JUDGMENT OF 9. 10. 1973 — CASE 12/73 MURAS v HAUPTZOLLAMT HAMBURG-JONAS
In Case 12/73 Reference to the Court under Article 177 of the EEC Treaty by the Hamburg Finanzgericht, for a preliminary ruling in the action pending before that Court between
THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen and Lord Mackenzie Stuart (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure
Arguments of the parties to the main action before the national bodies
Grounds of judgment of the Hamburg Finanzgericht
On the first question
On the second question
On the third question
II — Observations under Article 20 of the Statute
A — Observations of the Commission
On the first question
On the second question
On the third question
B — Observations of the plaintiff in the main action
On the first question
On the second question
On the third question
Grounds of judgment
On the first question
On the first part of the second question
On the second part of the second question and the first part of the third question
On the second part of the third question
Costs
I —. Facts and procedure
1. Múst Article 15 of Regulation No 121/67/EEC of the Council of 13 June 1969 be interpreted as meaning that a refund on export of products falling under Article 1 of the said Regulation cannot be granted if the amount of the refund appropriate in the particular case exceeds the price in fact paid for the exported product on the home market?
2. If Question 1 is answered in the negative:
3. If Question 2 (b) is answered in the negative:
(a). The relevant conditions, in the opinion of the Hamburg Finanzgericht, are not those which exist in each exporting country of the EEC, but those which exist uniformly in all the Member States, since Regulation No 1041/67/EEC is binding in its entirety and directly applicable in all Member States.
(b). If the meaning and purpose of an export refund is to reduce the higher Community price to the level of the world market price it must be assumed that the quality of the sausages exported is such that they will reach on the world market a price which, taking into account the export refund, will be higher than zero.
II —. Observations under Article 20 of the Statute
A —. Observations of the Commission
(a). The Commission takes the view that the possibility of marketing on normal terms referred to in the recitals to Regulation No 1041/67/EEC cannot be taken to mean that the right to a refund must depend solely on market conditions and on the legislation of a given recipient country. If such were the case, it would be possible for a refund to be granted for goods which were no longer marketable within the Community. No refund should be refused for a product still marketable within the Community, if it has ceased to be accepted as marketable in the recipient country in question.
(b). The Commission points out that cost prices on the domestic market, thus constitute for sausages and the like one of several criteria in deciding whether in this instance, the goods are of marketable quality: any unusual disparity between the price of goods exported and current prices can be a reliable indication — as experience of daily life shows — that the quality is no longer marketable.
1. Sausages and the like (Rohwurst) means primarily sausages within the meaning of the explanatory notes to the Brussels nomenclature, under heading 16.01, paragraph one.
2. The distinguishing feature, in relation to other kinds of sausage, is that preparation does not involve cooking and the ingredients are neither cooked nor treated beforehand.
B —. Observations of the plaintiff in the main action
1. By Order of 25 January 1973, lodged at the Registry of the Court on 21 February, the Hamburg Finanzgericht referred a number of questions, pursuant to Article 177 of the EEC Treaty, on the interpretation of Article 15 of Regulation No 121/67/EEC (OJ No 117, p. 2283/67), of Article 6 of Regulation No 1041/67/EEC (OJ No 314, p. 23), of sub-heading 16.01 B 1 a) and c) of Annex II to Regulation No 137/67/EEC (OJ No 122, p. 2395) and of the Annex to Regulation No 222/68/EEC (OJ 1968, L 49, p. 5).
2. The first question asks the Court to say whether Article 15 of Regulation No 121/67/EEC is to be interpreted as meaning that an export refund cannot be granted if the amount of the refund exceeds the price in fact paid for the exported product (in this case, a batch of sausages) on the home market.
3. This provision lays down that, to allow the export of the products listed in Article 1 of the above Regulation on the basis of world market rates or prices, the difference between these rates and prices and Community prices may be recovered by means of an export refund.
4. Thus the grant of a refund is not necessarily excluded if the amount of the refund exceeds the price in fact paid on the home market.
5. If Question 1 is answered in the negative, the Court is asked whether the criteria as to quality provided by Article 6 of Regulation No 1041/67/EEC are to be determined according to the commercial customs and the health regulations of the Member States or according to those of the recipient countries.
6. Under the provisions of Article 6, the refund is only granted for products in free circulation within the Community which are of sound and fair marketable quality and, in the case of products intended for human consumption, which have characteristics or are in a condition such as do not exclude or substantially impair their use for that purpose.
7. In the absence of any express reference to the laws or customs of a third country a Community provision must be interpreted in relation to and in the context of its own sources.
8. Therefore the question whether products for which an export refund is claimed are in conformity with the requirements set out in Article 6 of Regulation No 1041/67 must be examined on the basis of criteria in force within the Community.
9. The Court is requested by the second part of the second question to state whether it is to be deduced from the fact that the amount of the refund exceeds the price in fact paid for the product on the home market that the product does not conform to the required standards of quality.
10. If the answer is negative, the first part of question 3 requests an interpretation of the phrase of sound and fair marketable quality.
11. These questions, being closely connected, will be examined together.
12. This requirement, contained in Article 6 of Regulation No 1041/67, constitutes a general, objective condition for the grant of a refund, whatever the requirements as to category and quality laid down by the Regulations fixing the amounts of refund for each product.
13. The second part of the third question is principally concerned to obtain the proper interpretation of the descriptions of the goods designated sausages and the like and other, within the meaning of Annex II (c) ex. 16.01 B 1 a) and b) of Regulation No 137/67/EEC of the Council of 13 June 1967 and that of the Annex to Regulation (EEC) No 222/68 of the Commission of 23 February 1968.
14. The wording of this sub-heading in the authentic texts in all the official Community languages gives prime importance to the fact that the product in question should have been preserved to a certain extent by a drying process.
15. The classification of a product under sub-heading 16.01 B 1 a) presupposes that its ingredients have beens subjected to a drying process and that moreover they are composed of meat, not merely of offal.
16. Sub-heading 16.01 B 1 c) is a residual heading in which are classified all sausages and the like and other similar products composed of meat, offal or blood, within the meaning of the abovementioned explanatory notes, which cannot be included under the other headings.
17. The costs incurred by the Commission of the European Communities, wich has submitted observations to the Court, are not recoverable and as these proceedings are, insofar 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 observations of the plaintiff in 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 Regulation No 121/67/EEC, especially Article 15; Having regard to Regulation No 1041/67/EEC, especially Article 6; Having regard to Regulations Nos 137/67/EEC and 222/68/EEC; 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 questions referred to it by the Hamburg Finanzgericht by order of that court dated 25 January 1973, hereby rules:
1 The question whether products for which an export refund is claimed meet the requirements as to quality laid down by Article 6 of Regulation No 1041/67 must be assessed on the basis of criteria in force within the Community.
2 A product which could not be marketed within the Community under normal conditions and under the description given in the claim for a refund would not meet these requirements as to quality.
3 The classification of a product under sub-heading 16.01 B 1 a) presupposes that its ingredients have been subjected to a drying process and moreover that they are composed of meat, not merely of offal.