Report for the Hearing delivered in Case 40/88

I — Facts and written procedure

1. In 1978, 1979 and 1980 the company Paul F. Weber (hereinafter referred to as Weber), the plaintiff in the main proceedings, purchased from Milchwerke Paderborn-Rimbeck (hereinafter referred to as Milchwerke), the defendant in the main proceedings, a product which was described in the written contracts as German spray-dried skimmed-milk powder, factory fresh, sound and of merchantable quality.

2. Milchwerke delivered that product to Weber, who exported it to the Netherlands and, through the intermediary of a dealer in Great Britain, to Japan.

3. Between 7 December 1978 and 4 February 1980 the Hauptzollamt Hamburg-Jonas (Principal Customs Office, hereinafter referred to as the Customs Office), granted Weber the export refunds and monetary compensatory amounts it had applied for in respect of skimmed-milk powder falling under subheading 04.02 A II (b) I of the Common Customs Tariff.

4. By a notice dated 15 July 1982 the Customs Office demanded the repayment by Weber of the export allowances granted, amounting to DM 716476.47.

5. Weber lodged an objection against the repayment notice issued by the Customs Office, on which no decision has yet been taken.

6. The Customs Office set off an amount of DM 613020.79 in respect of its claims in the repayment demand against amounts payable to Weber in respect of other exports.

7. Weber thereupon demanded delivery by Milchwerke of skimmed-milk powder that qualified for export allowances in accordance with the contracts concluded between the parties, demanded that the aforesaid obligation be met within a specified period and threatened that otherwise, on the expiry of that period, it would refuse to accept delivery from Milchwerke.

8. When Milchwerke did not comply with that demand, Weber sued for damages before the Landgericht Paderborn for nonperformance of the contracts concluded between the parties.

9. Milchwerke admits that it bought the product in question from the firms Mipro and Unitrade and resold it unaltered to Weber. It further admits that that product was manufactured from a dried mixture of the individual constituents listed by the Customs Office in its repayment notice. Milchwerke adds that in order to improve the quality of the product the firms Mipro and Unitrade used protein-enriched powdered whey from Australia and Canada.

10. Weber does not accept those assertions by Milchwerke and maintains that the product in question does not fall under subheading 04.02 A II (b) 1 of the Common Customs Tariff.

11. The Landgericht Paderborn considered that the case involved interpretation of the Community regulation in question and therefore by an order of 12 January 1988, pursuant to Article 177 of the EEC Treaty, it decided to suspend the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

12. The order of the Landgericht Paderborn was received at the Court Registry on 4 February 1988.

13. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 9 May 1988 by Paul F. Weber, the plaintiff in the main proceedings, represented by Klaus Landry, Rechtsanwalt in Hamburg, and by the Commission of the European Communities, represented by its Legal Adviser, Jörn Sack, assisted by Albrecht Stockburger, Rechtsanwalt in Frankfurt.

14. Upon hearing the repon of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

15. By a decision of 27 October 1988 adopted pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Second Chamber.

II — Written observations submitted to the Court

1. Weber, the plaintiff in the main proceedings, considers that the first two questions submitted by the national court seek to obtain an interpretation of the term skimmed-milk powder within the meaning of subheading 04.02 A II (b) 1 of the Common Customs Tariff.

2. In its observations the Commission makes a preliminary comment on the admissibility of the reference.

1 Language of the case: German.