Case C-140/08
Rakvere Lihakombinaat AS
v
Põllumajandusministeerium
and
Maksu- ja Tolliameti Ida maksu- ja tollikeskus
(Reference for a preliminary ruling from the Tallinna Halduskohus)
(Common Customs Tariff – Combined Nomenclature – Tariff classification – Frozen cuts or offal of cocks and hens – Accession of Estonia – Transitional measures – Agricultural products – Surplus stocks – Regulation (EC) No1972/2003)
Summary of the Judgment
1.Accession of new Member States to the Communities – Accession Act 2003 – Community legislation not published in the Official Journal of the European Union in the language of a new Member State which is an official language of the European Union – Non-enforceability against individuals – Limits
(Accession Act 2003, Art. 58)
2.Common Customs Tariff – Tariff headings – Cuts of poultry meat, deboned and frozen
(European Parliament and Council Directive No 853/2004, Annex I, point 1.14; Council Regulation No 2658/87, Annex I; Commission Regulation No 1789/2003)
3.Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures in respect of trade in agricultural products
(Commission Regulations No 1972/2003, Art. 4(2), and No 230/2004)
4.Accession of new Member States to the Communities – Estonia – Agriculture – Common organisation of the markets – Transitional measures in respect of trade in agricultural products
(Commission Regulations No 1972/2003 and No 230/2004)
1.Article58of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded precludes the obligations contained in Community legislation that has not been published in the Official Journal of the European Union in the language of a new Member State, although that language is an official language of the Union, from being imposed on individuals in that Member State, even though those persons could have learned of that legislation by other means.
However, the fact that a Community regulation is not enforceable against individuals in a Member State in the language of which it has not been published has no bearing on the fact that, as part of the acquis communautaire, its provisions are binding on the Member State concerned as from its accession. Thus, the adoption by a Member State before the date of accession of legislation which implements the obligations under a Community regulation creates obligations for individuals, notwithstanding the fact that the regulation cannot be enforced against them before they have had an opportunity to learn of it by proper publication in the Official Journal of the European Union, in the language of that Member State. In those circumstances, the provisions of the regulation that were taken up in the national legislation can be enforced against individuals. Conversely, to the extent that other provisions have not been implemented by national legislation, the Member State cannot rely on them against individuals before the official publication of the regulation in the language of that Member State. It is for the national court to verify whether and to what extent the national law took over the Community provisions at issue.
(see paras 31-35)
2.Regulation No2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No1789/2003, must be interpreted as meaning that products constituted of frozen mechanically separated meat obtained after the mechanical deboning of fowls and destined for human consumption must be classified in subheading 0207 14 10 of the Combined Nomenclature. Such products cannot be classified in subheading 02071499, since they do not have the objective characteristics and properties of offal to which that subheading refers, but rather are, before freezing, in the form of stock composed of leftovers of meat and tissue obtained after a mechanical pulverisation of flesh-covered bones in accordance with the definition of frozen cuts of poultry meat, deboned using mechanical means appearing in point 1.14 of AnnexIto Regulation No853/2004 laying down specific hygiene rules for food of animal origin.
(see paras 49-50, 53, operative part 1)
3.Article4(2) of Regulation No1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as amended by Regulation No230/2004, does not preclude national legislation under which an operator’s surplus stock is determined by deducting from the stock actually held on 1May 2004 the transitional stock defined as the average stock on 1May of the previous four years of activity multiplied by a coefficient of 1.2 corresponding to the growth of agricultural production observed in the Member State in question during that four‑year period. That coefficient makes it possible to update the average stock on 1May of the years 2000 to 2003 in the light of that rate of growth and to determine a transitional stock – and hence a surplus stock – which reflects proportionately the development of growth observed across the whole agricultural sector of the Member State concerned from 1May 2000 to 1May 2004. It thus helps to establish a basis of comparison between the stock on 1May 2004 and the average stock on 1May of the previous four years.
The application of such a coefficient, chosen pursuant to the discretion which the new Member States enjoy to define the relevant period or the method of calculating the averages of stocks available, does not undermine the objectives pursued by Regulation No 1972/2003 and does not infringe the principles of proportionality and equal treatment.
(see paras 59-62, 64, operative part 2)
4.Regulation No1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, as amended by Regulation No230/2004, does not preclude the levying of a charge on an operator’s surplus stock, even if he is able to prove that he obtained no advantage when marketing that stock after 1May 2004. That charge, the objective of which was to preserve the common organisation of markets by avoiding, by means of a system of deterrent charges on surplus stocks in the new Member States, certain agricultural products being moved artificially to their territory with a view to enlargement, is applicable to all surplus stocks within the meaning of the regulation, regardless of whether the holders of the stocks have actually derived an advantage from marketing them.
(see paras 71-74, operative part 3)