1.

In the course of a dispute over grant of the refund provided for under Regulation No 141/64/EEC of the Council of 21 October 1964 on exports to third countries of gluten flour produced from cereals other than the wheat referred to in tariff heading 11.09, questions have arisen over the interpretation to be given to Article 18 of the Regulation in the light of Article 3 (b) of Regulation No 163/64/EEC of the Commission of 29 October 1964, which lays down how the provisions of Article 18 are to be applied. Article 17 of Regulation No 141/64/EEC establishes a system of refunds to producers for maize and soft wheat used by the starch industry and Article 18 supplements it by providing that, in the calculation of the amount of the export refunds applicable to products covered by the Regulation, account must be taken of the refunds to producers provided in respect of the aforementioned raw materials. Article 3 (b) of the implementing Regulation, No 163/64 of the Commission provides that when a Member State grants a refund to producers, ‘the amount of the refund which may be granted on the export of the processed products referred to in Article 1 to third countries, shall be ascertained in accordance with the provisions of Article 15 of Regulation No 141/64/EEC; but the amount of the export refund which may be granted shall be reduced by the amount of the refund to producers granted by the exporting Member State on the date of exportation’. In May 1967, the firm whose owner is the plaintiff in the main action, exported gluten flour which it had produced from cereals other than wheat, the raw material used being a product imported from third countries under the description of ‘maize gluten-based fodder’, ( 2 ) which appears under tariff heading 23.03. The raw material did not come under any common organization of the market in agricultural products. It was not subject to any charge on entering the Community. When the gluten flour produced from this product was exported, the German intervention agency (Einfuhr- und Vorratsstelle für Getreide und Futtermittel) granted the plaintiff a refund calculated in accordance with Article 15 of Regulation No 141/64 and which therefore took maize prices specially into account, deducting, however, as required by the provision, already mentioned in Article 3 (b) of Regulation No 163/64, the amount of the refund to producers in respect of maize granted by the exporting State on the date of exportation. This export refund was DM 47.40 per metric ton. The plaintiff is on the other hand asking to be granted the full amount of the refund applicable at that time, viz DM 398 per metric ton: he maintains that there is no justification for the deduction in his case of the refund to producers in respect of maize, which he had not received because in producing the gluten flour he used a product for which no refunds were provided. Against the background of this dispute the Bundesfinanzhof asks the Court to rule whether Article 18 of Regulation No 141/64, taken together with Article 3 (b) of Regulation No 163/64, must be interpreted as meaning that, when no provision is made for a refund to producers on a product produced from maize and imported for the manufacture of gluten flour without being subject to levy on importation, account must nevertheless be taken of the refund to producers of starch from maize in calculating the amount of export refund which, at the material time, each State was, within limits laid down by the Community Regulations in force, entitled to grant its exporters. The Commission contends that the deduction must be applied in every case because of practical requirements and because of the general terms of the provision in Article 3 of Regulation No 163/64, which precludes any direct connection between the costs of production and the amount of the refund to producers to be taken into account in calculating the export refund.