Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The national court seeks from this Court an interpretation of the rule for classifying broken rice for the purpose of applying import levies.

2. The regulation in question gives no guidance as to the meaning of the term broken rice. For that purpose recourse must be had to the definition contained in Annex A to Council Regulation (EEC) No 1418/76 on the common organization of the market in rice. Points 2 and 3 of that annex give the following definitions:

3. It is specifically with that problem that the questions submitted by the national court are concerned. Essentially, the Court is asked to state whether the average length of a whole grain is to be determined by measuring the whole grains present in the consignment, including the whole grains which are less than fully developed, or whether, on the other hand, the average length is to be arrived at by reference to other criteria such as, in particular, the standard dimensions of the various varieties of rice included in the definitions relied on in international trade.

4. Before I analyse the Commission's thesis, I think it is appropriate to bear in mind that the provisions of the Community nomenclature must be interpreted in such a way as to ensure certainty and uniformity of application. These are general and overriding requirements which are based on the principle, reiterated by the Court, according to which the classification of goods is essentially to take account of the objective characteristics of the product.

5. That having been said, it seems to me that it must be emphasized in the first place that Regulation No 1418/76 does not require the national authorities to determine the average length of the whole grains exclusively by direct measurement of the grains in the consignment. Point 3 of Annex A of that regulation makes no provision, positive or negative, in that regard. Accordingly, it does not seem to me that there is any reason to exclude outright the possibility of reference to external criteria as well. It will be for the national authorities, within the discretion accorded to them by the regulation, to adopt the system which will guarantee the most objective classification,

6. However, even if it is conceded that — in appropriate cases, of course — priority must be accorded to direct measurement to determine the average length of the whole grains, I do not think that it is necessary in every case — as the Commission contends — to include in that operation the whole grains which are not fully developed. Those grains, which clearly depart from the norm and are contained in the consignment merely by accident, cannot, specifically for that reason, be used as a proper point of reference for the application of the classification rule and, consequently, for the rule as to the rate of levy.

7. It will also be noted that the Commission has not effectively denied that the application of the criterion suggested by it may give rise to the difficulties outlined earlier. However, it stated that the broken rice in question, in so far as it is used in the Netherlands market for food purposes, may in some degree compete with rice properly so called. Therefore, even if the imposition of a higher levy does not appear justified in the light of the objective characteristics of the product, which is still to be regarded as broken rice, that levy must none the less be regarded as appropriate in so far as it ensures that, in certain markets, rice, particularly of Community origin, is not exposed to competition from imported broken rice.

8. In the light of the foregoing observations, I think that the national court's first two questions may be answered as follows:

9. In view of the foregoing answer, it is unnecessary to consider the third question submitted by the national court.

1 Original language: Iulian.

2 Reguladon (EEC) No 2729/75 of the Council of 29 October 1975 (OJ 1975, L 281, p. 18)

3 Council Regulation (EEC) No 1418/76 of 21 June 1976 (OJ 1976, L 166, p. 1).

4 See inter alia judgment of 25 May 1989 in Case 40/88 Weber [1989] ECR 1395.

5 With respect to the need for uniform interpretation, at least as a general rule, of customs and agricultural nomenclature, see the judgments of 5 July 1978 in Case 5/78 Milchfiuter [1978] ECR 1597, and of 28 March 1979 in Case 158/78 Äiegi[1979] ECR 1103.