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URL: http://www.bailii.org/eu/cases/EUECJ/1973/R12673.html
Cite as: [1973] EUECJ R-126/73

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61973J0126
Judgment of the Court of 5 December 1973.
Friedhelm Busch v Hauptzollamt Hamburg-Ericus.
Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.
Turnover equalization tax.
Case 126-73.
European Court reports 1973 Page 01419
Greek special edition 1972-1973 Page 00807
Portuguese special edition 1973 Page 00539

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AGRICULTURE - COMMON ORGANIZATION OF MARKETS - POULTRY - IMPORT - THIRD COUNTRY - LEVY AND ADDITIONAL LEVY - TURNOVER EQUALIZATION TAX - DEDUCTION - NOT ALLOWABLE
( ARTICLES 4 AND 6 OF REGULATION NO 22 OF THE COUNCIL )

ARTICLES 4 AND 6 OF EEC REGULATION NO 22 OF THE COUNCIL OF 20 APRIL 1962 MUST BE INTERPRETED AS MEANING THAT THE LEVY AND THE ADDITIONAL AMOUNT PAYABLE ON IMPORT OF SLAUGHTERED POULTRY AND POULTRYMEAT FROM THIRD COUNTRIES MUST NOT BE REDUCED BY A CHARGE SUCH AS THE TURNOVER EQUALIZATION TAX ON IMPORT .

IN CASE 126/73
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HAMBURG FINANZGERICHT ( IVTH SENATE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
FRIEDHELM BUSCH,
AND
HAUPTZOLLAMT HAMBURG-ERICUS,

ON THE INTERPRETATION OF ARTICLES 4 AND 6 OF REGULATION NO 22 OF THE COUNCIL DATED 4 APRIL 1962 ( OJ 1962, P . 959 ), CONCERNING TAKING INTO ACCOUNT THE TURNOVER EQUALIZATION TAX FOR THE PURPOSE OF THE LEVY APPLICABLE IN THE POULTRY SECTOR AND SUBSIDIARILY ON THE VALIDITY OF EEC REGULATIONS NO 91/65 OF THE COMMISSION DATED 29 JUNE 1965 ( OJ 1965, P . 1927 ) AND 124/65 OF THE COMMISSION DATED 22 SEPTEMBER 1965 ( OJ 1965, P . 2587 ),

