Judgment of the Court of 20 June 1973. - NV Koninklijke Lassiefabrieken v Hoofproduktschap voor Akkerbouwprodukten. - Reference for a preliminary ruling: College van Beroep voor het Bedrijfsleven - Netherlands. - Tariff classification of a product based on barley. - Case 80-72.



European Court reports 1973 Page 00635

Greek special edition Page 00587

Portuguese special edition Page 00271



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . ACTS OF INSTITUTION - REGULATIONS - STATEMENT OF REASONS

( EEC TREATY, ARTICLE 190 )

2 . ACTS OF AN INSTITUTION - REGULATIONS - ANNEX - ANNOTATION - BINDING FORCE

( EEC TREATY, ARTICLE 189 )

3 . AGRICULTURE - CEREALS - PROCESSED PRODUCTS - PRODUCTS DERIVED FROM BARLEY - IMPORT AND EXPORT SYSTEM - CLASSIFICATION - TARIFF HEADINGS 11.01 AND 23.02 - DISTINCTION - CRITERIA - STARCH CONTENT - RATE OF 28 PER CENT - INAPPLICABILITY

( REGULATION NO 950/68 OF COUNCIL )

4 . AGRICULTURE - CEREALS - PROCESSED PRODUCTS - PRODUCTS DERIVED FROM BARLEY - CLASSIFICATION - TARIFF HEADINGS 11.01 AND 23.02 - DISTINCTION - CRITERIA - METHODS OF ANALYSIS - VISUAL OBSERVATION

( REGULATION NO 950/68 OF COUNCIL )

Summary

1 . THE REQUIREMENTS OF ARTICLE 190 OF THE TREATY ARE SATISFIED WHEN THE STATEMENT OF REASONS EXPLAINS IN ESSENCE THE MEASURES TAKEN IN REGULATIONS BY THE INSTITUTIONS . A SPECIFIC STATEMENT OF REASONS IN SUPPORT OF ALL THE DETAILS CONTAINED IN SUCH A MEASURE IS NOT REQUIRED, PROVIDED SUCH DETAILS FALL WITHIN THE GENERAL SCHEME OF THE MEASURE AS A WHOLE .

2 . A PROVISION APPEARING IN THE FORM OF A FOOTNOTE ANNOTATING CERTAIN TARIFF HEADINGS, SINCE IT IS AN EXPRESSION OF THE WILL OF THE AUTHORS OF THAT REGULATION FORMS AN INTEGRAL PART OF IT AND ENJOYS THE SAME LEGAL FORCE .

3 . THE CRITERION " STARCH CONTENT NOT EXCEEDING 28 PER CENT " WHICH APPEARS IN SUBHEADING 23.02 A OF ANNEX TO REGULATION NO 360 OF 25 JULY 1967 AND OF THE COMMON CUSTOMS TARIFF ESTABLISHED BY REGULATION NO 950/68 OF 28 JUNE 1968 CANNOT SERVE TO DISTINGUISH BETWEEN TARIFF HEADINGS 11.01 " CEREAL FLOURS " AND 23.02 " BRANS, SHARPS AND OTHER RESIDUES DERIVED FROM THE SIFTING, MILLING OR WORKING OF CEREALS ". IT IS ONLY ONE OF THE CRITERIA FOR CLASSIFICATION WITHIN ONE OF THE SUBHEADINGS 23.02 A .

4 . THE CLASSIFICATION OF PRODUCTS DERIVED FROM BARLEY UNDER TARIFF HEADINGS 11.01 AND 23.02, RESPECTIVELY, MAY BE ASCERTAINED, WITHOUT PREJUDICE TO THE CLASSIFICATION CRITERIA IMPERATIVELY PRESCRIBED BY THE REGULATIONS APPLICABLE, BOTH BY CHEMICAL ANALYSIS AND BY ANY OTHER APPROPRIATE MEANS, INCLUDING VISUAL ( MICROSCOPIC ) OBSERVATION .

Parties

IN CASE 80/72

REFERENCE TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY BY THE " COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN " IN THE CASE PENDING BEFORE THAT COURT BETWEEN

NV KONINKLIJKE LASSIEFABRIEKEN, HAVING ITS REGISTERED OFFICE AT WORMERVEER

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN OF THE HAGUE,

Subject of the case

ON THE INTERPRETATION OR VALIDITY OF CERTAIN PROVISIONS OF REGULATION, NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS TOGETHER WITH VARIOUS REGULATIONS OF THE COUNCIL AND OF THE COMMISSION ON THE SYSTEM OF EXPORTS AND THE FIXING OF REFUNDS FOR PROCESSED PRODUCTS BASED ON CEREALS, WITH REGARD TO THE CLASSIFICATION, IN THE COMMON CUSTOMS TARIFF ESTABLISHED BY REGULATION NO 950/68 OF THE COUNCIL OF 28 JUNE 1968, OF CERTAIN PROCESSED PRODUCTS DERIVED FROM BARLEY .

