1 BY AN ORDER OF 9 JANUARY 1979 WHICH WAS RECEIVED AT THE COURT ON 5 FEBRUARY 1979 , THE BUNDESFINANZHOF REFERRED TWO QUESTIONS TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF CERTAIN COMMUNITY PROVISIONS GOVERNING EXPORT REFUNDS FOR PRODUCTS SUBJECT TO THE COMMON ORGANIZATION OF THE MARKET IN POULTRY-MEAT .
2 IT APPEARS FROM THE ORDER REFERRING THE MATTER TO THE COURT THAT THE QUESTIONS AROSE IN THE COURSE OF PROCEEDINGS BETWEEN A GERMAN UNDERTAKING AND THE CUSTOMS AUTHORITIES OF THE FEDERAL REPUBLIC OF GERMANY REGARDING THE LATTER ' S REFUSAL TO GRANT EXPORT REFUNDS FOR A QUANTITY OF FROZEN CHICKENS WHICH , AFTER HAVING BEEN SOLD TO A BUYER IN A NON-MEMBER COUNTRY , LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY ON 28 AND 30 AUGUST 1973 AND WERE DELIVERED , WITHOUT BEING TRANSHIPPED AND AFTER TRAVELLING VIA THE TERRITORY OF A NON-MEMBER COUNTRY UNDER CUSTOMS CONTROL , TO THE GERMAN DEMOCRATIC REPUBLIC WHERE THEY WERE PUT INTO FREE CIRCULATION .
3 THE FIRST QUESTION RAISED BY THE BUNDESFINANZHOF CONCERNS THE CONCEPT OF ' ' EXPORT ' ' WITHIN THE MEANING OF THE PROVISIONS CONCERNING THE GRANT OF EXPORT REFUNDS . THE QUESTION IS WHETHER , AS THE PLAINTIFF IN THE MAIN ACTION CLAIMS , THE GOODS CAN BE CONSIDERED AS HAVING BEEN EXPORTED WITHIN THE MEANING OF THOSE PROVISIONS AS SOON AS THEY HAVE LEFT THE GEOGRAPHICAL TERRITORY OF THE COMMUNITY , OR WHETHER , AS THE GERMAN AUTHORITIES CONTEND , THE GOODS MUST HAVE BEEN PUT INTO FREE CIRCULATION IN THE NON-MEMBER COUNTRY FOR WHICH THEY WERE DESTINED , AND WHETHER THIS IS SO EVEN WHERE THE REFUND RATES ARE NOT VARIED ACCORDING TO THE DESTINATION OF THE GOODS .
4 FROM THE WORDING OF THE SECOND QUESTION RAISED BY THE BUNDESFINANZHOF , AND THE FACTS OF THE CASE , IT APPEARS THAT THE WIDER PROBLEM RAISED BY THE FIRST QUESTION CONCERNS IN FACT THE SPECIFIC CASE OF GOODS ORIGINATING IN THE FEDERAL REPUBLIC OF GERMANY WHICH HAVE LEFT THE TERRITORY OF THE COMMUNITY IN ORDER TO BE PUT INTO FREE CIRCULATION IN THE GERMAN DEMOCRATIC REPUBLIC AFTER HAVING CROSSED THE TERRITORY OF NON-MEMBER COUNTRIES UNDER CUSTOMS CONTROL . THEREFORE THE PROBLEM IN THIS DISPUTE DOES NOT CONCERN TRADE WITH NON-MEMBER COUNTRIES IN GENERAL , BUT TRADE BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND THE GERMAN DEMOCRATIC REPUBLIC . THAT IS WHY THE BUN DESFINANZHOF HAS REFERRED TO THE PROTOCOL ON GERMAN INTERNAL TRADE AND CONNECTED PROBLEMS OF 25 MARCH 1957 , WHICH IS ANNEXED TO THE EEC TREATY , IN ORDER TO INTERPRET THE PROVISIONS IN QUESTION . IN THE CIRCUMSTANCES IT IS APPROPRIATE TO CONSIDER THE QUESTIONS AS A WHOLE .
5 PARAGRAPH 1 OF THAT PROTOCOL PROVIDES THAT : ' ' SINCE TRADE BETWEEN THE GERMAN TERRITORIES SUBJECT TO THE BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY AND THE GERMAN TERRITORIES IN WHICH THE BASIC LAW DOES NOT APPLY IS A PART OF GERMAN INTERNAL TRADE , THE APPLICATION OF THIS TREATY IN GERMANY REQUIRES NO CHANGE IN THE TREATMENT CURRENTLY ACCORDED THIS TRADE . ' '
6 AS THE COURT HAS ALREADY STATED IN ITS DECISION OF 1 OCTOBER 1974 IN CASE 14/74 ( NORDDEUTSCHES VIEH- UND FLEISCHKONTOR V HAUPTZOLLAMT HAMBURG-JONAS ( 1974 ) 2 ECR 899 ) THIS PROVISION IS INTENDED TO RELIEVE THE FEDERAL REPUBLIC OF GERMANY OF THE OBLIGATION TO APPLY THE RULES OF COMUNITY LAW TO GERMAN INTERNAL TRADE . IT ACCORDS A SPECIAL STATUS TO THE GERMAN DEMOCRATIC REPUBLIC AS TERRITORY WHICH DOES NOT FORM PART OF THE COMMUNITY BUT WHICH IS NOT A NON-MEMBER COUNTRY VIS-A-VIS THE FEDERAL REPUBLIC OF GERMANY .
7 THE RESULT IS THAT IN EVERY CASE WHERE COMMUNITY LAW REGULATES TRADE BETWEEN THE COMMUNITY AND NON-MEMBER COUNTRIES , THE FEDERAL REPUBLIC OF GERMANY IS AUTHORIZED TO CONSIDER THAT SUCH RULES ARE NOT APPLICABLE TO GERMAN INTERNAL TRADE . THE CONCEPT OF ' ' EXPORT ' ' USED IN THE COMMUNITY REGULATIONS CONCERNING THE COMMON ORGANIZATION OF THE MARKETS IN AGRICULTURAL PRODUCTS DOES NOT THEREFORE APPLY TO TRADE IN GOODS BETWEEN THE FEDERAL REPUBLIC OF GERMANY AND THE GERMAN DEMOCRATIC REPUBLIC .
8 THE PLAINTIFF IN THE MAIN ACTION , HOWEVER , CLAIMS THAT THE PROTOCOL DOES NOT APPLY IN THIS CASE . IT POINTS OUT THAT THE GOODS WERE SOLD AND DELIVERED TO A BUYER IN A NON-MEMBER COUNTRY AND THAT TWO PURCHASING TRANSACTIONS WERE CONCLUDED : ON THE ONE HAND BETWEEN UNDERTAKINGS IN THE FEDERAL REPUBLIC OF GERMANY AND IN AUSTRIA , ON THE OTHER BETWEEN UNDERTAKINGS IN AUSTRIA AND THE GERMAN DEMOCRATIC REPUBLIC . THAT IS NOT THE DECISIVE FACTOR , HOWEVER ; FOR A TRANSACTION TO FORM PART OF GERMAN INTERNAL TRADE WITHIN THE MEANING OF THE PROTOCOL , IT IS NECESSARY , AND AT THE SAME TIME SUFFICIENT , THAT THE GOODS ARE PUT INTO FREE CIRCULATION IN THE GERMAN DEMOCRATIC REPUBLIC WITHOUT HAVING BEEN IN FREE CIRCULATION IN A THIRD COUNTRY AFTER HAVING LEFT THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY . THE SEQUENCE OF COMMERCIAL TRANSACTIONS AND THEIR FORMS DO NOT NEED TO BE TAKEN INTO ACCOUNT .
9 THE ANSWER TO THE QUESTIONS WHICH HAVE BEEN REFERRED TO THE COURT SHOULD THEREFORE BE THAT THE CONCEPT OF ' ' EXPORT ' ' WITHIN THE CONTEXT OF THE COMMUNITY PROVISIONS CONCERNING EXPORT REFUNDS FOR AGRICULTURAL PRODUCTS SUBJECT TO THE COMMON ORGANIZATION OF THE MARKETS MUST BE INTERPRETED AS MEANING THAT IT DOES NOT REFER TO TRADE FORMING PART OF GERMAN INTERNAL TRADE WITHIN THE MEANING OF THE PROTOCOL OF 25 MARCH 1975 .