1 BY AN ORDER OF 31 JULY 1980 WHICH WAS RECEIVED AT THE COURT ON 6 OCTOBER 1980 THE HIGH COURT OF IRELAND REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS CONCERNING THE INTERPRETATION OF CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF AND OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 ( OFFICIAL JOURNAL L 139 , P . 37 ) LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE MONETARY COMPENSATORY AMOUNTS INTRODUCED BY REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OFFICIAL JOURNAL ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ) IN ORDER TO RESOLVE A DIFFICULTY CONCERNING TARIFF CLASSIFICATION AND CERTAIN RULES GOVERNING THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS .
2 ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL , AS AMENDED BY REGULATION NO 1112/73 OF THE COUNCIL OF 30 APRIL 1973 ( OFFICIAL JOURNAL L 114 , P . 4 ), PROVIDES THAT : ' ' WHERE A PRODUCT EXPORTED FROM ONE MEMBER STATE HAS BEEN IMPORTED INTO A MEMBER STATE WHICH HAS TO GRANT A COMPENSATORY AMOUNT UPON IMPORTATION , THE EXPORTING MEMBER STATE MAY , BY AGREEMENT WITH THE IMPORTING MEMBER STATE , PAY THE COMPENSATORY AMOUNT WHICH SHOULD BE GRANTED BY THE SAID IMPORTING MEMBER STATE . IN THIS CASE NO COMPENSATORY AMOUNT SHALL BE GRANTED BY THE IMPORTING MEMBER STATE FOR PRODUCTS ORIGINATING IN THE MEMBER STATE CONCERNED . . . . ' '
3 DETAILED RULES FOR THE APPLICATION OF THAT PROVISION WERE LAID DOWN IN REGULATION NO 1380/75 OF THE COMMISSION , IN PARTICULAR IN ARTICLE 10 A THEREOF , WHICH WAS INSERTED BY COMMISSION REGULATION ( EEC ) NO 1556/77 OF 11 JULY 1977 ( OFFICIAL JOURNAL L 173 , P . 10 ), AND IN ARTICLE 11 . DURING THE PERIOD IN QUESTION PARAGRAPH ( 2 ) OF THE LATTER ARTICLE PROVIDED , INTER ALIA , THAT : ' ' PAYMENT BY THE EXPORTING MEMBER STATE OF THE MONETARY COMPENSATORY AMOUNT WHICH SHOULD BE GRANTED BY THE IMPORTING MEMBER STATE SHALL BE CONDITIONAL UPON THE PRODUCTION OF PROOF THAT CUSTOMS IMPORT FORMALITIES HAVE BEEN COMPLETED AND THAT THE DUTIES AND CHARGES HAVING EQUIVALENT EFFECT PAYABLE IN THE IMPORTING MEMBER STATE HAVE BEEN CHARGED . THIS PROOF SHALL BE FURNISHED BY PRODUCTION OF THE CONTROL COPY PROVIDED FOR IN ARTICLE 1 OF REGULATION ( EEC ) NO 2315/69 . . . ' ' .
4 THE FILE ON THE CASE SHOWS THAT BETWEEN 20 MARCH 1978 AND 28 APRIL 1979 THE PLAINTIFF IN THE MAIN ACTION EXPORTED BEEF FROM IRELAND TO THE UNITED KINGDOM . DURING THAT PERIOD MONETARY COMPENSATORY AMOUNTS WERE CHARGED ON THE BEEF EXPORTED FROM IRELAND AND WERE GRANTED , AT A HIGHER RATE , ON IMPORTATION INTO THE UNITED KINGDOM OF THE GOODS IN QUESTION . AT THE MATERIAL TIME COLLECTION AND PAYMENT OF THOSE AMOUNTS WAS GOVERNED , AS BETWEEN THE UNITED KINGDOM AND IRELAND , BY THE RULES LAID DOWN IN ARTICLE 2 A OF REGULATION NO 974/1 ; PURSUANT TO THOSE RULES MONETARY COMPENSATORY AMOUNTS APPLICABLE TO IMPORTS INTO THE UNITED KINGDOM WERE PAID , WITH THE AGREEMENT OF THAT MEMBER STATE , DIRECTLY BY THE AUTHORITIES IN IRELAND , THE EXPORTING MEMBER STATE .
5 THE GOODS EXPORTED TO THE UNITED KINGDOM BY THE PLAINTIFF IN THE MAIN ACTION CONSISTED OF CHILLED FOREQUARTERS OF BEEF FROM WHICH THE ATLAS BONE HAD BEEN REMOVED . THE IRISH AUTHORITIES CLASSIFIED THE GOODS UNDER SUBEADING 4 AA OF HEADING 02.01 A II ( A ) OF THE COMMON CUSTOMS TARIFF AS ' ' BONE-IN CUTS ' ' AND CHARGED THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO EXPORTS OF SUCH GOODS .
6 THE BRITISH AUTHORITIES APPLIED A DIFFERENT TARIFF CLASSIFICATION AND CLASSIFIED THE SAID GOODS ON IMPORTATION INTO THE UNITED KINGDOM UNDER SUBHEADING 2 BB OF THE SAME TARIFF HEADING AS SEPARATED OR UNSEPARATED FOREQUARTERS ' ' OTHER ' ' THAN THOSE REFERRED TO IN SUBHEADING 1 AA . SUBHEADING 2 BB , COVERING SUCH ' ' OTHER ' ' QUARTERS , PROVIDED AT THE TIME IN QUESTION FOR PAYMENT OF MONETARY COMPENSATORY AMOUNTS ON IMPORTATION AT A RATE LOWER THAN THOSE APPLICABLE TO ' ' BONE-IN CUTS ' ' .
7 IN VIEW OF THE TARIFF CLASSIFICATION OF THE GOODS ADOPTED BY THE BRITISH CUSTOMS AUTHORITIES THE IRISH INTERVENTION AGENCY RESPONSIBLE FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS PAID THE PLAINTIFF THE AMOUNTS APPLICABLE ON IMPORTATION INTO THE UNITED KINGDOM WHICH CORRESPONDED TO THAT TARIFF CLASSIFICATION AND NOT TO THE CLASSIFICATION ADOPTED ON EXPORTATION BY THE IRISH CUSTOMS AUTHORITIES .
8 IN THE MEANTIME THE COMMISSION , TO WHICH THE UNITED KINGDOM HAD REFERRED A QUESTION CONCERNING THE TARIFF CLASSIFICATION OF SUCH GOODS , INVESTIGATED THE PROBLEM . BY MEANS OF REGULATION NO 745/79 OF 11 APRIL 1979 ( OFFICIAL JOURNAL L 95 , P . 1 ) THE COMMISSION LAID DOWN A NEW METHOD FOR CALCULATING MONETARY COMPENSATORY AMOUNTS WHEREBY THE AMOUNTS APPLICABLE TO THE TWO TARIFF SUBHEADINGS IN QUESTION WERE IDENTICAL . SUBSEQUENTLY , BY MEANS OF REGULATION NO 936/79 OF 11 MAY 1979 ( OFFICIAL JOURNAL L 117 , P . 19 ), IT RESOLVED THE QUESTION OF THE TARIFF CLASSIFICATION OF SUCH PRODUCTS BY DECIDING THAT THEY MUST BE CLASSIFIED IN SUBHEADING 02 . 01 A II ( A ) 4 AA .
9 THE PLAINTIFF IN THE MAIN ACTION CHALLENGED THE CORRECTNESS OF THE DECISION OF THE IRISH NATIONAL AUTHORITIES TO PAY IT THE MONETARY COMPENSATORY AMOUNTS APPLICABLE ON IMPORTATION INTO THE UNITED KINGDOM CORRESPONDING TO TARIFF SUBHEADING 02.01 A II ( A ) 2 BB , THE SUBHEADING APPLIED BY THE BRITISH AUTHORITIES . IT MAINTAINED IN PARTICULAR THAT FOR THE PURPOSES OF ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL THE EXPORTING MEMBER STATE IS BOUND BY THE TARIFF CLASSIFICATION ADOPTED BY THE IMPORTING MEMBER STATE ONLY UNTIL SUCH TIME AS THE COMMISSION ADOPTS AN OFFICIAL VIEW ON THE POINT OR A DECISION IS GIVEN BY THE COURT OF JUSTICE STATING WHICH TARIFF CLASSIFICATION IS TO BE APPLIED TO THE GOODS IN QUESTION . THAT APPLIES , IN ITS OPINION , IN THE PRESENT CASE , AND THEREFORE THE DIFFICULTY CONCERNING TARIFF CLASSIFICATION WHICH IS THE SUBJECT OF THE PROCEEDINGS MUST BE RESOLVED IN THE LIGHT OF THE ABOVE MENTIONED COMMISSION REGULATION NO 936/69 AND IN ACCORDANCE WITH THE JUDGMENT TO BE DELIVERED BY THE COURT OF JUSTICE IN THE PRESENT PROCEEDINGS .
10 THE DEFENDANT IN THE MAIN ACTION CONTENDED THAT THE DECISION WHICH IT TOOK TO PAY THE MONETARY COMPENSATORY AMOUNTS APPROPRIATE TO THE TARIFF CLASSIFICATION ADOPTED BY THE BRITISH AUTHORITIES WAS WHOLLY IN CONFORMITY WITH THE PROVISIONS OF REGULATION NO 1380/75 OF THE COMMISSION , IN PARTICULAR ARTICLES 10 A AND 11 THEREOF .
11 IN ORDER TO RESOLVE THE DISPUTE THE HIGH COURT OF IRELAND , BEFORE WHICH THE ACTION WAS BROUGHT , REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING : ' ' 1 . ARE THE PROVISIONS OF THE COMMON CUSTOMS TARIFF OF THE EUROPEAN COMMUNITIES ( AS CONTAINED IN COUNCIL REGULATION ( EEC ) NO 950/68 , AS AMENDED ) TO BE INTERPRETED IN RESPECT OF THE PERIOD BETWEEN 20 MARCH 1978 AND 20 APRIL 1979 AS REQUIRING A SEPARATED FOREQUARTER OF BEEF IN A CHILLED STATE FROM WHICH THE ATLAS BONE HAD BEEN REMOVED , TO BE ENTERED FOR CUSTOMS PURPOSES UNDER HEADING 02.01 A II ( A ) 4 AA AND TO BE DEALT WITH ACCORDINGLY IN THE CALCULATION OF MONETARY COMPENSATORY AMOUNTS LEVIED UPON EXPORT OR GRANTED UPON IMPORT IN TRADE BETWEEN THE MEMBER STATES? 1 - TRANSLATOR ' S NOTE : IT APPEARS FROM THE FILE THAT THIS SECOND DATE SHOULD IN FACT BE UNDERSTOOD AS BEING 28 APRIL 1979 . 2.IF THE ANSWER TO QUESTION 1 ABOVE IS IN THE AFFIRMATIVE , ARE THE PROVISIONS OF ARTICLE 10A AND ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 TO BE INTERPRETED AS PLACING UPON THE DEFENDANT AN OBLIGATION TO GRANT TO THE PLAINTIFF A MONETARY COMPENSATORY AMOUNT AT THE RATE APPLICABLE TO THE TARIFF HEADING IN QUESTION RATHER THAN AT THE RATE APPLICABLE TO A DIFFERENT HEADING NOTIFIED IN ACCORDANCE WITH ARTICLE 10 A ( 4 ) AS HAVING BEEN USED FOR RELEASE OF THE GOODS IN QUESTION UPON IMPORT IN THE MEMBER STATE OF DESTINATION? 3.IF THE ANSWER TO EITHER OF THE QUESTIONS ABOVE IS IN THE NEGATIVE , ARE THE SAID PROVISIONS OF REGULATION NO 1380/75 TO BE INTERPRETED AS IMPOSING UPON THE DEFENDANT AN OBLIGATION TO REFUND TO THE PLAINTIFF THE EXCESS MONETARY COMPENSATORY AMOUNTS LEVIED UPON THE EXPORT OF THE SAID GOODS FROM IRELAND AND ATTRIBUTABLE TO THE APPLICATION OF TARIFF HEADING 02.01 A II ( A ) 4 AA? ' ' QUESTION 1
12 THE FIRST PROBLEM RAISED BY THE NATIONAL COURT IN QUESTION 1 CONCERNS THE TARIFF CLASSIFICATION OF THE PRODUCTS INVOLVED IN THE DISPUTE ON THE BASIS OF THE PROVISIONS OF THE COMMON CUSTOMS TARIFF WHICH WERE APPLICABLE AT THE TIME IN QUESTION , AS PROVIDED FOR BY COUNCIL REGULATIONS NO 2500/77 OF 7 NOVEMBER 1977 ( OFFICIAL JOURNAL L 289 ) AND NO 2800/78 OF 27 NOVEMBER 1978 ( OFFICIAL JOURNAL L 335 )
13 ACCORDING TO THE ORDER MAKING THE REFERENCE TO THE PRODUCT THE TARIFF CLASSIFICATION OF WHICH IS DISPUTED CONSISTS OF CHILLED SEPARATED FOREQUARTERS OF BEEF FROM WHICH THE ATLAS BONE , A SMALL BONE OF APPROXIMATELY 500 GRAMMES IN WEIGHT SITUATED IN THE NECK OF THE ANIMAL , HAS BEEN REMOVED .
