Opinion of Advocate General
Mr President,
Members of the Court,
1. This case concerns reference made to the Court by a German court, the Finanzgericht (Finance Court) Hamburg, for a preliminary ruling on Commission Regulation (EEC) No 2773/82 of 13 October 1982 and Commission Regulation (EEC) No 1315/84 of 11 May 1984 respectively, fixing the export refunds on beef and veal. These questions were raised in proceedings between GruSa Fleisch (GruSa;) and the Hauptzollamt (Principal Customs Office) Hamburg-Jonas (the Hauptzollamt).
Background
2. In May and June 1984, GruSa applied to the competent customs authorities to have seven consignments of beef stored in a warehouse for goods eligible for refunds on account of their subsequent exportation. In its declarations to the relevant customs office, GruSa described these consignments in the following terms: Boned or boneless portions of domestic bovine animals, chilled, each piece individually wrapped, excluding the thin flanks, the shin and the shank (in German: mit Ausnahme von Fleisch-und Knochendünnung und der Hesse). The customs office approved the declarations. The goods were stored in a warehouse for goods eligible for export refunds, from where they were exported to Egypt. The Hauptzollamt granted GruSa the export refunds requested.
3. Inquiries carried out by the Customs Inspection Office, Nürnberg, subsequently revealed that, contrary to GruSa's declaration, the consignments of exported beef contained Knochendünnung. In criminal proceedings before the Landgericht (District Court) Nürnberg, the managers of GruSa and one of its suppliers were convicted of fraud. This conviction, which related not only to Knochendünnung but also to Fleischdünnung, was upheld by a judgment of 5 September 1989 of the Bundesgerichtshof (Federal Supreme Court). Neither the Landgericht Nürnberg nor the Bundesgerichtshof acceded to GruSa's request for questions to be referred to this Court for a preliminary ruling. The two courts considered that this Court's judgment of 18 January 1984 in Ekro provided a convincing reply to the legal questions raised in the present case.
4. At the close of the criminal proceedings, the Hauptzollamt, by amending decisions of 19 October 1987, demanded repayment of the export refunds previously granted, increased by 20%. GruSa lodged a complaint against the amending decisions, following which the Hauptzollamt withdrew its claim to the 20% supplement. For the rest, the Hauptzollamt rejected GruSa's complaint. GruSa appealed against that decision to the Finanzgericht Hamburg which referred three questions to the Court for a preliminary ruling. I refer to the Report for the Hearing for the complete text of these questions, as well as for a fuller account of the facts.
Legislative framework
5. The payment of export refunds for beef and veal is governed by Article 18 of Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal, as amended by Article 3 of Council Regulation (EEC) No 425/77 of 14 February 1977. Article 18 contains, amongst others, the following provisions:
6. It was on the basis of the first sentence of Article 18(5) that the Commission adopted Regulation (EEC) No 2773/82 and — to replace this regulation — Regulation (EEC) No 1315/84. Those two regulations were in force at the material time (the amending decisions of the Hauptzollamt relate to the period from 1 November 1982 to 27 July 1984). However, in the meantime, the regulations have been replaced by Commission Regulation (EEC) No 2891/84 of 15 October 1984 fixing the export refunds on beef and veal. As in the case of the preceding regulations, this one has an annex specifying the beef and veal products for which export refunds are granted and the amount of those refunds.
7. According to GruSa, the wording of this exclusion is wider in the German version alone and, as a result, German exporters were at a disadvantage compared with exporters from other Member States. The German version of the Annex to Regulations (EEC) No 2773/82 and (EEC) No 1315/84 excludes Fleisch-und Knochendünnung und (die) Hesse from the refund, and this is confirmed by the German version of Note 7 to the Annex.
The first and third preliminary questions
8. By its first question, the Finanzgericht would like to know whether Article 1 of Regulations (EEC) No 2773/82 and Article 1 of Regulation (EEC) No 1315/84, read in conjunction with subheading ex 02.01 A II a) 4 ex bb), as set out in the accompanying annexes, must be interpreted as meaning that, in the Federal Republic of Germany, Knochendünnung is one of the parts of the beef or veal which qualify for the refund. By its third question, the national court seeks to ascertain whether these regulations are invalid in so far as they exclude Knochendünnung from the refund. It appears from the grounds of the order for reference that these questions relate to GruSa's argument that the German version of the regulations should not be applied since it is based on an incorrect translation of the original French text.
