JUDGMENT OF 20.6.1973 — CASE 80/72 KONINKLIJKE LASSIEFABRIEKEN v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN

In Case 80/72 Reference to the Court for a preliminary ruling under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven in the case pending before that Court between

THE COURT composed of: R. Lecourt, president, R. Monaco and P. Pescatore (Rapporteur), (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen and A. J. Mackenzie Stuart, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted to the Court

Grounds of judgment

The state of Community legislation at the time of the exports in dispute

On the legal nature and validity of the note in the Annex to Regulation No 1052/68 (Questions 5, 6 and 7)

On the relationship between the classification criteria laid down by Regulation No 1052/68 and the basic Regulations and prior provisions (Questions 1 and 4, and 8 to 13)

On the means of analysis (Questions 2 and 3)

Costs

I —. Facts and procedure

1. Must the provisions of Regulation No 120/67/EEC, read in conjunction with those of Regulation No 360/67/EEC, and of Regulations (EEC) No 122/68, No 372/68 and No 814/68 and/or the contents of the relevant Annexes to those Regulations be interpreted in such a way that for the application of those provisions or those contents, as the case may be, in relation to the grant of a refund on export from the Community, a product such as that now in question, of a composition and with the properties defined by this judgment, must be classified under tariff subheading 11.01 C, and not under tariff subheading 23.02 A, if such product has a starch content of more than 28 % ?

2. Must the provisions mentioned in Question 1 and/or the contents of the Annexes therein mentioned be interpreted in such a way that, in relation to the question under which of the two abovementioned tariff subheading a product such as that in question must be classified, the decisive question is the nature of the product in so far as that nature is apparent, not only from the results of a chemical analysis, and the contents thus determined in cellulose, ash, starch, etc, but also from other characteristic properties which are ascertained not by means of chemical analysis but by other means, eg by means of visual (microscopic) observation, or must this question be answered also by reference to factors other than those mentioned above?

3. Must the provisions of Regulation No 120/67/EEC, if read in conjunction with those of Regulation (EEC) No 1052/68 and of Regulation (EEC) No 1138/68 and/or the contents of the relevant Annexes to those Regulations or, as the case may be, the contents of the Common Customs Tariff, as contained in the Annex to Regulation (EEC) No 950/68, likewise be interpreted in such a way that, for the application of those provisions and/or contents, in relation to the grant of a refund in respect of export from the Community, for the classification of a product such as that now in question under one of the two abovementioned tariff subheadings, a criterion such as that mentioned in Question 2 must be employed?

4. Must the provisions of the Regulations mentioned in Question 1 and/or the contents of The Annexes therein mentioned, read where necessary in conjunction with the provisions of Regulation No 228/67/EEC, be interpreted in such a way that the starch content of the product, where this is decisive for the admission of the product to one of the two abovementioned tariff subheadings, must be determined in the goods as such rather than in the dry material?

5. Do the contents of the footnote to cereal flours on page 1 of the Annex to Regulation (EEC) No 1052/68 — in so far as they lay down that the relevant product, in order to be admitted to the heading therein mentioned, must have a starch content exceeding 45 %, and also, if it is a product of barley, an ash content not exceeding 3 % by weight, and that if either of these conditions is not satisfied, the product must be classified under subheading 23.02 A — form part of the provisions of Regulation (EEC) No 1052/68 itself, and enjoy the same legal force as those provisions?

6. If so, must the provisions of Regulation (EEC) No 1052/68, wherein reference is made to columns 3, 4 and 5 of the Annex to that Regulation, be interpreted in such a way that those references include a reference to columns 1 and 2 of that Annex, and hence also to the contents of that footnote?

7. Are the contents of that footnote devoid of force as being incompatible with the provisions of Article 190 of the Treaty establishing the European Economic Community, on the ground that Regulation (EEC) No 1052/68, on the point dealt with in that footnote, dees not contain any statement of reasons, as required by Article 190?

8. If not, are the contents of that footnote devoid of force as being incompatible with any provision of the Treaty or of a Regulation implementing the Treaty, or with any principle of law underlying the Treaty or such provision, which precludes an amendment in the rules based on the Treaty, such as that contained in the footnote — whereby, for the classification of a product under 11.01 C or under 23.02 A respectively, there is imposed as a criterion a starch content greater or less than 45 %, whereas formerly that criterion was not in force — from being effected in the manner adopted in Regulation (EEC) No 1052/68, namely by means of inclusion in a footnote in the Annex to that Regulation?

9. If not, are the contents of that footnote devoid of force as being incompatible with any provision or with any principle of law, as mentioned in Question 8, which would preclude an amendment such as is mentioned in Question 8 from being introduced without any transitional period?

10. If not, are the contents of that footnote devoid of force as being incompatible with any provision of Regulation No 120/67 EEC?

11. Is Article 4 of Regulation (EEC) No 950/68, in so far as it provides that that Regulation shall come into force on 1 July 1968, devoid of force as being incompatible with the provisions of the first paragraph of Article 191 of the Treaty, or with any other provision of the Treaty, since that Regulation was published in the Official Journal of the European Communities dated 22 July 1968?

12. If so, on what date did that Regulation duly come into force?

13. Are the contents of the abovementioned footnote devoid of force as being incompatible with the provisions of Regulation (EEC) No 950/68 and/or the contents of the Common Customs Tariff, as contained in the Annex to that Regulation?

II —. Observations submitted to the Court

1. The first question which concerns the period prior to 29 July 1968, when Regulation No 360/67 was replaced by Regulation No 1052/68, must be answered in the negative. The main action concerns a processed product based on barley; products having a starch content of less than 28 % are classified under a subheading of tariff heading 23.02, its specification in Regulation 360/67 corresponding completely with the Common Customs Tariff annexed to Regulation No 950/68. It emerges from the wording of subheading 23.02 that a starch content limited to 28 % is one of the criteria deciding the inclusion of a residuary product under either subheading 23.02 A I b 1, or subheading 23.02 A I b 2. It does not serve to ascertain whether the product must be classified under tariff heading 11.01 or heading 23.02; and in particular, that criterion does not appear in the specification of heading 11.01 (cereal flours).

2. Processing the cereal results in a principal products and releases residues. The products in question in the main action are the residues which are milled and pressed, in the processing of barley into pearled barley. The description appearing under tariff heading 23.02 defines the relevant product as the residue of certain operations. As a rule, its characteristics can be ascertained by chemical analysis and visual (microscopic) observation.

3. Regulation No 950/69, on the Common Customs Tariff, adopts the subdivisions of Regulation No 360/67; thus the reply to the third question, relating to the period prior to 29 July 1968, must be identical with that given to the first question.

4. It emerges from Regulation No 228/67 of the Commission of 28 June 1967 on the starch content of compound feeding stuffs, on the content of starch and of ash in brans and on the denaturing of manioc flour and other roots (OJ p. 2925), that the bran content is to be ascertained on the goods as such and not on the dry material.

5. The footnote relating to heading 11.01 (cereal flours), on the first page of the Annex to Regulation No 1052/68 forms an integral part of that Regulation and enjoys its binding force.

6. The reference in Regulation No 1052/68 to Columns 3, 4 and 5 of the Annex would be meaningless if Columns 1 and 2 had to be discounted. In that case, it would be impossible to determine the product to which the provisions on basic products, coefficients and fixed components relate. Articles 5 and 8 of the Regulation explicitly refer to tariff headings and to the products, appearing in Columns 1 and 2 of the Annex.

7. The footnote to the first page of the Annex to Regulation 1052/68 is covered by the general statement of reasons appearing in the recitals to the Regulation, in particular, the second recital; as a working rule, it may be considered as one of the adaptations provided for by that recital.

8. The rule set out in the note in question cannot be considered as merely optional. It involves a modification of Regulation No 360/67, but Regulation 1052/68 in its entirety, which replaced Regulation 360/67 must be regarded as a revision in so far as is necessary, of that Regulation. Moreover, Regulation No 1052/68 as is indicated in connection with the 5th question, in particular Article 4 (1) (c), refers to the note.

9. A principle of law such as that invoked by the ninth question, is not at issue in the present case.

10. With regard to refunds, Regulation No 1052/68 is legally founded on Article 16 (5) of Regulation No 120/67. It is not irreconcilable with the latter, in particular with Article 18. This provision defines the scope of Regulation No 120/67, which cannot be greater or less than that indicated by the descriptions of the disputed headings in the Common Customs Tariff appearing in the Annex to Regulation No 950/68. Regulation No 1052/68 does not infringe this definition. The footnote in dispute only provides that barley flour having a starch content not exceeding 45 % and an ash content exceeding 3 % shall be treated as equivalent to brans, sharps and other residues for the purpose of calculating levies and refunds.

