C-266/90

OPINION OF MR TESAURO —CASE C-266/90

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 24 October 1991 *

Mr President, added sugar, in immediate packings' the Members of the Court, minimum price of ECU 60.80 per 100 kg net for products in immediate packings of a net capacity of more than 1 kg and at ECU 67.10 for products in immediate packings of 1. In the present case the Court is requested a net capacity of 1 kg or less. to define the term import price as used in Article 3(1) of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries1 ('the regulation'). Those minimum prices were calculated, as the Commission itself stated, on the basis of the prices notified by the Member States, the normal costs of packing also being The measure in question was adopted on included. The different price levels for the basis of Article 14 of Regulation (EEC) different capacities of containers is No 516/77, 2 in order to bring to an end the accounted for by the differing impact of the serious disturbances to which the cost of the packing on the price of the Community market was subject as a result product. of the marketing, at abnormally low prices, of Morello cherries imported from non-member countries.3 The import price for Morello cherries from non-member countries is in turn determined, pursuant to Anicie 3(1) of the To that end, the regulation lays down a regulation, on the basis of the FOB price in minimum price for the import of Morello the country of origin and of the costs of cherries into the Community and provides transport and insurance as far as the point for the application of a countervailing of entry into the customs territory of the charge for products not conforming to that Community. price.

2. The facts giving rise to the proceedings pending before the national court are rela­ tively simple. Over the period 5 December 3. In its written observations to the Court, 1985 to 10 September 1986, Soba, the the Commission contends that the question plaintiff in the main proceedings, cleared submitted by the national court should be through customs at the Göggingen office answered in the negative and that therefore, of the Hauptzollamt (Principal Customs in circumstances like those of the present Office), Augsburg ('the Hauptzollamť), a case, the countervailing charge may be total of 103 batches of stoned Morello lawfully applied. In its opinion, a distinction cherries in glass jars. On each occasion it must be drawn between the value of the enclosed with the customs declaration the goods, which includes all expenses incurred calculation of the reference price, which up to loading of the goods in the country of included not only the invoice price of the origin, and FOB price, which includes the Morello cherries but also the value of the costs incurred until the goods are loaded packing materials (glass jars, lids, labels, onto the means of transport only to the cardboard boxes and shrink-wrapping extent to which they have actually been materials) which it had made available to borne by the seller and are thus included in the Yugoslav supplier free of charge. the invoice.

The Hauptzołlarot initially accepted the That interpretation is not, in the declarations presented by Soba and did not Commission's view, contradicted by Article apply any countervailing charge to the 3(3) of the regulation, which refers to the imported Morello cherries. However, by an resale price, since, if the authorities in the amended notice of recovery it imposed a Member State of importation find that the countervailing charge of DM 80.02 per 100 packing costs have not been included in the kg net weight, requiring payment of DM invoice issued by the seller, those costs 1 134 138.17. cannot be taken into account, according to the Commission, when the impon price is worked out subsequently.

goods in question, without giving rise to any furthermore, as the Commission itself obligation on the customs authorities to take acknowledged, are not usually re-used. account of the packing in the event of the costs relating thereto not having been incurred by the seller and entered on the invoice. It should also be noted that the costs of the containers and packing materials made available to the seller free of charge were in fact borne by the importer and thus passed 4. Let me say straight away that that seems on in the retail price. to reflect an excessively formalistic approach which is liable to lead to misapplication of the regulation, distorting its purpose and scope. Against that background it is thus difficult to understand why a countervailing charge should be imposed on goods which are not in fact imported at a price falling below the In the first place, the literal arguments limit laid down by the regulation. advanced by the Commission can easily be countered by arguments of similar worth, to the effect that, according to commercial practice, the FOB price generally includes the value of the normal packing of the 5. The Commission itself appears to have goods and that, whatever the reasons, the conceded at the hearing that the application fact remains that Article 1(1) speaks of of the countervailing charge, in circum- 'Morello cherries... in immediate pack- stances like those of the present case, is not ings', thus referring not only to the product specifically justified from the economic but also to its packaging. point of view. However, it is of the opinion that the importer could avoid unjustified application of the charge by selling the packings to the exporter and then re-purchasing them so that their price can But above all, a logical and systematic inter- appear on the invoice. pretation of the provision in question shows the lack of any foundation for the solution proposed.

tative note prepared by Commission presented by Soba until some time had officials, discussed by the appropriate elapsed. management committee in October 1985 and notified to all the Member States, a note with which, according to the 6. Before concluding, I think it may be Commission, all the traders involved must appropriate to emphasize that the interpre- certainly have been familiar. tation of the provisions suggested by the Commission, besides conflicting with the In the first place, the interpretative note in aims of the regulation, is liable adversely to question cannot change the effect of a affect the conditions of competition as provision contained in a regulation and between economic agents by penalizing, secondly there is nothing to indicate that its without reason, those importers who obtain content was brought to the attention of the supplies from producers that are unable to traders concerned. On the contrary, the provide the requisite containers and to facts of the case show that the national create an unjustified obstacle to interna- customs authorities themselves, far from tional trade by allowing protective measures having clear views on the subject, did not to be applied against imported products that challenge the customs declarations are not marketed at abnormally low prices.

7. In the light of the foregoing considerations, I suggest that the question submitted by the Finanzgericht München be answered as follows:

Article 3(1) of Regulation N o 1626/85 is to be interpreted as meaning that, in determining the import price, the costs of the containers and packing materials made available free of charge by the buyer to the supplier must be regarded as components to be added to the price.