61971CJ0013_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 13/71
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF, SEVENTH CHAMBER, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
GUENTHER HENCK, HAMBURG-ALTONA
AND
HAUPTZOLLAMT EMMERICH
Subject of the case
ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962,
Grounds
1 BY ORDER OF 12 JANUARY 1971 RECEIVED AT THE COURT REGISTRY ON 19 MARCH 1971, THE BUNDESFINANZHOF OF THE FEDERAL REPUBLIC OF GERMANY REFERRED SEVERAL QUESTIONS ON THE INTERPRETATION OF ARTICLE 1 ( D ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ( OJ 1962, NO 30 ) UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY .
ON THE JURISDICTION OF THE COURT
2 WHILST REQUESTING THE COURT TO DEFINE THE SCOPE OF ARTICLE 1 ( D ) OF REGULATION NO 19/62 WITH REGARD TO A CERTAIN PRODUCT, THE BUNDESFINANZHOF GIVES DETAILS AS TO THE COMPOSITION OF THAT PRODUCT . THE GUENTHER HENCK UNDERTAKING MAINTAINS THAT BECAUSE OF THESE DETAILS, THE QUESTION WHICH HAS BEEN REFERRED DOES NOT IN FACT REQUEST THE COURT TO DEFINE THE MEANING AND SCOPE OF THE ABOVEMENTIONED PROVISION BUT TO APPLY THAT SAME PROVISION TO THE CASE IN QUESTION .
3 ALTHOUGH ARTICLE 177 OF THE TREATY DOES NOT ALLOW THE COURT TO GIVE A RULING ON A SPECIFIC CASE WHEN IT IS CALLED UPON TO INTERPRET COMMUNITY LAW, THE NEED, HOWEVER, TO REACH A HELPFUL INTERPRETATION OF THE PROVISIONS IN QUESTION JUSTIFIES THE STATEMENT BY THE NATIONAL COURT OF THE LEGAL CONTEXT IN WHICH THE INTERPRETATION WHICH IS SOUGHT MUST BE PLACED . THE DETAILS CONTAINED IN THE QUESTIONS WHICH HAVE BEEN REFERRED ENABLE THE CATEGORY OF PRODUCTS WHICH MAY COME WITHIN THE PROVISION IN QUESTION TO BE DETERMINED IN A GENERAL AND ABSTRACT WAY .
4 IN ADDITION, SINCE REGULATION NO 19/62 WAS REPEALED AND PLACED BY OTHER PROVISIONS OF COMMUNITY LAW FROM 1 JULY 1967, THE GUENTHER HENCK UNDERTAKING MAINTAINS THAT THE COURT CANNOT REPLY TO THE QUESTION WHICH HAS BEEN REFERRED BY BASING ITS REPLY ON LEGAL RULES WHICH WERE NOT APPLICABLE WHEN THE PRODUCT IN QUESTION WAS IMPORTED .
5 THE PRINCIPLE OF LEGAL CERTAINTY MAKES IT NECESSARY TO REFER TO THE STATE OF THE LAW IN FORCE WHEN THE PROVISION IN QUESTION WAS APPLIED . THE WORDING OF THE QUESTIONS WHICH HAVE BEEN REFERRED DOES NOT PREVENT THE INTERPRETATION WHICH HAS BEEN REQUESTED FROM BEING SOUGHT WHILST OBSERVING THAT PRINCIPLE .
ON THE SUBSTANCE OF THE CASE
6 IN ITS FIRST QUESTION, THE BUNDESFINANZHOF REQUESTS THE COURT OF JUSTICE TO RULE WHETHER THE EXPRESSION " MAIZE GROATS " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 AND MENTIONED UNDER TARIFF HEADING EX 11.02 A III ( B ) IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING A PRODUCT WHICH IS THE RESULT OF ROUGH GRINDING OF HULLED MAIZE GRAIN FROM WHICH THE GERM HAS BEEN REMOVED AND THE GRAINS OF WHICH ARE COARSER THAN THOSE OF MAIZE MEAL OF MERCHANTABLE QUALITY AND WHICH IN OTHER WORDS OUGHT RATHER TO BE DESCRIBED AS GROATS . THE BUNDESFINANZHOF ASKS IN ADDITION WHETHER ACCOUNT MUST BE TAKEN FOR THIS PURPOSE OF THE FAT CONTENT AND IN PARTICULAR WHETHER A FAT CONTENT OF 0.9 PER CENT TO 1.5 PER CENT MUST BE CONSIDERED NECESSARY AND SUFFICIENT .
7 NEITHER REGULATION NO 19/62 NOR REGULATION NO 55/62 WHICH WAS ISSUED IN IMPLEMENTATION THEREOF DEFINE " MAIZE GROATS " WITHIN THE MEANING OF TARIFF HEADING EX 11.02 AND ARTICLE 5 ( 1 ) ( B ) OF THE LATTER REGULATION . IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW, THE EXPLANATORY NOTES AND THE CLASSIFICATION OPINIONS LAID DOWN BY THE CONVENTION ON THE NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN THE CUSTOMS TARIFFS ARE AUTHORITATIVE AS A VALID MEANS OF THE INTERPRETATION OF HEADINGS IN THE COMMON CUSTOMS TARIFF . IT FOLLOWS FROM THOSE NOTES ON THE HEADINGS IN CHAPTER 11 OF THE TARIFF THAT FLOURY FRAGMENTS WHICH ARE LESS COARSE AND IRREGULAR THAN KIBBLED GRAIN BUT THE GRANULES OF WHICH ARE COARSER THAN THOSE OF MEAL AND WHICH ARE DERIVED FROM THE MILLING OF HULLED MAIZE GRAINS WHICH HAVE BEEN DEGERMED MUST BE CONSIDERED AS " MAIZE GROATS " WITHIN THE MEANING OF TARIFF HEADING EX 11.02, IN VIEW ALSO OF THE PRACTICE IN THE MILLING OF MAIZE AND IN THE MAIZE TRADE . MOREOVER THIS CONCLUSION IS CONFIRMED BY THE DEFINITION SUBSEQUENTLY GIVEN TO THESE PRODUCTS IN ARTICLE 2 OF ARTICLE NO 1011/70 OF THE COMMISSION OF 29 MAY 1970 .
8 AS REGARDS THE FAT CONTENT, IT FOLLOWS FROM REGULATION NO 55/62, THAT IT IS NOT DECISIVE IN THE PRESENT CASE . IN ANY CASE, SINCE THE PRODUCTION OF " GROATS " PRESUPPOSES THAT THE MAIZE GRAIN HAS PREVIOUSLY BEEN PROCESSED, ITS FAT CONTENT IN RELATION TO THE DRY MATERIAL IS NECESSARILY VERY LOW .
9 FOR THOSE REASONS, THE ANSWER TO THE FIRST QUESTION MUST BE THAT THE EXPRESSION " MAIZE GROATS " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 AND MENTIONED UNDER HEADING EX 11.02 A III ( B ) IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING FLOURY FRAGMENTS WHICH ARE LESS COARSE AND IRREGULAR THAN KIBBLED GRAIN BUT THE GRANULES OF WHICH ARE COARSER THAN THOSE OF MEAL AND WHICH ARE DERIVED FROM THE MILLING OF HULLED MAIZE GRAIN WHICH HAS BEEN DEGERMED .
10 SINCE THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, THE OTHER QUESTIONS WHICH HAVE BEEN REFERRED BY THE NATIONAL COURT NOW HAVE NO PURPOSE .
Decision on costs
11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND SINCE THE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE OBSERVATIONS OF THE GUENTHER HENCK UNDERTAKING AND THE COMMISSION OF THE EUROPEAN COMMUNITIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 39, 40 AND 177;
HAVING REGARD TO REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS;
HAVING REGARD TO REGULATION NO 55 OF THE COUNCIL OF 30 JUNE 1962;
HAVING REGARD TO REGULATION NO 1011/70 OF THE COMMISSION OF 29 MAY 1970 ON CERTAIN QUALITY REQUIREMENTS FOR MAIZE GROATS AND MEAL USED BY THE COMMUNITY BREWING INDUSTRY;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, ESPECIALLY ARTICLE 20;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF ( SEVENTH CHAMBER ) OF THE FEDERAL REPUBLIC OF GERMANY IN ACCORDANCE WITH THE ORDER OF THAT COURT ON 12 JANUARY 1971, HEREBY RULES :
THE EXPRESSION " MAIZE GROATS " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/72 AND MENTIONED UNDER HEADING EX 11.02 A III ( B ) IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING FLOURY FRAGMENTS WHICH ARE LESS COARSE AND IRREGULAR THAN KIBBLED GRAIN BUT THE GRANULES OF WHICH ARE COARSER THAN THOSE OF MEAL AND WHICH ARE DERIVED FROM MILLING HULLED MAIZE GRAINS WHICH HAVE BEEN DEGERMED, THE FAT CONTENT OF WHICH IN RELATION TO THE DRY MATERIAL IS VERY LOW .