9. In its written observations submitted to the Court, GruSa attempts to show that the different language versions of the regulations in question diverge. It seems to me that, far more important than the actual existence of such differences is the question whether any such differences between the language versions can be justified on the basis of underlying and acceptable differences of fact. This can be inferred from the judgment in Ekro, cited above. Given its particular relevance to the present case, I wish to consider that judgment in detail.
10. In Ekro, too, the Court had to rule on the anatomical definition of the concept of thin flanks, as it appeared in subheading ex 02.01 A II a) ex bb) of the Annex to Regulation (EEC) No 2787/81, also concerned in the present case. Moreover, the concept of thin flanks was also to be found in the Annexes to Regulations (EEC) No 2773/82, (EEC) No 1315/84 and (EEC) No 2891/84.
11. The Court began its analysis by formulating the following general rule of interpretation:
12. On the subject of the aim pursued by the legislature, the Court, in Ekro, espouses the Commission's view that the provision in question aims to prevent the payment of refunds on low-value cuts of meat, for which there is sufficient demand in the Community meat-processing industry (paragraph 12).
13. The Court then states, however, that so far as, specifically, export refunds on beef and veal are concerned, the general principle of interpretation mentioned above is inadequate for the purpose of giving a satisfactory reply to the question put to it:
14. Like the Landgericht Nürnberg and the Bundesgerichtshof, I too consider that the judgment in Ekro contains, in itself, the necessary factors for assessing the present case.
15. It cannot be denied that the inclusion of Knochendiinnung in the German version of subheading ex 02.01 A II a) 4 ex bb) resulted in a disadvantage for German beef and veal exporters and therefore led to the unequal treatment of German exporters vis-à-vis exporters from other Member States. However, neither can it be denied that this unequal treatment is a necessary consequence of the differences in national cutting and boning methods and that, moreover, it remains very limited. The Commission maintained before the Court, without being contradicted, that Knochendunnung can, at most, represent 4% of all beef or veal production. The fact that thin flanks in language versions other than the German usually include part of the German Knochendunnung as well (above, at paragraph 14) seems to have limited the actual discrimination still further.
16. Furthermore, the exclusion of Knochendunnung reflects, in my opinion, the purpose of the regulations in question. In accordance with the Court's judgment in Ekro, the objective of those regulations is to prevent the payment of refunds on low-value cuts of meat, for which there is sufficient demand in the Community meat-processing industry (above, at paragraph 12).
17. GruSa further maintains that, by amending only the German version of subheading ex 02.01 A II a) 4 ex bb) in the Annex to Regulation (EEC) No 2891/84 and by doing so in the way recommended by GruSa, the Commission recognized that Regulations (EEC) No 2773/81 and (EEC) No 1315/84 were marred by a mistake in translation.
18. Furthermore, I consider that GruSa's argument is substantively unfounded, since the removal of Knochendiinnung from the German version of subheading ex 02.01 A II a) 4 ex bb) in the Annex to Regulation (EEC) No 2891/84 is not considered a rectification, but merely an amendment. Furthermore, the removal of this term is also the cause of unequal treatment — also limited in effect — of German beef and veal exporters vis-à-vis with those of other Member States, but this time to the advantage of the German exporters. In fact, from now on the latter will receive refunds for all Knochendiinnung, whilst — because of the differences in national cutting and boning methods (paragraph 13 above) — this will not always be the case for the exporters from other Member States. Does this give those exporters a good reason for challenging Regulation (EEC) No 2891/84? I do not think so. I consider that, in the absence of harmonization of national cutting and boning methods, both the disadvantage which the German exporters suffered during the period before Regulation (EEC) No 2891/84 entered into force and the advantage which will be theirs after that regulation was adopted are unavoidable.
19. For the reasons mentioned above (points 14 to 18), I consider the exclusion of Knochendiinnung in subheading ex 02.01 A II a) 4 ex bb) of the regulations in question to be justified on the terms of the Court's decision in Ekro. That means, in reply to the third preliminary question, that according to the Court, the exclusion challenged by GruSa does not render the regulations invalid.
The second preliminary question
20. By its second preliminary question, the Finanzgericht Hamburg would like to know whether Regulation (EEC) No 2891/84 has retroactive effect.