14 UNDER THE PROVISIONS OF THE COMMON CUSTOMS TARIFF WHICH WERE IN FORCE AT THE MATERIAL TIME FRESH OR CHILLED ' ' SEPARATED OR UNSEPARATED FOREQUARTERS ' ' OF BEEF FALL UNDER TARIFF SUBHEADING 02.01 A II ( A ) 2 , SUBPARAGRAPHS AA AND BB OF WHICH DISTINGUISH BETWEEN QUARTERS WHICH HAVE SPECIFIC CHARACTERISTICS AS REGARDS THEIR WEIGHT , THE DEGREE OF OSSIFICATION AND THE COLOUR OF CERTAIN ESSENTIAL COMPONENTS , AND ' ' OTHER ' ' QUARTERS .
15 SINCE THE DESCRIPTION OF THE GOODS COVERED BY THAT TARIFF SUBHEADING CONTAINS NO DETAILS REGARDING ITS APPLICATION IN RESPECT OF SEPARATED FOREQUARTERS WHICH DO NOT CONTAIN ALL THE BONES OF THAT PORTION OF THE ANIMAL ITS SCOPE MUST BE DETERMINED IN THE LIGHT OF THE INTERPRETATIVE CRITERIA LAID DOWN BY THE COMMON CUSTOMS TARIFF .
16 IT APPEARS FROM THE ADDITIONAL NOTES ON CHAPTER 2 OF THE COMMON CUSTOMS TARIFF , IN PARTICULAR NOTE 1 A ( E ), THAT ' ' SEPARATED FOREQUARTERS ' ' FOR THE PURPOSES OF , INTER ALIA , THE SUBHEADING IN QUESTION , MEANS THE FRONT PART OF A HALF CARCASE ' ' COMPRISING ALL THE BONES AND THE SCRAG , NECK AND SHOULDER , WITH A MINIMUM OF FOUR RIBS AND A MAXIMUM OF TEN RIBS . . . WITH OR WITHOUT THE THIN FLANK ' ' .
17 THE EXPRESSION ' ' COMPRISING ALL THE BONES ' ' WHICH APPEARS IN THAT NOTE CANNOT BE INTERPRETED AS REFERRING EXCLUSIVELY TO THE RIBS AND NOT TO THE NECK BONES . THE VERY FACT THAT THE NOTE ITSELF EXPRESSLY STIPULATES THE MINIMUM AND MAXIMUM NUMBER OF RIBS WHICH MUST BE PRESENT IN THE PORTION OF THE ANIMAL IN QUESTION IMPLIES THAT THAT EXPRESSION REFERS NOT TO THE RIBS BUT TO THE OTHER BONES , INCLUDING THE NECK BONES .
18 IN VIEW OF THAT DEFINITION OF THE PRODUCTS WHICH FALL WITHIN SUBHEADING 02.01 A II ( A ) 2 BB THE POSSIBILITY OF CLASSIFYING IN THAT SUBHEADING SEPARATED QUARTERS SUCH AS THOSE IN THE PRESENT INSTANCE FROM WHICH A NECK BONE , EVEN A SMALL ONE , HAS BEEN REMOVED , MUST BE EXCLUDED .
19 FROM THE GENERAL RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF , IN PARTICULAR RULE 3 ( C ) THEREOF , IT IS EVIDENT THAT ONLY TARIFF SUBHEADING 02.01 A II ( A ) 4 , WHICH COVERS PRODUCTS ' ' OTHER ' ' THAN CARCASES , HALF CARCASES , FOREQUARTERS AND HINDQUARTERS , IS RELEVANT FOR THE PURPOSES OF THE TARIFF CLASSIFICATION OF THE SAID PRODUCTS . IN VIEW OF THE FACT THAT SUBPARAGRAPHS AA AND BB OF THAT SUBHEADING COVER ' ' UNBONED ( BONE-IN ) ' ' CUTS OR ' ' BONED OR BONELESS ' ' CUTS RESPECTIVELY , AND THAT THESE PRODUCTS HAVE BEEN ONLY PARTLY BONED , BY THE REMOVAL OF ONE SMALL BONE IN THE NECK , THE MOST APPROPRIATE TARIFF CLASSIFICATION UNDER THE COMMON CUSTOMS TARIFF MUST THEREFORE BE IN THE PRESENT CASE THAT OF ' ' UNBONED ( BONE-IN ) ' ' CUTS WITHIN THE MEANING OF SUBHEADING 02.01 A II ( A ) 4 AA .
20 THE NATIONAL COURT THEN ASKS WHETHER , THAT BEING THE TARIFF CLASSIFICATION APPLICABLE TO THE GOODS IN QUESTION , THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO SUCH GOODS WERE TO BE AT THE RATE APPROPRIATE TO THAT CLASSIFICATION .
21 AS THE COURT HAS CONFIRMED IN PAST DECISIONS ( JUDGMENT OF 4 JULY 1978 IN CASE 5/78 , MILCHFUTTER , 1978 ECR 1597 ); JUDGMENT OF 28 MARCH 1979 IN CASE 158/78 , BIEGI , 1979 ECR 1103 ), IN THE ABSENCE OF EXPRESS PROVISIONS IT WOULD BE INAPPROPRIATE FOR THE HEADINGS OF THE COMMON CUSTOMS TARIFF TO BE APPLIED DIFFERENTLY FOR ONE AND THE SAME PRODUCT DEPENDING ON WHETHER THE CLASSIFICATION IS FOR THE IMPOSITION OF CUSTOMS DUTIES , THE APPLICATION OF THE RULES OF THE COMMON ORGANIZATIONS OF THE MARKET OR THOSE OF THE SYSTEM OF COMPENSATORY AMOUNTS .
22 IN THOSE CIRCUMSTANCES THE REPLY TO THE FIRST QUESTION MUST BE THAT THE PROVISIONS OF THE COMMON CUSTOMS TARIFF WHICH WERE IN FORCE DURING THE PERIOD FROM 20 MARCH 1978 TO 28 APRIL 1979 MUST BE INTERPRETED AS MEANING THAT FRESH OR CHILLED SEPARATED FOREQUARTERS OF BEEF OR VEAL FROM WHICH THE ATLAS BONE HAS BEEN REMOVED ARE TO BE CLASSIFIED IN SUBHEADING 02.01 A II ( A ) 4 AA AND TO BE SUBJECT TO THE MONETARY COMPENSATORY AMOUNT APPROPRIATE TO SUCH CLASSIFICATION . QUESTION 2
23 IN ITS SECOND QUESTION THE NATIONAL COURT WISHES IN ESSENCE TO KNOW WHETHER , WHEN THE TRADER HAS COMPLETED THE EXPORT FORMALITIES LAID DOWN IN ARTICLE 10 A OF REGULATION NO 1380/75 OF THE COMMISSION AND WHERE PROOF OF COMPLETION OF THE FORMALITIES ON IMPORTATION HAS BEEN FURNISHED IN THE CIRCUMSTANCES LAID DOWN IN ARTICLE 11 ( 2 ) OF THAT REGULATION , THE EXPORTING MEMBER STATE IS BOUND AS FAR AS PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS ON IMPORTATION IS CONCERNED BY THE TARIFF CLASSIFICATION , PERHAPS DIFFERENT FROM THAT APPLIED BY ITSELF , WHICH HAS BEEN ADOPTED BY THE MEMBER STATE OF IMPORTATION AND OF WHICH IT HAS BEEN NOTIFIED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 10 A ( 4 ) OF THE ABOVEMENTIONED REGULATION .
24 THE PLAINTIFF IN THE MAIN ACTION HAS OBSERVED , INTER ALIA , THAT WHILST IT IS TRUE THAT THE RULES LAID DOWN IN ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL , AS AMENDED BY REGULATION NO 1112/73 OF THE COUNCIL , PROVIDE THAT THE EXPORTING MEMBER STATE MAY NOT SUBSTITUTE ITS OWN TARIFF CLASSIFICATION FOR THAT ADOPTED BY THE IMPORTING MEMBER STATE , NEVERTHELESS THE SAID MEMBER STATE IS NOT BOUND TO APPLY THE CLASSIFICATION ADOPTED BY THE IMPORTING MEMBER STATE IF THE LATTER CLASSIFICATION IS FOUND , IN THE LIGHT OF A COMMISSION REGULATION CONCERNING INTERPRETATION OR A DECISIONS OF THE COURT OF JUSTICE CONCERNING THE CLASSIFICATION APPLICABLE TO THE PRODUCTS IN QUESTION , TO BE INCONSISTENT WITH THE COMMON CUSTOMS TARIFF . THAT IS THE CASE HERE , ACCORDING TO THE PLAINTIFF , IN CONSIDERATION OF BOTH COMMISSION REGULATION NO 936/79 PROVIDING FOR TARIFF CLASSIFICATION OF THE PRODUCTS IN QUESTION IN SUBHEADING 02.01 A II ( A ) 4 AA AND THE JUDGMENT OF THE COURT OF JUSTICE TO WHICH THE PRESENT PROCEEDINGS REGARDING THE TARIFF CLASSIFICATION APPLICABLE TO THE PRODUCTS IN QUESTION HAVE BEEN REFERRED , SHOULD IT UPHOLD THE CLASSIFICATION WHICH WAS APPLIED BY THE EXPORTING MEMBER STATE .
25 APART FROM THE FACT THAT A COMMISSION REGULATION SPECIFYING THE CONDITIONS FOR CLASSIFICATION IN A PARTICULAR TARIFF HEADING OR SUBHEADING IS OF A LEGISLATIVE NATURE AND CANNOT THEREFORE HAVE RETROACTIVE EFFECT ( JUDGMENT OF 28 MARCH 1979 , BIEGI , CITED ABOVE ) IT SHOULD BE NOTED THAT THE ARGUMENT SET OUT ABOVE IS BASED ON A MISINTERPRETATION OF THE PROVISIONS OF ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL .
26 AS THE COURT RECENTLY CONFIRMED IN ITS JUDGMENT OF 18 SEPTEMBER 1980 ( PESCH , CASE 795/79 ( 1980 ) ECR 2705 ) THOSE RULES ARE CONSISTENT WITH THE GENERAL PRINCIPLES RELATING TO THE APPLICATION OF THE COMMON CUSTOMS TARIFF AND GOVERNING THE FUNCTIONING OF MONETARY COMPENSATORY AMOUNTS . IT IS COMMON GROUND ON THE ONE HAND THAT THE DETERMINATION OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE ON IMPORT OR EXPORT IS LINKED TO THE TARIFF CLASSIFICATION TO WHICH THE IMPORTED OR EXPORTED PRODUCTS ARE SUBJECT AND ON THE OTHER HAND THAT THE IMPLEMENTATION OF THE COMMON CUSTOMS TARIFF IS THE RESPONSIBILITY OF THE IMPORTING STATE IN THE CASE OF EACH IMPORT AND THE EXPORTING STATE IN THE CASE OF EACH EXPORT .
27 IN THE SAME JUDGMENT THE COURT STATED THAT THAT INTERPRETATION IS BORNE OUT BY THE PROVISIONS OF REGULATION NO 1380/75 OF THE COMMISSION AS AMENDED BY COMMISSION REGULATION NO 1556/77 OF 11 JULY 1977 . ARTICLE 11 ( 2 ) THEREOF PROVIDES THAT WHERE AN EXPORTING STATE EXERCISES THE OPTION PROVIDED FOR IN ARTICLE 2 A OF REGULATION NO 974/71 PAYMENT BY THAT STATE OF THE MONETARY COMPENSATORY AMOUNT DUE FROM THE IMPORTING MEMBER STATE IS CONDITIONAL UPON , INTER ALIA ' ' PRODUCTION OF PROOF THAT CUSTOMS IMPORT FORMALITIES HAVE BEEN COMPLETED ' ' . SINCE THE CUSTOMS IMPORT FORMALITIES NECESSARILY INVOLVE CLASSIFICATION OF THE GOODS IN QUESTION IN ACCORDANCE WITH THE CLASSIFICATION MADE BY THE NATIONAL AUTHORITIES OF THE IMPORTING MEMBER STATE IT FOLLOWS THAT UNDER THE SYSTEM ESTABLISHED BY THAT PROVISION THE TARIFF CLASSIFICATION MADE BY THE IMPORTING MEMBER STATE BINDS THE EXPORTING MEMBER STATE AS REGARDS PAYMENT OF THE COMPENSATORY AMOUNTS ON IMPORT .
28 SIMILARLY , THE PROVISION IN ARTICLE 10 A ( 4 ) OF THE ABOVEMENTIONED REGULATION NO 1380/75 REGARDING COMMUNITY TRANSIT , TO THE EFFECT THAT THE AUTHORITIES OF THE MEMBER STATES WHERE THE PRODUCT IS RELEASED FOR HOME USE AFTER COMPLETION OF CUSTOMS FORMALITIES MUST INFORM THE MEMBER STATE FROM WHICH THE GOODS DEPARTED OF THE CLASSIFICATION APPLIED ON IMPORT , WHICH MAY BE DIFFERENT , CONFIRMS BY IMPLICATION THAT THE TARIFF CLASSIFICATION OF THE IMPORTED PRODUCTS IS THE RESPONSIBILITY OF THE IMPORTING MEMBER STATE AND THAT ANY DISCREPANCY BETWEEN THE TARIFF CLASSIFICATION MADE BY THE IMPORTING MEMBER STATE AND THAT ADOPTED BY THE MEMBER STATE WHENCE THE GOODS CAME HAS NO EFFECT OTHER THAN TO CONFER ON THE LATTER STATE THE RIGHT TO BE INFORMED THEREOF .
29 ALTHOUGH IN ACCORDANCE WITH THE PRINCIPLE LAID DOWN IN ARTICLE 5 OF THE TREATY , AND HAVING REGARD TO THE NEED FOR UNIFORM APPLICATION OF THE COMMUNITY RULES WITHIN THE COMMON MARKET , EVERY MEMBER STATE MAKING A TARIFF CLASSIFICATION WHICH PROVES IN THE LIGHT OF A JUDGMENT OF THE COURT INTERPRETING THE COMMON CUSTOMS TARIFF TO BE INCONSISTENT WITH THE TARIFF , IS BOUND TO DRAW THE APPROPRIATE CONCLUSION FROM THAT JUDGMENT AS REGARDS THE APPLICATION OF A CORRECT TARIFF CLASSIFICATION , NEVERTHELESS SUCH A JUDGMENT DOES NOT GIVE THE EXPORTING MEMBER STATE WITHIN THE FRAMEWORK OF THE SYSTEM LAID DOWN IN ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL THE POWER TO SUBSTITUTE ITSELF FOR THE IMPORTING MEMBER STATE IN SELECTING THE TARIFF CLASSIFICATION APPLICABLE TO THE GOODS ONCE THOSE GOODS ENTER THE CUSTOMS TERRITORY OF THE LATTER STATE .
30 WHILST UNDOUBTEDLY THE SCHEME LAID DOWN IN ARTICLE 2 A OF REGULATION NO 974/71 MAY IN CERTAIN CASES CREATE PROBLEMS FOR TRADERS WHEN THE TARIFF CLASSIFICATION MADE BY THE EXPORTING MEMBER STATE DIFFERS FROM THAT ADOPTED BY THE IMPORTING MEMBER STATE , THOSE DIFFICULTIES ARE NOT THEMSELVES ATTRIBUTABLE TO THE CONDITIONS GOVERNING THE APPLICATION OF THE SYSTEM BUT MAY ARISE EVEN OUTSIDE THE CONFINES OF THE LATTER , AS IT IS NATURAL FOR THEM TO APPEAR AT THE PRESENT STAGE IN THE DEVELOPMENT OF THE COMMUNITY RULES GOVERNING TARIFF CLASSIFICATION .
31 FURTHERMORE , IN VIEW OF THE NOTE MADE ON THE CONTROL COPY T 5 BY THE CUSTOMS AUTHORITIES OF THE IMPORTING MEMBER STATE REGARDING THE TARIFF CLASSIFICATION WHICH THEY HAD ADOPTED , IT APPEARS THAT THE PLAINTIFF FAILED TO AVAIL HIMSELF OF THE OPPURTUNITIES OPEN TO HIM UNDER THE INTERNAL LEGISLATION OF THAT MEMBER STATE IN ORDER TO CHALLENGE BEFORE THE APPROPRIATE AUTHORITIES OF THE COUNTRY THE CONFORMITY WITH THE COMMON CUSTOMS TARIFF OF THE DISPUTED CLASSIFICATION AND , CONSEQUENTLY , OF THE RATE OF THE MONETARY COMPENSATORY AMOUNT ON IMPORT RESULTING FROM THAT CLASSIFICATION .
32 FOR THOSE REASONS THE REPLY TO THE SECOND QUESTION MUST BE THAT THE PROVISIONS OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 ARE TO BE INTERPRETED AS MEANING THAT THE EXPORTING MEMBER STATE WHICH , PURSUANT TO THE RULES LAID DOWN IN ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL , AS AMENDED BY REGULATION NO 1112/73 OF THE COUNCIL , AND WITH THE AGREEMENT OF THE IMPORTING MEMBER STATE , PAYS THE MONETARY COMPENSATORY AMOUNTS PAYABLE BY THE LATTER STATE , IS BOUND BY THE TARIFF CLASSIFICATION ADOPTED BY THE LATTER AND MAY PAY THE MONETARY COMPENSATORY AMOUNTS DUE FROM THE IMPORTING MEMBER STATE ONLY AT THE RATE WHICH CORRESPONDS TO THE TARIFF CLASSIFICATION ADOPTED BY THE LATTER . QUESTION 3
33 IN ITS THIRD QUESTION THE NATIONAL COURT INQUIRES WHETHER , IN CASES SUCH AS THE PRESENT WHERE THE GOODS EXPORTED FROM A MEMBER STATE AND IMPORTED INTO ANOTHER MEMBER STATE HAVE BEEN GIVEN DIFFERENT CLASSIFICATIONS , AND WHERE THE TARIFF CLASSIFICATION APPLIED ON EXPORT IS CONSISTENT WITH THE COMMON CUSTOMS TARIFF , THE EXPORTING MEMBER STATE MAY , UNDER THE SYSTEM INTRODUCED BY ARTICLE 2 A OF REGULATION NO 974/71 OF THE COUNCIL , REFUND TO TRADERS THE DIFFERENCE BETWEEN THE MONETARY COMPENSATORY AMOUNT CHARGED ON EXPORT AND THE LOWER AMOUNT WHICH WOULD BE COLLECTED BY THE EXPORTING STATE ON THE BASIS OF THE TARIFF CLASSIFICATION ADOPTED BY THE IMPORTING MEMBER STATE .
34 FROM THE CONSIDERATIONS SET OUT ABOVE IN REGARD TO THE SECOND QUESTION IT FOLLOWS THAT THE REFUND OF SUCH EXTRA PORTION OF THE MONETARY COMPENSATORY AMOUNT , WHICH HAS NO LEGAL BASIS IN THE TARIFF CLASSIFICATION ADOPTED BY THE EXPORTING MEMBER STATE , WOULD CONFLICT WITH THE COMMUNITY RULES CONCERNING THE COMMON CUSTOMS TARIFF AND WITH THOSE GOVERNING THE OPERATION OF MONETARY COMPENSATORY AMOUNTS .
35 IN THE LIGHT OF ALL THOSE FACTORS THE REPLY TO THE THIRD QUESTION MUST BE THAT THE PROVISIONS OF REGULATION NO 974/71 OF THE COUNCIL , AND IN PARTICULAR OF ARTICLE 2 A THEREOF , AND THOSE OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 MUST BE INTERPRETED AS MEANING THAT THE EXPORTING MEMBER STATE IS NOT EMPOWERED TO PAY TRADERS THE DIFFERENCE BETWEEN THE MONETARY COMPENSATORY AMOUNT APPLICABLE ON EXPORT , WHICH CORRESPONDS TO THE TARIFF CLASSIFICATION MADE BY THAT MEMBER STATE , AND THE LOWER MONETARY COMPENSATORY AMOUNT ON EXPORT WHICH CORRESPONDS TO THE TARIFF CLASSIFICATION APPLIED ON IMPORT BY THE IMPORTING MEMBER STATE .