JUDGMENT OF 8. 4. 1976 — CASE 106/75 MERKUR-AUSSENHANDEL v HAUPTZOLLAMT HAMBURG-JONAS

In Case 106/75 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and F. Capotorti, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Summary of the written observations submitted to the Court

(a) On the first question

(b) On the second question

(c) On the third question

Law

Costs

I —. Facts and procedure

1. whether tariff subheading 11.02E I a 1 of heading 11.02 of the Common Customs Tariff rolled barley grains differs from tariff subheading 11.02 E I b 1flaked barley in that, as opposed to rolled barley grains, flaked barley must be manufactured from hulled barley grains (shelled or husked) or whether the difference between those two tariff subheadings merely lies in the fact that flaked barley is more intensively rolled (crushed or ground), without prior hulling of the grains of barley, (involving the removal of part of the hull in the course of this operation) than rolled barley grains;

2. if the first limb of Question 1 is answered in the affirmative: whether the provisions of Article 12 (1) of Regulation No 120/67 in accordance with which all exports from the Community of any of the products listed in Article 1 shall be subject to the submission of an export licence, read together with Article 2 (1) of Regulation (EEC) No 1373/70 whereby the export licence shall authorize and require the exportation of the quantity of the specified product during the period of validity of the licence, mean that Article 16 of Regulation No 120/67 and Articles 1 and 3 of Regulation No 1041/67 confer a right to the granting of an export refund even if the product exported differs from that for which the export certificate was issued;

3. if Question 2 is answered in the affirmative:

II —. Summary of the written observations submitted to the Court

(a). On the first question

(b). On the second question

(c). On the third question

1. By an order of 29 August 1975 which reached the Court on 3 October 1975 the Finanzgericht Hamburg submitted under Article 177 of the EEC Treaty preliminary questions on the interpretation of subheading 11.02 E I a 1 of the Common Customs Tariff.

2. It is asked first of all whether subheading 11.02 E I a 1 of heading 11.02 of the Common Customs Tariff, rolled barley grains, differs from tariff heading 11.02 E I b 1 , flaked barley, in that flaked barley, as opposed to rolled barley grains, must be manufactured from hulled grains of barley (shelled or husked), or whether the difference between those two tariff subheadings lies in the fact that flaked barley is merely rolled (crushed or ground), without prior hulling of the grains of barley, more intensively (involving the removal of part of the husk in the course of this operation) than rolled barley grains.

3. Since no definition of the words flaked barley and rolled barley grains is contained initially in the Common Customs Tariff and since tariff heading 11.02 does not state expressly whether the manufacture of flaked barley involves prior hulling, reference must be made to the Explanatory Notes to the Brussels Nomenclature.

4. It is clear from the foregoing that flaked grains are produced by hulling which consists in removing a part of the husk from the grain.

5. Consequently the reply must be that flaked barley under tariff subheading 11.02 E I b 1 is manufactured from gains subjected to hulling which removes part of their husk and that what distinguishes it from rolled grains of barley under subheading 11.02 E I a 1 is thus not what is removed in rolling.

6. It is then asked, if an affirmative answer is given to the first limb of Question 1, whether the provisions of Article 12 (1) of Regulation No 120/67, in accordance with which all exports from the Community of any of the products listed in Article 1 shall be subject to the submission of an export licence, read together with Article 2 (1) of Regulation (EEC) No 1373/70, under which the export licence shall authorize and require the exportation of the quantity of the specified product during the period of validity of the licence, mean that Article 16 of Regulation No 120/67 and Articles 1 and 3 of Regulation No 1041/67 open a right to the granting of an export refund even if the product exported differs from that for which the export certificate was issued.

7. Article 12 of Regulation No 120/67 of the Council on the common organization of the market in cereals (OJ, English Special Edition 1967, p. 33) provides that exports from the Community shall be subject to the submission of an export licence, the issue of which shall be conditional upon the lodging of a deposit guaranteeing that exportation is effected during the period of validity of the licence and which shall be forfeited if the transaction is not effected within that period.

8. Consequently the reply must be that the product exported may qualify for a refund even if it differs from that for which the certificate was issued.

9. Finally, if Question 2 is answered in the affirmative, it is asked whether, where at the relevant date no rate of refund was fixed for the product actually exported (rolled barley grains under tariff subheading 11.02 E I a 1), there exists a right to the grant of an export refund in respect of the basic product which may qualify for a refund (barley under tariff heading 10.03).

10. The refund is only granted if the exported product is listed in the annex to the regulations fixing the amounts.

11. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

On those grounds, THE COURT in answer to the questions submitted to it by the Finanzgericht Hamburg by order of 29 August 1975, hereby rules:

1 Flaked barley under tariff subheading 11.02 E I b 1 is manufactured from grains subjected to hulling which removes part of their husk and what distinguishes it from rolled grains of barley under subheading 11.02 E I a 1 is thus not what is removed in rolling.

2 Article 16 of Regulation No 120/67 and Articles 1 and 3 of Regulation No 1041/67 may be understood as conferring a right to the grant of an export refund even if the product exported differs from that for which the export certificate was issued.

3 When at the relevant date no rate of refund is fixed for the product which was actually exported there is no right to a refund.

1 The last phrase in parentheses does not occur in the original English version of the Brussels Nomenclature (Translator's note).