Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In this reference for a preliminary-ruling the Court is called upon to interpret Regulation No 827 of the Council of 28 June 1968 on the common organization of the market in certain products listed in Annex II to the Treaty (Official Journal, English Special Edition 1968 (I), p. 209). The Court will in particular have to determine whether a certain product, wool, falls within its scope.

2. A few words on the subject of the main proceedings. As I have said, they were brought by certain undertakings to recover from the Italian administration the health-inspection levies paid on the importation of wool. In their view Law No 30 of 30 January 1968 on the basis of which the authorities had claimed payment of those levies ought not to have been applied because it was incompatible with Regulation No 827/68. On that basis the plaintiffs assert their right to recover all sums wrongly paid to the State between 1968 and 1970. Naturally the administration takes the opposite view. It maintains that the regulation does not concern wool and consequently does not prevent the application of the domestic rules concerned with health checks on the importation of that product.

3. Let us consider in the first place the relevant Community provisions in the matter. The first to be considered is Article 38 of the Treaty. Article 38 (1) provides that the Common Market shall extend to agriculture and trade in agricultural products and then immediately adds: agricultural products means the products of the soil, of stock farming and of fisheries and products of firststage processing directly related to these products. Article 38 (3) specifies the products subject to the provision of Articles 39 to 46 (that is those subject to the Common Agricultural Policy which is governed by Title II) by referring to the list contained in Annex II to the Treaty. Finally, and this is the provision of more immediate concern to us, heading 05.15 of that list refers to animal products not elsewhere specified or included.

4. It seems to me necessary to state a premise: the interpretation of the residual heading Animal products not elsewhere specified or included in the annex to Regulation No 827/68 must necessarily agree with that of the identical heading in Annex II to the Treaty. That is so both because the two headings are identical and because of the hierarchic relationship between them. In other words: since the regulation is a secondary authority which is based on Title II of the Treaty, its scope cannot exceed that of that title and consequently also that of the provision (like Annex II) to which it refers in order to identify the products subject to it. An interpretation of the heading under the regulation which would bring wool within that heading would therefore be unacceptable if it were necessary to take the view that the corresponding heading of Annex II did not include it.

5. In conclusion I propose that the Court should answer as follows the question put to it by the Corte Suprema di Cassazione of the Italian Republic by order of 22 February 1983 in the case pending between the limited liability company CILFIT and 54 other undertakings on the one hand and the Ministero della Sanità on the other:

1 Translated from the Italian.