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Court of Justice of the European Union

Case Law in the field of Customs Union Law

Cases 1989 – 1995

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Joined Cases 92/87 and 93/87, 22 February 1989 (Commission v France and United Kingdom)

Commission v France and United Kingdom Non-recovery of monetary compensatory amounts in connection with trianagular inward processing traffic.

1. Free movement of goods - Trade with non-member countries - Inward processing arrangements - Triangular operations authorized by the national authorities after consultation with the Commission - Failure to levy intra-Community monetary compensatory amounts - Subsequent challenge by the Commission on the ground that traders had obtained an unjustified advantage - Not permissible (Commission Directive 75/349, Art. 4)

2. Community law - Principles - Legal certainty - Rules imposing charges - Requirement of clarity and precision

1. Having laid down, at the request of the national authorities dealing with an application by traders for the benefit of inward processing arrangements for triangular operations, the procedure to be followed for the application of Directive 75/349 to such triangular operations, the Commission must have taken the view that those operations could be authorized under that procedure without involving a notional trade in goods between the Member States concerned giving rise to the levying of intra-Community monetary compensatory amounts . Accordingly, the Commission cannot subsequently complain of those Member States' failure to foresee the possibility of levying such compensatory amounts and to consider that the benefit of inward processing arrangements had to be refused on account of the unjustified advantage, within the meaning of Article 4 of the aforesaid directive, gained by the traders concerned from non-payment of such monetary compensatory amounts.

2. The principle of legal certainty requires that rules imposing charges on the taxpayer must be clear and precise so that he may know without ambiguity what are his rights and obligations and may take steps accordingly.

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Case 234/87, 20 January 1989 (Casio Computer)

Casio Computer Co. GmbH Deutschland v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Calculating machines - Automatic data-processing machines.

1. Common Customs Tariff - Interpretation - Adaptable to technical progress - No

2. Common Customs Tariff - Tariff headings - Electronic devices designed for calculating and for other purposes - Classification, as automatic data-processing machines, in heading 84.53 - Simple programming language - Irrelevant

1. If, as regards the classification of goods for customs purposes, technical developments justify the drawing up of a new customs classification, it is for the competent Community institutions to take account of it by amending the Common Customs Tariff. Failing such an amendment, the interpretation of the tariff cannot be adapted to changing processes. Any other interpretation would not comply with the requirements of legal certainty and the requirement that the checks which must be carried out when clearing customs should be easy to operate.

2. Electronic devices which are essentially designed for calculating, but also for other operations, and which correspond to the criteria set out in Note 3 A (a) to Chapter 84 of the Common Customs Tariff, are automatic data processing machines within the meaning of tariff heading 84.53 even if they are programmable by a method that is more simple to use than, for example, the programming language BASIC.

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Case 245/87, 28 February 1989 (Blaupunkt)

Blaupunkt-Werke GmbH v Oberfinanzdirektion Berlin. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Composite video camera-recorder.

Subheading 92.11 B of the Common Customs Tariff must be interpreted as meaning that it includes composite apparatus incorporating within the same housing a television camera and a video recorder which is unable to record television programmes except by means of an accessory which must be obtained separated in so far as the accessory has only a secondary function in the recording of television programmes and its price is negligible in relation to the price of the composite apparatus.

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Case 275/87, 2 February 1989 (Commission v Council)

Commission of the European Communities v Council of the European Communities EEC Treaty - Article 235 – Scope - Use of Article 235 to regulate, under temporary importation arrangements which can be established on the basis of other provisions of the Treaty, the use of containers in internal traffic - Unlawful (EEC Treaty, Art. 235; Council Regulation No 2096/87)

It follows from the very wording of Article 235 that its use as a legal basis for a measure is justified only if no other provision of the Treaty gives the Community institutions the necessary power to adopt that measure (see judgment of 26 March 1987 in Case 45/86 [1987] ECR 1493).

No such justification is available since it involves the insertion into a regulation introducing temporary importation arrangements for containers and capable of adoption on the basis of Articles 28 and 113 of the Treaty of a provision regulating the use of such containers in internal traffic. In fact it is sufficient to establish that that legislation is an essential part of the arrangements for the temporary importation of containers and cannot be divorced from it having regard to the basis for its adoption.

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Case 303/87, 15 March 1989 (Universität Stuttgart)

Universität Stuttgart v Hauptzollamt Stuttgart-Ost. Reference for a preliminary ruling: Finanzgericht Baden-Württemberg - Germany.

Common Customs Tariff - Exemptions for scientific apparatus - Equivalent scientific value.

Common Customs Tariff - Importation free of customs duties - Scientific instruments and apparatus - Equivalence of the imported apparatus and other apparatus manufactured in the Community - Assessment - Equivalence obtained by the attachment of an accessory (Council Regulation No 918/83, Art. 54)

Under the conditions for exemption from customs duties on scientific instruments and apparatus laid down in Regulation No 918/83, the fact that a scientific apparatus manufactured in the Community meets the requirements of a research project only if fitted with an accessory available on the market does not affect the assessment that the latter apparatus is equivalent to an imported apparatus.

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Case 340/87, 30 May 1989 (Commission v Italy)

Commission of the European Communities v Italian Republic. Failure by a Member State to fulfil its obligations - Inspections and administrative formalities in respect of the transport of goods - National legislation not in accordance with the obligations laid down in Community law.

Free movement of goods - Customs duties - Charges having an equivalent effect - Charging traders the cost of transactions carried out by frontier customs offices during normal business hours as laid down by Community provisions - Not permissible ( EEC Treaty, Arts 9 and 12; Council Directive 83/643, as amended, Art. 5(1)(a))

To charge traders in respect of intra-Community trade the cost of inspections and administrative formalities carried out during part of the normal business hours of customs offices at frontier posts as determined by the second indent of Article 5(1)(a ) of Directive 83/643, as amended by Directive 87/53, constitutes a failure by a Member State to fulfil its obligations under Articles 9 and 12 of the Treaty . In the case of a haulier who attends at a customs office during its normal business hours there is no specific service actually and individually rendered to him for which a charge may be made, in an amount proportionate to that service, without infringing the said provisions of the Treaty.

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Case 378/87, 23 May 1989 (Top Hit)

Top Hit Holzvertrieb GmbH v Commission of the European Communities. Post-clearance recovery of import duties – Wooden shelving.

1. Action for annulment - Time-limit - When time begins to run - Decision notified to the applicant by the national authorities - Precise knowledge of the decision's contents (EEC Treaty, Art. 173, third paragraph)

2. European Communities' own resources - Post-clearance recovery of import or export duties - Importer complying with the conditions set out in Article 5(2) of Regulation No 1697/79 - Post-clearance recovery - Barred (Council Regulation No 1697/79, Art. 5(2))

3. Customs union - Harmonization of laws - Procedures for the release of goods into free circulation - Obligations of the person making the customs declaration (Council Directive 79/695, Art. 3(1); Commission Directive 82/57, Art. 2)

1. It is only from the moment when a trader receives clear and unequivocal notice, so that he can exercise his right of action, of the contents of an institution' s decision, addressed to a Member State, refusing to allow a provision of the Community rules to be applied to him, that time for bringing an action for annulment begins to run .

2. Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties, which lays down three precise conditions to be fulfilled before the competent authorities may waive post-clearance recovery, must be interpreted as meaning that when all those conditions are fulfilled the person liable to pay duties is entitled to the waiver of post-clearance recovery.

3. It is clear from Article 3(1) of Directive 79/695, on the harmonization of procedures for the release of goods for free circulation, and Article 2 of Directive 82/57, laying down certain provisions for implementing Directive 79/695, that the person making a customs declaration for the purpose of the release of goods for free circulation must supply the customs authorities with all the information required in relation to the customs treatment requested for the goods in question.

Where the tariff classification of the goods depends on the application of a particular customs system, such as a system providing for exemption from duties, that obligation also includes the determination of the correct subheading of the Common Customs Tariff. If on the sole basis of their description or appearance goods cannot be classified with sufficient accuracy under a particular subheading of the Common Customs Tariff, the person making the declaration must give all other relevant information relating in particular to the characteristics and intended use of the goods in order to enable them to be classified correctly.

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Case 386/87, 9 November 1989 (Bessin and Salson)

Bessin et Salson v Administration des douanes et droits indirects. Reference for a preliminary ruling: Tribunal d'instance de Paris 1er - France.

Repayment of import duties.

Own resources of the European Communities - Repayment or remission of import or export duties - Regulation No 1430/79 - Temporary application - Inapplicability to an application for repayment submitted after the entry into force of the regulation in respect of duties paid prior thereto - Absence of Community rules - Application of national law - Limits - General principles of Community law - National rules imposing a mandatory time-limit of three years for the submission of applications for repayment - Whether permissible (Council Regulation No 1430/79, Art. 27)

The provisions of Regulation No 1430/79 on the repayment or remission of import or export duties do not apply in a case where an application for repayment of import duties was submitted to the competent authorities of a Member State by an importer after that regulation had entered into force in respect of duties paid prior thereto.

In the absence of applicable Community rules, it is not contrary to the general principles of Community law for the national legislation of a Member State to provide for a mandatory time-limit of three years, where there are no grounds of force majeure to be taken into account, for the submission of all applications for repayment of duties unduly levied.

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Case 19/88, 28 February 1989 (ICT and Others)

International Container et Transport (ICT) and BFI Électronique SA v Direction Générale des Douanes et Droits Indirects de Roissy.

Reference for a preliminary ruling: Tribunal d'instance d'Aulnay-sous-Bois - France.

Common Customs Tariff - Electronic components testers.

Common Customs Tariff – Headings - 'Apparatus for measuring electrical quantities' within the meaning of subheading 90.28 A II (a) - Apparatus intended for checking electronic components for conformity - Exclusion

Apparatus for measuring electrical quantities within the meaning of subheading 90.28 A II (a) of the Common Customs Tariff does not include apparatus which effects such measurements only for the purpose of checking electronic components for conformity.

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Case 22/88, 29 June 1989 (Vreugdenhil and Others)

Industrie- en Handelsonderneming Vreugdenhil BV and Gijs van der Kolk - Douane Expediteur BV v Minister van Landbouw en Visserij. Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands.

Agriculture - Arrangements for returned goods - Application to products from intervention

Common Customs Tariff - Importation free of import duties - Arrangements for goods returned to the customs territory of the Community - Products excluded from the arrangements - Exhaustive set of rules laid down by the Council - Amendment by the Commission on the basis of its implementing powers in agricultural matters - Not permissible - Provision whereby products previously held in intervention are to be treated as products excluded from the arrangements for returned goods - Illegal (Council Regulation No 754/76, Art. 2(1); Commission Regulation No 1687/76, Art. 13a)

The wide interpretation of the implementing powers of the Commission in agricultural matters can be accepted only in the specific framework of the rules on agricultural markets . It cannot be relied upon to justify a provision adopted by the Commission on the basis of its implementing powers in agricultural matters where the purpose of the provision lies outside that sphere but within a sector subject to an exhaustive set of rules laid down by the Council. Thus, neither the influence which the application of the arrangements for returned goods may have on the functioning of the intervention machinery nor the need to prevent fraud can enable the Commission, in the absence of any power to that effect, to amend the scope of Council Regulation No 754/76 on the customs treatment applicable to goods returned to the customs territory of the Community, so as to exclude, as it did by adopting Article 13a of Regulation No 1687/76, inserted in that Regulation by Regulation No 45/84, agricultural products previously held in intervention . Consequently, Article 13a is invalid.

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Case C-26/88, 13 December 1989 (Brother International)

Brother International GmbH v Hauptzollamt Gießen. Reference for a preliminary ruling: Hessisches Finanzgericht - Germany.

Origin of goods - Assembly of previously manufactured components

1. Origin of goods - Determination - Substantial process or operation - Exclusion of simple assembly operations - Definition (Regulation No 802/68 of the Council, Art. 5)

2. Origin of goods - Determination - Substantial process or operation - Assembly operation - Conditions for taking into account (Regulation No 802/68 of the Council, Art. 5)

3. Origin of goods - Determination - Presumption of intention to circumvent certain provisions applicable to goods from specific countries in relation to the place of the process or operation - Transfer of assembly operations from the country of production of the components - Conditions giving rise to and effects of the presumption (Regulation No 802/68 of the Council, Art. 6)

1. Simple assembly operations do not come within the definition of a substantial process or operation to be taken into account in determining the origin of goods within the meaning of Article 5 of Regulation No 802/68, interpreted in the light of the provisions of the International Convention on the simplification and harmonization of customs procedures, which have been accepted by the Community. Simple assembly operations are those that do not require staff with special qualifications for the work in question or sophisticated tools or specially equipped factories for the purposes of assembly. Such operations cannot be held to be such as to contribute to the essential characteristics or properties of the goods in question.

2. It is clear both from Article 5 of Regulation No 802/68 and the provisions of the International Convention on the simplification and harmonization of customs procedures, which have been accepted by the Community, that the mere assembly of previously manufactured parts originating in a country different from that in which they were assembled is sufficient to confer on the resulting product the origin of the country in which assembly took place, provided that from a technical point of view and having regard to the definition of the goods in question such assembly represents the decisive production stage during which the use to which the component parts are to be put becomes definite and the goods in question are given their specific qualities . If the application of that criterion is not conclusive, it is necessary to examine whether all the assembly operations in question result in an appreciable increase in the commercial, ex-factory value of the finished product. On the other hand, it is not necessary to determine whether the assembly involves any intellectual contribution.

3. Article 6 of Regulation No 802/68 on the common definition of the concept of the origin of goods must be interpreted as meaning that the transfer of assembly from the country in which the parts were manufactured to another country in which use is made of existing factories does not in itself justify the presumption that the sole object of the transfer was to circumvent the provisions applicable in the Community or the Member States to goods from certain countries unless the transfer of assembly coincides with the entry into force of the relevant regulations . In that case, the manufacturer concerned must prove that there were reasonable grounds, other than avoiding the consequences of the provisions in question, for carrying out the assembly operations in the country from which the goods were exported.

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Case 37/88, 27 September 1989 (Rheinkrone-Kraftfutterwerk)

Rheinkrone-Kraftfutterwerk Gebr. Hübers GmbH & Co. KG v Hauptzollamt Hamburg-Jonas. Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.

Agriculture - Monetary compensatory amounts - Mixture of wheat flour and wheat bran - Regulation Nº 1371/81

Agriculture - Monetary compensatory amounts - Determination - "Mixtures" within the meaning of Article 30(3) of Regulation No 1371/81 - Concept (Commission Regulation No 1371/81, Art. 30(3))

Article 30(3) of Regulation No 1371/81 laying down detailed rules for the administrative application of monetary compensatory amounts must be interpreted as meaning that the term "mixtures" refers to all products composed of two or more substances, irrespective of their tariff classification, and applies to mixtures falling under Chapters 2, 10 or 11 of the Common Customs Tariff even if certain components of those mixtures fall under another chapter of the Common Customs Tariff.

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Case 40/88, 25 May 1989 (Weber)

Paul F. Weber (in liquidation) v Milchwerke Paderborn-Rimbeck eG. Reference for a preliminary ruling: Landgericht Paderborn - Germany.

Common Customs Tariff - Subheadings 04.02 A II (b) 1 and 21.07 D II (a) 1 - Skimmed-milk powder.

1. Common Customs Tariff - Tariff headings - Classification of goods - Criteria - Characteristics and objective properties - Manufacturing processes and geographical origin of the constituents - Processing of the product - Conditions to be taken into account

2. Common Customs Tariff - Tariff headings - Skimmed-milk powder within the meaning of subheading 04.02 A II (b) 1 - Product comprising inter alia 10.6% sodium caseinate - Exclusion - Classification under subheading 21.07 D II (a) 1

1. In the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters. Manufacturing processes and the geographical origin of certain of the constituents used in a product are decisive only when the relevant subheading expressly so provides. The classification for customs purposes of a product also cannot be affected by the fact that it has undergone processing if the processed product thereafter contains the essential constituents of the basic product in proportions which do not differ substantially from the content in those constituents which the relevant product exhibits in its natural state. That condition will not be fulfilled if the product contains a substance not found in the product in its natural state in a proportion greater than is necessary to make the product more like the product in its natural state.

2. Subheading 04.02 A II ( b ) 1 of the Common Customs Tariff, dealing with skimmed-milk powder, must be interpreted as not including a product composed of 23.4% skimmed-milk powder, 42.3% powdered whey, 16.2% lactose, 7.1% calcium caseinate, 10.6% sodium caseinate and 0.4% other substances since milk in its natural state does not contain sodium caseinate and the addition of quantities of that substance may be tolerated, if it is necessary in order to promote emulsion and improve the taste of the product, only up to a limit of 3% by weight of the product . Since there is no more specific subheading which may be interpreted as including such a product, it must be placed under subheading 21.07 D II ( a ) 1 of the Common Customs Tariff, a residual subheading dealing with food preparations.

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Case 68/88, 21 September 1989 (Commission v Greece)

Commission of the European Communities v Hellenic Republic. Failure of a Member State to fulfil its obligations - Failure to establish and make available the Community's own resources.

1. Own resources of the European Communities - Establishment and making available by the Member States - Credit to the Commission' s account - Late – Obligation to pay default interest (Council Regulation No 2891/77, Art. 11)

2. Member States - Obligations - Obligation to penalize infringements of Community law - Scope (EEC Treaty, Art. 5)

1. There is an inseparable link between the obligation to establish the Community's own resources, the obligation to credit them to the Commission's account within the prescribed time-limit and the obligation to pay default interest . The interest is payable regardless of the reason for the delay in making the entry in the Commission's account.

2. Where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member State to take all measures necessary to guarantee the application and effectiveness of Community law.

For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive . Moreover, the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws.

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Case C-117/88, 7 March 1990 (Trend-Moden Textilhandel)

Trend-Moden Textilhandels GmbH v Hauptzollamt Emmerich. Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

Free movement of goods - Proof of Community status of goods

Free movement of goods - Community transit - Community status of goods - Means of proof limited to forms T2 and T2L alone - Compatibility with Articles 9 and 10 of the Treaty (EEC Treaty, Arts 9 and 10; Council Regulation No 222/77; Commission Regulation No 223/77)

The rule laid down in Regulation Nos 222/77 and 223/77 on Community transit that only transit documents T2 or T2L may be used to prove the Community status of goods to the customs authorities of the importing Member State, unless Community legislation provides otherwise, cannot be regarded as contrary to Articles 9 and 10 of the Treaty.

Articles 9 and 10 are silent as to the means of proof and the burden of proof of the Community status of goods. They leave it to secondary Community legislation to settle those matters, and, moreover, the provision of a standard and simple means of proof, combined with the possibility of producing such proof even after the frontier has been crossed, is justified by the need to facilitate the movement of goods across the Community's internal frontiers, which is one of the basic principles of the common market.

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Joined cases C-153/88 to C-157/88, 7 March 1990 (Fauque and Others)

Criminal proceedings against Gérard Fauque and Others Reference for a preliminary ruling: Cour d'appel de Versailles - France.

Imports of textile products originating in developing countries - Determination of the import quota.

Common commercial policy - Rules governing imports of products originating in non-member countries which are parties to the Multifibre Arrangement - System of generalized tariff preferences for developing countries - Importation of tents from South Korea - Application of tariff preference ceilings and quantitative limits - Inclusion of accessories in the weight of the tents for the calculation of the tonnage imported (Council Regulations Nos 3589/82 and 3378/82)

With regard to tents imported from South Korea during the period of application of Regulation No 3589/82 on imports of products originating in non-member countries which are parties to the Multifibre Arrangement and Regulation No 3378/82 applying generalized tariff preferences to textile products originating in developing countries, the weight of the tents must be calculated by taking account of their accessories such as poles or pegs both for the determination of the quantitative limits and for the determination of the tariff preference ceilings.

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Case 164/88, 28 June 1989 (Rispal and Others)

Ministère public v J.- P. M. Rispal and others. Reference for a preliminary ruling: Tribunal de grande instance de Paris - France.

Common Customs Tariff - Magic cubes.

Case 164/88.

