Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Introduction

1.1. In order to clarify the legislative, factual and procedural background to Case 327/82 and the substance of the questions raised by the College van Beroep voor het Bedrijfsleven I shall first set out the relevant introductory part of the Report for the Hearing.

1.2. My first point as regards those questions is that at the hearing all the parties agreed that the second question was more important than the first. I share that view and would conclude that the answer to the first question must be formulated in such a way as to be of the greatest possible use to the national court in interpreting the answer to the second question.

1.3. Having thus set out the legal facts most relevant to the questions before the Court, in the next two parts of my opinion I shall consider the two questions in turn.

2. The first question

As far as the first question is concerned, it is first necessary to point out, as the Government of the Federal Republic of Germany and the Commission liave done, that it does not concern the interpretation of the heading of the Common Customs Tariff referred to in the question but the interpretation of the corresponding heading contained in the annex to Commission Regulation No 2787/81 of 25 September 1981. The Commission clarifies this point in its observations by explaining that in many cases the regulation adds special conditions to the nomenclature of the Common Customs Tariff, for example where it restricts the grant of refunds to a part of the products falling under a subheading of the Common Customs Tariff (headings designated ex). According to the Commission's written observations, since it involves a system having its own legal basis and its own aims, that special nomenclature must indeed be interpreted in accordance with the rules for the interpretation of the Common Customs Tariff but also in accordance with the provisions and objectives of the agricultural regulation by which it was introduced. Later, in particular at the hearing, the Commission — citing my opinion in Case 145/81 Wünsche [1982] ECR 2507 (right-hand column), in which I referred to the opinion of Mr Advocate General Mayras in Case 80/72, [1973] ECR 660 (left-hand column) — clarified that approach as follows. In the first place an attempt must be made to answer the questions of interpretation with reference to the provisions and aims of the relevant agricultural regulation; only if a clear answer cannot be reached in that way may guidance be sought from the Common Customs Tariff and the principles governing its interpretation. I have no hesitation in agreeing with that approach, so far as it goes. As regards the first question, however, it leads little further than the finding that, in view of the aims of the relevant regulation, thin flank, as an inexpensive cut of relatively poor quality, should not qualify for export refunds.

The Commission then points out that a comparison of the terms used in the various Community languages to describe a certain kind of meat is not sufficient to guarantee a uniform interpretation. The manner in which slaughtered animals are boned and cut, and the presentation of the cuts, varies from one country to another and even from region to region, so that even within the same linguistic area the same term is not always used to designate precisely the same part of an animal's anatomy. There is no precise definition of thin flank in Community law; the Commission submitted a publication of the European Productivity Agency of the Organization for European Economic Cooperation, dating from 1960, which shows that owing to the different customary methods of cutting meat the term is interpreted differently in the various Member States.

However, in its written observations the Commission, after referring to the relevant diagrams and to the terms used in the various languages and after giving its reasons for rejecting the answer suggested by the plaintiff in the main proceedings, eventually arrives at the view that the term thin flank can nevertheless be interpreted uniformly as the portion of flank lying between the hindquarter and the breast or brisket of the carcase. In its view, certain differences of interpretation still remain, mainly as regards the precise demarcation between the thin flank and the breast or brisket. As I pointed out earlier, those differences are due to traditionally divergent cutting methods.

In answer to written questions asked by the Court the Commission has suggested in this regard that Ín its answer the Court should also refer to the different practices, varying from country to country and often even from region to region, and to the aim of the Community provision.

I am able to endorse that view eventually arrived at by the Commission. At most, the Community legislature could itself attempt to try to standardize local cutting methods by providing a detailed definition on which experts from the Member States could agree, although this would presumably not be easy. Such standardization is certainly not a matter for the Court. Besides, reference to longstanding local practices would normally exclude ab initio abuses aimed at obtaining export refunds which the regulation is not intended to provide. Nevertheless, in its answer the Court could, as the Commission has suggested, pay heed to that risk of abuse.

I therefore suggest that the Court should answer the first question as follows :

The term thin flank used in Commission Regulation No 2787/81 of 25 September 1981 (Official Journal 1981, L 271, p. 44) in subheading ex 02.01 All must be understood as meaning that portion of flank lying beween the hindquarters and the breast or brisket of the carcase which, according to the practices prevailling in the various Member States — whether codified or not — must be regarded as thin flank. However, in order to prevent abuse of the opportunity to obtain refunds consideration must also be given, when that definition is applied, to the aims of that regulation.

3. The second question

The second question is more important and more difficult to answer. As I have already pointed out, the annex to the regulation in question makes an exception only in the case of thin flank and the shin or shank. From a purely linguistic point of view, those expressions can hardly be taken to include parts of the thin flank (or of the shin or shank). Linguistically it is certainly not possible to infer from that annex that the presence of pieces of thin flank, large or small, attached to a separately wrapped piece of high-quality meat completely disqualifies the high-quality meat from a refund.

The note sent to all the Member States on 20 October 1981, to which I referred in my introduction, does not provide the Court with much further assistance on this point. It is clear in particular from the exchange of telex messages and letters between the Commission and the Irish authorities which that note brought to the attention of all the Member States that the question answered applied solely to pieces of high-quality meat to which was attached a whole shin or shank. The answers I have cited also apply solely to boned or boneless meat which includes the shin or shank or the thin flank (emphasis added). Those answers may — especially against the background of the questions raised — be interpreted as applying solely to boned or boneless meat containig the whole thin flank or a preponderant portion of thin flank. In any event they say nothing at all about relatively small pieces of thin flank which, in accordance with local customary cutting methods, are regularly attached to pieces of high-quality meat qualifying for refunds. I would remind the Court that the present case concerns cuts of breast to which were attached pieces of meat cut in the shape of a pistol on which the Produktschap voor Vee en Vlees refused to grant an export refund on the ground that the pistol-shaped pieces of meat were thin flank.

In those circumstances the Government of the Federal Republic of Germany, in its written observations, pointed out, rightly in my view, that in principle the question submitted may be answered in three ways :

The Court will remember that at the hearing the plaintiff in the main proceedings suggested that the last criterion should be defined as meaning that the portion of thin flank must not constitute more than 20 % of the whole cut of meat.

The first solution was adopted in Commission Regulation (EEC) No 2773/82 of 13 October 1982 (Official Journal 1982, L 292, p. 20). In Note 7 of the annex to that regulation it is stated that boned cuts which consist, entirely or partially, of thin flank arc ineligible for the refund. However, as the German Government rightly points out, that regulation, which entered into force on 1 November 1982, was not applicable at the material time. As I pointed out earlier, the question then arises whether the same view may be inferred with sufficient certainty from the aims of Regulation No 2787/81, which was still in force at that time. In the view of the German Government, it cannot and reference should therefore be made, in accordance with the Court's judgment in the Wünsche case (cited above), to the general rules for the interpretation of the Common Customs Tariff (Rule 3 (b) in Part A of Section I). This would necessarily lead to the third solution. In the view of the German Government, the second solution would be possible only by virtue of an express provision to that effect. I would add that in my view the second solution would, for administrative reasons, be impossible to apply in practice.

The Commission believes that the first solution does in fact follow from the language and purpose of the provision in question. As far as its language is concerned, I have already explained why I find it impossible to espouse that view of the Commission's, even bearing in mind the note of 29 October 1981. As far as its purpose is concerned, the Commission points out that the grant of the refund on cuts to which only a small quantity of thin flank was attached would nevertheless mean that a fairly high refund would be granted on meat of fairly low value, thereby indirectly encouraging exports of that meat, despite demand for it in the Community meatprocessing industry.

However, in view of the Commission's own observations on the first question, I do not consider that last argument wholly convincing. For in those observations the Commission itself expressly stated that differences of opinion exist as to the precise demarcation between breast and thin flank. Partly for those reasons it eventually suggested that in its answer to the first question the Court should refer to local practices regarding cutting methods. At the hearing the further point was made that as soon as the absolutely clear 1982 regulation was enacted local cutting methods were adapted if meat was intended for export. The adoption of the Commission's suggestion would perhaps then lead in more cases than necessary to problems of the kind I indicated in my first footnote.

For all those reasons it would to my mind be more logical and more practical to refer to local practices in the answer to the second question also. In practice this will probably lead in most cases to approximately the same results as the solution suggested by the German Government but will go further towards avoiding abuses of the refund system.

In conclusion I therefore suggest that the Court should answer the second question as follows:

Taking into account the answer to the first question, Member States should not grant the refunds on exports to nonmember countries specified in Regulation No 2787/81, in whole or in part, in respect of boned or boneless cuts to which is attached a portion of flank which in view of customary local cutting methods is not to be regarded as belonging to those cuts but as thin flank.

1 Translated from the Dutch.

2 So the importance of the Court's answer as regards other cases is confined to other actions relating to the period, to the question whether Member States have the power or the duty to recover any excessive amounts of refunds paid in that period and to the possible repercussions of the Court's answer on the clearance by the Commission of Member States' accounts for that period. On this last point I refer to the last sentence of the answer which the Commission gave to the Court's written questions ami the explanations it provided at the licăririi;. The two last points, which may be affected by the Court's answer to the second question, raise other legal issues, however, which arc not directly related to the questions raised in this case.

3 In a later telex message of 7 September 1981 that answer was clarified as follows: No export refunds within the meaning of the annex to Regulation (EEC) No 1928/81 may be granted on any carton of boned or boneless meat that contains thin flank and/or shin or shank or on any consignment of boned or boneless meat that contains thin flank and/or shin or shank. In a still later written answer to a question the following further clarification was given: Where the consignments consist of different cuts, export refunds may be paid on ... the cuts in cartons which do not contain any cuts comprising shin or shank. I should point out, however, that those official interpretations, which the Irish authorities (wrongly, according to the Court's decisions) assumed to be instructions, related to a question about a cut containing a whole shin. Even from a pure linguistic point of view, the answer concerns only cuts containing the (whole) shin or shank and/or the (whole) thin flank. The legal question therefore remains open where a cut contains only a small piece of thin flank.