JUDGMENT OF 14. 7. 1971 — CASE 13/71 HENCK v HAUPTZOLLAMT EMMERICH

In Case 13/71 Reference to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof, Seventh Chamber, for a preliminary ruling 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 (Raporteur), 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 the 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

On the jurisdiction of the Court

On the substance of the case

Costs

I —. Summary of the facts and procedure

1. On 23 and 31 March 1964, the Gunther Henck undertaking obtained customs clearance for the release to the market of consignments of a commodity described in the customs declaration as maize grits, a food product intended for human consumption, without sugar or as maize grits, a food product which is not described or included elsewhere, intended for human consumption, without sugar. In accordance with the customs declaration, the customs office classified these products in subheading 21.07 B of the German customs tariff, which corresponds to the Common Customs Tariff and which provides for the payment of customs duties in addition to die countervailing charge. Subsequently, on the basis of reports from the Zolltechnische Prüfungs- und Lehranstalt, Cologne, the customs authorities decided to classify the products in question as maize groats or meal in subheading 11.02 A III b of that tariff and thus to demand additional duty as 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 maize groats 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 declares that it has no objections as to the admissibility of the questions which have been referred. It points out that when the goods in question were imported, maize products came within the common organization of the market laid down by Regulation No 19/62 in which Article 5 (1) of Regulation No 55/62 referring to: (b) maize groats and meal, (d) hulled maize grains and (g) kibbled maize grains provided that a levy should be charged. On the other hand, food preparations not elsewhere specified or included in tariff heading 21.07 were not made subject to any Community price or import regulations.

A —. The Henck undertaking recalls the observations which it put forward in Case 12/71 as to the meaning of the concept of kibbled maize grain, at least in March 1964. The concept of maize groats or meal must now be defined on the basis of that concept. For this purpose, the Henck undertaking makes inter alia the following points:

B —. The Commission of the European Communities considers that the products described in the order for reference must be considered according to the correct interpretation of Article 5 (1) of Regulation No 55/62 as groats within the meaning of (b) of that provision. From the point of view of tariff classification, heading 11.02 of the Common Customs Tariff applies to the products which result from the milling of maize and which have undergone the processes laid down in that same heading with the exception of the flours referred to in tariff heading 11.01 and residues within the meaning of Chapter 23. Under the Explanatory Notes to the Brussels Nom enclature according to the degree of grinding or milling or the different stages of treatment, groats, meal and hulled or kibbled grain can be distinguished amongst the chief products resulting from dry milling. With regard to the classification of these products within tariff heading 11.02 and Regulation No 55/62, the Commission relies inter alia on the Explanatory Notes to the Brussels Nomenclature on heading 11.02 and points out that in the absence of a different definition it must be acknowledged that the Community legislature re-enacted tariff heading 11.02 in Regulation No 55/62 with the meaning attributed to it by the abovementioned notes. It follows from the description given by these notes that groats or Grobgrieß are small fragments obtained by the rough grinding of cereals and that meal or Feingrieß consists in even smaller fragments obtained from the further processing of the groats, whilst kibbled grain or geschrotete Getreidekorner are grains resulting from a more rough and irregular grinding process than that which gives rise to groats.

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 several questions on the interpretation of Article 1 (d) of Regulation No 19 of the Council of 4 April 1962 (OJ 1962, No 30) under Article 177 of the Treaty establishing the European Economic Community.

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 that 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 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 in which the interpretation which is sought must be placed. The details contained in the questions which have been referred enable the category of products which may come within the provision in question to be determined in a general and abstract way.

4. In addition, since Regulation No 19/62 was repealed and placed by other provisions of Community law from 1 July 1967, the Giinther Henck undertaking maintains that the Court cannot reply to the question which has been referred by basing its reply on legal rules which were not applicable when the product in question was imported.

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

6. In its first question, the Bundesfmanzhof requests the Court of Justice to rule whether the expression maize groats 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 is the result of rough grinding of hulled maize grain from which the germ has been removed and the grains of which are coarser than those of maize meal of merchantable quality and which in other words ought rather to be described as groats. The Bundesfinanzhof asks in addition whether account must be taken for this purpose of the fat content and in particular whether a fat content of 0.9 % to 1.5 % must be considered necessary and sufficient.

7. Neither Regulation No 19/62 nor Regulation No 55/62 which was issued in implementation thereof define maize groats' within the meaning of tariff heading ex 11.02 and Article 5 (1) (b) of the latter regulation. In the absence of provisions of Community law, the Explanatory Notes and the Classification Opinions laid down by the Convention on the Nomenclature for the Classification of Goods in the Customs Tariffs are authoritative as a valid means of the interpretation of headings in the Common Customs Tariff. It follows from those notes on the headings in Chapter 11 of the Tariff that floury fragments which are less coarse and irregular than kibbled grain but the granules of which are coarser than those of meal and which are derived from the milling of hulled maize grains which have been degermed must be considered as maize groats' within the meaning of tariff heading ex 11.02, in view also of the practice in the milling of maize and in the maize trade. Moreover this conclusion is confirmed by the definition subsequendy given to these products in Article 2 of Article No 1011/70 of the Commission of 29 May 1970.

8. As regards the fat content, it follows from Regulation No 55/62 that it is not decisive in the present case. In any case, since the production of groats presupposes that the maize grain has previously been processed, its fat content in relation to the dry material is necessarily very low.

9. For those reasons, the answer to the first question must be that the expression maize groats used in Article 1 (d) of Regulation No 19/62 and mentioned under heading ex 11.02 A III (b) in the annex to that regulation must be interpreted as including floury fragments which are less coarse and irregular than kibbled grain but the granules of which are coarser than those of meal and which are derived from the milling of hulled maize grain which has been degermed.

10. Since the answer to the first question is in the affirmative, the other questions which have been referred by the national court now have no purpose.

11. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable and since the proceedings are, so far as the parties to the main action are concerned, a step in the action pending before tie 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 observations of the Günther 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 Regulation No 1011/70 of the Commission of 29 May 1970 on certain quality requirements for maize groats and meal used by the Community brewing industry; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, 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 in accordance with the order of that court on 12 January 1971, hereby rules :