C-803/79

JUDGMENT OF 19. 6. 1980 — CASE 803/79

In Case 803/79

REFERENCE to the Court under Article 177 of the EEC Treaty by the Examining Magistrate at the Tribunal de Grande Instance [Court of First Instance], Paris, for a preliminary ruling in the criminal proceedings pending before that court against

GÉRARD ROUDOLFF

on the interpretation of Regulations of the Commission Nos 2010, 2243, 2538, 2645, 2943, 3084 and 3205/74 (Official Journal L 209, p. 34; L 238, p. 31; L 271, p. 52; L 283, p. 18; L 311, p. 38; L 327, p. 7; and L 341, p. 38) and Nos 180, 494 and 735/75 (Official Journal L 20, p. 11; L 53, p. 39; and L 73, p. 29) fixing the export refunds on beef and veal, in order to determine whether cuts of frozen, boned or boneless beef or veal specified as insides of cheeks, thin flanks and shins, when not packed separately, qualify for export refunds,

T H E COURT'(Second Chamber)

ROUDOLFF

chairman and managing director, lodged cuts of forequarters of frozen, boned or customs declarations in respect of boneless beef or veal, including certain 704 390 kg of boned or boneless beef or cuts specified as insides of cheeks, thin veal exported to Greece and obtained flanks and shin, when the latter were not export refunds totalling FF 3 358 209.85 packaged separately, and did such on those goods. exports thus qualify for export refunds as provided for in Regulations (EEC) Nos 2. The Administration des Douanes 805/68 and 885/68 of the Council of the [customs administration] found that the European Communities?" meat which had been exported by the Multi-Agra company contained some 5. The products in respect of which insides of cheeks of bovine animals, shin export refunds were made available and thin flanks which it considered did during the period in question were listed not qualify for export refunds under the Community regulations. The Adminis- in the annexes to Regulations of the tration decided that there had been an Commission Nos 2010, 2243, 2538, infringement of Article 426 (5) of the 2645, 2943, 3084 and 3205/74 (Official Code des Douanes [customs regulations] Journal L 209, p. 34; L 238, p. 31; L (false declarations, the object or effect of 271, p. 52; L 283, p. 18; L 311, p. 38; which was to obtain an advantage on L 327, p. 7; and L 341, p. 38), and Nos exportation). 180, 494 and 735/75, fixing the export refunds on beef and veal (Official Journal L 20, p. 11; L 53, p. 39; and 3. Mr Roudolff maintains that the L 73, p. 29). cheeks, offals, thin flanks and shin fail to qualify for the refunds only if they are packaged separately, and he claims that 6. In the French language version of the investigation concerning the exports Regulations Nos 2010/74 and 2243/74, in connexion with which he has been the subheading in question is worded as charged has established that the follows: cardboard boxes contained the fore- quarters, boned or boneless, as a whole "ex 02.01 A II a) 2.: but that it has nevertheless not been shown that the cuts in question had been Viandes comestibles de l'espèce bovine packaged separately when they were put domestique congelées: into the said cardboard boxes.

