C-41/97 · GlobalLawDB

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Judgment of the Court (Third Chamber)11 June 1998^noteIn Case C-41/97,REFERENCE to the Court under Article 177 of the EC Treaty by the Hof van Beroep, Antwerp, Belgium, for a preliminary ruling in the proceedings pending before that court betweenBelgian StateandFoodie BV (a company in liquidation) and Peter Nyssen,Internationaal Expeditiebedrijf Verhaert NV, andA. Maas & Co. NV and Jozef Picavet,THE COURT (Third Chamber),composed of: C. Gulmann, President of the Chamber, J. C. Moitinho de Almeida (Rapporteur) and J.-P. Puissochet, Judges,Advocate General: J. Mischo,Registrar: H. A. Rühl, Principal Administrator,after considering the written observations submitted on behalf of:— the Belgian State, by Erik Vervaeke, of the Antwerp Bar,— A. Maas & Co. NV and Mr Picavet, by Jan Tritsmans and Koen Maenhout, of the Antwerp Bar, and— the Commission of the European Communities, by Thomas van Rijn, Legal Adviser, acting as Agent,having regard to the Report for the Hearing,after hearing the oral observations of A. Maas & Co. NV and Mr Picavet and of the Commission at the hearing on 15 January 1998,after hearing the Opinion of the Advocate General at the sitting on 19 February 1998,gives the following

Judgment

1By judgment of 27 January 1997, received at the Court on 30 January 1997, the Hof van Beroep (Court of Appeal), Antwerp, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Commission Regulation (EEC) No 1767/82 of 1 July 1982 laying down detailed rules for applying specific import levies on certain milk products (OJ 1982 L 196, p.1).

2Those questions arose in the context of proceedings brought by the Belgian State against Foodie BV (a company in liquidation) and Mr Nyssen, against Internationaal Expeditiebedrijf Verhaert NV, and against A. Maas & Co. NV and Mr Picavet, concerning imports from Hungary of ‘Kashkaval’ cheese at a reduced rate of levy pursuant to Regulation No 1767/82.

3Article 1 of Regulation No 1767/82 provides, inter alia:1. The import levies applicable to the products listed in Annex II to Regulation (EEC) No 2915/79 shall be those listed in Annex I to this Regulation.2. The products listed in Annex I shall qualify for the abovementioned import levies only on production of an IMA 1 certificate drawn up according to the specimen in Annex II, subject to compliance with the conditions laid down in this Regulation.’

4Article 2 provides:1. The dimensions of the form referred to in Article 1(2) shall be 210 x 297 mm. The paper used shall weigh at least 40 g/m² and shall be white in colour.2. The forms shall be printed and completed in an official Community language. They may also be printed and completed in an official language of the exporting country in addition to an official Community language.3. The form shall be completed, either in typescript or in manuscript. Block letters shall be used for forms completed in manuscript.4. Each certificate shall bear a serial number allocated to it by the issuing agency.’

5Article 3 provides:1. A separate certificate must be drawn up for each type and each form of presentation of the products referred to in Article 1.2. The certificate must contain, in respect of each type and each form of presentation, the particulars set out in Annex III.’

6Article 5(1) provides:‘A certificate shall be valid only if duly completed and authenticated by an issuing agency listed in Annex IV.’

7Annex I to Regulation No 1767/82 refers to Kashkaval (point (1)) under Common Customs Tariff heading ex 04.04 E I b) 2. (Point (1) (ex 04.04 E I b) 2) of Annex I to Regulation No 1767/82 has since become point (o) (04069029) of Annex I to Commission Regulation (EEC) No 222/88 of 22 December 1987 amending certain measures on the application of the common market organisation in the milk and milk products sector following the introduction of the combined nomenclature (OJ 1988 L 28, p. 1) and subsequent regulations.)

8Annex III to Regulation No 1767/82, on rules for completing certificates, indicates:‘The following must be completed, in addition to boxes 1 to 6, 9, 17 and 18:...I. As regards Kashkaval cheeses listed under (1) in Annex I and falling within subheading 04.04 E I b) 2 of the Common Customs Tariff:1. Box 7 by specifying “Kashkaval cheese”,2. Box 10 by specifying “exclusively home-produced sheep's milk”,3. Boxes 11 and 12.’ (Annex III(I) has become Annex III(K) since the entry into force of Regulation No 222/88.)

9It appears from the facts as stated in the main proceedings that Foodie BV imported 860000 kilos of Kashkaval cheese from Hungary between December 1987 and October 1988. Each of the 16 import declarations relating to that cheese was accompanied, in accordance with Article 1(2) of Regulation No 1767/82, by an IMA 1 certificate stating that the cheese was Kashkaval cheese made from cows' milk. Import levies were charged at the preferential rate.

10The Belgian authorities found on inspection in October 1988 that the Kashkaval imported was produced from cows' milk. They took the view that under Regulation No 1767/82 such cheese must be produced exclusively from sheep's milk in order to qualify for the preferential treatment and, on 18 December 1989, they demanded payment by Foodie of the difference between the amount of the normal rate of levy and the preferential rate already paid.

11That amount was not paid and, on 8 January 1992, the Belgian State brought proceedings against Foodie, Mr Nyssen, Internationaal Expeditiebedrijf Verhaert NV, A. Maas & Co. NV and Mr Picavet (‘the respondents’) before the Rechtbank van Eerste Aanleg (Court of First Instance), Antwerp, for repayment of BFR 66424325, namely the amount of the supplementary levies (BFR 65177514) plus the securities lodged (BFR 1246811), being forfeit on the ground that the import certificates had been misused.

12By judgment of 29 June 1994, the Rechtbank dismissed the application by the Belgian State, which then appealed to the Hof van Beroep, Antwerp.

13It appears from the national court's judgment that the Belgian State argues that, in accordance with Regulation No 1767/82 and the instructions for completing box 10 of the IMA 1 certificate, Kashkaval must be made exclusively from sheep's milk in order to qualify for the preferential rate of import levies.

14The respondents, however, maintain that Kashkaval could also be produced from cows' milk — as is confirmed, they claim, by the fact that the Hungarian authority which completed the IMA 1 certificate expressly indicated that it was a cows' milk cheese, without its thereby losing its designation as Kashkaval.

15In the respondents' submission, Kashkaval did not have to be produced from sheep's milk in order to qualify for the preferential rate of import levy until the adoption of Commission Regulation (EEC) No 1225/90 of 10 May 1990 amending Regulation (EEC) No 1767/82 as regards the description of Kashkaval cheese (OJ 1990 L 120, p. 56).

16Under Article 1 of Regulation No 1225/90:1. in point (o) of Annex I, CN code “04069029” is replaced by “ex04069029” and the description “Kashkaval” is replaced by “Kashkaval cheese of sheep's milk, matured for at least two months, of a minimum fat content of 45% by weight in the dry matter and a dry matter content of at least 58%, in whole cheeses of a net maximum weight of 10 kg, whether or not wrapped in plastic”;2. point K of Annex III is replaced by the following:K. As regards Kashkaval cheeses listed under (o) in Annex I and falling within CN code ex 0406 90 29:(a) Box 7 by specifying ‘Kashkaval cheese of sheep's milk, matured for at least two months, of a dry matter content of at least 58%, in cheeses whether or not wrapped in plastic of a maximum net weight of 10 kg’;(b) Box 10 by specifying ‘exclusively home-produced sheep's milk’;(c) Box 11.”;...’

17Finally, in the alternative, if the preferential levy is not applicable, the respondents submit that any claim for an increased rate of levy is time-barred, the charging of the wrong rate of levy being due to an error in the IMA 1 certificate issued by the Hungarian authority, which must be deemed to be a competent authority in accordance with Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1).

18The national court notes, first, that the preamble to Regulation No 1225/90 refers solely to difficulties arising when the IMA 1 certificate is drawn up and leaves unresolved the question whether Kashkaval must be made solely from sheep's milk in order to qualify for the reduced rate of import levy.

19Secondly, it points out that Regulation No 1225/90 does not indicate what consequences are to be attached to the issue of an IMA 1 certificate stating in box 10 that it related to cheese made from cows' milk, when the regulation expressly stipulates that this box must contain the entry ‘home-produced sheep's milk’, or in particular whether, in such a case, it should be assumed that there was a failure to comply with the conditions specified for entitlement to the preferential rate of import levy.

20Having regard to the above considerations and taking the view that the remaining pleas raised by the respondents were dependent on the solutions to the problems of interpretation set out above, the Hof van Beroep decided to stay proceedings and requested a preliminary ruling by the Court on the following two questions:(1) Does “Kashkaval” in Regulation (EEC) No 1767/82 refer solely to cheese made from sheep's milk?(2) Does an IMA 1 certificate issued pursuant to Regulation (EEC) No 1767/82 but completed in a manner contrary to the instructions set out in the annexes to that regulation satisfy the requirements of Article 2 of that regulation, and, if not, does this result in forfeiture of entitlement to a reduced rate of import levy?’

The first question

21By its first question, the national court wishes to know whether only Kashkaval cheese made from sheep's milk can qualify for the preferential rate of levy or whether such cheese produced from cows' milk may also so qualify.

22A. Maas & Co. NV and Mr Picavet (‘Maas and Picavet’) submit that under Article 1(1) of Regulation No 1767/82 the preferential rate of import levy is applied to the products listed in Annex I, in which the cheese in question is described as ‘Kashkaval’ (tariff heading ex 04.04 E I b) 2), no distinction being drawn in the wording of that regulation according to whether the cheese is made from cows' milk or sheep's milk. The wording of the regulation, they argue, prevails over that of Annex III, which introduces such a distinction by specifying, in point I, that Kashkaval must be declared to be produced solely from home-produced sheep's milk.

23Maas and Picavet claim that their submission is shown to be correct by the fact that Regulation No 1225/90 amended the description ‘Kashkaval’ to ‘Kashkaval cheese of sheep's milk’, thus introducing a distinction with regard to the preferential rate of levy according to whether the cheese is made from sheep's milk or from cows' milk, only the former qualifying for that rate as from the entry into force of that regulation.

24In that regard, it must be noted that Article 1(2) of Regulation No 1767/82 provides that two conditions must be fulfilled in order to qualify for the preferential rate: production of an IMA 1 certificate drawn up according to the specimen in Annex II, and compliance with the conditions laid down in that regulation.

25In accordance with Article 3(2) of the same regulation, the certificate must contain the particulars set out in Annex III, point I of which requires ‘exclusively home-produced sheep's milk’to be indicated in Box 10 of the IMA 1 certificate.

26It is thus clear from those provisions that it is Kashkaval cheese produced exclusively from sheep's milk which qualifies for the preferential rate of levy.

27That conclusion cannot be affected by the fact, to which Maas and Picavet refer, that Annex I to Regulation No 1767/82 draws no distinction according to whether the Kashkaval is made from cows' milk or sheep's milk. That annex must be read in conjunction with Annex III to the same regulation, which indicates the raw material to be used for most of the cheeses concerned, listed under their description in Annex I.

28Furthermore, the intention of the Community legislature to grant the preferential rate of levy only for Kashkaval made from sheep's milk is also apparent from Regulation (EEC) No 2307/70 of the Council of 10 November 1970 amending, as regards certain cheeses, Regulation (EEC) No 823/68 determining the groups of products and the special provisions for calculating levies on milk and milk products (OJ, English Special Edition 1970 (III), p. 758), which introduces an autonomous preferential rate of levy for Kashkaval cheese. The third recital in the preamble to that regulation specifies ‘the sheep cheeses known as “Kashkaval”’.

29With regard, finally, to the argument drawn by Maas and Picavet from the amendment to the description of ‘Kashkaval’ made by Regulation No 1225/90 by the addition of the words ‘cheese of sheep's milk’, it need merely be pointed out that such an additional specification, which was introduced following difficulties arising in the description of that cheese when the IMA 1 certificate is drawn up, still does not change the rules applicable to Kashkaval as previously contained in the provisions of Regulation No 1767/82, read in conjunction with Annexes I and III thereto.

30The answer to the first question must therefore be that the Kashkaval cheese referred to in Regulation No 1767/82 is Kashkaval cheese made exclusively from sheep's milk.

The second question

31In its second question, the national court asks, first, whether an IMA 1 certificate completed in a manner contrary to the instructions set out in the annexes to Regulation No 1767/82 satisfies the requirements of that regulation and, second, whether it is impossible for products imported under such a certificate to benefit from the preferential rate provided for in that regulation.

32First of all, it must be pointed out that with regard to the first part of that question the national court refers to Article 2 of Regulation No 1767/82, whereas that article concerns only the material aspects of the IMA 1 certificate. The question raised can thus relate only to the requirements laid down in Article 1 of Regulation No 1767/82.

33Maas and Picavet observe that Article 5 of Regulation No 1767/82 provides that a certificate is to be valid only if duly completed and authenticated by an issuing agency listed in Annex IV, that requirement having been complied with in the present case, since the certificates were authenticated by the competent Hungarian issuing agency.

34As has been pointed out in paragraphs 24 to 26 above, indication on the IMA 1 certificate of the information listed in Annex III — in particular, for Kashkaval cheese, the indication ‘exclusively home-produced sheep's milk’ — is a prerequisite for the validity of that certificate, which, by virtue of Article 5(1) of Regulation No 1767/82, is valid only if it is duly completed.

35With regard to the second part of the question, Maas and Picavet submit that Regulation No 1767/82 does not lay down any express penalty in cases where the IMA 1 certificate has been incorrectly completed by the competent foreign agency, and consider that traders should not suffer the consequences of the fact that a detail on the certificate is not in compliance with the requirements of Annex III to that regulation, a fact which should thus not entail loss of entitlement to pay import levies at the reduced rate.

36In that regard, it must be recalled that Article 1 (2) of Regulation No 1767/82 provides that the products listed in Annex I are to qualify for the preferential rate of levy only if the conditions laid down in the regulation are complied with. It is stated, moreover, in the second recital in the preamble that ‘admission to tariff headings is no longer the sole factor to be considered for the purposes of applying the specific levy’.

37The answer to the second question must therefore be that an IMA 1 certificate completed in a manner contrary to the instructions set out in the annexes to Regulation No 1767/82 does not satisfy the requirements of that regulation, and that products imported under such a certificate may thus not benefit from the preferential rate provided for in that regulation.

Costs

38The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on 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 Hof van Beroep, Antwerp, by judgment of 27 January 1997, hereby rules:

1.The Kashkaval cheese referred to in Commission Regulation (EEC) No 1767/82 of 1 July 1982 laying down detailed rules for applying specific import levies on certain milk products is Kashkaval cheese made exclusively from sheep's milk.

2.An IMA 1 certificate completed in a manner contrary to the instructions set out in the annexes to Regulation No 1767/82 does not satisfy the requirements of that regulation; products imported under such a certificate may thus not benefit from the preferential rate provided for in that regulation.

Delivered in open court in Luxembourg on 11 June 1998.