Handelsonderneming J. Mikx BV v Minister van Economische Zaken (90/85)

Contents

Judgment of the Court (Third Chamber)15 May 1986^noteIn Case 90/85REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry], The Hague, for a preliminary ruling in the proceedings pending before that court betweenHandelsonderneming J. Mikx BV, GroningenvMinister van Economische Zaken [Minister for Economic Affairs], The HagueTHE COURT (Third Chamber)composed of: U. Everling, President of the Chamber, Y. Galmot and C. Kakouris, Judges,Advocate General: Sir Gordon SlynnRegistrar: J. A. Pompe, Deputy Registrarafter considering the observations submitted on behalf of the Commission of the European Communities, by A. Riem, a member of its Legal Department, acting as Agent,after hearing the Opinion of the Advocate General delivered at the sitting on 27 February 1986,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 an order of 29 March 1985, which was received at the Court on 4 April 1985, the College van Beroep voor het Bedrijfsleven, The Hague, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 2 (1) of Council Regulation No 3420/83 of 14 November 1983 on import arrangements for products originating in State-trading countries, not liberalized at Community level (Official Journal 1983, L 346, p. 6), read together with Annex III thereto.

2The questions arose in proceedings between J. Mikx BV, Groningen (hereinafter referred to as ‘the plaintiffc’) and the Netherlands Minister for Economic Affairs (hereinafter referred to as ‘the defendant’) concerning the Minister's refusal to grant the plaintiff a licence to import shot-cartridges originating in Czechoslovakia.

3The application for an import licence was for one million sporting shot-cartridges for smoothbore guns, calibre 12, originating in Czechoslovakia. 500000 of the cartridges, marked ‘Skeet’, contained shot with a diameter of 2 mm and the other 500000 cartridges, marked ‘Trap’, contained shot with a diameter of 2.5 mm A licence to import the latter cartridges was refused on the ground that the quota allocated to the Benelux countries for sporting cartridges was exhausted. However, a licence was granted for the remainder of the cartridges, which were regarded as target-shooting cartridges.

4According to the arguments put forward by the plaintiff before the national court, the criterion for distinguishing between sporting and target-shooting cartridges must be sought in the purpose for which they are to be used, which is indicated in particular by the markings on the cartridge case.

5The defendant, however, suggests that the criterion should be the diameter of the shot contained in the cartridge and contends that cartridges containing shot of a diameter of 2 mm or less are not generally intended for hunting (except for snipe).

6Since it considered that it was necessary to obtain an interpretation of Community law in order to resolve the dispute, the College van Beroep submitted the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 2 (1) of Regulation No 3420/83, read together with Annex II thereto, Common Customs Tariff subheading No 93.07 B II (a), Nimexe Code (1983) Nos 93.07-45 and 93.07-49 and the note pertaining thereto be interpreted as meaning that the import restrictions on cartridges from Czechoslovakia cover all shot-cartridges which are suitable for hunting regardless of whether such cartridges are also suitable for target shooting?(2) If the first question must be answered in the negative, should the scheme of the provisions referred to therein be interpreted as meaning that, although shot-cartridges are in principle suitable for hunting, they are not subject to the quantitative import restrictions if they are intended to be used in target shooting?’

The rules applicable

7Before the questions referred to the Court are examined, it should be recalled that Article 2 (1) of Regulation No 3420/83 provides that ‘the putting into free circulation of the products listed in Annex III originating in State-trading countries shall be subject’ to quantitative restrictions in the Member States as indicated in that Annex against those products'. It appears from that annex that products falling under subheading 93.07 B II (a) of the Common Customs Tariff (Nimexe Code Nos 93.07-45 and 93.07-49) and generally described as ‘sporting and target-shooting cartridges’ without any distinction are, in the Benelux countries, ‘partially under quantitative restrictions’. The exact description of the goods contained in the note to that annex against Nimexe Code Nos 93.07-45 and 93.07-49 is, for the Benelux countries: ‘sporting cartridges’. ‘Target-shooting cartridges’ are not mentioned therein and consequently, by virtue of the first paragraph of Article 6 of Regulation No 3420/83, are not subject to any quantitative restrictions on imports.

8Acting pursuant to those provisions, the Council, in Decision No 83/675 of 19 December 1983 (Official Journal L 381, p. 1), fixed the quota for ‘sporting cartridges for smoothbore guns’ originating in Czechoslovakia to be opened in the Benelux countries in 1984 at 120000 units (Annex VI to the decision). ‘Target-shooting cartridges’ are not mentioned in that decision.

9It is clear from those provisions that a distinction is drawn between ‘sporting cartridges’ and ‘target-shooting cartridges’ and that only sporting cartridges are subject to quantitative restrictions.

The first question

10As can be seen from the wording of the national court's first question, that court considers that certain cartridges are suitable for both hunting and target shooting and on the basis of that view raises the question whether such cartridges are subject to the restriction on imports of cartridges originating in Czechoslovakia.

11The plaintiff, without expressly repeating the argument which it put forward before the national court to the effect that a distinction should be drawn between cartridges according to their intended use, briefly points out that the Centrale Dienst voor In-en-Uitvoer issues import licences for Czechoslovakian cartridges put into free circulation in the Federal Republic of Germany, where the importation of sporting cartridges originating in Czechoslovakia is entirely free of restrictions.

12The Commission, after explaining the historical background to the current version of subheading 93.07 B II (a) of the Common Customs Tariff, maintains in its observations that a comparison of the descriptions in Annex II to Regulation No 3420/83 and Annex VI to Decision No 83/675 with the wording of subheading 93.07 B II (a) of the Common Customs Tariff and Nimexe Code heading 93.07-45 and 93.07-49 leads it to conclude that target-shooting cartridges and in particular those for smoothbore guns are not subject to any quantitative restriction in accordance with Article 6 of Regulation No 3420/83. However, the Commission considers that in the present state of Community law the wording of the provisions in question provides no criterion making it possible to draw a suitable distinction between the two types of shot-cartridges; the criterion of intended use must be rejected because it makes effective supervision impossible.

13It accepts that, if no distinction was made between sporting cartridges and target-shooting cartridges, the result would be a very severe limitation on imports of target-shooting cartridges which to a certain extent would be incompatible with the letter and spirit of provisions of Community law, in particular of Regulation No 3420/83. However, the Commission, while stating that it is perfectly aware of the difficulties which may arise from its proposed answer, considers that it must suggest that the Court reply to the first question by ruling that ‘the import restrictions on cartridges from Czechoslovakia apply to all shot-cartridges which are suitable for hunting regardless of whether they are also suitable for target-shooting’.

14It must be observed first of all that the difficulty which the national court has encountered is due to the fact that the abovementioned provisions make a clear distinction between ‘sporting cartridges’ and ‘target-shooting cartridges’ whereas in reality, as was shown during the proceedings, the objective technical characteristics of most cartridges make them suitable for both types of use and only a limited number of them can be used only for hunting or only in target-shooting.

15Secondly, the plaintiff's view that a distinction must be drawn between cartridges which are suitable for both uses on the basis of their intended use must be rejected. The intended use of cartridges, which is not one of their inherent characteristics, cannot be relied on as an objective criterion at the time of importation because it is impossible at that time to determine the actual use to which they will be put.

16The question is therefore whether the restriction in question also covers cartridges suitable for both uses and not just cartridges suitable only for hunting.

17In order to reply to that question, it must be pointed out that the Court does not have before it any information on the basis of which the present purpose of the restriction may be determined with certainty. However, as emerged at the hearing, the quota system for sporting cartridges existed in trade between the Benelux countries and Czechoslovakia before the establishment of the common commercial policy and was intended to protect production of that type of cartridge in the Benelux countries. That system was adopted and applied by the Community in the form in which it existed.

18Those considerations lead to the conclusion that the restriction in question is intended to bring within the quota system all cartridges suitable for hunting, since all such cartridges compete with the protected products. That interpretation is supported by the fact that the initial quotas were progressively increased by the Community with a view to promoting trade with the State-trading countries but without liberalizing it completely.

19The reply to the first question must therefore be that Article 2 (1) of Regulation No 3420/83, read together with Annex II thereto, Common Customs Tariff subheading No 93.07 B II (a), Nimexe Code (1983) Nos. 93.07-45 and 93.07-49 and the note pertaining thereto must be interpreted as meaning that the import restrictions on cartridges from Czechoslovakia cover all shot-cartridges which are suitable for hunting regardless of whether such cartridges are also suitable for target shooting.

20In view of the reply which has been given to the first question, it is not necessary to reply to the second question.

Costs

21The 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 pending before the national court, the decision as to costs is a matter for that court.

Operative part

On those grounds,THE COURT (Third Chamber),in answer to the questions referred to it by the College van Beroep, by order of 29 March 1985, hereby rules: Article 2 (1) of Regulation No 3420/83, read together with Annex III thereto, Common Customs Tariff subheading No 93.07 B II (a), Nimexe Code (1983) Nos 93.07-45 and 93.07-49 and the note pertaining thereto must be interpreted as meaning that the import restrictions on cartridges from Czechoslovakia cover all shot-cartridges which are suitable for hunting regardless of whether such cartridges are also suitable for target shooting.

Delivered in open court in Luxembourg on 15 May 1986.