". .. are members of the Legal Department of Pezzi disossati, esclusi le guance, le the Commission. frattaglie, la pancia, la tibia e il muscolo After hearing the report of the Judge- aderente, confezionati separamente." Rapporteur and the views of the ". .. Advocate General the Court decided to Delen, zonder been, met uitzondering open the oral procedure without any van kopvlees, slachtafvallen, de wang en preparatory inquiry. de schenkel, afzonderlijk verpakt." By an order of 13 February 1980 the Court decided to assign the case to the Teilstücke ohne Knochen, mit Ausnahme Second Chamber under Article 95 (1) of the Rules of Procedure. von Kopffleisch, Schlachtabfällen, Fleisch- und Knochendünnung und die Hesse getrennt verpackt." II — W r i t t e n observation sub- ". .. m i t t e d to the C o u r t by the Boned or boneless, excluding the chaps, ' Commission of the the offals, the thin flanks and the shin, European Communities packaged separately." Noting the reference to the Common Customs Tariff in the question which has Udbenet med undtagelse af kæber, slag- been referred to the Court, the teaffald, slag og skank, stykkerne Commission makes the preliminary point emballeret hver for sig". that the case must be decided on the basis of the agricultural regulations The French language version of Regu- applicable to the export refunds on beef lations Nos 2538, 2645, 2943, 3084, and veal. 3205/74 and Nos 180, 494 and 735/75 is worded as follows: It therefore proposes to re-phrase the ". .. question which has been referred to the Court as follows: Morceaux désossés: "Could the description of goods falling — à l'exception des joues et des abats within subheading ex 02.01 A II (a) 2 pour les exportations à destination (dd) ex 22 in the annexes to the regu- des Etats-Unis lations of the Commission fixing the export refunds on beef and veal be — à l'exception des joues, des abats, du considered, in 1974 and 1975, as flanchet et du jarret, emballés covering exports of cardboard boxes séparément, . . . " containing cuts of forequarters of frozen, boned or boneless beef or veal, including 7. The order making the reference to certain cuts specified as insides of the Court was lodged at the Court cheeks, thin flanks and shin, when the Registry on 12 November 1979. latter were not packaged separately, and Written observations were lodged under could such exports thus qualify for Article 20 of the Statute of the Court of export refunds as provided for in Regu- Justice of the EEC by the Commission of lation (EEC) No 805/68 of the Council the European Communities, represented of 27 June 1968 on the common organi- by R. Wainwright, acting as Agent, zation of the market in beef and veal assisted by F. Lamoureux, both of whom (Official Journal, English Special Edition 1968 (I), p. 187) and Regulation (EEC) 1 — Translator's note: In Regulations Nos 2010, 2243 and 2538/74 "joues" in the French version appears as No 885/68 of the Council of 28 June "chaps" in the English version; in the subsequent regu- 1968 laying down general rules for lations mentioned "joues" in the French version appears as "cheeks" in the English versions. granting export refunds on beef and veal

and criteria for fixing the amount of wording of a subdivision of that heading such refunds (Official Journal, English which refers to "boned or boneless, Special Edition 1968 (I), p. 237)." excluding the cheeks, the offals, the thin flanks and the shin, packaged separately". Such a subdivision merely amounts to a more restrictive description The Commission maintains that a literal or definition of the products of that interpretation of the French language heading. As far as the Commission is version of the regulations fixing the concerned the logical order of the texts amount of the refunds leaves no doubt supports the conclusion that the regu- whatsoever about the fact that the lations could not have reintroduced expression "packaged separately" offals into the subdivision of a heading qualifies the words "boned or boneless" as cuts of meat which qualify for refunds meat. If the expression related to the when they had been expressly excluded cheeks, shin and thin flanks, there ought by the actual wording of the heading. not to be a comma between "shin" and "packaged separately". In the opinion of the Commission the rules of syntax do not allow a qualifying adjective which The Commission goes on to point out relates to several substantives to be that the purpose of the regulations separated from the last substantive by a provides the justification both for the comma unless an incidental clause is exclusion of cheeks, offals, thin flanks interpolated between them. and shin from the provision relating to separate packaging, and the application of the latter solely to boned or boneless cuts. The Commission is also of the opinion that the same comment applies to the Italian, Dutch and German language versions. Only the English and Danish language versions can, in its opinion, be In its opinion the Community regulations ambiguous. restrict the refunds in practice to quality cuts of meat. These do not include cheeks, offals, thin flanks and shin, which are used for processing. There The Commission goes on to recall that have always been many ways of using heading 02.01 of the Common Customs such meat in the Community, so that Tariff refers not only to meat but also to there is no ground for granting export offals. The absence of any reference in refunds. the wording of subheading ex 02.01 A II (a) 2, as it appears in the regulations concerning export refunds, to the offals mentioned in the Common Customs The Commission emphasizes that its Tariff shows that the Community regulations fixing the refunds continue legislature intended to exclude that expressly to exclude at least thin flanks product from the refunds. and shin from qualifying for the refunds. Thus, for example, in Regulation No 2373/79 of 26 October 1979 fixing the export refunds on beef and veal (Official According to the Commission that Journal L 272, p. 11), the wording of intention cannot be gainsaid by the subheading ex 02.01 A II (b) 4 ex (bb) is