Grounds

1 BY AN ORDER OF 8 DECEMBER 1972, LODGED WITH THE REGISTRY OF THE COURT ON 11 DECEMBER 1972, THE " COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ", BY VIRTUE OF ARTICLE 177 OF THE EEC TREATY, HAS ASKED THE COURT FOR A PRELIMINARY RULING ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE ANNEX TO REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ P . 2269 ) AND OF THE COMMON CUSTOMS TARIFF LAID DOWN BY REGULATION NO 950/68 OF 28 JUNE 1968 ( OJ L 172, P . 1 ) IN CONJUNCTION WITH IMPLEMENTING REGULATIONS NOS 360/67 OF 25 JULY 1967 ( OJ 174, P . 13 ) AND 1052/68 OF 23 JULY 1968 ( OJ L 179, P . 8 ) OF THE COUNCIL ON THE IMPORT AND EXPORT SYSTEM FOR PRODUCTS PROCESSED FROM CEREALS, INCLUDING THE IMPLEMENTING REGULATIONS OF THE COMMISSION, CHIEFLY IN ORDER TO DECIDE THE VALIDITY OF A PROVISION FORMING PART OF THE ANNEX TO REGULATION NO 1052/68;

THE STATE OF COMMUNITY LEGISLATION AT THE TIME OF THE EXPORTS IN DISPUTE

2 THE QUESTIONS REFERRED AROSE WITHIN THE CONTEXT OF A DISPUTE OVER THE GRANT OF THE EXPORT REFUNDS PROVIDED FOR IN REGULATION NO 120/67 AND OVER THE CLASSIFICATION OF A PRODUCT DERIVED FROM BARLEY, WITH REGARD TO CERTAIN RUBRICS OF TARIFF HEADINGS 11.01, " CEREAL FLOURS ", AND 23.02 " BRANS, SHARPS AND OTHER RESIDUES DERIVED FROM THE SIFTING, MILLING OR WORKING OF CEREALS ";

3 UNDER ARTICLE 16 ( 5 ) OF REGULATION 120/67, THE COUNCIL ESTABLISHED CERTAIN GENERAL RULES RELATING TO THE GRANT OF REFUNDS, IN THE FIRST PLACE BY REGULATION NO 360/67, WHOSE ANNEX ADOPTS THE RUBRICS WITH WHICH THE MAIN ACTION IS CONCERNED, ADDING THERETO CERTAIN SPECIFICATION INTENDED TO CLARIFY THE APPLICATION OF THE HEADINGS AND SUBHEADINGS LAID DOWN BY REGULATION NO 120/67;

4 IN ITS TURN, THE COMMISSION, BY REGULATIONS NOS 122/68 OF 30 JANUARY 1968 ( OJ L 29, P . 13 ), 372/68 OF 28 MARCH 1968 ( OJ L 78, P . 14 ) AND 814/68 OF 28 JUNE 1968 ( OJ 149, P . 23 ) FIXED THE REFUNDS IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 16 OF BASIC REGULATION NO 120/67 AND OF GENERAL IMPLEMENTING REGULATION NO 360/67 OF THE COUNCIL;

5 THE FIRST FORM OF THE FIVE EXPORTS WHICH GAVE RISE TO THE CASE BROUGHT BEFORE THE " COLLEGE VAN BEROEP " WERE EFFECTED UNDER THE SYSTEM ESTABLISHED BY THESE PROVISIONS;

6 REGULATION NO 360/67 WAS SUBSEQUENTLY REPLACED BY REGULATION NO 1052/68, THE COUNCIL, INTRODUCED, AS EMERGES FROM THE SECOND RECITAL OF THE PREAMBLE, IN THE LIGHT OF EXPERIENCE GAINED DURING THE FIRST MARKETING YEAR IN WHICH COMMON PRICES FOR CEREALS WERE APPLIED, SO AS TO BRING THE PREVIOUS PROVISIONS MORE INTO LINE WITH THE ACTUAL SITUATION AND THE REQUIREMENTS OF THE TRADE;

7 THE ANNEX TO THAT REGULATION ( NO 1052/68 ) RETAINS THE RUBRICS OF HEADINGS 11.01 AND 23.02 AS THEY APPEAR IN REGULATION NO 120/67 AND IN THE PROVISIONS DERIVED THEREFROM, AND CONTAINS A NOTE COMMON TO HEADINGS 11.01 AND 11.02 WHICH STATES, " INCLUSION UNDER THIS HEADING IS SUBJECT TO THE CONDITION THAT THE PRODUCT IN QUESTION HAS A STARCH CONTENT EXCEEDING 45 PER CENT AND AN ASH CONTENT NOT EXCEEDING ... 3 PER CENT FOR PRODUCTS BASED ON BARLEY .... IF EITHER OF THE TWO CONDITIONS MENTIONED ABOVE IS NOT FULFILLED, THE PRODUCT IN QUESTION SHALL BE CLASSIFIED UNDER TARIFF SUBHEADING NO 23.02 A ON THE BASIS OF ITS STARCH CONTENT ";

8 REGULATION NO 1052/68 WAS FOLLOWED BY IMPLEMENTING REGULATION NO 1138/68 OF THE COMMISSION OF 30 JULY 1968 ( OJ L 188, P . 13 ), GOVERNING THE FIFTH AND LAST OF THE EXPORTS WHICH GAVE RISE TO THE ACTION;

9 BY ARTICLE 18 OF REGULATION 120/67, " THE TARIFF NOMENCLATURE RESULTING FROM APPLICATION OF THIS REGULATIONS SHALL BE INCORPORATED IN THE COMMON CUSTOMS TARIFF FROM THE DATE ON WHICH THE LATTER IS FULLY APPLIED ";

10 BY THE PROVISION, THE NOMENCLATURE OF THE CUSTOMS TARIFF REPLACED THE CORRESPONDING PROVISIONS OF THE ANNEX TO REGULATION NO 120/67, WITH REGARD TO THE TARIFF HEADINGS CITED BY THE REFERENCE FOR A PRELIMINARY RULING, WHEN REGULATION NO 950/68 CAME INTO FORCE .

11 FINALLY, THE SUBSTANCE OF THE NOTE INTRODUCED BY THE ANNEX TO REGULATION NO 1052/68 HAS BEEN ADOPTED IN THE FORM OF AN " ADDITIONAL NOTE " PRECEDING THE PROVISION OF CHAPTER 11 OF THE CUSTOM TARIFF, ON THE REVISION OF THE LATTER BY REGULATION NO 2451/69 OF 8 DECEMBER 1969 ( OJ L 311, P . 1 );

ON THE LEGAL NATURE AND VALIDITY OF THE NOTE IN THE ANNEX TO REGULATION NO 1052/68 ( QUESTIONS 5, 6 AND 7 )

12 FROM ALL THE QUESTIONS REFERRED, IT APPEARS THAT THE DISPUTE HAS BEEN CAUSED, IN ESSENCE, BY THE INSERTION IN THE ANNEX TO REGULATION NO 1052/68 OF THE NOTE WHOSE AIM WAS TO CLARIFY THE CRITERIA OF CLASSIFICATION ESTABLISHING THE DISTINCTION BETWEEN TARIFF HEADINGS 11.01 AND 23.02;

13 IN THESE CIRCUMSTANCES, THE QUESTIONS DEALING WITH THE LEGAL SCOPE AND THE VALIDITY OF THE NOTE IN DISPUTE SHOULD BE EXAMINED FIRST;

14 THE FIFTH QUESTION ASKS IN THIS CONNECTION WHETHER THE SAID NOTE FORMS AN INTEGRAL PART OF REGULATION NO 1052/68 AND IS THEREFORE TO BE CONSIDERED AS ENJOYING THE SAME LEGAL FORCE AS THE PROVISIONS OF THAT REGULATION;

15 ALTHOUGH THE PROVISIONS IN DISPUTE APPEARS IN THE FORM OF A FOOTNOTE ANNOTATING CERTAIN TARIFF HEADINGS, IT IS AN EXPRESSION OF THE WILL OF THE COUNCIL AND ON THAT GROUND FORMS AN INTEGRAL PART OF REGULATION NO 1052/68;

16 ANNOTATIONS, IN VARIOUS FORMS, ARE COMMONLY USED IN THIS SPHERE;

17 THE NOTE IN DISPUTE IS THEREFORE TO BE CONSIDERED AS ENJOYING THE SAME LEGAL FORCE AS THE REGULATION;

18 BY THE SIXTH QUESTION, THE COURT IS ASKED TO STATE WHETHER THE PROVISIONS OF REGULATION 1052/68 REFERRING TO COLUMNS 3, 4 AND 5 OF THE ANNEX ARE TO BE INTERPRETED IN SUCH A WAY AS TO INCLUDE A REFERENCE TO COLUMNS 1 AND 2 OF THAT ANNEX; THE NOTE IN DISPUTE IS APPENDED TO A HEADING SET OUT IN COLUMN 2;