Common Customs Tariff - Tariff headings - 'Other toys' within the meaning of Heading 97.03 - Articles known as 'magic cubes' - Included

Heading 97.03 of the Common Customs Tariff relating to 'other toys' must be interpreted as including articles known as 'magic cubes' and having six sides, each composed of nine squares, these having six different colours, the elements of each cube being capable of manipulation in each of its three dimensions, the object being to manipulate the cube so as to produce six uniform sides of a different colour. This classification follows from the application of the decisive criterion for the classification of goods which, as the Court has consistently held (see judgment of 8December 1977 in Case 62/77 Carlsen-Verlag [1977] ECR 2343), is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters. It is, moreover, in conformity with the explanatory notes of the Customs Cooperation Council which, as the Court has consistently held, constitute an important factor for the interpretation of the Common Customs Tariff (see judgment of 28 February 1989 in Case 245/87 Blaupunkt [1989] ECR 573). 2041

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Case 170/88, 11 July 1989 (Ford España)

Ford España SA v Estado español. Reference for a preliminary ruling: Audiencia Territorial de Valencia - Spain.

Free movement of goods - Charges having equivalent effect - Amount levied on customs clearance of goods on an importer's premises.

Free movement of goods - Customs duties - Charges having equivalent effect - Levy of ad valorem duty for customs clearance of goods on private premises (EEC Treaty, Arts 9 and 13; Act of Accession 1985, Art. 35; Council Directive 79/695)

Community law - Direct effect - Conflict between Community law and a national statute.

(1) Articles 9 and 13 of the EEC Treaty in conjunction with Article 35 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties must be interpreted as precluding the levying of a duty calculated as a proportion of the declared value of the imported goods which is imposed where the operations relating to the customs clearance of the goods in question are carried out on premises or at places not open to the public.

(2) A national court which is called upon to apply, within the limits of its jurisdiction, provisions of Community Law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provisions.

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Case 214/88, 13 July 1989 (Politi)

Amministrazione delle finanze dello Stato v Società Politi & Co. Srl. Reference for a preliminary ruling: Corte d'appello di Venezia - Italy.

Health inspection charges on imports of pigmeat from non-member countries

Agriculture - Common organization of the markets - Pigmeat - Fresh, chilled or frozen pigmeat from non-member countries - Health inspections organized in accordance with Article 9 of Directive 64/433 - Dues - Whether permissible - Derogation from the prohibition of charges having equivalent effect - Non-discrimination between the system of intra-Community trade and that of trade with non-member countries (Regulation No 121/67 of the Council, Art. 17(2); Council Directive 64/433, Art. 9)

Article 17(2) of Regulation No 121/67, in force at the material time referred to by the national court, prohibits, save as otherwise provided in the regulation or where derogation therefrom is decided by the Council, the levying of any customs duty or charge having equivalent effect. Pecuniary charges, whatever their amount, imposed for reasons to do with health inspections of pigs and pigmeat imported from non-member countries, are to be regarded as charges having equivalent effect within the meaning of that provision unless they relate to a general system of internal taxation applied systematically in accordance with the same criteria and at the same stage of marketing to domestic and imported products alike, since the concept of charge having an effect equivalent to customs duties has the same meaning in the regulations on the organization of the agricultural market as it has in Article 9 of the Treaty (see judgment of 7 March 1972 in Case 84/71 Merimex [1972]ECR 89).

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Case C-219/88, 28 March 1990 (Malt)

Malt GmbH v Hauptzollamt Düsseldorf. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Value for customs purposes - Certificate of authenticity - Regulation (EEC) Nº 1224/80.

Common Customs Tariff - Customs value - Amounts paid to the seller for certificates of authenticity required for the purposes of the tariff quota opened by Regulation No 217/81 - Inclusion - Classification as taxes paid in the Community by reason of the importation - Not permissible (Council Regulations Nos 1224/80, Art. 3(1), (3) and (4) and No 217/81)

Regulation No 1224/80 on the valuation of goods for customs purposes and, in particular Article 3(1) and (3) thereof, is to be interpreted as meaning that in assessing the value of imported Argentinian beef for the purposes of Regulation No. 217/81, opening a Community tariff quota for high quality, fresh, chilled or frozen beef and veal falling within subheading 02.01 A II (a) and 02.01 A II (b) of the Common Customs Tariff, the amounts paid to the seller in addition to the price of the goods for the certificates of authenticity needed for recourse to the quota rules must be regarded as an integral part of the value for customs purposes.

The said amounts must not be regarded as taxes paid in the Community by reason of the importation within the meaning of Article 3(4) of Regulation No 1224/80.

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Case C-233/88, 8 February 1990 (Van de Kolk)

Gijs van de Kolk-Douane Expéditeur BV v Inspecteur der Invoerrechten en Accijnzen. Reference for a preliminary ruling: Tariefcommissie - Netherlands.

Common Customs Tariff - Tariff classification - Nomenclature - Seasoned meat.

1. Common Customs Tariff - Tariff heading - Interpretation - Explanatory Notes of the Customs Cooperation Council - Authority - Limits - Interpretation by the Community legislature - Conditions

2. Common Customs Tariff - Tariff headings - Additional Note 6(a ) of Chapter 2 - Seasoned meats - Criterion for identification - Use of sensory analysis – Lawfulness

1. The Customs Cooperation Council's interpretation of the Nomenclature for the Classification of Goods, established by the Brussels Convention of 15 December 1950, is binding on the Community when it reflects the general practice followed by the Member States, unless it is incompatible with the wording of the heading concerned or goes manifestly beyond the discretion conferred on the Customs Cooperation Council.

When the Customs Cooperation Council's interpretation of the Nomenclature is not binding on the Community, or if it has not given an interpretation, the Community legislature has the power to interpret, by means of regulations and subject to review by the Court of Justice, the Nomenclature as it is to be applied by the Community. When exercising that power it must observe the prohibition laid down in the abovementioned Convention on making changes in the chapter or section notes in a manner modifying the scope of the chapters, sections and headings.

2. The validity of Additional Note 6 (a) of Chapter 2 of the Common Customs Tariff, which defines "seasoned meats" as uncooked meats that have been seasoned either in depth or over the whole surface of the product with seasoning either visible to the naked eye or clearly distinguishable by taste, cannot be called in question on the ground that it introduces subjective criteria and is not in accordance with an interpretation given by the Customs Cooperation Council. Addition Note 6(a) merely specifies the criteria to be taken into account for classifying certain goods under a particular heading of the Common Customs Tariff in accordance with an interpretation given by the Customs Cooperation Council and uses criteria which, having regard to the existence of objective techniques of sensory analysis for which national and international standards have been laid down, take into consideration the objective characteristics and properties of products which can be ascertained when customs clearance is obtained.

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Joined cases 248/88, 254 to 258/88, 309/88 and 316/88, 13 July 1989 (Chimica del Friuli and Others)

Chimica del Friuli SpA and others v Amministrazione delle finanze dello Stato. References for a preliminary ruling: Tribunale civile e penale di Venezia - Italy.

Favourable tariff arrangements upon importation - End-use - Authorization.

Common Customs Tariff - Eligibility for a favourable tariff arrangement by reason of their end-use of the goods concerned - Transfer of the goods within the Community - Obligation for the transferee to hold the authorization prescribed by the Community rules (Commission Regulation No 1535/77, Arts 3 and 7)

Article 7 of Regulation No 1535/77 determining the conditions under which certain goods are eligible upon importation for a favourable tariff arrangement by reason of their end-use must be interpreted as meaning that when goods are transferred within the Community the transferee must hold an authorization granted in accordance with Article 3 of that regulation, whether the transfer takes place between one Member State and another or within the same Member State; that interpretation is consistent with the scheme of the regulation, which is designed to secure strict supervision of the end-use of the goods, and that supervision is effected by means of the said authorization.

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Case C-344/88, 28 March 1990 (Wittmann)

Erich Wittmann GmbH & Co. KG v Hauptzollamt Nürnberg-Fürth. Reference for a preliminary ruling: Finanzgericht München - Germany.

Common Customs Tariff - Ear-piercing instruments and stud earrings.

Common Customs Tariff - Tariff headings - Classification of decorative stud earrings and ear-piercing instruments

Stud earrings, whether or not put up in sterile packaging, made of gold- or silverplated steel, consisting of a shank with a decorative head and a 'butterfly' fastening, this shank being used to pierce the ear by means of a special device, which secures it in the ear lobe, came within subheading 71.16 A of the Common Customs Tariff even before the entry into force of Commission Regulation No 3558/81 which expressly classified them under that subheading. Subheading 84.59 E II must be interpreted as including ear-piercing instruments.

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Joined cases C-354/88, C-355/88 and C-356/88, 4 July 1990 (Roermond and Others)

Vleeswarenbedrijf Roermond BV and others v Produktschap voor Vee en Vlees. References for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands.

Common Customs Tariff - Export refunds for pigmeat - Fore-end or shoulder - Loin.

Agriculture - Common organization of the markets - Pigmeat - Export refunds - Products qualifying for refunds - Parts of specific cuts treated in the same way as those cuts - Conditions - Maintenance of natural proportions of muscle tissue and bone (Commission Regulations Nos 3602/82, Arts 2(2) and 3, and 263/83, Annex)

The requirement under the first subparagraph of Article 2(2) and under Article 3, inserting Additional Note No 2 to Chapter 2 of the Common Customs Tariff, of Regulation No 3602/82, that parts of certain cuts of pigmeat must contain muscle tissue and bones "in natural proportion to the entire cuts" in order to fall within the same tariff subheading as those cuts and thus qualify for export refunds under Regulation No 263/83, must be interpreted as meaning that, after cutting, the natural proportions of muscle tissue and bones in the cuts must not be altered.

26

Case C-1/89, 13 December 1989 (Raab)

Ingrid Raab v Hauptzollamt Berlin-Packhof. Reference for a preliminary ruling: Finanzgericht Berlin - Germany.

Common Customs Tariff - Subheading 49.11 B and Heading Nº 99.02 - Art photograph.

Common Customs Tariff - Tariff headings - "Original engravings, prints and lithographs" within the meaning of Heading No 99.02 and "Artists' screen prints" covered by Regulation No 1945/86 - Characteristic production process - Original design executed by hand by the artist for reproduction - Art photographs - Not included - To be classified under subheading 49.11 B

Original engravings, prints and lithographs within the meaning of Heading No 99.02 of the Common Customs Tariff and artists' screen prints under subheading 49.11 B which are covered by Regulation No 1945/86 temporarily suspending the autonomous Common Customs Tariff duties on a number of industrial products are characterized by the personal intervention of the artist in executing the original by hand, and only the reproduction of the original may be carried out by means of a mechanical printing process.

Art photographs therefore cannot be classified under Heading No 99.02, nor may they be regarded as artists' screen prints covered by Regulation No 1945/86. All photographs must be classified, regardless of whether or not they are artistic, under subheading 49.11 B of the Common Customs Tariff, a residual heading which covers all artistic printed matter not listed or referred to in any other heading of the Common Customs Tariff.

27

Case C-11/89, 6 June 1990 (Unifert)

Unifert Handels GmbH v Hauptzollamt Münster. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Customs value of goods - Transaction value - Demurrage charges

Common Customs Tariff - Customs value - Transaction value - Determination - Parties to the contract of sale established in the Community - Not material - Successive sales at different prices - Choices open to importer - Demurrage charges - Included in the cost of transport - "Buying commission" paid by the buyer to the seller - Included in the transaction value - Quantity of goods unloaded smaller than quantity purchased, without affecting stipulated purchase price - Not material (Council Regulation No 1224/80, Arts 3(1) and 8(1)(e); Council Directive 79/695, Art. 8(1))

The definition of the transaction value in Article 3(1) of Regulation No 1224/80 on the valuation of goods for customs purposes, according to which that value corresponds to the "price actually paid or payable for the goods when sold for export in the customs territory of the Community", takes no account of the place of establishment of the parties to the contract of sale. The price stipulated in a contract of sale concluded between persons established in the Community may, therefore, be regarded as the transaction value within the meaning of that provision.

Where, in successive sales of goods, more than one price actually paid or payable fulfils the requirements laid down in Article 3(1) of Regulation No 1224/80, any of those prices may be chosen by the importer for the purposes of determining the transaction value. If the importer has referred to one of those prices in the customs value declaration, he may not correct the declaration after the goods have been released for free circulation, in accordance with Article 8(1 ) of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation.

Demurrage charges, in other words compensation payable for keeping vessels in port, form part of the cost of transport within the meaning of Article 8(1)(e ) of Regulation No 1224/80 and, consequently, are to be added to the price actually paid or payable in order to determine the customs value.

A payment made by the buyer to the seller, invoiced separately and described as a "buying commission", forms part of the price actually paid or payable for the imported goods.

The price actually paid or payable should not be reduced proportionately where a discrepancy is found between the quantity of goods unloaded and the quantity purchased which does not exceed the weight discrepancy allowance agreed upon between the parties and does not lead to a reduction of the stipulated purchase price.

28

Case C-17/89, 6 June 1990 (Deutsche Olivetti)

Hauptzollamt Frankfurt am Main-Ost v Deutsche Olivetti GmbH. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Customs value - Cost of transport - Container transport.

Common Customs Tariff - Customs value - Transaction value - Cost of transport - Goods carried beyond the Community frontier using several means of transport for an all-inclusive price - Costs relating to the journey outside the Community - Method of calculation - Container transport - Application of the rules laid down for cases in which a single means of transport is used - Not permitted (Council Regulation No 1224/80, Arts 8(1)(e)(i) and 15(2)(a ))

Where an all-inclusive price has been paid for transport to a point beyond the place of introduction into the customs territory of the Community, and the goods have been carried using several different means of transport, the cost of transport referred to in Article 8(1)(e)(I) of Regulation No 1224/80 on the valuation of goods for customs purposes must be calculated either by deducting the cost of transport within the customs territory of the Community, determined on the basis of the schedule of freight rates normally applied, from the price actually paid or payable, or by determining the cost of transport to the place of introduction of the goods into the customs territory of the Community directly on the basis of the rates normally applied . It is for the national authorities to choose the criterion which is more likely to avoid arbitrary and fictitious values.

The proportional assessment of costs according to the distance covered outside and inside the Community required under Article 15(2)(a ) of Regulation No 1224/80 when the goods are carried "by the same means of transport" is precluded in cases where several means of transport are used involving the application of different schedules of freight rates . Since container transport may be effected in different ways and the cost varies depending on the way chosen, it cannot be regarded as a "means of transport" within the meaning of Article 15(2) (a) of the regulation.

29

Case C-43/89, 12 July 1990 (Gerlach)

Gerlach & Co. BV v Inspecteur der Invoerrechten en Accijnzen. Reference for a preliminary ruling: Tariefcommissie - Netherlands.

Common Customs Tariff - Apparatus for transcribing computerized data onto microfilm.

Common Customs Tariff - Tariff headings - Apparatus for transcribing onto microfilm or microfiche computerized data mainly originating from a central computer - Classification under subheading 84.53 B.

Apparatus the purpose of which is to transcribe in legible characters on microfilm or microfiche decoded computerized data mainly originating from a central computer, constitutes a unit of an automatic data-processing machine and must be classified, in view of note 3(B) to Chapter 84 of the Common Customs Tariff, under subheading 84.53 B of the Common Customs Tariff.

30

Case C-64/89, 26 June 1990 (Deutsche Fernsprecher)

Hauptzollamt Gießen v Deutsche Fernsprecher GmbH. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Post- clearance recovery of customs duties - Error by the administration.

1. Own resources of the European Communities - Post-clearance recovery of import or export duties - Amount of duties not collected equal to or greater than ECU 2 000 - National authorities seeking to effect recovery - Duty to refer the matter to the Commission - None ( Council Regulation No 1697/79, Art . 5(2); Commission Regulation No 1573/80, Art. 4)

2. Own resources of the European Communities - Post-clearance recovery of import or export duties - Error by the administration which "could not reasonably have been detected by the person liable" - Criteria for assessment (Council Regulation No 1697/79, Art. 5(2))

1. Article 4 of Commission Regulation No 1573/80 laying down provisions for the implementation of Article 5(2) of Council Regulation No 1697/79 on the post-clearance recovery of import duties or export duties, is to be interpreted as meaning that, even when the amount of duties not collected is equal to or greater than ECU 2 000, the national authorities are not required to request the Commission to take a decision on the possibility of not proceeding to effect post-clearance recovery of customs duties if they consider that the conditions laid down in Article 5(2) of Council Regulation No 1697/79 of 24 July 1979 are not fulfilled.

2. In order to determine whether there has been "an error ... which could not reasonably have been detected by the person liable" as referred to in Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import and export duties, regard must be had in particular to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. It is for the national court to decide, on the basis of that interpretation, whether or not the error responsible for the non-collection of customs duties could have detected by the person liable.

31

Case C-66/89, 17 May 1990 (Powerex-Europe)

Directeur général des douanes et des droits indirects v Powerex-Europe. Reference for a preliminary ruling: Tribunal d'instance du Mans - France.

Common Customs Tariff - Tariff subheading 85.21 D II - Silicon discs.

Common Customs Tariff - Tariff headings - Complete or finished semiconductor device within the meaning of subheading 85.21 D II - Silicon discs which have not undergone the operations necessary to confer on them the essential characteristics of a semiconductor device - Excluded (Commission Regulation No 1203/86)

Regulation No 1203/86 on the classification of goods falling within subheading 85.21 D II of the Common Customs Tariff must be understood as not applying to silicon discs which have to undergo extensive treatment after importation, in particular selective diffusion by irradiation under an electron beam followed by a process of mounting or encapsulation . Such discs lack the essential characteristics of a complete or finished semiconductor device, which is the type of product referred to by that regulation.

32

Case C-79/89, 18 April 1991 (Brown Boveri)

Brown Boveri & Cie AG v Hauptzollamt Mannheim. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Customs value of goods - Value of softwarer and carrier media.

1. Common Customs Tariff - Customs value - Transaction value - Assessment - Carrier media containing software - Comprehensive price invoiced - Amendment introduced by Regulation No 1055/85 - No retroactive effect (Council Regulation No 1224/80, Art. 3, and Council Regulation No 1055/85)

2. Common Customs Tariff - Customs value - Transaction value - Assessment - Assembly costs - Exclusion - Condition - Reference in the declaration relating to customs value (Council Regulation No 1224/80, Art. 3(4)(a); Council Directive 79/695/EEC, Art. 8)

1. Before Regulation No 1055/85, which has no retroactive effect, entered into force, Article 3 of Regulation No 1224/80 on the valuation of goods for customs purposes was to be interpreted as meaning that the transaction value of carrier media containing software at the time of importation in respect of which the supplier had invoiced a comprehensive price to the declarant had to be the invoiced price.

2. In order to be excluded from the customs value in accordance with Article 3(4)(a) of the regulation on the customs valuation of goods, assembly costs must be distinguished from the price actually paid or payable in respect of the goods in the declaration relating to customs value. Pursuant to Article 8 of Directive 79/695/EEC on the harmonization of procedures for the release of goods for free circulation, that declaration cannot be corrected after the material time for valuation for customs purposes, which is after the goods have been released for free circulation.

33

Case C-80/89, 28 June 1990 (Behn Verpackungsbedarf)

Erwin Behn Verpackungsbedarf GmbH v Hauptzollamt Itzehoe. Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.

Validity of a Commission decision on the post-clearance recovery of import duties.

1. Own resources of the European Communities - Post-clearance recovery of import or export duties - Customs administration error resulting in the use, for calculation of duties, of a rate indicated purely for guidance in a national customs tariff manual, which was incorrect - Error capable of detection by the trader concerned (Council Regulation No 1697/79, Art . 5(2))

2. Own resources of the European Communities - Post-clearance recovery of import or export duties - Error deriving from "information" given by the competent authorities themselves - Definition (Council Regulation No 1697/79, Art. 5(1))

1. A trader is not entitled to expect that, by virtue of Article 5(2) of Regulation No 1697/79, post-clearance recovery of import duties will not be effected where the customs administration' s error, from which the trader benefited, resulted from the fact that the administration failed to apply the Community tariff provisions published in the Official Journal of the European Communities and instead relied on a customs tariff manual for national use which was incorrect, in so far as it indicated a rate lower than that specified in the Community rules, since such an error is one of the kind referred to in the abovementioned regulation which the trader could reasonably have detected.

The Community tariff provisions constitute the only positive law in that field as from the date of their publication in the Official Journal of the European Communities, and everyone is deemed to know that law. A customs tariff manual drawn up by the national authorities is merely a guide for customs clearance operations. Secondly, an error as to the rate can be detected by a diligent trader through consultation of the Official Journal of the European Communities in which the relevant provisions are published.

2. The first indent of Article 5(1) of Council Regulation (EEC) No 1697/79, pursuant to which no action for post-clearance recovery of import duties may be undertaken where the incorrect amount was calculated "on the basis of information given by the competent authorities themselves", must be interpreted as meaning that the word "information" does not refer to indications given in a document of a general nature addressed to unspecified persons but only to indications given by the competent authorities in a concrete case, to a particular trader, who is entitled to invoke the principle of legal certainty . That provision does not therefore include a tariff manual for national use which sets out the rules of national law and Community law, including those on the Common Customs Tariff.

