JUDGMENT OF 19. 6. 1980 — CASE 803/79 ROUDOLFF

In Case 803/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Examining Magistrate at the Tribunal de Grande Instance [Court of First Instance], Paris, for a preliminary ruling in the criminal proceedings pending before that court against

THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observation submitted to the Court by the Commission of the European Communities

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. During the period from 27 August 1974 to 8 April 1975 the Multi-Agra company of which the accused in the main proceedings, Mr Roudolff, is chairman and managing director, lodged customs declarations in respect of 704390 kg of boned or boneless beef or veal exported to Greece and obtained export refunds totalling FF 3358209.85 on those goods.

2. The Administration des Douanes [customs administration] found that the meat which had been exported by the Multi-Agra company contained some insides of cheeks of bovine animals, shin and thin flanks which it considered did not qualify for export refunds under the Community regulations. The Administration decided that there had been an infringement of Article 426 (5) of the Code des Douanes [customs regulations] (false declarations, the object or effect of which was to obtain an advantage on exportation).

3. Mr Roudolff maintains that the cheeks, offals, thin flanks and shin fail to qualify for the refunds only if they are packaged separately, and he claims that the investigation concerning the exports in connexion with which he has been charged has established that the cardboard boxes contained the fore-quarters, boned or boneless, as a whole but that it has nevertheless not been shown that the cuts in question had been packaged separately when they were put into the said cardboard boxes.

4. By an order of 7 November 1979 the First Examining Magistrate of the Tribunal de Grande Instance, Paris, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

5. The products in respect of which export refunds were made available during the period in question were listed in the annexes to Regulations of the Commission Nos 2010, 2243, 2538, 2645, 2943, 3084 and 3205/74 (Official Journal L 209, p. 34; L 238, p. 31; L 271, p. 52; L 283, p. 18; L 311, p. 38; L 327, p. 7; and L 341, p. 38), and Nos 180, 494 and 735/75, fixing the export refunds on beef and veal (Official Journal L 20, p. 11; L 53, p. 39; and L 73, p. 29).

6. In the French language version of Regulations Nos 2010/74 and 2243/74, the subheading in question is worded as follows:

7. The order making the reference to the Court was lodged at the Court Registry on 12 November 1979.

II —. Written observation submitted to the Court by the Commission of the European Communities

III —. Oral procedure

1. In reply to a question from the Court, the Commission stated that the words packaged separately in the second indent of the subheading in question, as it is worded in Regulations Nos 2538, 26'45, 3084 and 3205/74 and Nos 494 and 735/75 refer, on a literal interpretation of the text, to boned or boneless cuts and not to the products listed in that indent.

2. Gérard Roudolff, represented by P. Abensour, Advocate at the Paris Bar, and the Commission, represented by F. Lamoureux, a member of its Legal Department, acting as Agent, presented oral observations at the hearing on 27 March 1980.

3. At the hearing Mr Roudolff, who did not submit written observations, challenged the Commission's interpretation of the regulations referred to under Point 1. In his opinion the words packaged separately appearing in the second indent of the subheading in question, as it is worded in those regulations, refer to the products listed in that subparagraph. The other regulations which were in force during the period in question should be interpreted in the same manner. The scheme of the regulations referred to under Point 1 has not changed; an attempt has merely been made to improve its drafting.

4. The Advocate General delivered his opinion at the sitting on 22 May 1980.

1. By an order of 7 November 1979 which was received at the Court on the 12th of that month, the Examining Magistrate at the Tribunal de Grande Instance, Paris, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of subheading ex 02.01 A II (a) 2 (dd) ex 22, appearing in the annexes to regulations of the Commission fixing the export refunds on beef and veal for the period from August 1974 to April 1975.

2. The question arose in the course of a criminal investigation concerning the chairman and managing director of a French company, charged with having made false declarations during the above-mentioned period in order to obtain export refunds for frozen, boned or boneless beef and veal exported to Greece. The customs authorities ascertained that the exported meat included the insides of cheeks, shin and thin flanks, which in its opinion did not qualify for refunds under the above-mentioned regulations.

