Case C‑131/14

Malvino Cervati

and

Società Malvi Sas di Cervati Malvino

v

Agenzia delle Dogane

and

Agenzia delle Dogane — Ufficio delle Dogane di Livorno

(Request for a preliminary ruling from the Corte suprema di cassazione)

‛Reference for a preliminary ruling — Agriculture — Common organisation of the markets — Regulation (EC) No 565/2002 — Article 3(3) — Tariff quota — Garlic of Argentinian origin — Import licences — Non-transferability of rights deriving from import licences — Circumvention — Abuse of rights — Conditions — Regulation (EC, Euratom) No 2988/95 — Article 4(3)’

Summary — Judgment of the Court (Second Chamber), 14 April 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant elements of EU law — Reformulation of the questions

   (Art. 267 TFEU)

2. EU law — Abusive exercise of a right deriving from EU law — Actions constituting abuse — Elements to be taken into consideration — Verification a matter for the national court

3. Agriculture — Common organisation of the markets — Import and export licences and advance fixing certificates — Imports system — Tariff quota — Imports at the preferential rate of duty of goods bought outside the European Union by a new operator from a person not holding import certificates — Resale after released for free circulation to a traditional operator connected with the former person, then to a second traditional operator, neither of whom holding the necessary licences — Lawfulness — Limits — Misuse of rights — Verification a matter for the national court

   (Council Regulation No 2988/95, Art. 4(3); Commission Regulation No 565/2002, Arts 3(3) and 5(3))

1.  See the text of the decision.

   (see para. 26)

2.  See the text of the decision.

   (see paras 32-35, 46, 47)

3.  Article 3(3) of Regulation No 565/2002 establishing the method for managing tariff quotas and introducing a system of certificates of origin for garlic imported from third countries and Article 4(3) of Regulation No 2988/95 on the protection of the European Communities financial interests must be interpreted not, in principle, precluding a mechanism whereby, following an order placed by an operator, a traditional importer within the meaning of the former regulation, having exhausted its licences to import at a preferential rate of duty, with a second operator, also a traditional importer not holding such licences,

   —	goods are, first of all, sold, outside the European Union, by an undertaking connected with the second operator, to a third operator, a new importer within the meaning of the former regulation, holding such licences,

   —	the goods are, then, released for free circulation in the European Union by the third operator at the preferential rate of customs duty, subsequently sold on by the third to the second operator and

   —	the goods are, finally, sold by the second to the first operator, which thereby acquires goods imported under the tariff quota set out in the former regulation despite the fact that the first operator does not hold the necessary licences for so doing.

   In order for such a mechanism for the sale and resale of goods between operators not to result in either an operator unduly influencing the market and, in particular, circumvention by traditional importers of Article 5(3) of Regulation No 562/2002, or an obstacle to the objective of licence applications being linked to a genuine commercial activity, it is nevertheless necessary for each stage of that mechanism to involve a price corresponding to the market price and for imports at a preferential rate of duty to be carried out, by means of lawfully-obtained import licences, by the holder of those licences. It is, inter alia, for the national court to establish whether each of the operators received an appropriate price on importing the goods at issue, on their sale or resale, allowing each of the operators to maintain the market position attributed to it in managing the quota.

   Furthermore, as for determining whether such a mechanism could have been established with the essential aim of artificially creating the requisite conditions for the application of the preferential rate of duty, amongst the factors that could allow the artificial nature of such a mechanism to be established are the facts that the importer holding the import licences did not accept any commercial risk or that the importer’s profit margin is insignificant or that the price of the goods sold by the importer to the first buyer in the European Union, then by the latter to the second buyer in the European Union, is lower than the market price.

   (see paras 43, 51, 53, operative part)