Judgment of the Court of 13 december 1973 Hollandse Melksuikerfabriek v Hoofdproduktschap voor Akkerbouwprodukten (preliminary ruling requested by the College van Beroep voor het Bedrijfsleven)

In Case 150/73 Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven, 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, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart (Raporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

I — Facts and procedure

II — Written observations submitted to the Court

Observations of the Hoofdproduktschap

Observations of the Commission

On the three first questions

On the fourth question

Grounds of judgment

Costs

A —. The facts, the purpose of the application and the views of the parties may be summarized as follows:

I —. Facts and procedure

1. The national proceedings are concerned with the system of export refunds on lactalbumin, manufactured from whey, a product which comes under tariff heading 04.02milk and cream, preserves, concentrated or sweetened.

2. The basic Regulation in the milk sector, Regulation No 804/68 of the Council of the EEC (OJ L 148, 28. 6. 1968, p. 13) provides for the possibility of the grants of export refunds for certain milk products — inter alia lactalbumin — which do not come within Annex II of the Treaty and which are not therefore in themselves agrciultural products. Under the provisions of Article 17 (1) of Regulation No 804/68 a refund may be granted for milk and cream, etc., likewise in the form of lactalbumin.

3. During the period from 30 December 1971 to 29 November 1972 the plaintiff in the main action exported to third countries 32 lots of lactalbumin containing 80 % dry milk fat.

4. The Company Hollandse Melksuikerfabriek appealed on 7 February 1973 against this decision to the College van Beroep voor het Bedrijfsleven.

5. The judgment of the College van Beroep was lodged at the Registry on 16 July 1973.

6. The Hoofdproduktschap voor Akkerbouwprodukten and the Commission of the European Communities filed written observations.

7. Upon hearing the report of the Judge-Rapporteur and upon hearing the Advocate-General, the Court decided not to proceed to a preliminary inquiry.

II —. Written observations submitted to the Court

B —. There followed on 14 November 1973 the oral proceedings, in the course of which the parties to the national proceedings and the Commission were heard.

C —. The Advocate-General delivered his opinion at the hearing on 5 December 1973.

1. By judgment of 13 July 1973, filed with the Registry on 16 July 1973, the College van Beroep voor het Bedrijfsleven referred under Article 177 of the Treaty a number of questions to the Court, concerning the interpretation and, if appropriate, the validity of Regulation (EEC) No 204/69 of 28 January 1969, laying down general rules for granting export refunds for certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds.

2. The questions referred are in particular concerned with the interpretation that ought to be given to the descriptions of goods ovalbumin and lactalbumin as they appear in subheading 35.02-A-II-a of Annex C to that Regulation.

3. It appears from the court record that the national proceedings are concerned with the question whether the Council by using that description intended to place lactalbumin on the same footing as ovalbumin so that the regulations of the Commission fixing the refund for eggs exported in the form of ovalbumin would likewise apply to milk exported in the form of lactalbumin.

4. The effect of the provisions of Regulation No 204/69 must be looked for not in isolation but in the context of the complete system in the matter of export refunds for milk products not covered by Annex II to the Treaty.

5. The basic system for the milk sector, i.e. Regulation No 804/68 of the Council (OJ L 148, 28.6.1968, p. 13) provides by Article 17 (1) the possibility of the grant of refunds for milk products coming under tariff heading 04.02 that are exported in the form of products mentioned in the Annex, inter alia lactalbumin.

6. The general rules concerning the grant — and the fixing of the amount — of refunds are, pursuant to Article 17 (3), to be laid down by the Council.

7. The refunds are pursuant to Article 17 (4), to be fixed periodically by the Commission by the Management Committee procedure.

8. The Council, by its Regulation No 204/69, pursuant to Article 17 (3) of Regulation No 804/68 and a number of basic regulations for other agricultural sectors, laid down general rules for granting export refunds on goods not covered by Annex II to the Treaty.

9. The amount of the refund is, pursuant to Article 2 of that regulation to be obtained by multiplying two factors, i.e. on the one hand the quantity of the basic products listed in Annex A, and on the other hand the rate of refund on the relevant basic product.

10. As regards the quantity of basic products to be taken in respect of the goods included in Annex C, Article 3 lays down the fixed quantities specified in that Annex.

11. As regards lactalbumin and ovalbumin the Annex refers to the same fixed quantity of eggs in shell.

12. Although therefore the provisions of Regulation No 204/69 — as general rules — prescribe an identical method of calculation, by reference to eggs in shell, for refunds upon export of lactalbumin and of ovalbumin, they cannot be interpreted as giving rise to a claim to a refund.

13. A refund for milk exported in the form of lactalbumin could be granted only on the basis of a regulation made by the Commission pursuant to Article 17 (4) of Regulation No 804/68.

14. The Commission has clearly not made such a regulation.

15. Accordingly, whilst the Commission has repeatedly laid down a rate of refund for eggs exported in the form of ovalbumin, this does not give rise to a claim to refund for milk exported in the form of lactalbumin.

16. Accordingly, the reply to the national court must be that though the criteria in Regulation No EEC 204/69, and in particular in Annex C for calculating the amount of export refunds for ovalbumin refer to lactalbumin, this does not imply that the provision of a refund available on export of ovalbumin extends also to export of lactalbumin, in the absence of a special provision in a regulation of the Commission made under Article 17 of Regulation No 804/68.

17. The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, who submitted their 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 as to 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 oral arguments of the parties to the main action, the Government of the Federal Republic of Germany 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 (EEC) No 804/68 of the Council, especially Article 17; Having regard to Regulation (EEC) No 204/69 of the Council, especially Articles 1 to 4 and its Annexes; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, 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 College van Beroep voor het Bedrijfsleven, by order of that court dated 13 July 1973, hereby rules:

1 Language of the Case: Dutch.

2 A quantity resulting from the application of the coefficient fixed for calculating the amount of the import charge.