61979J0803

1 . COMMUNITY LAW - INTERPRETATION - AMBIGUOUS TEXT - TELEOLOGICAL INTERPRETATION

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - BEEF AND VEAL - CUTS OF FOREQUARTERS OF FROZEN , BONED OR BONELESS MEAT SPECIFIED AS INSIDES OF CHEEKS , THIN FLANKS AND SHIN - EXCLUSION FROM SUBHEADING EX 02 . 01 A II ( A ) 2 ( DD ) EX 22 , AS INCORPORATED INTO THE AGRICULTURAL REGULATIONS - POSSIBILITY OF QUALIFYING FOR EXPORT REFUNDS - NONE

( REGULATIONS OF THE COMMISSION NOS 2010 , 2243 , 2538 , 2645 , 2943 , 3084 AND 3205/74 AND NOS 180 , 494 AND 735/75 )

1 . WHERE THE TEXT OF A PROVISION IS AMBIGUOUS IT SHOULD BE INTERPRETED IN THE LIGHT OF THE INTENTION AND PURPOSE OF THE REGULATIONS OF WHICH IT FORMS PART .

2 . THE WORDING OF SUBHEADING EX 02 . 01 A II ( A ) 2 ( DD ) EX 22 APPEARING IN THE ANNEXES TO REGULATIONS OF THE COMMISSION NOS 2010 , 2243 , 2538 , 2645 , 2943 , 3084 AND 3205/74 AND NOS 180 , 494 AND 735/75 FIXING THE EXPORT REFUNDS ON BEEF AND VEAL CANNOT BE REGARDED AS COVERING EXPORTS OF CUTS OF FOREQUARTERS OF FROZEN , BONED OR BONELESS BEEF OR VEAL , SPECIFIED AS INSIDES OF CHEEKS , THIN FLANKS AND SHIN , OR AS ENABLING THEM TO QUALIFY FOR EXPORT REFUNDS .

IN CASE 803/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE ( COURT OF FIRST INSTANCE ), PARIS , FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT AGAINST

GERARD ROUDOLFF

ON THE INTERPRETATION OF REGULATIONS OF THE COMMISSION NOS 2010 , 2243 , 2538 , 2645 , 2943 , 3084 AND 3205/74 ( OFFICIAL JOURNAL L 209 , P . 34 ; L 238 , P . 31 ; L 271 , P . 52 ; L 283 , P . 18 ; L 311 , P . 38 ; L 327 , P . 7 ; AND L 341 , P . 38 ) AND NOS 180 , 494 AND 735/75 ( OFFICIAL JOURNAL L 20 , P . 11 ; L 53 , P . 39 ; AND L 73 , P . 29 ) FIXING THE EXPORT REFUNDS ON BEEF AND VEAL , IN ORDER TO DETERMINE WHETHER CUTS OF FROZEN , BONED OR BONELESS BEEF OR VEAL SPECIFIED AS INSIDES OF CHEEKS , THIN FLANKS AND SHINS , WHEN NOT PACKED SEPARATELY , QUALIFY FOR EXPORT REFUNDS ,

1 BY AN ORDER OF 7 NOVEMBER 1979 WHICH WAS RECEIVED AT THE COURT ON THE 12TH OF THAT MONTH , THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE , PARIS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF SUBHEADING EX 02.01 A II ( A ) 2 ( DD ) EX 22 , APPEARING IN THE ANNEXES TO REGULATIONS OF THE COMMISSION FIXING THE EXPORT REFUNDS ON BEEF AND VEAL FOR THE PERIOD FROM AUGUST 1974 TO APRIL 1975 .

2 THE QUESTION AROSE IN THE COURSE OF A CRIMINAL INVESTIGATION CONCERNING THE CHAIRMAN AND MANAGING DIRECTOR OF A FRENCH COMPANY , CHARGED WITH HAVING MADE FALSE DECLARATIONS DURING THE ABOVE-MENTIONED PERIOD IN ORDER TO OBTAIN EXPORT REFUNDS FOR FROZEN , BONED OR BONELESS BEEF AND VEAL EXPORTED TO GREECE . THE CUSTOMS AUTHORITIES ASCERTAINED THAT THE EXPORTED MEAT INCLUDED THE INSIDES OF CHEEKS , SHIN AND THIN FLANKS , WHICH IN ITS OPINION DID NOT QUALIFY FOR REFUNDS UNDER THE ABOVE-MENTIONED REGULATIONS .

3 THE ACCUSED IN THE MAIN PROCEEDINGS CHALLENGES THAT INTERPRETATION . HE MAINTAINS THAT THE PRODUCTS IN QUESTION WOULD ONLY HAVE FAILED TO QUALIFY FOR THE REFUNDS IF THEY HAD BEEN PACKAGED SEPARATELY .

4 THE QUESTION ASKED BY THE COURT MAKING THE REFERENCE IS WHETHER THE WORDING OF SUBHEADING EX 02.01 A II ( A ) 2 ( DD ) EX 22 IN THE ANNEXES TO REGULATIONS OF THE COMMISSION NOS 2010 , 2243 , 2538 , 2645 , 2943 , 3084 AND 3205/74 ( OFFICIAL JOURNAL L 209 , P . 34 ; L 238 , P . 31 ; L 271 , P . 52 ; L 283 , P . 18 ; L 311 , P . 38 ; L 327 , P . 7 ; AND L 341 , P . 38 ) AND NOS 180 , 494 AND 735/75 ( OFFICIAL JOURNAL L 20 , P . 11 ; L 53 , P . 39 ; AND L 73 , P . 29 ) FIXING THE EXPORT REFUNDS ON BEEF AND VEAL MAY BE REGARDED AS COVERING EXPORTS IN CARDBOARD BOXES OF CUTS OF FOREQUARTERS OF FROZEN , BONED OR BONELESS BEEF OR VEAL , INCLUDING CERTAIN CUTS SPECIFIED AS INSIDES OF CHEEKS , THIN FLANKS AND SHIN , WHEN THE LATTER WERE NOT PACKAGED SEPARATELY , AND WHETHER THEY THEREFORE QUALIFY FOR EXPORT REFUNDS .

5 DURING THE PERIOD IN QUESTION IN THE PRESENT CASE THERE WERE TWO VERSIONS OF THE DISPUTED SUBHEADING , THE FIRST , WHICH APPEARED IN REGULATIONS NOS 2010 AND 2243/74 , BEING WORDED IN THE SIX LANGUAGES OF THE COMMUNITIES AS FOLLOWS :

' ' . . .

MORCEAUX DESOSSES , A L ' EXCEPTION DES JOUES , DES ABATS , DU FLANCHET ET DU JARRET , EMBALLES SEPAREMENT : ' '

' ' . . .

PEZZI DISOSSATI , ESCLUSI LE GUANCE , LE FRATTAGLIE , LA PANCIA , LA TIBIA E IL MUSCOLO ADERENTE , CONFEZIONATI SEPARATAMENTE . ' '

' ' . . .

DELEN , ZONDER BEEN , MET UITZONDERING VAN KOPVLESS , SLACHTAFVALLEN , DE WANG ON DE SCHENKEL , AFZONDERLIJK VERPAKT . ' '

' ' . . .

TEILSTUCKE OHNE KNOCHEN , MIT AUSNAHME VON KOPFFLEISCH , SCHLACHTABFALLEN FLEISCH- UND KNOCHENDUNNUNG UND DIE HESSE , GETRENNT VERPACKT . ' '

' ' . . .

BONED OR BONELESS , EXCLUDING THE CHAPS , THE OFFALS , THE THIN FLANKS AND THE SHIN , PACKAGED SEPARATELY . ' '

' ' . . .

UDBENET MED UNDTAGELSE AF KAEBER , SLAGTEAFFALD , SLAG OG SKANK , STYKKERNE EMBALLERET HVER FOR SIG ' ' .

6 IN A SECOND VERSION , REGULATIONS NOS 2538 , 2645 , 2943 , 3084 AND 3205/74 AND NOS 180 , 494 AND 734/75 INCORPORATED THE SAME MODIFICATION IN ALL THE LANGUAGE VERSIONS . IT READS ( IN FRENCH ) AS FOLLOWS :

' ' . . .

MORCEAUX DESOSSES :

- A L ' EXCEPTION DES JOUES ET DES ABATS POUR LES EXPORTATIONS A DESTINATION DES ETATS-UNIS

- A L ' EXCEPTION DES JOUES , DES ABATS , DU FLANCHET ET DU JARRET , EMBALLES SEPAREMENT , . . . ' '

7 FROM A LINGUISTIC POINT OF VIEW THE QUESTION IS WHETHER THE WORDS ' ' EMBALLES SEPAREMENT ' ' ( PACKAGED SEPARATELY ) REFER TO ' ' MORCEAUX DESOSSES ' ' ( BONED OR BONELESS CUTS ) OR WHETHER THEY REFER ON THE CONTRARY TO THE EXCEPTION MADE FOR ' ' LES JOUES , LES ABATS , LE FLANCHET ET LE JARRET ' ' ( THE CHAPS , THE OFFALS , THE THIN FLANKS AND THE SHIN ). ALTHOUGH IN THE DIFFERENT VERSIONS THERE ARE GRAMMATICAL INDICATIONS , PARTICULARLY THE PUNCTUATION , WHICH SEEM TO SUPPORT THE FORMER INTERPRETATION , THE TEXT WHEN READ AS A WHOLE REMAINS AMBIGUOUS . THE FUNCTION OF THE WORDS IN QUESTION MUST THEREFORE BE EXAMINED IN THE LIGHT OF THE INTENTION AND PURPOSE OF THE REGULATIONS IN QUESTION .

8 IN THAT CONTEXT THE COMMISSION CLAIMS IN ITS OBSERVATIONS THAT THE COMMUNITY REGULATIONS RESTRICT THE GRANTING OF REFUNDS TO QUALITY CUTS OF MEAT . THESE DO NOT INCLUDE CHEEKS , OFFALS , THIN FLANKS AND SHIN , WHICH ARE USED FOR PROCESSING AND FOR WHICH AS SUCH THERE ARE IN ANY CASE MANY USES WITHIN THE COMMUNITY ITSELF . ON THAT GROUND THERE IS NO JUSTIFICATION FOR GRANTING EXPORT REFUNDS . MOREOVER , AS THE BONED OR BONELESS CUTS ARE SMALL AND PRACTICALLY INDISTINGUISHABLE FROM EACH OTHER AFTER FREEZING , IT IS NECESSARY FOR EACH PIECE TO BE PACKAGED SEPARATELY IN ORDER TO ENABLE THEM TO BE INSPECTED .

9 THE COURT IS OF THE OPINION THAT THE COMMISSION HAS DEMONSTRATED SUFFICIENTLY THE REASON FOR THE REQUIREMENT CONCERNING SEPARATE PACKAGING : IT IS INTENDED TO FACILITATE INSPECTION AND MUST THEREFORE APPLY TO ALL CUTS WHICH QUALIFY FOR REFUNDS . THE JUSTIFICATION FOR THIS VIEW IS ALL THE MORE APPARENT IN SO FAR AS THE INTERPRETATION , WHEREBY THE WORDS ' ' EMBALLES SEPAREMENT ' ' REFER TO THE EXCEPTION , DOES NOT APPEAR TO BE SUCH AS TO GIVE THOSE WORDS ANY REAL PURPOSE . IT WOULD MEAN THAT CHEEKS , OFFALS , THIN FLANKS AND SHIN WOULD QUALIFY FOR REFUNDS WHEN THE PRESENCE OF SUCH CUTS IS CONCEALED , BUT THAT THEY WOULD FAIL SO TO QUALIFY WHEN THEIR PRESENCE IS EASY TO ESTABLISH , SOMETHING WHICH IS HARDLY IN THE INTERESTS OF THE COMMUNITY .

10 THE REPLY TO THE QUESTION WHICH HAS BEEN ASKED SHOULD THEREFORE BE THAT THE WORDING OF SUBHEADING EX 02.01 A II ( A ) 2 ( DD ) EX 22 IN THE ANNEXES TO REGULATIONS OF THE COMMISSION NOS 2010 , 2243 , 2538 , 2645 , 2943 , 3084 / AND 3205/74 AND NOS 180 , 494 AND 735/75 , FIXING THE EXPORT REFUNDS ON BEEF AND VEAL COULD NOT BE REGARDED AS COVERING EXPORTS OF CUTS OF FOREQUARTERS OF FROZEN , BONED OR BONELESS BEEF OR VEAL , SPECIFIED AS INSIDES OF CHEEKS , THIN FLANKS AND SHIN , OR AS ENABLING THEM TO QUALIFY FOR EXPORT REFUNDS .

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE ; AS THE PROCEEDINGS ARE , IN SO FAR AS THE ACCUSED IN THE MAIN PROCEEDINGS IS CONCERNED , A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE , PARIS , BY AN ORDER OF 7 NOVEMBER 1979 , HEREBY RULES :

THE WORDING OF SUBHEADING EX 02.01 A II ( A ) 2 ( DD ) EX 22 IN THE ANNEXES TO REGULATIONS OF THE COMMISSION NOS 2010 , 2243 , 2538 , 2645 , 2943 , 3084 AND 3205/74 AND NOS 180 , 494 AND 735/75 FIXING THE EXPORT REFUNDS ON BEEF AND VEAL COULD NOT BE REGARDED AS COVERING EXPORTS OF CUTS OF FOREQUARTERS OF FROZEN , BONED OR BONELESS BEEF OR VEAL , SPECIFIED AS INSIDES OF CHEEKS , THIN FLANKS AND SHIN , OR AS ENABLING THEM TO QUALIFY FOR EXPORT REFUNDS .