C-36/76

Charging on net weight (Regulation No 85/63)

2. Agriculture — Pig-meat — Regulation No 84/66/EEC — Amendment of Regulation No 85/63/EEC — Non-existent — Declaratory effect

1. Under the system provided for by 2. The effect of Regulation No Regulation No 85/63/EEC, the levy 84/66/EEC was not to alter the scope

on sausages put up in containers with of Regulation No 85/63/EEC and

preserving liquid had to be charged consequently its effect was merely on the net weight after deducting the declaratory of the pre-existing weight of such liquid. situation.

In Joined Cases 36 and 37/76

JUDGMENT OF 16. 12. 1976 — JOINED CASES 36 AND 37/76

on the interpretation of Regulations No 85/63/EEC of the Council of 18 July 1963 (JO 1963, p. 2175) and No 84/66/EEC of the Council of 28 June 1966 (JO 1966, p. 2216),

THE COURT

composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

subsequently confirmed by judgments of Between October 1963 and June 1966, the Corte d'Appello of Bologna. Then the companies Srl Foral and D. & C. Spa the Amministrazione delle Finanze dello effected numerous importations into Stato, the defendant at first instance, Italy of sausages in containers also appealed to the Corte Suprema di

holding a preserving liquid, coming Cassazione against the two judgments. By under tariff heading ex. 16.01 B. two orders, made on 12 February 1976, this latter court stayed the proceedings

The Italian customs authorities charged and called upon the Court of Justice of

the import levies referred to in the the European Communities to give a

Community regulations on the preliminary ruling pursuant to Article organization of the market in pigmeat. 177 of the EEC Treaty, in order to

On every occasion, when calculating the ascertain:

situation; Article 2 of this regulation added

2. If tne latter is the case, whether the the following provision to the

absence of any indication in aforementioned annexes:

Regulation No 85/63/EEC must be understood as meaning that prior to The levy on sausages put up in Regulation No 84/66/EEC it was containers with preserving liquid shall be indeed necessary also to take account charged on the net weight after

of the weight of the said preserving deducting the weight of such liquid'. liquid or whether each State might act in this sphere in accordance with The two orders referring the cases to this legislation.'

its own customs Court were received at the Registry of the Court on 26 April 1976. The importations concerned were

levies both in regard to non-Member Upon hearing the report of the

countries and between the Member Judge-Rapporteur and the views of the

States. These regulations (see for example Advocate-General, the Court decided to

Regulations Nos 88/63/EEC and open the oral procedure without any 89/63/EEC of the Council, JO 1963, pp. preparatory inquiry. 2196 and 2199) always express the

amount of the levies per '100 kg of net II Written weight'

of the product. — observations

This latter regulation provided in the first The legislature could not have expressed place an amendment to the tariff heading its intentions any more clearly than it under which sausages come, in order to did in Regulation No 84/66. When it standardize the various descriptions of made amendments to the description of goods in the various customs tariffs in goods, it intended to specify that it had force in the Member States. no wish to bring about any innovations on the subject of the determination of As regards the amount of the levy, the weight of the goods in question, Article 4 (2) of the regulation provided which, for the purposes of the levy, was that the amount of the intra-Community to be calculated net, that is after

levy in the pigmeat sector should be deducting the preserving liquid. determined by precise and strict

calculation container and excluding This conclusion is borne out by the packaging. whole of the precise and lengthy recitals of Regulation No 84/66. The only points The levy was to be calculated on the

basis of the following components alone: expressly mentioned by the legislature concerned inaccuracies in the (a) basic products referred to in Article 1 nomenclature contained in Regulation (1) (b), and the portion of the levy No 85/63. relating to these was to consist of the

weighted average of the levies The sole purpose of the note on prescribed for these products, preserving liquids ('it is necessary to (b) products other than those referred to specify') is to interpret and to clarify the in Article 1 (1) (b), but used in the previous rules in the Community legal making of sausages, and for these the order. levy was to be calculated in a similar fashion, on the basis of the weighted Intra-Community levies constitute average of all the levies, taxes and payments which are due only on the duties borne by the products used in basis of the provisions of the making of sausages. Com unity,

the weight of the preserving liquid did situation goes no further than the fact of

not form part of the basis of assessment making explicit a principle already to the levy. That exclusion followed from appearing implicitly in Regulation No an arithmetical calculation effected on 20/62.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v FORAL

