C-338/90

OPINION OF MR DARMON — CASE C-338/90

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 17 January 1992 *

Mr President, subsequently demanded payment of duty in Members of the Court, the amount of DM 152 702 on the ground that switches containing no mercury fall not under the abovementioned subheading but under subheading 8536 5000 9990 in respect of which duty had not been suspended. 1. Council Regulation (EEC) No 3696/88 Hamlin Electronics applied to the of 18 November 1988 1 temporarily Hessisches Finanzgericht for a declaration suspended the autonomous Common that that notice was null and void. Customs Tariff duty on a number of products, in particular 'reed switches in the form of a glass capsule containing not more than three electrical contacts on metal arms 2 and a small quantity of mercury'. Those switches come under subheading 4. In support of its claim that the 8536 5000 9930. description set out in CN code ex 8536 5000 encompasses switches containing no mercury, the plaintiff in the main proceedings invokes three sets of arguments based on the actual wording of 2. The Hessisches Finanzgericht (Finance the measure, its ratio legis and Article 13 Or Court, Hesse) has referred to the Court the of the EEC Treaty. Let us examine them in question whether that definition also turn. encompasses reed switches containing no mercury.

suspension of duty no longer applies; the 12. The principles pertaining to tariff description thus covers switches containing suspension must be borne in mind. All no mercury. products imported into the Community from non-member countries are, in the absence of derogations laid down by the Community rules, liable to the duties set out 7. If the term 'containing not more than' in the Common Customs Tariff. As stated in refers only to the first phrase following it a Commission communication of ('three electrical contacts on metal arms'), 13 September 1989, 4 'the suspensions then of course a small quantity of mercury approved on the basis of Article 28 of the is required and the description does not Treaty constitute an exception to the cover switches containing no mercury. normal state of affairs since, for a given period, they permit non-payment of all (total suspension) or some (partial suspension) of the duties applicable to 8. Let me point out at once that the version imported goods'. in the Gebrauchszolltarif (German customs tariff manual), which states: 'switches ... containing a small quantity of mercury" — which would appear to exclude switches containing no mercury — merely provides guidance and is of no assistance to 3 us. 13. In that communication the Commission defined the role of tariff suspensions as 9. It does not seem to me, however, that a follows: 'The Commission considers that grammatical analysis of the relevant phrase customs duties have a particular economic in the various language versions of the function. Suspensions, which are intended Community measure in question, however fully or partially to cancel their effects over thorough it may be, can of itself supply an a given period, may be granted only for answer to the question raised. specific and valid reasons', in particular those 'allowing enterprises to obtain supplies 5 at a lower cost for a certain period'.

15. Regulations suspending tariff duties 18. There, the Court ruled that: thus provide for exemptions from the principle of the Common Customs Tariff set out in Articles 19 and 20 of the EEC Treaty. Should they not therefore be given a 'As is clear from the preambles to the strict interpretation? relevant Council regulations, the aim of suspending the autonomous Common Customs Tariff duties pursuant to Article 28 of the EEC Treaty is temporarily to meet the needs of the user industries of the 16. Just as the 'provisions of Community Community. In adopting such provisions the law and, in particular, of Council or Council must take account not only of those Commission regulations which create a right needs but also of the requirements of legal to benefits financed by Community funds certainty and of the difficulties confronting must be given a strict interpretation', 7so, to national customs administrations owing to my mind, must the provisions of a the wide range and complexity of the tasks Community regulation which suspends which they must carry out. customs duties normally levied by the Member States of the Community and which deprives the Community of resources. 8 It follows that the descriptions of goods on which customs duties have been suspended must be interpreted according to objective criteria derived from their wording and that they may not be applied contrary to their 17. In the Ethicon case, 9the Council and wording to other goods even if their properties the Commission sought from the Court a and application are no different from those strict interpretation of the provisions of a covered by the suspension. 10 regulation suspending tariff duties. At issue was whether the temporary suspension of the autonomous Common Customs Tariff duties provided for in a regulation for 'yarn wholly of polyglycollic acid' which was not produced in the Community could be extended to yarn containing 90% poly­

22. It should also be noted that, although since the Single European Act the suspension of duties in the Common 19. The first recital in the preambles to Customs Tariff is to be decided by the Regulation No 3696/88 and Regulation Council on a proposal from the No 1656/89 specifically states that Commission, 14 upon application by the 'production of the products referred to in Member States, it is apparently the practice, this regulation is at present inadequate or according to the explanations given at the non-existent within the Community and hearing by the Commission, to restrict the producers are thus unable to meet the needs benefit of tariff suspension to a product of user industries in the Community". It is which has formed the subject-matter of an noteworthy that neither of those regulations application by a State without the Council's gives any other reason for suspending the extending it to other products not tariff duty. mentioned in the application for suspension.

20. It would therefore appear that tariff 23. Examination of the ratio legis shows, suspensions can relate only to products that therefore, that the description does not are either unavailable or not available in cover switches containing no mercury. 12 sufficient quantities in the Community.

25. The plaintiff concludes from that issue in Regulations No 3696/88 and provision that the Community Regulations No 1656/89 with regard to their ratio legis No 3696/88 and No 1656/89 could not does not permit the benefit provided for have treated switches containing mercury (a therein to be extended to switches toxic and ecologically unsound product) containing no mercury. more favourably than switches containing no mercury by excluding the latter from the benefit of tariff suspension. 29. If that measure, as interpreted, were shown to be contrary to the objective set 26. That argument calls for the following out in Article 130r(2) of the Treaty, and on brief observations. the assumption that that provision is not purely in the nature of a programme, then the problem of its validity could arise, but 27. While it is certainly permissible to look not that of its application to products which to the articles of the Treaty in order to do not come within its scope. interpret a provision of secondary legis­ lation, that is possible only where that provision gives rise to a difficulty in inter­ pretation and where it leaves a margin of 30. It follows that none of the arguments discretion to the interpreter. based on the wording of the measure, on its ratio legis or on Article 130r of the Treaty supports the contention that the description 28. That, as we have seen, is not the case. in question encompasses switches containing The strict interpretation of the provision at no mercury.

31. I therefore propose that the Court rule as follows:

'The description of reed switches set out in CN code ex 8536 5000 in the Annex to Council Regulations (EEC) No 3696/88 of 18 November 1988 and No 1656/89 of 29 May 1989 both temporarily suspending the autonomous Common Customs Tariff duties on certain industrial products (in the microelec­ tronic and related sectors) is to be interpreted as meaning that such reed switches must contain a small quantity of mercury in order to qualify for the suspension in question.'