(a)

During the period in question there have been two successive versions of the description to be examined.

In Regulation No 2010/74 of 30 July 1974 fixing refunds for the period beginning 1 August 1974, and Regulation No 2243/74 of 29 August 1974, the purpose of which is the same for the period beginning 1 September 1974, the description was worded as follows:

“Morceaux désossés, à l'exception des joues, des abats, du flanchet et du jarret, emballés séparément:

In the other Community languages the description is identical:

“Boned or boneless, excluding the chaps, the offals, the thin flanks and the shin, packaged separately”, in English,

“Teilstücke ohne Knochen, mit Ausnahme von Kopffleisch, Schlachtabfällen, Fleisch- und Knochendünnung und die Hesse, getrennt verpackt”, in German,

“Pezzi disossati, esclusi le guance, le frattaglie, la pancia, la tibia e il muscolo aderente, confezionati separatamente”, in Italian,

“Delen, zonder been, met uitzondering van kopvlees, slachtafvallen, de vang en de schenkel, afzonderlijk verpakt”, in Dutch and

“Udbenet med undtagelse af kaeber, slagteaffald, slag og skank, stykkerne emballeret hver for sig”, in Danish.

Subsequently, for the period from 7 October 1974 to 30 April 1975, which was covered by nine successive texts (Regulations No 2538/74, No 2645/74, No 2943/74, No 3084/74, No 3205/74, No 180/75, No 494/75 and No 735/75), the disputed provision became [in the French language version] :

“Morceaux désossés:

It underwent the same alteration in the other language versions. For example, the English text at that time was:

“Boned or boneless.

(b)

How are we to judge those texts?

In my opinion the French wording does not make it clear in either of the successive versions whether “emballés séparément” relates to “joues, abats, flanchet et jarret” or to “morceaux désossés”. In my view the text is ambiguous, and, to be candid, poorly drafted.

According to the information I have collected, the same is true in each of the other languages. The ambiguity is particularly obvious in the German. The Commission may be right in pointing out that Mr Roudolff's view would be the one to adopt if the wording had been: “Teilstücke ohne Knochen, mit Ausnahme von getrennt verpacktem Kopffleisch,...”, but as the text stands its own interpretation is far from certain. It would only have been otherwise if one of the two following expressions had been used: “getrennt verpackte Teilstücke ohne Knochen,...” or “Teilstücke ohne Knochen, getrennt verpackt,...”.

The defectiveness of the expression in use between August 1974 and April 1975 also becomes apparent on reading the wording which was used before and after that period. Thus, in Regulation No 1444/74 of 10 June 1974 and Regulation No 1.631/74 of 27 June 1974, which were applicable during the periods immediately prior to that covering the disputed exports, we read:

“Morceaux désossés, à l'exception des joues et des abats:

From the strictly grammatical point of view it may be inferred from the wording that the absence of a comma between “emballes séparément” and “flanchet et jarret” means that the interpretation put forward by Mr Roudolff is the correct one, in respect in those products.

On the other hand, there can be no doubt with the current text, as may be seen in Regulation No 897/80 of 14 April 1980, that irrespective of the way in which they are packed, thin flanks and shin do not qualify for refunds. The actual wording at present is:

“Morceaux désossés, a l'exception du flanchet et du jarret, chaque morceau emballé individuellement” [Boned or boneless, excluding the thin flanks and the shin each piece individually wrapped].

Thus a literal interpretation is not sufficient for the Court to give a definite reply to the question which has been asked by the court making the reference.

(a)

The Commission notes that the subheading in question (ex 02.01 A II (a) 2 (dd) ex 22), contained in the regulations fixing the export refunds, which are texts adopted within the framework of the common agricultural policy, refers to offals, besides cheeks, thin flanks and shin. Now, although offals are mentioned in heading 02.01 of the Common Customs Tariff (Meat and edible offals), they no longer appear under agricultural subheading ex 02.01 A II (a) 2 (edible meat of domestic bovine animals, frozen). Therefore, according to the Commission, in view of the logical order of the texts the intention which is made clear by the omission not to allow offals to qualify for refunds cannot be contradicted by the wording of a mere subheading.

The result is that, according to the Commission, there can be no doubt that offals do not quality for a refund, irrespective of their packaging. Therefore, the same must apply by analogy in a case of products the quality of which is equally low, namely cheeks, thin flanks and shin.

(b)

I think that reasoning is open to certain criticisms.

Since offals are specifically covered by subheading 02.01 Β of the Common Customs Tariff, it follows that they cannot quality for refunds under the agricultural subheading derived from Customs Tariff subheading 02.01 A. The Commission has realized that, moreover, since 1 September 1975 offals — and cheeks — no longer appear in the disputed text. In its own words, “it was mistaken and unnecessary to mention, as had previously been the case, the exception made for cheeks and offals in the description of goods under the subheading” in question.

In addition to that, it is perhaps worth mentioning that preparations and preserves containing offals, referred to under subheading ex 16.02 Β III (b) 1 of the regulations fixing export refunds, qualified for the latter at the time of the facts in the dispute and that they still qualify for them today, as may be seen in the annex to Regulation No 897/80 of 14 April 1980.

(a)

Export refunds are intended to facilitate the disposal on the world markets at competitive prices, of products for which there are insufficient outlets in the Common Market. That does not apply to the disputed products: cheeks, thin flanks and shin are primarily processing meats, a term used to denote products which are not intended for consumption as they are, but in the form of processed products: sausages, tinned meats, including pet foods, etc. There have always been many ways of using such meats for processing within the Community. Thus there is no ground for granting export refunds in respect of them.

The exception which will have been noticed for thin flanks and shin, however packaged, for export to the United States between 1974 and 1975 may be explained by the special circumstances. Those refunds were granted out of a concern to maintain a traditional flow of trade between the United States and certain areas in the United Kingdom, Denmark and, above all, Ireland, which were free of foot-and-mouth disease. The removal of the condition concerning separate packaging is due to the stringency of American supervision, which enables the risk of fraud to be eliminated, and to the low level of the refund granted, which prevents any deflection of trade.

As regards export to European third countries, cheeks, thin flanks and shin still cannot qualify for refunds, irrespective of the way in which they are packaged.

(b)

Moreover, the illogicality of the arguments put forward by the accused in the main proceedings becomes apparent when one considers the need to facilitate the inspection of exports, a particularly important aim in this matter.

According to the scheme which results from the interpretations proposed by Mr Roudolff, all boned or boneless cuts other than cheeks, offals, thin flanks and shin would qualify for export refunds without there being a requirement that they be packaged individually. Similarly, as I have said, cheeks, offals, thin flanks and shin would qualify even when packaged in bulk.

The adoption of that interpretation would render any quality control in respect of the goods exported illusory. Boned or boneless cuts are small and practically indistinguishable after freezing. If the cuts are not packaged individually, freezing would agglomerate them so that there would be no guarantee, short of unfreezing them at each inspection, that they had not been mixed with some other meat the exportation of which did not qualify for refunds.

The Court may judge the absurdity of an interpretation which makes the granting of refunds for the products in question subject to the absence of separate packaging and, as a result, dependent upon the impossibility of verifying the nature and quality of the products exported.

That is why I share the opinion of the Commission that the requirement concerning separate packaging is restricted to boned or boneless cuts which qualify for refunds, to the exclusion of those called cheeks, thin flanks and shin.