JUDGMENT OF 13. 3. 1968 — CASE 5/67 BEUS v HAUPTZOLLAMT MÜNCHEN
In Case 5/67 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court), Munich, for a preliminary ruling in the action pending before that court between
THE COURT composed of: R. Lecourt, President, A. M. Donner and W. Strauß (Rapporteur), Presidents of Chambers, A. Trabucchi and R. Monaco, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts
1. Origin of the reference
2. Terms and reasoning of the reference
II — Procedure
III — Summary of the arguments of the Beus company and of the Commission
1. Arguments put forward before the reopening of the oral procedure
A — Insufficient reasoning of Regulation No 144/65
B — The method of calculation of the entry price
(a) Deduction of the German turnover equalization tax (UASt) as well as the Community countervailing charge collected before the entry into force of Regulation No 144/65
(b) The taking into account of prices recorded on the representative markets
(c) Absence of revocation or amendment of Regulation No 144/65
(d) Illegality of Regulation No 23
2. Arguments put forward after the reopening of the oral procedure
A — The calculation of the reference price
B — The calculation of the entry price and the question whether the reference price are comparable
Grounds of judgment
I — The validity of Regulation No 144/65
1. The calculation of the entry price
A — The deduction of the German Umsatzausgleichssteuer (turnover equalization tax) and of the Community countervailing charge
B — The prices recorded on the representative markets
2. The statement of reasons for Regulation No 144/65
II — The validity of Regulation No 104/65
1. The jurisdiction of the Court
2. The substance of the complaint
III — The validity of Article 11(2) (as amended) of Regulation No 23
IV — The failure of the Commission to amend or revoke Regulation No 144/65
V — Costs
I —. Facts
1. Origin of the reference
A —. On 4 April 1962, on the basis in particular of Articles 42 and 43 of the Treaty, the Council of the EEC adopted Regulation No 23 on the progressive establishment of a common organization of the market in fruit and vegetables (Official Journal of 20 April 1962, p. 965; hereinafter referred to as Regulation No 23).
B —. Article 1 of Regulation No 65/65/EEC of the Council of 13 May 1965 (Official Journal No 86 of 20 May 1965, p. 1458; hereinafter referred to as Regulation No 65/65) amended Article 11 (2) of Regulation No 23 with a view to making it possible to maintain the preferential treatment for Member States arising out of application of the Treaty (the reason expressed in the recitals of the preamble to Regulation No 65/65).
C —. By Regulation No 99/65/EEC (Official Journal of 8 July 1965, p. 2109; hereinafter referred to as Regulation No 99/65), the Commission specified the methods of calculation of the reference price and the entry price.
D —. By Regulation No 104/65/EEC (Official Journal of 8 July 1965, p. 2116; hereinafter referred to as Regulation No 104/65), the Commission fixes reference prices for outdoor table grapes (hereinafter referred to as table grapes) according to the month of the year.
E —. In Regulation No 138/65 (Official Journal of 6 October 1965, p. 2650; hereinafter referred to as Regulation No 138/65), which was applicable from 9 to 16 October, the Commission stated that the entry price of table grapes from Bulgaria, Romania and Yugoslavia was settled at 12.9 u.a. and ordered the collection of a countervailing Community charge of 3 u.a. (15.9-12.9).
F —. By Regulation No 144/65/EEC (Official Journal No 172 of 18 October 1965, p. 2720, hereinafter referred to as Regulation No 144/65), the Commission reimposed, for the period from 21 to 31 October 1965, a countervailing Community charge on the importation of table grapes from Bulgaria and Romania, the amount of which was fixed this time at 2 u.a.
G —. The Beus company imported fresh table grapes from Bulgaria on 25 and 27 October 1965 and had them cleared at the customs office of Munich-Grossmarkthalle. On the basis of Regulation No 144/65 the customs office levied a Community countervailing charge of DM 8 (or 2 u.a., in accordance with the figures of Regulation No 144/65) per 100 kg. The Beus company took proceedings before the Finanzgericht (Finance Court), Munich, asking for this levy to be annulled and pointing out that, for the reasons set out below (III, 1, A to D), Regulation No 144/65 was invalid.
2. Terms and reasoning of the reference
II —. Procedure
(1). The Beus company and the Commission of the European Communities submitted written observations under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC and presented oral argument at the hearing on 1 June 1967.
(2). By order of 6 July 1967, the Court decided to reopen the oral procedure and set the Commission a time-limit expiring on 31 August 1967 to complete its explanations on certain points in writing (calculation, on the one hand, of the reference price and, on the other, of the entry price and the other taxes on imports) and allowed the Beus company the option of submitting before 30 September 1967 written observations on the explanations which the Commission was requested to provide.
(3). The Beus company was represented by Oskar Mohring, Rolf Beisswingert, Dietrich Reimer, Detlef Wunderlich, Wolfgang Pohle and K. Zimmermann, all Advocates of the Munich Bar, and the Commission of the European Communities was represented by its Legal Adviser, Mr Ehlermann.
III —. Summary of the arguments of the Beus company and of the Commission
1. Arguments put forward before the reopening of the oral procedure
A —. Insufficient reasoning of Regulation No 144/65
B —. The method of calculation of the entry price
(a). Deduction of the German turnover equalization tax (UASt) as well as the Community countervailing charge collected before the entry into force of Regulation No 144/65
(b). The taking into account of prices recorded on the representative markets
(c). Absence of revocation or amendment of Regulation No 144/65
(d). Illegality of Regulation No 23
2. Arguments put forward after the reopening of the oral procedure
A —. The calculation of the reference price
B —. The calculation of the entry price and the question whether the reference price are comparable
I —. The validity of Regulation No 144/65
1. The calculation of the entry price
A —. The deduction of the German Umsatzausgleichssteuer (turnover equalization tax) and of the Community countervailing charge
(a). According to the sixth subparagraph mentioned above, the entry price is fixed, in respect of products from third countries, on the basis of the lowest prices recorded on the representative import markets [of the Member States], less the customs duties arising from the application of Article 23 of the Treaty, and of other taxes on imports, as well as transport costs from those markets to the Community frontier crossing points. The expression other taxes on imports does not appear in the provisions of the Treaty which concern duties collected because of or at the time of importation and which mention customs duties, charges having equivalent effect, customs duties of a fiscal nature and internal taxation (Articles 9, 12 et seq., 18 et seq. and 95 et seq.). By choosing this vocabulary the authors of the said sixth subparagraph obviously intended to give a wide scope to this concept, so as to make it include, in addition to the customs duties specifically mentioned by the provision in question, all duties imposed upon a product from third countries by reason of the fact that it crosses the frontiers of the Community, without its being necessary to ascertain whether the duty in question was introduced by the Community or by a Member State, whether it falls under the Treaty or, if so, how it must be classified with regard to the Treaty. This interpretation is corroborated by the expression entry price which refers to the purchase price of the product as it is at the actual moment when it arrives at the Community frontier and, consequently, has not yet become subject to the duties which will be imposed upon it at the time of or because of importation.
(b). It is alleged that the reference price includes certain taxes levied upon national trade in Community products, taxes against which such a charge as the turnover equalization tax is precisely intended to countervail. Consequently, in order to ensure comparability between reference prices and entry prices, the latter must include the turnover equalization tax.
(c). The objection is raised, in addition, that the deduction of the Community countervailing charge collected during the previous period has a cumulative effect and that by reducing the entry price to an artificially low level, it can be used precisely to justify the introduction of a new countervailing charge.
B —. The prices recorded on the representative markets
2. The statement of reasons for Regulation No 144/65
II —. The validity of Regulation No 104/65
1. The jurisdiction of the Court
2. The substance of the complaint
A —. It is alleged that in calculating the reference price the Commission wrongly took into consideration the prices recorded for the Italian variety Ohanez and that that variety holds only an insignificant place in comparison with the Regina variety, the only other Italian variety considered by the Commission for the purpose of calculating the reference price.
B —. It is alleged that the preamble to Regulation No 104/65 fails to mention that for the purposes of calculating the reference price the Ohanez variety was treated on an equal footing with varieties which were much more important such as the Chasselas du Midi, Gros vert and Regina.
III —. The validity of Article 11(2) (as amended) of Regulation No 23
IV —. The failure of the Commission to amend or revoke Regulation No 144/65
V —. Costs
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the plaintiff in the main action and the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Articles 9, 12 et seq., 18 et seq., 39, 40, 44, 95 et seq., 177 and 190; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to Regulation No 23 of the Council of the EEC on the progressive establishment of a common organization of the market in fruit and vegetables (Official Journal of 20 April 1962, p. 965 et seq.), especially Articles 11(2) and 13; Having regard to Regulation No 65/65/EEC of the Council amending Article 11(2) of Regulation No 23 (Official Journal of 20 May 1965, p. 1458 et seq.); Having regard to Regulation No 99/65/EEC of the Commission on procedure for giving effect to Article 11(2) of Regulation No 23 (Official Journal of 8 July 1965, p. 2109 et seq.), especially Article 2; Having regard to Regulation No 104/65/EEC of the Commission fixing reference prices for outdoor table grapes (Official Journal of 8 July 1965, p. 2116); Having regard to Regulation No 144/65/EEC of the Commission introducing a countervailing charge on imports of outdoor table grapes from Bulgaria and Romania (Official Journal of 18 October 1965, p. 2720 et seq.); Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the question referred to it by the Finanzgericht, Munich, by order of that court of 25 January 1967, hereby rules: