Opinion of Mr Advocate General Lenz delivered on 9 November 1989. - SA Nicolas Corman & Fils v Belgian State and Grand Duchy of Luxembourg. - Reference for a preliminary ruling: Cour d'appel de Bruxelles - Belgium. - Agriculture - Export refunds and monetary compensatory amounts - Goods imported under an incorrect tariff heading. - Case C-295/88.



European Court reports 1990 Page I-00129



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . Corman et fils, the plaintiff in the main proceedings, claims from the competent intervention agency payment of export refunds and monetary compensatory amounts for a product called butteroil which it exported between July 1975 and March 1977 to France, the United Kingdom and countries outside the Community .

2 . The butteroil was obtained by the plaintiff from a product called "nutrix" which was made up of 84% fat, 2% cocoa and 12% flour . The nutrix was imported into Belgium from France as a Community product under subheading 18.06 D II ( c ) 2, although it was in fact a product from Austria which had been imported into France under the incorrect subheading 19.02 B II ( b ); the incorrect classification led to the imposition of a levy which was less than would have been imposed under the correct classification .

3 . In the case pending before the Belgian courts the cour d' appel ( Court of Appeal ), Brussels, held in an interlocutory judgment of 14 April 1987 inter alia that the butteroil did not satisfy the criteria of Article 5 of Regulation No 802/68 on the common definition of the concept of the origin of goods, ( 1 ) since the processing from which the product was obtained could not be regarded as a substantial process or operation or one that resulted in the manufacture of a new product or represented an important stage of manufacture . It must therefore be inferred from that finding of the national court that the butteroil was not a product of Community origin .

4 . The cour d' appel also referred four questions to the Court, seeking essentially to determine the provisions under which export refunds and monetary compensatory amounts are payable for the export of the butteroil and whether, in view of the incorrect classification, such payments are to be limited to the import duties actually paid .

5 . I shall deal with the observations of the parties as far as is necessary in the course of my Opinion . For the rest, let me refer to the Report for the Hearing, especially as regards the precise wording of the preliminary questions .

B - Opinion

6 . It must be stated first of all that it appears from the written and oral procedure before the Court that the plaintiff in the main proceedings and the Commission of the European Communities share the view that written Community law contains no basis for the plaintiff' s claim to payment of export refunds . Those two parties also agree that there is an entitlement to payment of monetary compensatory amounts .

7 . I share those two opinions, for the following reasons .

Butteroil, as a product falling under subheading 04.03 B, comes within the scope of the common organization of the market in milk and milk products, ( 2 ) for which Article 17 provides that export refunds may be granted upon certain conditions . On the basis of that article the Council adopted Regulation No 876/68 laying down general rules for granting export refunds on milk and milk products and criteria for fixing the amount of such refunds . ( 3 ) Article 6 of Regulation No 876/68 provides that one of the conditions for granting export refunds is that the products should be of Community origin ( except where the provisions of Article 7 apply ). On the importation of products from non-member countries and their re-exportation to non-member countries, Article 7 of Regulation No 876/68 allows the granting of refunds only if the product to be exported and the product previously imported are one and the same and the levy was collected on importation .

8 . According to the findings of the national court the butteroil which the plaintiff in the main proceedings exported was not a Community product, so that export refunds cannot be granted under Article 6 of Regulation No 876/68 . Furthermore, the exception in Article 7 does not apply since the exported product ( butteroil ) is not the same as the product ( nutrix ) which was imported into the Community, for the imported product does not come within Annex II to the Treaty whereas the exported product does .

9 . I cannot, however, accept the plaintiff' s argument, relying on the judgments of 19 October 1977 ( 4 ) in the Quellmehl and maize groats and meal cases, that the bar on the grant of export refunds for products originating outside the Community represents unlawful discrimination . The different treatment of the products is justified by the fact that the common agricultural policy is intended to encourage agricultural producers in the Community . Finally, the Court held in its judgment of 1 October 1974 in Case 14/74 that the organization of the agricultural markets has established price mechanisms intended to give agricultural producers certain guarantees of income, providing, in the case of export to third countries, refunds granted from Community resources . The benefit of these measures is limited, in general, to products of the Community, "that is to say of those countries which contribute to the financing of the common agricultural policy ". ( 5 )

10 . Unlike export refunds, however, monetary compensatory amounts are payable also in respect of goods which are not of Community origin since the relevant provisions of Community law contain no corresponding restriction to products with an origin in the Community .

11 . Article 1(2 ) of Regulation No 974/71 of the Council of 12 May 1971 ( 6 ) allows compensatory amounts to be charged or granted, subject to certain conditions, in respect of products covered by intervention arrangements under the common organization of agricultural markets and products whose price depends on the price of such products . Regulation No 1380/75 of the Commission of 29 May 1975 lays down detailed rules for the application of monetary compensatory amounts . ( 7 )

The questions put by the cour d' appel

12 . When I now turn to the various questions put by the cour d' appel, Brussels, I cannot help entertaining some doubt as to whether all the questions raised are relevant to the present proceedings .

1.First question

13 . The first question essentially raises the problem whether goods which are not listed in Annex II to the EEC Treaty may nevertheless under certain circumstances be regarded as basic products, especially as regards the grant of export refunds and monetary compensatory amounts .

14 . As regards the grant of export refunds it does not seem to me necessary to answer that question expressly . Since the national court itself found that the exported butteroil was not of Community origin, for that reason alone no export refunds are payable . Whether butteroil is to be classified as a basic product or a processed product is therefore irrelevant . If, on the other hand, butteroil were to be regarded as a Community product, export refunds would be payable and again the fact that the basic product, butteroil, was originally manufactured from a processed product would be irrelevant .

15 . Similarly, as regards the grant of monetary compensatory amounts there is no need to answer the first question, since it is clear that the butteroil was exported as a basic product within the meaning of Annex II to the EEC Treaty .

2 . Second question

This question seeks an interpretation of Article 9 of Regulation No 2682/72 of the Council of 12 December 1972 . ( 8 ) According to Article 1, however, that regulation relates to the grant of refunds on the export of basic products in the form of goods not covered by Annex II to the Treaty . As has been found, butteroil is a product covered by Annex II to the Treaty . Regulation No 2682/72 of the Council thus does not apply to the export of butteroil . The question of the interpretation of Article 9 thus does not arise .

3.Third question

16 . In so far as the third question concerns the Community principles or rules governing the fixing of export refunds, it must again be pointed out that no export refunds are payable on the export of the butteroil since it was not of Community origin and so the question does not arise .

17 . In so far as the third question concerns the fixing of monetary compensatory amounts, what I have said above can be repeated : the grant of monetary compensatory amounts is governed by the provisions of Regulations Nos 974/71 and 1380/75 .

4.Fourth question

18 . The fourth question raises the problem whether any monetary compensatory amounts or export refunds due are to be limited on the basis of the duties actually levied on the import or the duties which would have been payable on correct classification .

19 . As far as export refunds are concerned, this question is relevant only in the case referred to in Article 7 of Regulation No 876/68, that is to say where the imported and exported product are identical . However, as stated above, that was not the case, so again the question does not require an express answer in that respect .

20 . As regards the payment of monetary compensatory amounts, the third subparagraph of Article 12(1 ) of Regulation No 1380/75 simply states that on exit from the re-exporting Member State the monetary compensatory amount is not to be applied unless it was applied on entry into that Member State, or if the option provided for in Article 2a of Regulation No 974/71 was exercised on behalf of that State ( of which, however, there is no indication here ).

21 . The defendants in the main proceedings have submitted that payment should be limited to the amount of import duties which were in fact imposed . They have not, however, cited any provision upon which such a limitation should be based in respect of the grant of monetary compensatory amounts . The Commission, too, has simply stated that the third paragraph of Article 12(1 ) of Regulation No 1380/75 is applicable to monetary compensatory amounts without, however, claiming that any limitation should be applied .

22 . The third paragraph of Article 12(1 ) merely makes it a condition of the payment of the monetary compensatory amount that a monetary compensatory amount should have been levied on import . That was the case here since on the importation of the nutrix into Belgium monetary compensatory amounts were applied . Since, moreover, on the importation into Belgium the goods were correctly classified and thus a correct amount in import duties was levied, the question of a distinction between the import duties which should have been levied and those in fact levied probably does not arise . Furthermore, Article 12 of Regulation No 1380/75 contains no restriction like that in, for example, Article 7(2 ) of Regulation No 876/68 in respect of the grant of export refunds on milk and milk products .

C - Conclusion

23 . In conclusion I propose that the Court should answer the questions referred to it for a preliminary ruling by the cour d' appel, Brussels, as follows :

"( 1)Without prejudice to the rule in Article 7, Article 6(1 ) of Regulation No 876/68 is to be interpreted as meaning that export refunds are not payable on the export of products which, although they are referred to in Article 1 of Regulation No 804/68, are not of Community origin .

( 2)Monetary compensatory amounts are payable, in accordance with the conditions laid down in Regulation No 974/71 and the third subparagraph of Article 12(1 ) of Regulation No 1380/75, on the export to a non-member country of products covered by Regulation No 804/68 even though they are not of Community origin ."

(*) Original language : German .

( 1 ) OJ, English Special Edition 1968 ( I ), p . 165 .

( 2 ) Regulation No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products, OJ, English Special Edition 1968 ( I ), p . 176 .

( 3 ) OJ, English Special Edition 1968 ( I ), p . 234 .

( 4 ) Judgments of 19 0ctober 1977 in Joined Cases 117/76 and 16/77 Ruckdeschel and Co . and Others v Hauptzollamt Hamburg-St Annen and Others (( 1977 )) ECR 1753, in Joined Cases 124/76 and 20/77 Moulins et huileries de Pont-à-Mousson and Others v Office national interprofessionnel des céréales (( 1977 )) ECR 1795 .

( 5 ) Judgment of 1 October 1974 in Case 14/74 Norddeutsches Vieh - und Fleischkontor GmbH v Hauptzollamt Hamburg-Jonas (( 1974 )) ECR 899, at p . 909 .

( 6 ) Regulation ( EEC ) No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States ( OJ, English Special Edition 1971 ( I ), p . 257 ).

( 7 ) OJ 1975, L 139, p . 37 .

( 8 ) Regulation ( EEC ) No 2682/72 of the Council of 12 December 1972 laying down general rules for granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds ( OJ, English Special Edition 1972 ( 9 to 28 December ), p . 42 ).