OPINION OF MR ROEMER — CASE 36/71 HENCK v HAUPTZOLLAMT EMDEN

Mr President,

Members of the Court,

During the period from April 1965 to January 1966 the Henck undertaking, the plaintiff before the court which has referred certain questions to this Court under Article 177 of the EEC Treaty, imported into the Federal Republic of Germany under various descriptions processed cereal products from Belgium. In the course of customs clearance, in accordance with the request of the importer, those products were classified under headings 23.03 and 23.04 of the Common Customs Tariff which encompass respectively the following products: heading 23.03: Beet-pulp, bagasse and other waste of sugar manufacture; brewing and distilling dregs and waste; residues of starch manufacture and similar residues; heading 23.04: Oil-cake and Other residues (except dregs) resulting from the extraction of vegetable oils. Since, at the date when they were imported the products to which those headings related did not come under a system of levies, it was possible to import the goods in question free of customs duty other than the turnover equalization tax payable on products coming under heading 23.03.

Thereafter the principal customs office at Emden considered that the tariff classification which had been made was incorrect and that the goods should in fact be regarded either as mixed forage with varying starch contents or as maize groats and flour with a specific fat content and should therefore be classified under headings 11.01, 11.02 and 23.07. The said headings are entitled as follows: Cereal flours (11.01) ; Cereal groats, cereal meal; worked cereal grains, pearled, crushed, flattened (including flakes), except husked, glazed, polished or broken rice; germ of cereals, including flours thereof (11.02); Animal food preparations including sweetened forage; other preparations used in animal feeding (additives, etc.): ex B containing cereals or containing products covered by the present Regulation [Regulation 19/62] (23.07). Since the products referred to in those headings come under the system of levies established by Regulation No 19/62 (OJ No 30, 1962, p. 933) the principal customs office requested payment of the levies relating to the imports in question together with the turnover equalization tax.

The objection through administrative channels which the importer made against this assessment was dismissed on the ground that the tariff classification which had been applied was based on the information supplied when the export declaration was lodged in Belgium and on the analysis certificates from a Belgian Ministry. The Henck undertaking then brought the matter before the Finanzgericht Hamburg where it maintained that the Belgian analysis certificates upon which the customs authorities relied did not relate to the imported goods and that the certificates from a laboratory in Antwerp should be taken into consideration. The defendant in those proceedings, the principal customs office, replied that the samples submitted to the laboratory in Antwerp for analysis had been tampered with. It also observed that in support of the tariff classification made it was further entitled to rely on the reports drawn up by the producer undertaking with regard to the composition of the goods and on the analysis supplied by one of the customers of the plaintiff. In order to settle the dispute it still remains for the Finanzgericht Hamburg (as that court itself emphasizes) to ascertain the characteristics actually displayed by the imported goods by an appraisal of the analysis and the data upon which the parties have relied, as I have just indicated.

However, before undertaking the necessary investigations for that purpose the court decided first of all to obtain clarification of certain points of law. For that reason it decided to make its order of 3 June 1971 whereby it stayed the proceedings and requested this Court to give a preliminary ruling on the following preliminary questions:

(At this point we should note that, as the grounds of the order making the reference indicate, those figures appear to have been taken from reports drawn up with regard to the composition of the imported goods by the undertaking which, according to the customs authorities, manufactures them).

Those questions occasioned written and oral observations on the part of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities; let us now consider how these matters should be considered from the point of view of Community law.

1. First of all I must make some observations on the admissibility of the questions as they have been put to the Court, for the plaintiff in the main action has expressed doubts in that respect.

2. Having made those preliminary observations I shall now embark upon an examination of the substance of the questions referred to the Court. As the Court will recall, the first question relates to the interpretation of heading 23.07 of the Common Customs Tariff to the extent to which reference is made thereto in the Annex to Regulation No 19/62. The products in question in the present case are defined therein as follows: Animal food preparations including sweetened forage; other preparations used in animal feeding (additives etc.): ex B. containing cereals or containing products covered by the present Regulation. In putting this question to the Court, the national court does not expect that this Court will give an exhaustive interpretation of the said heading, which would indeed be extremely difficult in view of the large number of products which it encompasses. In its first question the Finanzgericht simply wishes to know whether heading 23.07 may be applied solely according to the characteristics actually displayed by the product, or whether this is only relevant to intentional mixtures, which amounts to saying that regard must also be had to the method of producing the product.

3. In its second question, which is in fact a group of three questions, the Finanzgericht asks the Court to what factual criteria the composition of goods must conform in order that they may be classified either under heading 11.01, heading 11.02 or heading 23.07 given that, having regard to the problems brought before this Court, the goods in question can only be those processed maize products and processed sorghum or milo products. The particular problem (always bearing in mind the dispute as it was presented to the national court) is how to distinguish those products and the residues referred to in headings 23.03 and 23.04 of the tariff. This question has been correctly referred to the Court for a ruling even though both the last-named tariff headings did not come under an organization of the market during the relevant period. In this connexion the Court has already ruled on this point in a number of judgments to which it will thus be sufficient to refer.

4. The considerations which I have put forward with regard to admissibility absolve me from the necessity of dealing with the third question any further. Howver, it may be of interest to the national court to learn that the Commission considers it quite possible to classify the goods described in the third question under heading 23.07. The German Government also takes this view and in this respect refers to well-balanced mixtures and highvalue feeding stuffs. It appears that it is only as regards the products described in question 3(b) that the plaintiff expresses doubts as to their classification under heading 23.07. These doubts are essentially based on the fact that the products come under the same tariff heading and the plaintiff accordingly ignores the molasses ingredient although it may very well be relevant in making a classification under heading 23.07 unless the molasses is used purely as a binder. Within the context of this opinion I do not consider it necessary to add any further evaluation to these remarks. Since the national court is aware of them it must draw the conclusions which it considers proper.

5. To conclude my examination, my opinion on the questions referred to the Court by the Finanzgericht Hamburg is as follows :

1 Translated from the French version.