Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The College van Beroep voor het Bedrijfsleven by order dated 2 May 1972 has referred two questions for a preliminary ruling under Article 177 of the EEC Treaty in connexion with the proceedings pending before it between the company Granaria and the Produktschap voor Veevoeder (a Netherlands authority having functions in the law of the organizations of the market).

The first question is worded as follows:

In the event of this question's being answered in the affirmative the court would further like to know whether any provision of the Treaty establishing the European Economic Community or of any regulation based on this Treaty and in particular of any of the EEC regulations mentioned in the present order provide for the possibility that the national authorities of a Member State may make use of a provision like that of Article 12(1) of the In- en Uitvoerbesluit Landbouwgoederen 1963 in conjunction with Article 2(g) of the In- en Uitvoerbeschikking Produktschap voor Veevoeder 1963 or like that of Article 15(l)(d) of the Beschikking Landbouw-heffingen- en restitutieregime 1968 II for the granting of exemption from an obligation to pay the levy referred to in Article 14 of Regulation No 120/67/EEC in connexion with the import into the Community of a product falling under heading No 23.02 referred to in Annex A to that regulation. For an understanding of these questions the following observations are called for.

In the period from 18 July 1968 to 13 July 1970, the plaintiff in the main action regularly imported a maize product called hominy chop specified into the Netherlands from South Africa. In accordance with the plaintiff's declarations and after the taking of random samples, this product was assigned to tariff heading No 23.02, that is the heading number having the description: Bran, sharps and other residues derived from the sifting, milling or working of cereals. Since this heading number is listed in Annex A to Regulation No 120 on the common organization of the market in cereals, the levies due under this regulation and the relevant implementing regulations were charged. Apparently, as the plaintiff learned at the end of 1969, classification was made under heading No 23.04 B on the import of hominy chop specified and comparable products into Belgium and the Federal Republic of Germany, that is under the tariff heading which has the description oilcake and other residues (except dregs) resulting from the extraction of vegetable oils. In view of the fact that this heading number is not covered by any levy rules, these imports remained free of levy. The same is said to have happened on the import of comparable products into the Netherlands from the USA. In any case, about 17 July 1970, the Netherlands authorities arrived at the view that hominy chop specified belonged not under heading No 23.02 but under heading 23.04 B and could therefore be imported free of levy. Having regard to these facts, Granaria wrote on 10 September 1970 to the Produktschap voor Veevoeder for the refund of the levies paid by it. This was, however, rejected in respect of consignments subjected to the levy before 10 August 1970, on the grounds that it was not apparent that the levy had been wrongly charged and that alteration of the tariff classification was not a measure with retroactive effect.

since Granaria did not accept this, it brought an action before the College van Beroep voor het Bedrijfsleven and thus initiated the proceedings from which the two questions mentioned at the beginning arose. That court considers that the questions are material to its judgment because it does not appear sufficiently clear from the descriptions of the imported goods given by the parties (which have not been contested) whether classification under heading No 23.02 is really appropriate. Moreover, the court is faced with the fact that, in the event that classification should be under heading No 23.02, a refund of the levies could be made only on the application of the Netherlands provisions on exemption from levies, as is mentioned in the second question. In this respect the court needs to know whether the application of these provisions is compatible with Community law.

My opinion on these two questions which I have thus set out is as follows.

1. First, on the question whether heading No 23.02 of the Common Customs Tariff quoted in Annex A to Regulation No 120 (OJ, English Special Edition 1967, p. 33) is to be interpreted as meaning that it covers products corresponding to hominy chop according to their preparation, composition and qualities.

2. Question 2

The further question raised by the national court arises it is true only in the event of the Court's answering the first question in the affirmative (which, because this would mean the application of law, is in fact not possible).

It is permissible, however, to understand the national court to mean that the second question should be dealt with if this Court takes the view that it is possible that the products in question have to be classified under heading No 23.02. Since I consider that this may be said in respect of the first question, I must in consequence deal with the second.

As is known, the national court would like to know whether any provisions of the Treaty or a Community regulation empower national authorities to apply provisions of exemption as in the law of the Netherlands and thus to exempt from payment of the levies.

On this it must be recalled at the outset that Article 12 of the 1963 regulation concerning import and export of agricultural products adopted under the Netherlands import and export law provided that the competent minister should have power on application to grant exemptions from the provisions adopted in accordance with Article 7 (and thus inter alia from Community levies on goods coming under heading No 23.02) and that this power was delegated to the defendant in the main action by the In- en Uitvoerbeschikking Produktschap voor Veevoeder 1963. It should further be mentioned that after the repeal of this Beschikking with effect from 31 October 1968 the said Produktschap had the power as from 1 November 1968 on the basis of Article 15 of the Beschikking Landbouwheffingen- en restitutieregime 1968 II to grant exemption from the obligation to pay the levy if the levy was wrongfully charged (which is not so in the present case) and in certain cases on grounds of natural justice. The second question should be answered in the light of these provisions.

If the question is considered according to its actual wording, the relevant answer may certainly be given without lengthy discussion. As the Commission has said, there is nowhere in the Treaty or in derived Community law a provision to be found which empowers the national authorities to grant exemptions from the obligation to pay the levy. Rather, the relevant provisions lay down an unconditional obligation to charge the levy where the appropriate conditions apply. On this, reference may be made to Articles 14 and 15 of Regulation No 120 and also to the regulations of the Commission fixing the levies. A provision in Article 120 on the possibility of prohibiting the use of inward processing arrangements is of interest in this connexion. Taken literally this second question must accordingly be answered in the negative.

As the Commission has shown, the question may, however, be understood in a further sense, namely whether exemptions from the rules on levies, as the national court has in mind, are compatible with Community law. The following observations arise on this interpretation.

Reference must first be made, as the Commission does, to the extensive case-law relevant in this connexion. In fact, on the problem of the application of Community law by national authorities, a principle has been repeatedly emphasized in this case-law that the scope of Community law provisions cannot be affected by national rules; it is only national provisions on form and procedure which are relevant in the application of Community law and only then to the extent required to implement Community law. The Commission has carefully collected the numerous judgments relevant in this respect in its statement. The main thing in the light of these is, for present purposes, however, that the Netherlands provisions on exemption, with which the national court is concerned, relate not only to provisions on form and procedure but to provisions which affect substantive Community law since their aim is not to make the levy in the particular case.

Then, for an assessment of the compatibility of these Netherlands rules with Community law, a further consideration raised by the Commission is important. As is known, the common organizations of the market are intended, by means of a complete system of price guidance in the Community, to ensure a fair standard of living for the agricultural community. On this basis it can certainly not be permitted that the prices of imported goods should, as a result of the remission of levies, fall below the level provided for. This applies in any event if the goods go into free circulation in the Community, are available within the Community and are thus able to influence the level of prices. This is doubtless not altered, to limit the inquiry to the questions in the main action, if other imports come into the Community duty-free, that is, on the grounds that in such cases the principle of equality requires exemption and that there is no fear in such cases of the market's being influenced in the aforementioned manner. If some cases of incorrect classification have occurred which have led to levies not being charged, then if this practice were made general there would be a further danger to the domestic price level. Moreover, on principle in such cases there can be no unilateral action on the part of the Member States with all the dangers for the functioning of the organizations of the market arising from this, but intervention must be solely at a Community level, possibly in the form of a speedy harmonization of practice being attempted by the authorities responsible for classification.

Without exhausting the questions related to the national exemption from the obligation to make the levy in particular cases, it may be said in the present connexion that where the conditions mentioned by the Commission exist the system of Community law excludes use being made of provisions for exemption such as those contained in Netherlands law.

3. To summarize, the questions referred should be answered as follows:

1 Translated from the French.