VAN BEROEP VOOR HET BEDRIJFSLEVEN . IT ARGUED , FIRST , THAT THE AFOREMENTIONED PIECES , CUT IN THE FORM OF A PISTOL AND ATTACHED TO THE PIECES OF BREAST , WERE NOT TO BE REGARDED AS FORMING PART OF THE ' ' THIN FLANK ' ' AND , SECONDLY , THAT THE REFUNDS OUGHT IN ANY CASE TO BE CALCULATED ACCORDING TO THE TOTAL WEIGHT OF THE MEAT EXPORTED LESS THE PROPORTION OF ' ' THIN FLANK ' ' THAT IT COMPRISED , SO THAT EVEN THE EXPORTATION OF PIECES OF BREAST OF BOVINE ANIMALS TO WHICH PIECES OF THIN FLANK WERE ATTACHED WOULD ATTRACT A PROPORTIONATE REFUND .
6 TO ENABLE IT TO GIVE JUDGMENT THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
1 . ON A CORRECT INTERPRETATION OF HEADING 02.01 A II 4 . EX ( BB ) OF THE COMMON CUSTOMS TARIFF WHAT IS TO BE UNDERSTOOD BY ' ' THIN FLANK ' ' AND HOW MAY ' ' THIN FLANK ' ' , WHICH DOES NOT FALL WITHIN THAT TARIFF HEADING , BE DISTINGUISHED FROM BONED OR BONELESS CUTS , WHICH DO?
2.DOES THE CORRECT INTERPRETATION OF REGULATION NO 2787/81 MEAN THAT NO REFUND MAY BE GRANTED IN RESPECT OF THE EXPORT TO NON-MEMBER COUNTRIES OF A BONED OR BONELESS CUT IF A PIECE OF ' ' THIN FLANK ' ' IS ATTACHED TO IT , OR DOES IT MEAN RATHER THAT IN SUCH A CASE THE REFUND MUST BE GRANTED ON THE BASIS OF THE TOTAL WEIGHT OF THE MEAT EXPORTED LESS THE WEIGHT OF THE ' ' THIN FLANK ' ' ?
THE FIRST QUESTION
7 THE PURPOSE OF THE FIRST QUESTION IS TO ESTABLISH A PRECISE DEFINITION OF THE CUT OF MEAT FROM BOVINE ANIMALS WHICH IS DESIGNATED ' ' THIN FLANK ' ' IN THE LIST ANNEXED TO COMMISSION REGULATION NO 2787/81 .
8 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION , IN THEIR WRITTEN OBSERVATIONS TO THE COURT , AND EKRO , IN ITS SUBMISSIONS IN THE MAIN PROCEEDINGS , HAVE EACH ARGUED IN FAVOUR OF A DIFFERENT ANATOMICAL DEFINITION OF THE CUT IN QUESTION , EXPLAINING , WHERE NECESSARY WITH THE AID OF DRAWINGS , WHERE THAT PART OF THE ABDOMINAL WALL IS SITUATED IN RELATION TO THE HINDQUARTERS AND FOREQUARTERS OF A BOVINE CARCASE AND IN RELATION TO THE RIBS AND BREAST .
9 IT WAS ARGUED BY THE BOARD AND BY THE COMMISSION , IN ITS ORAL OBSERVATIONS , THAT FOR THE DEFINITION OF THE CUT IN QUESTION THE AUTHORITIES IN EACH MEMBER STATE SHOULD REFER TO THE CUSTOMS AND PRACTICES EXISTING IN THAT STATE AS REGARDS THE CUTTING AND BONING OF BOVINE CARCASES . THE COMMISSION ADDED , HOWEVER , THAT IN DOING SO THEY MUST PAY HEED TO THE PURPOSE OF THE REFUND SYSTEM SET UP BY THE COMMUNITY REGULATIONS .
10 IT IS CLEAR FROM THE EVIDENCE BEFORE