JUDGMENT OF 5. 12. 1973 — CASE 126/73 BUSCH v HAUPTZOLLAMT HAMBURG-ERICUS

In Case 126/73 Reference to the Court under Article 177 of the EEC Treaty by the Hamburg Finanzgericht (IVth Senate) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco (Rapporteur), J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart, Judges, Advocate-General: J. P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — -Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A — Observations submitted by the plaintiff

B — Observations submitted by the Commission

C — Observations submitted by the Federal Republic of Germany

Grounds of judgment

Costs

I —. Facts and procedure

1. In November 1965 the plaintiff obtained customs clearance of quantities of slaughtered poultry coming from the United States and falling under tariff heading 02.02-A-I-b. The Customs Office levied 33813.90 DM at the standard levy rate of 90.60 DM/100 kg (Regulation No 91/65 of 29 June 1965), plus 40.60 DM/100 kg as additional levy under Article 6 of Regulation No 22/62 (Regulation No 124/65 of 22 September 1965), and finally 2855.40 DM as turnover equalization tax at 4 % of the customs value.

2. In its order of reference the Finanzgericht declared, inter alia, that in the event of an affirmative reply to the first question the standard or additional levy should be reduced by the whole of the turnover equalization tax in spite of the reduction of the threshold price of barley by the national regulations of 27 December 1962 (BGBl. 62 I p. 774) and 2 November 1971 (Bundesanzeiger No 209 of 9 November 1971).

3. The plaintiff, represented by Fritz Modest of the Hamburg Bar, the Commission of the European Communities, represented by its legal adviser, Peter Kalbe and the Federal Republic of Germany, represented by Martin Seidel, submitted their written observations in accordance with the provisions of Article 20 of the Protocol on the Statute of the Court of Justice.

II —. -Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A —. Observations submitted by the plaintiff

B —. Observations submitted by the Commission

C —. Observations submitted by the Federal Republic of Germany

1. By order dated 16 March 1973, filed at the Registry on 18 April 1973, the Hamburg Finanzgericht referred to the Court for a preliminary ruling, under Article 177 of the EEC Treaty, questions concerning the interpretation of Regulation No 22 of the Council of 20 April 1962 on the gradual establishment of a common market organization in poultrymeat (OJ 1962, No 30), and on the validity of Regulations Nos 91/65 and 124/65 of the Commission of 29 June and 22 September 1965 (OJ 1965, Nos 116 and 157).

2. The first question asks whether Articles 4 and 6 of Regulation No 22/62 of the Council must be interpreted as meaning that the standard levy and the additional levy charged on the import of slaughtered poultry or on poultrymeat from third countries must be reduced by a fixed amount equivalent to the turnover equalization tax.

3. As regards the first question, Article 4 of Regulation No 22/62 provides for the application of a levy in respect of third countries, which is subject to the same principles as regards slaughtered poultry and other poultrymeat referred to in Article 1 (1).

4. It follows from these provisions that all the components of the levy applicable to the products in question, as well as any additional amount, are fixed by Regulation No 22/62 and that they do not leave the Member States with any autonomous power of affecting the amount of one or other charge by the expedient of criteria of calculation other than those provided for by the legislature.

5. It is thus proper to conclude that Articles 4 and 6 of Regulation No 22/62 of the Council must be interpreted as meaning that the levy and the additional amount payable on import of slaughtered poultry or poultrymeat from third countries must not be reduced by a charge such as the turnover equalization tax on import.

6. Since the first question has been answered in the negative the second question does not arise.

7. The costs incurred by the Federal Republic of Germany and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 40 and 177; Having regard to Regulation No 22 of the Council of 4 April 1962; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Hamburg Finanzgericht by order of that court dated 16 March 1973, hereby rules: