Barsoum Chabo v Hauptzollamt Hamburg-Hafen.

• Jurisdiction: European Union
• Celex Number: 62009CC0213
• ECLI: ECLI:EU:C:2010:372
• Date: 24 June 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-213/09

OPINION OF ADVOCATE GENERAL

Trstenjak

delivered on 24 June 2010 (1)

Case C‑213/09

Barsoum Chabo

v

Hauptzollamt Hamburg-Hafen

(Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany))

(Regulation (EC) No 1719/2005 – Common Customs Tariff – Specific duty – Preserved mushrooms of the genus Agaricus – Proportionality – Criterion for review where a broad discretion exists – Agriculture-policy objectives – Trade-policy objectives – Necessity – WTO – Agreement on Agriculture – Article 4 – Tariff classification – Impermissibility of variable levies)

1. The question asked by the Finanzgericht Hamburg (‘the referring court’) in this reference for a preliminary ruling under Article 234 EC (2) is whether it is consistent with the principle of proportionality for a specific duty of EUR 222 per 100 kg drained net weight to be charged on preserved mushrooms of the genus Agaricus (preserved mushrooms), which were imported into the Community from the People’s Republic of China outside a fixed quota.

2. The Court has had occasion in the past to give rulings on the compatibility with the principle of proportionality of additional amounts on the importation of preserved mushrooms from non-member countries. (3) However, those additional amounts were independent agricultural levies of the Community. The present reference raises the question whether the criteria applied by the Court in assessing independent agricultural levies can also be applied to a specific customs duty which has replaced the additional amounts in question and the amount of which corresponds to a maximum rate of duty negotiated and agreed on within the framework of the World Trade Organisation (WTO).

I – Applicable law

A – World trade law

3. By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay round multilateral negotiations (1986-1994) (4) the Community acceded to the WTO Agreement and to a number of multi- and plurilateral agreements. The multilateral agreements include the General Agreement on Tariffs and Trade 1994 (5) (‘GATT 1994’) and the Agreement on Agriculture (6) (‘the Agreement on Agriculture’).

4. The GATT 1994 also comprises the provisions of the General Agreement on Tariffs and Trade 1947 (‘GATT 1947’), including in particular the most‑favoured-nation clause in Article I(1) of GATT 1947. According to that clause, any advantage, privilege, favour or immunity granted by any contracting party to any product originating in or destined for any other country is to be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

5. Article II of GATT 1947 regulates the schedules of concessions granted by WTO members. Article II(1)(a) provides as follows:

‘Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement.’

6. Article 4 of the Agreement on Agriculture regulates market access and provides as follows:

‘1. Market access concessions contained in Schedules relate to bindings and reductions of tariffs, and to other market access commitments as specified therein.

2. Members shall not maintain, resort to, or revert to any measures of the kind which have been required to be converted into ordinary customs duties, ⁽¹⁾ except as otherwise provided for in Article 5 and Annex 5.’

7. Footnote 1, concerning the term ‘measures’ in Article 4(2) of the Agreement on Agriculture, states as follows:

^‘These measures include quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through State-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties…’

8. Article 5 of the Agreement on Agriculture sets out special safeguard provisions in connection with the importation of agricultural products. Those specific safeguard provisions may be invoked only if the products in question are designated in the Schedule of Commitments with the symbol ‘SSG’. In the Community’s schedule of commitments the goods of customs code CN 2003 10 30 are not designated with that symbol.

9. In the framework of the Uruguay Round the Community undertook to levy a maximum ad valorem duty of 23% on products within CN code 2003 10 30 on the basis of a quota of 62 660 tonnes. The Community also undertook, outside that quota, to levy a maximum ad valorem duty of 18.4% and a specific duty of EUR 222 per 100 kg drained net weight. Those commitments are set out in the schedule of the Community’s commitments to the WTO. The People’s Republic of China has been a member of the WTO since 1 December 2001. The Community raised the quota for products within CN code 2003 10 30 from the People’ Republic of China to 23 750 tonnes with effect from 1 January 2007. (7)

B – Community law (8)

10. Under Article 33(1) EC the objectives of the common agricultural policy are:

‘(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;

(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;

(c) to stabilise markets;

(d) to assure the availability of supplies;

(e) to ensure that supplies reach consumers at reasonable prices.’

11. Under Article 1(1) of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (9) as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 amending Regulation No 2658/87 (10) (Regulation No 2658/87, as amended) the Commission established a Combined Nomenclature (CN). Pursuant to Article 1(3), first sentence, of Regulation No 2658/87, as amended, the CN is reproduced in Annex I thereto. Under the second sentence of Article 1(3), the rates of duty of the Common Customs Tariff (CCT), in particular, are also laid down in Annex I.

12. Article 12(1) of Regulation No 2658/87, as amended, provides as follows:

‘The Commission shall adopt each year a regulation reproducing the complete version of the Combined Nomenclature, together with the rates of duty in accordance with Article 1, as resulting from measures adopted by the Council or the Commission. The said Regulation shall be published not later than 31 October in the Official Journal of the European Communities and it shall apply from 1 January of the following year.’

13. Under Article 9(2), first indent, of Regulation No 2658/87, as amended, this is not to lead to amendment of the rates of customs duties.

14. Annex I to Regulation No 2658/87, as amended, was replaced by Commission Regulation (EC) No 1719/2005 of 27 October 2005 amending Annex I to Council Regulation No 2658/87 (11) with effect from 1 January 2006.

15. Part I of Annex I to Regulation No 1719/2005 contains preliminary provisions which include a list of the signs and abbreviations used. According to this, the abbreviation ‘kg/net eda’ means ‘kilogram drained net weight’.

16. Part II of Annex I contains the CCT applicable at the material time to the present case. Chapter 20 of the CCT relates to preparations of vegetables, fruit, nuts or other parts of plants and includes the following headings:

CN Code	Description	Conventional rate of duty (%)	Supplementary unit
1	2	3	4
2003	Mushrooms and truffles, prepared or preserved otherwise than by vinegar or acetic acid:
2003 10	- Mushrooms of the genus Agaricus
2003 10 20	-- provisionally preserved, completely cooked	18,4 + 191 €/100 kg/net eda (1)	kg/net eda
2003 10 30	-- other	18,4 + 222 €/100 kg/net eda (1)	kg/net eda

17. Footnote 1 reads as follows:

‘WTO tariff quota: see Annex 7’.

18. Commission Regulation (EC) No 1864/2004 of 26 October 2004 opening and providing for the administration of tariff quotas for preserved mushrooms imported from third countries (12) regulates the quotas within which favoured market access is granted. Recitals 1, 7 and 10 in the preamble to that Regulation, as amended by Commission Regulation (EC) No 1995/2005 of 7 December 2005 amending Regulation (EC) No 1864/2004 (13) (‘Regulation No 1864/2004, as amended’), read as follows:

‘(1) Following the Agreement on Agriculture … concluded during the Uruguay Round of multilateral trade negotiations, the Community undertook to open from 1 July 1995, under certain conditions, Community tariff quotas for preserved mushrooms of the genus Agaricus spp. falling within CN codes 0711 90 40, 2003 10 20 and 2003 10 30.

…

(7) Without prejudice to the outcome of the negotiations pursuant to Article XXIV.6 of the GATT (1994), and in order to preserve the traditional trade flows whilst ensuring that the Community market remains open to new supplying third countries, the quantity of preserved mushrooms of the genus Agaricus to be imported into the Community under the tariff quotas system should take account of preferences provided for in the Europe Agreements with Bulgaria and Romania. …

…

(10) There should continue to be an adequate supply of the products concerned on the Community market at stable prices whilst avoiding unnecessary market disruptions in the form of severe price fluctuations and negative effects on the Community producers. To this end, competition amongst importers should be encouraged to an increasing degree and administrative burdens on importers reduced.’

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