34

Case C-83/89, 22 March 1990 (Houben)

Openbaar Ministerie and the Minister for Finance v Vincent Houben. Reference for a preliminary ruling: Hof van Beroep te Antwerpen - Belgium.

Free movement of goods - Goods in free circulation - Burden of proof.

1. Free movement of goods - Goods in free circulation - Concept (EEC Treaty, Arts 9 and 10)

2. Free movement of goods - Community transit - Community status of goods - Proof - Carriage of goods not intended for commercial purposes (Council Regulation No 222/77, as amended by Regulation No 983/79, Art. 49)

1. Goods imported into the Community from a non-member country are to be considered to be in free circulation when the import formalities have been complied with and the various duties paid; there is no distinction to be drawn between goods imported from a non-member country in circulation in the Member State where the import formalities were completed and the various duties paid and those which, after due completion of the import formalities and payment of the various duties in one Member State, are subsequently imported into another Member State.

2. The rules governing Community transit under Regulation No 222/77, as amended by Regulation No 983/79, are to be interpreted as meaning that, in the case of the carriage of goods not intended for commercial use, a declaration by the traveller accompanying the goods or in whose luggage they are contained is sufficient for those goods to be considered to be Community goods. However, if there are any objective grounds for doubting the accuracy of that declaration, the traveller must produce an internal Community transport document.

35

Case C-111/89, 2 May 1990 (Bakker Hillegom)

Staat derNederlanden v P. Bakker Hillegom BV. Reference for a preliminary ruling: Hoge Raad - Netherlands.

Free movement of goods - Charges having equivalent effect - Fees charged for plant health inspections on exportation.

Free movement of goods - Customs duties - Charges having equivalent effect - Fees charged in respect of plant health inspections on exportation provided for in an international convention - Permissibility dependent on the system and the manner in which the fees are charged (EEC Treaty, Arts 12 and 16)

Fees charged for inspections of plants to be exported, carried out under an international convention intended to encourage the free movement of plants, are charges having an effect equivalent to customs duties when their amount is calculated according to the weight of the plants or their invoice value, even where the total amount charged in respect of those inspections does not exceed the total amount of the costs directly and indirectly connected therewith. The contrary is true only where the amount of each fee is related to the actual cost of the specific inspection in respect of which it is charged.

When field inspections are carried out on all plants produced, fees charged only in respect of exported products, and not in respect of those intended for the home market, constitute charges having equivalent effect even if those inspections are carried out to meet the requirements of international conventions affecting only exported products. The contrary would be true only if it were established that the products intended for the home market derived no benefit from the inspections.

36

Case C-116/89, 7 March 1991 (Baywa)

Baywa AG v Hauptzollamt Weiden. Reference for a preliminary ruling: Finanzgericht München - Germany.

Customs valuation of goods - Harvest seed - Licence fees.

Common Customs Tariff - Customs valuation - Transaction value - Determination - Harvest seed produced from basic seed supplied by the buyer - Licence fees payable by the buyer to the breeder of the basic seed for services performed within the Community - Fees to be added to the price paid (Council Regulation No 1224/80, Art. 8(1)(b)(i))

For the purposes of determining the customs value of harvest seed produced from basic seed supplied by the buyer, there should be added to the price paid or payable, in accordance with Article 8(1)(b)(i) of Council Regulation No 1224/80, licence fees which the buyer has to pay to the breeder of the basic seed in respect of the propagation of that seed, even where the breeder' s service has been performed within the customs territory of the Community.

In the first place, such licence fees must be attributed to the purchase of the basic seed, and form part of the price payable for that seed, which is then incorporated in the imported goods; in the second place there is no general principle which excludes from customs valuation services provided and goods produced within the customs territory of the Community.

37

Case C-137/89, 14 March 1990 (Commission v Italy)

Commission of the European Communities v Italian Republic. Failure of a Member State to fulfil its obligations - Free movement of goods - Levying of a charge on the importation of live animals - Charge having an effect equivalent to a customs duty.

Free movement of goods - Customs duties - Charges having an equivalent effect - Charging to importers of live animals the cost of telegrams sent between customs authorities and national veterinary and health authorities - Not permissible (EEC Treaty, Art. 12 et seq.)

The charging by a Member State to importers of live animals from other Member States of the cost of telegrams which, pursuant to national rules, veterinary inspectors at customs posts send to the competent national veterinary and health authorities represents a failure by that Member State to fulfil its obligations under Article 12 et seq. of the Treaty. That charge, imposed unilaterally on goods by reason of the fact that they cross a border, constitutes a charge having an effect equivalent to a customs duty (see, in particular, the judgment of 30 May 1989 in Case 340/87 Commission v Italy [1989]ECR 1483) and cannot escape that classification either as being part of a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported and exponed products alike (see judgment of 31 May 1979 in Case 132/78 Denkavit v France [1979] ECR 1923) or as being the payment for a service actually rendered to the economic operator of a sum in proportion to the service (see the judgments of 25 January 1977 in Case 46/76 Bauhuis v Netherlands [1977] ECR 5 and of 9November 1983 in Case 158/82 CommissionI-847v Denmark [1983] ECR 3573) because the charge neither confers a specific and definite advantage on the economic operator (see, in particular, the judgments of 1 July 1969 in Case 24/68 Commission v Italy [1969] ECR 193 and of 30 May 1989 in Case 340/87, cited above) nor attaches to inspections carried out to fulfil obligations imposed by Community law (see judgments of 25 January 1977 in Case 46/76, already cited, and of 27 September 1988 in Case 18/87 Commission v Germany [1988] ECR 5427).

38

Case C-209/89, 21 March 1991 (Commission v Italy)

Commission of the European Communities v Italian Republic. Free movement of goods - Charge having equivalent effect to a customs duty - Services rendered simultaneously to several undertakings - Payment of an amount disproportionate to the cost of the service.

Free movement of goods - Customs duties - Charges having equivalent effect to a customs duty - Payment for services rendered during customs inspections - Charge payable by each of the undertakings benefiting simultaneously from the service - Amount disproportionate to the cost of the service - Not permissible (EEC Treaty, Arts 9, 12, 13 and 16)

A Member State fails to fulfill its obligations under Articles 9, 12, 13 and 16 of the Treaty by requiring from each undertaking individually, where services are rendered simultaneously to several undertakings in connection with the completion of customs formalities in intra-Community trade, payment of an amount which is, in certain cases, disproportionate to the cost of the service rendered to traders, since as many charges are levied as there are undertakings involved and the charge payable by them may therefore exceed the actual cost of the inspections.

39

Case C-218/89, 4 December 1990 (Shimadzu Europa)

Shimadzu Europa GmbH v Oberfinanzdirektion Berlin. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Combined Nomenclature - Tariff headings - Microprocessor-controlled analysis apparatus for chromatography

Common Customs Tariff - Tariff headings - "Instruments and apparatus for measuring or checking electrical quantities" within the meaning of Heading 9030 of the Combined Nomenclature - Microprocessor-controlled analysis apparatus for chromatography - Excluded

The Combined Nomenclature in the Annex to Council Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that apparatus which measures or checks electrical quantities only for the purpose of collecting, evaluating and processing data in the field of chromatography does not fall within Heading 9030. That heading covers only apparatus whose very function is to carry out such checks.

40

Case C-219/89, 18 April 1991 (Wesergold)

Wesergold GmbH & Co. KG v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Sweetened orange juice.

Common Customs Tariff - Tariff headings - Product composed of 39.4% orange juice and 60.6% sugar - Classified under heading No 2009 of the Combined Nomenclature

A product composed of 39.4% orange juice and 60.6% sugar must be classified as "fruit juice containing added sugar" under heading No 2009 of the Combined Nomenclature.

41

Case C-228/89, 18 September 1990 (Farfalla Flemming)

Farfalla Flemming und Partner v Hauptzollamt München-West. Reference for a preliminary ruling: Finanzgericht München - Germany.

Common Customs Tariff - Headings 70.13, 99.01 and 99.03 - Paperweights.

Common Customs Tariff - Tariff headings - Works of art within the meaning of Chapter 99 - Flat-based spheres of glass with two - or three-dimensional coloured motifs, described as "paperweights" - Excluded - Classification according to their constituent materials

Flat-based spheres of glass with two - or three-dimensional coloured motifs, described as "paperweights", which are made entirely by hand in limited series and signed by well-known glassware artists are to be regarded for the purposes of tariff classification as being works of a commercial character and consequently classified according to their constituent materials . The fact that an article may be recognized as being of an artistic nature does not necessarily mean that it is to be classified under Chapter 99 of the Common Customs Tariff. That classification is excluded by Note 3 to that Chapter for articles which, by reason of their configuration, appear similar to comparable articles manufactured industrially or as works of craftsmanship, with which they are capable of competing.

42

Case C-231/89, 8 November 1990 (Gmurzynska-Bscher)

Reference for a preliminary ruling: Bundesfinanzhof - Germany. Preliminary rulings - Jurisdiction of the Court - Reference by national legislation to provisions of Community law - Common Customs Tariff - Headings 8306, 9701 and 9703 - Classification of a work of art.

1. Preliminary rulings - Jurisdiction of the Court - Limits - Spurious dispute or request for an interpretation of Community provisions which are not applicable to the main proceedings - Interpretation requested by reason of the applicability of a provision of Community law owing to a reference thereto incorporated into national law - Jurisdiction to give such an interpretation (EEC Treaty, Art. 177)

2. Common Customs Tariff - Headings - Criteria for distinguishing between Heading 9701 and Heading 9703

1. In the division of functions in the administration of justice between national courts and the Court of Justice provided for by Article 177 of the Treaty the Court of Justice gives preliminary rulings without, in principle, having to examine the circumstances in which the national courts have been led to refer questions and propose to apply the provision of Community law which they have asked the Court to interpret.

It would be otherwise only in cases where either it appears that the procedure of Article 177 of the Treaty has been misused and been resorted to, in fact, in order to elicit a ruling from the Court in the absence of a genuine dispute or it is obvious that the provision of Community law submitted for the interpretation of the Court cannot apply.

That is not so if the Court is asked to interpret a provision of Community law which the national court is bound to apply, regardless of the scope assigned to it by Community law, owing to the fact that the national legislation incorporates a reference thereto.

2. Since the criteria for distinguishing between Heading 9701, "paintings, drawings and pastels, executed entirely by hand ... collages and similar decorative plaques", and Heading 9703, "original sculptures and statuary, in any material", of the Common Customs Tariff lies in the fact that as regards productions of statuary and sculptural art the essential artistic nature consists in the shaping of a three-dimensional form of the work, whereas for paintings, collages and similar decorative plaques it consists in shaping the surface of the work, a work of art consisting of a steel plate having no artistic value of its own, with a fused coating of enamel-glaze colours applied by the artist by hand, must be regarded as a "painting executed entirely by hand" within the meaning of Heading 9701.

43

Case C-265/89, 18 September 1990 (Vismans Nederland)

Gebr. Vismans Nederland BV v Inspecteur der Invoerrechten en Accijnzen. Reference for a preliminary ruling: Tariefcommissie - Netherlands.

Common Customs Tariff - Partly de-sugared sliced sugar beet.

Common Customs Tariff - Tariff headings - "Sugar beet" within the meaning of tariff subheading 12.04 A - Inclusion, by virtue of Regulation No 1388/85, of partly de-sugared sliced sugar beet with a sucrose content exceeding 10% - Invalidity (Commission Regulation No 1388/85. Art. 1)

By deciding, in Article 1 of Regulation No 1388/85, that partly de-sugared sliced sugar beet, whether or not pelletized either directly by compression or by the addition of a binder (up to 3% by weight) having a sucrose content (including any sucrose contained in the binder) exceeding 10% by weight by reference to the dry matter, must be classified under subheading 12.04 A of the Common Customs Tariff, the Commission amended that subheading by including in it products which, being the end result of the process of extracting sugar from sugar beet, should be classified as beet pulp under tariff subheading 23.03 B I. The Commission thus exceeded the limits of its discretion, with the result that the provision is invalid.

44

Case C-324/89, 18 April 1991 (Nordgetränke)

Nordgetränke GmbH & Co. KG v Hauptzollamt Hamburg-Ericus. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Apricot purée.

Common Customs Tariff - Tariff headings - Apricot purée made by pressing fruit pulp and boiling it briefly so as to concentrate it - Heading No 20.05 - Excluded - Classified under heading No 20.06

The Common Customs Tariff must be interpreted as meaning that apricot purée obtained by pressing fruit pulp through a sieve and bringing the purée thus obtained to boiling point in a vacuum concentrator for no more than 30 seconds is not to be regarded as fruit purée, being a cooked preparation, falling under heading No 20.05. The concept of cooking is to be confined to an application of heat which brings about a change in the taste and chemical properties of the product. No such change has occurred in the case of the product at issue; the only effect of boiling was to reduce the water content of the purée. Cooking implies a change in the state of the product, and there is no change in this instance, as the product already existed as purée. Where, because of its characteristics, a product of that nature does not fall under an earlier named heading in the Common Customs Tariff, it falls under the residual heading intended to cover fruit preparations, namely heading No 20.06 "Fruit otherwise prepared or preserved".

45

Case C-328/89, 15 May 1991 (Berner Allgemeine Versicherungsgesellschaft)

Berner Allgemeine Versicherungsgesellschaft v Amministrazione delle finanze dello Stato. Reference for a preliminary ruling: Corte suprema di Cassazione - Italy.

Community transit - Release of guarantor from his obligations.

Free movement of goods - Community transit - Community external transit - T 1 document - Notification of non-discharge - Competent authority (Second paragraph of Article 35 of Regulation No 222/77 as in force before its amendment by Regulation No 3813/81)

The second paragraph of Article 35 of Regulation No 222/77 on Community transit, as in force before its amendment by Regulation No 3813/81, provided that the person standing as guarantor for the regularity of transit operations is to be released from his obligations when, on the expiry of a specific period, he has not been notified by the office of departure of the non-discharge of the T 1 document. That version of the provision must be interpreted as meaning that responsibility for notifying the guarantor of the non-discharge of the T 1 document rested exclusively with the office of departure.

46

Case C-343/89, 6 December 1990 (Witzemann)

Max Witzemann v Hauptzollamt München-Mitte. Reference for a preliminary ruling: Finanzgericht München - Germany.

Customs duties - Import turnover tax - Counterfeit currency.

Common Customs Tariff - Customs duties - Application to counterfeit currency - Not permissible - Criminal penalties for offences - Powers of Member States

Tax provisions - Harmonization of laws - Turnover tax - Common system of value added tax - Import tax - Application to counterfeit currency - Not permissible - Criminal penalties for offences - Powers of Member States (Council Directive 77/388, Art. 2 )

Since there is an absolute prohibition, in all the Member States, on the importation or bringing into circulation of counterfeit currency, Community law must be interpreted as meaning that no customs debt can arise upon the importation of counterfeit currency into the customs territory of the Community.

Imports of counterfeit currency into the Community are alien to the provisions of the Sixth Directive on the harmonization of the laws of the Member States relating to turnover taxes. Article 2 of that directive must therefore be interpreted as meaning that import value added tax may not be collected on the importation of counterfeit currency into the Community.

Neither of those rulings in any way affects the powers of Member States to prosecute breaches of their laws against counterfeit currency and to impose appropriate penalties, with all the consequences which such penalties imply, whether financial or otherwise.

47

Case C-348/89, 27 June 1991 (Mecanarte-Metalurgica da Lagoa)

Mecanarte - Metalúrgica da Lagoa Ldª v Chefe do Serviço da Conferência Final da Alfândega do Porto. Reference for a preliminary ruling: Tribunal Fiscal Aduaneiro do Porto - Portugal.

Post-clearance recovery of customs duties.

1. Own resources of the European Communities - Post-clearance recovery of import or export duties - Person liable who fulfils the conditions laid down in Article 5(2) of Regulation No 1697/79 - Post-clearance recovery -Excluded - "Error made by the competent authorities themselves" - Person liable who has "acted in good faith and observed all the provisions laid down in the rules in force as far as his customs declaration is concerned" - Concepts defined (Council Regulation No 1697/79, Art. 5(2) )

2. Own resources of the European Communities - Post-clearance recovery of import or export duties - Amount of uncollected duties equal to or greater than ECU 2 000 - Powers of the Commission limited to decisions to waive recovery (Council Regulation No 1697/79, Art. 5(2); Commission Regulation No 1573/80, Art. 4)

3. Preliminary rulings - References to the Court - Unconstitutionality of a national provision requiring a national court to refer the matter to the national constitutional court - Right or obligation to make a reference to the Court of Justice not affected (EEC Treaty, Art. 177)

4. Preliminary rulings - References to the Court - Relevance of the questions raised - Necessity for a preliminary ruling - Stage of the proceedings at which a reference is appropriate - To be decided by the national court (EEC Treaty, Art. 177)

1. The first subparagraph of Article 5(2) of Council Regulation No 1697/79 provides that the competent authorities may refrain from taking action for the post-clearance recovery of import or export duties which have not been collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter for his part having acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned.

The first part of that provision must be interpreted as meaning that it confers on the competent national authorities a non-discretionary power as regards the decision not to carry out post-clearance recovery of import duties when the abovementioned conditions have been fulfilled.

The errors referred to comprise all errors of interpretation or application of the provisions on import duties and export duties which could not reasonably have been detected by the person liable, in so far as they are the consequence of acts of either the authorities responsible for post-clearance recovery or the authorities of the exporting Member State, which excludes errors caused by incorrect declarations by the person liable, except in cases where their incorrectness is merely the consequence of incorrect information given by the competent authorities which is binding upon them.

The last part of the same provision must be interpreted as meaning that it applies to circumstances in which the person liable has fulfilled all the requirements laid down by both the Community rules on customs declarations and any national rules which supplement or implement them, even if he supplied, in good faith, incorrect or incomplete information to the competent national authorities, provided that that information is the only information which he could reasonably have knowledge of or obtain.

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2. The power conferred on the Commission by Article 4 of Commission Regulation (EEC) No 1573/80 laying down provisions for the implementation of Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties does not cover decisions to effect post-clearance recovery. It is limited to decisions to refrain from carrying out post-clearance recovery where the amount of the duties involved is equal to or greater than ECU 2 000, even where a person liable has submitted a reasoned request directed against a decision to recover duties taken by the competent national authorities.

It follows that when the person liable submits a request that action for post-clearance recovery of import duties or export duties should not be taken, it is for the national authorities to take a decision on that request and it is not incumbent upon them to refer the case for consideration by the Commission unless they intend not to recover an amount of duties equal to or greater than ECU 2 000.

3. A national court which in a case concerning Community law declares a provision of national law unconstitutional does not lose the right or escape the obligation under Article 177 of the EEC Treaty to refer questions to the Court of Justice on the interpretation or validity of Community law by reason of the fact that such a declaration is subject to a mandatory reference to the constitutional court.

4. It is for the national court, pursuant to the second paragraph of Article 177 of the EEC Treaty, to decide whether the questions of law raised by the case before it are relevant, whether a preliminary ruling is necessary for it to be able to give judgment and at which stage of the proceedings a question must be referred to the Court for a preliminary ruling.

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Case C-367/89, 4 October 1991 (Richardt and SNC)

Criminal proceedings against Aimé Richardt and Les Accessoires Scientifiques SNC. Reference for a preliminary ruling: Cour de cassation - Grand Duchy of Luxemburg.

Free movement of goods - Community transit - Strategic material.

Free movement of goods - Community transit - Principle of the freedom of Community transit - Restrictive measures adopted on the basis of Article 36 of the Treaty - Permissibility - Transit of goods described as strategic material - Requirement for special authorization - Justification on public security grounds (EEC Treaty, Art. 36; Council Regulation No 222/77)

The existence, as a consequence of the Customs Union, of a general principle of freedom of transit of goods within the Community does not, as Article 10 of Regulation No 222/77 affirms, have the effect of precluding the Member States from verifying the nature of goods in transit, pursuant to the Treaty, in particular Article 36. That article authorizes the Member States to impose restrictions on the transit of goods on grounds of public security, which covers both a Member State's internal security and its external security, of which the latter manifestly requires to be taken into consideration in the case of goods capable of being used for strategic purposes.

Accordingly, the aforementioned regulation does not preclude the legislation of a Member State from requiring, on external security grounds, that special authorization must be obtained for the transit through its territory of goods described as strategic material, irrespective of the Community transit document issued by another Member State. However, the measures adopted by the Member State as a consequence of the failure to comply with that requirement must not be disproportionate to the objective pursued.

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Case C-384/89, 24 January 1991 (Tomatis and Fulchiron)

Criminal proceedings against Gérard Tomatis and Christian Fulchiron. Reference for a preliminary ruling: Tribunal de grande instance de Nice - France.

Common Customs Tariff - Tariff heading 87.02 - Motor vehicles for the transport of persons, goods or materials

1. Preliminary rulings - Jurisdiction of the Court - Interpretation requested on account of the applicability of a provision of Community law owing to a reference made by national law -Jurisdiction to give such an interpretation (EEC Treaty, Art. 177)

2. Common Customs Tariff - Tariff headings - Classification of goods - Criteria - Objective characteristics and qualities of the product

3. Common Customs Tariff - Tariff headings - Meaning of' Motor vehicles for the transport of persons, including vehicles designed for the transport of both passengers and goods' in subheading 87.02 A - Motor vehicles having, in the rear, specially fitted spaces for fixed seats and fitted with windows and a door or tail-gate - Included

4. Common Customs Tariff - Tariff classification - Challenge by the authorities of one Member State of the classification of the product in another Member State on customs Clearance - Challenge for the purpose of levying additional customs duties – Not permitted - Challenge for other purposes - Permitted 1. Neither the wording of Article 177 of the Treaty nor the object of the procedure which it provides for indicates that the draughtsmen of the Treaty intended to exclude from the Court's jurisdiction references to the Court for a preliminary ruling in relation to a provision of Community law in the special case where the national law of a Member State refers to the substance of that provision to determine the rules applicable to a purely domestic matter in that State (see judgment in Case C-231/89 Gmurzynska-Bscberv Oberfinanzdirektion Köln [1990]ECR 1-4003). 2. As the Court has consistently held, the decisive criterion for the tariff classification of goods must be sought generally in their objective characteristics and qualities, as defined in the headings of the Common Customs Tariff and in the notes to the sections or chapters. 3. Subheading 87.02 A of the Common Customs Tariff (Motor vehicles for the transport of persons, including vehicles designed for the transport of both passengers and goods) must be interpreted as including vehicles having, behind the driver's seat or bench, specially fitted spaces for fixed, folding or removable seats, and having side windows, a rear or side door or a tail-gate, and an interior finish similar to that of vehicles designed for the transport of passengers. 4. Once goods from a non-member country have been imported into a Member State and released for free circulation on payment of the customs duty corresponding to the tariff classification decided on by the authorities in that Member State, the authorities in the other Member States no longer have any power to reclassify those goods under other headings of the Common Customs Tariff or to levy additional customs duty. However, the tariff classification given to a product by the authorities of a Member State may be challenged by the authorities of another Member State in connection with the classification of other examples of the same product or for the purposes of applying their national law.

Judgment:

(1) Subheading 87.02 A of the Common Customs Tariff must be interpreted as including vehicles having, behind the driver's seat or bench, specially fitted spaces for fixed, folding or removable seats, and having side windows, a rear or side door or a tail-gate, and an interior finish similar to that of vehicles designed for the transport of passengers.

(2) The tariff classification given to a product by the authorities of one Member State may be challenged by the authorities of another Member State in connection with the classification of other examples of the same product or for the purposes of their national law.

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Cases C-51/90 R and C-59/90 R, order of 23 May 1990 (Comos-Tank and Others)

Comos-Tank BV, Matex Nederland BV and Mobil Oil BV v Commission of the European Communities. Common Customs Tariff - Measure concerning the classification of goods - Suspension of the operation of a measure.

Application for interim measures - Suspension of operation - Interim measures - Conditions for granting - Serious and irreparable damage - Financial loss (EEC Treaty, Arts 185 and 186; Rules of Procedure, Art. 83(2))

The urgency of an application for suspension or other interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party seeking such measures. Financial loss is in principle not considered to be serious and irreparable unless, in the event of the applicant's being successful in the main proceedings, it could not be wholly recouped. That may be so in particular if the damage threatens the very existence of the undertaking in question or where, once it had occurred, it could not be quantified.

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Case C-69/90, 13 December 1991 (Commission v Italy)

Commission of the European Communities v Italian Republic. Failure of a Member State to fulfil its obligations - Physical inspections and administrative formalities in respect of the carriage of goods between Member States - Directive 87/53/EEC.

Member States - Obligations - Supervising role conferred on the Commission - Duty of the Member States - Directive imposing an obligation to provide information concerning its implementation - Obligation to communicate the reasons why there is no need to adopt implementing measures (EEC Treaty, Arts 5 and 155)

An obligation imposed on Member States by a directive to provide the Commission with full information on the measures which they have adopted in order to comply with the directive or, as the case may be, on existing provisions which already ensure its application, also means that, if a Member State considers that certain provisions of the directive do not necessitate the adoption by it of measures to implement it domestically, that State must, before the expiry of the period of implementation, inform the Commission of the reasons for its attitude so that the Commission can make its views known in that regard.

Under Article 5 of the Treaty, Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from Community law and to facilitate the achievement of the Community's tasks. To that end, they must cooperate loyally with the Commission to enable it to ensure, pursuant to Article 155 of the Treaty, that Community law is applied.

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Joined cases C-78/90, C-79/90, C-80/90, C-81/90, C-82/90 and C-83/90, 11 March 1992 (Compagnie commerciale de l'Ouest)

Compagnie Commerciale de l'Ouest and others v Receveur Principal des Douanes de La Pallice Port. References for a preliminary ruling: Cour d'appel de Poitiers - France.

Parafiscal charges on petroleum products.

1. Free movement of goods - Customs duties - Charges having equivalent effect - Internal taxation - Parafiscal charge levied on domestic and imported products but benefiting only domestic products - Basis for classification - Article 30 of the Treaty not applicable (EEC Treaty, Arts 12, 30 and 95)

2. State aids - Concept - Parafiscal charge levied on domestic and imported products but benefiting only domestic products - Included - Conditions (EEC Treaty, Arts 92 and 93)

3. State monopoly of a commercial character - Parafiscal charge unconnected with the exercise of the exclusive rights existing under a monopoly - Article 37 of the Treaty not applicable (EEC Treaty, Art. 37)

1. A parafiscal charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the charge borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the EEC Treaty. If, on the other hand, those advantages only partly offset the charge borne by domestic products, the charge in question constitutes discriminatory taxation prohibited by Article 95 of the Treaty, the collection of which is prohibited as regards the proportion of it used to offset the burden of the charge borne by domestic products.

Such a parafiscal charge, being governed by Article 12 et seq. or Article 95 of the Treaty, is not governed by Article 30 thereof.

2. A parafiscal charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the charge borne by those products, may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, it being understood that a finding that those conditions are met must be made in accordance with the procedure laid down for that purpose in Article 93 of the Treaty.

3. Article 37 of the Treaty does not prohibit the introduction of a parafiscal charge which is created independently of the rules governing the importation and marketing of petroleum in force in a Member State and is unconnected with the exercise of the exclusive rights provided for by those rules.

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Case C-120/90, 7 May 1991 (Post)

Ludwig Post GmbH v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Tariff headings 0404 10 11 and 0404 90 33 - 75% whey protein concentrate

Common Customs Tariff - Tariff headings - Product containing 76.6% protein, 5% lactose and 2.1% fat, without detectable sugar, obtained by ultrafiltration - Classification under subheading 0404 90 33 of the Combined Nomenclature

The Common Customs Tariff must be interpreted as meaning that a product described as "75% whey protein concentrate", consisting as to 76.6% of protein, 5% of lactose and 2.1% of milk fat, without detectable sugar, obtained by the ultrafiltration of whey, must be classified under subheading 0404 90 33 of the Common Customs Tariff as "products consisting of natural milk constituents ..." in the version of that subheading in the annex to Commission Regulation No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. Such a product, which no longer displays the essential characteristics of whey, cannot be classified under subheading 0404 10 as "whey, whether or not concentrated ... not containing added sugar or other sweetening matter".

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Case C-163/90, 16 July 1992 (Legros and Others)

Administration des Douanes et Droits Indirects v Léopold Legros and others. Reference for a preliminary ruling: Cour d'appel de Saint-Denis (La Réunion) - France.

Free movement of goods - Tax system of French overseas departments

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Definition ° Ad valorem charge levied by a Member State on goods imported from other Member States by reason of the entry of those goods into a region of its territory ° Included ° Identical levy on goods of national origin ° Not relevant (EEC Treaty, Arts 9, 12 and 13)

2. International agreements ° EEC-Sweden Agreement ° Elimination of obstacles to trade by means of the elimination of customs duties and charges having equivalent effect ° Implications ° Interpretation of Article 6 of the agreement based on that of Articles 9, 12 and 13 of the Treaty ° Levy by a Member State of an ad valorem tax on goods imported from Sweden by reason of their entry into a region of its territory ° Not permissible ° Identical levy on goods of national origin ° Not relevant (EEC Treaty, Arts 9, 12 and 13; EEC-Sweden Agreement, Art. 6)

3. Preliminary rulings ° Interpretation ° Temporal effects of judgments providing interpretations ° Retroactive effect ° Limits ° Legal certainty ° Discretion of the Court (EEC Treaty, Art. 177)

1. The dock dues imposed in the French overseas departments under a system whereby a charge, proportional to the customs value of goods, is levied by a Member State on goods imported from another Member State by reason of their entry into a region of the territory of the former Member State, constitute a charge having an effect equivalent to a customs duty on imports and are prohibited by Articles 9, 12 and 13 of the Treaty, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the same State.

The justification for the prohibition of any customs duty applicable to goods moving between Member States is that any pecuniary charge imposed on goods by reason of the fact that they cross a frontier impedes the movement of such goods and a charge levied at a regional frontier by reason of the introduction of products into a region of a Member State constitutes an obstacle to the free movement of goods which is at least as serious as a charge levied at the national frontier by reason of the introduction of the products into the whole territory of a Member State. The effect of such a regional levy on the unity of the Community customs territory is not altered by the fact that it is also charged on goods from the other parts of the territory of the Member State in question.

2. The Agreement between the European Economic Community and Sweden has as its aim to consolidate and to extend the economic relations existing between the parties and, to this end, to eliminate the obstacles to substantially all their trade, in accordance with the provisions of the General Agreement on Tariffs and Trade (GATT) concerning the establishment of free-trade areas. In that context, elimination both of customs duties on imports and of charges having equivalent effect, which are closely linked to them, is of prime importance. The Agreement would thus be deprived of much of its effectiveness if the term "charge having equivalent effect" contained in Article 6 of the Agreement, which prohibits the levying of such charges, were to be interpreted as having a more limited scope than the same term appearing in the EEC Treaty.

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Consequently, Article 6 of the Agreement is to be interpreted as prohibiting the levying by a Member State on goods imported from Sweden of a charge, such as the dock dues imposed in the French overseas departments, which is proportional to the customs value of goods and which is levied by reason of their entry into a region of that Member State, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the territory of the Member State concerned.

3. In exercising the power of interpretation which Article 177 confers upon it, it is only exceptionally, and solely in the actual judgment ruling upon the interpretation sought, that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned, who intends calling in question legal relationships established in good faith, the opportunity of relying upon the provisions thus interpreted. It is, in this respect, necessary to bear in mind that although the practical consequences of any judicial decision must be weighed carefully, the Court cannot go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from a judicial decision.

Given that the specific identity of the French overseas departments and the particular characteristics of the dock dues have created a situation of uncertainty regarding the lawfulness of the charge at issue under Community law, an uncertainty which, as regards Community institutions, was reflected in conduct which may have led the French authorities to believe that the levying of the charge was in conformity with Community law, overriding considerations of legal certainty preclude legal relationships whose effects have been exhausted in the past from being called into question, which would retroactively upset the system for financing the local authorities concerned.

It is for that reason that it must be held that neither the provisions of the EEC Treaty nor Article 6 of the Agreement between the Community and Sweden may be relied upon in support of claims for refund of amounts paid by way of charges such as dock dues before the date of the judgment declaring such charges to be impermissible under Community law, except by claimants having, before that date, initiated legal proceedings or raised an equivalent claim, it being understood that limitation of the temporal effects of that judgment does not apply to claims for refunds of amounts paid after delivery thereof in respect of earlier imports.

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Joined cases C-228/90 to C-234/90, C-339/90 and C-353/90, 9 June 1992 (Simba and Others)

Simba SpA and others v Ministero delle finanze. References for a preliminary ruling: Pretura di Savona, Pretura di La Spezia and Pretura di Salerno - Italy.

National tax on bananas - Levied only on products imported directly from non-member States - Possible incompatibility with Community law.

1. Tax provisions ° Internal taxation ° Duty such as the Italian national tax on consumption of fresh bananas ° Classification as internal taxation ° Duty limited, following a judgment of the Court, to products imported directly from non-member States ° Consequences ° Classification not changed but removed from the sphere of application of Article 95 of the Treaty (EEC Treaty, Arts 9, 12 and 95)

2. Common commercial policy ° Levying by a Member State of a protectionist internal tax on products imported directly from non-member States ° Permissible under the rules of the Treaty but must be examined in the light of international agreements between the Community and non-member States (EEC Treaty, Art. 113)

3. Community law ° Direct effect ° Conflict between Community law contained in agreements, conferring rights on individuals, and a national law ° Obligations and powers of national courts ° Non-application of the national law

1. A duty such as the national tax on consumption levied on fresh bananas, introduced into the Italian legal system by Law No 986/1964, as amended by Law No 873/1982, where it is part of a system of taxes on consumption governed by common tax rules and charged on categories of products irrespective of their origin in accordance with an objective criterion, namely the fact that the product falls into a specific category of goods; some of those taxes are charged on products intended for human consumption and the fact that those goods are produced at home or abroad does not seem to have a bearing on the rate, the basis of assessment or the manner in which the tax is levied; and the revenue from those taxes is not allocated for a specific purpose but constitutes tax revenue identical to other tax revenue and, like it, helps to finance State expenditure generally in all sectors, must be regarded as being an integral part of a general system of internal taxation within the meaning of Article 95 of the Treaty and its compatibility with Community law must be assessed on the basis of that article rather than Articles 9 and 12 of the Treaty.

Its legal status as internal taxation is not affected by the fact that, following a judgment of the Court declaring its application of the duty to fresh bananas imported from other Member States incompatible with Article 95, it is levied solely on bananas imported directly from non-member States. That fact is the result of the judgment of the Court and cannot be regarded as the criterion determining the concept of a charge having an effect equivalent to a customs duty on imports. Nor can the tax be considered in isolation from the system of internal taxation of which it forms part.

Since Article 95 is applicable only to products imported from other Member States, a duty such as the tax at issue is not covered by that provision inasmuch as it is applicable to imports of fresh bananas coming directly from non-member States.

2. A duty such as the national tax on consumption levied on fresh bananas, introduced into the Italian legal system by Law No 986/1964, as amended by Law No 873/1982, in so far as it is applicable to fresh bananas imported directly from non-member States and even though its

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protectionist nature with regard to home-produced table fruit is established, is not incompatible with the spirit and the scheme of Community law as they emerge from the provisions of the EEC Treaty relating to the implementation of the common commercial policy, without prejudice, however, to the application of the provisions of any international agreements that may be in force between the Community and the non-member States from which the bananas come.

It is a matter for the national courts, after seeking, if necessary, a preliminary ruling from the Court on the interpretation of the provisions of such agreements, to determine whether they are of a nature effectively to prohibit the levy of the duty in question.

3. In so far as a national law introducing a duty such as the national tax on consumption levied on fresh bananas, introduced into the Italian legal system by Law No 986/1964, as amended by Law No 873/1982, is considered to be incompatible with provisions of Community law contained in agreements, conferring rights on individuals, that law must be disregarded by national courts since, in such a case, the individuals concerned are not required to pay the duty in question.

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Case C-246/90, 3 June 1992 (Parma)

Parma Handelsgesellschaft mbH v Hauptzollamt Bad Reichenhall. Reference for a preliminary ruling: Finanzgericht München - Germany.

Morello cherries in syrup - Definition.

Agriculture ° Common organization of the markets ° Products processed from fruit and vegetables ° Protective measures applicable to imported Morello cherries ° Morello cherries in syrup ° Definition ° Reference to subheadings 20.06 B II a) 8 and 20.06 B II b) 8 of the Common Customs Tariff ° Morello cherries contained in a liquid obtained by heating them in water and having a sugar content greater than 9% ° Covered ° Calculation of the minimum import price ° Taking into account the weight of the syrup (Commission Regulation No 1626/85, Art. 1(1), as amended by Regulation No 1712/85)

Article 1(1) of Regulation No 1626/85 on protective measures applicable to imports of certain Morello cherries, as amended by Regulation No 1712/85 amending the German, Greek, English, French, Italian and Dutch versions of that regulation, is to be interpreted as meaning that Morello cherries in a liquid derived from heating them in water which for that reason has a sugar content greater than 9% must be classified as "Morello cherries in syrup" within the meaning of Regulation No 1626/85, and consequently fall within tariff subheadings 20.06 B II a) 8 and 20.06 B II b) 8 of the Common Customs Tariff.

The minimum price for imports of Morello cherries in syrup must be calculated on the basis of the combined weight of the Morello cherries and the syrup.

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Case C-260/90, 12 February 1992 (Leplat)

Bernard Leplat v Territory of French Polynesia. Reference for a preliminary ruling: Tribunal de paix de Papeete (Polynésie) - France.

Overseas countries and territories - Customs duties and charges having equivalent.

Association of overseas countries and territories - Treaty provisions relating to customs duties levied on imports from the Member States and the other countries and territories - Application to charges having equivalent effect - Power of the countries and territories to levy customs duties on imports - Conditions - Progressive reduction of duties existing when the Treaty entered into force with a view to abolishing all discrimination according to the Member State of origin - Objective attained - Consequence (EEC Treaty, Art. 133(2), (3) and (5); Decision 64/349 of the Council)

Article 133(2) and (3) of the Treaty dealing with imports into the overseas countries and territories associated with the Community of goods from the Member States and the other countries and territories applies both to the customs duties which it explicitly mentions and to charges having an effect equivalent to customs duties.

The overseas countries and territories may levy such duties and charges, whether or not they existed when the Treaty entered into force, provided, first, that the duties or charges levied meet the needs of their development and industrialization or produce revenue for their budgets and, secondly, that the introduction of or any change in such duties or charges does not give rise to any direct or indirect discrimination between imports from the various Member States, and subject to the obligation to implement reductions laid down in the second subparagraph of Article 133(3).

The progressive reduction of the duties and charges existing when the Treaty entered into force to the level of those imposed on imports from the Member State with which each country or territory has special relations, as provided for under the second subparagraph of Article 133(3), was achieved when Decision 64/349 was implemented. As from that time, with regard to those customs duties or charges having equivalent effect, all discrimination between imports from the various Member States is prohibited.

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Case C-269/90, 21 November 1991 (Technische Universität München)

Technische Universität München v Hauptzollamt München-Mitte. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Exemption for scientific instruments - Equivalent scientific value.

Common Customs Tariff - Exemption from import duties - Scientific instruments and apparatus - Commission decision - Power of appraisal subject to procedural guarantees for persons applying for an exemption - Review by the Court - Procedural guarantees not respected - Illegality (Regulation (EEC) No 1798/75 of the Council; Commission Regulation No 2784/79, Art. 7; Commission Decision 83/348)

The decision which the Commission is required to adopt at the end of the procedure laid down in Article 7 of Regulation No 2784/79 implementing Regulation No 1798/75 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials entails complex technical evaluations. In order to be able to fulfil its tasks, the Commission must have a power of appraisal which makes respect for the rights guaranteed by the Community legal order in administrative procedures of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present.

Decision 83/348 must be declared invalid because it was adopted without regard to the above principles which, in the instant case, would have required the group of experts, whose opinion the Commission followed, to have been appropriately composed, the applicant for exemption to have been given an opportunity to make its views known on the relevant circumstances and, where necessary, on the documents taken into account by the Commission and the statement of reasons for the decision finally adopted not to have merely reproduced the reasoning for a previous decision.

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Case C-282/90, 13 March 1992 (Vreugdenhil)

Industrie- en Handelsonderneming Vreugdenhil BV v Commission of the European Communities. Arrangements for returned goods - Invalidity on the ground that the Commission had no power to adopt a measure - Action to establish liability.

