C-309/81

JUDGMENT OF THE COURT (FIRST CHAMBER) 9 DECEMBER 1982 '

H. P. Klughardt oHG v Hauptzollamt Hamburg-St. Annen (reference for a preliminary ruling from the Bundesfinanzhof) (Common organization of the market in beef and veal)

Case 309/81

1. Agriculture — Common organization o/the market — Beef and veal — Scope — Buffalo meat of non-domestic species — Inclusion (Counal ReguUtion No 425/77, art. 1) 2. Measures adopted by the institutions — Regulations — Duty to provide a statement of the reasons on which they are based — Scope (EEC Treaty, Art. 190)

1. Regulation (EEC) No 425/77 must be Article 190 of the Treaty requires that interpreted as meaning that buffalo the recitals in the preamble should meat of non-domestic species is explain in essence the measures taken, covered by the common organization without its being necessary to provide of the market in beef and veal. a specific statement of reasons in support of all the details which might 2. In relation to the statement of reasons be contained in such measures. upon which regulations are based,

In Case 309/81

Intervener: FEDERAL MINISTER OF FINANCE,

on the interpretation and validity of Council Regulation (EEC) No 425/77 of 14 February 1977 amending Regulation (EEC) No 805/68 on the common organization of the market in beef and veal and adapting Regu- lation (EEC) N o 827/68 and Regulation (EEC) No 950/68 on the Common Customs Tariff (Official Journal 1977, L 61, p. 1),

T H E C O U R T (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator

gives the following

compensatory amounts could be charged on the common organization of the only on meat of domestic bovine market in beef and veal (Official Journal, animals. The Hauptzollamt [Principal English Special Edition 1968 (I), p. 187) Customs Office] rejected the objection as covered only meat " of domestic bovine unfounded. An action which Klughardt animals". The field of application of the then brought before the Finanzgericht agricultural rules on beef and veal was [Finance Court] Hamburg was unsuc- amended by Article 1 of Council Regu- cessful. lation No 425/77 of 14 February 1977 (Official Journal 1977, L 61, p. 1).

"1. Was it the intention that wild buffalo meat should be included in the organization of the market in beef (c) Procedure and veal as a result of Council Regu- lation (EEC) No 425/77? The order for reference made on 27 2. If the answer to Question 1 is in the October 1981 was lodged at the Court affirmative: Is Council Regulation Registry on 3 December 1981. (EEC) No 425/77 invalid in so far as it infringes Article 190 of the In accordance with Article 20 of the Treaty establishing the European Protocol on the Statute of the Court of Economic Community?" Justice of the EEC, written observations were submitted by Klughardt, the (b) Rules applicable plaintiff in the main action, represented by Klaus Landry, Rechtsanwalt of It is not disputed that the goods in Hamburg, by the Council of the question must be classified under sub- European Communities, represented by heading 02.01 A II (b) 4 (bb) 33 of the its Legal Adviser, Bernhard Schloh, Common Customs Tariff: "Meat and acting as Agent, assisted by Arthur edible offals of the animals falling within Bräutigam, a member of its Legal heading No 01.01, 01.02, 01.03. or Department, and by the Commission of 01.04, fresh, chilled or frozen: Meat: . . . the European Communities, represented Of bovine animals: . . . Frozen: . . . by Jörn Sack, a member of its Legal Other: . . . Boned or boneless . . .

heading reads "Rinder (einschließlich Büffel), lebend" and the French version reads "Animaux vivants de requested the plaintiff in the main action l'espèce bovine, y compris les animaux du genre buffle" but the reference to buffalo does not appear in to supply information on the origin of the English version. . the buffalo meat in question.

In relation to the first question, "1. Wild buffalo meat was not included Klughardt points out that until it was in the common organization of the amended on the entry into force of market in beef and veal by Regu­ Regulation No 425/77, Regulation No lation No 425/77; 805/68 did not include wild buffalo or their meat in the common organization 2. If it was, however, so included, of the market in beef and veal. A change Regulation No 425/77 is invalid in in that situation as a result of Regulation so far as it infringes Article 190 of No 425/77 ought to have appeared the EEC Treaty." clearly in that regulation. It did not in fact do so. According to Klughardt, the recitals in The Commission observes first that it is the preamble to Regulation No 425/77 clear from the Common Customs Tariff do not mention buffalo or their meat or and from the organization of the market the fact that they are included in the that the words "bovine animals" include field of application of the common buffalo, since the description of the organization of the market and the products in tariff heading 01.02 reads system of levies. It is clear from Article 1 "Rinder (einschließlich Büffel), lebend" ' of Regulation No 425/77 that only live [Live animals of the domestic bovine animals of the domestic bovine species species (including buffalo)]. It follows (tariff subheading 01.02 A) and not live from that that subheading 02.01 A. II, animals of the wild buffalo species (tariff covering the meat of bovine animals, in subheading 01.02 B) are covered by the view of the wide definition of the words common organization of the market. It is "bovine animals" provided in tariff then inconsistent to interpret that regu­ heading 01.02, also includes buffalo lation as excluding from the field of meat. The Explanatory Notes to the application of the organization of the Customs Tariff of the European market live animals of the wild buffalo Communities on tariff heading 01.02 also species but including their meat. No such show that both the words "bovine distinction between wild buffalo and animals" and the word "buffalo" cover their meat may be inferred from the domestic and wild species. provisions of the regulation in question (Article 1 (2) (a), in conjunction with In order to determine whether an Article 9 (2) of Regulation No 805/68, individual case concerns domestic or as amended by Article 3 of Regulation wild animals, it is necessary to consider No 425/77). whether the species to which the animal belongs is a domestic species (cf In relation to the second question, judgment of 12 December 1973 in Case Klughardt stresses that the recitals in the 149/73 Otto Witt KG v Hauptzollamt preamble to Regulation No 425/77 do Hamburg-Eńcus [1973] ECR 1587). not contain any reasons explaining why Transposing that principle to this case, wild buffalo meat might be covered by the Commission is in no doubt that the the common organization of the market imported Australian buffalo meat is meat in beef and veal. If the first question is of "live animals of the domestic bovine answered in the affirmative, the regu­ species" within the meaning of the lation should, in the absence of any statement of reasons, be considered to be illegal in this regard. 1 — Please refer to previous footnotes.

