Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

The parties in the main action are disputing whether the plaintiff has acquired in respect of exports to third countries in 1965 of a compound animal feeding-stuff made of cereals the right to a refund in the form of a licence for the importation, with exemption from the levy, of barley, maize and millet. The defendant had revoked a series of such licences when it was shown that of the products which come within the common organization of the market in cereals the exported mixture had only contained 2 % of tapioca meal and was once more separated into its constituents abroad so as to reimport into the Community the main component, tapioca chips. The defendant contests that the exported mixture is one of the products subject to a refund in accordance with Regulation No 19, Regulation No 166/64/EEC and Regulation No 171/64/EEC and that from the point of view of the law on refunds the exportation was unimpeachable.

The Hessisches Finanzgericht stayed the proceedings by order of 1 December 1976 and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

1. Does Regulation No 171/64 of the Commission of the EEC apply also to compound animal feeding-stuffs without the addition of powdered milk? 2. If the answer is in the affirmative, are the words in Article 1 (a) thereof for each of the three cereals and in proportion to the quantities thereof to be interpreted as meaning that (a) only a product in the preparation of which cereals had in fact to be used is to be regarded as a compound animal feeding-stuff made of cereals; or (b) is the expression the quantities thereof to be regarded as notional for calculating the amount of cereals to be taken as the basis for the refund (in the same way as in Article 4 of Regulation No 166/64 of the Council of the EEC for the charging of the levy)? 3. If Question 1 is answered in the negative or Question 2 (b) is answered in the affirmative, then with reference to the possibility of granting a refund for compound animal feeding-stuffs (Article 1 (d) of and the Annex to Regulation No 19/62 of the Council of the EEC; Article 1 of Regulation No 166/64 of the Council of the EEC) did such a grant depend upon the extent to which the animal feeding-stuff contained products to which Regulation No 19 applied, and, in particular, did the admixture of 2 % of a product upon which a levy was chargeable, such as tapioca meal, suffice to demand in this way a refund amounting to 100 % exemption from the levy for imports of cereals from third countries? 4. If the first part of Question 3 is answered in the negative, are the coefficients which, pursuant to Article 10 together with Article 4 of Table A of the Annex to Regulation No 166/64, are to be applied according to the starch content of the animal feeding-stuff with due regard to Article 15 thereof (Cereals… actually used in compound feeding-stuffs) to be interpreted as meaning that the starch content of a product which determines the coefficient had to be derived from products to which Regulation No 19/62 applied? 5. If the first part of Question 3 is answered in the negative, the second part thereof in the affirmative and if Question 4 is also answered in the negative, are not the relevant provisions of Regulation No 166/64/EEC invalid to the extent to which they fix for products listed under tariff heading 23.07 of the Common Customs Tariff a standard refund applicable irrespective of the quantity, whether negligible or substantial, of products upon which the levy is chargeable contained in those products (which was the ruling given by the Court in its judgment of 9 March 1976 in Case 95/75, [1976] ECR at p. 369 with regard to fixing of a levy)?

II —. Before I examine the individual questions, I would like to give a short survey of the legal situation at the time of the exportation in question.

III —. I therefore suggest that the questions which have been referred to this Court for a preliminary ruling should be answered as follows:

1 Translated from the German.