1. In reply to a question from the Still according to the Commission, the Court, the Commission stated that the justification for separate packaging based words "packaged separately" in the on the need for inspection demonstrates second indent of the subheading in the illogicality of the argument that question, as it is worded in Regulations cheeks, offals, shin and thin flanks Nos 2538, 26'45, 3084 and 3205/74 and qualify for refunds where they are not Nos 494 and 735/75 refer, on a literal packaged separately. In the first place, interpretation of the text, to boned or that view would mean that boned or boneless cuts and not to the products boneless cuts could not be properly listed in that indent. inspected because although the requirement of separate packaging applies to cheeks, offals, shin and thin flanks, it does not apply to boned or The Court also asked why the boneless cuts. In the second place, it Commission had not included in the would be impossible to ascertain whether regulations referred to in the first the cuts of cheeks, offals, thin flanks and question a provision stipulating that shin had been mixed with any other meat products exported to the United States or not. In the Commission's view, the of America should be "packaged argument put. forward by the accused separately". would make it practically impossible to inspect exported frozen meats at all, which is obviously the reverse of the In reply the Commission pointed out that Community legislature's intention. exports of beef and veal from the Community to the United States of America have always been minimal. The On the basis of those considerations the requirement of separate packaging was Commission proposes the following reply omitted on the following grounds : to the question which has been referred to the Court for a preliminary ruling: — first, the American authorities apply very stringent supervision of imports "The description of goods under sub- of beef and veal which enable the risk heading ex 02.01 A II (a) 2 (dd) ex 22 in of fraud to be eliminated;

Decision

ι By an order of 7 November 1979 which was received at the Court on the 12th of that month, the Examining Magistrate at the Tribunal de Grande Instance, Paris, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of subheading ex 02.01 A II (a) 2 (dd) ex 22, appearing in the annexes to regulations of the Commission fixing the export refunds on beef and veal for the period from August 1974 to April 1975.

JUDGMENT OF 19. 6. 1980 — CASE 803/79

2 The question arose in the course of a criminal investigation concerning the chairman and managing director of a French company, charged with having made false declarations during the above-mentioned period in order to obtain export refunds for frozen, boned or boneless beef and veal exported to Greece. The customs authorities ascertained that the exported meat included the insides of cheeks, shin and thin flanks, which in its opinion did not qualify for refunds under the above-mentioned regulations.

3 The accused in the main proceedings challenges that interpretation. He maintains that the products in question would only have failed to qualify for the refunds if they had been packaged separately.

4 The question asked by the court making the reference is whether the wording of subheading ex 02.01 A II (a) 2 (dd) ex 22 in the annexes to Regulations of the Commission Nos 2010, 2243, 2538, 2645, 2943, 3084 and 3205/74 (Official Journal L 209, p. 34; L 238, p. 31; L 271, p. 52; L 283, p. 18; L 311, p. 38; L 327, p. 7; and L 341, p. 38) and Nos 180, 494 and 735/75 (Official Journal L 20, p. 11; L 53, p. 39; and L 73, p. 29) fixing the export refunds on beef and veal may be regarded as covering exports in cardboard boxes of cuts of forequarters of frozen, boned or boneless beef or veal, including certain cuts specified as insides of cheeks, thin flanks and shin, when the latter were not packaged separately, and whether they therefore qualify for export refunds.

“... Teilstücke ohne Knochen, mit Ausnahme von Kopffleisch, Schlachtabfällen Fleisch- und Knochendünnung und die Hesse, getrennt verpackt."

“... Boned or boneless, excluding the chaps, the offals, the thin flanks and the shin, packaged separately."

“... Udbenet med undtagelse af kæber, slagteaffald, slag og skank, stykkerne emballeret hver for sig".

6 In a second version, Regulations Nos 2538, 2645, 2943, 3084 and 3205/74 and Nos 180, 494 and 734/75 incorporated the same modification in all the language versions. It reads [in French] as follows:

“... Morceaux désossés:

— à l'exception des joues et des abats pour les exportations à destination des Etats-Unis

10 The reply to the question which has been asked should therefore be that the wording of subheading ex 02.01 A II (a) 2 (dd) ex 22 in the annexes to Regulations of the Commission Nos 2010, 2243, 2538, 2645, 2943, 3084/ and 3205/74 and Nos 180, 494 and 735/75, fixing the export refunds on beef and veal could not be regarded as covering exports of cuts of fore- quarters of frozen, boned or boneless beef or veal, specified as insides of cheeks, thin flanks and shin, or as enabling them to qualify for export refunds.

1 — See Translator's note ante p. 2018.

ROUDOLFF

Costs

1 1 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable; as the proceedings are, in so far as the accused in the main proceedings is concerned, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,