Common Customs Tariff and the significance whether the animals in organization of the market. In view of question live individually in the domestic the Explanatory Notes to the Customs or wild state. If the Court were to follow Tariff of the European Communities, that course, it would not be necessary to such buffalo should in any event be examine further the two questions classified, so far as their zoological genus referred to the Court. is concerned, among domestic or water However, should the Court consider buffalo (Bubalus bubalus or Bubalus ami).itself to be bound by the wording of the In relation to the first question, the questions submitted for a preliminary Commission considers that Regulation ruling, the Commission suggests that the No 425/77 also covers the meat of following answer should be given : bovine animals which are not "live "1.

indispensable. At the time when Regu- Regulation No 425/77." lation No 425/77 was adopted, only one trader was affected by the new system, The Council agrees with the observations and that was purely because the customs submitted by the Commission in relation authorities of one Member State were to the delimitation of the class of unsure of the classification of the "animals of the domestic bovine species" product in question. From an economic in relation to that of animals of the non- point of view the amendment in question domestic species. was therefore of only marginal It points out that Regulation No 425/77

Regulation No Tariff as referring to bovine animals 425/77, which entered into force on which by their genus are domestic 1 April 1977, in no way changed that animals. On the other hand, it is of little situation.

Decision

1 By order of 27 October 1981 which was received at the Court on 3 December 1981, the Bundesfinanzhof [Federal Finance Court] referre: to the Court for a preliminary ruling under Article 177 of the EEC Treaty wo questions concerning the interpretation and validity of Council Regulation (EEC) N o 425/77 of 14 February 1977 amending Regulation (EEC) N o 805/68 on the common organization of the market in beef and veal and adapting Regulation (EEC) No 827/68 and Regulation (EEC) N o 950/68 on the Common Customs Tariff (Official Journal 1977, L 61, p. 1).

KLUGHARDT v HAUPTZOLLAMT HAMBURG-ST. ANNEN

2 The questions were raised in the course of an appeal brought by a German undertaking against the application of levies and monetary compensatory amounts by the customs authorities on the importation of a quantity of frozen boneless buffalo meat.

3 The importer claimed before the national court that the application of levies and monetary compensatory amounts was justified only if the buffalo meat was re-covered by the common organization of the market in beef and veal and that that was not the case since it was meat of Australian buffalo, which was wild buffalo. Regulation No 425/77 did not include wild buffalo meat in the common organization of the market in beef and veal and if it should be interpreted otherwise, that regulation would be invalid on the ground that it did not state the reasons on which it was based.

4 In order to enable it to determine those two questions, the Bundesfinanzhof referred to the Court for a preliminary ruling the following questions : " 1 . Was it the intention that wild buffalo meat should be included in the organization of the market in beef and veal as a result of Council Regu- lation (EEC) No 425/77? 2. If the answer to Question 1 is in the affirmative: Is Council Regulation (EEC) No 425/77 invalid in so far as it infringes Article 190 of the Treaty establishing the European Economic Community?"

9 Article 5 of the same regulation amends the provisions of the Common Customs Tariff on live animals of the bovine species, ' (heading 01.02) and on meat and edible offals of the bovine animals falling within heading 01.02, fresh, chilled or frozen (subheadings 02.01 A II, B II and C I). The amended version of tariff heading 01.02 distinguishes between animals of "Domestic species" and "Other", whereas there is no such distinction in tariff heading 02.01 in relation to meat and offals.

io It therefore follows from the provisions of Regulation No 425/77 that there is no distinction in either the Common Customs Tariff or the rules on the common organization of the market between meat of buffalo of domestic species and that of buffalo of non-domestic species.

u The plaintiff in the main action claims that a system whereby the live buffalo of non-domestic species was not covered by the common organization of the market whereas its meat was so included would be inconsistent. However, that argument concerns the question whether the distinctions made between bovine animals in Regulation No 425/77 are well founded, not the interpret- ation of that regulation.

i2 The answer to the first question should therefore be that Regulation No 425/77 must be interpreted as meaning that meat of buffalo of non- domestic species is covered by the common organization of the market in beef and veal.

I — Please refer to previous footnotes.

KLUGHARDT v HAUPTZOLLAMT HAMBURG-ST. ANNEN

i7 The answer to the second question should therefore be that consideration of the question has disclosed no factor of such a kind as to affect the validity of Regulation N o 425/77.

Costs

is The costs incurred by the Council of the European Communities and the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

OPINION OF MR REISCHL — CASE 309/81

On those grounds,

T H E C O U R T (First Chamber),

O P I N I O N O F M R ADVOCATE GENERAL REISCHL DELIVERED O N 14 OCTOBER 1982 '

Mr President, whether levies and monetary com- Members of the Court, pensatory amounts may be charged on meat of what was described as wild The action pending before the Bundes- buffalo, imported from Australia. finanzhof [Federal Finance Court] out of which the reference to be considered The following details in relation to the today arose concerns the question case must first be mentioned :

1 — Translated from the German.