19 THE ANNEX, WHICH IS DRAWN UP IN THE FORM OF A GENERAL SCHEDULE, IS TO BE CONSIDERED AS A COHERENT ENTITY WITHIN WHICH THE DETAILED PROVISIONS ARE MEANINGFUL ONLY IN RELATION TO THE SCHEDULE AS A WHOLE;

20 IN PARTICULAR, THE ENTRIES IN COLUMNS 3, 4 AND 5 WOULD BE MEANINGLESS UNLESS THEY WERE TAKEN IN CONJUNCTION WITH THE CORRESPONDING RUBRICS IN COLUMNS 1 AND 2;

21 IT FOLLOWS THAT THE NOTE APPENDED TO THE RUBRICS WHICH APPEAR IN COLUMN 2 OPPOSITE HEADINGS 11.01 AND 11.02 RELATES TO ALL THE PROVISIONS OF THE ANNEX WHICH CONCERN THE SAID HEADINGS, INCLUDING INTER ALIA SUBHEADING 23.02 A WHICH IS EXPRESSLY REFERRED TO BY THE NOTE ITSELF;

22 ANY REFERENCE IN THE REGULATION TO COLUMNS 3, 4 AND 5 THEREFORE CONSTITUTES AN IMPLICIT REFERENCE ALSO TO COLUMNS 1 AND 2 AND THE NOTE APPENDED THERETO;

23 THE SEVENTH QUESTION ASKS WHETHER THE VALIDITY OF THE NOTE IS AFFECTED BY THE FACT THAT REGULATION NO 1052/68 DOES NOT, ON THE POINT LAID DOWN BY THE NOTE IN DISPUTE, CONTAIN A STATEMENT OF REASONS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 190 OF THE EEC TREATY .

24 THE REQUIREMENTS OF ARTICLE 190 OF THE TREATY ARE SATISFIED WHEN THE SAID STATEMENT OF REASONS EXPLAINS IN ESSENCE THE MEASURES TAKEN IN REGULATIONS BY THE INSTITUTIONS;

25 A SPECIFIC STATEMENT OF REASONS IN SUPPORT OF ALL THE DETAILS WHICH MIGHT BE CONTAINED IN SUCH A MEASURE CANNOT BE REQUIRED, PROVIDED SUCH DETAILS FALL WITHIN THE GENERAL SCHEME OF THE MEASURE AS A WHOLE, WHICH IN THIS CASE CANNOT BE DISPUTED;

26 THE VALIDITY OF THE NOTE IN DISPUTE CANNOT THEREFORE BE DOUBTED ON THE GROUND OF THE ABSENCE OF A STATEMENT OF REASONS;

ON THE RELATIONSHIP BETWEEN THE CLASSIFICATION CRITERIA LAID DOWN BY REGULATION NO 1052/68 AND THE BASIC REGULATIONS AND PRIOR PROVISIONS ( QUESTIONS 1 AND 4, AND 8 TO 13 )

27 THE " COLLEGE VAN BEROEP " HAS REFERRED A CERTAIN NUMBER OF QUESTIONS, FIRST, ON THE INTERPRETATION OF THE CLASSIFICATION CRITERIA LAID DOWN BY THE VARIOUS RELEVANT REGULATIONS, AND, SECONDLY, ON THE VALIDITY OF THE NOTE IN DISPUTE, IN THE ANNEX TO REGULATION 1052/68 WITH REGARD TO THE CLASSIFICATION CRITERIA FIXED BY THE BASIC REGULATIONS VIZ, REGULATION NO 120/67 AND WHERE APPROPRIATE, THE COMMON CUSTOMS TARIFF ESTABLISHED BY REGULATION NO 950/68, OF WHICH REGULATION NO 1052/68 IS INTENDED TO IMPLEMENT;

28 THE FIRST QUESTION ASKS WHETHER, WITH REGARD TO PRODUCTS DERIVED FROM BARLEY, THE CRITERIA OF A STARCH CONTENT EXCEEDING 28 PER CENT MAY BE TAKEN INTO CONSIDERATION AS DETERMINING THE DISTINCTION, FOR THE CLASSIFICATION OF THE GOODS, BETWEEN TARIFF HEADINGS 11.01 C AND 23.02 A;

29 THE CRITERION REFERRED TO APPEARS, BOTH IN REGULATIONS NOS . 360/67 AND 1052/68 AND IN THE COMMON CUSTOMS TARIFF, AS ONE OF TWO CRITERIA FOR CLASSIFICATION WITHIN ONE OF THE SUBHEADINGS 23.02 A, SO THAT A STARCH CONTENT EXCEEDING 28 PER CENT CANNOT INDICATE THAT THE GOODS FALL OUTSIDE THE SAID SUBHEADINGS;

30 IT FOLLOWS THEREFROM THAT THE FIRST QUESTION MUST BE ANSWERED IN THE NEGATIVE;

31 THE FOURTH QUESTION REQUIRES TO BE ANSWERED ONLY IN THE EVENT OF THE REPLY TO THE FIRST BEING AFFIRMATIVE;

32 IT APPEARS IN FACT FROM THE ORDER REFERRING THE CASE THAT THE QUANTITIES EXPORTED WHOSE CLASSIFICATION IS IN DISPUTE HAVE A STARCH CONTENT OF APPROXIMATELY 28 PER CENT, SO THAT IN THIS CASE THE CHOICE OF THE BASIS OF ANALYSIS - STARCH CONTENT CALCULATED ON THE GOODS AS SUCH OR ON THE DRY MATERIAL - COULD HAVE BEEN OF DECISIVE IMPORTANCE;

33 TAKING ACCOUNT OF THE REPLY TO THE FIRST QUESTION, THE FOURTH QUESTION IS NO LONGER OF IMPORTANCE;

34 QUESTIONS 8 TO 13 REQUEST THE COURT TO CONSIDER WHETHER THE VALIDITY OF THE NOTE IN DISPUTE, WHICH HAS BEEN INSERTED INTO THE ANNEX TO REGULATION NO 1052/68, MAY BE CHALLENGED AS BEING INCOMPATIBLE WITH ANY PROVISION OF THE TREATY OR PRINCIPLES RELATING TO THE APPLICATION THEREOF ( QUESTIONS 8 AND 9 ), REGULATION NO 120/67 ( QUESTION 10 ) OR THE COMMON CUSTOMS TARIFF ( QUESTIONS 11 TO 13 );

35 IT EMERGES FROM THE ORDER REFERRING THE CASE THAT, ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION, THE INTRODUCTION OF THIS NOTE INVOLVED A MODIFICATION OF THE TARIFF LAW ESTABLISHED BY THE PROVISIONS OF THE ABOVEMENTIONED REGULATIONS AND WAS INCOMPATIBLE WITH THEM; SO IMPORTANT A MODIFICATION REQUIRED, AT THE VERY LEAST, A TRANSITIONAL PERIOD IN THE INTERESTS OF LEGAL CERTAINTY;

36 THE NOTE IN DISPUTE CANNOT BE CONSIDERED AS CREATING AN EXCEPTION TO THE PROVISIONS OF THE EXISTING REGULATIONS, NOR AS CONSTITUTING IN ITSELF A MODIFICATION OF THE LEGAL SITUATION PREVIOUSLY IN EXISTENCE;

37 IN THIS CONNECTION IT MUST BE RECALLED THAT, IN THE FIRST PLACE, THERE IS NO SUBSTANTIAL BREAK IN CONTINUITY BETWEEN THE HEADINGS IN THE ANNEX TO REGULATION NO 120/67, THOSE OF THE COMMON CUSTOMS TARIFF WHICH WERE SUBSTITUTED THEREFORE ON THE ENTRY INTO FORCE OF REGULATION NO 980/68, THE PROVISIONS OF IMPLEMENTING REGULATIONS NOS 360/67 AND 1052/68 OF THE COUNCIL AND THE REGULATIONS OF THE COMMISSION BASED ON THEM;

38 BEFORE THE NOTE APPEARING IN THE ANNEX TO REGULATION NO 1052/68 CAME INTO FORCE, QUESTIONS OF CLASSIFICATION FELL TO BE RESOLVED BY THE AUTHORITIES ENTRUSTED WITH THE EXECUTION OF THE COMMON AGRICULTURAL POLICY, AND, AS A LAST RESORT, BY THE COMPETENT COURTS, IN THE LIGHT OF THE GENERAL PROCEDURES AND PRINCIPLES PREVAILING IN THE APPLICATION OF THE CUSTOMS TARIFF;

39 IN THE ABSENCE OF BINDING INDICATIONS FOR THE PERIOD PRIOR TO THE NOTE APPEARING IN THE ANNEX TO REGULATION NO 1052/68, REGARD MAY BE HAD TO SEVERAL FACTORS ENABLING THE COMPETENT AUTHORITIES TO DISTINGUISH BETWEEN THE CATEGORIES OF CLASSIFICATION OF HEADINGS 11.01 AND 23.02;

40 IT IS TO BE NOTED THAT THE " FLOURS " REFERRED TO IN HEADING 11.01 MUST ALWAYS, OF NECESSITY, HAVE A STARCH CONTENT EXCEEDING, AND AN ASH AND CELLULOSE CONTENT LESS THAN THAT OF THE ORIGINAL CEREAL;

41 EXPLANATORY NOTES WERE ALREADY IN EXISTENCE WHEN THE EXPORTS IN DISPUTE WERE EFFECTED, WHICH, ALTHOUGH THEY WERE CONCERNED WITH CEREALS OTHER THAN BARLEY, SANCTIONED THE ADOPTION OF A STARCH CONTENT OF 45 PER CENT AS A DECISIVE CRITERION OF CLASSIFICATION IN THAT SPHERE;

42 IT IS THEREFORE CLEAR THAT THE NOTE INSERTED IN THE ANNEX TO REGULATION 1052/68, FAR FROM INTRODUCING AN INNOVATION INTO THE PRINCIPLES OF CLASSIFICATION PREVIOUSLY IN FORCE, RESTRICTED ITSELF TO ESTABLISHING PRECISE CRITERIA WHICH WERE THENCEFORTH AUTHORITATIVELY IMPOSED;

43 IT FOLLOWS THAT THE CRITERIA EMERGING FROM THAT NOTE CANNOT BE CONSIDERED AS CONFLICTING WITH THOSE PREVIOUSLY APPLIED IN THE CONTEXT OF THE NORMAL PROCEDURES OF INTERPRETATION OF THE CUSTOMS TARIFF;

44 THE VARIOUS QUESTIONS WHICH HAVE BEEN REFERRED MUST BE ANSWERED IN THE LIGHT OF THESE CONSIDERATIONS;

45 THE EIGHTH QUESTION ASKS WHETHER THE NOTE IN DISPUTE IS TO BE CONSIDERED AS DEVOID OF FORCE AS BEING INCOMPATIBLE WITH ANY PROVISION OF THE TREATY OR OF A REGULATION ADOPTED IN IMPLEMENTATION THEREOF OR OF A PRINCIPLE OF LAW INHERENT IN THE TREATY;

46 IT EMERGES FROM THE ORDER REFERRING THE CASE, THE STATEMENTS OF CASE AND THE ORAL ARGUMENTS THAT THIS QUESTION IS BASED ON THE CRITICISMS RAISED BY THE PLAINTIFF IN THE MAIN ACTION ON THE GROUNDS OF THE LEGISLATIVE PROCEDURE BY WHICH THE NOTE IN QUESTION WAS INTRODUCED, DESCRIBED AS " SURREPTITIOUS " AND THE LEGAL UNCERTAINTY WHICH RESULTED FROM THAT LEGISLATIVE " MODIFICATION ";

47 AS IS SET FORTH ABOVE, NO CRITICISM CAN BE UPHELD AGAINST THE LEGISLATIVE PROCEDURE, EMPLOYED TO CLARIFY, AUTHORITATIVELY AND FOR THE COMMUNITY AS A WHOLE, THE DISTINCTION BETWEEN TWO TARIFF HEADINGS THE INTERPRETATION OF WHICH HAD PREVIOUSLY GIVEN RISE TO DIFFERENCES OF OPINION;

48 THE NOTE WAS ADOPTED BY LEGITIMATE LEGISLATIVE PROCEDURE, BY THE COMPETENT AUTHORITY WITH THE AIM OF ESTABLISHING BOTH THE AGRICULTURAL RULES AND THE TARIFF RULES OF THE COMMUNITY, AND CANNOT THEREFORE BE CONSIDERED INCOMPATIBLE WITH A PROVISION OF THE TREATY OR OF THE SECONDARY LEGISLATION, NOR WITH ANY PRINCIPLE GOVERNING THE APPLICATION OF THESE MEASURES;

49 THE NINTH QUESTION ASKS WHETHER THE NOTE IN DISPUTE MAY BE VITIATED BY THE FACT THAT IT DOES NOT PROVIDE FOR A TRANSITIONAL PERIOD;

50 IN THIS CASE IT IS SUFFICIENT TO FIND THAT THE SOLE OBJECTIVE OF THAT NOTE WAS TO CLARIFY THE MEANING OF TWO TARIFF HEADINGS IN RELATION TO EACH OTHER, WHICH QUESTION WAS PREVIOUSLY LEFT TO THE JUDGMENT OF THE COMPETENT AUTHORITIES;

51 THE TENTH QUESTION ASKS, FURTHER, WHETHER THAT NOTE IS TO BE CONSIDERED AS DEVOID OF FORCE AS BEING INCOMPATIBLE WITH ONE OF THE PROVISIONS OF REGULATION NO 120/67 .

52 THAT QUESTION APPEARS TO BE FOUNDED ON THE HYPOTHESIS OF A POSSIBLE INCOMPATIBILITY BETWEEN THE TARIFF HEADINGS LAID DOWN BY THE ANNEX TO REGULATION NO 120/67 AND THE NOTE INTRODUCED BY THE ANNEX TO REGULATION NO 1052/68;

53 THE TARIFF HEADINGS LAID DOWN IN THE ANNEX TO REGULATION NO 120/67 HAVE BEEN IN NO WAY MODIFIED BY REGULATION NO 1052/68; THE SCOPE OF THE LATTER, AS IS STATED SUPRA, WAS TO CLARIFY THE MEANING OF THE TWO HEADINGS IN QUESTION IN RELATION TO EACH OTHER, IN ORDER TO ELIMINATE ALL UNCERTAINTY AS TO THEIR INTERPRETATION;

54 IN LAYING DOWN SUCH A PROVISION THE COUNCIL HAS KEPT WITHIN THE POWER EXPRESSLY RESERVED TO IT BY ARTICLE 16 ( 5 ) OF REGULATION NO 120/67, WHICH PROVIDES THAT THE COUNCIL " SHALL ADOPT GENERAL RULES FOR GRANTING EXPORT REFUNDS AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ";

55 THE NOTE IN DISPUTE, HAVING BEEN ADOPTED WITHIN THE FRAMEWORK OF THAT ENABLING PROVISION, CANNOT BE CONSIDERED AS INCOMPATIBLE WITH THE SAID REGULATION .

56 THE THIRTEENTH QUESTION ASKS WHETHER THERE IS A POSSIBLE INCOMPATIBILITY BETWEEN THE NOTE IN DISPUTE AND THE COMMON CUSTOMS TARIFF LAID DOWN BY REGULATION NO 950/68;

57 THE " COLLEGE VAN BEROEP ", ASKS TWO FURTHER QUESTIONS AS TO WHEN REGULATION NO 950/68 CAME INTO FORCE ( ELEVENTH AND TWELFTH QUESTIONS ); TAKING ACCOUNT OF THE DATE OF THE FIFTH EXPORT ( 16 AUGUST 1968 ), THE " COLLEGE VAN BEROEP " IS UNCERTAIN WHEN THE COMMON CUSTOMS TARIFF CAME INTO FORCE; THE LATTER WAS LAID DOWN BY REGULATION OF 28 JUNE 1968, TO COME INTO FORCE IN TERMS OF ARTICLE 4 THEREOF, ON 1 JULY, 1968 AND WAS ONLY PUBLISHED IN THE OFFICIAL JOURNAL ON 22 JULY 1968; THERE IS ALSO A POSSIBLE OVERLAP WITH THE DATES DETERMINING WHEN REGULATION NO 1052/68 CAME INTO FORCE; THE LATTER WAS ADOPTED ON 23 JULY, PUBLISHED IN THE OFFICIAL JOURNAL ON 25 JULY AND CAME INTO FORCE ON 29 JULY 1968;

58 IT FOLLOWS FROM THE PRECEDING THAT THERE IS NO BREAK IN CONTINUITY BETWEEN THE PROVISIONS IN THE ANNEX TO REGULATION NO 120/67 AND THE PROVISIONS OF THE COMMON CUSTOMS TARIFF WHICH REPLACED THE FORMER FROM THE ENTRY INTO FORCE OF REGULATION NO 950/68; THE PROVISIONS OF BOTH ARE SUBSTANTIALLY IDENTICAL WITH REGARD TO THE TARIFF HEADINGS IN QUESTION .

59 THE QUESTION OF THE RELATIONSHIP BETWEEN THE NOTE IN DISPUTE AND THE BASIC TARIFF RULES WHICH SERVED TO LAY DOWN THESE HEADINGS SHOULD THEREFORE BE JUDGED IN THE SAME WAY, REGARDLESS OF WHETHER THE ANNEX TO REGULATION NO 120/67 OR THE COMMON CUSTOMS TARIFF IS IN QUESTION;

60 IT IS THEREFORE IRRELEVANT TO ESTABLISH WHICH WAS THE BASIC RULE APPLICABLE AT THE TIME OF THE EXPORT IN QUESTION .

61 IN ACCORDANCE WITH THE ABOVEMENTIONED GROUNDS, AND IN THE ABSENCE OF ANY CONFLICT BETWEEN THE NOTE IN DISPUTE AND THE TARIFF HEADINGS WHOSE DELIMITATION THE NOTE IS INTENDED TO CLARIFY, THE LEGALITY OF THAT NOTE CANNOT BE DOUBTED;

ON THE MEANS OF ANALYSIS ( QUESTIONS 2 AND 3 )