'necessary' The Italian State's charging, by way of to Annex II A. It is deemed to

the levy, a higher duty than those replace certain words, which clearly provided for in the Community shows that the regulation is such as to

regulations constitutes an unjustified create a new situation. The use of the 'specified'

The respondents in the main action Article 4 (2) of Regulation No 20/62 propose that in answer to the the defined the criterion according to which questions asked, the Court should rule the amount of the intra-Community that Regulation No 84/66 constitutes an levies was to be determined for each interpretation of Regulation No 85/63, Member State, whereas the explanatory and consequently has retroactive effect, note contained in Regulation No 84/66 or else (should the Court find that refers on the contrary to the criterion Regulation No 84/66 is such as to create applicable to the payment and the a new situation) that at all events the charging of the levy according to weight of the preserving liquid could not coefficients which were patently already come into the calculation of the levy fixed on the goods which are the given that the Member States had to act subject-matter of trade. in accordance with Regulation No 20/62 and not apply their own national Indeed the levy does not coincide with

legislation. the weighted average of the levies applicable to the various products which

Observations of the Amministrazione go into the making-up of the main

delle Finanze dello Stato product and therefore the determination of the levy does not come down to a

The Italian State Finance Administration simple arithmetical calculation; it falls to points out that the preamble to be determined 'taking into account in Regulation No 84/66 acknowledges that particular'

that average.

preamble to Regulation No 84/66 that respect of the many other products 'amendments' that regulation concerns preserved in brine, that liquid is made in Annex II B which are such as to normally included in the dutiable weight, bring about corresponding amendments and this does not give rise to any doubts.

JUDGMENT OF 16. 12. 1976 — JOINED CASES 36 AND 37/76

The fact of not having included the a liquid, the Italian national adminis­

liquid in which the sausages may be trative authorities having jurisdiction preserved among the factors bearing on drew the attention of the Community the determination of the levy applicable agencies to the expediency of granting could indeed Council, explain why the such an exemption.

when it drew up Regulation No 84/66, acknowledged the necessity of adding a Following that and after a group of

precise reference, providing that the Customs Tariff experts had examined

be acknowledged that its very provisions to see that the intention of the

incompatibility with the different Community agencies was to provide an

collection system which was laid down exceptional exemption from the general

previously makes it apparent that it principle.

creates a new situation.

Had the Council wished to give

without qualification, the weight of the Next, the Amministrazione delle Finanze goods themselves without packing of any dello Stato sets out a list of other

kind'. The term packing means any provisions of the Common Customs external or internal containers, holders, Tariffunder which the preserving liquid wrappings or supports, other than is normally included in the dutiable transport devices, in particular transport weight. It stresses moreover the particular

containers, tarpaulins, tackle or ancillary attention which the Customs Tariff devotes equipment."

transport to the amount of the percentage

by weight of certain products, which

In view of this definition, it is quite means that when the point is not

(heading 16.02). indications already given by the

in Com­ Community authorities the

These considerations confirm the fact mission recommendations of 13 March that the liquid in which the sausages 1961. It is clear that interpretative effect

were preserved was in principle taken cannot be attributed to a provision

into consideration, in accordance with granting an exemption and therefore

the criteria applicable to all similar incompatible with the different criterion

products over time, but solely and third parties who bought the goods.

uniquely such packaging as serves to

protect the goods from risks connected The administration, the appellant in the 'packaging'

with transport. The term thus main action, therefore considers that the

defined does not include particular Court should rule that the reference

substances which are not containers or contained in Article 2 (1) I of Council wrappings but have the (different) Regulation No 84/66 creates a new

liquid as packaging. Indeed, the problem levies, it does not appear permissible for resolved by Community Regulation No the Member States to have recourse to

84/66 would not even have arisen if the their own legislation. Indeed the

preserving liquid in question had already expressions appearing in the Community to be considered as a form of packaging regulations have a single meaning valid (excluded as such from the calculation of throughout the Community, which

the levy) on the basis of the preceding excludes the possibility of having regulations. recourse to provisions of the. Member States in order to interpret or complete

With regard to the second of the two them.

questions, whether prior to Regulation No 84/66 it was indeed necessary also to The Commission notes, however, that at take account of the weight of the said the time of the importations in dispute,

themselves without any liquid. However, The Commission points out that the when the levies were being fixed, account product at issue is described under was not taken of the weight of the liquid. 'sausage'

heading 16.01 exclusively as and

not as 'tinned sausages'

or 'preserved Regulation No 84/66/EEC confirms sausages'. The liquid which the sausages the correctness of the interpretation are in acts as a heat conductor when, suggested on the basis of the preceding immediately before the tin is sealed, the provisions. Indeed, in this adopting sausages are heated to a high temperature regulation, the legislature showed that it which enables them to be preserved. It did not wish to alter the pre-existing also serves to maintain osmotic situation, but that it wished solely to equilibrium by preventing the sausages clarify it. The statement of the reasons on from drying out owing to the loss of the which the regulation was based indicates liquids which they contain, and in doing explicitly that such was the intention of so it preserves their appearance. the legislature. Indeed, mention is made However, this liquid does not alter the there of the expediency of specifying that organoleptic characteristics of the the weight of the preserving liquid must product. be deducted.

Therefore taking account of the weight If it is true that the Italian version of the of the liquid when calculating the levy is regulation also speaks of certain ruled out by the meaning of the term 'inesattezze'

it which was necessary to 'sausage'. The expression 'net weight', remedy, the German, French and Dutch

An economic factor should be added to The Commission considers that it is not

these factors pertaining to wording. The necessary to reach a final decision on the

weight of the preserving liquid with the problem, raised by the first question, of sausages is more or less equal to the whether interpretative measures have weight of the sausages themselves. Since retroactive effect, in view of what already it would be absurd from the economic follows from the interpretation of the

point of view to impose a financial texts prior to 1966. burden on the importation of these

liquids, it would have been necessary in The Commission proposes the following this case to take account of the weight of answer to the question put:

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v FORAL

proposed by the Commission. imposition of every levy on the grounds of the percentage of the weight of basic Mr Marzano, for the Amministrazione materials protected by the levy. delle Finanze dello Stato, considers that it is not enough to acknowledge that the Mr Marenco, for the Commission of the situation prevailing under the regulations European Communities, acting as Agent, prior to Regulation No 84/66 was informs the Court that during the period iniquitous. On the contrary, the Court in question the Netherlands authorities

should find that the application of the excluded the preserving liquid from the

old rule led to an unjust result. dutiable weight. In Belgium and in France there were no directives, but it He adds that if, from the point of view of seems that the liquid was also excluded.

calculating it, it is absurd to charge the As regards Luxembourg, there are no

levy on water, the same conclusion is longer any helpful data. As regards the valid in respect of customs duties. Federal Republic of Germany, a circular was issued to the effect that the liquid It was not for the Italian authorities was not to be taken into consideration

themselves to correct the Community for the purposes of calculating the

containers with

water. That finding would be If the Court follows the Commission's meaningless if the exception could argument to the effect that the

already be inferred from the pre-existing regulations prior to Regulation No 84/66 rule. fixing the amount of the levies are to be interpreted as excluding the preserving He underlines the risk of attributing an liquid from the dutiable weight of the interpretative effect to every regulation product, it would not be necessary for the which amends or specifies the contents Court to consider the question of the

of a rule. The cases Kurt Siemers v possible retroactive effect of Regulation Hauptzollamt Reichenhall ([1971] ECR No 84/66. If, however, it is necessary to

919) and Gervais-Danone v considerthat question, the Commission

JUDGMENT OF 16. 12. 1976 — JOINED CASES 36 AND 37/76

standing the fact that those regulations The Advocate-General delivered his could only be interpretative, the Court opinion at the hearing on 1 December did not find that they had any retroactive 1976.

