JUDGMENT OF 11.11.1982 — CASE 47/82 VISMANS v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

In Case 47/82 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tariefcommissie [Administrative court of last instance in revenue matters], Amsterdam, Netherlands, for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber) composed of: O. Due, President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges, Advocate General: P. VerLoren van Themaat Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted under Article 20 of the Statute of the Court of Justice of the European Economic Community may be summarized as follows:

I — Facts and procedure

According to the order of 26 February 1980 containing the reference the appellant in the main action, Gebroeders Vismans, imported to Rotterdam goods which were described on the import declaration as “Groene Bonen. (Green Mungbeans.) bestemd voor menselijke consumptie” (green mungbeans intended for human consumption). The beans, which originated in Thailand, were described on the invoice as “Thai Green Mungbeans, New Crop, Big Polished.” The collector of customs and excise duties in Rotterdam classified the goods under tariff subheading 07.05 B I of the Common Customs Tariff and import duty was therefore charged at the rate of 3% of the value of the goods.

Vismans lodged an objection against that classification with the Inspecteur der Invoerrechten en Accijnzen [Inspector of Customs and Excise], Rotterdam, maintaining that the beans were of the species on which, under the system of generalized preferences in favour of developing countries, no import duty was payable. The Inspector ruled that the objection was unfounded.

Vismans lodged an appeal against the Inspector's decision before the Tariefcommissie, which established that the imponed beans were green polished beans generally known as mungbeans (or green gram or green mungbeans), which are used as the raw material for the production of bean sprouts, a product to be eaten as a vegetable. In order to discover the exact designation of the beans in question the Tariefcommissie requested an expert opinion from the director of the Rijksproefstation voor Zaadonderzoek [Government Testing Office for Seed Analysis]. The opinion indicates that mungbeans may be divided into two varieties and that in technical literature the following designations are generally used for each variety:

I) Green gram (also called: green mungbeans, mung (beans), katjang idjoe, taogé beans, golden gram or ambériques), for which the following scientific names are used: Phaseolus aureus Roxb., Phaseolus radiatus L., Vigna aureus (Roxb.) Hepper, Vigna radiata (L.) Wilczek, Phaseolus mungo Roxb.; and

II) Black gram (also called: urd (beans)), which are referred to in the scientific literature as: Phaseolus mungo L. or Vigna mungo (L.) Hepper;

The name “Phaseolus mungo” is thus used both for the green gram, in which case “Roxb.”, for Roxburgh, is added, and for the black gram, in which case the name is followed by the letter L., for Linnaeus.

Since the wording of tariff heading 07.05 which appears in Annex A to Council Regulation (EEC) No 2792/79 of 10 December 1979 establishing in respect of certain products falling within Chapters 1 to 24 of the Common Customs Tariff a scheme of generalized preferences in favour of developing countries (Official Journal L 328, p. 83) refers merely to Phaseolus mungo without adding any further description, the Tariefcommissie decided that there was a question of law as to the interpretation of the wording of tariff heading 07.05. It considered that a decision on the question was necessary to enable it to give judgment in the dispute before it and therefore in an order of 5 February 1982 it referred the following question to the Court of Justice of the European Communities under Article 177 of the EEC Treaty for a preliminary ruling:

“Are the words ‘Beans of the genus Phaseolus mungo... Free’ used under subheading 07.05 B I in Annex A to Council Regulation (EEC) No 2792/79 of 10 December 1979 (Official Journal 1979, L 328, p. 83) meant to exempt from import duties: (i) beans of the type known as ‘green gram’; (ii) beans of the type known as ‘black gram’; or (iii) both types of beans?”

The order containing the reference was lodged at the Court Registry on 8 February 1982.

Written observations were submitted putsuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC by the Commission of the European Communities, represented for the purpose by Thomas van Rijn, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to assign the case to the Second Chamber and to open the oral procedure without its being necessary to conduct a preparatory inquiry.

However, it requested the Commission of the European Communities to reply in writing before 15 September 1982 to the following questions:

“1. What bearing has heading 07.01 F II of the Common Customs Tariff on the classification to be made in this case? 2. Why does Regulation No 2792/79 use the brief designation ”Phaseolus mungo“ whereas in editions of the Common Customs Tariff published after 1979 the expression ‘beans (of the species Phaseolus)’ is used?”

Replies to the questions were received within the time allowed.

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

In its written observations the Commission of the European Communities first states that Council Regulation (EEC) No 2792/79 of 10 December 1979 provides for the year 1980 generalized tariff preferences for certain products coming from developing countries, and that Annex A to the regulation contains a list of the products to which the preferences are to apply, whilst Annex B contains a list of the relevant developing countries which includes Thailand. The Commission gives the wording of heading 07.05 of the Common Customs Tariff which appears in Annex A as follows:

“07.05 Dried leguminous vegetables, shelled, whether or not skinned or split: B. Other: I. Peas (including chick peas) and beans (of the species Phaseolus) : Beans of the genus ‘Phaseolus mungo’... Free ... Other... 3%”

The Commission goes on to explain that in order to resolve the question raised by the Tariefcommissie which requests an interpretation by the Court of the words “Phaseolus mungo” in order to discover whether they refer to “green gram” or “black gram” or both, it relied on the very latest important scientific paper on the subject, the Etude taxonomique d'un groupe complexe d'espèces des genres Phaseolus et Vigna (Papilionaceae)sur la base de données morphologiques et polliniques, traitées par l'analyse informatique [Taxonomie study of a complex group of species of the genera Phaseolus and Vigna (Papilionaceae) on the basis of morphological and pollinic data using information-processing methods] by R. Maréchal, J.M. Mascherpa and F. Stainier, published in Boissiera, Mémoires des Conservatoire et Jardin Botaniques de la Ville de Genève [Journal of the Botanical Conservatory and Gardens of the City of Geneva], No 28 ([1978]).

It notes that, principally on the basis of earlier scientific studies, the paper draws a clear taxonomie distinction between the genera Phaseolus and Vigna and it appears that the group of Asiatic beans of the mungo type, long considered to belong to the genus Phaseolus, ought rather to be classified as Vigna, and that on the basis of that new nomenclature the study cited above designates mung or green gram beans as “Vigna radiata (L.) R. Wilczek” and urd or black gram as “Vigna mungo (L.) Hepper”. It adds that the synonyms for Vigna mungo (L.) Hepper are as follows:

Pbaseolus mungo L.

Pbaseolus hemandezii Savi

Azukia mungo (L.) Masamune,

and that the synonyms for Vigna radiata (L.) R. Wilczek are as follows:

Pbaseolus radiatus L.

Pbaseolus birtus Retz

Pbaseolus abyssinicus Savi

Pbaseolus aureus Roxb.

Azukia radiata (1.) Ohwi

Rudua aurea (Roxb.) Maekawa.

According to the Commission, it may therefore be deduced from the study that Pbaseolus mungo is a name used only to designate the beans known as “urd” or “black gram” and not those known as “mung” or “green gram” and tht as a result the exemption from import duty in respect of “Beans of the genus ‘Pbaseolus mungo’” applies only to beans of the variety known as black gram.

Nevertheless, the Commission submits that that is not the reply to be given to the question raised by the Tariefcommissie.

In support of its view, it refers to the expert opinion prepared by the director of the Rijksproefstation voor Zaadonderzoek which indicates that there are for beans of the variety green gram more names in use in scientific circles than are mentioned in the study quoted above, in particular the designation Pbaseolus mungo Roxb. Dr Westphal's view confirms that conclusion inasmuch as Pbaseolus mungo Roxb. is taken there to be a synonym for Pbaseolus radiatus L. to designate beans of the variety green gram.

The Commission maintains that the confusion which reigns in the use of scientific names for beans of the green gram variety is reflected in the Explanatory Notes to the Common Customs Tariff where, with regard to subheading B I of heading 07.05, it is stated that:

“This subheading covers only: 1. ... 2. Beans of the species ‘Pbaseolus’ which... include: ... Mungo beans (Pbaseolus mungo) (Pbaseolus aureus or radiatus) and urd beans. Some of these beans are sometimes marketed as ‘green soya beans’ or ‘green beans’.”

It adds that it is principally the juxtaposition of the words “Mungo beans” and “Pbaseolus mungo” which creates ambiguity because it is precisely beans of the green gram variety which are commonly called mung, and it observes that nevertheless Pbaseolus mungo, distinguished from Pbaseolus aureus, denotes beans of the black gram variety.

It emphasizes that the exemption from import duty in question was introduced at the time principally in favour of India, a country which produces both green gram and black gram varieties of bean, and that in the application of the exemption it became apparent that the term Pbaseolus mungo was liable to confuse inasmuch as it was difficult to distinguish between the two varities. That was why, according to the Commission, in Council Regulation (EEC) No 3603/81 of 7 December 1981 applying generalized tariff preferences for 1982 in respect of certain agricultural products originating in developing countries, exemption was granted under heading 07.05 of the Common Customs Tariff for “beans of the genus ‘Phaseolus’”, the draftsmen having replaced the words “Phaseolus mungo” by the general description “genus Phaseolus”. The Commission considers that that amendment is not to be considered as an amendment affecting the scope of the exemption.