62 THE SECOND QUESTION ASKS WHETHER, APART FROM THE RESULTS OF A CHEMICAL ANALYSIS INTENDED TO REVEAL THE CELLULOSE, ASH, STARCH ETC . CONTENTS, IN THE PRODUCTS IN QUESTION, ACCOUNT MAY BE TAKEN OF OTHER CHARACTERISTICS, ESTABLISHED BY ANOTHER MEANS, SUCH AS VISUAL ( MICROSCOPIC ) OBSERVATION;

63 THE THIRD QUESTION ASKS IN ADDITION WHETHER THE APPLICATION OF THESE METHODS OF ANALYSIS MAY HAVE BEEN MODIFIED BY THE EFFECTS OF THE PROVISIONS OF REGULATION NO 1052/68;

64 APART FROM SUCH METHODS OF ANALYSIS AS MAY BE IMPERATIVELY PRESCRIBED BY THE TARIFF PROVISIONS, THE COMPETENT AUTHORITIES MAY APPLY ANY APPROPRIATE MEANS OF ANALYSIS OR OBSERVATION INCLUDING VISUAL ( MICROSCOPIC ) OBSERVATION;

65 WITHOUT PREJUDICE TO THE DETAILS IT HAS ADDED ON THE LIMITS PRESCRIBED FOR THE STARCH AND ASH CONTENTS, THE NOTE APPENDED TO THE ANNEX TO REGULATION NO 1052/68 HAS NOT RESTRICTED THE FREEDOM OF THE COMPETENT AUTHORITIES TO EMPLOY IN ADDITION TO CHEMICAL ANALYSIS, SUCH OTHER MEANS OF ANALYSIS AS SEEM TO THEM APPROPRIATE, IN ORDER TO REACH A CORRECT CLASSIFICATION;

Decision on costs

66 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, CANNOT BE REIMBURSED;

67 SINCE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, THE PROCEEDINGS ARE A STEP IN THE ACTION BEFORE THE NATIONAL COURT, IT IS FOR THE LATTER COURT TO DECIDE THE QUESTION OF COSTS .

Operative part

THE COURT

IN REPLY TO THE QUESTIONS REFERRED TO IT BY THE " COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN " BY ITS ORDER OF 8 DECEMBER 1972, HEREBY RULES :

1 . EXAMINATION OF THE QUESTIONS REFERRED HAS REVEALED NO ELEMENT OF SUCH A NATURE AS TO AFFECT THE VALIDITY OF THE NOTE RELATING TO THE HEADING " CEREAL FLOURS " INSERTED IN THE ANNEX TO REGULATION NO 1052/68 OF 23 JULY 1968 . THIS NOTE FORMS AN INTEGRAL PART OF THE REGULATION AND ENJOYS THE SAME LEGAL FORCE AS ITS PROVISIONS ( QUESTIONS 5, 7, 8, 9, 10, 11, 12 AND 13 ).

2 . THE REFERENCES IN REGULATION NO 1052/68 TO COLUMNS 3, 4 AND 5 OF THE ANNEX THERETO MUST BE INTERPRETED AS REFERENCES TO ALL THE PROVISIONS OF THE ANNEX, INCLUDING COLUMNS 1 AND 2 AND THE NOTE APPENDED THERETO . ( QUESTION 6 ).

3 . THE CRITERION " STARCH CONTENT NOT EXCEEDING 28 PER CENT " WHICH APPEARS IN SUBHEADING 23.02 A OF THE ANNEX TO REGULATION NO 360 OF 25 JULY 1967, AND OF THE COMMON CUSTOMS TARIFF, ESTABLISHED BY REGULATION NO 950/68 OF 28 JUNE 1968 CANNOT SERVE TO DISTINGUISH TARIFF HEADINGS 11.01 " CEREAL FLOURS " AND 23.02 " BRANS, SHARPS AND OTHER RESIDUES DERIVED FROM THE SIFTING, MILLING OR WORKING OF GRAINS OF CEREAL ". ( QUESTION 1 ).

4 . THE CLASSIFICATION OF PRODUCTS DERIVED FROM BARLEY UNDER TARIFF HEADINGS 11.01 AND 23.02, RESPECTIVELY, MAY BE ASCERTAINED, WITHOUT PREJUDICE TO THE CLASSIFICATION CRITERIA IMPERATIVELY PRESCRIBED BY THE REGULATIONS APPLICABLE, BOTH BY CHEMICAL ANALYSIS AND BY ANY OTHER APPROPRIATE MEANS, INCLUDING VISUAL ( MICROSCOPIC ) OBSERVATION .

( QUESTION 2 ).