JUDGMENT OF 5. 12. 1973 — CASE 124/73 KAMPFFMEYER v EINFUHR- UND VORRATSSTELLE GETREIDE

In Case 124/73 Reference to the Court under Article 177 of the EEC Treaty by the Hessisches Finanzgericht (VIIth Senate) for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A — Observations submitted by Firma E. Kampffmeyer

B — Observations submitted by the Federal Republic of Germany

C — Observations submitted by the Commission

Grounds of judgment

Costs

I —. Facts and procedure

1. Having received from the Einfuhr- und Vorratsstelle für Getreide und Futtermittel (hereinafter referred to as the EVstG) of Frankfurt/Main several import licences for denatured flour the Firma E. Kampffmeyer (hereinafter referred to as Kampffmeyer) lodged a complaint regarding the rate of levy fixed by the EVstG in these licences, on the grounds that it had been incorrectly calculated.

2. Firma Kampffmeyer, represented by Walter Roll, of Hamburg, the Federal Republic of Germany, represented by Martin Seidel, as agent, and the Commission of the European Communities, represented by its legal adviser Peter Kalbe, submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A —. Observations submitted by Firma E. Kampffmeyer

1. As regards the inclusion in the calculation of the turnover equalization tax, Firma E. Kampffmeyer first sets out the conclusions which it believes may be drawn from the case law of the Court on this subject, particularly the Judgment in Case 76/70. In the company's opinion it transpires from this Judgment that the German equalization tax had the prohibited effect of a charge having an effect equivalent to a customs duty, once the internal price upon which, for the purposes of the levy, the external price for the imported product is aligned was fixed so as to include amongst those marketing costs taken into account a sum corresponding to the equalization tax. The levy thus calculated, in order not to lead to the prohibited effect of a charge having equivalent effect, should be reduced by the amount of marketing costs necessarily falling upon the importer. This interpretation is in line with the system enshrined in Regulation No 19/62. It also corresponds to that of Regulation No 55/62, which merely contained rules for the implementation of Regulation No 19/62 with regard to processed products and which introduced a levy based on the same principles and with the same objectives as those laid down for the levy introduced by Regulation No 19/62.

2. As regards the inclusion in the calculation of costs of eosination, Kampffmeyer notes firstly that the above comments are substantially relevant to this final question. In the company's view, it cannot be objected that the setting off of the costs of eosination against the levy is incompatible with the general character of the levy system. Tapioca flour which has undergone eosination is a specific product, which is systematically subjected to this treatment. Accordingly, the resulting costs may also be calculated at a flat-rate, the average fluctuating between 2 and 4 DM per metric ton. There is no reason however why the lower figure should not be employed.

B —. Observations submitted by the Federal Republic of Germany

1. As regards the inclusion in the calculation of the turnover equalization tax, the Federal Republic of Germany sets out the objectives of the levy introduced by Regulation No 19/62 and states that the economic machinery for the stabilization of prices was not calculated in the same way for all the products which are governed by this Regulation. It notes, having outlined the method of calculation used in relation to basic products, that as regards processed products, including denatured tapioca flour, the calculation of the levy was carried out according to particular rules, set out in Article 14 of Regulation No 19/62 and in Regulation No 55/62. In fact, it had not been possible to calculate the levy for processed products on the basis of the same criteria as for the basic products in view of the absence of a clearly defined market, with representative prices and qualities which would allow comparisons to be made between the various prices to be taken into consideration for the fixing of the levy. The levy to be applied to processed products was made up of two components, one fixed — which in the case of denatured tapioca flour was almost zero — and the other variable. Pursuant to Article 7 (1) and (2) of Regulation No 55/62 the variable component of the levy for 100 kg of denatured tapioca flour was equal to the levy to be applied to 40 kg of barley.

2. As regards the inclusion in the calculation of the costs of eosination, the Federal Republic of Germany is of the opinion that since Article 7 (2) and (3) (b) of Regulation No 55/62 fixed levies which are very much lower than those applicable to non-denatured tapioca flour, the costs of eosination or other methods of denaturing have already been taken into account. They could not accordingly be taken into account a second time for the fixing of the levy to be applied.

C —. Observations submitted by the Commission

1. By order dated 27 March 1973, filed at the Registry of the Court of Justice on 17 April 1973, the Hessisches Finanzgericht, pursuant to Article 177 of the EEC Treaty, referred two questions on the interpretation of certain provisions of Regulation No 19 of the Council of 4 April 1962, on the gradual establishment of a common organization of the market in cereals (OJ 1962, No 30), and of Regulation No 55 of the Council of 30 June 1962, on the system for products processed from cereals (OJ 1962, No 34).

2. The first question asks whether the provisions of Article 14 (1) (A) (b) of Regulation No 19/62 in conjunction with those of Article 7 (2) of Regulation No 55/62 are to be interpreted in such a way that from the levy for denatured tapioca flour (Tapiokamehl) under No 11.06 of the Common Customs Tariff, the amount of the turnover equalization tax levied on imports of denatured tapioca flour and the costs of eosination are to be deducted.

3. These questions are concerned with the calculation of the levy to be applied to denatured tapioca flour, covered by the term processed products in Article 1 (d) and in the Annex to Regulation No 19/62.

4. The result of these provisions is that, contrary to the system instituted by Article 10 (2) of Regulation No 19/62, where the levy may be varied in proportion to the differences which exist between c.i.f. prices and threshold prices, the system instituted by Article 14 of the same Regulation and by Article 7 of Regulation No 55/62 provides for the application of a levy, the amount of which is calculated with reference to predetermined criteria, namely, on the one hand, the levy applicable to barley, and on the other hand, the fixed rate which was established by the authors of the Regulation.

5. Accordingly the first question should be answered to the effect that the provisions of Article 14 (1) (A) (b) of Regulation No 19/62 read in conjunction with those of Article 7 (2) of Regulation No 55/62, are to be interpreted as meaning that neither the amount of the turnover equalization tax levied on import nor the costs of eosination are to be deducted from the levy applicable to denatured tapioca flour, under Common Customs Tariff heading No 11.06.

6. The first question having been answered in the negative the second question does not arise.

7. The costs incurred by the Federal Republic of Germany and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of 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 Firma E. Kampffmeyer 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 40 and 177; Having regard to Regulation No 19 of the Council of the EEC of 4 April 1962; Having regard to Regulation No 55 of the Council of the EEC 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 Hessisches Finanzgericht by order of that court dated 27 March 1973, hereby rules: