JUDGMENT OF THE COURT (SECOND CHAMBER) 11 NOVEMBER 1982 '

Gebroeders Vismans BV v Inspecteur der Invoerrechten en Accijnzen, Rotterdam (reference for a preliminary ruling from the Tariefcommissie, Amsterdam)

(Tariff classification of )

Case 47/82

Common Customs Tariff— Scheme of generalized preferences in favour of developing countries — "Beans of the genus ' mungo' " within the meaning of subheading 07.05 B I appearing in Annex A to Regulation No 2792/79 — Concept — Beans of the "green gram" and "black gram" varieties — Products covered by that concept (Council Regulation (EEC) No 2792179, Annex A)

The expression "Beans of the genus generalized preferences in favour of 'Phaseolus mungo' " in Annex A to developing countries must be interpreted Regulation (EEC) No 2792/79 so as to include beans of the "green establishing in respect of certain products gram" variety as well as those of the falling within Chapters 1 to 24 of the "black gram" variety. Common Customs Tariff a scheme of

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

GEBROEDERS VISMANS BV, Rotterdam,

and

INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN, ROTTERDAM,

1 — Language of the Cue: Dutch.

3983 JUDGMENT OF 11. 11. 1982 — CASE 47/82 on the interpretation of 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), with regard to tariff subheading 07.05 B I,

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 Mungbeans.) bestemd voor menselijke the procedure and the observations consumptie" (green mungbeans intended submitted under Article 20 of the Statute for human consumption). The beans, of the Court of Justice of the European which originated in Thailand, were Economic Community may be sum­ described on the invoice as "Thai Green marized as follows: 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 I — Facts and procedure Common Customs Tariff and import duty was therefore charged at the rate of 3% of the value of the goods. According to the order of 26 February 1980 containing the reference the appellant in the main action, Gebroeders Vismans, imported to Rotterdam goods Vismans lodged an objection against that which were described on the import classification with the Inspecteur der declaration as "Groene Bonen. (Green Invoerrechten en Accijnzen [Inspector of

3984 VISMANS v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

Customs and Excise], Rotterdam, main­ "Roxb.", for Roxburgh, is added, and taining that the beans were of the species for the black gram, in which case the on which, under the system of name is followed by the letter L., for generalized preferences in favour of Linnaeus. developing countries, no import duty was payable. The Inspector ruled that the Since the wording of tariff heading 07.05 objection was unfounded. which appears in Annex A to Council Regulation (EEC) No 2792/79 of 10 Vismans lodged an appeal against the December 1979 establishing in respect of Inspector's decision before the certain products falling within Chapters Tariefcommissie, which established that 1 to 24 of the Common Customs Tariff a the imponed beans were green polished scheme of generalized preferences in beans generally known as mungbeans (or favour of developing countries (Official green gram or green mungbeans), which Journal L 328, p. 83) refers merely to are used as the raw material for the Phaseolus mungo without adding any production of sprouts, a product to further description, the Tariefcommissie be eaten as a vegetable. In order to decided that there was a question of law discover the exact designation of the as to the interpretation of the wording of beans in question the Tariefcommissie tariff heading 07.05. It considered that a requested an expert opinion from the decision on the question was necessary director of the Rijksproefstation voor to enable it to give judgment in the Zaadonderzoek [Government Testing dispute before it and therefore in an Office for Seed Analysis]. The opinion order of 5 February 1982 it referred the indicates that mungbeans may be divided following question to the Court of into two varieties and that in technical Justice of the European Communities literature the following designations are under Article 177 of the EEC Treaty for generally used for each variety: a preliminary ruling:

I. Green gram (also called: green "Are the words 'Beans of the genus mungbeans, mung (beans), katjang Phaseolus mungo ... Free' used under idjoe, taogé beans, golden gram or subheading 07.05 B I in Annex A to ambériques), for which the following Council Regulation (EEC) No 2792/79 scientific names are used: of 10 December 1979 (Official Journal Phaseolus aureus Roxb., 1979, L 328, p. 83) meant to exempt from import duties: Phaseolus radiatus L., aureus (Roxb.) Hepper, (i) beans of the type known as 'green Vigna radiata (L.) Wilczek, gram'; Phaseolus mungo Roxb.; (ii) beans of the type known as 'black and gram'; or

