JUDGMENT OF 5. 12. 1973 — CASE 125/73 NEUFELD v HAUPTZOLLAMT HAMBURG-WALTERSHOF

In Case 125/73 Reference to the Court under Article 177 of the EEC Treaty by the Hamburg Finanzgericht (IVth 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 the plaintiff

B — Observations submitted by the Federal Republic of Germany

C — Observations submitted by the Commission

Grounds of judgment

Costs

I —. Facts and procedure

1. In order to afford Community cereal producers, as well as guaranteed market prices, a guarantee of sales and income, Regulation No 19 provided for the most cultivated cereals in the various Member States, in particular wheat and barley, as well as maize and rye in Member States having a considerable production of these cereals, a system of levies intended to compensate for the difference between the prices on the world market and the internal guaranteed prices (Articles 4 and 10 of Regulation No 19).

2. In its judgment dated 12 May 1971 in Case 76/70 Wünsche v Hauptzollamt Ludivigshafen, (Rec. 1971, p. 393), the Court ruled that in calculating the treshold price of the cereals mentioned in Article 4 of the Regulation, the basic target price must be reduced, inter alia, by a fixed sum corresponding to the effect of the internal taxes levied on import, such as turnover equalization tax.

3. In 1963 the plaintiff in the main action imported tapioca flour which comes under tariff heading 11.06-A-I from Thailand into Germany and paid on this occasion the levy determined in accordance with Article 14 of Regulation No 19 and Article 7 of Regulation No 55. It brought an action in the Hamburg Finanzgericht (IVth Senate) claiming, inter alia, that this turnover equalization tax payable at the rate of 4 % of the value of the goods should be deducted from the amount of the levy. By order dated 16 March 1973, the Finanzgericht stayed the proceedings and referred the following question to the Court for a preliminary ruling:

4. The order of reference was registered at the Court on 18 April 1973.

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

A —. Observations submitted by the plaintiff

B —. Observations submitted by the Federal Republic of Germany

C —. Observations submitted by the Commission

1. By order date 16 March 1973 filed at the Court Registry on 18 April 1973 the Hamburg Finanzgericht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of various 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 of processed goods based on cereals (OJ 1962, No 54).

2. The question raised deals with the calculation of the levy applicable to tapioca flour covered by the expression processed products in Article 1 (d) and in the Annex to Regulation No 19/62.

3. It appears from these provisions that, contrary to the system instituted by Article 10 (2) of Regulation No 19/62, where the levy may vary according to the differences existing between the c.i.f. and the threshold prices, the system established by Article 14 of this same Regulation and Article 7 of Regulation No 55/62 provides for the application of a levy, the amount of which is calculated by reference to pre-established criteria, i.e. the levy which effectively applies to maize starch on the one hand and the fixed rate indicated by the legislature on the other.

4. Therefore Articles 14 of Regulation No 19/62 and 7 of Regulation No 55/62 must be interpreted as meaning that the amount of the turnover equalization tax imposed on import may not be deducted from the levy.

5. The costs incurred by the Federal Republic of Germany and the Commission of the European Communities, which have 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 a 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 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 Hamburg Finanzgericht by order of that court dated 16 March 1973, hereby rules: