61976J0036

1 . AGRICULTURE - PIG-MEAT - SAUSAGES - PACKING - PRESERVING LIQUID - LEVY - CHARGING ON NET WEIGHT

( REGULATION NO 85/63 )

2 . AGRICULTURE - PIG-MEAT - REGULATION NO 84/66/EEC - AMENDMENT OF REGULATION NO 85/63/EEC - NON-EXISTENT - DECLARATORY EFFECT

1 . UNDER THE SYSTEM PROVIDED FOR BY REGULATION NO 85/63/EEC , THE LEVY ON SAUSAGES PUT UP IN CONTAINERS WITH PRESERVING LIQUID HAD TO BE CHARGED ON THE NET WEIGHT AFTER DEDUCTING THE WEIGHT OF SUCH LIQUID .

2 . THE EFFECT OF REGULATION NO 84/66/EEC WAS NOT TO ALTER THE SCOPE OF REGULATION NO 85/63/EEC AND CONSEQUENTLY ITS EFFECT WAS MERELY DECLARATORY OF THE PRE-EXISTING SITUATION .

IN JOINED CASES 36 AND 37/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE SUPREMA DI CASSAZIONE FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN

AMMINISTRAZIONE DELLE FINANZE DELLO STATO

AND

SRL FORAL ( 36/76 )

D . & C . SPA ( 37/76 )

ON THE INTERPRETATION OF REGULATIONS NO 85/63/EEC OF THE COUNCIL OF 18 JULY 1963 ( JO 1963 , P . 2175 ) AND NO 84/66/EEC OF THE COUNCIL OF 28 JUNE 1966 ( JO 1966 , P . 2216 ),

1 BY TWO JUDGMENTS WHICH WERE RECEIVED AT THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 26 APRIL 1976 , THE UNITED CIVIL CHAMBERS OF THE CORTE SUPREMA DI CASSAZIONE REFERRED TO THE COURT , UNDER ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS CONCERNING THE INTERPRETATION OF THE NOMENCLATURE APPEARING AS ANNEX II B TO REGULATION NO 86/63/EEC OF THE COUNCIL ( JO 1963 , P . 2175 ) AND OF REGULATION NO 84/66/EEC OF THE COUNCIL ( JO 1966 , P . 2216 ) AMENDING THAT NOMENCLATURE , THE TERMS OF WHICH ARE AS FOLLOWS :

1 . WHETHER REGULATION NO 84/66/EEC , WHERE IT PROVIDES AT ARTICLE 2 WITH REGARD TO THE PRODUCTS UNDER TARIFF HEADING EX 16.01 B REFERRED TO IN ANNEX II B TO REGULATION NO 85/63/EEC THAT ' THE LEVY ON SAUSAGES PUT UP IN CONTAINERS WITH PRESERVING LIQUID SHALL BE CHARGED ON THE NET WEIGHT AFTER DEDUCTING THE WEIGHT OF SUCH LIQUID ' , CONSTITUTES AN INTERPRETATION OF THE SAID REGULATION NO 85/63/EEC AND CONSEQUENTLY HAS RETROACTIVE EFFECT , OR WHETHER IT CREATES A NEW SITUATION ;

2 . IF THE LATTER IS THE CASE , WHETHER THE ABSENCE OF ANY INDICATION IN REGULATION NO 85/63/EEC MUST BE UNDERSTOOD AS MEANING THAT PRIOR TO REGULATION NO 84/66/EEC IT WAS INDEED NECESSARY ALSO TO TAKE ACCOUNT OF THE WEIGHT OF THE SAID PRESERVING LIQUID OR WHETHER EACH STATE MIGHT ACT IN THIS SPHERE IN ACCORDANCE WITH ITS OWN CUSTOMS LEGISLATION . '

2 THESE QUESTIONS AROSE IN THE CONTEXT OF AN ACTION BETWEEN , ON THE ONE HAND , THE NATIONAL FINANCE ADMINISTRATION AND , ON THE OTHER , TWO IMPORTERS WHO IMPORTED SAUSAGES IN CONTAINERS WITH PRESERVING LIQUID DURING THE PERIOD FROM 1963 TO 1967 , CONCERNING THE ISSUE WHETHER , PRIOR TO THE ENTRY INTO FORCE OF REGULATION NO 84/66/EEC , THE SAID LIQUID HAD TO BE EXCLUDED FROM THE DUTIABLE WEIGHT FOR THE PURPOSE OF CHARGING THE COMMUNITY LEVY .

3 REGULATION NO 20 , ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN PIGMEAT ( JO 1962 , P . 945 ), THE BASIC REGULATION DURING THE PERIOD IN QUESTION , PROVIDES FOR THE CHARGING OF LEVIES ON PRODUCTS COMING UNDER HEADING 16.01 OF THE COMMON CUSTOMS TARIFF , BOTH IN INTRA-COMMUNITY TRADE AND IN TRADE WITH THIRD COUNTRIES .

4 THE AMOUNT OF THESE LEVIES IS DETERMINED ACCORDING TO ARTICLES 4 ( 2 ) AND 5 ( 3 ) OF REGULATION NO 20 , ' TAKING INTO ACCOUNT IN PARTICULAR ' THE WEIGHTED AVERAGE OF THE LEVIES APPLICABLE TO THE BASIC PRODUCTS MAKING UP THE GOODS .

5 THE SUCCESSIVE REGULATIONS OF THE COUNCIL DETERMINE THE AMOUNT OF THE LEVIES BY USING THE DETAILED NOMENCLATURE WHICH APPEARS AS ANNEX II B TO REGULATION NO 85/63 , TO FIX A LEVY PER 100 KG OF NET WEIGHT IN RESPECT OF EACH PRODUCT DESCRIBED IN THAT NOMENCLATURE .

6 SAUSAGES AND THE LIKE , OF MEAT , MEAT OFFAL OR ANIMAL BLOOD , COMING UNDER HEADING 16.01 OF THE COMMON CUSTOMS TARIFF ARE DIVIDED UP INTO FIVE GROUPS IN RESPECT OF EACH OF WHICH A SINGLE AMOUNT OF LEVY IS PRESCRIBED .

7 IT IS COMMON GROUND THAT , IN RESPECT OF THE PRODUCTS LISTED BY THE REGULATION UNDER NUMBER 16.01 B I OF THE TARIFF , PUT UP IN CONTAINERS WITH PRESERVING LIQUID , THE COMPETENT ITALIAN AUTHORITIES , UNTIL THE ENTRY INTO FORCE OF REGULATION NO 84/66/EEC OF THE COUNCIL , CHARGED THE LEVY ON THE WEIGHT OF THE SAUSAGES AND ON THE WEIGHT OF THE PRESERVING LIQUID .

8 REGULATION NO 84/66/EEC AMENDING THE NOMENCLATURE OF CERTAIN PRODUCTS APPEARING IN ANNEX II B TO REGULATION NO 85/63/EEC - ADOPTED ON A PROPOSAL FROM THE COMMISSION FOLLOWING AN APPROACH BY THE ITALIAN GOVERNMENT - BASED ON THE CONSIDERATION ' THAT THE DESCRIPTION OF CERTAIN GOODS CONTAINS SOME INACCURACIES WHICH IT IS NECESSARY TO RECTIFY , ' ADDED , AT ARTICLE 2 , A FOOTNOTE ( A ) TO THE DESCRIPTION OF PRODUCTS COMING UNDER SUBHEADING 16.01 B I TO THE EFFECT THAT :

' THE LEVY ON SAUSAGES PUT UP IN CONTAINERS WITH PRESERVING LIQUID SHALL BE CHARGED ON THE NET WEIGHT AFTER DEDUCTING THE WEIGHT OF SUCH LIQUID . '

9 WITH A VIEW TO DETERMINING THE EFFECT OF THE PROVISION OF REGULATION NO 84/66/EEC WHICH IS AT ISSUE AND ON WHICH THE FIRST OF THE TWO QUESTIONS TURNS , IT IS ESSENTIAL FIRST TO CONSIDER WHAT INTERPRETATION SHOULD BE PLACED ON THE ORIGINAL PROVISION , WHICH WAS APPLICABLE AT THE TIME WHEN THE DISPUTED IMPORTATIONS TOOK PLACE , AS IT APPEARS IN REGULATION NO 85/63/EEC .