1 BY ORDER DATED 16 MARCH 1973, FILED AT THE REGISTRY ON 18 APRIL 1973, THE HAMBURG FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING, UNDER ARTICLE 177 OF THE EEC TREATY, QUESTIONS CONCERNING THE INTERPRETATION OF REGULATION NO 22 OF THE COUNCIL OF 20 APRIL 1962 ON THE GRADUAL ESTABLISHMENT OF A COMMON MARKET ORGANIZATION IN POULTRYMEAT ( OJ 1962, NO 30 ), AND ON THE VALIDITY OF REGULATIONS NOS 91/65 AND 124/65 OF THE COMMISSION OF 29 JUNE AND 22 SEPTEMBER 1965 ( OJ 1965, NOS 116 AND 157 ).
2 THE FIRST QUESTION ASKS WHETHER ARTICLES 4 AND 6 OF REGULATION NO 22/62 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT THE STANDARD LEVY AND THE ADDITIONAL LEVY CHARGED ON THE IMPORT OF SLAUGHTERED POULTRY OR ON POULTRYMEAT FROM THIRD COUNTRIES MUST BE REDUCED BY A FIXED AMOUNT EQUIVALENT TO THE TURNOVER EQUALIZATION TAX .
IF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, IT IS ASKED WHETHER REGULATIONS NOS 91/65 AND 124/65 OF THE COMMISSION ARE INVALID INSOFAR AS THEY FIX LEVIES OR ADDITIONAL LEVIES FOR POULTRY UNDER TARIFF HEADING 02.02 .
3 AS REGARDS THE FIRST QUESTION, ARTICLE 4 OF REGULATION NO 22/62 PROVIDES FOR THE APPLICATION OF A LEVY IN RESPECT OF THIRD COUNTRIES, WHICH IS SUBJECT TO THE SAME PRINCIPLES AS REGARDS SLAUGHTERED POULTRY AND OTHER POULTRYMEAT REFERRED TO IN ARTICLE 1 ( 1 ).
THIS LEVY DIFFERS BY ITS STRUCTURE AND OBJECTIVES FROM THE LEVY PROVIDED FOR BY OTHER COMMON ORGANIZATIONS OF AGRICULTURAL MARKETS, SUCH AS THAT ESTABLISHED BY REGULATION NO 19/62 AS REGARDS BASIC CEREALS .
WHILST ACCORDING TO THE NINTH RECITAL OF REGULATION NO 19/62 THE LEVY AS REGARDS THIRD COUNTRIES MUST " EQUAL " THE DIFFERENCE BETWEEN THE WORLD MARKET PRICES AND THOSE IN THE IMPORTING MEMBER STATE RESPECTIVELY ACCORDING TO THE NINTH RECITAL OF REGULATION NO 22/62 IT MUST TAKE INTO ACCOUNT IN PARTICULAR THE INCIDENCE ON THE COST OF FODDER OF THE DIFFERENCE BETWEEN THE PRICES OF FEED GRAIN IN THE MEMBER STATES AND ON THE WORLD MARKET .
TO THIS EFFECT ARTICLE 4 ( 1 ) AND ( 2 ) INDICATES ALL THE COMPONENTS OF THE CALCULATION ON THE BASIS OF WHICH THE AMOUNT OF THE LEVY IS FIXED .
ACCORDING TO THIS PROVISION, THIS LEVY HAS VARIOUS COMPONENTS, OF WHICH ONE IS FIXED IN ADVANCE FOR A PERIOD OF THREE MONTHS AND THE OTHERS ARE CALCULATED RESPECTIVELY BY REFERENCE TO THE LEVIES AS REGARDS MEMBER STATES AND ON THE BASIS OF A FIXED PERCENTAGE OF FIXED AVERAGES .
AS REGARDS MOREOVER THE ADDITIONAL AMOUNT REFERRED TO IN ARTICLE 6 OF THE SAME REGULATION, ITS LEVEL IS DIRECTLY ESTABLISHED BY PARAGRAPH 3 OF THIS PROVISION, PROVIDING THAT, IN THE CASE WHERE THE FREE-AT-FRONTIER PRICES ON IMPORT FALL BELOW THE SLUICE-GATE PRICE, THE LEVY SHALL BE INCREASED IN EACH MEMBER STATE BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THESE TWO PRICES .
4 IT FOLLOWS FROM THESE PROVISIONS THAT ALL THE COMPONENTS OF THE LEVY APPLICABLE TO THE PRODUCTS IN QUESTION, AS WELL AS ANY ADDITIONAL AMOUNT, ARE FIXED BY REGULATION NO 22/62 AND THAT THEY DO NOT LEAVE THE MEMBER STATES WITH ANY AUTONOMOUS POWER OF AFFECTING THE AMOUNT OF ONE OR OTHER CHARGE BY THE EXPEDIENT OF CRITERIA OF CALCULATION OTHER THAN THOSE PROVIDED FOR BY THE LEGISLATURE .
THIS FINDING IS CONFIRMED BY ARTICLE 4 ( 3 ) OF THE AFOREMENTIONED REGULATION, FROM WHICH IT APPEARS THAT THE FIXING OF THE AMOUNT OF THE LEVY DEPENDS ENTIRELY ON A COMMUNITY PROCEDURE REFERRED TO IN ARTICLE 17 OF THE SAME REGULATION .
THEREFORE IF A MEMBER STATE WERE TO DEDUCT THE TURNOVER EQUALIZATION TAX FROM THE LEVY OR FROM ANY ADDITIONAL AMOUNT IT WOULD CONTRAVENE BOTH THE LETTER AND THE SPIRIT OF THE FINANCIAL MECHANISM ESTABLISHED BY REGULATION NO 22/62 FOR IMPORTS OF SLAUGHTERED POULTRY AND POULTRYMEAT .
5 IT IS THUS PROPER TO CONCLUDE THAT ARTICLES 4 AND 6 OF REGULATION NO 22/62 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT THE LEVY AND THE ADDITIONAL AMOUNT PAYABLE ON IMPORT OF SLAUGHTERED POULTRY OR POULTRYMEAT FROM THIRD COUNTRIES MUST NOT BE REDUCED BY A CHARGE SUCH AS THE TURNOVER EQUALIZATION TAX ON IMPORT .
6 SINCE THE FIRST QUESTION HAS BEEN ANSWERED IN THE NEGATIVE THE SECOND QUESTION DOES NOT ARISE .

7 THE COSTS INCURRED BY THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HAMBURG FINANZGERICHT BY ORDER OF THAT COURT DATED 16 MARCH 1973, HEREBY RULES :
ARTICLES 4 AND 6 OF EEC REGULATION NO 22 OF THE COUNCIL OF 20 APRIL 1962 MUST BE INTERPRETED AS MEANING THAT THE LEVY AND THE ADDITIONAL AMOUNT PAYABLE ON IMPORT OF SLAUGHTERED POULTRY AND POULTRYMEAT FROM THIRD COUNTRIES MUST NOT BE REDUCED BY A CHARGE SUCH AS THE TURNOVER EQUALIZATION TAX ON IMPORT .