The Commission submits that as a result the most logical course would be to interpret the words Phaseolus mungo of tariff heading 07.05 in Annex A to Regulation (EEC) No 2792/79 as designating beans of the green gram and black gram varieties.

In conclusion the Commission suggests that the Court reply to the question raised by the Tarief commissie as follows:

“The terms employed in Annex A to Council Regulation (EEC) No 2792/79 in relation to tariff subheading 07.05 B I, that is to say, ‘Beans of the genus ‘Phaseolus mungo’... Free’ indicate that the beans which are to be exempt from import duty are both those of the variety known as ‘green gram’ and those of the variety known as ‘black gram’.”

III — Oral procedure

At the sitting on 30 September 1982 oral argument was presented by the Commission, represented by Mr Van Rijn, a member of its Legal Department.

The Advocate General delivered his opinion at the sitting on 21 October 1982.

Decision

1. By an order of 5 February 1982, lodged at the Court on 8 February 1982, the Tariefcommissie, Amsterdam, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty, a question regarding the interpretation of subheading 07.05 B I contained in Annex A to Council Regulation (EEC) No 2792/79 of 10 December 1979 establishing in respect of certain products falling within Chapters 1 to 24 of the Common Customs Tariff a scheme of generalized preferences in favour of developing countries (Official Journal 1979, L 328, p. 83).

2. The subheading is worded as follows:

“Peas (including chick peas) and beans (of the species Phaseolus):

Beans of the genus ‘Phaseolus mungo’ Free

Chick peas of the genus ‘Cicer arietinum’ Free

Other 3%”

3. On 26 February 1980, the appellant in the main action, the undertaking Gebroeders Vismans, imported into the Netherlands certain produce from Thailand described on the import declaration as “Green mungbeans intended for human consumption”. On the invoice, the produce in question was described as “Thai green mungbeans, new crop, big polished”.

4. The collector of customs and excise duties in Rotterdam, the point of entry, classified the goods under tariff subheading 07.05 B I “Other”, which entailed import duty 3%.

5. According to the order, the dispute brought before the Tariefcommissie to which the undertaking appealed against the dismissal of its objection by the Inspector of Customs and Excise, is concerned with the designation of the species “Phaseolus mungo”. In the importing undertaking's view, the species includes the beans in question, which are usually described as “mung beans” or “green gram”, whereas the customs authorities consider that it is only the variety known as “black gram” which belongs to that species.

6. Such were the circumstances in which the Tariefcommissie referred the following question to the Court for a preliminary ruling:

“Are the words ‘Beans of the genus Phaseolus mungo... Free’ used under subheading 07.05 B I in Annex A to Council Regulation (EEC) No 2792/79 of 10 December 1979 (Official Journal 1979, L 328, p. 83) meant to exempt from import duties:

i) beans of the type known as ‘green gram’;

ii) beans of the type known as ‘black gram’; or

iii) both types of beans?”

7. The botanical studies attached to the file disclose that the scientific designations of the two varieties differ from one study to the next. That being so, the contested provision should be interpreted in terms of its purpose. In this connection it should be recalled that it belongs within a scheme of generalized preferences in favour of developing countries. Thus the question to be examined is whether exempting both varieties actually serves a commercial need of those countries.

8. According to information supplied by the Commission during the Court proceedings, the exemption granted to beans of the variety “Phaseolus mungo” had been specifically requested by India, which produces and exports both the above-mentioned varieties. Still according to the Commission, there is nothing to suggest, either that the Indian authorities, in seeking the exemption, or the Community institutions, in granting it, intended to exclude either variety.

9. That evidence is borne out by the fact that Council Regulation (EEC) No 3603/81 of 7 December 1981 applying generalized tariff preferences for 1982 in respect of certain agricultural products originating in developing countries (Official Journal 1981, L 365, p. 170) replaces the expression under dispute by the expression “Beans of the genus ‘Phaseolus’”, which undoubtedly refers to both varieties.

10. It follows from the foregoing that the expression “Beans of the genus ‘Phaseolus mungo’ ”, in Annex A to Council Regulation (EEC) No 2792/79 must be interpreted so as to include beans of the “green gram” variety as well as those of the “black gram” variety.

Costs

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Second Chamber), in answer to the question submitted to it by the Tariefcommissie, Amsterdam, by order of 5 February 1982, hereby rules: