Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The joint oral proceedings in the three cases which were referred to the Court for a preliminary ruling (Cases 12/71, 13/71 and 14/71) by orders of the Bundesfinanzhof of 12 January 1971 took place on 30 June 1971. Therefore the Court will allow me to address it in a common opinion. This is possible becauce in all three cases the parties in the main actions are the same and the proceedings display a certain amount of common ground or at least related characteristics with regard to their essential problems. In addition, in all three cases only the plaintiff in the main action and the Commission of the European Communities took part in the written and oral procedure before the Court of Justice. There is no need to point out that, despite treating the cases together, I shall pay attention to the features of each.

I must make the following preliminary remarks on the facts.

The plaintiff in the mam action is an import firm with its registered office in Hamburg-Altona. At the beginning of 1964, it obtained customs clearance for the release on the open market of goods which were described in the customs declarations as

In all three cases the customs office at first adopted the tariff classification proposed by the plaintiff, that is, they applied tariff heading 23.03Residues of starch manufacture in the first and third cases and had recourse to tariff heading 21.07Food preparations not elsewhere specified or included in the second case. Since goods under tariff heading 23.03 are duty-free and do not come within the common organizations of the markets, the result was that in the first and third cases only was turnover equalization tax levied. In the second case, in addition to the equalization tax, customs duties were charged; however, no levies were payable because at that time tariff heading 21.07 likewise did not come within a Community import system. On the basis of reports from the Zolltechnische Prüfungs- und Lehranstalt, Cologne, the customs office later altered the tariff classification. It considered that the imported goods were

and, because such goods came within the common organization of the market in cereals laid down in Regulation No 19/62 (OJ No 30, p. 933) (Article 1 in conjunction with the annex to that regulation), the levy payable under that regulation and under Article 5 of Regulation No 55/62 of the Council (OJ No 54, p. 1581) was imposed.

The Henck undertaking at first lodged objections to this without success and then appealed to the Finanzgericht (Finance Court). The Finanzgericht, Dusseldorf, however did not share the plaintiff's view that a levy should not be imposed. The court held in the first case that in view of the fact that the imported goods contained about 60 % starch (that is, as much as maize of merchantable quality) and in spite of the finding that the fat content was slightly lower than that of maize of merchantable quality, they could not be considered as waste flour from the manufacture of starch from maize; the goods should rather be considered as kibbled maize.

In the second case, the court declared that according to the explanatory notes to the German customs tariff on tariff heading 21.07 (food preparations), maize grits are an interim product in the manufacture of cornflakes or similar goods … which consist in ground maize grains which have been pressure-cooked in water and simply dried and to which malt extracts, sugar and salt have been added. Since the imported goods did not display these characteristics, they could not be considered as a food preparation but had to be deemed to be maize groats or meal. In the third case the Court ruled that if the composition of the goods, as in the case in question, is that of whole grain, they are not residues of starch manufacture. The goods therefore must be considered as kibbled milo even if their fat content is below that of a product of merchantable quality. The formation of certain lumps makes no difference because it has not altered the nature of the goods. The Henck undertaking appealed from the judgments of the Finanzgericht Düsseldorf to the Bundesfinanzhof, and the cases are still before that court. The Bundesfinanzhof came to the view, as regards the first and third cases, that the existing explanatory notes to the customs tariff are insufficient and in addition, in so far as the explanatory notes to the German customs tariff are concerned, that they are no longer authoritiative according to the case-law of the Court of Justice. Therefore with regard to tariff classification the decisive factor is the interpretation of the provisions of Community law contained in the regulations on the common organizations of the markets. With reference to the second case, the Bundesfinanzhof seems to think that it is clear that the goods in question cannot be placed under tariff heading 21.07 (food preparations). On the other hand, it sees difficulties as regards classifying the goods within tariff heading 11.02, in other words, in view of the question whether the imported goods were maize groats, hulled maize grains or kibbled maize. In this respect also it finds that the available expanatory notes are not of sufficient help and reaches the conclusion that the decisive factor is the interpretation of the provisions of Community law. Moreover, it may be of importance whether the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff are applicable. In view of these findings, the Bundesfinanzhof stayed the proceedings by the abovementioned orders of 12 January 1971 and referred the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

I shall give my views on these problems as follows:

1 Translated from the German.