Avis juridique important

Judgment of the Court (Fourth Chamber) of 2 August 1993. - Hans Dinter GmbH & Co. v Hauptzollamt Bad Reichenhall. - Reference for a preliminary ruling: Finanzgericht München - Germany. - Morello cherries in syrup - Protective measures. - Case C-81/92. European Court reports 1993 Page I-04601

Summary Parties Grounds Decision on costs Operative part

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Agriculture ° Common organization of the markets ° Products processed from fruit and vegetables ° Protective measures on the import of Morello cherries ° Purchase from an intermediary not established in the country of origin ° Price paid to the intermediary and resale price above the minimum import price ° Levying of a countervailing charge ° Not permissible

(Commission Regulation No 1626/85, as amended by Regulation No 1712/85)

Regulation No 1626/85 on protective measures applicable to imports of certain Morello cherries, as amended in the German, Greek, English, French, Italian and Dutch versions by Regulation No 1712/85, must be interpreted as meaning that the countervailing charge for which it provides in the event of the minimum import price not being respected cannot be levied if the importer has bought the goods from an intermediary who is not established in the country of origin of the goods, where it is certain that both the price paid by the importer to the intermediary and that importer' s subsequent resale price exceed the minimum price. In such a case, the purpose of Regulation No 1626/85, which is to protect the Community market from the sale of imported products at abnormally low prices, is achieved.

In Case C-81/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht Muenchen for a preliminary ruling in the proceedings pending before that court between

Hans Dinter GmbH

and

Hauptzollamt Bad Reichenhall,

on the interpretation of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries (OJ 1985 L 156, p. 13), as amended by Commission Regulation (EEC) No 1712/85 of 21 June 1985 amending the German, Greek, English, French, Italian and Dutch versions of Regulation (EEC) No 1626/85 (OJ 1985 L 163, p. 46),

THE COURT (Fourth Chamber),

composed of: C.N. Kakouris, President of the Chamber, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: G. Tesauro,

Registrar: J.-G. Giraud,

after considering the written observations submitted on behalf of:

° Hans Dinter GmbH, by Dr Dietrich Ehle, Rechtsanwalt, Cologne,

° the Greek Government, represented by Dimitrios Raptis, State Legal Adviser, and Panagiotis Athanassoulis, member of the State Legal Service, acting as Agents,

° the Commission of the European Communities, by Ulrich Woelker, of its Legal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 27 May 1993,

gives the following

Judgment

1 By order of 12 February 1992, received at the Court on 13 March 1992, the Finanzgericht Muenchen (Finance Court, Munich) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries (OJ 1985 L 156, p. 13), as amended by Commission Regulation (EEC) No 1712/85 of 21 June 1985 amending the German, Greek, English, French, Italian and Dutch versions of Regulation (EEC) No 1626/85 (OJ 1985 L 163, p. 46).

2 Those questions were raised in proceedings between Hans Dinter GmbH ("Dinter") and the Hauptzollamt (Principal Customs Office) Bad Reichenhall concerning the payment of a countervailing charge of DM 728 714.95, claimed from Dinter on the ground that the latter had not respected the minimum import price for Morello cherries.

3 A minimum import price is laid down in Regulation No 1626/85 as a protective measure for the importation of certain Morello cherries including "Morello cherries, preserved by freezing". Article 1(2) of that regulation provides that "if the minimum import price is not respected a countervailing charge as set out in the Annex shall be applied".

4 Article 2 of Regulation No 1626/85, as amended by Regulation No 1712/85, is worded as follows:

"1. The customs authorities shall, for each consignment at the time of completion of customs import formalities for free circulation, compare the import price with the minimum import price.

2. ...

3. The import price shall be declared on the entry for free circulation and the entry shall be accompanied by all the documents required to verify the price."

5 According to Article 3 of Regulation No 1626/85:

"1. The following factors shall constitute the import price:

(a) the fob price in the country of origin; and

(b) transportation and insurance cost up to the place of entry into the customs territory of the Community.

2. ...

3. If the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated or if the authorities are not satisfied that the price declared reflects the fob price in the country of origin, the competent authorities of the Member State shall take the necessary measures to determine that price, in particular by reference to the importer' s resale price."

6 Regulation No 1626/85, according to the second paragraph of Article 5, was applicable until 9 May 1986. That time-limit was extended until 9 May 1987 by Commission Regulation (EEC) No 1257/86 of 29 April 1986 (OJ 1986 L 113, p. 37).

7 It appears from the order of reference that from 1985 to 1987 Dinter imported and put in free circulation in the Federal Republic of Germany deep-frozen Morello cherries which originated in Yugoslavia. According to customs investigations, Dinter obtained its supplies exclusively from an intermediary, Kraus & Kraus in Vienna, which had bought the Morello cherries at a price lower than the minimum import price. However, it is not disputed that the price which Dinter paid to the intermediary as well as Dinter' s resale price both exceeded the minimum import price.

8 Having based its comparison with the minimum import price on the lower purchase price paid by the intermediary to the exporter in the country of origin, the Hauptzollamt claimed in various decisions the amount indicated above by way of countervailing charge.

9 Dinter brought an action against those decisions before the Finanzgericht Muenchen, arguing, essentially, that there was no reason to apply a countervailing charge because both its import price and its subsequent resale price exceeded the minimum import price. It maintained, moreover, that it was unaware of the purchase price paid by the intermediary, so that it was impossible for it to declare that price. According to Dinter, the German authorities should have taken Dinter' s resale price and not the purchase price paid by the intermediary as the basis for the comparison pursuant to Article 2(1) of Regulation No 1626/85.

10 The Finanzgericht considered that the outcome of the case depended on the interpretation of Regulation No 1626/85, whereupon it decided by order of 12 February 1992 to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

1. "Is Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries to be interpreted, having regard in particular to recitals two to six in the preamble to the regulation, as meaning that a countervailing charge may not be levied in cases where both the import price and the importer' s resale price exceed the minimum price?"

2. "Is the reply to the above question the same if the sale which is the basis of the importation was concluded between the importer and a seller who is not established in the country of origin?"

11 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the facts of the case, the Community provisions at issue, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

12 By its questions, the national court seeks essentially to establish whether Regulation (EEC) No 1626/85 must be interpreted as meaning that a countervailing charge cannot be levied if the importer has bought the goods from an intermediary who is not established in the country of origin of the goods, where both the price paid by the importer to the intermediary and the importer' s subsequent resale price exceed the minimum price.

13 The first point to note is that, according to the first two recitals in the preamble thereto, Regulation No 1626/85 has as its purpose to introduce measures to protect the Community market in certain Morello cherries, which, as a result of imports from non-member countries, is exposed to serious disturbances which might endanger the objectives set out in Article 39 of the EEC Treaty.

14 As indicated in the third and fourth recitals in the preamble to that regulation, the protective measures should be such as to exclude the marketing of imported products at abnormally low prices. That objective can be achieved by introducing a minimum import price which must be respected on importation into the Community and by levying countervailing charges where that price is not respected. Since the regulation thus aims to ensure that the relevant products are imported into the Community at a price which is at least equal to the minimum price, it is the price paid by the importer which must serve as the basis for comparison.

15 In that regard, Article 3(1) of Regulation No 1626/85 specifies that the import price comprises the fob price in the country of origin, plus the transportation and insurance cost up to the place of entry into the customs territory of the Community. It is that price, so constituted, which must, as a general rule, be taken into account by the authorities of the importing Member State as the basis for carrying out the comparison provided for by Article 2(1) of the regulation.

16 Nevertheless, it should be noted that Article 3(1) of the regulation governs the normal situation where the sale is concluded by the importer with an exporter established in the country of origin of the goods, and not the situation where a sale is concluded between the importer and an intermediary who is not established in the country of origin of the goods.

17 The method of determining the import price in the latter situation is provided for in Article 3(3) of the regulation, which applies when the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated. That provision lays down that in those circumstances the import price is determined in particular by reference to the importer' s resale price.

18 That method applies only in the absence of other factors or if the customs authorities are doubtful as to the price shown on the invoice. If it is certain that the price paid to the intermediary by the importer and the importer' s subsequent resale price exceed the minimum import price, the purpose of Regulation No 1626/85 has been achieved. It is therefore on the basis of those prices that the comparison must be made.

20 In the light of the foregoing, the conclusion must be drawn that there is no justification for the interpretation whereby the initial price of the goods paid by the intermediary should be taken into consideration in a case such as this, because such an interpretation goes beyond what is necessary to achieve the aim pursued by Regulation No 1626/85.

21 Accordingly, the answer to the questions submitted by the national court must be that Regulation No 1626/85, as amended, is to be interpreted as meaning that a countervailing charge cannot be levied if the importer has bought the goods from an intermediary who is not established in the country of origin of the goods, where it is certain that both the price paid by the importer to the intermediary and the importer' s subsequent resale price exceed the minimum price.

Costs

22 The costs incurred by the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. 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.

On those grounds,

THE COURT (Fourth Chamber),

in answer to the questions referred to it by the Finanzgericht Muenchen, by order of 12 February 1992, hereby rules:

Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries, as amended by Commission Regulation (EEC) No 1712/85 of 21 June 1985 amending the German, Greek, English, French, Italian and Dutch versions of Regulation (EEC) No 1626/85, must be interpreted as meaning that a countervailing charge cannot be levied if the importer has bought the goods from an intermediary who is not established in the country of origin of the goods, where it is certain that both the price paid by the importer to the intermediary and the importer' s subsequent resale price exceed the minimum price.