OPINION OF MR ROEMER — CASE 17/67 NEUMANN v HAUPTZOLLAMT HOF

Mr President,

Members of the Court,

In the proceedings referred to us for a preliminary ruling with which we are concerned today, the question is whether the additional amount levied within the framework of the common organization of the markets in poultry meat is lawful. The question has been raised in the following context:

On 19 November 1962 the Neumann undertaking, the plaintiff in the action before the German court, obtained customs clearance for slaughtered chickens coming from Poland and falling under heading 02.02 of the Common Customs Tariff. This was in accordance with Regulation No 22 of the Council on the progressive establishment of a common organization of the market in poultry meat, which was in force at the time and according to which the import of poultry from third countries gave rise to the collection of levies intended to compensate the difference between the feed-grain prices inside and outside the importing Member State and to assure a certain preference for Community producers. The levy was calculated according to the rate applicable from 5 November 1962. Subsequently (by an assessment of 13 December 1962), the customs office claimed payment of an additional amount on the basis of Regulation No 135 of the Commission, published in the Official Journal of the European Communities on 7 November 1962. Article 6 of Regulation No 22 provided for the collection of such an amount should the offer prices free-at-frontier fall below the sluice-gate price, that is to say, the price calculated, taking into account the price of feed-grain cereals on the world market, from a representative co-efficient for processing for third countries and for other production and marketing costs. The additional amount was intended to compensate for the difference between the offer price and the sluice-gate price.

Nevertheless the plaintiff refused to pay the amount claimed. It subsequently made a complaint to the principal customs office and, since it was unsuccessful, the plaintiff brought the matter before the Finanzgerichit, Nürnberg, and finally, after it had failed in its action there, it brought the matter before the Bundesfinanzhof which is the German supreme court in fiscal matters. In the course of those proceedings it raised a whole series of questions concerning the interpretation and validity of Community law. The Bundesfinanzhof considered that a reply to those questions was necessary to enable it to give judgment and, in accordance in this matter with the submissions of the plaintiff and of the Federal Minister of Finance (intervener), decided to suspend proceedings by an order of 25 April 1967 (after careful consideration of the mandatory nature of Article 177 of the EEC Treaty) and requested the Court to give a ruling on the following questions:

The Council and the Commission of the European Economic Community and the plaintiff in the action before the national court submitted written observations in accordance with Article 20 of the Statute of the Court of Justice. All those concerned also submitted oral observations during the hearing on 7 November.

In the light of those observations I shall endeavour to answer the questions put.

Reply to the questions put

Preliminary remarks

I shall nevertheless take the liberty of making some brief preliminary remarks.

The first concerns — if I may express myself thus — the plaintiff's complaint that the Bundesfinanzhof restricted itself to reproducing the parties' arguments without indicating its own view of the questions raised. This complaint is pertinent but does not influence the admissibility of the reference, given that the relevant procedural provisions nowhere require the court making the reference to give reasons in the form of a statement of its legal opinion on the questions put, no matter how desirable and useful this might be in allowing the Court to give a ruling.

The second remark concerns the plaintiff's allegation that the Bundesfinanzhof did not submit to the Court all the points of Community law which it raised in the course of the proceedings before the national court. We must therefore reflect whether our consideration is limited to the points referred by the national court or whether our consideration of validity which has been requested may extend to points which have only been regarded as important by one of the parties before the national court. In principle I am tempted to reply to this question in favour of a wide interpretation of the powers conferred on the Court under Article 177. Above all, when consideration of the validity of Community acts is concerned, which may have serious effects we should not feel ourselves bound by the points of law raised by the national court; we should on the contrary regard as admissible, if not a thorough consideration of the Court's own motion, at any rate a consideration of the parties' arguments relating to the content of the order referring the matter, which appear sufficiently relevant for legal consideration. Naturally it is only at a later stage that I shall consider whether this is so in the present case.

The third remark concerns the definition of the subject-matter of the proceedings. As the Commission rightly emphasizes, in the proceedings before the national court only levies on imports from third countries were concerned, that is to say, the arrangements provided for in Article 6 of Regulation No 22 and the provisions deriving therefrom. It is thus unnecessary to concern ourselves with other questions. Furthermore, it is true that in essence the Bundesfinanzhof only raises questions of validity and that those concerning the interpretation of Community law are intended to clarify the problem of validity. Consequently all that concerns us is the question whether certain provisions of Regulation No 22 and of Regulation No 135, which is based on the former, are valid from the point of view of Community law and it is only within the context of my endeavours in this connexion that I have to consider the interpretation of Community law. My consideration will follow the terms of this finding and not, on the contrary, the order of questions adopted by the Bundesfinanzhof in its order referring the matter.

I — The validity of Regulation No 22

We must therefore consider first of all the validity of Regulation No 22, Article 6 of which forms the basis for Regulation No 135 of the Commission concerning the establishment of an additional amount of levy. There are three points to consider here.

II — The validity of Regulation No 135 of the Commission

The plaintiff also puts forward three objections intended to prove the nullity of Regulation No 135 of the Commission establishing an additional amount of levy in respect of slaughtered hens and chickens imported from third countries, in accordance with Article 6 of Regulation No 22 of the Council.

III — Summary

In view of the foregoing the reply to the questions put to us can be summarized in the following sentence:

It is impossible to deduce from the arguments submitted to the Court any conclusion adversely affecting the validity of Regulation No 22 on the progressive establishment of a common organization of the market in poultry meat or the validity of Regulation No 135 establishing the additional amount of the levy in respect of slaughtered hens and chickens imported from third countries.

In accordance with the established case-law of the Court, it is unnecessary to give a ruling on the costs of the reference procedure.

1 Translated from the French version.