Judgment of the Court of 14 July 1971. - Günther Henck v Hauptzollamt Emmerich. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Kibbled maize grains. - Case 12-71.



European Court reports 1971 Page 00743

Danish special edition Page 00179

Greek special edition Page 00917

Portuguese special edition Page 00271



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PROCEDURE - QUESTIONS REFERRED FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . COMMUNITY LAW - INTERPRETATION OF A PROVISION WHICH HAS BEEN APPLIED - REFERENCE TO THE STATE OF THE LAW IN FORCE

( EEC TREATY, ARTICLE 164, ARTICLE 177 )

3 . COMMON CUSTOMS TARIFF - DESCRIPTION - INTERPRETATION - ABSENCE OF COMMUNITY LEGISLATION - AUTHORITY OF THE EXPLANATORY NOTES AND CLASSIFICATION OPINIONS OF THE CONVENTION ON THE BRUSSELS NOMENCLATURE

4 . COMMON CUSTOMS TARIFF - DESCRIPTION - INTERPRETATION - CRITERIA

( REGULATION NO 950/68 OF THE COUNCIL )

5 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - KIBBLED MAIZE GRAIN WITHIN THE MEANING OF ARTICLE 1 ( D ) OF REGULATION NO 19/62 - CONCEPT

Summary

1 . 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 .

2 . THE PRINCIPLE OF LEGAL CERTAINTY MAKES IT NECESSARY TO REFER TO THE STATE OF THE LAW IN FORCE WHEN THE REGULATION THE INTERPRETATION OF WHICH IS SOUGHT WAS APPLIED .

3 . IN THE ABSENCE OF COMMUNITY LEGISLATION ON THE SUBJECT, THE EXPLANATORY NOTES AND CLASSIFICATION OPINIONS LAID DOWN BY THE CONVENTION ON NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN THE CUSTOMS TARIFFS ARE AUTHORITATIVE AS A VALID MEANS OF INTERPRETING HEADINGS IN THE COMMON CUSTOMS TARIFF .

4 . THE INTERPRETATION OF A TARIFF HEADING MUST IN DOUBTFUL CASES TAKE INTO CONSIDERATION BOTH THE FUNCTION OF THE CUSTOMS TARIFF IN VIEW OF THE NEEDS OF THE SYSTEM OF ORGANIZATION OF THE MARKETS AND ITS PURELY CUSTOMS FUNCTION .

5 . THE PHRASE " KIBBLED MAIZE GRAIN " 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 WHETHER OR NOT DEGERMED WHICH HAS HAD STARCH EXTRACTED AND CONTAINS THE ESSENTIAL CONSTITUENTS OF MAIZE IN SUCH PROPORTIONS THAT THE QUANTITY OF THOSE INGREDIENTS CORRESPONDS TO THE NORMAL VALUES OF THE NATURAL CONTENTS OF MAIZE .

Parties

IN CASE 12/71

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 UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC A QUESTION ON THE INTERPRETATION OF ARTICLE 1 ( D ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 . ( OJ 1962, NO 30 ).

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 THIS 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 THE 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 INTO WHICH THE INTERPRETATION SOUGHT MUST BE PLACED . THE DETAILS CONTAINED IN THE QUESTION WHICH HAS BEEN REFERRED ENABLE THE CATEGORY OF PRODUCTS WHICH MAY COME WITHIN THE PROVISION TO BE ASCERTAINED IN A GENERAL AND ABSTRACT WAY .

4 MOREOVER, SINCE REGULATION NO 19/62 WAS REPEALED AND REPLACED FROM 1 JULY 1967 BY OTHER PROVISIONS OF COMMUNITY LAW, THE GUENTHER HENCK UNDERTAKING MAINTAINS THAT THE COURT CANNOT GIVE A REPLY TO THE QUESTION WHICH HAS BEEN REFERRED ON THE BASIS OF LEGAL RULES WHICH WERE NOT APPLICABLE AT THE TIME OF THE IMPORTS IN QUESTION .

5 THE PRINCIPLE OF LEGAL CERTAINTY MAKES IT NECESSARY TO REFER TO THE STATE OF THE LAW IN FORCE WHEN THE REGULATION IN QUESTION WAS APPLIED . THE WORDING OF THE QUESTION WHICH HAS BEEN REFERRED DOES NOT PREVENT THE INTERPRETATION REQUESTED BEING SOUGHT WHILST COMPLYING WITH THAT PRINCIPLE .

6 THE BUNDESFINANZHOF REQUESTS THE COURT TO RULE WHETHER THE EXPRESSION " KIBBLED MAIZE GRAIN " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 OF THE COUNCIL AND MENTIONED UNDER TARIFF HEADING 11.02 A III B IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING A PRODUCT WHICH HAS HAD STARCH EXTRACTED FROM IT, STILL CONTAINS 60.5 PER CENT, 61.4 PER CENT OR 62.3 PER CENT STARCH AS AGAINST 10.7 PER CENT, 11.03 PER CENT OR 10.8 PER CENT MOISTURE AND HAS A FAT CONTENT OF 3.28 PER CENT, 3.48 PER CENT OR 3.88 PER CENT ( ASCERTAINED ACCORDING TO THE STOLDT-WEIBULL METHOD ). MOREOVER, THE BUNDESFINANZHOF ASKS WHETHER OTHER CONSTITUENTS SUCH AS PROTEINS OR RAW FIBRES MUST BE REQUIRED TO REACH CERTAIN MAXIMUM OR MINIMUM LEVELS AND WHETHER IT IS INDISPENSABLE THAT THE GRAIN HAS BEEN DEGERMED .

7 NEITHER REGULATION NO 19/62 NOR REGULATION 55/62 DEFINE " KIBBLED MAIZE GRAIN " WITHIN THE MEANING OF THE ABOVEMENTIONED TARIFF HEADING EX 11.02 . IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW ON THE SUBJECT, THE EXPLANATORY NOTES AND CLASSIFICATION OPINIONS LAID DOWN BY THE CONVENTION ON THE NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS ARE AUTHORITATIVE AS A VALID MEANS OF INTERPRETING HEADINGS IN THE COMMON CUSTOMS TARIFF . IT APPEARS FROM THOSE NOTES CONCERNING THE HEADINGS IN CHAPTER 11 OF THE TARIFF THAT FRAGMENTS OR FLOURY KERNELS OBTAINED BY THE ROUGH GRINDING OF MAIZE WHICH HAVE THE ESSENTIAL CHARACTERISTICS OF THE ORIGINAL PRODUCT WITH REGARD TO THEIR COMPOSITION MUST BE CONSIDERED, ALSO TAKING INTO CONSIDERATION THE PRACTICE IN THE MILLING OF MAIZE AND IN THE MAIZE TRADE, AS " KIBBLED MAIZE GRAIN " WITHIN THE MEANING OF TARIFF HEADING EX 11.02 .

8 THE NATIONAL COURT ASKS WHETHER THE PRODUCTS IN QUESTION MAY BE DEGERMED AND WHETHER THE FACT THAT THIS PRODUCT HAS UNDERGONE STARCH EXTRACTION CAN AFFECT ITS CLASSIFICATION IN THE CATEGORY OF KIBBLED MAIZE GRAIN WITHIN THE MEANING OF TARIFF HEADING EX 11.02 .

9 THE INTERPRETATION OF A TARIFF HEADING MUST IN DOUBTFUL CASES TAKE INTO CONSIDERATION BOTH THE FUNCTION OF THE CUSTOMS TARIFF IN VIEW OF THE NEEDS OF THE SYSTEM OF ORGANIZATION OF THE MARKETS AND OF ITS PURELY CUSTOMS FUNCTION . ALTHOUGH REGULATION NO 19/62 INCLUDED KIBBLED MAIZE GRAIN WITHIN THE MEANING OF HEADING EX 11.02 IN THE SYSTEM OF THE COMMON ORGANIZATION OF THE MARKET IN CEREALS AND MADE IT LIABLE TO THE LEVY SYSTEM BY REGULATION NO 55/62, THIS WAS MAINLY BECAUSE OF ITS STRUCTURE AND USE AND NOT BECAUSE OF THE TREATMENT WHICH IT UNDERWENT . IT FOLLOWS THAT KIBBLED MAIZE GRAIN WHICH HAS UNDERGONE PROCESSING ENABLING CERTAIN CONSTITUENTS TO BE EXTRACTED FROM IT CONTINUES TO COME UNDER TARIFF HEADING EX 11.02 IF IT STILL CONTAINS THE ESSENTIAL CONSTITUENTS OF MAIZE IN QUANTITIES CORRESPONDING TO NORMAL VARIATIONS IN THE NATURAL CONTENT OF THOSE CONSTITUENTS IN THE ORIGINAL PRODUCT . THE ACT OF DEGERMING THAT PRODUCT IS NOT SUFFICIENT TO EXCLUDE IT FROM HEADING EX 11.03 WHEN ITS CONSTITUENTS FULFIL THE ABOVEMENTIONED CONDITION AND WHEN, AS REGARDS ITS USE, IT SERVES PURPOSES COMPARABLE TO THOSE OF GRAIN WHICH HAS NOT BEEN DEGERMED . AS REGARDS KIBBLED GRAIN WHICH HAS UNDERGONE STARCH EXTRACTION PROCESSING, THE ABOVEMENTIONED EXPLANATORY NOTES TO THE HEADINGS IN CHAPTER 11 DO NOT RULE OUT THE POSSIBILITY THAT CEREALS, INCLUDING MAIZE, WHICH HAVE UNDERGONE SUCH PROCESSING MAY BELONG TO THE CHAPTER IN QUESTION . MOREOVER, IT APPEARS FROM THE CUSTOMS TARIFF WHICH WAS APPLICABLE AT THAT TIME THAT ONLY IN SO FAR AS THEY ARE WASTE DO THOSE CEREALS NOT COME UNDER THAT CHAPTER BUT HAVE TO BE CLASSIFIED AMONGST THE " RESIDUES FROM THE MANUFACTURE OF STARCH " WITHIN THE MEANING OF TARIFF HEADING 23.03 . ALTHOUGH IN THIS CASE THE COURT CANNOT INTERPRET THE SAID HEADING WHICH WAS NOT INCLUDED IN THE COMMON ORGANIZATION OF THE MARKET AT THE TIME WHEN REGULATION NO 19/62 WAS IN FORCE BUT STILL CAME WITHIN NATIONAL CUSTOMS TARIFFS, IT CANNOT, HOWEVER, DEFINE THE SCOPE OF TARIFF HEADING EX 11.02 WITHOUT TAKING INTO CONSIDERATION, IN RESPECT OF PRODUCTS WHICH HAVE UNDERGONE STARCH EXTRACTION PROCESSING, THE DIVIDING LINE WHICH MUST BE DRAWN BETWEEN THOSE PRODUCTS AND " RESIDUES " REFERRED TO IN HEADING 23.03 . THE CONCEPT OF " RESIDUES " IMPLIES THAT KIBBLED MAIZE GRAIN WHICH STILL CONTAINS 60 PER CENT OR MORE STARCH AFTER UNDERGOING A PROCESS OF STARCH EXTRACTION MAY NOT BE CONSIDERED WASTE BUT MUST BECAUSE OF ITS STARCH CONTENT BE PLACED UNDER THE SAME TARIFF HEADING AS THAT APPLICABLE TO KIBBLED GRAIN WHICH HAS NOT UNDERGONE THE SAME PROCESS .

10 FOR THOSE REASONS, THE EXPRESSION " KIBBLED MAIZE GRAIN " 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, WHETHER OR NOT IT HAS BEEN DEGERMED, HAS HAD STARCH EXTRACTED FROM IT AND WHICH CONTAINS THE ESSENTIAL CONSTITUENTS OR MAIZE IN SUCH PROPORTIONS THAT THE QUANTITY OF THOSE SUBSTANCES CORRESPONDS TO THE NORMAL VALUES OF THE NATURAL CONTENTS OF MAIZE .

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 THESE PROCEDURES ARE A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF ( SEVENTH CHAMBER ) OF THE FEDERAL REPUBLIC OF GERMANY PURSUANT TO THE ORDER MADE BY THAT COURT ON 12 JANUARY 1971, HEREBY RULES :

THE EXPRESSION " KIBBLED MAIZE GRAIN " 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, WHETHER IT HAS OR HAS NOT BEEN DEGERMED, HAS HAD STARCH EXTRACTED FROM IT AND CONTAINS THE ESSENTIAL CONSTITUENTS OF MAIZE IN SUCH PROPORTIONS THAT THE QUANTITY OF THOSE SUBSTANCES CORRESPONDS TO THE NORMAL VALUES OF THE NATURAL CONTENTS OF MAIZE .