—

Agrima KG D. Gritsch Herbert & Gritsch Michael & Co., Agricola Lusia srl, Romagnoli Fratelli SpA, Agrimediterranea srl and Parini Francesco, by M. Moretto, avvocato,

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Duoccio srl, by M. Camilli, avvocato,

—

Novafruit srl and Evergreen Fruit Promotion srl, by W. Viscardini and G. Doná, avvocati,

—

the Italian Government, by G. Palmieri, acting as Agent, and by G. Albenzio, avvocato dello Stato,

—

the Spanish Government, by A. Rubio González, acting as Agent,

—

the European Commission, by P. Rossi and B.-R. Killmann, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 6(4) of Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries (OJ 2007 L 90, p. 12).

2

The request has been made in proceedings between Società Italiana Commercio e Servizi srl (SICES), in liquidation, Agrima KG D. Gritsch Herbert & Gritsch Michael & Co., Agricola Lusia srl, Romagnoli Fratelli SpA, Agrimediterranea srl, Parini Francesco, Duoccio srl (‘Duoccio’), Centro di Assistenza Doganale Triveneto Service srl, Novafruit srl and Evergreen Fruit Promotion srl, on the one hand, and the Agenzia Dogane Ufficio delle Dogane di Venezia (the Venice Customs Office, ‘the Agenzia Dogane’), on the other hand, concerning correction and recovery notices notified to the former by the latter with regard to imports of garlic of Chinese origin covered by CN Code 0703 20 00, which benefited from a preferential customs duty.

3

Recitals 1, 7 to 10 and 13 to 15 in the preamble to Regulation No 341/2007 state:

…

…

4

Article 1 of that regulation, entitled ‘Opening of tariff quotas and applicable duties’, provides:

‘(1)   … tariff quotas are hereby opened for imports into the Community of fresh or chilled garlic falling within CN code 0703 20 00 …, subject to the conditions laid down in this Regulation. The volume of each tariff quota, the import tariff quota period and subperiods for which it applies and the order number are specified in Annex I to this Regulation.

(2)   The ad valorem duty applicable to garlic imported under the quotas referred to in paragraph 1 shall be 9.6%.’

5

Article 4 of that regulation, entitled ‘Categories of importers’, provides in paragraphs 2 and 3 thereof:

‘2.   “Traditional importers” shall mean importers who can prove that they have:

…

3.   “New importers” shall mean importers other than those referred to in paragraph 2, who have imported into the Community at least 50 tonnes of fruit and vegetables … in each of the previous two completed import tariff quota periods, or in each of the previous two calendar years.’

6

Article 5 of that regulation, entitled ‘Presentation of import licences’, provides in paragraph 2 thereof:

‘The import licences for garlic released for free circulation under the quotas referred to in Annex I shall hereinafter be referred to as “‘A’ licences”.

Other import licences shall hereinafter be referred to as “‘B’ licences”.’

7

Article 6 of Regulation No 341/2007, entitled ‘General provisions concerning “A” licence applications and licences’, provides in paragraphs 2 and 4 thereof:

‘2.   The security … shall amount to [EUR] 50 per tonne.

…

4.   … rights arising under “A” licences shall not be transferable.’

8

Article 8 of that regulation, entitled ‘Reference quantity of traditional importers’, is worded as follows:

‘For the purposes of this Chapter, the “reference quantity” shall be the quantity of garlic imported by a traditional importer within the meaning of Article 4, as follows:

…’

9

Article 9 of Regulation No 341/2007, entitled ‘Restrictions applicable to “A” licence applications’, states in paragraph 1 thereof:

‘The total quantity covered by “A” licence applications submitted by a traditional importer in any import tariff quota period may not exceed that importer’s reference quantity. Applications not complying with this rule shall be rejected by the competent authorities.’

10

Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2000 L 152, p. 1), as amended by Commission Regulation (EC) No 1423/2007 of 4 December 2007 (OJ 2007 L 317, p. 36) (‘Regulation No 1291/2000’), is applicable to the tariff quotas opened by Regulation No 341/2007, in accordance with Article 2 of that regulation.

11

According to recital 21 in the preamble to Regulation No 1291/2000, the security lodged by the importer is to be forfeit in whole or in part if import or export is not carried out, or only partly carried out, during the period of validity of the licence or certificate.

12

Article 35(2) of Regulation No 1291/2000 provides:

‘… where the obligation to import … has not been met the security shall be forfeit in an amount equal to the difference between:

…

However, if the quantity imported … amounts to less than 5% of the quantity indicated in the licence or certificate, the whole of the security shall be forfeit.

…’

13

Article 4 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1) provides:

‘1.   As a general rule, any irregularity shall involve withdrawal of the wrongly obtained advantage:

2.   Application of the measures referred to in paragraph 1 shall be limited to the withdrawal of the advantage obtained plus, where so provided for, interest which may be determined on a flat-rate basis.

3.   Acts which are established to have as their purpose the obtaining of an advantage contrary to the objectives of the Community law applicable in the case by artificially creating the conditions required for obtaining that advantage shall result, as the case shall be, either in failure to obtain the advantage or in its withdrawal.

4.   The measures provided for in this Article shall not be regarded as penalties.’

14

The dispute in the main proceedings concerns imports of garlic of Chinese origin into the European Union carried out, at the end of 2007 and the beginning of 2008, by SICES, Agrima KG D. Gritsch Herbert & Gritsch Michael & Co., Agricola Lusia srl, Romagnoli Fratelli SpA, Agrimediterranea srl, Parini Francesco, Novafruit srl and Evergreen Fruit Promotion srl. Those importers, which had the status of new importers within the meaning of Article 4(3) of Regulation No 341/2007, were holders of ‘A’ licences issued in accordance with that regulation. In that respect, the imports concerned benefited from the exemption from the specific duty of EUR 1 200 per tonne net.

15

Following ex post facto checks of customs declarations relating to the above mentioned imports of garlic, the Agenzia Dogane issued, at the end of 2010, correction and recovery notices. Those notices were based on the revocation of the exemption from the specific duty of EUR 1 200 per tonne net, under Article 4 of Regulation No 2988/95, on the ground that those imports circumvented that specific duty.

16

In particular, the Agenzia Dogane called into question the following mechanism which it considers to have been fraudulent:

17

Duoccio was active both on the market for imports of garlic, as traditional importer, within the meaning of Article 4(2) of Regulation No 341/2007, and on the market for the distribution of garlic in the European Union, as wholesaler. At the time of the facts of the main proceedings, Duoccio had to meet the demand of European Union consumers, but had exhausted its own ‘A’ licences so that it was no longer capable of importing garlic at the preferential rate of duty. Furthermore, the specific duty was fixed at a level so that the import of garlic outside the tariff quota was not profitable.

18

According to the Agenzia Dogane, the two successive sales of garlic, by Duoccio and Tico to the importers at issue in the main proceedings, then by those parties to Duoccio, were designed to circumvent the prohibition of the transfer of rights arising under ‘A’ licences, referred to in Article 6(4) of Regulation No 341/2007. The circumvention has the consequence that Duoccio agreed to purchase the garlic in free circulation even before the imports had taken place. That company should, therefore, be regarded as the actual importer which benefited from the preferential rate of duty without being entitled to do so.

19

The applicants in the main proceedings brought actions against the correction and recovery notices before the Commissione tributaria provinciale di Venezia. After having joined the actions, the latter dismissed them. It stated that, although the various sales operations were valid, the actual importer was Duoccio and not the importers at issue in the main proceedings who hold ‘A’ licences. In its opinion, there is serious, precise and consistent evidence making possible a finding that the legal instruments were fictitious, having been used only in order to allow the import of garlic at a preferential rate of duty and the circumvention of the prohibition of the transfer of rights arising under ‘A’ licences. According to the Commissione tributaria provinciale di Venezia, the facts of the case constituted an abuse of rights.

