JUDGMENT OF 14. 7. 1971 — CASE 12/71 HENCK v HAUPTZOLLAMT EMMERICH

In Case 12/71 Reference to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof, Seventh Chamber, for a preliminary tilling in the action pending before that court between

THE COURT, composed of: R. Lecourt, President, A.M. Donner and A. Trabucchi, Presidents of Chambers, R. Monaco (Rapporteur), J. Mertens de Wilmars, P. Pescatore and H. Kutscher, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

Admissibility

The substance of the case

Grounds of judgment

The jurisdiction of the Court

On the substance of the case

Costs

I —. Summary of facts and procedure

1. On 20 January, 26 February and 6 March 1964, the Gunther Henck undertaking obtained customs clearance for the release to the market of cargoes of goods described in the customs declarations as an English product consisting in waste flour resulting from the extraction of starch from maize. In accordance with the customs declaration, the customs office classified this product under the heading 23.03 of the German customs tariff, which corresponds to the Customs Tariff and which did not prescribe pay ment of customs duties. After that, on the basis of reports from the Zolltechnische Prüfungs- und Lehranstalt, Cologne, the customs authorities decided to classify the product in question as kibbled maize grain under heading 11.02 A III b of that tariff in which the goods are subject to a levy.

2. The order for reference was received at the Registry of the Court of Justice on 19 March 1971.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A —. According to the Henck undertaking, the Bundesfinanzhof is not seeking the interpretation of the expression kibbled maize grain but rather the application of Article 1 (d) of Regulation No 19/62 in this case. But questions of interpretation which are referred for a preliminary ruling may only be posed generally and in the abstract. The application of Community law to actual cases does not come within the jurisdiction of the Court under Article 177 of the Treaty.

B —. The Commission of the European Communities states that it has no objections as to the admissibility of the question which has been referred. It points out that at the time when the goods in question were imported, the products mentioned in tariff heading 11.02 of the Common Customs Tariff, but not the residues of starch manufacture within the meaning of tariff heading 23.03, came within the common organization of the market established by Regulation No 19/62 and the levy system laid down by Regulation No 55/62. The latter product which is at present included in the Common Customs Tariff was at that time mentioned by the German Customs Tariff.

A —. The Henck undertaking considers that according to both Community law and national law and the Explanatory Notes to the Brussels Nomenclature, two criteria were decisive for the definition of the concept kibbled grain at the beginning of 1964:

B —. The Commission of the European Communities recalls the forms in which maize is offered for human food and animal feedstuffs, and explains the chief processes to which it is subjected, that is, on the one hand, dry-grinding and on the other, wet-grinding. The term dry-grinding refers to the different processes by which maize is as a rule cleaned, hulled, degermed and, according to the amount of the grinding, reduced to kibbled grains, groats, meal, flour or flakes. The fundamental characteristic of the products thus ob tained lies in the fact that they have not undergone any treatment which has the effect of altering their nature. With regard to their composition, they contain the natural constituents of maize, such as starch, proteins, fats and crude fibres.

1. By order of 12 January 1971 received at the Court Registry on 19 March 1971, the Bundesfinanzhof of the Federal Republic of Germany referred under Article 177 of the Treaty establishing the EEC a question on the interpretation of Article 1(d) of Regulation No 19 of the Council of 4 April 1962. (OJ 1962, No 30).

2. Whilst requesting the Court to define the scope of Article 1(d) of Regulation No 19/62 with regard to a certain product, the Bundesfinanzhof gives details as to the composition of this product. The Giinther Henck undertaking maintains that because of these details, the question which has been referred does not in fact request the Court to define the meaning and the scope of the abovementioned provision but to apply that same provision to the case in question.

3. Although Article 177 of the Treaty does not allow the Court to give a ruling on a specific case when it is called upon to interpret Community law, the need, however, to reach a helpful interpretation of the provisions in question justifies the statement by the national court of the legal context into which the interpretation sought must be placed. The details contained in the question which has been referred enable the category of products which may come within the provision to be ascertained in a general and abstract way.

4. Moerover, since Regulation No 19/62 was repealed and replaced from 1 July 1967 by other provisions of Community law, the Giinther Henck undertaking maintains that the Court cannot give a reply to the question which has been referred on the basis of legal rules which were not applicable at the time of the imports in question.

5. The principle of legal certainty makes it necessary to refer to the state of the law in force when the regulation in question was applied. The wording of the question which has been referred does not prevent the interpretation requested being sought whilst complying with that principle.

6. The Bundesfinanzhof requests the Court to rule whether the expression kibbled maize grain used in Article 1 (d) of Regulation No 19/62 of the Council and mentioned under tariff heading 11.02 A III b in the annex to that regulation must be interpreted as including a product which has had starch extracted from it, still contains 60.5 %, 61.4 % or 62.3 % starch as against 10.7 %, 11.3 % or 10.8 % moisture and has a fat content of 3.28 %, 3.48 % or 3.88 % (ascertained according to the Stoldt-Weibull method). Moreover, the Bundesfinanzhof asks whether other constituents such as proteins or raw fibres must be required to reach certain maximum or minimum levels and whether it is indispensable that the grain has been degermed.

7. Neither Regulation No 19/62 nor Regulation 55/62 define kibbled maize grain within the meaning of the abovementioned tariff heading ex 11.02. In the absence of provisions of Community law on the subject, the Explanatory Notes and Classification Opinions laid down by the Convention on the Nomenclature for the Classification of Goods in Customs Tariffs are authoritative as a valid means of interpreting headings in the Common Customs Tariff. It appears from those notes concerning the headings in Chapter 11 of the Tariff that fragments or floury kernels obtained by the rough grinding of maize which have the essential characteristics of the original product with regard to their composition must be considered, also taking into consideration the practice in the milling of maize and in the maize trade, as kibbled maize grain within the meaning of tariff heading ex 11.02.

8. The national court asks whether the products in question may be degermed and whether the fact that this product has undergone starch extraction can affect its classification in the category of kibbled maize grain within the meaning of tariff heading ex 11.02.

9. The interpretation of a tariff heading must in doubtful cases take into consideration both the function of the customs tariff in view of the needs of the system of organization of the markets and of its purely customs function. Although Regulation No 19/62 included kibbled maize grain within the meaning of heading ex 11.02 in the system of the common organization of the market in cereals and made it liable to the levy system by Regulation No 55/62, this was mainly because of its structure and use and not because of the treatment which it underwent. It follows that kibbled maize grain which has undergone processing enabling certain constituents to be extracted from it continues to come under tariff heading ex 11.02 if it still contains the essential constituents of maize in quantities corresponding to normal variations in the natural content of those constituents in the original product. The act of degerming that product is not sufficient to exclude it from heading ex 11.03 when its constituents fulfil the abovementioned condition and when, as regards its use, it serves purposes comparable to those of grain which has not been degermed. As regards kibbled grain which has undergone starch extraction processing, the abovementioned explanatory notes to the headings in Chapter 11 do not rule out the possibility that cereals, including maize, which have undergone such processing may belong to the chapter in question. Moreover, it appears from the customs tariff which was applicable at that time that only in so far as they are waste do those cereals not come under that chapter but have to be classified amongst the residues from the manufacture of starch within the meaning of tariff heading 23.03. Although in this case the Court cannot interpret the said heading which was not included in the common organization of the market at the time when Regulation No 19/62 was in force but still came within national customs tariffs, it cannot, however, define the scope of tariff heading ex 11.02 without taking into consideration, in respect of products which have undergone starch extraction processing, the dividing line which must be drawn between those products and residues referred to in heading 23.03. The concept of residues implies that kibbled maize grain which still contains 60 % or more starch after undergoing a process of starch extraction may not be considered waste but must because of its starch content be placed under the same tariff heading as that applicable to kibbled grain which has not undergone the same process.

10. For those reasons, the expression kibbled maize grain used in Article 1(d) of Regulation No 19/62 and mentioned under tariff heading ex 11.02 A III b in the annex to that regulation must be interpreted as including a product which, whether or not it has been degermed, has had starch extracted from it and which contains the essential constituents or maize in such proportions that the quantity of those substances corresponds to the normal values of the natural contents of maize.

11. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable and since these procedures are a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Giinther Henck undertaking and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 39, 40 and 177; Having regard to Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals; Having regard to Regulation No 55 of the Council of 30 June 1962; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the question referred to it by the Bundesfinanzhof (Seventh Chamber) of the Federal Republic of Germany pursuant to the order made by that court on 12 January 1971, hereby rules: