5.

In short, I do not think that there is any good reason to depart from the interpretation given by this Court in the Merkur judgment of 8 April 1976. That interpretation finds confirmation in the criterion which has been adopted in the Community regulations for fixing the amount of the refunds for processed products and which consists in relating that amount to the amount of the levy applicable to the basic products required for their manufacture. A link has thereby been established between the production process and the amount of refund; the more complex and wasteful the processing of the basic product, the higher the refund for the processed product. That such is the criterion applicable in the system in question may be inferred from the preamble to Regulation No 55 of 30 June 1962 on products processed from cereals, as well as from the preamble to Regulation No 141/64 adopted subsequently, both of which were referred to by the national court in its fourth question. They make it quite clear that the refunds must correspond to the incidence which the levies determined for the basic product have on prices for the processed product (see in particular the third recital in the preamble to Regulation No 141/64). This indication finds confirmation in the rules applicable to refunds which were laid down in the two regulations to which I have referred and in other Community sources of the legal system governing products processed from cereals. Thus, for example, Article 2 of Regulation No 92 of the Commission of 25 July 1962 (on the refunds applicable to exports of products processed from cereals) provides that for processed cereals, including, of course, flakes, “refunds in relation to non-member countries may be granted in the form of licences to import free of levy the amount of the basic product determined in accordance with Article 16 of Regulation No 55 of the Council ...”. Article 16 of Regulation No 55 states that the refund for processed products must not exceed the refund for exports of the quantity of the basic product which has been used to calculate the variable component. Article 15 of Regulation No 141/64 goes on to provide that the Member States may grant refunds to an extent “determined in particular by taking into account conditions on the world market and prices for the basic products”. I have already had occasion to note that the amount of refunds for flakes of other cereals were fixed by Regulation No 141/64 on the basis of a coefficient of 180/100, which meant that the export of 100 kg of flakes entitled the exporter to a refund in the form of a licence to import 180 kg of the basic product free of levy. The fixing of such a high coefficient was obviously prompted by the assumption that in the course of processing the basic product into flakes a considerable amount of the former was lost. There would have been no reason for maintaining such a high coefficient if treatment of the cereal was limited to removal of the bracts alone and to rolling or crushing the grains. In order to justify, at least to some extent, the coefficient of 180/100 it is logically necessary to suppose that there is some later loss of the basic product, a loss which it is reasonable to attribute to the removal of the pericarp. The conclusion at which I have arrived enables me to reply to the fourth question put by the German court which is whether, in interpreting the concept of flaked cereal, it is possible to rely on the fact that the rule applied in Regulations No 55 and No 92 of 1962 and Regulation No 141/64 for determining the refunds for processed products was that such refunds “shall be calculated on the basis of the levy applicable to the basic products required for their manufacture”. In view of what I have said it is now clear that the meaning I have attributed to the concept of “flakes” finds independent confirmation in the method by which the calculation of the refunds is determined. Strictly speaking, however, the fourth question concerns not the meaning of a provision of Community law but the methods of interpretation which may be used to clarify the concept “flakes of cereals” in Article 5 of Regulation No 141/64. The interpretation of that provision is the subject of the first question and it is the nub of the present dispute. I have already given my views on the subject and set forth the arguments on which my opinion is based. In substance the fourth question merely highlights one of those arguments, and that is precisely the one which I dealt with last. It seems to me, then, to be a question without independent content to which the Court is not required to give a specific reply as it may be considered to be covered by the main question.