21. I have previously indicated (point 18 above) that I consider the removal of Knochendünnung from the German version of subheading ex 02.01 A II a) 4 ex bb) in the Annex to Regulation (EEC) No 2891/84 not to be a rectification but merely an amendment. For this reason alone, I can find no ground for that regulation to have retroactive effect. It is only if the removal of this term constituted a correction that it might have been possible to assert that ever since the corrected version entered into force subheading ex 02.01 A II a) 4 ex bb) should have been interpreted retroactively in accordance with the more recent version.
22. For the sake of completeness, I would nevertheless like to touch briefly on this preliminary question. In the case of substantive rules, as, for example, the regulations now at issue, the case-law of the Court states:
23. It is clear that the wording of Regulation (EEC) No 2891/84 offers nothing to support its retroactive application, on the contrary. In fact, Article 2 expressly provides that the regulation is to enter into force only on 16 October 1984.
24. In its written observations to the Court, GruSa refers to the judgment of 3 June 1980 in Gedelfi, to support its argument that:
25. In line with the previous case-law, in which the Court has shown itself to be particularly restrained with respect to the retroactivity of Community law. I therefore conclude that there is no reason for according retroactive effect to Regulation (EEC) No 2891/84.
Conclusion
26. In conclusion, I propose that the Court reply as follows to the questions submitted by the Finanzgericht Hamburg:
1 Original language: Dutch.
2 OJ 1982 L 292, p. 20 and OJ 1984 L 125, p. 38.
3 Case 327/82 Ekro [1984] ECR 107.
4 OJ 1968 L 148, p. 24. This regulation was last amended by Council Regulation (EEC) No 125/93 of 18 June 1993 amending Regulation (EEC) No 805/68 on the common organization of the market in beef and veal, OJ 1993 L 18, p. 1.
5 OJ 1977 L 61, p. 1.
6 The essential part of the procedure laid down in Article 27 is a matter for the Commission.
7 Regulation (EEC) No 2773/82 entered into force on I November 1982, Regulation (EEC) No 1315/84 on 12 May 1984 (Article 2 of the rwo regulations).
8 OJ 1984 L 273, p. 5.
9 Commission Regulation (EEC) No 2787/81 of 25 September 1981 fixing the export refunds on beef and veal, OJ 1981 L 271, p. 44.
10 Case 55/87 [1988] ECR 3845.
11 Case 29/69 [1969] ECR 419.
12 Written observations, paragraphs 19 and 20. The cut taken from the first and eighth ribs includes neither Fleischdiinnung nor Knochendiinnung. It is divided into cuts which arc not relevant to the present proceedings.
13 Written observations, paragraph 23.
14 Commission Regulation (EEC) No 1354/92 of 26 May 1992 on the sale by the procedure laid down in Regulation (EEC) No 2539/84, of boneless beef held by certain intervention agencies and intended for export, amending Regulation (EEC) No 569/88 and repealing Regulation (EEC) No 665/92, OJ 1992 L 145, p. 53.
15 In principle, I agree with GruSa in considering that it is better not to interpret a 1982 regulation by using a 1992 regulation. However, the particulars which emerge from the Annex to Regulation (EEC) No 1354/92 arc more than confirmed by, for example, the Annex to Commission Regulation (EEC) No 132/83 of 19 January 1983, OJ 1983 L 17, p. 15 as well as by the annexes to dozens of other regulations from the period in question (sec the relevant tables in the first part of Official Journal, in the chapter on Agriculture, under the keywords beef and veal).
16 From this point of view, the question should be asked why Knochendunnung was removed from the Annex to Regulation (EEC) No 2891/84. However, this removal is not in question in these proceedings (see also paragraph 17 below).
17 Case 349/85 [1988] ECR 169.
18 The case concerned subheading ex 16.02 B III b) 1 in che Annex to Commission Regulation (EEC) No 187/80 of 29 January 1980, OJ 1980 L 23, p. 11.
19 Judgment of 12 November 1981 Salumi (Joined Cases 212/80 and 217/80 [1981] ECR 2735), at paragraphs 9 and 10; implicitlv also in the judgment of 3 October 1985, FKF (Case 154/84 [1985] ECR 3165), at paragraphs 17 to 22.
20 Preamble to Regulation (EEC) No 805/68, tenth recital.
21 Case 135/79 [1980] ECR 1713.
22 Written observations, paragraph 27.
23 For a recent example, see Case C-368/89 Crispoltoni [1991] ECR I-3695.