Opinion of Advocate General Gulmann delivered on 29 October 1992

1 Original language: Danish.

2 See Council Regulation (EEC) No 3331/85 of 5 December 1985 amending Regulation (EEC) No 950/68 on the Common Customs Tariif (OJ 1985 L 331, p. 1).

3 OJ 1974 L 57, p. 23.

4 See the fourth recital in the preamble to Regulation No 482/74.

5 Reference may be made in particular to the English version which uses the term maize grains. The interpretation advocated by Krohn in the main proceedings whereby the word Maiskorn used in the German version is to be construed in the same way as the English word corn, which includes the whole of the maize plant, is therefore precluded.

6 Case 18/72 Granaria [1972] ECR 1163, in particular paras 11 and 12.

7 See in this connection the third and sixth recitals in the pre-amble to Regulation No 482/74.

8 It should be noted that the Court has also held in judgments after the adoption of Regulation No 482/74 that it follows from the wording of tariff subheading 23.04 B that products arc covered by that heading only in so far as they are products which result directly from the operation of oil extraction and not products which were already to be found in the basic product and did not undergo any change in the course of the oil-extraction process (see, judgment in Case 268/87 Cargill [1988] ECR 5151 para. 11). See also the judgment in Case 129/81 Fancon [1982] ECR 967.

9 Case 36/71 Henck [1972] ECR 187.

10 Case 36/71, cited above, at para. 12.

11 Krohn supports its view that the issue is one of determining what can be described as negligible levels on the preamble to Regulation No 482/74. In this respect, see in particular the third recital in that preamble.

12 OJ 1977 L 32, p. 1.

13 It follows from the Explanatory Notes to the Customs Cooperation Council Nomenclature that residues falling under subheading 23.01 B may be in the form of slabs (cakes) or meal. They may also be pclletised cither directly by compression or by the addition of a binder (molasses, starchy substances, etc.). The proportion of added binder docs not generally exceed 3% by weight.

14 That directive had not been adopted at the time when the Court gave its judgment in Case 36/71 Henck, referred to in point 9.

15 It should be noted in this context that at the hearing Krohn submitted in the alternative that the Court should lay down such a criterion, saying:The level of extraneous matter may not exceed the amount which under normal conditions or cultivation, oil production, transport and storage is technically unavoidable or could be avoided only at disproportionate economic cost. The Commission actually believes that Krohn's alternative criterion is to be regarded as a reference to trade usage. But I consider that Krohn is referring to trade usage only in so far as concerns types of impurities, not as regards the level of impurities. On the other hand, both the Commission and Krohn appear to agree that the assessment of what is technically unavoidable is to be made on the basis of normal conditions of production, transport and storage.

16 The report drawn up by Dr Ferdinand Kemme includes the following conclusions:Maize germ groats arc produced from maize grains. ... Maize is a bulk product which docs not exist in an absolutely pure form. For that reason the international and national conditions for cereal trade permit levels of impurities which arc mostly above 5% .... Further impurities arise in the course of the production of maize germ groats, on transshipment, storage, transport and pellet production Botanically pure maize germ residues do not exist. No account whatsoever is taken of impurities of less than 1% in international trade. Levels of impurity of over 1% arc customary in international trade in feedingstuffs. ... The expert considers that in 1986 levels of plant impurities in maize germ groats of up to 8% arc to be regarded as altogether customary in the trade. The German law on feedingstuffs and that of the European Communities with a level of 95% botanical purity ... may well have influenced international trade usage. ... Accordingly, in the expert's view, it is only when the 10% level is reached or exceeded that the critical point is to be taken to be reached ... because such goods can no longer be regarded as of merchantable quality.

17 An expert opinion would then have to be commissioned taking as its basis the criteria established by the Court of Justice. It should be noted that the report drawn up by Dr Ferdinand Kemme is based on the extent to which extraneous impurities ... were customary in the international cereal and feedingstuff trade in 1986.... That approach is different from the question what in normal circumstances is technically unavoidable. On the other hand the report contains valuable information on what constitutes normal conditions of production, transport and storage.