C-77/83

JUDGMENT OF 29. 2. 1984 — CASE 77/83

In Case 77/83

REFERENCE to the Court under Article 177 of the EEC Treaty by the First Civil Division of the Corte Suprema di Cassazione [Supreme Court of Cassation] for a preliminary ruling in the proceedings pending before that court between

SRL CILFIT in liquidation, and 54 Others, Rome,

and

MINISTERO DELLA SANITÀ [Ministry of Health], Rome,

composed of: T. Koopmans, President of Chamber, Lord Mackenzie Stuart and G. Bosco, Judges,

Advocate General: G. F. Mancini Registrar: P. Heim

gives the following

CILFIT ν MINISTERO DELLA SANITA

JUDGMENT

Facts and Issues

That regulation, Article 2 of which I — Facts and written procedure provides that in trade with non-member countries the levying of any charge having effect equivalent to a customs duty is prohibited, applies by virtue of By summons served on the Italian Article 1 thereof to the products listed in Minister for Health on 18 September the Annex to the regulation. Those 1974, the plaintiffs in the main products include: proceedings brought an action for the recovery of sums which they had paid in respect of health-inspection levies on the "ex 05.15 Β Animal products not importation of certain quantities of wool. elsewhere specified or included; dead The charge, which had been 30 lire per animals of Chapter I, unfit for human quintal of imported wool since 1947, was consumption". increased to 700 lire by Law No 30 of 30 January 1968. According to the plaintiffs, the increase from 30 lire to 700 Exactly like Annex II to the Treaty, the lire was due to a material transcription Annex to Regulation No 827/68 error which occurred during the specifies the products concerned by legislative process. That error was reference to the Common Customs corrected by Law No 1239 of 30 Tariff description. Chapter 5 of the tariff December 1970, which reduced the forms part of Section I — live animals; amount in question. However, since the animal products — which includes inter 1970 law did not take effect retro­ alia Live animals (01), meat, (02), fish, actively, the plaintiffs applied for crustaceans and molluscs (03), milk and repayment of the difference between the dairy products (4) and products of two amounts for the period between animal origin not elsewhere specified or 1968 and 1970. included (05), such as unworked hair (05.01), fish waste (05.05); ivory (05.09), natural sponges (05.13) and the residual After the Tribunale di Roma [District category under heading 05.15 mentioned Court, Rome] had dismissed their above. Note 1 to Chapter 5 states application, the plaintiffs in the main expressly that that chapter does not proceedings lodged an appeal, main­ include "animal textile materials, other taining inter alia that the 1968 law was than horsehair and horsehair waste inapplicable following the adoption of (Section X I ) " .

On 4 October 1979 the plaintiffs in the main proceedings appealed against that In its judgment of 6 October 1982 in judgment to the Corte di Cassazione. In Case 283/81 Sri CILFITand Lanificio di its submissions, seeking dismissal of the Gavardo SpA ν Ministry of Health [1982] appeal, the Ministry of Health invited ECR 3415, the Court gave the following the Corte di Cassazione itself to ruling on that question : determine the question thus raised, main­ taining that the circumstances of fact were so obvious as to exclude any possibility of interpretative doubt and "The third paragraph of Article 177 of therefore to render unnecessary any the EEC Treaty must be interpreted as request for a preliminary ruling from the meaning that a court or tribunal against Court of Justice. The plaintiffs on the whose decisions there is no judicial other hand maintained that since a remedy under national law is required, question as to the interpretation of a where a question of Community law is regulation had been raised before a court raised before it, to comply with its against whose decisions there was no obligation to bring the matter before the judicial remedy under national law, the Court of Justice, unless it has established court could not, by virtue of the third that the question raised is irrelevant or paragraph of Article 177 of the Treaty, that the Community provision in escape the obligation to bring the matter question has already been interpreted by before the Court of Justice. the Court of Justice or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such In view of those conflicting arguments, a possibility must be assessed in the light by order of 27 March 1981 the Italian of the specific characteristics of Com-

Pursuant to Article 20 of the Protocol on "Is wool included, under the heading the Statute of the Court, written obser- 'Animal products not elsewhere specified vations were submitted by the plaintiffs or included' for which the Common in the main proceedings, represented by Customs Tariff heading is 05.15, among Guido Scarpa of the Milan Bar and the products covered by the common Giorgio Stella Richter of the Rome Bar, organization of the markets provided for by the Government of the Italian by Regulation (EEC) No 827/68 of the Republic, represented by the Avvocato Council of 28 June 1968 and listed in the dello Stato, Sergio Laporta, and by Annex thereto?" the Commission of the European Com- munities, represented by its Legal Adviser, Gianluigi Campogrande, acting as Agent. In the statement of grounds of the order making the reference, the Italian Corte di Cassazione states that the correct application of Community law to the Upon hearing the report of the Judge- question raised in the main proceedings Rapporteur and the views of the is not so obvious as to leave no scope for Advocate General, the Court decided to any reasonable doubt. It states that the open the oral procedure without any effect of the view put forward by the preparatory inquiry. Ministry of Health, whereby for the purposes of the correct identification of "animal products not elsewhere specified By order of 9 November 1983 the Court or included" reference should be made decided pursuant to Article 95 (1) of the to the detailed description in the Rules of Procedure to assign the case to Common Customs Tariff nomenclature, the First Chamber.

A — Observations of the plaintiffs in the main proceedings Accordingly, the only question is whether or not wool is to be regarded as an agricultural product within the meaning of Article 38 of the Treaty and According to the wool undertakings, the as an "animal product" within the plaintiffs in the main proceedings, there is meaning of the Annex to Regulation N o no doubt that the wool in question in the 827/68. An affirmative answer to that main proceedings is included among the question is called for. products listed in the Annex to Regu- lation N o 827/68, namely under the heading "Animal products not elsewhere specified or included". In support of that Β — Observations of the Italian Govern­ view, they emphasize in the first place ment that wool should be treated as an agri- cultural product within the meaning of Article 38 of the Treaty since by its very According to the Government of the nature it is a product of first-stage Italian Republic Regulation N o 827/68 processing of animal origin. The was only able to set up a common plaintiffs add that certain provisions of organization of the market for categories Italian law likewise treat wool as a of products regarded as agricultural product of animal origin. products by virtue of Article 38 (3) of the Treaty and included as such in the list in Annex II thereto. The Italian The plaintiffs in the main proceedings go Government observes that in Annex II to on to point out that, in pursuance of the Treaty the descriptions of products Article 38 (3) of the Treaty, the Council of animal origin are based exactly on the adopted in 1962 and thereafter certain Customs Cooperation Council nomen­ regulations setting up a common organ- clature and correspond to those sub­ ization of the agricultural markets in sequently adopted in the Common " specific products. According to the Customs Tariff. Identical descriptions plaintiffs, Regulation N o 827/68 falls appear in the Annex to Regulation N o within that category by bringing within 827/68. In this case, both in Annex II of the common organization of the markets the Treaty and in the Annex to the products of animal origin not specified above-mentioned regulation, the cate­ or included elsewhere. In fact, the regu- gory "Animal products not elsewhere lation in question as it were completes specified or included" is identified by the phase of specific regulations (product reference to tariff heading 05.15. If that by product) by extending the Com- category is the same as that specifically munity régime to all products of animal covered by heading 05.15 and if, in turn, origin not specified or included else- the context thereof corresponds to that where, that is to say not specified or of the Common Customs Tariff, any included in the specific regulations. It assessment as to whether or not a was necessary in respect of those residual particular product of animal origin is agricultural products to abolish charges included under heading 05.15 must having an equivalent effect on imports necessarily take account of the expla-

natory notes to Chapter 5 of the Customs Cooperation Council no- Common Customs Tariff. The Italian menclature, it is appropriate to refer to Government observes that it is apparent, the said Explanatory Notes in order to without any possibility of error, from interpret that annex". Note N o 1 to that chapter that no animal textile materials other than The Commission adds that, according to horsehair and horsehair waste can be Rule 3 (a) of the Explanatory Notes to regarded as falling within any of the 15 the above-mentioned nomenclature, the tariff headings which that chapter heading which provides the most specific comprises. Moreover, specific provision description must take priority over is made for wool in Chapter 53 of headings providing a more general the Common Customs Tariff. description, and that it was in application of that principle that the Court took the Consequently, the Italian Government view in the above-mentioned judgment considers that wool is not covered by that the inclusion of a given product of the description "Animal products not animal origin under a specific heading elsewhere specified or included" given in of the Customs Cooperation Council the Annex to Regulation No 827/68. nomenclature meant that that product did not fall within general heading 05.15. Applying that interpretative criterion, the Commission points out that wool is the C — Observations of the Commission subject of a specific chapter in the nomenclature, Chapter 53. The Commission of the European Com- munities takes the same position as that In consequence, the Commission pro- adopted by the Italian Government. It poses that the question submitted by the also emphasizes that Regulation No Italian Corte di Cassazione be answered 827/68 cannot apply, by virtue of Article as follows: 38 (3) of the Treaty, to products other than those listed in Annex II to the "Wool is not included in the products Treaty. It states that the description in covered by the common organization of question, as it appears in the Annex to the markets established by Regulation Regulation No 827/68, repeats to the (EEC) No 827/68 of the Council of letter the description given in Annex II. 28 June 1968." Therefore, the Commission considers that the problem raised by the national court is that of determining whether wool falls within heading "05.15 Animal III — O r a l p r o c e d u r e products not elsewhere specified or included" in Annex II to the Treaty. The plaintiff companies in the main action, represented by Guido Scarpa, of As regards the interpretation of Annex II the Milan Bar, and the Commission of to the Treaty, the Commission goes on the European Communities, represented to observe that in its judgment of 25 by its Legal Adviser, Gianluigi Campo- March 1981 in Case 61/80 Coöperatieve grande, acting as Agent, presented oral Stremsel [1981] ECR 851 the Court argument at the sitting on 8 December stated that "Since there are no 1983. Community provisions explaining the concepts contained in Annex II to the The Advocate General delivered his EEC Treaty and that annex adopts word opinion at the sitting on 9 February for word certain headings of the 1984.

CILFIT ν MINISTERO DELLA SANITA

5 It follows that the object of the regulation is to establish a common organ­ ization of the markets for products in Annex II to the Treaty not yet governed by other common organizations. Annex II contains, according to Article 38 (3) of the Treaty, the list of products subject to the provisions of Articles 39 and 46 of the Treaty relating to the Common Agricultural Policy.

6 Although therefore Article 1 of the regulation provides that the common organization established by the regulation is to cover the products listed in the annex thereto and although that annex contains, inter alia, the following description: "ex 05.15 Β animal products not elsewhere specified or included; dead animals of Chapter I, unfit for human consumption", those words cannot have a meaning different from that which they have in Annex II to the Treaty which also contains them.

7 Since there are no Community provisions explaining the concepts contained in Annex II to the Treaty and that annex adopts word for word certain headings of the Common Customs Tariff, it is appropriate to refer to the established interpretations and methods of interpretation relating to the Common Customs Tariff in order to interpret the annex. Annex II itself refers moreover to the headings and subheadings of the tariff to identify the products listed.

8 Chapter V of the Common Customs Tariff, which includes the subheading, 05.15 B, at issue in this case, forms part of Section I of the tariff, live animals, animal products, which covers inter alia live animals, meat, fish, crustaceans and molluscs, milk and dairy products and "products of animal origin, not elsewhere specified or included"; the latter fall under Chapter 5 which includes inter alia human hair, fish waste, ivory and natural sponges. "Wool is the subject of Chapter 53, "wool and other animal hair", which comes under Section XI "textiles and textile articles".

1 3 The question asked must therefore be answered to the effect that the phrase "ex 05.15 Β animal products not elsewhere specified or included" contained in the Annex to Regulation N o 872/68 does not cover wool.

CILFIT ν MINISTERO DELLA SANITÀ

Costs

1 4 The costs incurred by the Government of the Italian Republic and by the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so fai- 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 on costs is a matter for that court.

On those grounds,

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