Judgment of the Court of 5 December 1973. - E. Kampffmeyer v Einfuhr- und Vorratsstelle für Getreide und Futtermittel. - Reference for a preliminary ruling: Hessisches Finanzgericht - Germany. - Turnover equalization tax. - Case 124-73.



European Court reports 1973 Page 01395

Greek special edition Page 00803

Portuguese special edition Page 00531



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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AGRICULTURE - COMMON ORGANIZATION OF MARKETS - CEREALS - PROCESSED PRODUCTS - TAPIOCA - DENATURED FLOUR - LEVY - CALCULATION - TURNOVER EQUALIZATION TAX LEVIED ON IMPORT - COSTS OF EOSINATION - INCLUSION IN THE CALCULATION - PROHIBITION

( REGULATION NO 19 OF THE COUNCIL, ARTICLE 14 ( 1 ) ( A ); REGULATION NO 55 OF THE COUNCIL, ARTICLE 7 )

Summary

THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) ( B ) OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 READ IN CONJUNCTION WITH THOSE OF ARTICLE 7 ( 2 ) OF REGULATION NO 55 OF THE COUNCIL OF THE EEC OF 30 JUNE 1962 ARE TO BE INTERPRETED AS MEANING THAT NEITHER THE AMOUNT OF THE TURNOVER EQUALIZATION TAX LEVIED ON IMPORT NOR THE COSTS OF EOSINATION ARE TO BE DEDUCTED FROM THE LEVY APPLICABLE TO " DENATURED TAPIOCA FLOUR ", UNDER COMMON CUSTOMS TARIFF HEADING NO 11.06 .

Parties

IN CASE 124/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HESSISCHES FINANZGERICHT ( VIITH SENATE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

E . KAMPFFMEYER, HAMBURG,

AND

EINFUHR - UND VORRATSSTELLE FUER GETREIDE UND FUTTERMITTEL, FRANKFURT/MAIN,

Subject of the case

ON THE INTERPRETATION OF THE PROVISIONS OF ARTICLE 14 OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ( OJ 1962, NO 30 ) TAKEN TOGETHER WITH THOSE OF ARTICLE 7 OF REGULATION NO 55 OF THE COUNCIL OF 30 JUNE 1962 ( OJ 1962, NO 54 ), RELATING TO THE SET-OFF OF THE TURNOVER EQUALIZATION TAX AND OF COSTS INVOLVED IN EOSINATION FOR THE PURPOSES OF CALCULATING THE LEVY APPLICABLE TO PRODUCTS PROCESSED FROM CEREALS,

Grounds

1 BY ORDER DATED 27 MARCH 1973, FILED AT THE REGISTRY OF THE COURT OF JUSTICE ON 17 APRIL 1973, THE HESSISCHES FINANZGERICHT, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, REFERRED TWO QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962, ON THE GRADUAL ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ 1962, NO 30 ), AND OF REGULATION NO 55 OF THE COUNCIL OF 30 JUNE 1962, ON THE SYSTEM FOR PRODUCTS PROCESSED FROM CEREALS ( OJ 1962, NO 34 ).

2 THE FIRST QUESTION ASKS WHETHER THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) ( B ) OF REGULATION NO 19/62 IN CONJUNCTION WITH THOSE OF ARTICLE 7 ( 2 ) OF REGULATION NO 55/62 ARE TO BE INTERPRETED IN SUCH A WAY THAT FROM THE LEVY FOR " DENATURED TAPIOCA FLOUR " ( TAPIOKAMEHL ) UNDER NO 11.06 OF THE COMMON CUSTOMS TARIFF, THE AMOUNT OF THE TURNOVER EQUALIZATION TAX LEVIED ON IMPORTS OF DENATURED TAPIOCA FLOUR AND THE COSTS OF EOSINATION ARE TO BE DEDUCTED .

IN THE EVENT OF THIS QUESTION BEING ANSWERED IN THE AFFIRMATIVE, THE COURT IS REQUESTED TO STATE UNDER WHAT PROVISIONS, IN WHAT FORM AND IN WHAT AMOUNT THE TURNOVER EQUALIZATION TAX TAKEN INTO ACCOUNT IN DETERMINING THE THRESHOLD PRICE FOR BARLEY WOULD THEN HAVE TO BE BROUGHT INTO THE CALCULATION, WHEN THE LEVY FOR " DENATURED TAPIOCA FLOUR ", UNDER ARTICLE 7 ( 2 ) OF REGULATION NO 55/62, HAS BEEN CALCULATED ON THE BASIS OF THE THRESHOLD PRICE FOR BARLEY .

3 THESE QUESTIONS ARE CONCERNED WITH THE CALCULATION OF THE LEVY TO BE APPLIED TO " DENATURED TAPIOCA FLOUR ", COVERED BY THE TERM " PROCESSED PRODUCTS " IN ARTICLE 1 ( D ) AND IN THE ANNEX TO REGULATION NO 19/62 .

THIS LEVY, CALCULATED PURSUANT TO ARTICLE 14 OF THE SAID REGULATION, WAS MADE UP OF TWO COMPONENTS, ONE VARIABLE, THE OTHER FIXED .

AS REGARDS PROCESSED PRODUCTS WHICH DO NOT CONTAIN THE BASIC PRODUCTS LISTED IN ARTICLE 1 ( A ), THE VARIABLE COMPONENT OF THE LEVY WAS FIXED, PURSUANT TO ARTICLE 14 ( 1 ) ( A ) ( B ), TAKING ACCOUNT OF MARKET CONDITIONS FOR PROCESSED PRODUCTS MANUFACTURED FROM THE ABOVE-MENTIONED BASIC PRODUCTS AND WHICH ARE MOST SIMILAR THERETO .

FOR THIS PURPOSE ARTICLE 7 ( 2 ) LAID DOWN THAT, FOR THE PROCESSED PRODUCTS LISTED IN THE ANNEX TO REGULATION NO 19/62 UNDER THE COMMON CUSTOMS TARIFF HEADING NO 11.06, INCLUDING " TAPIOCA FLOUR ", THE VARIABLE COMPONENT FOR 100 KG OF EACH OF THESE PRODUCTS IS EQUAL, ARTICLE 2 ( 4 ) NOTWITHSTANDING, TO THE LEVY TO BE APPLIED TO 40 KG OF BARLEY, WHERE THE PROCESSED PRODUCT HAS BEEN SUBJECTED TO A DENATURING PROCESS .

UNDER THE TERMS OF PARAGRAPH ( 3 ) ( B ) OF THE SAME ARTICLE THE FIXED COMPONENT OF THE LEVY TO BE APPLIED TO SUCH PRODUCTS, WHICH INCLUDE " DENATURED TAPIOCA FLOUR ", WAS FIXED AT ZERO .

4 THE RESULT OF THESE PROVISIONS IS THAT, CONTRARY TO THE SYSTEM INSTITUTED BY ARTICLE 10 ( 2 ) OF REGULATION NO 19/62, WHERE THE LEVY MAY BE VARIED IN PROPORTION TO THE DIFFERENCES WHICH EXIST BETWEEN C.I.F . PRICES AND THRESHOLD PRICES, THE SYSTEM INSTITUTED BY ARTICLE 14 OF THE SAME REGULATION AND BY ARTICLE 7 OF REGULATION NO 55/62 PROVIDES FOR THE APPLICATION OF A LEVY, THE AMOUNT OF WHICH IS CALCULATED WITH REFERENCE TO PREDETERMINED CRITERIA, NAMELY, ON THE ONE HAND, THE LEVY APPLICABLE TO BARLEY, AND ON THE OTHER HAND, THE FIXED RATE WHICH WAS ESTABLISHED BY THE AUTHORS OF THE REGULATION .

IN THE CONTEXT OF THIS SYSTEM, OF WHICH THE CHIEF CHARACTERISTIC IS A LEVY THE CALCULATION OF WHICH IS FIXED IN ITS ENTIRETY BY COMMUNITY REGULATIONS, IT IS NOT THEREFORE OPEN TO THE MEMBER STATES TO VARY THE AMOUNT OF THE LEVY, BY MEANS OF CALCULATIONS WHICH ARE NOT LAID DOWN BY THE AUTHORS OF THE REGULATIONS, AND FOR EXAMPLE TO DEDUCT FROM THE SAID AMOUNT THE TURNOVER EQUALIZATION TAX .

SUCH A DEDUCTION WOULD ALTER THE RATE OF THE FIXED AND VARIABLE COMPONENTS OF THE LEVY, AS DIRECTLY OR INDIRECTLY CALCULATED BY REGULATION NO 55/62 .

FURTHERMORE, AS REGARDS THE INCLUSION IN THE CALCULATION OF THE COSTS OF EOSINATION, ARTICLE 7 ( 2 ) AND ( 3 ) ( B ) OF REGULATION NO 55/62 PROVIDED FOR A LEVY ON " DENATURED TAPIOCA FLOUR " DIFFERENT FROM THAT FIXED BY PARAGRAPHS ( 1 ) AND ( 3 ) ( A ) OF THE SAME ARTICLE FOR THE SAME PROCESSED PRODUCTS WHICH HAD NOT UNDERGONE A DENATURING PROCESS .

THE OUTCOME OF THESE REGULATIONS IS THAT THE LEVY SYSTEM ESTABLISHED BY ARTICLE 7 ALREADY TOOK ACCOUNT OF DIFFERENCES WHICH EXIST IN THE PROCESSED PRODUCT AS REGARDS QUALITY AND SUBSEQUENT USE, WHETHER THE PRODUCT HAD UNDERGONE A DENATURING PROCESS OR NOT .

THEREFORE THE COSTS OF EOSINATION COULD NOT BE SET OFF AGAINST THE LEVY TO BE APPLIED PURSUANT TO ARTICLE 7 ( 2 ) AND ( 3 ) ( B ) OF REGULATION NO 55/62 .

5 ACCORDINGLY THE FIRST QUESTION SHOULD BE ANSWERED TO THE EFFECT THAT THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) ( B ) OF REGULATION NO 19/62 READ IN CONJUNCTION WITH THOSE OF ARTICLE 7 ( 2 ) OF REGULATION NO 55/62, ARE TO BE INTERPRETED AS MEANING THAT NEITHER THE AMOUNT OF THE TURNOVER EQUALIZATION TAX LEVIED ON IMPORT NOR THE COSTS OF EOSINATION ARE TO BE DEDUCTED FROM THE LEVY APPLICABLE TO " DENATURED TAPIOCA FLOUR ", UNDER COMMON CUSTOMS TARIFF HEADING NO 11.06 .

6 THE FIRST QUESTION HAVING BEEN ANSWERED IN THE NEGATIVE THE SECOND QUESTION DOES NOT ARISE .

Decision on costs

7 THE COSTS INCURRED BY THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF 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 HESSISCHES FINANZGERICHT BY ORDER OF THAT COURT DATED 27 MARCH 1973, HEREBY RULES :

THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) ( B ) OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 READ IN CONJUNCTION WITH THOSE OF ARTICLE 7 ( 2 ) OF REGULATION NO 55 OF THE COUNCIL OF THE EEC OF 30 JUNE 1962 ARE TO BE INTERPRETED AS MEANING THAT NEITHER THE AMOUNT OF THE TURNOVER EQUALIZATION TAX LEVIED ON IMPORT NOR THE COSTS OF EOSINATION ARE TO BE DEDUCTED FROM THE LEVY APPLICABLE TO " DENATURED TAPIOCA FLOUR ", UNDER COMMON CUSTOMS TARIFF HEADING NO 11.06 .