II. Black gram (also called: urd (beans)), (iii) both types of beans?" which are referred to in the scientific literature as: The order containing the reference was Phaseolus mungo L. or lodged at the Court Registry on 8 February 1982. Vigna mungo (L.) Hepper; Written observations were submitted The name "Phaseolus mungo" is thus used putsuant to Article 20 of the Protocol on both for the green gram, in which case the Statute of the Court of Justice of the

3985 JUDGMENT OF 11. 11. 1982 — CASE 47/82

EEC by the Commission of the gives the wording of heading 07.05 of European Communities, represented for the Common Customs Tariff which the purpose by Thomas van Rijn, acting appears in Annex A as follows: as Agent. "07.05 Dried leguminous vegetables, Upon hearing the report of the Judge- shelled, whether or not skinned Rapporteur and the views of the or split: Advocate General the Court decided to B. Other: assign the case to the Second Chamber and to open the oral procedure without I. Peas (including chick peas) its being necessary to conduct a and beans (of the species preparatory inquiry. Phaseolus) : Beans of the genus However, it requested the Commission 'Phaseolus mungo'... Free of the European Communities to reply in writing before 15 September 1982 to the following questions: Other ... 3%" "1. What bearing has heading 07.01 F II The Commission goes on to explain that of the Common Customs Tariff on in order to resolve the question raised by the classification to be made in this the Tariefcommissie which requests an case? interpretation by the Court of the words "Phaseolus mungo" in order to discover 2. Why does Regulation No 2792/79 whether they refer to "green gram" or use· the brief designation "Phaseolus "black gram" or both, it relied on the mungo" whereas in editions of the very latest important scientific paper on Common Customs Tariff published the subject, the Etude taxonomique d'un after 1979 the expression 'beans (of groupe complexe d'espèces des genres the species Phaseolus)' is used?" Phaseolus et Vigna (Papilionaceae)sur la base de données morphologiques et Replies to the questions were received polliniques, traitées par l'analyse infor­ within the time allowed. matique [Taxonomie study of a complex group of species of the genera Phaseolus and Vigna (Papilionaceae) on the basis II — Written observations sub­ of morphological and pollinic data using mitted under Article 20 of information-processing methods] by R. the Protocol on the Statute Maréchal, J.M. Mascherpa and F. of the Court of Justice of Stainier, published in Boissiera, the EEC Mémoires des Conservatoire et Jardin Botaniques de la Ville de Genève In its written observations the [Journal of the Botanical Conservatory Commission of the European Communi­ and Gardens of the City of Geneva], No ties first states that Council Regulation 28 ([1978]). (EEC) No 2792/79 of 10 December 1979 provides for the year 1980 It notes that, principally on the basis of generalized tariff preferences for certain earlier scientific studies, the paper draws products coming from developing a clear taxonomie distinction between countries, and that Annex A to the regu­ the genera Phaseolus and Vigna and it lation contains a list of the products to appears that the group of Asiatic beans which the preferences are to apply, of the mungo type, long considered to whilst Annex B contains a list of the belong to the genus Phaseolus, ought relevant developing countries which rather to be classified as Vigna, and that includes Thailand. The Commission on the basis of that new nomenclature

3986 VISMANS v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

the study cited above designates mung or be a synonym for Pbaseolus radiatus L. to green gram beans as "Vigna radiata (L.) designate beans of the variety green R. Wilczek" and urd or black gram as gram. "Vigna mungo (L.) Hepper". It adds that the synonyms for Vigna mungo (L.) The Commission maintains that the Hepper are as follows: confusion which reigns in the use of Pbaseolus mungo L. scientific names for beans of the green Pbaseolus hemandezii Savi gram variety is reflected in the Explana­ tory Notes to the Common Customs Azukia mungo (L.) Masamune, Tariff where, with regard to subheading B I of heading 07.05, it is stated that: and that the synonyms for Vigna radiata (L.) R. Wilczek are as follows: 'This subheading covers only: Pbaseolus radiatus L. 1. ... Pbaseolus birtus Retz Pbaseolus abyssinicus Savi 2. Beans of the species 'Pbaseolus' which Pbaseolus aureus Roxb. ... include: Azukia radiata (1.) Ohwi Rudua aurea (Roxb.) Maekawa. Mungo beans (Pbaseolus mungo) (Pbaseolus aureus or radiatus) and urd beans. Some of these beans are According to the Commission, it may sometimes marketed as 'green soya therefore be deduced from the study that beans' or 'green beans'." Pbaseolus mungo is a name used only to designate the beans known as "urd" or It adds that it is principally the "black gram" and not those known as juxtaposition of the words "Mungo "mung" or "green gram" and tht as a beans" and "Pbaseolus mungo" which result the exemption from import duty in creates ambiguity because it is precisely respect of "Beans of the genus 'Pbaseolus beans of the green gram variety which mungo'" applies only to beans of the are commonly called mung, and it variety known as black gram. observes that nevertheless Pbaseolus mungo, distinguished from Pbaseolus aureus, denotes beans of the black gram Nevertheless, the Commission submits variety. that that is not the reply to be given to the question raised by the Tariefcommissie. It emphasizes that the exemption from import duty in question was introduced at the time principally in favour of , In support of its view, it refers to the a country which produces both green expert opinion prepared by the director gram and black gram varieties of bean, of the Rijksproefstation voor Zaad- and that in the application of the onderzoek which indicates that there are exemption it became apparent that the for beans of the variety green gram more term Pbaseolus mungo was liable to names in use in scientific circles than are confuse inasmuch as it was difficult to mentioned in the study quoted above, in distinguish between the two varities. particular the designation Pbaseolus That was why, according to the mungo Roxb. Dr Westphal's view Commission, in Council Regulation confirms that conclusion inasmuch as (EEC) No 3603/81 of 7 December 1981 Pbaseolus mungo Roxb. is taken there to applying generalized tariff preferences

3987 JUDGMENT OF 11. 11. 1982 — CASE 47/82

for 1982 in respect of certain agricultural "The terms employed in Annex A to products originating in developing Council Regulation (EEC) No 2792/79 countries, exemption was granted under in relation to tariff subheading 07.05 B I, heading 07.05 of the Common Customs that is to say, 'Beans of the genus Tariff for "beans of the genus 'Phaseolus mungo' ... Free' indicate that 'Phaseolus'", the draftsmen having the beans which are to be exempt from replaced the words "Phaseolus mungo" import duty are both those of the variety by the general description "genus known as 'green gram' and those of the Phaseolus". The Commission considers variety known as 'black gram'." that that amendment is not to be considered as an amendment affecting the scope of the exemption. III — Oral procedure The Commission submits that as a result the most logical course would be to interpret the words Phaseolus mungo of At the sitting on 30 September 1982 oral tariff heading 07.05 in Annex A to Regu­ argument was presented by the lation (EEC) No 2792/79 as designating Commission, represented by Mr Van beans of the green gram and black gram Rijn, a member of its Legal Department. varieties.

In conclusion the Commission suggests The Advocate General delivered his that the Court reply to the question opinion at the sitting on 21 October raised by the Tarief commissie as follows: 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 in­ terpretation of subheading 07.05 B I contained in Annex A to Council Regu­ lation (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%”

3988 VISMANS v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

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

3989 JUDGMENT OF 11. 11. 1982 — CASE 47/82

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

3990 VISMANS v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN 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:

The expression "Beans of the genus 'Phaseolus mungo' " 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 must be interpreted so as to include beans of the "green gram" variety as well as those of the "black gram" variety.

Due Pescatore Mackenzie Stuart

Delivered in open court in Luxembourg on 11 November 1982.

For the Registrar H. A. Rühi O. Due Principal Administrator President of the Second Chamber

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