Opinion of the Advocate General — ECLI:EU:C:1997:212
Date: 1997-04-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Provisions governing the Institutions;Milk products;Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Agriculture — Common organization of the markets — Milk and milk products — Export
refunds — Products attracting export refunds —Reference made to 'preparations with a basis
of coffee' within the meaning of subheading 210110 of the Combined Nomenclature — Ref­
erence also made to preparations with a basis of extracts, essences or concentrates of coffee
(Council Regulation No 804/68, Art. 17(1))
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SUMMARY — CASE C-334/95
2. Customs union — Application of the customs rules — Right of action — Suspension of imple­
mentation — Article 244 of the Community Customs Code — Scope — Decision requiring
reimbursement of an export refund — Excluded
(Council Regulation No 2913/92, Art. 244)
3. Acts of the institutions — Legality of a Community act challenged collaterally before a
national court in proceedings directed against a national implementation measure — Grant of
suspension of implementation of the national measure — Whether permissible — Conditions
— Prima facie case — Matter submitted to the Court by a reference for a preliminary ruling
on a question of validity — Serious and irreparable damage — Account to be taken of the
Community interest — Relevant judgments of the Community judicature to be respected
(EC Treaty, Arts 177, 185 and 189)
4. Preliminary rulings — Reference to the Court — Legality of a Community act challenged
collaterally before a national court in proceedings directed against a national implementation
measure — Suspension of implementation of the national measure and reference for a pre­
liminary ruling on the validity of the Community act — Leave granted by the national court
to appeal against its decision — Whether permissible
(EC Treaty, Art. 177, second and third paras)
1. Article 17(1) of Regulation No 804/68, on
the common organization of the market
in milk and milk products, as amended by
Regulation No 3904/87, which empowers
the Community to grant export refunds
on milk products included in the compo­
sition of other products, read in conjunc­
tion with its annex, which includes in the
list of products attracting refunds 'prepa­
rations with a basis of coffee' and refers
in this regard to subheading 2101 10 of
the Combined Nomenclature (1992), is to
be interpreted as allowing export refunds
to be granted in respect of milk products
contained in both preparations with a
basis of coffee and preparations with a
basis of extracts, essences or concentrates
of coffee.
2. Article 244 of Regulation No 2913/92,
establishing the Community Customs
Code, which lays down the conditions
under which suspension of implementa­
tion of decisions taken by customs
authorities in relation to the application
of customs rules may be granted, is not
applicable to demands for repayment of
export refunds. Export refunds constitute
the external aspect of the common agri­
cultural pricing policy within the Com­
munity and cannot therefore be regarded
as measures governed by customs rules.
3. A national court may suspend imple­
mentation of a national administrative
decision based on a Community act only
if certain conditions are satisfied; it must
entertain serious doubts as to the validity
of the Community act; if the validity of
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KRÜGER v HAUPTZOLLAMT HAMBURG-JONAS
the contested act is not already in issue
before the Court of Justice, it must itself
refer the question to the Court of Justice;
there must be urgency, in that the interim
relief must be necessary to avoid serious
and irreparable damage from being
caused to the party seeking the relief; and
the national court must take due account
of the Community interest. It is for the
national court to decide, in accordance
with its own rules of procedure, which is
the most appropriate way of obtaining all
relevant information on the Community
act in question. Finally, in its assessment
of all those conditions, the national court
must respect any decisions of the Court
of Justice or the Court of First Instance
ruling on the lawfulness of the Commu­
nity act or on an application for measures
seeking similar interim relief at Commu­
nity level.
4. The second paragraph of Article 177 of
the Treaty does not preclude a national
court which has ordered suspension of
implementation of a national administra­
tive decision based on a Community act
and which has, in accordance with the
obligation incumbent on it, referred to
the Court for a preliminary ruling a ques­
tion on the validity of the Community
act from granting leave to appeal against
its decision.
Although the obligation to make a refer­
ence to the Court is founded on the
necessity to ensure that Community law
is applied uniformly and to safeguard the
Court's exclusive jurisdiction to rule on
the validity of an act of Community law,
the need to comply with those overriding
considerations is not affected by the fact
that an appeal can be lodged against the
decision of the national court, since, if
that decision were to be set aside or
reversed on appeal, the preliminary ruling
procedure would have no further purpose
and Community law would again be fully
applicable. Secondly, the possibility of
lodging such an appeal does not prevent
implementation of the preliminary ruling
procedure by the court ruling at last
instance, which is obliged, under the third
paragraph of Article 177 of the Treaty, to
make a reference if it has doubts concern­
ing the interpretation or validity of Com­
munity law.
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