20

The Commissione tributaria regionale di Venezia-Mestre, before which the applicants in the main proceedings brought an appeal against the judgment of the Commissione tributaria provincial di Venezia, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘On a proper construction of Article 6 of Regulation (EC) No 341/2007, is there an unlawful transfer of licences for the importation at a preferential rate of duty of garlic of Chinese origin under the GATT quota, where the holder of those licences, following payment of the duty due, places the garlic in question on the market by means of a transfer to another trader who holds import licences and from whom it had — prior to the importation — acquired the garlic concerned?’

21

By decision of 28 May 2013, the referring court decided to supplement the order for reference of 12 February 2013. It stated that, by the question referred, the Court is asked whether it suffices, for the use of import licences at a preferential rate of duty to be lawful, that the holder of those licences release the garlic in question for free circulation, without regard to all the commercial transactions preceding and following that release for free circulation.

22

It should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-138/10 DP grup [2011] ECR I-8369, paragraph 28).

23

However, it is for the Court, as part of those proceedings, to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. Moreover, the Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, inter alia, DP grup, paragraph 29).

24

In that regard, it is apparent from the order for reference that there was, in the main proceedings, no termination of the ‘A’ licences or of the rights arising under such certificates. Only the goods were transferred, first of all, by an operator to an importer, then, after import into the European Union, by that importer to that same operator.

25

Given that Article 6(4) of Regulation No 341/2007 provides only for a prohibition of the transfer of rights arising under ‘A’ licences, it appears that that provision does not regulate the situation in which the holder of the reduced rate import licences purchases goods before they are imported from a given operator, then sells them to that operator after having imported them into the European Union.

26

Moreover, it is apparent from the order for reference that, taken individually, the purchase, import and resale transactions at issue in the main proceedings were legally valid. In particular, with regard to the imports, all the formal conditions for the grant of the preferential rate of duty were satisfied, since the importers at issue in the main proceedings carried out customs clearance of the goods at issue by means of ‘A’ licences obtained lawfully.

27

Nevertheless, it is apparent from the observations submitted to the Court that, by those transactions, the objective pursued by the purchaser in the European Union, who was also a traditional importer, within the meaning of Article 4(2) of Regulation No 341/2007, was to enable it to be supplied with imported garlic in the context of the tariff quota provided for by that regulation. According to the referring court, that fact could be accepted in order to establish the existence of an abuse of rights.

28

Therefore, the question referred must be regarded as concerning whether Article 6(4) of Regulation No 341/2007, although not regulating as such transactions by which an importer, holding reduced rate import licences, purchases goods before they are imported into the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union, must nevertheless be interpreted as precluding such transactions on the ground that they constitute an abuse of rights.

29

According to settled case-law, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, Case C-367/96 Kefalas and Others [1998] ECR I-2843, paragraph 20; Case C-373/97 Diamantis [2000] ECR I-1705, paragraph 33; and Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 68).

30

The application of EU legislation cannot be extended to cover abusive practices by economic operators, that is to say transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages under EU law (see, in particular, Halifax and Others, paragraph 69).

31

A finding of abusive practices requires a combination of objective and subjective elements.

32

With regard to the objective element, it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved (see, inter alia, Case C-110/99 Emsland-Stärke [2000] ECR I-11569, paragraph 52, and Case C-515/03 Eichsfelder Schlachtbetrieb [2005] ECR I-7355, paragraph 39).

33

Such a finding requires also a subjective element to the effect that it must be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain an undue advantage. The prohibition of abuse is not relevant where the economic activity carried out may have some explanation other than the mere attainment of an advantage (Halifax and Others, paragraph 75). The existence of such an element relating to the intention of operators may be established, in particular, by proof of the purely artificial nature of the transactions (see, to that effect, Emsland-Stärke, paragraph 53, and Case C-425/06 Part Service [2008] ECR I-897, paragraph 62).

34

Although the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (Halifax and Others, paragraph 77), it is however for the national court to verify whether the factors constituting such an abuse are present in the case before it (see, inter alia, Eichsfelder Schlachtbetrieb, paragraph 40, and Case C-279/05 Vonk Dairy Products [2007] ECR I-239, paragraph 34). In that context, it should be stated that checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.

35

In that regard, in the first place, with regard to the objective of Regulation No 341/2007, it is apparent from recitals 13 and 14 in the preamble to that regulation, read in conjunction with recitals 9 and 10 in the preamble thereto, that it is necessary, in the management of tariff quotas, to safeguard competition between genuine importers so that no single importer is able to control the market.

36

In the context of transactions such as those at issue in the main proceedings, the abovementioned objective is not attained. As is apparent from the observations submitted to the Court, by such transactions, the purchaser in the European Union, who is also a traditional importer, does not acquire the right to have its reference quantity, as defined in Article 8 of Regulation No 341/2007, calculated on a basis including the quantities of goods it purchased from the importers after they received customs clearance. Those transactions therefore do not permit it to have the quantities of goods with respect to which it is entitled to submit applications for an ‘A’ licence increased, in accordance with Article 9 of that regulation. The fact remains that such transactions may permit the purchaser in the European Union, who is also a traditional importer having exhausted its own ‘A’ licences and not therefore being capable of importing garlic at the preferential rate of duty, to obtain imported garlic at a preferential rate and to extend its influence on the market beyond its share of the tariff quota which was granted to it.

37

In the second place, with regard to the subjective element referred to in paragraph 33 of the present judgment, it should be noted that, in circumstances such as those at issue in the main proceedings, for it to be possible to regard the transactions at issue as being designed to confer an undue advantage on the purchaser in the European Union, it is necessary that the importers intended to confer such an advantage on that purchaser and that the transactions be devoid of any economic and commercial justification for those importers, which it is for the referring court to establish. The latter’s finding that such transactions are not devoid of economic and commercial justification could, for example, be based on the fact that the sale price of the goods was fixed at a level which allowed importers to derive a significant profit from the sales concerned. Likewise, account may also be taken of the fact that it follows from Article 35 of Regulation No 1291/2000, read in conjunction with Article 6(2) of Regulation No 341/2007, that the importers are obliged to use the ‘A’ licences which were issued to them subject to penalties and they therefore have a genuine interest in carrying out imports, including in the context of transactions such as those at issue in the main proceedings.

38

In that context, even if such transactions are based on the desire of the purchaser to benefit from the preferential rate of duty and even if the importers concerned are aware of that, those transactions may not a priori be regarded as being devoid of economic and commercial justification for the latter.

39

It cannot, however, be excluded that, in certain circumstances, transactions such as those at issue in the main proceedings were artificially created with the essential aim of benefiting from the preferential rate of duty. Thus, amongst the factors which could allow the artificial nature of the transactions to be established are, as the European Commission states in its observations, the fact that the importer holding ‘A’ licences did not accept any commercial risk, since that risk was in reality covered by its purchaser, which is also a traditional importer. Such an artificial nature could also appear from the fact that the importers’ profit margin is insignificant or that the prices of the garlic sold by the importers to the purchaser in the European Union are lower than the market price.

40

Having regard to the foregoing, the answer to the question referred is that Article 6(4) of Regulation No 341/2007 must be interpreted as not precluding, in principle, transactions by which an importer, holding reduced rate import licences, purchases goods outside the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union. However, such transactions constitute an abuse of rights where they are artificially created with the essential aim of benefiting from the preferential rate of duty. The checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.

41

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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 6(4) of Commission Regulation (EC) No 341/2007 of 29 March 2007 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic and certain other agricultural products imported from third countries must be interpreted as not precluding, in principle, transactions by which an importer, holding reduced rate import licences, purchases goods outside the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union. However, such transactions constitute an abuse of rights where they are artificially created with the essential aim of benefiting from the preferential rate of duty. The checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.