Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. In the present case the Court is requested to define the term import price as used in Article 3(1) of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries (the regulation).

2. The facts giving rise to the proceedings pending before the national court are relatively simple. Over the period 5 December 1985 to 10 September 1986, Soba, the plaintiff in the main proceedings, cleared through customs at the Göggingen office of the Hauptzollamt (Principal Customs Office), Augsburg (the Hauptzollam ), a total of 103 batches of stoned Morello cherries in glass jars. On each occasion it enclosed with the customs declaration the calculation of the reference price, which included not only the invoice price of the Morello cherries but also the value of the packing materials (glass jars, lids, labels, cardboard boxes and shrink-wrapping materials) which it had made available to the Yugoslav supplier free of charge.

3. In its written observations to the Court, the Commission contends that the question submitted by the national court should be answered in the negative and that therefore, in circumstances like those of the present case, the countervailing charge may be lawfully applied. In its opinion, a distinction must be drawn between the value of the goods, which includes all expenses incurred up to loading of the goods in the country of origin, and FOB price, which includes the costs incurred until the goods are loaded onto the means of transport only to the extent to which they have actually been borne by the seller and are thus included in the invoice.

4. Let me say straight away that that seems to reflect an excessively formalistic approach which is liable to lead to misapplication of the regulation, distorting its purpose and scope.

5. The Commission itself appears to have conceded at the hearing that the application of the countervailing charge, in circumstances like those of the present case, is not specifically justified from the economic point of view. However, it is of the opinion that the importer could avoid unjustified application of the charge by selling the packings to the exporter and then repurchasing them so that their price can appear on the invoice.

6. Before concluding, I think it may be appropriate to emphasize that the interpretation of the provisions suggested by the Commission, besides conflicting with the aims of the regulation, is liable adversely to affect the conditions of competition as between economic agents by penalizing, without reason, those importers who obtain supplies from producers that are unable to provide the requisite containers and to create an unjustified obstacle to international trade by allowing protective measures to be applied against imported products that are not marketed at abnormally low prices.

7. In the light of the foregoing considerations, I suggest that the question submitted by the Finanzgericht München be answered as follows:

1 Origina] language: Iulian.

2 OJ 1985 L 136, p. 13. See alto Commission Regulation No 1712/85 of 21 June 1985 amending the German, Greek, English, French, Italian and Dutch venions of Regulation No 1626/85 (OJ 1985 L 163, p. 46).

3 Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruii and vegetables (OJ 1977 L 73, p. 1).

4 See the first three recitals in the preamble to the regu-lation.

5 OJ 1986 L 113, p. 37.