# C_2012025EN.01003501.xml

| 28.1.2012 | EN | Official Journal of the European Union | C 25/35 |
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28.1.2012

EN

Official Journal of the European Union

C 25/35

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Reference for a preliminary ruling from the Vestre Landsret (Denmark), lodged on 14 November 2011 — Agroferm A/S v Ministeriet for Fødevarer, Landbrug og Fiskeri

(Case C-568/11)

(2012/C 25/67)

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Agroferm A/S

Defendant: Ministeriet for Fødevarer, Landbrug og Fiskeri

Questions referred

| 1. | Does a product which is manufactured from sugar fermented with the aid of Corynebacterium glutamicum bacteria and which — as specified in more detail in Annex 1 to the order for reference — consists of approximately 65 % lysine sulphate, in addition to impurities from the manufacturing process (unmodified raw materials, reagents used in the manufacturing process, and by-products), come under heading 2309, heading 2922 or heading 3824 in the Combined Nomenclature, in the version resulting from Annex I to [Commission] Regulation (EC) No 1719/2005 (1) of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff?
  Is it relevant in this connection whether the impurities have been retained deliberately with a view to making the product particularly suitable, or to improve its suitability, for feed production, or whether the impurities have been retained because it is not necessary or expedient to remove them? What guidelines should be used to assess this matter in any given case?
  Is it relevant to the answer that it is possible to manufacture other products containing lysine, including ‘pure’ (≥ 98 %) lysine and lysine-HCl products that have a higher lysine content than the lysine sulphate product described above, and is it relevant in this connection that the amount of lysine sulphate and other impurities in the lysine sulphate product described above corresponds to that contained in other producers’ lysine sulphate products? What guidelines should be used to assess this matter in any given case? |
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1.

Does a product which is manufactured from sugar fermented with the aid of Corynebacterium glutamicum bacteria and which — as specified in more detail in Annex 1 to the order for reference — consists of approximately 65 % lysine sulphate, in addition to impurities from the manufacturing process (unmodified raw materials, reagents used in the manufacturing process, and by-products), come under heading 2309, heading 2922 or heading 3824 in the Combined Nomenclature, in the version resulting from Annex I to [Commission] Regulation (EC) No 1719/2005 (1) of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff?

Is it relevant in this connection whether the impurities have been retained deliberately with a view to making the product particularly suitable, or to improve its suitability, for feed production, or whether the impurities have been retained because it is not necessary or expedient to remove them? What guidelines should be used to assess this matter in any given case?

Is it relevant to the answer that it is possible to manufacture other products containing lysine, including ‘pure’ (≥ 98 %) lysine and lysine-HCl products that have a higher lysine content than the lysine sulphate product described above, and is it relevant in this connection that the amount of lysine sulphate and other impurities in the lysine sulphate product described above corresponds to that contained in other producers’ lysine sulphate products? What guidelines should be used to assess this matter in any given case?

| 2. | If it is assumed that, according to the principle of legality, the production was not covered by the refund scheme, would it be contrary to European Union law for the national authorities, in compliance with national principles of legal certainty and the principle of the protection of legitimate expectations, to refrain, in a case such as the present, from seeking recovery of refund amounts that the producer accepted in good faith? |
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2.

If it is assumed that, according to the principle of legality, the production was not covered by the refund scheme, would it be contrary to European Union law for the national authorities, in compliance with national principles of legal certainty and the principle of the protection of legitimate expectations, to refrain, in a case such as the present, from seeking recovery of refund amounts that the producer accepted in good faith?

| 3. | If it is assumed that, according to the principle of legality, the production was not covered by the refund scheme, would it be contrary to European Union law for the national authorities, in compliance with national principles of legal certainty and the principle of the protection of legitimate expectations, to honour, in a case such as the present, commitments (refund certificates) which were subject to time-limits and which the producer accepted in good faith? |
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3.

If it is assumed that, according to the principle of legality, the production was not covered by the refund scheme, would it be contrary to European Union law for the national authorities, in compliance with national principles of legal certainty and the principle of the protection of legitimate expectations, to honour, in a case such as the present, commitments (refund certificates) which were subject to time-limits and which the producer accepted in good faith?

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(1)  OJ 2005 L 286, p. 1.

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