C-143/93

Inspecteur der Invoerrechten en Accijnzen,

on the interpretation and validity of Commission Regulation (EEC) N o 482/74 of 27 February 1974 on the classification of goods within subheading N o 23.04 B of the Common Customs Tariff (OJ 1974 L 57, p. 23),

T H E COURT,

composed of: G. C. Rodriguez Iglesias, President, C. N . Kakouris and G. Hirsch (Presidents of Chambers), G. F. Mancini, F. A. Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray (Rapporteur), P. Jann, H. Ragnemalm and L. Sevón, Judges,

* Language of the case: Dutch.

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after hearing the oral observations of Gebroeders van Es Douane Agenten BV, rep- resented by E. H . Pijnacker Hordijk, and T. P. J. van Oers, of the Hague Bar, and the Commission of the European Communities, represented by H. van Lier and J. Stuyck, at the hearing on 18 May 1994,

after hearing the Opinion of Advocate General Gulmann at the sitting on 12 July 1994,

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having regard to the order reopening the proceedings of 25 January 1995,

after hearing the Opinion of Advocate General Elmer at the sitting on 20 June 1995,

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Heading 23.04 concerned Oil-cake and other residues (except dregs) resulting from the extraction of vegetable oils';

t Heading 23.04 is subdivided as follows:

'A.Oil-cake and other residues resulting from the extraction of olive oil

B.Other.'

5 O n 16 January 1969 the Council adopted Regulation (EEC) N o 97/69 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (OJ, English Special Edition 1969 (I), p . 12), which authorized the Commis- sion to adopt the provisions required for the application of the Common Customs Tariff Nomenclature as regards classification of goods.

— starch content: less than 4 5 %

— protein content (nitrogen content x 6.25): not less than 11.5%.

2. Products of an oil content of not less than 3 % and not more than 8%:

— starch content: less than 4 5 %

— protein content (nitrogen content x 6.25): not less than 1 3 % .

Moreover, such residues shall not contain ingredients which are not obtained from maize grains.'

2302 10 10 with a starch content not exceeding 3 5 % by weight

2302 10 90 other'.

Heading 2306 90 91 states as follows:

'2306 Oilcake and other solid residues, whether or not ground or in the form of pellets, resulting from the extraction of vegetable fats or oils, other than those of heading N o 2304 or 2305:

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2306 90 91 of germ of maize

2306 90 93 of sesame seeds

2306 90 99 other.'

s Commission Regulation (EEC) N o 315/91 of 7 February 1991 amending Regu- lation N o 2658/87 (OJ 1991 L 37, p. 24), which entered into force on 1 April 1991, I-465

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added an additional note in Chapter 23 of the combined nomenclature regarding heading 2306 90 91. That additional note is worded as follows:

VAN ES DOUANE AGENTEN v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

1987 with those established on the basis of the combined nomenclature in certain regulations concerning the classification of goods (OJ 1989 L 71, p. 20), Regulation (EEC) N o 2723/90 of 24 September 1990 replacing the codes established on the basis of the Common Customs Tariff Nomenclature in force on 31 December 1987 with those established on the basis of the combined nomenclature in certain regulations concerning the classification of goods (OJ 1990 L 261, p . 24) and Regu- lation (EEC) N o 2080/91 of 16 July 1991 replacing the codes established on the basis of the Common Customs Tariff Nomenclature in force on 31 December 1987 with those established on the basis of the combined nomenclature in certain regulations concerning the classification of goods (OJ 1991 L 193, p. 6).

n The preamble to Regulation N o 646/89 states that:

'Whereas Article 15(1) of Regulation (EEC) N o 2658/87 lays down that the codes and descriptions of goods established on the basis of the combined nomenclature are to replace those established on the basis of the nomenclature of the Common Customs Tariff in force on 31 December 1987;

Whereas for the sake of clarity and simplification those of the said regulations which are still of practical significance and in which the transposition will involve no changes of substance should be amended accordingly.'

12 The first of those two recitals is reproduced in the same terms in Regulation N o 2723/90. It is followed by another recital which states as follows:

6 After a check had been carried out by the Inspector of Import and Excise Duties, Rotterdam, the goods in question were reclassified under subheading 2302 10 90 of the combined nomenclature on the basis of Regulation N o 482/74. The analysis carried o u t had revealed a fat content of less than 3 % , a protein content (calculated by weight on the dry product) of not less than 11.5% and a starch content (calcu- lated by weight on the dry products) greater than 4 5 % . An agricultural levy total- ling H F L 1 197 831 was consequently imposed in respect of the four consign- ments.

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VAN ES DOUANE AGENTEN v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

i7 After a complaint against the decision to classify the product under heading 2302 10 90 had been rejected, an action was brought before the Tarifiecommissie (Administrative Court for Customs and Excise), Amsterdam, on 1 October 1990.

is Van Es disputes the application of Regulation N o 482/74 to the present case. It considers that that regulation lapsed as a result of the repeal of Regulations Nos 950/68 and 97/69 by Regulation N o 2658/87. Furthermore, if Regulation N o 482/74 were still applicable, it would be invalid on the ground that Article 1 thereof amends the content of heading 23.04 B of the Common Customs Tariff.

i9 Taking the view that the outcome of the dispute pending before it required an interpretation and an assessment of the validity of the Community rules in ques- tion, the national court decided to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

2i Van Es considers that the repeal of Regulation N o 97/69 led to the elimination of Regulation N o 482/74. In its view, a regulation lapses when the measure on which it is based is repealed, unless that regulation is given a new legal basis, which was not the case with regard to Regulation N o 482/74.

22 In order to establish whether, as Van Es claims, Regulation N o 482/74 has lapsed as a result of the repeal of Regulation N o 97/69, on 1 January 1988, it must first be examined whether the Council laid down rules in Regulation N o 2658/87 in respect of the status of measures adopted by the Commission on the basis of the regulation which had been repealed. Only if Regulation N o 2658/87 is silent in that regard, is it necessary to examine whether there is a general principle of Com- munity law which may be applied in the present case.

23 T h e second s u b p a r a g r a p h of Article 15(1) of R e g u l a t i o n N o 2 6 5 8 / 8 7 m e r e l y refers t o a m e n d m e n t s of C o m m u n i t y acts setting o u t t h e tariff or statistical n o m e n c l a - ture; that indicates therefore that the Council in no way intended to treat all those acts as having lapsed merely because Regulation N o 97/69 had been repealed.

24 That conclusion is confirmed by the penultimate recital in the preamble to Regu- lation N o 2658/87. Although it states that 'following the setting-up of the com- bined nomenclature, numerous Community acts in particular in the field of the

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28 In providing that Community acts setting out the tariff or statistical nomenclature are to be amended accordingly by the Commission, the second subparagraph of Article 15(1) implements that principle.

29 Contrary to the Commission's contention in its written observations, that provi- sion does not simply empower it to make technical adjustments to Community acts in line with the new combined nomenclature. It requires the Commission expressly to amend the regulations adopted on the basis of Regulation N o 97/69 which were still of practical significance at the time of the adoption of the combined nomenclature, so that individuals may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly. In the absence of such amendments, it may prove difficult for individuals to ascertain precisely what their legal position is. Moreover, the Commission itself acknowledged in the pre- amble to Regulations N o 646/89 and N o 2723/93 that certain acts adopted on the basis of the Common Customs Tariff Nomenclature were of virtually no further practical significance following the entry into force of Regulation N o 2658/87 and that it was therefore necessary 'for the sake of clarity and simplification' to amend such regulations as were still of practical significance.

30 The existence of an obligation on the part of the Commission expressly to amend such regulations adopted on the basis of Regulation N o 97/69 as retained practical significance when the combined nomenclature was drawn up is, furthermore, con- firmed by the use in the English and Spanish versions of the wording 'shall be amended' and 'serán modificados', which is not contradicted in any way by the other language versions.

34 In view of the answer to Question 1, it is not necessary to answer Question 2.

Costs

35 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

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O n those grounds,

Jann Ragnemalm Sevón

Delivered in open court in Luxembourg on 13 February 1996.

R. Grass G. C. Rodríguez Iglesias

Registrar President

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