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

In Case 14/71 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 (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 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

The jurisdiction of the Court

On the substance of the case

Costs

I —. Summary of the facts and procedure

1. On 4 March 1964, the Gunther Henck undertaking obtained customs clearance for the release to the market of two consignments of a commodity described in the customs declaration as An English product consisting in dry sorghum pulp, a residue of starch manufacture. In accordance with the customs declaration, the customs office classified the commodity in question under tariff heading 23.03 of the German customs tariff, which corresponds to the Common Customs Tariff, which did not provide for the payment of customs duties. Subsequently, on the basis of reports from the Zolltechnische Prüfungs- und Lehranstalt, Cologne, the customs authorities decided to classify the above-mentioned product as kibbled sorghum grain under heading 11.02 A III (b) of that tariff which provides for the application of 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 millet 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 tne European Communities does not raise any objections as to the admissibility of the question which has been referred. It points out that the common organization of the market established by Regulation No 19/62 extends to millet and to sorghum referred to in tariff heading 10.07 and to their secondary products within the meanings of headings 11.01 and 11.02 and that Article 5 of Regulation No 55/62 provides for the application of a levy on (c) cereal groats and cereal meal and on (g) kibbled sorghum. On the other hand, residues of starch manufacture within the meaning of tariff heading 23.03 were not subject to Community regulations at the time when the goods in question were imported.

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 first of all that, of all the kinds of millet, sorghum is a kind which is rich in starch and which according to its use and its processing, is very similar to maize and may sometimes be used as a substitute for the latter. Its use as a foodstuff is very limited in Europe; on the other hand, it is widely used for feedstuffs and starch manufacture. As in the case of maize, kibbled grain, groats, meal, flour and flakes may be obtained as primary products through dry-milling of the sorghum. Secondary products, which are used as animal feedstuffs and the composition of which varies according to the process which is used, especially pulps, glutens, flours etc., are the result of starch extraction. The Commission refers to the observations which it put forward in Case 12/71 for further considerations of a technological nature.

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 certain products, the Bundesfinanzhof gives details as to the composition of this product. The Gunther 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 in question to be ascertained in a general and abstract way.

4. Moreover, since Regulation No 19/62 was repealed and replaced from 1 July 1967 by other provisions of Community law, the Günther 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. In its question, the Bundesfinanzhof requests the Court to rule whether the expression kibbled millet grain used in Article 1 (d) of Regulation No 19/62 of the Council and mentioned under tariff heading ex 11.02 A III b in the annex to that regulation must be interpreted as including unworked fragments of grain similar to those of kibbled milo grain which include in addition many lumps of varying sizes formed by the agglutination of particles of milo, given, moreover, that even where some of their constituent elements have been removed this product still contains 64.3 % or 66.4 % starch, 10 % or 9.7 % crude albumen and 3 % or3.6 % fat. Furthermore, the Bundesfinanzhof asks whether other constituents such as proteins or raw fibres must be required to reach maximum or minimum levels with regard to that product.

7. Neither Regulation No 19/62 nor Regulation No 55/62 define kibbled millet 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 milo 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 milo and in the milo trade, as kibbled millet grain within the meaning of tariff heading ex 11.02. Since any agglutination of this grain into numerous lumps of varying sizes does not involve an alteration in its natural composition, it is not the factor which determines its exclusion from the above defined category of kibbled grain.

8. The national court asks whether the fact that this product has undergone starch extraction can affect its classification in the category of kibbled millet 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 or organization of the markets and of its purely customs function. Although Regulation No 19/62 includes kibbled millet 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 millet grain which has undergone processing enabling certain constituents to be extracted therefrom continues to come under tariff heading ex 11.02 if it still contains the essential constituents of milo in quantities corresponding to normal variations in the natural content of those constituents in the original product.

10. Furthermore, the abovementioned explanatory notes to the headings in Chapter 11 do not rule out the possibility that cereals, including millet, which have undergone such proceeding 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 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 as referred to in heading 23.03. The concept of residues implies that kibbled millet 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.

11. For those reasons, the expression kibbled millet 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 chiefly consists in unworked fragments of grain similar to those of kibbled milo grain which may in addition include many lumps of varying sizes formed by the agglutination of particles of milo. This product comes under the abovementioned tariff heading if some of its constituent elements have been removed if it still contains the essential constituents of milo in such proportions that the quantity of those constituents is not smaller than the normal values of the natural contents of milo.

12. The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable and since these proceedings are so far as the parties to the main action are concerned 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 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 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: