings but only immediate packings. It is clear that the legislature is thus referring to the normal packings necessary for carriage of the goods.
17 Consequently, where the invoice issued by the seller gives only the price of the fruit as such, by reason of the fact that the immediate packings were made available to the seller by the buyer free of charge, it is necessary, in order to calculate the import price, also to take account of the cost borne by the buyer in acquiring the packings, even though the latter were not purchased from the seller.
18 That interpretation also follows from Article 2 of Regulation No 1626/85, as amended (**) by Commission Regulation No 1712/85 of 21 June 1985 amending the German, Greek, English, French, Italian and Dutch versions of Regulation (EEC) No 1626/85 on protective measures applicable to imports of certain Morello cherries (Official Journal 1985 L 163, p. 46), according to which "The customs authorities shall, for each consignment at the time of completion of customs import formalities for free circulation, compare the import price with the minimum import price". It is obvious that comparable goods must be compared. Since the minimum price laid down by the regulation is for goods with their packings, it follows that the import price must relate to Morello cherries, containing added sugar, together with their normal packings.
19 It must also be stated that an interpretative note cannot have the effect of modifying the mandatory rules contained in Regulation No 1626/85.
20 Consequently, it must be stated in reply to the national court that Article 3(1) of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries must be interpreted as meaning that, for the purpose of calculating the import price, account must be taken of the cost of the immediate packings with which the importer has provided the supplier free of charge.