1. Action for damages - Subject-matter - Claim for compensation brought against the Community under the second paragraph of Article 215 of the Treaty - Exclusive jurisdiction of the Court - Claim for recovery of sums wrongfully charged by national authorities on the basis of Community rules which are declared invalid - Competence of national courts (EEC Treaty, Art. 178 and Art. 215, second paragraph)

2. Non-contractual liability - Conditions - Legislative measure - Sufficiently serious breach of a superior rule of law for the protection of the individual - Disregard of the system for the allocation of powers between the Community institutions - No liability (EEC Treaty, Art. 215, second paragraph)

1. The combined provisions of Article 178 and Article 215 of the Treaty give the Court exclusive jurisdiction to hear actions seeking compensation for damage attributable to the Community, which is bound, under the second paragraph of Article 215, to make good, in accordance with the general principles common to the laws of the Member States, any damage caused by its institutions or by its servants in the performance of their duties. On the other hand, only the national courts have jurisdiction to entertain an action for the recovery of amounts wrongfully charged by a national administration on the basis of Community rules which are subsequently declared invalid.

2. The mere fact that a legislative measure of the Community is invalid is insufficient by itself for the Community to incur non-contractual liability under the second paragraph of Article 215 of the Treaty for damage caused to individuals. Such liability can only be incurred where a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred. That is not the case where the measure declared invalid has failed to observe the system of the division of powers between the various Community institutions, since the aim of that system is to ensure that the balance between institutions provided for in the Treaty is maintained, and not to protect individuals.

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Case C-299/90, 25 July 1991 (Hepp)

Hauptzollamt Karlsruhe v Gebrüder Hepp GmbH & Co. KG. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Customs value - Buying commission.

Common Customs Tariff - Customs value - Transaction value - Determination - Involvement of a buying agent acting on behalf of the importer - Price in the transaction between the manufacturer or supplier and the importer - Buying commission paid by the importer to the agent excluded (Council Regulation No 1224/80, Art. 3(1) and Art. 8(1)(a)(i))

Where a buying agent has acted in his own name but in fact represented the importer who bore the financial risks of the transaction in acting for his own account, the transaction to be taken into account in order to determine, pursuant to Article 3(1) of Regulation No 1224/80, the customs value of the imported goods is that between the manufacturer or supplier and the importer. The price in that transaction constitutes the customs value for the purposes of the aforementioned provision. In accordance with Article 8(1)(a)(i) of that regulation, the buying commission paid by the importer to the agent is not to be included in that value, even if the importer has described the buying agent as the seller and has declared the price of the goods as invoiced by that agent.

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Case C-318/90, 3 June 1992 (Boehringer)

Hauptzollamt Mannheim v Boehringer Mannheim GmbH. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Unsterile calf foetus serum.

Common Customs Tariff ° Tariff headings ° Unsterile calf foetus serum ° Exclusion from heading 38.16 ° Classification under subheading 05.15 B

The Common Customs Tariff must be interpreted as meaning that unsterile calf foetus serum, since it is not a chemical product and has not been prepared for the development of micro-organisms by a specific treatment, and is not so close to such a product that it can, under Rule 2(a) of the general rules for interpretation of the Common Customs Tariff Nomenclature, come under the same tariff heading, does not come under heading 38.16 but under subheading 05.15 B.

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Case C-323/90, 11 March 1992 (Commission v Portugal)

Commission of the European Communities v Portuguese Republic. Persons admitted to make a customs declaration - Declaration on behalf of another person

Customs union - Customs declarations - Persons permitted to make them - National rules reserving to official agents the right to make declarations in their own name and on behalf of another person and prohibiting other undertakings from making them in the name and on behalf of another as a regular part of their business activity - Not permissible (Council Regulation No 3632/85, Art. 3(3))

A Member State which reserves for official customs agents the right to make customs declarations in their own name and on behalf of another person and prohibits undertakings other than those agents, in particular forwarding and shipping undertakings, from making such declarations in the name and on behalf of another person as a regular part of their business activity has failed to fulfil its obligations under Regulation No 3632/85 defining the conditions under which a person may be permitted to make a customs declaration.

Although Article 3(3) of the regulation permits one of the two types of representation mentioned to be reserved for a professional category, it requires that the activity which is not reserved should in fact be capable of being freely pursued so that importers of goods should not be obliged, for the purpose of making their customs declarations, to resort exclusively to official agents, but should be able to exercise some freedom of choice between different categories of competing operators.

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Case C-338/90, 31 March 1992 (Hamlin Electronics)

Hamlin Electronics GmbH v Hauptzollamt Darmstadt. Reference for a preliminary ruling: Hessisches Finanzgericht - Germany.

Common Customs Tariff - Temporary suspension of autonomous duty - Reed switches.

Common Customs tariff - Amendment or suspension of import duty - Description of the products concerned - Interpretation - Criteria - "Reed switches containing not more than a small quantity of mercury" - Reed switches containing no mercury - Inclusion (Council Regulations No 3696/88, Art. 1, and No 1656/89, Art. 1)

The ambiguous wording used in the Annex to Regulations No 3696/88 and No 1656/89, both temporarily suspending the autonomous Common Customs Tariff duty on certain industrial products (in the microelectronics and related sectors), namely (CN Code ex 8536 5000) "Reed switches in the form of a glass capsule containing not more than three electrical contacts on metal arms and a small quantity of mercury", must, in view of the fact that duty was suspended because of inadequate production within the Community of switches containing little or no mercury and because of the need for such products to be available to user industries in the Community, whereas Community production of switches containing a large quantity of mercury is adequate, be interpreted as meaning that switches containing no mercury qualify for the suspension of customs duty.

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Case C-371/90, 8 April 1992 (Beirafrio)

Beirafrio - Indùstria de Produtos Alimentares Ldª v Chefe do Serviço da Conferência final da Alfandega do Porto. Reference for a preliminary ruling: Tribunal Fiscal Aduaneiro do Porto - Portugal.

Post-clearance recovery of customs duties.

1. European Communities' own resources ° Post-clearance recovery of import duties or export duties ° "Information given by the competent authorities themselves which is binding on them" ° Meaning ° Determined by national legislation prior to the entry into force of Regulation No 1715/90a) (Council Regulations Nos 1697/79, Art. 5(1) and 1715/90)

2. European Communities' own resources ° Post-clearance recovery of import duties or export duties ° Distinction between Article 5(1) and Article 5(2) of Regulation No 1697/79 ° Error made by the administration which could not "reasonably have been detected by the person liable" ° Rules for assessment (Council Regulation No 1697/79, Art. 5(1) and (2))

1. The first indent of Article 5(1) of Regulation No 1697/79 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 provides no clarification regarding information which is capable of binding the competent authorities, the identity of the authorities competent to give it or the form in which it must be given.

The objective of that regulation is not to harmonize national laws but to guarantee the certainty which persons liable for payment have the right to expect from official acts having financial consequences where the original calculation of the import duties or export duties was based on information that was given by the customs authorities themselves and is binding on them. Therefore, the matters mentioned above are determined, in the absence of any indication in the Community legislation applicable before the entry into force of Regulation No 1715/90, by the legislation of the Member State concerned.

2. In order for the post-clearance recovery of import duties or export duties to be excluded, the first indent of Article 5(1) of Regulation No 1697/79 does not require that the error made by the competent authorities which gave information to the person liable could reasonably have been detected by that person. That provision provides special protection for the person liable, based on the fact that the incorrect information binding on the competent authority gave rise to legitimate expectations whereby the person concerned is entitled to expect that there will be no post-clearance recovery.

The fact that the error made by the competent authorities was not reasonably detectable by the person liable is, on the other hand, one of the preconditions for the application of Article 5(2), upon which the person liable may rely, provided that all the conditions laid down therein are satisfied, where the error arises from information that is not binding on the competent authorities. It is for the national court to decide whether that condition has been satisfied, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised.

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Case C-14/91, 30 January 1992 (SuCrest)

SuCrest GmbH v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Combined Nomenclature - Emulsifiers intended for pastry dough.

Common Customs Tariff - Tariff headings - Emulsifiers intended for pastry dough composed essentially of sorbitol syrup and monoglycerides and diglycerides - Exclusion from Chapter 38 as being mixtures containing substances with nutritive value - Classification under heading 2106 of the Combined Nomenclature

The Common Customs Tariff must be interpreted as meaning that emulsifiers intended for pastry dough and consisting essentially of sorbitol syrup (70% by dry weight) and mono- and diglycerides are, as "mixtures of chemical products and foodstuffs or other substances with nutritive value" within the meaning of note 1(6) of Chapter 38, excluded from that chapter and that they fall under heading 2106 of the Combined Nomenclature. The concept of "substances with nutritive value" must, in the light of a note of the Nomenclature Committee of the Customs Cooperative Council, be interpreted as capable of applying to chemical products.

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Case C-16/91, 17 December 1992 (Wacker Werke)

Wacker Werke GmbH & Co. KG v Hauptzollamt München-West. Reference for a preliminary ruling: Finanzgericht München - Germany.

Outward processing - Total or partial relief from import duty - Determination of the value of compensating products and of temporary export goods.

Free movement of goods ° Trade with non-member countries ° Outward processing relief arrangements ° Total or partial relief from import duty applied to compensating products ° Methods of calculation ° Determination of duty theoretically payable ° Transaction value of compensating products ° Determination of duty actually payable ° Determination of the value of temporary export goods (Council Regulations No 1224/80, Arts 3 and 8(1)(b)(i), and No 2473/86, Art. 13)

Regulation No 2473/86 on outward processing relief arrangements and the standard exchange system is to be interpreted as meaning that, in calculating the total or partial relief from import duty on the compensating products, the calculation of import duty theoretically payable on those products must in principle be based on their transaction value, while the value of the temporary export goods, which is required in order to determine the duty actually payable, must be calculated using one of the two methods set out in the second subparagraph of Article 13(2) of that regulation. If the value of the compensating products has been determined without any adjustment for the purposes of Article 8(1)(b)(i) of Regulation No 1224/80 on the valuation of goods for customs purposes, the value of the temporary export goods corresponds to the difference between the customs value of the compensating products and the processing costs determined by reasonable means, such as taking account of the transaction value of the temporary export goods.

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Case C-17/91, 16 December 1992 (Lornoy and Others)

Georges Lornoy en Zonen NV and others v Belgian State. Reference for a preliminary ruling: Rechtbank van eerste aanleg Turnhout - Belgium.

Parafiscal charges - Compulsory contributions to a Fund for Animal Health and Livestock Production.

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Basis for classification ° Article 30 of the Treaty not applicable (EEC Treaty, Arts 12, 30 and 95)

2. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Treaty rules ° Direct effect (EEC Treaty, Arts 12, 13 and 95)

3. State aid ° Concept ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Included ° Conditions ° Jurisdiction of the national courts ° Scope (EEC Treaty, Arts 92 and 93)

1. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, such a charge constitutes discriminatory taxation within the meaning of Article 95 of the Treaty, the collection of which is prohibited as regards the proportion used to offset the burden borne by domestic products.

A parafiscal charge of that kind, being governed by Article 12 et seq. or Article 95 of the Treaty, is not governed by Article 30 thereof.

2. Articles 12, 13 and 95 of the Treaty have direct effect and create rights for individuals which the national courts must protect.

3. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must be had to the jurisdiction of the national courts where, in introducing that charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.

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Case C-21/91, 4 June 1992 (Wünsche)

Wünsche Handelsgesellschaft International GmbH & Co. KG v Hauptzollamt Hamburg-Jonas. Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.

Customs value - Financing arrangement.

Common Customs Tariff ° Customs value ° Transaction value ° Calculation ° Interest payable under a financing arrangement ° Excluded ° Financing arrangement ° Concept ° Deferment of payment granted by the seller to the buyer ° Included (Council Regulation No 1224/80, Arts 1, 3 and 8; Commission Regulation No 1495/80, Art. 3, as amended by Regulation No 220/85)

The expression "financing arrangement" used in Article 3(2) of Regulation No 1495/80 implementing certain provisions of Articles 1, 3 and 8 of Regulation No 1224/80 on the valuation of goods for customs purposes, as amended by Regulation No 220/85, is to be interpreted in the same manner as the same expression in Article 3(c) of the original version of Regulation No 1495/80.

The said Article 3 is to be interpreted as meaning that interest payable as a result of time allowed by the seller and accepted by the buyer for payment for imported goods is to be regarded as "interest payable under a financing arrangement relating to the purchase of the imported goods", not to be included in the customs value.

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Case C-114/91, 16 December 1992 (Claeys)

Criminal proceedings against Gérard Jerôme Claeys. Reference for a preliminary ruling: Rechtbank van eerste aanleg Ieper - Belgium.

Parafiscal charges - Compulsory contributions to a National Marketing Office for Agricultural and Horticultural Products.

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Basis for classification (EEC Treaty, Arts 12 and 95)

2. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Treaty rules ° Direct effect (EEC Treaty, Arts 12, 13 and 95)

3. State aid ° Concept ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Included ° Conditions ° Jurisdiction of the national courts ° Scope (EEC Treaty, Arts 92 and 93)

1. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, such a charge constitutes discriminatory taxation within the meaning of Article 95 of the Treaty, the collection of which is prohibited as regards the proportion used to offset the burden borne by domestic products.

2. Articles 12, 13 and 95 of the Treaty have direct effect and create rights for individuals which the national courts must protect.

3. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must be had to the jurisdiction of the national courts where, in introducing that charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.

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Joined cases C-144/91 and C-145/91, 16 December 1992 (Demoor and Others)

Gilbert Demoor en Zonen NV and others v Belgian State. References for a preliminary ruling: Rechtbank van eerste aanleg Brussel - Belgium.

Parafiscal charges - Compulsory contributions to a Fund for Animal Health and Livestock Production.

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Basis for classification (EEC Treaty, Arts 12 and 95)

2. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Treaty rules ° Direct effect (EEC Treaty, Arts 12, 13 and 95)

3. State aid ° Concept ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Included ° Conditions ° Jurisdiction of the national courts ° Scope (EEC Treaty, Arts 92 and 93)

1. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, such a charge constitutes discriminatory taxation within the meaning of Article 95 of the Treaty, the collection of which is prohibited as regards the proportion used to offset the burden borne by domestic products.

2. Articles 12, 13 and 95 of the Treaty have direct effect and create rights for individuals which the national courts must protect.

3. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must be had to the jurisdiction of the national courts where, in introducing that charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.

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Case C-177/91, 14 January 1993 (Bioforce)

Bioforce GmbH v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Headings 30.04 and 22.08 - "WeißdornTropfen".

Common Customs Tariff ° Tariff headings ° Hawthorn extract with added alcohol ° Product for therapeutic and prophylactic use ° Classification under heading 30.04 of the Combined Nomenclature

The Common Customs Tariff must be interpreted as meaning that an extract of hawthorn with added alcohol, entitled "Weissdorn-Tropfen" (hawthorn drops), must be classified under heading 30.04 of the Combined Nomenclature. Taken in appropriate doses determined by medical prescription, that product has clearly defined therapeutic and above all prophylactic characteristics, the effect of which is concentrated on precise functions of the human organism, namely the cardiac, circulatory and neuro-vegetative functions. Moreover, the alcohol contained in the product in question, however high the percentage may be, far from changing its nature, acts on the contrary as an adjuvant, a preservative and a vehicle for its active principles.

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Case C-187/91, 16 July 1992 (Belovo)

Belgian State v Société coopérative Belovo. Reference for a preliminary ruling: Tribunal de première instance de Neufchâteau - Belgium.

Consequences of the automatic correction of an erroneous import licence.

1. Agriculture ° Common organization of the markets ° Import and export licences ° Import licences wrongly issued as a result of an administrative error ° Action for damages brought by the holder before the national court ° Whether permissible in the light of Regulation No 3719/88 (Commission Regulation No 3719/88, Arts 24 and 25)

2. European Communities' own resources ° Post-clearance recovery of import or export duties ° Scope of Regulation No 1697/79 ° Administrative error which could not "reasonably have been detected by the person liable" ° Assessment criteria (Council Regulation No 1697/79, Art. 5(2))

1. Articles 24 and 25 of Regulation No 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products, which authorize the agency issuing a licence or certificate to correct it, do not preclude the holder of import licences from bringing an action for damages against the issuing agency, in accordance with national law, where it is agreed that those licences should not have been issued, in the course of which regard is had inter alia to the trader' s legitimate expectations in respect of those licences.

2. An action for the post-clearance recovery of import levies which have not been paid on account of an error made by the competent authorities of a Member State when issuing import licences falls within the scope of Article 5 of Regulation No 1697/79 on the post-clearance recovery of import or export duties.

In order to assess whether there has been an "error made by the competent authorities themselves which could not reasonably have been detected by the person liable", within the meaning of Article 5(2), regard must be had inter alia to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. It is for the national court to appraise whether or not, on the basis of that interpretation, the error which resulted in the duties not being collected was capable of being detected by the person liable.

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Case C-188/91, 21 January 1993 (Deutsche Shell)

Deutsche Shell AG v Hauptzollamt Hamburg-Harburg. Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.

Transit - International convention.

1. Preliminary rulings ° Jurisdiction of the Court ° Acts adopted by the institutions ° Agreements of the Community ° Convention on a Common EEC/EFTA Transit Procedure ° Arrangements adopted by the Joint Committee established by the Convention ° No binding effect ° Not relevant (EEC Treaty, Art. 177, first para., subpara. (b))

2. International agreements ° Convention on a Common EEC/EFTA Transit Procedure ° Identification of goods ° Methods (Convention on a Common EEC/EFTA Transit Procedure)

3. International agreements ° Convention on a Common EEC/EFTA Transit Procedure ° Identification of goods ° Methods ° Derogations ° Competent authority (Convention on a Common EEC/EFTA Transit Procedure)

4. Preliminary rulings ° Jurisdiction of the Court ° Limits (EEC Treaty, Art. 177)

1. The arrangements adopted for the application of the Convention on a Common EEC/EFTA Transit Procedure by the Joint Committee established under that Convention are, because of their direct link to the Convention, part of the Community legal order, so that the Court has jurisdiction to give a preliminary ruling on their interpretation.

The fact that such arrangements do not have binding effect does not preclude the Court from ruling on their interpretation. Although they cannot confer upon individuals rights which are enforceable before national courts, the national courts are nevertheless obliged to take them into consideration in order to resolve disputes submitted to them, especially when they are of relevance in interpreting the provisions of the Convention.

2. Articles 11(4) and 15(2) of the Convention on a Common EEC/EFTA Transit Procedure do not preclude the Joint Committee established by that Convention from adopting a recommendation that the identification of goods is to be ensured by sealing when the customs office of entry into the EFTA Member State is not the office of destination.

3. Article 11(4) and Article 15(2)(b) of the Convention on a Common EEC/EFTA Transit Procedure, read in conjunction with Article 65(d) of Appendix II to the Convention, do not preclude a higher customs authority of a Member State from establishing the general framework within which the authority conferred upon the office of departure to dispense with the sealing obligation is to be exercised.

4. In the context of proceedings brought under Article 177 of the Treaty the Court does not have jurisdiction to rule on the compatibility of a national measure with Community law.

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Case C-191/91, 10 March 1993 (Abbott)

Abbott GmbH v Oberfinanzdirektion Köln. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Monoclonal antibodies.

Common Customs Tariff ° Tariff headings ° Sets of goods having a monoclonal diagnostic reagent (antibody) as their principal component ° Classification under subheading 3002 10 91 of the Combined Nomenclature

The Common Customs Tariff is to be interpreted as meaning that sets of goods having a monoclonal diagnostic reagent (antibody) as their principal component are to be classified under subheading 3002 10 91 of the Combined Nomenclature.

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Case C-194/91, 16 December 1992 (Krohn)

Firma John Friedrich Krohn v Hauptzollamt Hamburg-Jonas.

Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. Subheading 23.04 B of the Common Customs Tariff - Residues resulting from the extraction of maize germ oil containing inter alia fragments of maize stalks and traces of other cereals and soya.

Common Customs Tariff ° Tariff headings ° Residues resulting from the extraction of maize germ oil ° Classification within subheading 23.04 B notwithstanding the presence of other substances deriving in particular from the maize plant, other cereals or soya ° Conditions ° Very small quantity of the extraneous substances and technical impossibility of avoiding their presence (Commission Regulation No 482/74, Art. 1)

The last sentence of Article 1 of Regulation No 482/74 on the classification of goods under subheading No 23.04 B of the Common Customs Tariff must be interpreted as meaning that the products resulting from the extraction of maize oil fall under that subheading even when they contain, in addition to the residues resulting from the extraction of oil from the actual maize germs, other substances deriving in particular from the whole of the maize plant, other cereals or soya, in so far as those substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring cost disproportionate to the commercial value of the derived products in question. Since the Community legislature has not set a maximum permitted level for matter extraneous to maize grains, it is for the national court, in resolving the case before it, to fix the permissible level of such matter.

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Case C-250/91, 1 April 1993 (Hewlett Packard)

Hewlett Packard France v Directeur Général des Douanes. Reference for a preliminary ruling: Tribunal d'instance de Paris 7ème - France.

Post-clearance recovery of customs duties.

1. Own resources of the European Communities ° Post-clearance recovery of import and export duties ° "Error made by the competent authorities themselves" ° "Error ... which could not reasonably have been detected by the person liable" ° Person liable who has "observed all the provisions laid down by the rules in force" ° Meaning (Council Regulation No 1697/79, Art. 5(2))

2. Own resources of the European Communities ° Repayment or remission of import and export duties ° "Special situation" ° Circumstances in which "no deception or obvious negligence may be attributed" to the person concerned ° Meaning (Council Regulation No 1430/79, Art. 13)

1. Article 5(2) of Regulation No 1679/79, which makes any waiver of post-clearance recovery of import or export duties by the competent customs authorities subject to the fulfilment of three conditions, must be interpreted in the light of the following considerations:

Incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery does not, in the absence of a Community regulation ensuring that such information has the same legal significance in all the Member States, constitute "an error made by the competent authorities themselves". On the other hand, such an error is made by the authorities competent to effect recovery, within the meaning of that provision, where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification.

In order to determine whether there has been "an error ... which could not reasonably have been detected by the person liable", account must be taken, in particular, of the nature of the error, of the experience of the trader and of the diligence shown by him. In that regard, it is appropriate to make clear:

° that the need to adopt, in view of the divergences between the various Member States concerning the tariff classification of goods, a regulation definitively clarifying the tariff heading under which the goods are to be classified constitutes strong evidence of the complexity of the problem to be resolved;

° that even an experienced trader may regard his customs declarations as correct where he relied, for the purposes of the tariff classification of the goods in question, on tariff information provided by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery to a company belonging to the same group as the person liable and where the tariff classification indicated in the customs declaration was not challenged for a relatively long period by the competent authorities;

° that the requirement of diligence on the part of the trader concerned must be regarded as satisfied where the trader had no doubt, in view of the existence of tariff information supplied

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to a company belonging to the same group as the person liable, as to the correctness of the tariff classification of the goods in question;

° that it is for the national court, having regard to the circumstances of the case, to establish whether, on the basis of this interpretation, the criteria for determining the extent to which the error that resulted in non-collection of the customs duties was capable of detection are satisfied.

The requirement that the person liable should have observed, in relation to his customs declaration, "all the provisions laid down by the rules in force" must be regarded as satisfied where the trader, acting in good faith, declared the goods under an incorrect tariff heading, provided that the latter was clearly and explicitly indicated together with the description of the goods in question, so that the competent customs authorities should have been able immediately and unequivocally to determine the lack of conformity with the correct tariff heading.

2. Article 13 of Regulation No 1430/79, which empowers the competent authorities to repay or remit import and export duties in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, must be interpreted in the light of the following considerations:

The fact that a trader has relied on incorrect information supplied to a company belonging to the same group as the person liable by a competent customs authority in a Member State other than that of the customs authority competent to effect post-clearance recovery may constitute a special situation of the kind referred to in that article.

It is for the national court to establish whether both the other preconditions for the application of Article 13, namely the absence of obvious negligence or deception and due compliance with procedural rules, have been satisfied. The question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1679/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation No 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation No 1679/79.

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Case C-256/91, 1 April 1993 (Emsland-Stärke)

Emsland-Stärke GmbH v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Combined Nomenclature - Amylaceous product.

Common Customs Tariff ° Tariff headings ° Amylaceous product made up of native potato starch and neutralized potato starch ester ° Classification under subheading No 1108 13 00 of the Combined Nomenclature

The Common Customs Tariff ° Combined Nomenclature ° must be interpreted as meaning that an amylaceous product (starch content determined by the Ewers method: 99% by weight, or by the saccharification method: 81.1% by weight, with an acetyl content of 0.65% or 0.67% by weight) made up of native potato starch, mixed with an acetaldehyde-free and neutralized potato starch ester, which is intended to be used in the paper and textile industries and which, by its nature, is also fit for human consumption, but is not authorized for that purpose under the legislation on food products, must be classified under subheading 1108 13 00.

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Case C-266/91, 2 August 1993 (CELBI)

Celulose Beira Industrial SA v Fazenda Pública. Reference for a preliminary ruling: Supremo Tribunal Administrativo - Portugal.

Parafiscal charge on chemical pulp - Articles 9, 12 and seq., 30, 92 and 95 of the EEC Treaty.

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Parafiscal charge levied on domestic and imported products but benefiting only domestic products ° Basis for classification ° Offsetting of charges levied on domestic products ° Article 30 of the Treaty not applicable (EEC Treaty, Arts 12, 30 and 95)

2. State aid ° Concept ° Parafiscal charge levied on domestic and imported products but benefiting only domestic products ° Included ° Conditions (EEC Treaty, Arts 92 and 93)

1. A parafiscal charge applicable without distinction to domestic and imported products constitutes a charge having an effect equivalent to a customs duty prohibited under Article 12 of the Treaty if the revenue from it is appropriated wholly to finance advantages exclusively benefiting domestic products, thereby fully offsetting the burden on them. If, on the other hand, that revenue is used only partially to provide such advantages, which thus offset only part of the burden on domestic products, the charge will constitute discriminatory taxation prohibited by Article 95 of the Treaty. In that regard, the criterion of the offsetting of the burden on the domestic product is to be construed as requiring financial equivalence, to be verified over a reference period, between the total amount of the charge imposed on domestic products and the advantages exclusively benefiting those products.

Since such a parafiscal charge is governed by Article 12 et seq. or Article 95 of the Treaty, it does not fall within the scope of Article 30 thereof.

2. The use of the revenue from a parafiscal charge applicable without distinction to domestic and imported products to finance advantages exclusively benefiting domestic products, thereby offsetting the burden on them, may constitute a State aid incompatible with the common market if the conditions set out in Article 92 of the Treaty are fulfilled; however, such a determination is a matter for the Commission and may be made only after the procedure provided for in that regard by Article 93 of the Treaty.

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Joined cases C-277/91, C-318/91 and C-319/91, 15 December 1993 (Ligur Carni and Others)

Ligur Carni Srl and Genova Carni Srl v Unità Sanitaria Locale n. XV di Genova and Ponente SpA v Unità Sanitaria Locale n. XIX di La Spezia and CO.GE.SE.MA Coop a r l. References for a preliminary ruling: Tribunale di Genova - Italy.

Public health inspections at the place of destination - Harmonizing directives - Articles 30 and 36 of the EEC Treaty.

1. Preliminary rulings ° Reference to the Court ° Need for prior inter partes proceedings ° Assessment by the national court (EEC Treaty, Art. 177)

2. Agriculture ° Approximation of laws concerning public health policy ° Intra-Community trade in fresh meat ° Directive 64/433 ° Systematic inspections of goods having a public health certificate and levying of charges by way of consideration ° Not permissible ° Levying of charges in consideration of inspections permitted by the directive ° Justification ° None (Council Directive 64/433, as amended by Directive 83/90)

3. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° Importation of fresh meat into a municipality of a Member State ° Transport and delivery to the place of final destination ° Obligation imposed on traders to have recourse to an undertaking holding an exclusive concession ° Not permissible ° Measure limited to a part of the national territory and applicable without distinction to domestic and imported products ° No effect ° Article 30 of the Treaty ° Direct effect (EEC Treaty, Art. 30)

1. Although Article 177 of the Treaty does not make reference to the Court subject to the proceedings during which the national court frames a question for a preliminary ruling being inter partes, it may, in some circumstances, prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard, but it is for the national court alone to assess whether that is necessary.

2. Directive 64/433 on health problems affecting intra-Community trade in fresh meat, as amended by Directive 83/90, established a complete, detailed and harmonized system of health inspections of fresh meat, based on public health guarantees being equivalent at Community level, which replaces all other inspection systems existing within the country of destination, whatever the place where such inspections may be carried out.

The directive must therefore be interpreted as precluding a domestic inspection system which makes imported goods already accompanied by a health certificate issued by the authorities of the exporting Member State in accordance with Community rules subject to compulsory, systematic and permanent health checks, even where such checks do not take place at the frontier, but in the municipality of transit or destination of the goods, and requires the economic operator in question to pay a charge therefor.

The levying of such a pecuniary charge is also not justified in respect of health checks and inspections allowed under the directive as consideration for services rendered, since the activity undertaken by the national authorities in relation to those inspections is carried out in the public interest and not in the interest of the importer. It must, therefore, in every case be viewed as an obstacle to the free movement of Community goods, which is prohibited by the Treaty.

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3. The fact that rules of a municipality in a Member State oblige traders importing fresh meat into the municipality to go through the municipal slaughterhouse to entrust the transport and delivery of their goods to their final destination to a local undertaking holding an exclusive concession for that work and that those rules allow those traders to carry out the transport and delivery of their goods themselves upon payment of a certain sum to the undertaking holding that concession constitutes a barrier to importations between Member States which is prohibited by Article 30 of the Treaty.

That conclusion is not affected by the fact that the measure in question is limited to the territory of a municipality within a Member State. When a national measure has limited territorial scope because it applies only to a part of the national territory, it cannot escape being categorized as discriminatory or protective for the purposes of the rules on free movement of goods on the ground that it affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States. Nor is it material that the measure in question is generally applicable without distinction to national and imported products, since its effect is to make importation of goods from other Member States more burdensome and more difficult.

Article 30 of the Treaty has direct effect and creates for individuals rights which the national courts must protect.

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Case C-291/91, 11 February 1993 (Textilveredlungsunion)

Textilveredlungsunion GmbH & Co. KG v Hauptzollamt Nürnberg-Fürth. Reference for a preliminary ruling: Finanzgericht München - Germany.

Customs Union - Inward processing.

Free movement of goods ° Trade with third countries ° Inward processing arrangements ° Procedures ° Job processing contract between a principal and an operator ° Lodging of the application for authorization by the operator ° Permissibility ° Condition ° Application to be submitted on behalf of the principal (Council Regulations No 1999/85, Art. 3(2), and No 3677/86, Art. 3(7))

Article 3(2) of Regulation No 1999/85 on inward processing relief arrangements, read in conjunction with Article 3(7) of the implementing regulation, Regulation No 3677/86, must be interpreted as meaning that where, in the context of a job processing contract between a principal and an operator, both of whom are established within the Community, for the processing of non-Community goods, the operator submits the application for authorization to the competent customs authorities, that application must be submitted on behalf of the principal. The competent customs authority must be able to seek from the principal evidence that the economic conditions to which the issue of authorization is subject have been fulfilled and every guarantee which it considers necessary to that end.

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Case C-292/91, 4 May 1993 (Weis)

Gebrüder Weis GmbH v Hauptzollamt Würzburg. Reference for a preliminary ruling: Finanzgericht München - Germany.

Customs union - Community origin.

Own resources of the European Communities ° Post-clearance recovery of import and export duties ° Error of the administration "which could not reasonably have been detected by the person liable" ° Individual case (EEC/Yugoslavia Cooperation Agreement; Council Regulation No 1697/79, Art. 5(2))

Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties must be interpreted as meaning that, in so far as a customs authority wrongly considered that products originating in Portugal were to be regarded, for the purposes of the application of the Cooperation Agreement signed between the Community and the Socialist Federal Republic of Yugoslavia, as goods originating in the Community, where customs duties were not charged and where the importer observed all the provisions laid down by the rules in force as regards his customs declaration, the customs duties are not recoverable. Such an error would have been far from being detectable from a mere reading of the provisions in force by a normally experienced trader.

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Case C-12/92, 7 December 1993 (Huygen and Others)

Criminal proceedings against Edmond Huygen and others. Reference for a preliminary ruling: Hof van Cassatie - Belgium.

EEC- Austria Agreement on free trade - Concept of originating product - Methods of administrative cooperation

International agreements ° EEC-Austria Agreement ° Protocol 3 ° Origin of goods ° Proof by EUR.1 certificate ° Subsequent verification not leading to a positive result ° Consequences ° Consideration of other evidence or possibility for the importer to rely on the principle of force majeure ° Conditions (EEC-Austria Agreement, Protocol 3)

Protocol 3 concerning the definition of the concept of "originating products" and methods of administrative cooperation, annexed to the Agreement between the European Economic Community and the Republic of Austria which establishes, within the framework of the free trade envisaged by the Agreement, preferential arrangements for products originating in Austria or the Community, must be interpreted as meaning that where the exporting State, having been requested to check the EUR.1 certificate of origin, does not succeed in establishing the correct origin of the goods, it must conclude that they are of unknown origin and therefore that the EUR.1 certificate and the preferential tariff have been wrongly granted.

However, in a situation in which the customs authorities of the exporting State, having regard to the impossibility of furnishing the usual proof of the origin of the goods envisaged by the protocol, are not in a position duly to carry out such a check, the importing State is not definitively bound, for the purpose of demanding payment of unpaid customs duties, by the negative result of such verification, but may take account of other evidence as to the origin of the goods.

Moreover, an importer may, in certain circumstances, rely upon force majeure where it is impossible for the customs authorities of the exporting State, by reason of their own negligence, to establish the correct origin of goods by means of subsequent verification. It is for the national court to assess all the facts relied upon in that respect.

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Case C-33/92, 27 May 1993 (Gausepohl-Fleisch)

Gausepohl-Fleisch GmbH v Oberfinanzdirektion Hamburg. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Salted meat.

Common Customs Tariff ° Tariff headings ° Salted meat of bovine animals ° Classification under heading 0210 of the Combined Nomenclature ° Conditions ° Total salt content of 1.2% by weight, obtained by impregnating the meat with salt deeply and evenly in all its parts for the purposes of long-term preservation

Heading 0210 of the Common Customs Tariff (Combined Nomenclature) must be interpreted as meaning that meat of bovine animals may be classified under that heading as salted meat only if it has been deeply and evenly impregnated with salt in all its parts for the purposes of long-term preservation so that it has a minimum total salt content of 1.2% by weight. Meat of bovine animals to which for the purposes of preservation a quantity of salt has been added such that the total salt content measured (approximately 0.5%) amounts to more than three times the natural salt content (0.15%) may not be classified as salted under heading 0210.

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Case C-34/92, 15 July 1993 (GruSa Fleisch)

GruSa Fleisch GmbH & Co. KG v Hauptzollamt Hamburg-Jonas. Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.

Common organization of the market in beef and veal - Export refunds.

1. Agriculture ° Common organization of the markets ° Beef and veal ° Export refunds ° Products excluded ° "Thin flanks", including, in Germany, "Knochenduennung" ° Discrimination between producers or consumers ° None (Council Regulation No 805/68, Art. 18; Commission Regulations Nos 2773/82, Art. 1 and Annex, 1315/84, Art. 1 and Annex, and 2891/84)

2. Acts of the institutions ° Temporal application ° Retroactivity of a substantive rule ° Conditions

1. Article 1 of Regulation No 2773/82 and Article 1 of Regulation No 1315/84 fixing the export refunds on beef and veal, read in conjunction with subheading ex 02.01 A II a) 4 ex bb) of the Common Customs Tariff, ("Boned or boneless (cuts), excluding the thin flanks (' Fleisch- und Knochenduennung' ), the shin and the shank, each piece individually wrapped"), as set out in the annexes to those provisions, must be interpreted as meaning that in Germany, before Regulation No 2891/84 (which is not retroactive) entered into force, "Knochenduennung" was not one of the cuts of beef qualifying for export refunds. Although the effect of those provisions, as thus interpreted, was that the cuts which were ineligible for the export refunds were not exactly the same in Germany as in other Member States, the provisions are not incompatible with the principle of equal treatment, implemented in the beef and veal sector by Article 18 of Regulation No 805/68, because, in the absence of harmonization or standardization of the cutting and boning methods in the Member States, differences in the content of the terms used are unavoidable, and have only limited consequences.

2. In order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such effect must be given to them.

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Case C-59/92, 29 April 1993 (Ebbe Sönnichsen)

Hauptzollamt Hamburg-St. Annen v Ebbe Sönnichsen GmbH. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Import duties - Determination of the customs value of defective goods.

Common customs tariff ° Customs value ° Decrease in value due to deterioration of goods ° Taking into account without regard to the date of transfer of the risk to the buyer (Council Regulation No 1224/80 , Arts 1, 3 and 8; Commission Regulation No 1495/80, Art. 4, as amended by Regulation No 1580/81)

Article 4, second sentence, of Regulation No 1495/80, adopting certain provisions for the implementation of Articles 1, 3 and 8 of Regulation No 1224/80 relating to the valuation of goods for customs purposes, must be interpreted as meaning that no distinction should be drawn according to whether a deterioration of goods which decreases their customs value occurs before or after the transfer of the risk to the buyer.

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Case C-72/92, 27 October 1993 (Scharbatke)

Firma Herbert Scharbatke GmbH v Federal Republic of Germany. Reference for a preliminary ruling: Verwaltungsgericht Frankfurt am Main - Germany.

Parafiscal charges - Compulsory contributions to a fund for the marketing of agricultural, forestry and food products.

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Internal taxation ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Basis for classification ° Similar charge levied in the exporting Member State not taken into account ° Criterion not decisive (EEC Treaty, Arts 9, 12 and 95)

2. State aid ° Concept ° Compulsory contribution constituting a parafiscal charge applied to domestic and imported products but benefiting only the former ° Included ° Conditions (EEC Treaty, Arts 92 and 93)

1. A compulsory contribution constituting a parafiscal charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Articles 9 and 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, the charge constitutes discriminatory internal taxation within the meaning of Article 95 of the Treaty, the collection of which is prohibited as regards the proportion used to offset the burden borne by the domestic products. The mere fact that the charge is levied on imported products without deduction of a domestic charge, similar in kind but regulated independently by national legislation which was imposed on the same products in the exporting Member State, does not render the charge incompatible with Article 95 of the Treaty.

2. The collection of a compulsory contribution constituting a parafiscal charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, may constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter which the Commission alone is competent to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty and subject to review by the Court.

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Case C-108/92, 1 July 1993 (Astro-Med)

Astro-Med GmbH v Oberfinanzdirektion Berlin. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Tariff headings - Thermorecorder.

Common Customs Tariff ° Tariff headings ° Thermorecorder which converts measurements already carried out by other instruments ° Classification under headings 9030 and 9030 81 90 of the Combined Nomenclature ° Exclusion

The Combined Nomenclature should be interpreted as meaning that a thermorecorder which picks up electrical input signals corresponding to values measured by other pieces of apparatus, converts them by means of a analogue/digital converter, renders them visible and records them on thermal paper, does not fall within heading 9030, or, more specifically, subheading 9030 81 90. Only apparatus whose very purpose is to carry out measurements of or checks on electrical quantities can be regarded as apparatus for measuring or checking electrical quantities.

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Case C-119/92, 9 February 1994 (Commission v Italy)

Commission of the European Communities v Italian Republic. Failure to fulfil obligations - Customs forwarding agents.

1. Customs union - Customs declarations - Persons permitted to make customs declarations - National legislation incompatible with Community rules (Council Regulation No 3632/85, Arts 2, 3 and 6)

2. Free movement of goods - Customs duties - Charges having equivalent effect - Concept - Mandatory tariff for customs forwarding agents - None as it is possible not to use their services (EEC Treaty, Arts 9 and 12)

1. A Member State fails to fulfil its obligations under Articles 2, 3 and 6 of Regulation No 3632/85 defining the conditions under which a person may be permitted to make a customs declaration by

- maintaining in its legislation a provision stating that it is for the owner to make that declaration, recourse to the term "owner", which is alien to Article 2 of the regulation, allowing doubts to remain as to who is authorized to make the declaration or cause it to be made;

- restricting representation to customs forwarding agents without making clear provision, as required by Article 3(2) of the regulation, for the option of making a declaration in one' s own name and on behalf of another person;

- requiring, contrary to Article 6 of the regulation which lays down two distinct sets of rules, one for paid employees responsible for making customs declarations and the other for self-employed persons, the same qualifications for both categories of persons.

2. A mandatory charge, from the minimum level of which no derogation may be made and which is applied in a Member State by customs forwarding agents, does not constitute a charge having effect equivalent to a customs duty within the meaning of the Treaty if importers may in fact choose whether or not to use the services of such persons with the result that the said tariff is not binding on anyone wishing to make a customs declaration.

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Case C-123/92, order of 8 March 1993 (Lezzi Pietro)

Lezzi Pietro E C. Srl v Commission of the European Communities. No need to give a decision.

Actions for annulment ° Action against a decision ° Adoption in the course of the proceedings of a decision whose effect is tantamount to annulment of the contested decision ° Action rendered devoid of purpose ° No need to give a decision ° Statement of the reasons on which the amending decision was based considered unsatisfactory by the applicant ° Not relevant (EEC Treaty, Art. 173)

The purpose of an action under Article 173 of the EEC Treaty against a decision is to secure the annulment of that decision, the only result which the applicant may claim. Consequently, where, in the course of the proceedings, the defendant adopts a decision which amends the contested decision and is tantamount to annulment thereof, nothing remains on which the Court can give a decision, the application becomes devoid of purpose and there is no need to give a decision. It is immaterial that the new decision is based on grounds which are not satisfactory to the applicant, in that they do not coincide with those set out in the pleas in law on which the action was based.

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Case C-130/92, 13 July 1994 (OTO)

OTO SpA v Ministero delle Finanze. Reference for a preliminary ruling: Corte suprema di Cassazione - Italy.

National tax on audiovisual and photo-optical products - Internal taxation - Possible incompatibility with Community law.

1. Tax provisions ° Internal taxation ° Tax such as the Italian national consumption tax on audiovisual and photo-optical products ° Designation as an internal tax and not as a charge having an effect equivalent to a customs duty ° Tax levied on products imported directly from non-member countries ° Article 95 of the Treaty not applicable (EEC Treaty, Arts 9, 12 and 95)

2. Common commercial policy ° Levying by a Member State of an internal tax on products imported directly from non-member countries ° Permissible in the light of the Treaty rules, subject to the application of international agreements between the Community and non-member countries (EEC Treaty, Art. 113)

1. A tax such as the national consumption tax on audiovisual and photo-optical products introduced into Italian law by Article 13 of Decree-Law No 953 of 30 December 1982, subsequently Article 4 of Law No 53 of 28 February 1983, must be regarded as being an integral part of a general system of internal taxation within the meaning of Article 95 of the Treaty and its compatibility with Community law must be assessed on the basis of that article rather than Articles 9 and 12 of the Treaty if

° it forms part of a body of consumption taxes governed by common tax rules and charged on categories of products irrespective of their origin in accordance with an objective criterion, namely the fact that the products fall into a specific category of goods;

° whether those goods are produced at home or abroad does not seem to have a bearing on the rate, the basis of assessment or the manner in which the tax is levied;

° the revenue from those taxes is not earmarked for a specific purpose and constitutes tax revenue identical to other such revenue and, like it, helps to finance State expenditure generally in all sectors.

Such a tax does not therefore constitute a charge having an effect equivalent to a customs duty on imports within the meaning of Article 12 of the Treaty.

Since Article 95 of the Treaty applies only to products from the Member States and, where appropriate, to goods originating in non-member countries which are in free circulation in the Member States, a tax such as that here in question does not come within the scope of that provision in so far as it is applicable to goods imported directly from non-member countries.

2. In so far as it is applicable to goods imported directly from non-member countries, a tax such as the national consumption tax on audiovisual and photo-optical products introduced into Italian law by Article 13 of Decree-Law No 953 of 30 December 1982, subsequently Article 4 of Law No 53 of 28 February 1983, is not incompatible with the Treaty provisions relating to the implementation of the common commercial policy, particularly Article 113, subject, however, to the application of any treaty provisions which may be in force between the European Economic Community and the non-member countries in which the goods in question originate.

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Case C-248/92, 2 August 1993 (Jepsen Stahl)

Jepsen Stahl GmbH v Hauptzollamt Emmerich. Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

Common Customs Tariff - Subheadings 7211 21 00 and 7211 22 90 - Flat-rolled products rolled on four faces.

1. Common Customs Tariff ° Classification of goods ° Criteria ° Objective characteristics and properties of the product ° Exception ° Manufacturing process expressly referred to by the Combined Nomenclature

2. Common Customs Tariff ° Tariff headings ° Flat-rolled products rolled on four faces within the meaning of subheading 7211 21 00 of the Combined Nomenclature ° Classification determined solely by the manufacturing process.

1. Although, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the Combined Nomenclature and of the notes to the sections or chapters, there are cases in which the manufacturing process determines the heading under which goods are to be classified, since the said provisions make specific reference to that process.

2. Subheading 7211 21 00 of the Common Customs Tariff, in the version published in Annex I to Regulation No 3174/88 amending Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, is to be interpreted as meaning that the expression "rolled on four faces" refers solely to the manufacturing process employed, whether or not that manufacturing process produces sharp edges on all the rolled faces of the product.

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Case C-304/92, 22 December 1993 (Lloyd-Textil)

Lloyd-Textil Handelsgesellschaft mbH & Co. KG v Hauptzollamt Bremen-Freihafen. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Tariff preferences - Linen windcheaters from China and South Korea.

Common Customs Tariff ° System of generalized tariff preferences for developing countries ° Suspension of customs duties under Regulation No 3563/84 ° Condition ° Reference to the Nimexe code for the product in question ° Linen windcheaters ° Not open to the Court to rectify by interpretation an alleged omission on the part of the Community legislature ° Subsequent amendment of the legislation ° Irrelevant (EEC Treaty, Art. 28; Council Regulation No 3563/84)

The suspension of customs duties pursuant to Regulation No 3563/84 applying generalized tariff preferences for 1985 to textile products originating in developing countries is dependent upon the Nimexe code corresponding to the imported product being referred to in one of the two annexes to the regulation. Men' s linen windcheaters imported from China and South Korea do not qualify for suspension of duties, since they cannot fall within Annex I to the regulation, which is restricted to products manufactured from wool, cotton or man-made fibres, and their code is not referred to in Annex II.

This conclusion cannot be disputed on the ground that the failure to refer to their code is an omission due to an oversight on the part of the Council which the Court should rectify. Under Article 28 of the Treaty any autonomous alteration or suspension of duties in the Common Customs Tariff is to be decided by the Council. It therefore falls to the Council and not to the Court to identify, on the basis of criteria determined by it, the products qualifying for suspension of duties.

The fact that their code was referred to in subsequent years cannot be invoked either, since the amendment of a provision in a regulation does not mean that earlier versions of that provision must be construed in accordance with that amendment.

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Case C-368/92, 24 February 1994 (Chiffre)

Administration des Douanes v Solange Chiffre. Reference for a preliminary ruling: Cour d'appel de Toulouse - France.

System of generalized tariff preferences - Certificate of origin.

Common Customs Tariff - System of generalized tariff preferences granted to developing countries - Origin of goods - Certificate of origin stating the country of destination to be a country other than a Member State - Loss of entitlement to tariff exemption - Retrospective issue of a fresh certificate giving such entitlement - Permissibility - Conditions (Commission Regulations Nos 3749/83 and 693/88)

Entitlement to benefit from the system of tariff preferences granted by the Community to certain products from developing countries is lost if the certificate of origin Form A issued when products are exported pursuant to Regulations Nos 3749/83 and 693/88 on the definition of the concept of originating products for purposes of the application of the said tariff preferences states the country of destination to be a country other than a Member State of the European Community.

However, if the products in question satisfy the origin requirements laid down by the Community rules and the issue of the certificate referring to another country of destination can be explained by a situation of an exceptional nature, there is no reason why a fresh certificate may not be issued retrospectively, on the basis of Article 23 of the said regulations, by the competent government authority of the exporting country; the fresh certificate must then be taken into account for the purposes of grant of the tariff exemption, provided that all the other conditions of validity laid down in the Community rules are satisfied.

An exceptional situation, within the meaning of the said regulations, may be regarded as having arisen where the fact that the country of destination indicated is a non-member country is due to the products in question being the subject of a compensation operation with that country and ultimately resold on other markets, because the non-member country has no need for them.

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Case C-377/92, 5 October 1993 (Koch)

Felix Koch Offenbach Couleur und Karamel GmbH v Oberfinanzdirektion München. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Combined nomenclature - Coconut powder.

Common Customs Tariff ° Tariff headings ° Pasteurized mixture of ground and pressed coconut pulp and certain other substances ° Classification under subheading 2106 90 99 of the Combined Nomenclature.

A substance consisting of a pasteurized, homogenized and subsequently spray-dried mixture of ground and pressed coconut pulp to which maltose and sodium caseinate are added before it is dried in order to obtain the form of a powder, and containing a negligible quantity of fibre and at least 5% sucrose, must be classified under subheading 2106 90 99 of the Combined Nomenclature.

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Case C-426/92, 22 June 1994 (Deutsches Milch-Kontor)

Bundesrepublik Deutschland v Deutsches Milch-Kontor GmbH. Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany.

Aid for skimmeed-milk powder - Systematic frontier inspections - Measure having equivalent effect - Costs of inspections - Charge having equivalent effect.

1. Free movement of goods ° Quantitative restrictions on exports ° Measures having equivalent effect ° Systematic frontier inspections as to the composition and quality of skimmed-milk powder intended for denaturing or processing in another Member State and qualifying for aid ° Inspections having no basis in the relevant Community legislation or in the needs recognized by Article 36 of the Treaty ° Not permissible ° Spot checks ° Permissible (EEC Treaty, Arts 34 and 36; Commission Regulation No 1624/76, Art. 2(1) and (4), as amended by Regulation No 1726/79 and Regulation No 1725/79, Art. 10)

2. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Levying of a duty in respect of systematic frontier inspections contrary to Community rules carried out at the time of export of skimmed-milk powder to another Member State ° Not permissible (EEC Treaty, Arts 9 and 12; Commission Regulations No 1624/76 and No 1725/79)

1. In view of the fact that they are not provided for under the relevant Community rules, that is to say Article 2(1) and (4) of Regulation No 1624/76, as amended by Regulation No 1726/79, and Article 10 of Regulation No 1725/79, and are not justified by one of the needs recognized by Article 36 of the Treaty, inspections carried out systematically at the frontier by the Member State of export which are designed to check the composition and quality of skimmed-milk powder to be denatured or processed into animal feed within the territory of another Member State and qualifying for aid in that regard constitute measures having an effect equivalent to quantitative restrictions on exports in trade between Member States, prohibited under Article 34 of the Treaty.

Frontier inspections serving the same purpose are, however, permissible if they are carried out only by means of spot checks.

2. A charge levied by a Member State in respect of frontier inspections carried out when skimmed-milk powder intended for processing into compound feedingstuffs is being exported to another Member State, in the case where such inspections, by reason of their systematic nature, can find no basis in Regulations No 1624/76 and No 1725/79, constitutes a charge having an effect equivalent to a customs duty on exports which is prohibited under Articles 9 and 12 of the Treaty, even if it corresponds to the actual cost of each inspection.

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Case C-430/92, 26 October 1994 (Netherlands v Commission)

Kingdom of the Netherlands v Commission of the European Communities. Overseas countries and territories - Originating products - Derogations.

Association of the overseas countries and territories ° Importation into the Community of products originating in the overseas countries and territories free of customs duties ° Grant of derogations from the rules on origin ° Procedure ° Time-limit within which Community authorities are to take a decision on requests for derogation ° Starting-point ° Receipt of request that satisfies the formal requirements ° Implied acceptance when no decision is taken within the time-limit ° Decision of refusal taken by the Commission after the time-limit has expired ° Unlawful (Council Decision 91/482, Annex II, Art. 30)

In the context of allowing products originating in the associated overseas countries and territories to be imported into the Community free of customs duties and taxes having equivalent effect, the time-limit of 60 working days afforded to the Community authorities by Article 30(8) of Annex II to Council Decision 91/482 for taking a decision on a request for derogation from the rules of origin applicable to the said products, by the end of which, if no decision has been taken, the request is deemed to have been accepted, commences as soon as the President of the Committee on Origin has received a request that satisfies the formal requirements, that is to say, includes the information required pursuant to the second subparagraph of Article 30(1), read in conjunction with Article 30(2), so that the Committee on Origin and the Commission are in a position to decide on the merits whether the request should be acceded to or refused. It is not necessary that the information supplied should be regarded by the Commission as justifying the request in order for the time-limit to commence, because the question whether a request satisfies the formal requirements is distinct from consideration of its merits. It is of course open to the Commission to ask for further information, but if it avails itself of that course the time-limit is not thereby extended.

Accordingly, a decision by the Commission refusing, after the time-limit of 60 working days has expired, a request for derogation that satisfies the formal requirements when received is unlawful, on the ground that it was taken when the Commission was no longer empowered to do so ratione temporis, and must be annulled.

102

Case C-11/93, 19 May 1994 (Siemens Nixdorf)

Siemens Nixdorf Informationssysteme AG v Hauptzollamt Augsburg. Reference for a preliminary ruling: Finanzgericht München - Germany.

Common Customs Tariff - Colour monitor - Specific function.

Common Customs Tariff ° Tariff headings ° Colour monitors forming part of a data-processing system and having no specific function ° Classification under heading 8471 of the Combined Nomenclature

On a proper construction of Chapter 84 of the Combined Nomenclature of the Common Customs Tariff, in the versions contained in the annexes to Regulations Nos 3174/88, 2886/89 and 2472/90, all three of which amend Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, even before the entry into force of Regulation No 1288/91 concerning the classification of certain goods in the Combined Nomenclature ° considered in the light of Note 5(B) to that Chapter and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council ° colour monitors capable of accepting a signal only from the central processing unit of an automatic data-processing machine and not capable of reproducing a colour image from a composite video signal fall under heading 8471 of the Combined Nomenclature of the Common Customs Tariff.

103

Case C-29/93, 19 May 1994 (Ospig Textil-Gesellschaft)

KG in Firma OSPIG Textil-Gesellschaft W. Ahlers GmbH & Co. v Hauptzollamt Bremen-Freihafen. Reference for a preliminary ruling: Finanzgericht Bremen - Germany.

Valuation of goods for customs purposes - Inclusion of quota charges.

Common Customs Tariff ° Valuation for customs purposes ° Quota charges incurred in the acquisition of export quotas ° Excluded ° Existence of legal trade in quotas ° Immaterial ° Onus on importer to establish acquisition genuine (Council Regulation No 1224/80)

Quota charges incurred in the acquisition of export quotas do not form an integral part of the value for customs purposes of goods imported into the Community pursuant to Regulation No 1224/80 on the valuation of goods for customs purposes. It is not necessary in that regard to determine whether export licences may or may not be the subject of lawful trade in the country of export in question since there is no difference in economic terms between the two cases. Under Article 10(1) of the regulation, however, the onus is on the importer to supply all necessary information and documents to the customs authorities in order to enable them to determine the value for customs purposes and thereby establish whether the costs paid were in fact incurred in the acquisition of export quotas and do not represent commission for intermediaries, which forms an integral part of the value for customs purposes.

104

Case C-35/93, 16 June 1994 (Develop Dr. Eisbein)

Develop Dr. Eisbein GmbH & Co. v Hauptzollamt Stuttgart-West. Reference for a preliminary ruling: Finanzgericht Baden-Württemberg - Germany.

Common Customs Tariff - Concept of goods imported unassembled or disassembled - Photocopiers supplied in containers as kits of some 200 pieces.

Common Customs Tariff ° Tariff headings ° Classification of goods ° Criteria ° Objective characteristics of the product ° Manufacturing processes ° Condition for their being taken into account ° Rule 2(a) ° Goods imported unassembled or disassembled ° Interpretation ° Reference to the Explanatory Notes of the Customs Cooperation Council Nomenclature ° Limits

Whilst the customs tariff does indeed in certain cases contain references to manufacturing processes of goods, the preference is, in the interests of legal certainty and ease of verification, to have recourse to criteria for classification based on the objective characteristics of products, as defined in the wording of the headings and the notes to the sections or chapters which can be ascertained on the occasion of customs clearance. Consequently, the manufacturing processes of a product are decisive only when the tariff heading expressly so provides.

Consequently, the second sentence of Rule 2(a) of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff in Part I, Section I, A of the Annex to Regulation No 950/68 on the Common Customs Tariff, as amended by Regulation No 1/72, which, without defining the assembly operation, provides that for tariff classification purposes, an article imported unassembled or disassembled must be regarded as a complete article, must be interpreted as meaning that an article is to be considered to be imported unassembled or disassembled where the component parts, that is the parts which may be identified as components intended to make up the finished product, are all presented for customs clearance at the same time and no account is to be taken in that regard of the assembly technique or the complexity of the assembly method.

It is not possible to rely as against that interpretation on an Explanatory Note to the Nomenclature of the Customs Cooperation Council because those notes do not have legally binding force and must be disregarded if their content is not in accordance with the actual provisions of the Customs Cooperation Council and the meaning of those provisions would be altered if that note were taken into account.

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Case C-65/93, 30 March 1995 (Parliament v Council)

European Parliament v Council of the European Union. Article 43 of the EEC Treaty - Obligation to consult the Parliament.

Acts of the institutions ° Procedure for drawing up acts ° Due consultation of the Parliament ° Essential procedural requirement ° Scope ° Failure of Parliament to meet the obligation of genuine cooperation between institutions ° Effects

Due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential procedural requirement, disregard of which renders the measure concerned void. The effective participation of the Parliament in the legislative process of the Community, in accordance with the procedures laid down by the Treaty, represents an essential factor in the institutional balance intended by the Treaty. Such power reflects the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly.

Observance of the consultation requirement implies that the Parliament has expressed its opinion; the requirement cannot be satisfied by the Council's simply asking for it. In an emergency, it is for the Council to use all the possibilities available under the Treaty and the Parliament's Rules of Procedure in order to obtain the prior opinion of the Parliament.

However, the dialogue between institutions, on which the consultation procedure in particular is based, is subject to the same mutual duties of genuine cooperation as those which govern relations between Member States and the Community institutions.

The Parliament fails in its duty of genuine cooperation with the Council if, following a request from the Council which was justified having regard to the special relations between the Community and the developing countries and to the difficulties which would result from an abrupt interruption in the application of the system of generalized tariff preferences established in favour of certain products originating in those countries, it decides to deal with a draft regulation applying those preferences for the forthcoming year under its procedure for urgent cases, but then decides to adjourn the last plenary session during which the draft could have been debated in time without debating it. In those circumstances, the Parliament is not entitled to complain of the Council's failure to await its opinion before adopting the contested regulation.

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Case C-107/93, order of 12 July 1993 (AEFMA)

Asociación Española de Fabricantes de Margarina v Commission of the European Communities. Inadmissibility.

Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Regulation abolishing customs duties in trade between the Community of Ten and Spain

The possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, within the meaning of the second paragraph of Article 173 of the Treaty, so long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the act adopting the measure in question. In order for a measure to be of individual concern to the persons to whom it applies, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to whom it is addressed.

A regulation providing for the abolition of customs duties in trade between the Community of Ten and Spain, on products which are subject to a common organization of the market, applies to situations determined objectively and has legal effects for categories of persons envisaged in a general and abstract way. It concerns Spanish margarine producers only in their objective capacity as producers of a commodity subject to customs duties in trade between Spain and the remainder of the Community in the same way as every other trader in the same position and neither the damage which the producers expect to suffer from the abolition of the customs duties nor the purpose alleged to be behind the regulation, namely the abolition of tariff protection, allow them to consider themselves individually concerned by the measure in question.

Case C-107/93 R, order of 16 July 1993 (AEFMA)

Asociación Española de Fabricantes de Margarina v Commission of the European Communities. Application for interim measures - Inadmissibility of the main action.

Applications for interim measures ° Conditions of admissibility ° Main action dismissed as inadmissible (EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of Justice, Art. 83(1))

Where the main action to which an application for interim measures attaches is dismissed as inadmissible, the latter application is itself inadmissible.

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Case C-130/93, 7 July 1994 (Lamaire)

Lamaire NV v Nationale Dienst voor Afzet van Land- en Tuinbouwprodukten. Reference for a preliminary ruling: Hof van Beroep Brussel - Belgium.

Parafiscal charges - Compulsory contributions for the benefit of a national board for the sale of agricultural and horticultural products.

Free movement of goods ° Customs duties ° Charges having equivalent effect ° Contribution levied on exports of agricultural products ° Not permissible ° Criteria (EEC Treaty, Arts 9 and 12)

Articles 9 and 12 of the Treaty, which prohibit between Member States customs duties on imports and exports and all charges having equivalent effect, preclude national legislation from levying a compulsory contribution on exports of agricultural products to other Member States, if the contribution in question is not levied on account of inspections carried out in order to fulfil obligations under provisions of Community law, if it is applied only to exports of the products in question and does not relate to a general system of internal dues applied systematically and in accordance with the same criteria, irrespective of the origin, exporting country or destination of the goods subject to it and, lastly, if it does not represent consideration for a specific or individual benefit provided to the trader in an amount proportionate to that service.