Law

1 By two judgments which were received at the Court of Justice of the

European Communities on 26 April 1976, the united civil Chambers of the

Corte Suprema di Cassazione referred to the Court, under Article 177 of the

EEC Treaty, two questionsconcerning the interpretation of the nomenclature appearing as Annex II b to Regulation No 86/63/EEC of the Council (JO

2. If the latter is the case, whether the absence of any indication in Regulation No 85/63/EEC must be understood as meaning that prior to

Regulation No 84/66/EEC it was indeed necessary also to take account of

the weight of the said preserving liquid or whether each State might act in legislation.'

this sphere in accordance with its own customs

2 These questions arose in the context of an action between, on the one hand, the national finance administration and, on the other, two importers who

imported sausages in containers with preserving liquid during the period

of the levies applicable to the basic products making up the goods.

5 The successive regulations of the Council determine the amount of the levies

by using the detailed nomenclature which appears as Annex II b to

Regulation No 85/63, to .fix a levy per 100 kg of net weight in respect of each product described in that nomenclature.

6 Sausages and the like, of meat, meat offal or animal blood, coming under

heading 16.01 of the Common Customs Tariff are divided up into five groups in respect of each of which a single amount of levy is prescribed.

added, at

JUDGMENT OF 16. 12. 1976 — JOINED CASES 36 AND 37/76

Article 2, a footnote (a) to the description of products coming under

subheading 16.01 B I to the effect that:

The levy on sausages put up in containers with preserving liquid shall be liquid.'

charged on the net weight after deducting the weight of such

12 Although it is true that the amount of the levy on the products manufactured from the basic products is not the result of an arithmetical calculation

performed on the levies on the basic products, and that the levy contains a flat-rate component, it is none the less true that its purpose would be

exceeded if for a product such as sausages put up in containers with

preserving liquid, the weight of such liquid, which is approximately the same as that of the sausages, were taken into account for the purpose of charging the levy.

13 It is to be inferred from this that, under the system provided for by Regulation No 85/63/EEC, the levy on sausages put up in containers with

preserving liquid had to be charged on the net weight after deducting the weight of such liquid.

Regulation No 84/66/EEC was not to alter the scope of Regulation No

85/63/EEC, and consequently its effect was merely declaratory of the

situation. pre-existing

Costs

18 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

19 As these proceedings are, in so far as the parties to the main action are

1. Under the system provided for by Regulation No 85/63/EEC, the levy on sausages put up in containers with preserving liquid had to be charged on the net weight after deducting the weight of such liquid;

OPINION OF MR MAYRAS — JOINED CASES 36 AND 37/76

2. The effect of Regulation No 84/66/EEC was not to alter the

scope of Regulation No 85/63/EEC, and consequently its effect was merely declaratory of the pre-existing situation.

Kutscher Donner Pescatore

Mertens de Wilmars Sørensen Mackenzie Stuart O'Keeffe

The two cases referred by to this Court whether on the contrary the weight of

the Corte Suprema di Cassazione of Italy such liquid was to be deducted.

for a preliminary ruling both present the same questions of interpretation of Apart from the provisions set out in

regulations adopted by the Council in Article 1 of Regulation No 20/62, the

the context of the common organization nomenclature of the products coming of the market in pigmeat during the under the common organization of the

transitional period of the progressive market in question was laid down by introduction of that organization. Annex II B to Council Regulation No 85/63 of 18 July 1963. As the Court is aware, the provisions

1 — Translated from the French.