61972J0009

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - POULTRYMEAT - IMPORTATION FROM POLAND - CONCEPT

( REGULATION NO 565/68, ARTICLE 1 )

ARTICLE 1 OF REGULATION NO 565/68 MUST BE INTERPRETED AS MEANING THAT GOODS MUST BE CONSIDERED AS " COMING FROM " POLAND WHEN THEY REMAIN UNTIL THE MOMENT WHEN THEY ARE DELIVERED IN THE COMMUNITY AT THE DISPOSAL AND UNDER THE DIRECT CONTROL OF THE SELLER WHO IS BOUND VIS-A-VIS THE POLISH PEOPLE' S REPUBLIC TO COMPLY WITH THE UNDERTAKINGS ENTERED INTO WITH REGARD TO PRICES AND WHEN IN THE COURSE OF TRANSPORTATION THEY HAVE NOT BEEN GIVEN CUSTOMS CLEARANCE, PUT INTO FREE CIRCULATION OR PROCESSED IN ANY WAY .

IN CASE 9/72

REFERENCE OF THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT MUENCHEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GEORG BRUNNER KG, MUNICH,

AND

HAUPTZOLLAMT HOF,

ON THE INTERPRETATION OF ARTICLE 1 OF REGULATION NO 565/68 OF THE COMMISSION OF 24 APRIL 1968 ( OJ, ENGLISH SPECIAL EDITION 1968 I, P . 110 ) ON THE NON-FIXING OF AN ADDITIONAL AMOUNT FOR SLAUGHTERED FOWLS, DUCKS AND GEESE IMPORTED FROM POLAND,

1 BY AN ORDER OF 2 MARCH 1972 WHICH ARRIVED AT THE COURT REGISTRY ON 9 MARCH 1972 THE FINANZGERICHT MUENCHEN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY TWO QUESTIONS ON THE INTERPRETATION OF THE EXPRESSION " COMING FROM " APPEARING IN ARTICLE 1 OF REGULATION NO 565/68 OF THE COMMISSION OF 24 APRIL 1968 ( OJ, ENGLISH SPECIAL EDITION 1968 ( I ), P . 110 ) ON THE NON-FIXING OF AN ADDITIONAL AMOUNT ON IMPORTS OF CERTAIN POULTRY ORIGINATING IN AND COMING FROM POLAND .

2 IN THE FIRST QUESTION THE COURT IS ASKED WHETHER THIS EXPRESSION, IN RELATION TO PRODUCTS EXEMPTED FROM THE ADDITIONAL LEVY ON THE CONDITIONS LAID DOWN IN ARTICLE 1 OF REGULATION NO 565/68, MUST BE INTERPRETED AS MEANING THAT THE PRODUCTS IN QUESTION ARE ONLY EXEMPT FROM THE ADDITIONAL LEVY IF THEY HAVE NOT REMAINED IN A TRANSIT COUNTRY AND HAVE NOT FORMED THE SUBJECT-MATTER THERE OF LEGAL MEASURES ON GROUNDS OTHER THAN OF THEIR TRANSPORTATION .

3 IN THE SECOND QUESTION THE COURT IS ASKED WHETHER SUCH PRODUCTS ALSO FULFIL THIS CONDITION :

( A ) WHEN THEY ARE SOLD AND DELIVERED TO A TRADER ESTABLISHED IN A THIRD COUNTRY AND SUBSEQUENTLY RESOLD AND CONSIGNED TO A PURCHASER ESTABLISHED IN A MEMBER STATE WITHOUT HAVING UNDERGONE PROCESSING, OR, IF THE ANSWER IS IN THE NEGATIVE,

( B ) WHEN THEY ARE INITIALLY SOLD AND DELIVERED TO A TRADER ESTABLISHED IN A THIRD COUNTRY BUT AFTERWARDS CONSIGNED BY THAT TRADER, WHO REJECTED THEM ON THE GROUND OF LATE DELIVERY, TO A PURCHASER ESTABLISHED IN A MEMBER STATE WITHOUT HAVING UNDERGONE PROCESSING .

4 REGULATION NO 123/67 OF THE COUNCIL ( OJ, ENGLISH SPECIAL EDITION 1967, P . 63 ) ON THE COMMON ORGANIZATION OF THE MARKET IN POULTRYMEAT PROVIDES THAT A LEVY SHALL BE CHARGED ON IMPORTS OF SLAUGHTERED POULTRY FROM THIRD COUNTRIES .

UNDER ARTICLE 8 OF THE SAME REGULATION, WHERE THE FREE-AT-FRONTIER OFFER PRICE FALLS BELOW THE SLUICE-GATE PRICE, THE LEVY APPLICABLE SHALL BE INCREASED BY AN ADDITIONAL AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE SLUICE-GATE PRICE AND THE FREE-AT-FRONTIER OFFER PRICE .

NEVERTHELESS, UNDER ARTICLE 8 ( 2 ) THE LEVY SHALL NOT BE INCREASED BY THIS ADDITIONAL AMOUNT AS REGARDS THIRD COUNTRIES WHICH ARE PREPARED AND IN A POSITION TO GUARANTEE THAT THE PRICE FOR IMPORTS INTO THE COMMUNITY OF PRODUCTS ORIGINATING IN AND COMING FROM THEIR TERRITORY WILL NOT BE LOWER THAN THE SLUICE-GATE PRICE FOR THE PRODUCT IN QUESTION AND THAT ANY DEFLECTION OF TRADE WILL BE AVOIDED .

5 IN IMPLEMENTATION OF THAT PROVISION REGULATION NO 565/68 OF THE COMMISSION OF 24 APRIL 1968 PROVIDES THAT CERTAIN POULTRY ORIGINATING IN AND COMING FROM THE POLISH PEOPLE' S REPUBLIC SHALL BE EXEMPTED FROM THE ADDITIONAL AMOUNTS CHARGED ON IMPORTS INTO THE COMMUNITY .

IT IS CLEAR FROM THE RECITALS OF THE PREAMBLE TO THAT REGULATION THAT THIS EXEMPTION WAS GRANTED AS A RESULT, ON THE ONE HAND, OF THE GUARANTEE GIVEN BY THE GOVERNMENT OF THE POLISH PEOPLE' S REPUBLIC THAT EXPORTS WOULD ONLY BE MADE BY THE STATE FOREIGN TRADE AGENCY ANIMEX WHICH WOULD NOT DELIVER THE SAID PRODUCTS AT FREE-AT-FRONTIER PRICES LOWER THAN THE SLUICE-GATE PRICES AND, ON THE OTHER, OF ITS UNDERTAKING TO ENABLE THE COMMISSION TO EXERCISE CONTINUOUS SUPERVISION OF THE EFFECTIVENESS OF THE MEASURES IT HAS TAKEN .

6 THE EXPRESSION " COMING FROM " MUST BE INTERPRETED IN TERMS OF THE OBJECTIVES AND OF THE GENERAL SCHEME OF REGULATION NO 565/68 WHICH, AS ITS RECITALS RECALL, IS INTENDED TO ENSURE THE EFFECTIVENESS OF THE PRICE GUARANTEE GIVEN BY THIRD COUNTRIES WHO BENEFIT FROM THE EXEMPTION AND TO ENABLE ITS EFFECTIVENESS TO BE CONTINUOUSLY SUPERVISED .

7 THE EXPRESSION " COMIN FROM " IN CONJUNCTION WITH THE EXPRESSION " ORIGINATING IN " SHOWS THAT THE GUARANTEE THAT THE PRICE WILL NOT BE LOWER THAN THE SLUICE-GATE PRICE CAN ONLY BE HONOURED IF DELIVERY TO A PURCHASER IN THE COMMUNITY IS MADE BY A SELLER WHO IS BOUND TO COMPLY WITH THE UNDERTAKINGS ENTERED INTO WITH REGARD TO PRICES VIS-A-VIS THE AUTHORITIES OF THE THIRD COUNTRY WHICH BENEFITS FROM THE EXEMPTION .

FURTHERMORE, IN THE COURSE OF TRANSPORTATION THE GOODS MUST NOT HAVE BEEN GIVEN CUSTOMS CLEARANCE, PUT INTO FREE CIRCULATION OR PROCESSED IN ANY WAY .

8 ON THE OTHER HAND, LEGAL MEASURES WHICH, WHILST NOT DIRECTLY CONNECTED WITH THE TRANSPORTATION OF THE PRODUCTS, RESERVE TO THE SELLER, WHO IS BOUND TO ABIDE BY THE GUARANTEED PRICE, THE RIGHT TO DISPOSE OF AND DIRECTLY TO CONTROL THE GOODS DO NOT JEOPARDIZE THE CONDITIONS OF THE SAID EXEMPTION .

INDEED, AS LONG AS THE SELLER RETAINS THE RIGHT TO DISPOSE OF THE GOODS HE IS IN A POSITION TO CARRY OUT HIS UNDERTAKING TO DELIVER THEM ONLY AT THE PRICE WHICH WAS GUARANTEED BY THE THIRD STATE .

IN SUCH A CASE IT MAY BE ASCERTAINED IMMEDIATELY BY INSPECTION OF THE TRANSPORT CERTIFICATES AND CUSTOMS DOCUMENTS THAT THE SELLER AND THE GOODS HAVE REMAINED UNCHANGED, THAT THE LATTER HAVE NOT UNDERGONE ANY PROCESSING AND HAVE BEEN INVOICED AT THE GUARANTEED PRICE .

9 ON THE OTHER HAND THIS IS NOT THE CASE WHEN, FOR WHATEVER REASON, GOODS ARE SOLD AND DELIVERED TO A TRADER ESTABLISHED IN A THIRD COUNTRY AND SUBSEQUENTLY RESOLD AND CONSIGNED, EVEN WITHOUT HAVING UNDERGONE PROCESSING, BY THAT PURCHASER TO A PURCHASER ESTABLISHED IN A MEMBER STATE .

10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE NETHERLANDS AND ITALIAN GOVERNMENTS WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . 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 FINANZGERICHT MUENCHEN, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT MUENCHEN PURSUANT TO THE ORDER ISSUED BY THAT COURT ON 2 MARCH 1972, HEREBY RULES :

ARTICLE 1 OF REGULATION NO 565/68 MUST BE INTERPRETED AS MEANING THAT GOODS MUST BE CONSIDERED AS " COMING FROM " POLAND WHEN THEY REMAIN UNTIL THE MOMENT WHEN THEY ARE DELIVERED IN THE COMMUNITY AT THE DISPOSAL AND UNDER THE DIRECT CONTROL OF THE SELLER WHO IS BOUND VIS-A-VIS THE POLISH PEOPLE' S REPUBLIC TO COMPLY WITH THE UNDERTAKINGS ENTERED INTO WITH REGARD TO PRICES AND WHEN IN THE COURSE OF TRANSPORTATION THEY HAVE NOT BEEN GIVEN CUSTOMS CLEARANCE, PUT INTO FREE CIRCULATION OR PROCESSED IN ANY WAY .