Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. The Court is called upon to give judgment in proceedings brought against the United Kingdom by the Commission of the European Communities under Article 169 of the EEC Treaty. The complaint made against the United Kingdom is that it failed to levy the customs duties payable on fish caught as a result of a joint Polish and British fishing operation, thereby infringing Article 4 (2) (f) of Regulation (EEC) No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin of goods (Official Journal, English Special Edition 1968 (I), p. 165) and the rules governing the Common Customs Tariff in force at the material time (Council Regulation (EEC) No 3000/79 of 20 December 1979, Official Journal 1979, L 342, p. 1).
2. In the late 1970s fish prices underwent a marked downturn as a result of increased catches made in the North Atlantic and in the seas of the southern hemisphere coming on to the market in the Community. This came as a hard blow to the Community fishing industry, which had already been damaged by reduced if not total loss of access to Norwegian and Icelandic waters. Hence the various attempts that were made to alleviate the situation, including the events which are the subject of these proceedings. Fearful of the effects which an idle fishing fleet would have on fishermen's employment and, at the same time, anxious to continue to supply fish products to the processing industry, a number of British operators approached the Polish authorities with the proposal that joint cod-fishing operations be undertaken in the Baltic Sea.
3. As we know, the concept of the origin of goods is important in the Community context for the application of a number of provisions relating to trade, in particular various Common Customs Tariff rules, and for the purposes of the issue of certificates of origin for products exported to nonmember countries. At one time there was no international definition of the concept and the difficulties ensuing from this (one need only mention the divergencies, which were sometimes very considerable, as between the relevant national rules) prompted the Council to adopt Regulation No 802/68. It is worth emphasizing that the definition incorporated in that regulation served as a model for the draftsmen of the International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto, 18 May 1973).
4. What can one add at this point? Perhaps the Court will allow me to make a modest literary reference: I doubt whether Marguerite Yourcenar or Graham Greene would be prepared to read each morning a piece or two of Community legislation pour prendre le ton, as Stendhal used to read articles of the Code Civil. In other words, I admire the wisdom of the Community legislature but not its careless and too often imprecise language. For instance, in the past I have had to interpret a regulation in which the chemical transformation of white or raw sugar into substances other than sugar is termed purely and simply disposal. I am sure that each one of you can recount similar experiences.
5. Having said that I would observe that the duel somehow has something false about it. The reference made by the United Kingdom to the consequences of a possible break in the nets (the fish would be lost, ergo they can only be said to be caught when the nets have been hoisted on board without mishap) shows, in my view, that the parties' dispute about the meaning of extraits is a superficial one only. In substance the situation is different. The applicant and the defendant alike identify taking from with catching; what they disagree upon is the moment at which that operation takes place, the one considering that it is when the fish enter the net, the other when the net is lifted on board. However if that really is the situation, then the applicant is in the right. Although lacking in appropriate technical and legal substantiation the position adopted by the applicant does accord with common sense which dictates that catching and netting amount to the same thing, irrespective of the risk that the net will tear.
6. I will add a few words in conclusion on the argument that the United Kingdom derives from the second of the two criteria on the basis of which Regulation No 802/68 determines the origin of products. It will be recalled (a) that Article 5 emphasizes the economic importance of the last process or operation undergone by the goods where two or more countries were concerned in their production and (b) that, according to the United Kingdom, the sole operation of economic importance in a fishing operation of the type in question in this case is the raising of the nets and the discharge of their contents on deck.
7. For all the above reasons I consider that the fish caught as a result of the joint fishing operation, referred to under 2 above, were of Polish origin. Hence, byfailing to levy the import duties thereon, the United Kingdom infringed Article 4 (2) (f) of Regulation (EEC) No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin of goods, and the rules governing the Common Customs Tariff.
1 Translated from the Italian.