1 BY ORDER OF 21 OCTOBER 1969, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 4 DECEMBER 1969, THE BUNDESFINANZHOF HAS REFERRED TO THE COURT OF JUSTICE, PURSUANT TO ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, A QUESTION SEEKING TO KNOW WHETHER THE EXPRESSION " MANIOC FLOUR " IN THE ANNEX REFERRED TO IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 OF THE COUNCIL OF 4 APRIL 1962 ( OJ 1962, P . 933 ) SHOULD BE INTERPRETED IN SUCH A WAY AS TO COVER, IRRESPECTIVE OF THE MANUFACTURING PROCESS, ALL PRODUCTS DERIVED FROM MANIOC ROOTS, IF THEIR STARCH CONTENT IS HIGHER THAN 55 PER CENT OR WHETHER THE MAXIMUM OR MINIMUM CONTENTS OF OTHER CONSTITUENT ELEMENTS SUCH AS RAW FIBRES, SUGAR OR PROTEIN SHOULD ALSO BE TAKEN INTO ACCOUNT .
2 ARTICLE 1 OF REGULATION NO 19/62, ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN THE CEREALS SECTOR, SUBJECT TO A SYSTEM OF LEVIES THE IMPORTATION OF CEREALS AND CERTAIN NON-CEREAL PRODUCTS, INCLUDING THOSE UNDER HEADING 11.06 OF THE COMMON CUSTOMS TARIFF, INCLUDING MANIOC FLOURS, IMPORTED ESPECIALLY AS FEEDING-STUFFS, BY REASON OF THEIR HIGH STARCH CONTENT . THESE PRODUCTS ARE LIABLE TO A 28 PER CENT AD VALOREM LEVY . ON THE OTHER HAND, THE PRODUCTS UNDER HEADING 23.03, INCLUDING, INTER ALIA, STARCH RESIDUES, WERE LEFT OUTSIDE THE AREA OF APPLICATION OF REGULATION NO 19/62 AND ARE NOT LIABLE TO ANY CUSTOMS DUTY OR LEVY .
3 FOLLOWING THE ENTRY INTO FORCE OF REGULATION NO 19/62, CRUSHED MANIOC ROOTS WERE IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY AFTER UNDERGOING TREATMENT IN THEIR COUNTRY OF ORIGIN INTENDED TO EXTRACT THE STARCH . EVEN AFTER THIS TREATMENT THESE GOODS STILL EXHIBITED A HIGH STARCH CONTENT WHICH RENDERED THEM CAPABLE OF BEING MARKETED AS MANIOC FLOURS . HOWEVER, THEY WERE DECLARED TO THE CUSTOMS AS " STARCH RESIDUES " UNDER HEADING 23.03 - WHICH WAS INTENDED TO EXEMPT THEM FROM THE LEVY AFFECTING THESE FLOURS . THE QUESTION REFERRED THUS SEEKS, AS REGARDS THE PRODUCTS DERIVED FROM MANIOC, TO ESTABLISH WHAT CRITERIA MAKE IT POSSIBLE TO DISTINGUISH THE " STARCH RESIDUES " OF MANIOC UNDER HEADING 23.03 FROM MANIOC FLOURS UNDER HEADING 11.06 .
4 THE INTERPRETATION OF ONE TARIFF HEADING IN RELATION TO ANOTHER MUST, IN A CASE OF DOUBT, TAKE INTO ACCOUNT BOTH THE FUNCTION OF THE CUSTOMS TARIFF IN REGARD TO THE NECESSITIES OF THE SYSTEMS OF ORGANIZATION OF THE MARKETS AND ITS PURELY CUSTOMS FUNCTION . ALTHOUGH REGULATION NO 19/62 INCLUDED NON-CEREAL PRODUCTS UNDER HEADING 11.06 - AND, INTER ALIA, MANIOC FLOURS - IN THE SYSTEM OF THE ORGANIZATION OF THE MARKET IN CEREALS, THIS WAS BECAUSE PRECISELY BY REASON OF THEIR HIGH STARCH CONTENT THESE PRODUCTS COMPETE ON THE COMMON MARKET WITH CEREAL PRODUCTS AND, IN PARTICULAR, AFTER DENATURING, WITH FEEDING-STUFFS .
5 THERE IS NO DOUBT THAT " STARCH RESIDUES " UNDER HEADING 23.03 ARE ALSO SOLD AS FODDER BUT BECAUSE OF THEIR LESSER STARCH CONTENT THEY ARE NOT CAPABLE OF BEING MARKETED UNDER THE SAME DESCRIPTION AS THE PRODUCTS UNDER HEADING 11.06 SO THAT THEY DO NOT COMPETE WITH LOCAL PRODUCTION IN THE SAME WAY AS THE SAID PRODUCTS . HOWEVER, AS REGARDS MANIOC, IT HAS BECOME APPARENT THAT IN CERTAIN COUNTRIES THE EXTRACTION METHODS LEAVE A PRODUCT THE STARCH CONTENT OF WHICH IS STILL COMPARABLE TO THAT OF MANIOC FLOURS AND WHICH, AFTER MILLING, IS MARKETED UNDER THE DESCRIPTION . THIS FACT SHOWS THAT, IN REGARD TO THE OBJECTIVES OF THE LEVY PRESCRIBED IN THE PRESENT CASE, IT IS ONLY IN TERMS OF THE STARCH CONTENT, SO FAR AS MANIOC IS CONCERNED, THAT THE LINE MUST BE DRAWN BETWEEN THE " RESIDUES OF STARCH MANUFACTURE " AND FLOURS .
6 MOREOVER, THE PLAINTIFF IN THE MAIN ACTION MAINTAINS THAT THE DESCRIPTION " FLOURS " WITHIN THE MEANING OF HEADING 11.06 MUST BE RESERVED FOR MANIOC PRODUCTS OBTAINED BY THE SIMPLE GRATING OF THE DRIED ROOTS TO THE EXCLUSION OF ALL OTHER TREATMENT . IT BASES ITS ARGUMENT ON THE TITLE TO CHAPTER 11 - IN WHICH HEADING 11.06 APPEARS - WHICH MENTIONS, INTER ALIA, " PRODUCTS OF THE MILLING INDUSTRY ", ON THE WORDING OF THE EXPLANATORY NOTES ON THE BRUSSELS NOMENCLATURE CONCERNING THE SAID HEADING AS WELL AS ON THE FACT THAT THE FLOURS UNDER HEADING 11.06 MUST DERIVE FROM THE VEGETABLE RAW MATERIALS MENTIONED UNDER HEADING 07.07 ( MANIOC ROOTS ... OTHER TUBERS HAVING A HIGH STARCH CONTENT ) WHICH WOULD EXCLUDE ROOTS FROM WHICH THE STARCH HAS ALREADY BEEN EXTRACTED .
7 THIS INTERPRETATION WOULD GIVE TO HEADING 11.06 A CONTENT WHICH IT DOES NOT POSSESS . BY CLASSIFYING FLOURS AS THE PRODUCTS OF THE MILLING INDUSTRY THE COMMON CUSTOMS TARIFF DOES NOT CONTEMPLATE A SPECIFIC FORM OF PROCESSING VEGETABLE PRODUCTS INTO FLOURS . ON THE OTHER HAND, THE EXPRESSION " BY SIMPLE GRATING " USED BY THE EXPLANATORY NOTES CONCERNS THE STAGE OF PROCESSING ROOTS INTO FLOUR AND NOT THE TREATMENT WHICH THOSE ROOTS MAY OR, IN CERTAIN CASES, MUST HAVE UNDERGONE PREVIOUSLY . MOREOVER, THE PRIOR EXTRACTION OF A SMALL PART OF THEIR STARCH CONTENT LEAVES THE ROOTS, BEFORE THEY ARE CRUSHED, WITH PROPERTIES SUCH THAT THEY CONTINUE TO COME UNDER HEADING 07.06 WHICH INCLUDES ALL ROOTS OR TUBERS HAVING A HIGH STARCH CONTENT . THE RESULT OF THIS TREATMENT IS THUS NOT TO REMOVE FROM HEADING 11.06 FLOURS DERIVING FROM THE GRATING OF THE ROOTS TREATED IN THIS WAY .
8 THE COMMISSION AND THE FEDERAL GOVERNMENT ON THE ONE HAND AND THE PLAINTIFF IN THE MAIN ACTION ON THE OTHER TAKE ISSUE WITH EACH OTHER ON THE QUESTION OF THE PERCENTAGE OF THE STARCH CONTENT WHICH ENABLES FLOUR RESIDUES TO BE DISTINGUISHED AND RELY ON THE AUTHORITY OF EXPERTS WHOSE EVALUATIONS, AS REGARDS THE STARCH CONTENT OF THE RESIDUES, VARY BETWEEN 30 PER CENT AND 70 PER CENT OF STARCH IN RELATION TO DRY MATERIAL . ACCORDING TO THE COMMISSION AND TO THE FEDERAL GOVERNMENT ONLY PRIMITIVE AND SUPERFICIAL EXTRACTION METHODS LEAVE STARCH CONTENTS IN EXCESS OF 50 PER CENT OR 60 PER CENT, WHEREAS WITH MODERN EXTRACTION METHODS THE RESIDUES HAVE A STARCH CONTENT WHICH DOES NOT EXCEED 40 PER CENT . THE PLAINTIFF IN THE MAIN ACTION ON THE OTHER HAND STATES THAT RESIDUES WITH A STARCH CONTENT UNDER 40 PER CENT DO NOT EXIST AND THAT, EVEN AFTER TREATMENT BY MODERN PROCESSES, MANIOC ROOTS STILL HAVE A STARCH CONTENT IN EXCESS OF 60 PER CENT, PARTICULARLY BY REASON OF THE PECULIARITIES OF THEIR FIBROUS STRUCTURE .
9 IF, EVEN WITH MODERN METHODS, IT IS POSSIBLE TO EXTRACT FROM MANIOC ROOTS ONLY RELATIVELY SMALL QUANTITIES OF STARCH SO THAT THE NEW MATERIAL REMAINING STILL CONTAINS 60 PER CENT OR MORE OF STARCH, THEN IT MUST BE CONCLUDED THAT THIS MATERIAL CANNOT BE REGARDED AS A RESIDUE - THAT IS TO SAY, ACCORDING TO THE TERMS OF THE EXPLANATORY NOTES TO HEADING 23.03 - WASTE FROM STARCH MANUFACTURE WITHIN THE MEANING OF THAT HEADING, BUT THAT IT STILL CONSTITUTES A PRODUCT THE HIGH STARCH CONTENT OF WHICH MUST LEAD TO ITS FALLING UNDER HEADING 07.06 ( MANIOC ROOTS ) AND THE SIMPLE GRATING OF WHICH PROVIDES A PRODUCT MARKETED AS MANIOC FLOUR .
10 THE LEVEL OF STARCH WHICH IS DECISIVE IS THEREFORE THAT AT WHICH THE ROOTS WHICH HAVE BEEN TREATED PREVIOUSLY CEASE TO CONSTITUTE SUCH A PRODUCT . ON THE OTHER HAND IN ORDER TO ENSURE THE FUNCTIONING OF THE COMMON MARKET AND IN PARTICULAR THE ORGANIZATIONS OF THE AGRICULTURAL MARKETS THIS LEVEL MUST BE FIXED IN A UNIFORM MANNER FOR THE WHOLE COMMUNITY .
11 A CIRCULAR FROM THE FEDERAL MINISTER OF FINANCE OF 29 DECEMBER 1965 HAD FIXED THIS LIMIT AT 55 PER CENT . DURING THE YEAR 1966, WHEN THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE SET UP BY REGULATION NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ( OJ SPECIAL EDITION 1969, P . 12 ) WAS NOT YET OPERATIVE, A GROUP OF OFFICIALS FROM THE MEMBER STATES PRESIDED OVER BY A REPRESENTATIVE OF THE COMMISSION WAS OF THE UNANIMOUS OPINION THAT ONLY PRODUCTS WHICH, AFTER BEING SUBJECTED TO TREATMENT DESIGNED TO EXTRACT STARCH, CONTAINED NO MORE THAN 40 PER CENT OF THAT PRODUCT, COULD BE REGARDED AS RESIDUES FROM THE MANUFACTURE OF STARCH FROM MANIOC AND PLACED UNDER HEADING 23.03 . THE RESULT OF THIS DISCUSSION WAS COMMUNICATED BY THE COMMISSION' S DEPARTMENTS TO THE PERMANENT REPRESENTATIVES OF THE MEMBER STATES, AND IN PARTICULAR TO THE REPRESENTATIVE OF THE FEDERAL GOVERNMENT BY LETTER DATED 13 MAY 1966 .
12 IN THE ABSENCE OF EXPRESS COMMUNITY PROVISIONS, AN INTERPRETATION FIXING THE LIMIT OF HEADING 23.03 AT 40 PER CENT OF STARCH CONTENT, AS REGARDS THE " RESIDUES FROM THE MANUFACTURE OF STARCH " FROM MANIOC, IS CALCULATED TO ENSURE THAT AT ANY EVENT, DESPITE THE PECULIARITIES OF THE TRADE CONCERNED IN THE DIFFERENT MEMBER STATES, MANIOC PRODUCTS WHICH COULD, WITHOUT THE ADDITION OF OTHER SUBSTANCES, BE MARKETED AS MANIOC FLOUR, SHALL BE SUBJECT TO THE LEVY .
13 ALTHOUGH THIS LIMIT MAY BE REGARDED AS FIXED AT THE LOWEST LEVEL, IT DOES NOT, HOWEVER, HAVE THE EFFECT OF DESTROYING THE SUBSTANCE OF THE CONCEPT " RESIDUES FROM THE MANUFACTURE OF STARCH ". WHILST IT LEADS TO A NARROW INTERPRETATION OF THE CONCEPT " RESIDUES FROM THE MANUFACTURE OF STARCH " FROM MANIOC, THIS INTERPRETATION FINDS ITS JUSTIFICATION, HOWEVER, IN THE FACT THAT, UNLIKE RESIDUES FROM THE MANUFACTURE OF STARCH FROM OTHER PRODUCTS, WHAT IS LEFT OVER FROM THE MANUFACTURE OF STARCH FROM MANIOC CONSTITUTES A PRODUCT WHICH HAS NOTHING IN COMMON WITH WASTE BUT HAS FROM THE COMMERCIAL POINT OF VIEW THE CHARACTERISTICS OF A RAW MATERIAL FROM WHICH IT IS STILL POSSIBLE TO OBTAIN MANIOC FLOUR .
14 THE EXPRESSION " MANIOC FLOURS " WITHIN THE MEANING OF ARTICLE 1 ( D ) OF REGULATION NO 19, READ IN CONJUNCTION WITH HEADING 11.06 OF THE COMMON CUSTOMS TARIFF, MENTIONED IN THE ANNEX TO THAT REGULATION, MUST THEREFORE BE INTERPRETED AS REFERRING TO ALL FARINACEOUS SUBSTANCES OBTAINED FROM MANIOC ROOTS, IRRESPECTIVE OF THE TREATMENT WHICH THOSE ROOTS MAY HAVE UNDERGONE, WHERE THE PRODUCT HAS A STARCH CONTENT IN EXCESS OF 40 PER CENT .