OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 15 NOVEMBER 1973

My Lords,

This case comes to the Court by way of a reference for a preliminary ruling by the College van Beroep voor het Bedrijfsleven of the Netherlands. The plaintiff in the proceedings before that Court is a Dutch exporter of cereal products. The defendant is the authority responsible in the Netherlands for, among other things, the assessment of refunds due under Community legislation on the export of cereal products. The dispute between the plaintiff and the defendant is about the amount of refund due on a shipment effected by the plaintiff on 3 February 1971 of 638500 kg of maize meal to Norway. Essentially the question is whether the maize meal comprised in that shipment had a fat content (referred to dry matter) of less or of more than 1.3 %. If the fat content exceeded that percentage the refund to which the plaintiff is entitled is smaller than if it did not.

The relevant Community legislation begins with Regulation No 120/67/EEC of the Council which, as Your Lordships will remember, initiated the common organization of the Community market in cereals and cereal products. In relation to certain of those products, including maize meal, Regulation (EEC) No 1052/68 of the Council, superceding an earlier implementing Regulation of the Council (No 360/67/EEC), prescribes rules for the application of the system of levies and of refunds in trade with third countries, Article 11 thereof provides, so far as conceivably material, as follows:

‘The methods used for assessing the … fat content … and any other method of analysis necessary for the application of this Regulation shall be determined in accordance with the procedure laid down in Article 26 of Regulation No 120/67/EEC…’

It is common ground that no effect has ever been given to that Article, so that I need not take up Your Lordships' time with a description of the procedure laid down in Article 26 of Regulation No 120/67/EEC. The Commission says, in its Observations, that the cause of the failure to give effect to Article 11 lies in the complexity of the studies and discussions that would be necessary to do so and in the difficulties that it would entail for some Member States.

However that may be, the result is that at the date of the shipment in question in the present case no method of analysing the fat content of maize meal had been laid down by any Community legislation.

A Community method of analysis of, among other things, the fat content of feedingstuffs was laid down later, by the Second Commission Directive of 18 November 1971. This Directive, which was issued, in implementation of a Council Directive of 20 July 1970, was addressed to the Member States and required them to bring into force the laws, regulations or administrative provisions necessary to comply with it not later than 1 January 1973. The plaintiff contends that this Directive, even if it had been in force at the date of the shipment in question, would not have applied to the maize meal comprised in it because that maize meal was not comparable with feedingstuffs. This contention is merely recorded by the College in one sentence in its Order for Reference to this Court. The College does not say what view, if any, it has formed about it. Nor is the Court afforded any enlightenment on the matter by the parties or by the Commission. The latter does not mention it in its Observations and neither the plaintiff nor the defendant has submitted any Observations at all.

My Lords, so far as the shipment in question is concerned, the Regulation fixing the relevant rates of refund was Regulation (EEC) No 2410/70 of the Commission. By the combined effect of Article 1 of that Regulation and of the Annex thereto three different rates were fixed for maize meal. Maize meal of a fat content, referred to dry matter, not exceeding 1.3 % by weight and of a crude fibre content, referred to dry matter, not exceeding 0.8 % by weight was classified under No 11.02-A-V-(a) in the nomenclature used for refunds and the rate of refund for it was fixed at 4694 units of account per 100 kg. Maize meal of a fat content, referred to dry matter, exceeding 1.3 % but not exceeding 1.7 % by weight and of a crude fibre content, referred to dry matter, not exceeding 1 % by weight was classified under No 11.02-A-V-(b) in the nomenclature. The rate of refund for this was to be 3.99 units of account per 100 kg. Other maize meal was classified under No 11.02-A-V-(c) and the rate for it was fixed at 2905 units of account per 100 kg.

There is no dispute in the present case about the crude fibre content of the maize meal shipped by the plaintiff. It is common ground that this was below the 0.8 % limit required for the product to quality for classification under No 11.02A-V-(a). The whole dispute is as to its fat content.

That dispute has, it seems, arisen because different methods of analysis were adopted

1. by the analyst employed by the plaintiff, a Mr Sedney,

2. by the Dutch State laboratory for agricultural products, to which the Defendant had referred samples taken from the shipment, and

3. by the Norwegian State laboratory for agricultural products (the Statens Landbrukskjemiske Kontrollstasjon of Oslo) to which the Norwegian importer, itself a State trading institution, had also referred samples of the shipment.

The method of analysis adopted by Mr Sedney was that described in Annex 5 to the German Bundeszollblatt No 4. This was apparently the method then used by the German customs authorities and the plaintiff contends that it was the appropriate method to use in relation to its products, because these were produced according to German know-how. Be that as it may, Mr Sedney's tests, allegedly conducted according to this method, evinced that the maize meal comprised in the shipment in question had a fat content, referred to dry matter, of less than 1.3 %.

The tests conducted by the Dutch State laboratory for agricultural products evinced a different result. They suggested that the fat content of the maize meal in the shipment, referred to dry matter, was of about 1.5 %. These tests are alleged to have been conducted according to the method actually prescribed for feedingstuffs by the Second Commission Directive of 18 November 1971. As I have mentioned, the plaintiff contends that this method was inappropriate.

The Norwegian State laboratory used yet a different method. This was the method described in a document headed ‘Fettbestimmung in Getreide und Mahlprodukten’. Using this method, that laboratory detected, in the shipment in question, a fat content of less than 1.3 %. There is a slight doubt whether that rating referred to dry matter, but the probability is that it did.

It is in those circumstances that the College has referred to this Court questions formulated as follows:

‘Does the correct interpretation of Article 1 of Regulation (EEC) No 2410/70 of the Commission of 27 November 1970 — read in conjunction with Article 11 of Regulation No 1052/68 of the Council of 23 July 1968 — involve that so long as no effect has been given to the provision in Article 11 of Regulation No 1052/68, in conjunction with Article 26 of Regulation 120/67, for the determination of a method of assessing the fat content for the application of Regulation 1052/68, the fat content of products mentioned in the Annex to Regulation 2410/70 under Nos 11.02-A-V-(a) and 11.02-A-V-(b) must be determined according to the method for the assessment of crude fat described in the Annex to the Second Commission Directive of 18th November 1971 relating to the determination of common methods of analysis for the official control of feedingstuffs?

Furthermore, must the last-mentioned method be adopted exclusively or may other methods — e.g. the method adopted by the plaintiff as described in Annex 5 to Bundeszollblatt No 4 mentioned in the statement of facts, or the method adopted by the Statens Landbrukskjemiske Kontrollstasjon of Oslo as described in the document mentioned in the statement of facts entitled “Fettbestimmung in Getreide und Mahlprodukten” — also be adopted?’

My Lords, I do not, for my part, think that those questions give rise to much difficulty. An analogous question arose in Case 26/72 NV Vereenigde Oliefabrieken v Produktschap voor Margarine, Vetten en Olien (Rec. 1972, p. 1031), which is referred to by the Commission in its Observations. That authority is to my mind particularly helpful because it points the contrast between the legal position where Community legislation has laid down a particular test and the position where it has not. The dispute in the case was as to whether the plaintiff was entitled to a refund on a shipment of lard to Bolivia. The relevant Community legislation had prescribed the particular method of chemical analysis of the lard to be used in answering that question and the Court held that, that being so, that method must be used to the exclusion of all others. The legislation had not however laid down the method of sampling to be used and the Court held that_ it was accordingly for the competent national court to weigh the evidentiary value of any method used in the particular case, having regard on the one hand to the nature, characteristics and condition of the goods in question and on the other hand to the opportunities given to the exporter by the relevant national legislation to query and to check the results obtained by that method — and for that court then to decide upon the conclusions to be drawn therefrom.

In my opinion a similar answer should be given in the present case. The national court is here concerned to ascertain whether a particular product attained a prescribed standard. If the relevant Community legislation had laid down a specific chemical or other test by reference to which that question was to be answered, the national court would of course have been bound by that legislation. It need only, then, consider the results yielded by that test. But the position here being that the relevant legislation, at all events at the date of the shipment in question, left the matter at large, the court must treat the question as one of pure fact and approach it accordingly. This means that it must, in whatever way is appropriate under its own procedure, hear expert evidence about the respective merits and characteristics of the different tests in fact applied and, in the light of that evidence, and of all the other evidence about the case, make up its mind on the crucial question before it, which is not, at the end of the day, which more or less scientifically acceptable tests are to be regarded as legally acceptable, but whether the particular consignment of goods that the case is about attained the required standard.

I am therefore of the opinion that the questions referred to this Court by the College should be answered as follows:

‘The correct interpretation of Regulation (EEC) No 2410/70 of the Commission, taken in conjunction with Regulations No 120/67/EEC and (EEC) No 1052/68 of the Council, involves, at all events as regards exportations effected before the issue of the Second Commission Directive of 18 November 1971, that the fat content of products mentioned in the Annex to the firstmentioned Regulation under Nos 11.02-A-V-(a) and 11.02-A-V-(b) is to be determined in each particular case by the competent national court after weighing, among other things, the evidentiary value of any tests applied to the goods in question in that case.’