10 THE LEVY ON PRODUCTS UNDER SUBHEADING 16.01 B I IS DIRECTED ONLY AT SAUSAGES PROPER , INDEPENDENTLY OF THE WAY IN WHICH THEY ARE PUT UP AND IRRESPECTIVE OF WHETHER THEY ARE IMMERSED IN A LIQUID DESIGNED TO ENSURE THEIR PRESERVATION .

11 THIS EMERGES BOTH FROM THE WORDING OF THE SUBHEADING AND FROM THE FACT THAT , FOR THE PURPOSE OF FIXING THE LEVY , ACCOUNT WAS NOT TAKEN OF ANY PRESERVING LIQUID , BUT OF THE WEIGHTED AVERAGE OF THE LEVIES ON THE BASIC PRODUCTS MAKING UP THE GOODS .

12 ALTHOUGH IT IS TRUE THAT THE AMOUNT OF THE LEVY ON THE PRODUCTS MANUFACTURED FROM THE BASIC PRODUCTS IS NOT THE RESULT OF AN ARITHMETICAL CALCULATION PERFORMED ON THE LEVIES ON THE BASIC PRODUCTS , AND THAT THE LEVY CONTAINS A FLAT-RATE COMPONENT , IT IS NONE THE LESS TRUE THAT ITS PURPOSE WOULD BE EXCEEDED IF FOR A PRODUCT SUCH AS SAUSAGES PUT UP IN CONTAINERS WITH PRESERVING LIQUID , THE WEIGHT OF SUCH LIQUID , WHICH IS APPROXIMATELY THE SAME AS THAT OF THE SAUSAGES , WERE TAKEN INTO ACCOUNT FOR THE PURPOSE OF CHARGING THE LEVY .

13 IT IS TO BE INFERRED FROM THIS THAT , UNDER THE SYSTEM PROVIDED FOR BY REGULATION NO 85/63/EEC , THE LEVY ON SAUSAGES PUT UP IN CONTAINERS WITH PRESERVING LIQUID HAD TO BE CHARGED ON THE NET WEIGHT AFTER DEDUCTING THE WEIGHT OF SUCH LIQUID .

14 IT APPEARS FROM THE FOREGOING THAT THE EFFECT OF THE NEW PROVISION MADE BY REGULATION NO 84/66/EEC IS IDENTICAL TO THAT OF REGULATION NO 85/63/EEC .

15 THEREFORE ITS ONLY CONSEQUENCE WAS TO ELIMINATE , BY MEANS OF A MORE EXPLICIT FROM OF WORDING , DIFFERENCES IN THE APPLICATION OF REGULATION NO 85/63/EEC FROM ONE MEMBER STATE TO ANOTHER .

16 CONSEQUENTLY REGULATION NO 84/66/EEC LEFT UNCHANGED THE MEANING , AS DEFINED ABOVE , OF THE PROVISIONS APPLICABLE DURING THE PERIOD WITH WHICH THE NATIONAL COURT IS CONCERNED .

17 THEREFORE THE ANSWER TO THE QUESTIONS PUT SHOULD BE THAT THE EFFECT OF REGULATION NO 84/66/EEC WAS NOT TO ALTER THE SCOPE OF REGULATION NO 85/63/EEC , AND CONSEQUENTLY ITS EFFECT WAS MERELY DECLARATORY OF THE PRE-EXISTING SITUATION .

COSTS

18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

19 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE BY TWO ORDERS OF 12 FEBRUARY 1976 , HEREBY RULES :

1 . UNDER THE SYSTEM PROVIDED FOR BY REGULATION NO 85/63/EEC , THE LEVY ON SAUSAGES PUT UP IN CONTAINERS WITH PRESERVING LIQUID HAD TO BE CHARGED ON THE NET WEIGHT AFTER DEDUCTING THE WEIGHT OF SUCH LIQUID ;

2 . THE EFFECT OF REGULATION NO 84/66/EEC WAS NOT TO ALTER THE SCOPE OF REGULATION NO 85/63/EEC , AND CONSEQUENTLY ITS EFFECT WAS MERELY DECLARATORY OF THE PRE-EXISTING SITUATION .