11. As Regulation No 950/68 provided that it should enter into force on 1 July, this was the date of its entry into force, by Article 191 of the EEC Treaty. The fact that publication did not take place until a later date is not irreconcilable with Article 191.

12. Since a negative reply should be given to Question 11, it is unnecessary to reply to Question 12.

13. The footnote to the Annex to Regulation 1052/68 is not incompatible with Regulation 950/68: it only provides that the calculation of levies and refunds for processed products based on barley classified under tariff heading 11.01, but having a starch content not exceeding 45 % and an ash content exceeding 3 %, must be made as though these products fell under tariff heading 23.02 A.

1. It must be noted, with regard to the rules of interpretation of the refunds system, that neither Regulation No 120/67 nor Regulation No 360/67 nor the Regulations of the Commission fixing the amounts of the refunds, contains precise criteria with regard to the specification of products falling under tariff headings 11.01 and 23.02 respectively. The distinction on the basis of starch content and of ash content is effective within tariff positions 11.01 and 23.02 respectively; it is of little use as a means of distinguishing flour from bran. For the description and definition of products falling under the different headings for which refunds are available, the said Regulations have recourse to the unmodified nomenclature of the Common Customs Tariff. Nor does Regulation No 1138/68, applicable to the last export in dispute, contain any further specific directions for the interpretation of the different headings. Article 1 thereof refers expressly to the products described in Regulation No 1052/68, whose Annex contains a particular nomenclature, accompanied by a note applicable to heading 11.01, indicating the boundary between that heading and tariff heading 23.02.

2. With regard to the interpretation of the Common Customs Tariff, it must be considered that Tariff headings of the latter haven been adopted as they are in the refunds system and that they have the same meaning in both cases. Furthermore, unless the contrary is indicated, the description of goods in the Common Customs Tariff, when applied to the refunds system, retains its original scope and meaning for classification purposes. This meaning is to be determined in the light of the canons of interpretation and the principles appropriate to the interpretation of the Common Customs Tariff. According to the case law of the Court, the matters to be taken into account in this connection are, in this order: the terms of the tariff headings themselves, and if necessary, the terms of the Notes and Additional Notes which precede the tariff nomenclature; any rules of interpretation laid down by means of regulations implementing Council Regulation No 97/69 of 16 January 1969 on measures to be taken for the uniform application of the nomenclature of the Common Customs Tariff (OJ L 14, p. 1); in the absence of binding rules, the explanatory notes to the Brussels Nomenclature and explanatory notes to the customs tariff of the European Communities; in the absence of such explanatory notes, or when no conclusion can be drawn from them in the particular case, the Brussels Nomenclature of 1950, the explanatory notes and classification opinions issued by the Nomenclature Committee under the authority of the Customs Cooperation Council in accordance with the Brussels Convention of 15 December 1950; finally, when classifying on the basis of the terms and structure of the tariff provisions of headings 11.01 and23.02 now in question, reference should be made to the quality, observable by tests, displayed by the various principal and secondary products normally obtained in the course of the various operations in processing barley.

3. The distinction between tariff heading 11.01 and 23.02, which was long disputed, has now been settled through the work of the Customs Cooperation Council of Brussels. On the appearance of the new edition of the Brussels Nomenclature of 1972, in the text of the Common Customs Tariff in force after 1 January 1972, an Additional Note has been inserted, relating to headings 11. 01 and 23.02 which states:

(a). On the first question: a starch content of 28 % is so far below the rate of 45 % considered objectively as the correct limit, that it cannot serve as a criterion of distinction between headings 11.01 and 23.02. Regulations Nos 122/68, 372/68, 814/68 and 1138/68 moreover, only use this rate of 28 % to differentiate the various products within heading 23.02 itself.

(b). On the second and third questions: past experience shows that criteria other than the specific content of starch and ash, while not to be rejected outright, do not allow the tariff headings in question to be distinguished with sufficient accuracy. In particular, it is impossible, on the basis of the other criteria, to take sufficient account of the numerous processed products which are common in trade.

(c). On the fourth question: various arguments could be invoked in favour of extending to the refunds system Regulation No 228/67 which is directly applicable only for distinguishing the different tariff headings within the framework of the levy system, in particular the quality of the method of analysis laid down for ascertaining the starch content, and the advantages of adopting the same nomenclature and the same method of analysis for levies and refunds. However, the method of analysis provided for by Regulation 228/67 is concerned only with calculating the starch content and its employment would not in itself give any answer to the question whether the content in starch and ash, which are decisive factors for classification, should be calculated on the goods as such or on the dry material.

(d). On questions 5 to 10: the problems relating to the nature and validity of the footnote to the Annex to Regulation No 1052/68 have little relevance for the result of the main action.

(e). On questions 11 to 13 it should be pointed out that the question of the validity of Regulation 950/68 is irrelevant for the decisions both of the Court and of the College van Beroep. It is true that Regulation No 950/68 gave the Common Customs Tariff the force of law, but the regulations relating to refunds are based on Article 43 of the EEC Treaty, and are autonomous in relation to, and by virtue of Article 38 prevail over, the customs legislation. Furthermore since the note is concerned with a subject legally independent of Regulation No 950/68, and adopts in essentials the nomenclature of the common Customs Tariff, it must, as a rule of derogation concerned with the refunds system, take precedence over Regulation No 950/68 and consequently cannot be rendered void on the grounds that it contradicts it. Regulations Nos 122/68, 372/68 and 814/68 cannot infringe Regulation No 950/68, which was adopted subsequently.

1. By an order of 8 December 1972, lodged with the Registry of the Court on 11 December 1972, the College van Beroep voor het Bedrijfsleven, by virtue of Article 177 of the EEC Treaty, has asked the Court for a preliminary ruling on the interpretation of certain provisions of the Annex to Regulation No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals (OJ p. 2269) and of the Common Customs Tariff laid down by Regulation No 950/68 of 28 June 1968 (OJ L 172, p. 1) in conjunction with implementing Regulations Nos 360/67 of 25 July 1967 (OJ 174, p. 13) and 1052/68 of 23 July 1968 (OJ L 179, p. 8) of the Council on the import and export system for products processed from cereals, including the implementing regulations of the Commission, chiefly in order to decide the validity of a provision forming part of the Annex to Regulation No 1052/68;

2. The questions referred arose within the context of a dispute over the grant of the export refunds provided for in Regulation No 120/67 and over the classification of a product derived from barley, with regard to certain rubrics of tariff headings 11.01, cereal flours, and 23.02brans, sharps and other residues derived from the sifting, milling or working of cereals;

3. Under Article 16 (5) of Regulation 120/67, the Council established certain general rules relating to the grant of refunds, in the first place by Regulation No 360/67, whose Annex adopts the rubrics with which the main action is concerned, adding thereto certain specification intended to clarify the application of the headings and subheadings laid down by Regulation No 120/67;

4. In its turn, the Commission, by Regulations Nos 122/68 of 30 January 1968 (OJ L 29, p. 13), 372/68 of 28 March 1968 (OJ L 78, p. 14) and 814/68 of 28 June 1968 (OJ 149, p. 23) fixed the refunds in accordance with the provisions of Article 16 of basic Regulation No 120/67 and of general implementing Regulation No 360/67 of the Council;

5. The first form of the five exports which gave rise to the case brought before the College van Beroep were effected under the system established by these provisions;

6. Regulation No 360/67 was subsequently replaced by Regulation No 1052/68, the Council, introduced, as emerges from the second recital of the preamble, in the light of experience gained during the first marketing year in which common prices for cereals were applied, so as to bring the previous provisions more into line with the actual situation and the requirements of the trade;

7. The Annex to that Regulation (No 1052/68) retains the rubrics of headings 11.01 and 23.02 ad they appear in Regulation No 120/67 and in the provisions derived thereform, and contains a note common to headings 11.01 and 11.02 which states, Inclusion under this heading is subject to the condition that the product in question has a starch content exceeding 45 % and an ash content not exceeding … 3 % for products based on barley … If either of the two conditions mentioned above is not fulfilled, the product in question shall be classified under Tariff Subheading No 23.02 A on the basis of its starch content;

8. Regulation No 1052/68 was followed by implementing Regulation No 1138/68 of the Commission of 30 July 1968 (OJ L 188, p. 13), governing the fifth and last of the exports which gave rise to the action;

9. By Article 18 of Regulation 120/67, the tariff nomenclature resulting from application of this Regulations shall be incorporated in the Common Customs Tariff from the date on which the latter is fully applied;

10. By the provision, the nomenclature of the Customs Tariff replaced the corresponding provisions of the Annex to Regulation No 120/67, with regard to the tariff headings cited by the reference for a preliminary ruling, when Regulation No 950/68 came into force.

11. Finally, the substance of the note introduced by the Annex to Regulation No 1052/68 has been adopted in the form of an Additional Note preceding the provision of Chapter 11 of the Custom Tariff, on the revision of the latter by Regulation No 2451/69 of 8 December 1969 (OJ L 311, p. 1);

12. From all the questions referred, it appears that the dispute has been caused, in essence, by the insertion in to the Annex to Regulation No 1052/68 of the note whose aim was to clarify the criteria of classification establishing the distinction between Tariff Headings 11.01 and 23.02;

13. In these circumstances, the questions dealing with the legal scope and the validity of the note in dispute should be examined first;

14. The fifth question asks in this connection whether the said note forms an integral part of Regulation No 1052/68 and is therefore to be considered as enjoying the same legal force as the provisions of that Regulation;

15. Altough the provisions in dispute appears in the form of a footnote annotating certain tariff headings, it is an expression of the will of the Council and on that ground forms an integral part of Regulation No 1052/68;

16. Annotations, in various forms, are commonly used in this sphere;

17. The note in dispute is therefore to be considered as enjoying the same legal force as the Regulation;

18. By the sixth question, the Court is asked to state whether the provisions of Regulation 1052/68 referring to columns 3, 4 and 5 of the Annex are to be interpreted in such a way as to include a reference to columns 1 and 2 of that Annex; the note in dispute is appended to a heading set out in column 2;

19. The Annex, which is drawn up in the form of a general schedule, is to be considered as a coherent entity within which the detailed provisions are meaningful only in relation to the schedule as a whole;

20. In particular, the entries in columns 3, 4 and 5 would be meaningless unless they were taken on conjunction with the corresponding rubrics in columns 1 and 2;

21. It follows that the note appended to the rubrics which appear in column 2 opposite headings 11.01 and 11.02 relates to all the provisions of the Annex which concern the said headings, including inter alia subheading 23.02 A which is expressly referred to by the note itself;

22. Any reference in the Regulation to columns 3, 4 and 5 therefore constitutes an implicit reference also to columns 1 and 2 and the note appended thereto;

23. The seventh question asks whether the validity of the note is affected by the fact that Regulation No 1052/68 does not, on the point laid down by the note in dispute, contain a statement of reasons in accordance with the requirements of Article 190 of the EEC Treaty.

24. The requirements of Article 190 of the Treaty are satisfied when the said statement of reasons explains in essence the measures taken in regulations by the institutions;

25. A specific statement of reasons in support of all the details which might be contained in such a measure cannot be required, provided such details fall within the general scheme of the measure as a whole, which in this case cannot be disputed;

26. The validity of the note in dispute cannot therefore be doubted on the ground of the absence of a statement of reasons;

27. The College van Beroep has referred a certain number of questions, first, on the interpretation of the classification criteria laid down by the various relevant regulations, and, secondly, on the validity of the note in dispute, in the Annex to Regulation 1052/68 with regard to the classification criteria fixed by the basic Regulations viz, Regulation No 120/67 and where appropriate, the Common Customs Tariff established by Regulation No 950/68, of which Regulation No 1052/68 is intended to implement;

28. The first question asks whether, with regard to products derived from barley, the criteria of a starch content exceeding 28 % may be taken into consideration as determining the distinction, for the classification of the goods, between tariff headings 11.01 C and 23.02 A;

29. The criterion referred to appears, both in Regulations Nos. 360/67 and 1052/68 and in the Common Customs Tariff, as one of two criteria for classification within one of the subheadings 23.02 A, so that a starch content exceeding 28 % cannot indicate that the goods fall outside the said subheadings;

30. It follows therefrom that the first question must be answered in the negative;

31. The fourth question requires to be answered only in the event of the reply to the first being affirmative;

32. It appears in fact from the order referring the case that the quantities exported whose classification is in dispute have a starch content of approximately 28 %, so that in this case the choice of the basis of analysis — starch content calculated on the goods as such or on the dry material — could have been of decisive importance;

33. Taking account of the reply to the first question, the fourth question is no longer of importance;

34. Questions 8 to 13 request the Court to consider whether the validity of the note in dispute, which has been inserted into the Annex to Regulation No 1052/68, may be challenged as being incompatible with any provision of the Treaty or principles relating to the application thereof (Questions 8 and 9), Regulation No 120/67 (Question 10) or the Common Customs Tariff (Questions 11 to 13);

35. It emerges from the order referring the case that, according to the plaintiff in the main action, the introduction of this note involved a modification of the tariff law established by the provisions of the abovementioned Regulations and was incompatible with them; so important a modification required, at the very least, a transitional period in the interests of legal certainty;

36. The note in dispute cannot be considered as creating an exception to the provisions of the existing Regulations, nor as constituting in itself a modification of the legal situation previously in existence;

37. In this connection it must be recalled that, in the first place, there is no substantial break in continuity between the headings in the Annex to Regulation No 120/67, those of the Common Customs Tariff which were substituted therefor on the entry into force of Regulation No 980/68, the provisions of implementing Regulations Nos 360/67 and 1052/68 of the Council and the Regulations of the Commission based on them;

38. Before the note appearing in the Annex to Regulation No 1052/68 came into force, questions of classification fell to be resolved by the authorities entrusted with the execution of the common agricultural policy, and, as a last resort, by the competent courts, in the light of the general procedures and principles prevailing in the application of the Customs Tariff;

39. In the absence of binding indications for the period prior to the note appearing in the Annex to Regulation No 1052/68, regard may be had to several factors enabling the competent authorities to distinguish between the categories of classification of headings 11.01 and 23.02;

40. It is to be noted that the flours referred to in heading 11.01 must always, of necessity, have a starch content exceeding, and an ash and cellulose content less than that of the original cereal;

41. Explanatory notes were already in existence when the exports in dispute were effected, which, although they were concerned with cereals other than barley, sanctioned the adoption of a starch content of 45 % as a decisive criterion of classification in that sphere;

42. It is therefore clear that the note inserted in the Annex to Regulation 1052/68, far from introducing an innovation into the principles of classification previously in force, restricted itself to establishing precise criteria which were thenceforth authoritatively imposed;

43. It follows that the criteria emerging from that note cannot be considered as conflicting with those previously applied in the context of the normal procedures of interpretation of the Customs Tariff;

44. The various questions which have been referred must be answered in the light of these considerations;

45. The eighth question asks whether the note in dispute is to be considered as devoid of force as being incompatible with any provision of the Treaty or of a regulation adopted in implementation thereof or of a principle of law inherent in the Treaty;

46. It emerges from the order referring the case, the statements of case and the oral arguments that this question is based on the criticisms raised by the plaintiff in the main action on the grounds of the legislative procedure by which the note in question was introduced, described as surreptitious and the legal uncertainty which resulted from that legislative modification;

47. As is set forth above, no criticism can be upheld against the legislative procedure, employed to clarify, authoritatively and for the Community as a whole, the dinstinction between the two tariff headings the interpretation of which had previously given rise to differences of opinion;

48. The note was adopted by legitimate legislative procedure, by the competent authority with the aim of establishing both the agricultural rules and the tariff rules of the Community, and cannot therefore be considered incompatible with a provision of the Treaty or of the secondary legislation, nor with any principle governing the application of these measures;

49. The ninth question asks whether the note in dispute may be vitiated by the fact that it does not provide for a transitional period;

50. In this case it is sufficient to find that the sole objective of that note was to clarify the meaning of two tariff headings in relation to each other, which question was previously left to the judgment of the competent authorities;

51. The tenth question asks, farther, whether that note is to be considered as devoid of force as being incompatible with one of the provisions of Regulation No 120/67.

52. That question appears to be founded on the hypothesis of a possible incompatibility between the tariff headings laid down by the Annex to Regulation No 120/67 and the note introduced by the Annex to Regulation No 1052/68;

53. The tariff headings laid down in the Annex to Regulation No 120/67 have been in no way modified by Regulation No 1052/68; the scope of the latter, as is stated supra, was to clarify the meaning of the two headings in question in relation to each other, in order to eliminate all uncertainty as to their interpretation;

54. In laying down such a provision the Council has kept within the power expressly reserved to it by Article 16 (5) of Regulation No 120/67, which provides that the Council shall adopt general rules for granting export refunds and criteria for fixing the amount of such refunds;

55. The note in dispute, having been adopted within the framework of that enabling provision, cannot be considered as incompatible with the said Regulation.

56. The thirteenth question asks whether there is a possibile incompatibility between the note in dispute and the Common Customs Tariff laid down by Regulation No 950/68;

57. The College van Beroep, asks two further questions as to when Regulation No 950/68 came into force (eleventh and twelfth questions); taking account of the date of the fifth export (16 August 1968), the College van Beroep is uncertain when the Common Customs Tariff came into force; the latter was laid down by Regulation of 28 June 1968, to come into force in terms of Article 4 thereof, on 1 July 1968 and was only published in the Official Journal on 22 July 1968; there is also a possible overlap with the dates determining when Regulation No 1052/68 came into force; the latter was adopted on 23 July, published in the Official Journal on 25 July and came into force on 29 July 1968;

58. It follows from the preceding that there is no break in continuity between the provisions in the Annex to Regulation No 120/67 and the provisions of the Common Customs Tariff which replaced the former from the entry into force of Regulation No 950/68; the provisions of both are substantially identical with regard to the tariff headings in question.

59. The question of the relationship between the note in dispute and the basic tariff rules which served to lay down these headings should therefore be judged in the same way, regardless of whether the Annex to Regulation No 120/67 or the Common Customs Tariff is in question;

60. It is therefore irrelevant to establish which was the basic rule applicable at the time of the export in question.

61. In accordance with the abovementioned grounds, and in the absence of any conflict between the note in dispute and the tariff headings whose delimitation the note is intended to clarify, the legality of that note cannot be doubted;

62. The second question asks whether, apart from the results of a chemical analysis intended to reveal the cellulose, ash, starch etc. contents, in the products in question, account may be taken of other characteristics, established by another means, such as visual (microscopic) observation;

63. The third question asks in addition whether the application of these methods of analysis may have been modified by the effects of the provisions of Regulation No 1052/68;

64. Apart from such methods of analysis as may be imperatively prescribed by the tariff provisions, the competent authorities may apply any appropriate means of analysis or observation including visual (microscopic) observation;

65. Without prejudice to the details it has added on the limits prescribed for the starch and ash contents, the note appended to the Annex to Regulation No 1052/68 has not restricted the freedom of the competent authorities to employ in addition to chemical analysis, such other means of analysis as seem to them appropriate, in order to reach a correct classification;

66. The costs incurred by the Commission of the European Communities, which submitted observations to the Court, cannot be reimbursed;

67. Since, insofar as the parties to the main action are concerned, the proceedings are a step in the action before the national court, it is for the latter court to decide the question of costs.

On those grounds Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties to the main action 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 Article 177; Having regard to the Statute of the Court of Justice of the European Economic Community, in particular Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in reply to the questions referred to it by the College van Beroep voor het Bedrijfsleven by its order of 8 December 1972, hereby rules:

1 Examination of the questions referred has revealed no element of such a nature as to affect the validity of the note relating to the heading cereal flours inserted in the Annex to Regulation No 1052/68 of 23 July 1968. This note forms an integral part of the Regulation and enjoys the same legal force as its provisions, (Questions 5, 7, 8, 9, 10, 11, 12 and 13).

2 The references in Regulation No 1052/68 to columns 3, 4 and 5 of the Annex thereto must be interpreted as references to all the provisions of the Annex, including columns 1 and 2 and the note appended thereto. (Question 6).

3 The criterion starch content not exceeding 28 % which appears in subheading 23.02 A of the Annex to Regulation No 360 of 25 July 1967, and of the Common Customs Tariff, established by Regulation No 950/68 of 28 June 1968 cannot serve to distinguish tariff headings 11.01cereal flours and 23.02brans, sharps and other residues derived from the sifting, milling or working of grains of cereal. (Question 1).

4 The classification of products derived from barley under tariff headings 11.01 and 23.02, respectively, may be ascertained, without prejudice to the classification criteria imperatively prescribed by the Regulations applicable, both by chemical analysis and by any other appropriate means, including visual (microscopic) observation. (Question 2).