154/84 · GlobalLawDB

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Judgment of the Court (Fourth Chamber)3 October 1985^noteIn Case 154/84REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Berlin, for a preliminary ruling in the proceedings pending before that court betweenFleischwaren- und Konserven-Fabrik (FKF) Schulz und Berndt GmbHandHauptzollamt [Principal Customs Office] Berlin-Süd,THE COURT (Fourth Chamber)composed of: G. Bosco, President of Chamber, P. Pescatore, T. Koopmans, K. Bahlmann and T. F. O'Higgins, Judges,Advocate General: P. VerLoren van ThemaatRegistrar: P. Heimafter considering the observations submitted on behalf of:Fleischwaren- und Konserven-Fabrik (FKF) Schulz und Berndt GmbH, the plaintiff in the main proceedings, by D. Ehle, V. C. Feldmann, V. Schiller and H. Nehm, of the Cologne Bar,the Commission of the European Communities, by its Legal Adviser, B. Jansen, acting as Agent,after hearing the Opinion of the Advocate General delivered at the sitting on 2 July 1985,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By order of 22 December 1983, which was received at the Court on 19 June 1984, the Finanzgericht Berlin referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty four questions, the first concerning the interpretation of Commission Regulation No 3584/81 of 14 December 1981, (Official Journal, L 359, p. 16) and the others concerning the interpretation and validity of certain articles of Commission Regulation No 1136/79 of 8 June 1979, (Official Journal, L 141 p. 10).

2Those questions were raised in a dispute between Fleischwaren- und Konserven-Fabrik (FKF) Schulz und Berndt GmbH (hereinafter referred to as ‘FKF’) and the Hauptzollamt Berlin-Süd.

3It is apparent from the documents before the Court that FKF produces preserves with a meat content of between 20% and 40%, excluding jelly. Between 6 September 1979 and 28 April 1980 FKF imported into the Federal Republic of Germany, where it has its registered office, consignments of frozen beef from Argentina. Those consignments were intended for the manufacture of preserves.

4Article 14 (1) of Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968 (I), p. 187), as amended by Council Regulation (EEC) No 425/77 of 14 February 1977 (Official Journal 1977, L 61, p. 1), provides that frozen meat intended for processing qualifies for the total suspension of the levy.

5In pursuance of that provision, no levy was charged on the frozen meat imported by FKF.

6Subsequently, however, the German customs authorities established that, in respect of part of the meat, FKF had not furnished proof in accordance with the detailed rules laid down by Regulation No-1136/79 that it had been processed into preserves.

7Article 2 (1) (b) of Regulation No 1136/79 lays down that security must be provided, in order to ensure that the meat is used for the purpose specified in Article 14 (1) of Regulation No 805/68. According to the first subparagraph of Article 2 (3), the security provided is not to be released unless, within seven months following the month of importation, proof is furnished that all or part of the imported frozen meat has been processed within three months following the month of importation.

8Article 2 (4) provides that the proof referred to in Article 2 (3) is not to be regarded as furnished unless the quantity of preserves manufactured from the imported frozen meat ‘is at least equivalent to the quantity imported’.

9According to the second subparagraph of Article 2 (4) the ‘coefficients for determining the quantity of frozen boned meat contained in a given quantity of preserves are set out in the Annex hereto’. That annex provides for a coefficient of 0.30 for preserves of the type manufactured by FKF, namely preserves, other than homogenized, with a meat content, excluding offal and fat, of 20% or more but less than 40%.

10However, by Regulation (EEC) No 3584/81 of 14 December 1981 (Official Journal, L 359, p. 16), which entered into force on 1 January 1982, the Commission added to Article 2 (4) of Regulation No 1136/79 the following subparagraph :‘If the quantity of meat required to make a product of the type indicated at 1.4 of the Annex differs markedly from the quantity given by application of the coefficient 0.30 specified for this type, the competent authority may under the system of administrative supervision accept specific proof of the quantity of frozen meat required to manufacture the product, in cases where this is requested by the processing concern appearing on the import licence’.

11In the case of frozen meat imported by FKF, the German customs authorities established that, if the coefficient of 0.30 provided for by Regulation No 1136/79 was applied to preserves with a meat content varying between 20% and 40%, the quantity of meat proved to have been processed was smaller than the quantity imported. The customs authorities therefore demanded that FKF pay the levy for the quantities of meat in respect of which proof of processing into preserves had not been furnished.

12FKF objected to that demand for payment on the ground that the quantity of meat which it had actually used for manufacturing preserves corresponded to a coefficient of 0.45 in relation to the total weight of the finished product, and not 0.30 as provided for in the annex to Regulation No 1136/79.

13The dispute was brought before the Finanzgericht Berlin which stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:(a) Is Commission Regulation (EEC) No 3584/81 of 14 December 1981 (Official Journal 1981, L 359, p. 16) a procedural provision which should be applied retroactively — that is, applied also to circumstances which arose before its adoption?If not:(b) Is Commission Regulation (EEC) No 1136/79 of 8 June 1979 (Official Journal 1979, L 141, p. 10) to be interpreted as meaning that proof of processing is to be furnished exclusively according to the so-called coefficient provision, even when the result is demonstrably incorrect?(c) Do the percentages of beef by weight set out in the annex to Regulation (EEC) No 1136/79 refer only to the beef still contained in the preserves, or do they also include the juice (jelly) exuded by the meat in processing?(d) Is Regulation (EEC) No 1136/79 invalid on the ground that it does not deal with the questions raised in paragraphs (b) and (c) above, and is the coefficient provision contrary to the principle of equality in that, for example, a coefficient of 0.30 is applied in the case of a beef content of 39% by weight, whereas for a beef content of 40% by weight a coefficient of 0.90 (three times as much) is applied?’

14FKF and the Commission of the European Communities have submitted observations on those questions pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

15By order of the Court of 30 January 1985, the case was assigned to the Fourth Chamber.

First question

16In its first question the Finanzgericht seeks to ascertain in substance whether Regulation No 3584/81 is applicable to the circumstances of the case. The Finanzgericht points out that those circumstances arose before the adoption of the regulation in question.

17According to FKF, the answer to this question depends on the nature of Regulation No 3584/81. If that regulation were deemed to contain a procedural rule, it would have to be applied retroactively. If, however, the regulation were deemed to contain a substantive rule, it could be applied only for the future (see the judgment of 12 November 1981 in Joined Cases 212 to 217/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735, and the judgment of 14 July 1983 in Case 224/82 Meiko-Konservenfabrik v Germany [1983] ECR 2539).

18In that regard FKF emphasizes that Regulation No 3584/81 supplements Article 2 (4) of Regulation No 1136/79 which lays down detailed rules for the application of the suspension of the levy, provided for by Article 14 of Regulation No 805/68. Accordingly, in FKF's view, Regulation No 3584/81 must be deemed to contain a procedural rule since it serves to regulate the manner in which a Community measure is to be applied by the national administrative authorities.

19The Commission, for its part, considers that Article 2 (4) of Regulation No 1136/79, as amended by Regulation No 3584/81, contains essentially substantive rules, namely a list of obligations which must be fulfilled if the meat is to qualify for suspension of the levy on importation.

20The Commission does not deny that paragraphs 3 and 4 of Article 2, in so far as they relate to the furnishing of proof that the abovementioned obligations have been fulfilled, are concerned with the procedure to be followed under the special import arrangements in question. However, in the Commission's view, those procedural rules are closely connected with the relevant substantive rules with the result that it is impossible to apply the amendment to Article 2 (4) which was made by Regulation No 3584/81 to situations which came into existence before the entry into force of that regulation.

21Moreover, the Commission points out that, according to the first subparagraph of Article 2 (3) of Regulation No 1136/79, proof that the imported meat has been processed into preserves must be furnished within seven months following the month of importation and, accordingly, Regulation No 3584/81 could never be applied to situations in respect of which the seven-month period expired before the regulation entered into force.

22In that regard it must be noted that whereas, as the Commission has observed, the procedural rules referred to in Article 2 (3) and (4) of Regulation No 1136/79 are very closely connected with the substantive rules governing the system of the suspension of the levy on frozen beef intended for the manufacture of preserves, the scope of those procedural rules must be assessed in the light of the objectives pursued by that system.

23The special import arrangements for frozen meat intended for the manufacture of preserves were laid down, as is stated in the seventh recital in the preamble to Regulation No 805/68, ‘in order to guarantee adequate supplies for the processing industries in the Community, while maintaining a preference for Communityproduced meat’.

24In that context, Regulation No 1136/79, as its title confirms, serves solely to lay down detailed rules for the application of the special system of suspension of the import levy, provided for by Regulation No 805/68.

25For those purposes, the Commission classified preserves manufactured from meat imported free of levy, other than homogenized preserves, into four categories according to meat content and fixed coefficients which, according to the Commission's intentions, as evinced in the fifth recital in the preamble to Regulation No 1136/79, should have taken into account the quantity of frozen meat necessary for the manufacture of the products in each category.

26However, as is apparent from the second recital in the preamble to Regulation No 3584/81 and from certain statements made by the parties at the hearing, the coefficient of 0.30 selected for preserves with a meat content varying between 20% and 40% proved to be inadequate, inasmuch as it did not reflect the quantity of meat actually required for the manufacture of the products in question.

27In the knowledge that the above situation created difficulties for a number of processing undertakings, the Commission initially proposed to raise the coefficient to 0.60 and finally adopted in Regulation No 3584/81 a solution close to that applied in the case of homogenized preserves since the adoption of Regulation No 1136/79. It was therefore acknowledged that the importers concerned could furnish proof that the quantity of meat necessary for the manufacture of one of the products in question differed substantially from the quantity resulting from the application of the coefficient of 0.30.

28In those circumstances, the conclusion must be drawn that it would be contrary to the purpose pursued by the Community legislature in suspending the levy for frozen meat intended for the manufacture of preserves not to permit the rule contained in Regulation No 3584/81 also to be applied to operations carried out before the entry into force of that regulation where the undertakings concerned have furnished proof, within the period prescribed by the first subparagraph of Article 2 (3) of Regulation No 1136/79, that the quantity of meat actually processed into preserves was greater than the quantity resulting from the application of the coefficient of 0.30.

29If the converse solution were adopted, traders who before the entry into force of Regulation No 3584/81 imported meat intended for manufacturing preserves with a meat content varying between 20% and 40% would be able, owing to the operation of the coefficient of 0.30, to benefit only partially from the suspension of the levy provided for by Regulation No 805/68, in spite of the fact that proof of the quantity of meat actually processed was furnished by them within the period prescribed by Regulation No 1136/79.

30It is for the national court to verify whether the period referred to in the first subparagraph of Article 2 (3) of Regulation No 1136/79 has been complied with in the present case.

31The answer to the Finanzgericht's first question must therefore be that Commission Regulation No 3584/81 of 14 December 1981 is also applicable to operations carried out before its entry into force, provided however that proof of the quantity of meat actually processed was furnished by the importers concerned within the period prescribed by the first subparagraph of Article 2 (3) of Commission Regulation No 1136/79 of 8 June 1979.

The remaining questions

32Since the remaining three questions were submitted by the Finanzgericht only in the event of a negative answer to the first question, it is unnecessary to answer them.

Costs

33The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Fourth Chamber),in answer to the questions referred to it by the Finanzgericht Berlin, by order of 22 December 1983, hereby rules: Commission Regulation (EEC) No 3584/81 of 14 December 1981 is also applicable to operations carried out before its entry into force, provided however that proof of the quantity of meat actually processed was furnished by the importers concerned within the period prescribed by the first subparagraph of Article 2 (3) of Commission Regulation (EEC) No 1136/79 of 8 June 1979.

Delivered in open court in Luxembourg on 3 October 1985.