C-159/88
ECLI:EU:C:1989:629
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OPINION OF MR TESAURO — CASE C-159/88
O P I N I O N OF M R ADVOCATE GENERAL TESAURO delivered on 12 D e c e m b e r 1 9 8 9 *
Mr President, rule at issue is, therefore, as pointed out at Members of the Court, an earlier stage in the proceedings, an 'anti-avoidance rule', in so far as it is intended to limit the risk of the levy on rice being avoided where substantial quantities of that product are imported in 1. The national court seeks from this Court consignments which also contain slightly an interpretation of the rule for classifying larger quantities of broken rice. broken rice for the purpose of applying import levies.
2. The regulation in question gives no guidance as to the meaning of the term 'broken rice'. For that purpose recourse The problem arises when consignments of must be had to the definition contained in rice are imported which comprise frag- Annex A to Council Regulation (EEC) N o mented grains for the most part and, to a 1418/76 on the common organization of lesser extent, whole grains. the market in rice. 2 Points 2 and 3 of that annex give the following definitions:
I refer the Court to the Report for the '2. (a) Round-grain rice: rice, the grains of Hearing for the background to the case, but which are of a length not exceeding would point out that, pursuant to Article 2 5.2 mm and of a length/width ratio of Regulation (EEC) No 2729/75 of the of less than 2; Council, ' the levy applicable to such mixtures of rice and broken rice is the levy for the component predominating by weight where that component 'represents at least (b) Long-grain rice: rice, the grains of 9 0 % of the weight of the mixture'; where which are of a length exceeding neither of the two components accounts for 5.2 mm; 9 0 % of the total weight, the higher levy will apply, namely the levy for rice. The rule just cited is intended to reduce drastically any possibility that importers might import, (c) Measurement of the grains: grain under the description of broken rice (and measurements are taken on wholly thus enjoying the lower import levy), milled rice by the following method : consignments in which the proportion of broken grains is only slightly greater than that of whole grains, the latter in any event accounting for a significant percentage. The (i) take a representative sample from the consignment, * Original language: Iulian. 1 — Reguladon (EEC) No 2729/75 of the Council of 29 2 — Council Regulation (EEC) No 1418/76 of 21 June 1976 October 1975 (OJ 1975, L 281, p. 18) (OJ 1976, L 166, p. I).
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(ii) sieve the sample so as to retain broken rice and where, for the purposes of only whole grains, such measurement, account is also taken of whole grains which are not fully developed and are therefore smaller, the average figure (iii) carry out two measurements arrived at may well be rather low. In such consisting of 100 grains each circumstances, therefore, the length of a and find the average, large proportion of the grain fragments will exceed three-quarters of the average length of the whole grains. Application of the (iv) express the result in millimetres, provisions of Regulation No 2729/75, cited rounded off to one decimal earlier, will result in the consignment in place. question being classified as rice and not as broken rice — and the higher levy will be imposed. 3. Broken rice: grain fragments the length of which does not exceed three-quarters of the average length of the whole grain.'
In the light of those provisions, therefore, the rice must be classified having regard to 3. It is specifically with that problem that the dimensions of the grains, which are to the questions submitted by the national be measured in a representative sample of court are concerned. Essentially, the Court grains from the imported consignment. The is asked to state whether the average length broken grains are to be classified according of a whole grain is to be determined by to two terms of comparison: the length of measuring the whole grains present in the the grain fragments in the consignment and consignment, including the whole grains the 'average length of the whole grain'. which are less than fully developed, or whether, on the other hand, the average length is to be arrived at by reference to It seems clear to me that the length of the other criteria such as, in particular, the fragments is to be determined by direct standard dimensions of the various varieties measurement of a representative sample of rice included in the definitions relied on from the consignment. All that remains to in international trade. be established, therefore, is the method of arriving at the other relevant term, namely the average length of the whole grain.
In that connection, it must be noted that, as the broken rice is selected by a sieving In the Commission's view, recourse to process based on the length of the grains, external points of reference, either directly whole grains may frequently also be found or indirectly, is out of the question. The in consignments since, not being fully Commission emphasized two points in developed, they are smaller than fully particular. First, in its view there is no doubt developed grains of the variety to which the that the average length of the whole grain is broken grains belong. It follows that where to be determined by direct measurement of the average length of the whole grains is the length of the whole grains present in the determined by measuring the length of the consignment; in particular, the fact that whole grains present in the consignment of point 3 of Annex A to Regulation N o
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1418/76 does not provide for recourse t o actual area — to which the agricultural rules external criteria — such as the standard apply, so as to ensure that they operate dimensions of the various qualities of rice properly in relation to the prescribed according to international trade objectives. That applies also to import levies. practice — excludes that option entirely; in T h e instrument of levies is, of course, other words, the direct system of applied in response to the need to cover the measurement laid down, for rice, in point 2 difference between the Community price of that annex is, by implication, to be used and the world price for certain products. for classifying broken rice as well. In the Since those prices may vary in relation to second place, the Commission considers various products and qualities, it is that, when direct measurement is thus necessary to lay down rules for the classifi- carried out, the national authorities are cation of goods to ensure that the appro- required also to take account of whole priate levy is applied in each case. It is also grains which are not fully developed, clear that, where classification rules are not despite the fact that they will necessarily be applied correctly, the levy system operates smaller than those that have grown fully. in a distorted manner as a result. For example, if the higher levy prescribed for rice is applied to a consignment which in fact displays the objective characteristics of broken rice, that consignment will be subjected to an unjustified burden since the levy will exceed the difference between the 4. Before I analyse the Commission's thesis, internal price and the external price for that I think it is appropriate to bear in mind that product, with the risk that competition may the provisions of the Community no- well be distorted. menclature must be interpreted in such a way as to ensure certainty and uniformity of application. These are general and over- riding requirements which are based on the principle, reiterated by the Court, 3 according to which the classification of goods is essentially to take account of the objective characteristics of the product.
5. That having been said, it seems to me that it must be emphasized in the first place that Regulation N o 1418/76 does not Those requirements also apply to the inter- require the national authorities to determine pretation of a rule relating not to the the average length of the whole grains customs nomenclature but to agricultural exclusively by direct measurement of the nomenclature. 4 In the latter area, there is grains in the consignment. Point 3 of another reason for them to apply: the need Annex A of that regulation makes no to specify the products — and therefore the provision, positive or negative, in that regard. Accordingly, it does not seem to me 3 — See inter alia judgment of 25 May 1989 in Case 40/88 that there is any reason to exclude outright Weber [1989] ECR 1395. the possibility of reference to external 4 — With respect to the need for uniform interpretation, at criteria as well. It will be for the national least as a general rule, of customs and agricultural no- menclature, see the judgments of 5 July 1978 in Case 5/78 authorities, within the discretion accorded Milchfiuter [1978] ECR 1597, and of 28 March 1979 in to them by the regulation, to adopt the Case 158/78 Äiegi[1979] ECR 1103.
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system which will guarantee the most In other words, I consider that the objective classification, measuring operation in question must be carried out on a sample which has been selected to ensure that it is representative of the variety to which the broken fragments belong. Any other course can only lead to a result which does not reflect the objective characteristics of the goods in question. Furthermore, it would even seem that, in Another result is that the levy, system is certain cases at least, recourse to standard undermined since, in accordance with the dimensions is essential. It will be necessary Commission's thesis, it follows that, in all to rely on external criteria in cases where, probability, a higher rate will be imposed for example, no whole grain can be found without justification. Moreover, since the in the consignment in question. Again, as classification is then seen to rely on a was correctly pointed out, it may be wholly accidental factor (the presence of a necessary to refer, indirectly, to standard greater or lesser number of abnormal dimensions in order to decide whether or grains), the result will be wholly unfore- not it is appropriate to exclude from the seeable and traders will be deprived of any measurement operation grains which display certainty. Finally, for the same reasons, it characteristics which do not match those of would seem correct to conclude that the the variety under examination — such a criterion advocated by the Commission course may be necessary to avoid the risk of might lead, as a result of wholly fortuitous fraud in cases where particularly long grains circumstances, to goods being placed in of a variety different from that of the a category whose objective characteristics broken grains have been deliberately added they do not display. for the sole purpose of arriving at a higher average length than that appropriate to the variety in question, thus procuring the application of the lower levy.
