Ministero dell'Economia e delle Finanze and Others v Francesco Cimmino and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2015:67
• Date: 05 February 2015
• Docket Number: C-607/13
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 5 February 2015 ( 1 )

Case C‑607/13

Ministero dell’Economia e delle Finanze

Agenzia delle Dogane

European Commission

v

Cimmino and Others

(Request for a preliminary ruling from the Corte Suprema di Cassazione (Italy))

‛Regulation (EC) No 2362/98 — Requirements for newcomers which import bananas — Prohibition on transfer of rights arising under import licences from a newcomer to a traditional operator — Abuse of law — Regulation (EC, Euratom) No 2988/95 — Article 4(3)’

1. The Corte Suprema di Cassazione (Supreme Court of Cassation, Italy) (‘the referring court’) seeks guidance on the meaning of Regulation No 2362/98 ( 2 ) on the importation of bananas and Regulation No 2988/95 ( 3 ) regarding the protection of the European Union’s financial interests in the context of proceedings involving a set of newcomers ( 4 ) in the banana trade. Between May 1999 and December 2000, those traders imported third State bananas at a preferential duty rate and then immediately sold them again, through another newcomer, to a traditional operator ( 5 ) — having initially bought them from the same traditional operator, through the same newcomer, prior to importation. This series of transactions enabled that traditional operator to sell on the European market bananas which it had previously sold on the international market and which were imported at preferential duty rates. The referring court in essence asks what, pursuant to Regulation No 2362/98, constituted a ‘newcomer’ and whether such a series of transactions was contrary to the prohibition in that regulation on the transfer of rights arising under import licences from newcomers to traditional operators. If the transactions were prohibited, the referring court asks what the consequences were under Regulation No 2988/95.

EU law

Treaty on the Functioning of the European Union

2. In accordance with Article 325(1) TFEU, ‘[t]he Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union’. Pursuant to Article 325(2), ‘Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests’.

Common organisation of the market in bananas

Council Regulation No 404/93

3. Regulation No 404/93 established a common organisation of the market in bananas ( 6 ) and covered the products described in Article 1(2) on the basis of codes of the Combined Nomenclature (‘CN’). ( 7 )

4. The 10th recital in the preamble to Regulation No 404/93 stated that provision had to be made for the annual opening of a tariff quota and that imports of non-traditional bananas ( 8 ) from the African, Caribbean and Pacific States (‘ACP States’) were to be subject to zero duty in accordance with the Lomé Convention Agreements.

5. The 13th recital stated that, in administering the tariff quota, a distinction needed to be made ‘between, on the one hand, operators who have previously marketed third country bananas and non-traditional ACP bananas and, on the other, operators who have previously marketed bananas produced in the Community while leaving a quantity available for new operators who have recently embarked on commercial activity or are about to embark on commercial activity in this sector’.

6. Title IV concerned ‘Trade with third countries’. In accordance with Article 15(1), the duty rates in the Common Customs Tariff (‘CCT’) applied to the products listed in Article 1(2) unless Regulation No 404/93 provided otherwise. For the purposes of Title IV, ‘traditional imports from ACP States’ or ‘traditional ACP bananas’ were ‘imports into the Community of bananas originating in the States listed in the Annex hereto up to a limit of 857700 tonnes (net weight) per year’ (Article 16(1)); ‘non-traditional imports from ACP States’ or ‘non-traditional ACP bananas’ were ‘imports into the Community of bananas originating in ACP States but not covered by [the definition of traditional ACP bananas]’ (Article 16(2)); and ‘imports from non-ACP third States’ or ‘third State bananas’ were ‘bananas imported into the Community originating in third States other than the ACP States’ (Article 16(3)).

7. Pursuant to Article 17, import licences (valid throughout the Community) were needed for all importation of bananas into the Community. In principle, the issue of such licences was subject to the lodging of a security against a commitment to import on the terms of Regulation No 404/93 during the period of the licence’s validity.

8. Article 18(1) provided for the opening of an annual tariff quota of 2200000 tonnes (net weight) for imports of third State and non-traditional ACP bananas. Under the tariff quota, imports of third State bananas were to be subject to the preferential duty of EUR 75 per tonne and imports of non-traditional ACP bananas were to be free of duty. Article 18(2) provided for an additional tariff quota to be opened for the same types of bananas. In accordance with Article 18(3), no duty was to be payable on imports of traditional ACP bananas. Article 18(5) further stated that non-traditional ACP bananas imported outside these tariff quotas were to be subject to a duty per tonne equal to the normal duty indicated in Article 15 less EUR 200.

9. From May 1999 to December 2000 (the period during which the events giving rise to this reference took place), the relevant general duty rate for bananas was more than 10 times higher than the more preferential rate for imports under the tariff quota. ( 9 )

Commission Regulation No 2362/98

10. Regulation No 2362/98 implemented Regulation No 404/93. It laid down rules for applying the arrangements for importing bananas under the tariff quotas (under Article 18(1) and (2) of Regulation No 404/93) and traditional ACP bananas (under Article 16 of Regulation No 404/93) and for the arrangements outside those quotas. ( 10 )

11. Recital 5 stated that ‘traditional operators’ and ‘newcomers’ should be defined using single criteria and without any distinction based on the third State or ACP State from which they were importing.

12. According to recital 6, a share of the tariff quotas and traditional ACP bananas had to be reserved for newcomers, and that overall allocation had to be sufficient to allow operators to participate in the import trade and encourage healthy competition.

13. Recital 8 read as follows: ‘… experience from several years of applying the Community banana import arrangements indicates the need to tighten the eligibility criteria for new operators so as to avoid the registration of purely fictitious agents and the grant of allocations in response to artificial or speculative applications; … in particular, it is justifiable to demand a minimum of experience in importing comparable products — fresh products falling within Chapters 7, 8 and, under certain conditions, 9 of the [CN]; … also, to avoid applications for annual allocations which bear little relation to operators’ actual capacities and which will not lead to applications for import licences for the corresponding quantities, submission of an application for an annual allocation should be subject to the requirement that a security in lieu of the import licence security be lodged; … that security should be released without delay in stages as operators actually use up their annual allocations; … for the same purpose, the grant of an annual allocation in subsequent years should be made subject to a minimum rate of use of the previous annual allocation; … lastly, the conditions under which “newcomers” can gain access to the “traditional operators” group should be determined.’

14. Recital 14 stated that ‘a transfer restricted to a single transferee per licence or certificate or extract therefrom will allow trade relations to develop between the various registered operators’. However, ‘artificial trade, speculation or disturbance of normal trade should not be encouraged by permitting transfers from “newcomers” in favour of “traditional operators”’.

15. According to recital 18, verifications and checks by the competent national authorities could, if necessary, lead to corrections of operators’ reference quantities or annual allocations; neither reference quantities nor annual allocations were to be regarded as vested rights or pleaded by operators as legitimate expectations.

16. Article 2(1) divided up the tariff quotas (and traditional ACP quantities): 92% of quotas were to be made available to traditional operators and the remaining 8% to newcomers.

17. The first paragraph of Article 3 defined ‘traditional operators’ as ‘economic agents established in the European Community during the period for determining their reference quantities, and also at the time of their registration under Article 5 …, [ ( 11 )] who have actually imported a minimum quantity of third-country and/or ACP-country bananas on their own account for subsequent marketing in the Community during a set reference period’. ( 12 ) In accordance with Article 4(1), such operators were to receive a single reference quantity based on the quantities of bananas actually imported during the reference period.

18. Article 7 defined ‘newcomers’ as: ‘economic agents established in the European Community who, at the time of registration: (a) have been engaged independently and on their own account in the commercial activity of importing fresh fruit and vegetables falling within Chapters 7 and 8...