3. The accused in the main proceedings challenges that interpretation. He maintains that the products in question would only have failed to qualify for the refunds if they had been packaged separately.

4. The question asked by the court making the reference is whether the wording of subheading ex 02.01 A II (a) 2 (dd) ex 22 in the annexes to Regulations of the Commission Nos 2010, 2243, 2538, 2645, 2943, 3084 and 3205/74 (Official Journal L 209, p. 34; L 238, p. 31; L 271, p. 52; L 283, p. 18; L 311, p. 38; L 327, p. 7; and L 341, p. 38) and Nos 180, 494 and 735/75 (Official Journal L 20, p. 11; L 53, p. 39; and L 73, p. 29) fixing the export refunds on beef and veal may be regarded as covering exports in cardboard boxes of cuts of forequarters of frozen, boned or boneless beef or veal, including certain cuts specified as insides of cheeks, thin flanks and shin, when the latter were not packaged separately, and whether they therefore qualify for export refunds.

5. During the period in question in the present case there were two versions of the disputed subheading, the first, which appeared in Regulations Nos 2010 and 2243/74, being worded in the six languages of the Communities as follows :

6. In a second version, Regulations Nos 2538, 2645, 2943, 3084 and 3205/74 and Nos 180, 494 and 734/75 incorporated the same modification in all the language versions. It reads [in French] as follows:

7. From a linguistic point of view the question is whether the words emballés séparément [packaged separately] refer to morceaux désossés [boned or boneless cuts] or whether they refer on the contrary to the exception made for les joues, les abats, le flanchet et le jarret [the chaps, the offals, the thin flanks and the shin]. Although in the different versions there are grammatical indications, particularly the punctuation, which seem to support the former interpretation, the text when read as a whole remains ambiguous. The function of the words in question must therefore be examined in the light of the intention and purpose of the regulations in question.

8. In that context the Commission claims in its observations that the Community regulations restrict the granting of refunds to quality cuts of meat. These do not include cheeks, offals, thin flanks and shin, which are used for processing and for which as such there are in any case many uses within the Community itself. On that ground there is no justification for granting export refunds. Moreover, as the boned or boneless cuts are small and practically indistinguishable from each other after freezing, it is necessary for each piece to be packaged separately in order to enable them to be inspected.

9. The Court is of the opinion that the Commission has demonstrated sufficiently the reason for the requirement concerning separate packaging: it is intended to facilitate inspection and must therefore apply to all cuts which qualify for refunds. The justification for this view is all the more apparent in so far as the interpretation, whereby the words emballés séparément refer to the exception, does not appear to be such as to give those words any real purpose. It would mean that cheeks, offals, thin flanks and shin would qualify for refunds when the presence of such cuts is concealed, but that they would fail so to qualify when their presence is easy to establish, something which is hardly in the interests of the Community.

10. The reply to the question which has been asked should therefore be that the wording of subheading ex 02.01 A II (a) 2 (dd) ex 22 in the annexes to Regulations of the Commission Nos 2010, 2243, 2538, 2645, 2943, 3084/and 3205/74 and Nos 180, 494 and 735/75, fixing the export refunds on beef and veal could not be regarded as covering exports of cuts of fore-quarters of frozen, boned or boneless beef or veal, specified as insides of cheeks, thin flanks and shin, or as enabling them to qualify for export refunds.

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable; as the proceedings are, in so far as the accused in the main proceedings is concerned, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Second Chamber) in answer to the question referred to it by the Examining Magistrate at the Tribunal de Grande Instance, Paris, by an order of 7 November 1979, hereby rules:

1 Translator's note: In Regulations Nos 2010, 2243 and 2538/74 joues in the French version appears as chaps in the English version; in the subsequent regulations mentioned joues in the French version appears as cheeks in the English versions.

2 See Translator's note ante p. 2018.