In short, it seems to me that whole underde- veloped grains should not be taken into account in measuring the average length of whole grains within the meaning of point 3 of Annex A to Regulation N o 1418/76 if it 6. However, even if it is conceded that — in is wished to ensure that goods are classified in a manner which reflects the general appropriate cases, of course — priority must requirements of objectivity, certainty and be accorded to direct measurement to uniformity. determine the average length of the whole grains, I do not think that it is necessary in every case — as the Commission contends — to include in that operation the whole grains which are not fully developed. Those grains, which clearly depart from the norm and are contained in the consignment In addition, the fact that the need to work merely by accident, cannot, specifically for on the basis only of a representative sample that reason, be used as a proper point of of the imported variety is consistent with the reference for the application of the classifi- scheme of the regulation is confirmed by the cation rule and, consequently, for the rule fact that point 2 of the annex in question as to the rate of levy. expressly provides, in relation to rice
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comprising whole grains, that the is perfectly lawful, both under Community measurement of the grains is to be carried law and under the laws of the Member out on a 'representative sample from the States. I would also point out that the consignment'. Commission did not consider it possible, or appropriate, to adjust the rates of levy by increasing the rate applicable to broken rice 7. It will also be noted that the Commission of superior quality which is more likely than has not effectively denied that the other qualities to compete with rice made application of the criterion suggested by it up of whole grains. may give rise to the difficulties outlined earlier. However, it stated that the broken rice in question, in so far as it is used in the Netherlands market for food purposes, may in some degree compete with rice properly In those circumstances, the application of so called. Therefore, even if the imposition the levy applicable to rice to a product of a higher levy does not appear justified in which in fact displays the objective charac- the light of the objective characteristics of teristics of broken rice amounts to no more the product, which is still to be regarded as and no less than an obstacle to the broken rice, that levy must none the less be marketing of the latter product. I see no regarded as appropriate in so far as it justification for such an obstacle since ensures that, in certain markets, rice, broken rice is marketed in accordance with particularly of Community origin, is not the Community rules and satisfies a demand exposed to competition from imported which exists in certain areas of the market. broken rice. But even if that fact is disregarded, I consider in any event that it is inappropriate for such a result to be sought, indirectly, by In the first place, I would point out that the the distorted application of the relevant marketing of broken rice for food purposes classification rule.
8. In t h e light of t h e f o r e g o i n g observations, I think t h a t t h e national court's first t w o questions m a y be a n s w e r e d as follows:
'(1) P u r s u a n t t o p o i n t 3 of A n n e x A to Regulation N o 1 4 1 8 / 7 6 , the national auth- orities a r e n o t r e q u i r e d t o determine the "average length of the w h o l e g r a i n " b y direct m e a s u r e m e n t of the dimensions of the w h o l e grains occurring in the c o n s i g n m e n t of i m p o r t e d broken rice. T h e y m a y also have recourse t o external criteria, in p a r t i c u l a r the standard dimensions r e c o g n i z e d in inter- national t r a d e practice, w h e r e they consider it necessary to d o so to ensure t h a t the classification of t h e goods is c o n s o n a n t w i t h their objective c h a r a c - teristics.
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(2) However, in those cases where the "average length of the whole grain" is to be determined by measuring the dimensions of the whole grains occurring in the consignment of imported broken rice, the national authorities are required to carry out that operation on a sample which has been selected so as to render it representative of the variety of rice to which the broken grains belong. For that purpose, whole grains whose dimensions are not in conformity with those of the variety in question are to be excluded from the measuring operation, in particular grains which have not achieved full growth. In selecting the representative sample to be measured, the national authorities may adopt as a criterion the standard dimensions of the various varieties of rice recognized in international commercial practice.'
9. In view of the foregoing answer, it is unnecessary to consider the third question submitted by the national court.
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