Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
Introduction
1. The Finanzgericht Hamburg (hereinafter referred to as the national court) has referred the following question to the Court of Justice:
2. Article 30 of that regulation, on which the Court has not yet been requested to give a ruling, must be viewed in the light of the general principle that also finds expression in Articles 6 and 9 of the regulation, namely that unless otherwise provided for, the provisions for the application of the Common Customs Tariff and the rules for its interpretation are also applicable to monetary compensatory amounts because they complement the intervention measures provided for in the context of the common organization of agricultural markets. The first two paragraphs of Article 30 expressly provide that Additional Notes to certain chapters of the Common Customs Tariff are to apply, mutatis mutandis, to monetary compensatory amounts. One of those is Additional Note 3 to Chapter 11 (the relevant chapter in this case), which was inserted by Regulation (EEC) No 3324/80 and introduces for mixtures falling within the chapter in question a calculation (of duty) which corresponds to the calculation (for the monetary compensatory amounts to be granted) provided for in Article 30(3). Article 30(3) introduces special provisions in regard to monetary compensatory amounts for mixtures falling within Chapters 2, 10 and 11 of the Common Customs Tariff.
3. The divergence of opinion between the applicant in the main proceedings, (hereinafter referred to as Rheinkrone) and the Commission, which in its observations supported the position of the defendant in the main proceedings, Hauptzollamt Hamburg-Jonas (hereinafter referred to as the Hauptzollamt), may be broken down into two elements which to a certain extent are reflected in the question raised by the national court.
Facts and main proceedings
4. The facts are described in paragraphs 2 to 6 of the Report for the Hearing. I shall briefly summarize them here. During the period from August 1981 to August 1984, the applicant in the main proceedings applied for the grant of monetary compensatory amounts for the export from the Federal Republic of Germany to the Netherlands of a product obtained by mixing wheat flour (between 80 and 90% by weight) and wheat bran (between 10 and 20% by weight). Rheinkrone declared the product in question as wheat flour falling under subheading 11.01 A of the Common Customs Tariff.
5. Note 2 to Chapter 11 of the Common Customs Tariff, the chapter concerning Products of the milling industry; malt and starches; gluten; inulin, contains rules for distinguishing cereal flours, that is to say Heading 11.01, from Headings 11.02 and 23.02. Heading 11.02 comprises cereal groats and cereal meal; other worked cereal grains (for example, rolled, flaked, polished, pearled or kibbled but not further prepared) ... ; germ of cereals, whole, rolled, flaked or ground (hereinafter referred to as cereal groats). Heading 23.02 covers Bran sharps and other residues derived from the sifting, milling or working of cereals or of leguminous vegetables(hereinafter referred to as bran). This heading forms part of Chapter 23, Residues and waste from the food industries; prepared animal fodder.
6. As indicated above, Rheinkrone declared the product in issue as wheat flour falling under subheading 11.01 A. That declaration was confirmed by the analysis carried out on a number of samples by the Zolltechnische Prüfungs- und Lehranstalt (Customs Laboratory and Training College), Berlin, in accordance with the criteria laid down in Notes 2 A and 2 B.
The preliminary question
7. The question for the national court is whether this new conclusion on the part of the Hauptzollamt is justified. Initially the national court referred to the Court an additional question relating to legitimate expectations in connection with the Haupt-zollamťs change in attitude, but this question was subsequently withdrawn. The only remaining question is thus the one which logically precedes it, whether a finished product obtained by mixing wheat flour (subheading 11.01 A) and wheat bran (subheading 23.02 A II) which, on the basis of the rules of the Common Customs Tariff, applied in this case after an analysis of samples, is wheat flour within the meaning of subheading 11.01 A of the Common Customs Tariff must be regarded as a mixture of those two products within the meaning of Article 30(3) of the regulation on the application of monetary compensatory amounts.
Arguments of the parties
8. In the first place, the question arises as to the interpretation of the expression mixtures falling within Chapter 2, 10 or 11 of the Common Customs Tariff. Whether the word en in the Dutch version, which corresponds to the word und in the German version in fact conveys less accurately the intention of the legislature than the word ou in the French version is not directly relevant to the solution of the dispute, which has no connection with Chapters 2 and 10. The question, however, is whether the enumeration of those three chapters is exhaustive. The wording of the provision suggests such a conclusion, and in their observations Rheinkrone and the Commission are agreed on that point. The conclusions which Rheinkrone and the Commission draw from this observation are not identical as regards the reply to be given to the second part of the question.
9. In relation to the question which must now be examined first, namely whether the product in question is a mixture within the meaning of Article 30(3), the Commission put forward two arguments, one concerning the general meaning of the term mixture as used in the Common Customs Tariff and the other concerning the specific objectives pursued by monetary compensatory amounts.
10. As regards the meaning of the expression mixture in Article 30(3), Rheinkrone takes as its starting point the judgment of the Court of 1 July 1982 in Case 145/81 Hanptzollamt Hamburg-Jonas v Wünsche [1982] ECR 2493, which concerned export refunds for compound feedstuffs. At paragraph 10 of the judgment, the Court based itself on Note 2 A to Chapter 11 of the Common Customs Tariff (quoted above at point 5), a provision which classifies products derived from the milling of cereals under Chapters 11 or 23 of the Common Customs Tariff. The Court drew the following conclusions:
Assessment
11. After this extensive account of the parties' arguments, I can be relatively brief in formulating my own assessment. I should, however, state that I have some sympathy for the positions defended by both parties and that it is not without some hesitation that I have reached a conclusion. To explain my point of view let me set out two possible lines of reasoning.
12. The problem with the line of reasoning favourable to the Commission's viewpoint is that it relies on a rather problematic definition of the term mixture in the Common Customs Tariff. Neither General Note A 2 (b), nor General Note A 3 (b) seek to give a definition of mixtures, but are intended to enable products to be classified under headings; the concept of a mixture is described there only incidentally. Might one not have expected the Commission, as the legislative authority, to have included a clear provision in Regulation (EEC) No 1371/81? That is true in particular of products such as the goods in question which can be manufactured in two different ways, one of which, the one used by Rheinkrone in the present case, constitutes a mixture but the other not, and in order to ascertain ex post facto which of the two methods was applied one can only rely on the manufacturer's declarations.
13. Now that I have arrived at the conclusion that Rheinkrone's product is a mixture within the meaning of Article 30(3), even though that product constitutes wheat flour falling within subheading 11.01 A of the Common Customs Tariff, I must briefly go into the second part of the question, that is to say whether mixtures of products certain components of which fall under chapters of the Common Customs Tariff other than Chapters 2, 10 and/or 11 are also covered by the term mixture in Article 30(3). On this point I agree with the opinion snared by the parties. It seems to me evident that the terms of Article 30(3) must be understood as being exhaustive. Does that, however, imply that the applicant's product escapes the application of the abovementioned provision on the ground that it is a mixture of wheat flour (subheading 11.01 A) and wheat bran (subheading 23.01 A II)? Here again I am unable to share the applicant's point of view. My opinion is based on the abovementioned General Rules A 2 (b) and A 3 (b) of the Common Customs Tariff. Those provisions are intended to facilitate the classification in a single heading of composite products consisting of mixtures or combinations of materials, or mixed products consisting of different materials or made up of different components. It follows that there is no contradiction between the fact that a product may constitute a mixture and its classification in a tariff heading. In other words, although it is a product falling within tariff subheading 11.01 A, wheat flour mixed with wheat bran nevertheless constitutes a mixture within the meaning of the Common Customs Tariff and Article 30(3) of Regulation (EEC) No 1371/81. Or again: the fact that a product is classified in a single tariff heading does not prevent that product from being a mixture.
Conclusion
14. On the basis of the foregoing considerations, I propose that the Court should reply to the question raised by the national court as follows:
1 Original language: Dutch.
2 See Ankle 1(2) of Regulation (EEC) No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (OJ, English Special Edition 1971 (I), p. 257).
3 Council Regulation (EEC) No 3618/86 of 24 November 1986 amending Regulation (EEC) No 3331/85, amending Regulation (EEC) No 950/68 on the Common Customs Tariff (OJ L 345, 8.12.1986, p. 1, at pp. 60 to 61).
4 Analogous rules with regard to cereal product; derived from the milling of rye, barley, oats, maize, rice and others are not relevant to these proceedings.
5 The A indicates wheat products; see the previous footnote.
6 3. When, for any reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: ... (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets, which cannot be classified by reference to 3(a) snail be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable.
7 General Rule A 1 :The titles of sections, chapters and subchapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.
8 It should be noted that the Commission has not really stated its views on this argument. In its observations, u does make reference to two methods of mixing (see above at point 9). However, both cases concern separate products which have been mixed (cither flour and bran from stocks or flour and bran from the same consignment of cereals) and not a product derived from a single milling operation (as described at point 10 of this Opinion).