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Case C-148/93, 24 March 1994 (3M Medica)

3M Medica GmbH v Oberfinanzdirektion Frankfurt am Main. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Sandals and shoes designed to be worn over a plaster cast - Tariff classification.

Common Customs Tariff - Tariff headings - Sandals and shoes designed to be worn over a plaster cast as a walking aid - Heading 9021 excluded - Classification under Chapter 64 of the Combined Nomenclature

Sandals and shoes with outer soles of plastics and uppers of textile or plastics designed to be worn on the foot over a plaster cast as a walking aid do not constitute "orthopaedic appliances" under heading 9021 of the Combined Nomenclature (1992), since items under that heading share the characteristic that they are specially adapted to the handicaps which they are intended to correct, and are specifically designed for a given person.

Nor may the items in question be deemed to be "splints and other fracture appliances" (subheading 9021 19 90), the characteristic feature of the latter being that they act directly on the organ affected, or as parts of or accessories to such appliances; nor may the plaster casts themselves be classified as such.

Since the items in question cannot come under heading 9021, they fall under Chapter 64 concerning footwear and analogous items, even if they are not worn on the foot itself but over a plaster cast.

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Case C-150/93, 12 April 1994 (Superior France and Danzas)

Directeur Général des Douanes et Droits Indirects v Société Superior France SA and Danzas SA. Reference for a preliminary ruling: Cour d'appel de Paris - France.

Common Customs Tariff - Chapter 42 - Outer surface of plastic material internally reinforced by textile material - Mere reinforcement.

Common Customs Tariff - Tariff headings - Travel goods in PVC internally reinforced with fabric - Classification within Chapter 42 of the Combined Nomenclature as articles with outer surface of plastic - Criteria

For the purposes of the application of the subheadings in Chapter 42 of the Combined Nomenclature, travel goods in cellular plastic (PVC), internally reinforced with fabric, are to be regarded as goods with outer surface of plastic and not of textile material, if the textile material merely acts as reinforcement. Textile products which are untreated, unbleached, bleached or uniformly dyed, where applied to one surface only of plates, sheets and strips of cellular plastic, merely act as reinforcement.

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Case C-151/93, 5 October 1994 (Voogd Vleesimport en –export)

Criminal proceedings against M. Voogd Vleesimport en -export BV. Reference for a preliminary ruling: Gerechtshof 's-Gravenhage - Netherlands.

Common Agricultural Policy - Export refunds - Refund nomenclature - Poultrymeat - Classification.

Agriculture ° Common organization of the markets ° Poultrymeat ° Export refunds ° Ad hoc classification in the nomenclature of various cuts (Commission Regulations Nos 267/87, Annex; 1151/87, Annex; 2800/87, Annex; 3846/87, Annex)

Regulations Nos 1151/87 and 2800/87, both of which fix export refunds in the poultrymeat sector, must be interpreted as meaning that a chicken leg with (part of) the back (without the rump) must be classified under subheading:

a) 02.02 B II e) 3 ("Legs and cuts of legs of other poultry") of the Annexes to those regulations if the size of the piece of back does not give the product its essential character;

b) 02.02 B II ex g) ("Other") if the opposite applies.

Regulation No 3846/87 establishing an agricultural product nomenclature for export refunds must be interpreted as meaning that a chicken leg with (part of) the back (without the rump) must be classified under subheading:

a) 0207 41 71 100 ("Halves or quarters, without rumps") of the Annex to that regulation if the piece of back corresponds to the rear part of the back, allowing for the permitted tolerances in cutting;

b) 0207 41 51 000 ("Legs and cuts thereof") if the above is not the case and the size of the piece of back does not alter the essential character of the product;

c) 0207 41 71 900 ("Other") if it cannot be classified under either of the two preceding subheadings.

Regulation No 267/87 fixing the export refunds on poultrymeat and Regulation No 1151/87 must be interpreted as meaning that the front part of a chicken' s back with wings must be classified under subheading:

a) 02.02 B II b) ("Whole wings, with or without tips") in the Annexes to those regulations if the size of the piece of back does not give the product its essential character;

b) 02.02 B II ex g) ("Other") if the opposite applies.

Regulation No 3846/87 must be interpreted as meaning that the front part of a chicken' s back with wings must be classified under subheading:

a) 0207 41 21 000 ("Whole wings, with or without tips") in the Annex to that regulation if the size of the piece of back does not give the product its essential character;

b) 0207 41 71 900 ("Other") if the opposite applies.

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Case C-334/93, 23 February 1995 (Bonapharma Arzneimittel)

Bonapharma Arzneimittel GmbH v Hauptzollamt Krefeld. Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

EEC-Austria free-trade agreement - Concept of originating product - Protocol Nº 3 - Methods of administrative cooperation - EUR.1 certificate.

International agreements ° EEC-Austria Agreement ° Protocol No 3 ° Origin of goods ° Proof by means other than the documents mentioned in Title II of the Protocol ° Conditions of permissibility (EEC-Austria agreement, Protocol No 3 in the version contained in Council Regulation No 1598/88)

In its version contained in Regulation No 1598/88, Protocol No 3 concerning the definition of "originating products" and methods of administrative cooperation, annexed to the agreement between the European Economic Community and the Republic of Austria establishing a preferential system for products originating in Austria or the Community, must be interpreted as meaning that it is permissible to dispense with production of the documents evidencing Austrian or Community origin mentioned in Title II of the said Protocol where the origin of the goods in issue has been established beyond doubt on the basis of objective evidence which could not have been manipulated or falsified by those involved, where both the importer and the exporter concerned took the steps necessary to obtain the documents referred to in the Protocol, and where it was for reasons beyond their control, such as anticompetitive conduct by other persons concerned contrary to both the objective and the terms of the Agreement, that it was impossible for them to produce those documents.

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Case C-340/93, 9 August 1994 (Thierschmidt)

Klaus Thierschmidt GmbH v Hauptzollamt Essen. Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

Value of goods for customs purposes - Inclusion of charges for "own" quotas issued free of charge - No separate declaration of quota charges excluded from customs value - Arrangements for imports of textile products from Taiwan.

1. Common Customs Tariff ° Customs value ° Quota charges paid by the buyer in respect of "own" quotas issued free of charge to the seller ° Included ° Quota charges in respect of third-party quotas or "own" quotas issued to the seller against payment ° Excluded ° Requirement that quota charges excluded from the customs value declaration be indicated separately ° No such requirement ° Requirement that the buyer should be able to provide proof of the type of quota charges (Council Regulation No 1224/80)

2. Common Customs Tariff ° Customs value ° Importation of textile products from Taiwan ° Third-party quota charges ° Treated in the same way as imports from third countries generally (Council Regulations Nos 1224/80, 4134/86 and 4136/86)

1. Regulation No 1224/80 on the valuation of goods for customs purposes, in particular Article 3(1) and (3) thereof, must be interpreted as meaning that quota charges paid by the buyer to the seller in respect of "own" quotas issued to the latter free of charge, as distinct from charges paid in respect of third-party quotas or "own" quotas issued to an exporter against payment, are included in the customs value of goods. Amounts invoiced in respect of "own" quotas issued free of charge to a seller represent fictitious quota charges which constitute in reality a disguised element of the price of the goods; their deduction from the invoiced price of the goods would entail an artificial reduction of the customs value.

Although quota charges not included in the customs value declaration need not be indicated separately, a buyer who wishes to exclude them must establish that they are third-party quotas or "own" quotas issued to the exporter against payment.

2. As regards the customs value of imports from Taiwan subject to Regulation No 4134/86 on the arrangements for imports of certain textile products originating in Taiwan, third-party quota charges must be treated in the same way as quota charges relating to imports subject to Regulation No 4136/86 on common rules for imports of certain textile products originating in third countries.

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Case C-345/93, 9 March 1995 (Nunes Tadeu)

Fazenda Pública and Ministério Público v Américo João Nunes Tadeu. Reference for a preliminary ruling: Supremo Tribunal Administrativo - Portugal.

Motor vehicle tax - Internal taxation - Discrimination.

1. Free movement of goods ° Customs duties ° Charges having an equivalent effect ° Definition ° Motor vehicle tax applicable to domestic and imported vehicles alike ° Excluded ° Internal taxation (EEC Treaty, Arts 9, 12 and 95)

2. Tax provisions ° Internal taxation ° Registration tax for second-hand vehicles ° Rules resulting in higher rate for imported vehicles than for vehicles sold on the domestic market ° Incompatible with Article 95 of the Treaty (EEC Treaty, Art. 95)

1. A motor vehicle tax applied without distinction to vehicles assembled or manufactured in the Member State where it is levied and to both new and used imported vehicles is not a customs duty or a charge having an effect equivalent thereto within the meaning of Articles 9 and 12 of the Treaty, since it forms part of a general system of internal charges imposed on categories of products in accordance with an objective criterion. Such taxes constitute, on the contrary, internal taxation within the meaning of Article 95 of the Treaty.

2. It is incompatible with Article 95 of the Treaty for a Member State to levy on second-hand cars from other Member States a tax which, calculated without taking the vehicle's actual depreciation into account, exceeds the residual tax incorporated in the value of similar second-hand motor vehicles already registered in the national territory, which, having been taxed at the time of such registration, are not taxed when sold second-hand.

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Case C-356/93, 2 June 1994 (Techmeda)

Techmeda Internationale Medizinisch-Technische Marketing- und Handels- GmbH & Co. KG v Oberfinanzdirektion Köln. Reference for a preliminary ruling: Bundesfinanzhof - Germany.

Common Customs Tariff - Tariff headings - Test for diagnostic determination of the cholesterol level of blood plasma.

Common Customs Tariff ° Tariff headings ° Test for diagnostic determination of the cholesterol level of blood plasma which includes as its essential characteristic a card consisting of reagent-impregnated paper covered with permeable material and glued to a plastic backing ° Classification under subheading 4823 9090 of the Combined Nomenclature

The Combined Nomenclature in force in 1991 under Regulation No 2472/90 must be interpreted as meaning that a product for determining the cholesterol level of blood plasma put up in a set for retail sale comes within Chapter 48 concerning paper, paperboard and other analogous products, where the essential characteristic of the product is a test card consisting of reagent-impregnated paper glued to a plastic backing and of permeable material superimposed on the glued paper, and where only the reagent-impregnated paper is capable of detecting the cholesterol level of blood deposited on the test card. Since, owing to its dimensions and in view of Note 7 to Chapter 48, the product set cannot be classified under heading No 4811, and there being no other appropriate subheading, it falls under residual subheading No 4823 9090.

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Joined cases C-363/93, C-407/93, C-408/93, C-409/93, C-410/93 and C-411/93, 9 August 1994 (Lancry and Others)

René Lancry SA v Direction Générale des Souanes and Société Dindar Confort, Christian Ah-Son, Paul Chevassus-Marche, Société Conforéunion and Société Dindar Autos v Conseil Régional de la Réunion and Direction Régionale des Douanes de la Réunion. References for a preliminary ruling: Cour d'appel de Paris and tribunal d'instance de Saint-Denis (Réunion) - France.

Free movement of goods - Fiscal rules applicable to French overseas departments - Implications of the Legros judgment - Validity of Decision 89/688/EEC.

1. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Definition ° Ad valorem charge levied by a Member State on goods by reason of the entry of those goods into a part of its territory ° Inclusion, also from the point of view of taxation of domestic products (EEC Treaty, Arts 9, 12 and 13)

2. Free movement of goods ° Customs duties ° Charges having equivalent effect ° Dock dues levied in the French overseas departments ° Decision of the Council temporarily authorizing those charges to be maintained after the entry into force of the Treaty ° Invalidity ° Temporal effects (EEC Treaty, Arts 9, 12, 13, 227(2) and 235; Council Decision 89/688/EEC)

1. The dock dues imposed in the French overseas departments under a system whereby a Member State levies a charge proportional to their customs value on all goods entering a region within that State constitute charges which have equivalent effect to a customs duty on imports and are prohibited by Articles 9, 12 and 13 of the Treaty, not only in so far as they are levied on goods entering that region from other Member States, but also in so far as they are levied on goods entering that region from another part of the same State.

In the first place, a charge levied at a regional frontier by reason of the fact that goods are brought into one region of a Member State undermines the unity of the Community customs territory and constitutes an obstacle to the free movement of goods at least as serious as a charge levied at a national frontier on products entering a Member State as a whole. The unity of the Community customs territory is undermined by the establishment of a regional customs frontier just the same, whether the products on which a charge is levied by reason of the fact that they cross a frontier are domestic products or come from other Member States. Secondly, the obstacle to the free movement of goods created by the imposition on domestic products of a charge levied by reason of their crossing that frontier is no less serious than that created by the collection of a charge of the same kind on products from another Member State because, since the very principle of a customs union covers all trade in goods, as provided for by Article 9 of the Treaty, it requires the free movement of goods generally, as opposed to inter-State trade alone, to be ensured within the union. It is only because there were assumed not to be any obstacles in the nature of customs duties within the Member States that Article 9 et seq. make express reference only to trade between Member States.

It would, moreover, be inconsistent to hold that a charge applied to all goods crossing a regional frontier, whatever their origin, should be classified as a charge having equivalent effect when it applies to goods from other Member States but not when it applies to goods from another part of the same State.

Finally, the necessarily long and complicated administrative verification procedures that would be required if a distinction were drawn according to the actual origin of the imported

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goods for the purpose of applying the charge would in themselves constitute unacceptable obstacles to the free movement of goods.

2. Decision 89/688/EEC concerning the dock dues in the French overseas departments is invalid in so far as it authorizes the French Republic to maintain until 31 December 1992 the dock dues arrangements that were in force when the decision was adopted.

Article 227(2) of the Treaty must be interpreted as excluding any possibility, once the Treaty has entered into force, of the Council' s derogating from the application in the French overseas departments of the provisions, in particular those relating to the free movement of goods, applicable to charges having equivalent effect such as dock dues, as mentioned in its first subparagraph; Article 235 of the Treaty cannot be interpreted as allowing the Council to suspend, even temporarily, the immediate application of the provisions referred to in Article 227(2), if its first subparagraph is not to be deprived of its effectiveness.

In so far as the dock dues levied between the date on which Decision 89/688 came into operation and 31 December 1992 were of exactly the same legal nature as those levied before that period, that is to say they were charges having equivalent effect to customs duties levied on the basis of national law, the temporal limitation imposed by the Court in the Legros judgment (Case C-163/90) applies also to actions for repayment of sums levied as dock dues after the aforesaid decision came into operation until 16 July 1992, the date on which that judgment was given. However, since the French Government could not, after that judgment, reasonably have continued to believe that the relevant national legislation was in conformity with Community law, and since the interests of the local authorities are adequately protected by the temporal limitation set by the Court in the Legros judgment, there is no need to limit the temporal effects of the judgment declaring Decision 89/688/EEC invalid.

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Case C-393/93, 9 August 1994 (Stanner)

Walter Stanner GmbH & Co. KG v Hauptzollamt Bochum. Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany.

Common Customs Tariff - Swine meat imported from Bulgaria.

Common Customs Tariff ° Tariff headings ° Meat of animals living in the wild but which, in the light of their zoological and genetic characteristics, are domestic swine ° Classification under subheading 02.01 A III(b) ° Excluded

The Common Customs Tariff must be interpreted as meaning that, with regard to imports from Bulgaria effected between 1983 and 1985, meat of animals which, in the light of their zoological and genetic characteristics, are domestic swine does not come under tariff subheading 02.01 A III(b), as defined in Regulation No 3000/82 amending Regulation No 950/68 on the Common Customs Tariff (meat of swine other than domestic swine), even if that meat has been certified by the competent authorities in Bulgaria as being of swine living in the wild in Bulgaria (Type B wild swine).

In view of the wording of the different subheadings under which swine meat may be classified, from which it follows that the classification criterion for distinguishing the meat of domestic swine from the meat of swine other than domestic swine lies in the notion of species, which identifies a category defined on the basis of objective zoological and genetic criteria and not on the basis of the specific method by which the animals are bred, subheading 02.01 A III(b) can cover only meat of species of swine which are distinguishable from domestic species of swine by reason of their zoological and genetic characteristics.

This interpretation cannot be gainsaid by an amendment made in 1992 to the explanatory notes on the Combined Nomenclature, according to which the meat of animals of the swine species certified by the competent authorities in Australia as meat of swine living in the wild in Australia is considered as meat of swine other than of domestic swine, since that note was adopted several years after the imports in question for the application of a different nomenclature and concerns the special case of Australia, and since no text of that kind has been adopted in respect of meat imported from Bulgaria.

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Case C-395/93, 9 August 1994 (Neckermann Versand)

Neckermann Versand AG v Hauptzollamt Frankfurt/Main-Ost. Reference for a preliminary ruling: Hessisches Finanzgericht - Germany.

Common Customs Tariff - Tariff heading 61.08 of the Combined Nomenclature - Classification of women's or girls' knitted garments - Pyjamas.

Common Customs Tariff ° Tariff headings ° Women' s or girls' knitted pyjamas within the meaning of heading 61.08 of the Combined Nomenclature ° Set of two garments which, according to their appearance, are intended mainly to be worn in bed ° Included ° Possibility of such use ° Insufficient factor to justify classification as pyjamas

Heading 61.08 ("women' s or girls' ... pyjamas, ..., knitted or crocheted") of the Combined Nomenclature of the Common Customs Tariff, as amended by Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and Regulation No 3174/88 amending Annex I to the latter regulation, must be interpreted as meaning that not only sets of two knitted garments which, according to their outward appearance, are intended to be worn exclusively in bed but also sets used mainly for that purpose must be considered to be pyjamas. However, the mere fact that it is possible to wear in bed a set of two knitted garments, according to the generally accepted practice in the Member State concerned at the time when the goods are there cleared through customs, is not sufficient to justify classification under that heading.

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Case C-401/93, 13 December 1994 (GoldStar Europe)

GoldStar Europe GmbH v Hauptzollamt Ludwigshafen. Reference for a preliminary ruling: Finanzgericht Rheinland-Pfalz - Germany.

Common Customs Tariff - Mecadecks - Classification - General Rule 2 (a) - Essential characteristics - Regulation (EEC) Nº 2275/88 - Invalidity.

Common Customs Tariff ° Tariff headings ° Mechanical components of video recorders ° Classification, on the basis of rule of interpretation 2(a), under CN code 8521 relating to video recorders ° Not permissible in view of the importance of the electronic components in a video recorder ° Invalidity of Commission Regulation No 2275/88 (Commission Regulation No 2275/88, item 9 of the annex)

General rule 2(a) for the interpretation of the Combined Nomenclature, under which any reference in a heading to an article is to be taken to include a reference to that article incomplete or unfinished, provided that the incomplete or unfinished article has the essential character of the complete or finished article, cannot authorize the classification under CN code 8521, relating to video recording or reproducing apparatus (video recorders), of components thereof consisting of magnetic tape drive mechanisms, in so far as those components, which represent only 30 to 40% of the value of the complete apparatus, are only the mechanical part of the video recorder, whereas the essential character of a video recorder is to be found in the combination of the mechanical and electronic components.

In view of the distinction drawn in the Combined Nomenclature between apparatus and parts of apparatus, and in view of the obvious importance of the electronic components, the Commission committed a manifest error of assessment in classifying, in item 9 of the annex to Regulation No 2275/88, the components in question under tariff subheading 8521 10 39. The regulation was therefore invalid in that respect.

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Case C-458/93, order of 23 March 1995 (Saddik)

Criminal proceedings against Mostafa Saddik. Reference for a preliminary ruling: Pretura circondariale di Roma - Italy.

Inadmissibility.

Preliminary rulings ° Admissibility of reference ° Submission of a question raised without sufficient explanation of the factual and legislative context ° General or hypothetical questions (EEC Treaty, Art. 177; Protocol on the Statute of the Court of Justice, Art. 20)

In view of the need to arrive at an interpretation of Community law which will be helpful to the national court, it is necessary for that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual premisses on which those questions are based.

That requirement, which may be considered less pressing in the case of questions relating to specific technical points and which may enable the Court to give a useful reply even when the national court has not given an exhaustive description of their context, is necessary from another point of view also, that of enabling the Member States and other interested parties to submit observations pursuant to Article 20 of the Statute of the Court.

The spirit of cooperation which prevails in the preliminary ruling procedure requires the national court to have regard to the task entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.

Consequently, questions referred for a preliminary ruling which are too vague about the legal and factual situations envisaged by the national court or which are purely hypothetical are manifestly inadmissible.