C-6/71

EINFUHR- und VORRATSSTELLE für Getreide UND FUTTERMITTEL, Frank­ furt am Main,

— on the interpretation of the first sentence of Article 20 (2) of Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals (OJ of 20.4.1962, p. 933 et seq.);

— on the validity of Regulation No 162/64 of the Commission of 29 October 1964 on the restriction until 31 March 1965 of the maximum amount of refund on exports to Member States of certain processed products derived from rice and other cereals (OJ of 31.10.1964, p. 2739 et seq.);

if necessary, on the interpretation of Regulation No 164/64 of the Com­ mission of 29 October 1964 determining conditions for the granting of refunds on exports to third countries of processed products derived from rice and other cereals (OJ 31.10.1964, p. 2743 et seq'.),

RHEINMÜHLEN v EINFUHR- UND VORRATSSTELLE GETREIDE

THE COURT

A — Community law and with which Regulation No 19 is mainly concerned, Article 14 pro­ Regulation No 19/62 of the Council vided that in the case of processed which has since been repealed was in goods, they consisted of a variable force at that time. It is with the inter­ component and of a fixed component pretation of Articles 19 and 20 of that intended to protect the processing regulation that the first question, refer­ industry. red by the Bundesfinanzhof, is concern­ — Regulation Nos 90, 91 and 92 of the ed. Also applicable during the period Commission of 25 June 1962 (OJ of in question were the regulations made 28.7.1962, p. 1902 et seq.) laid down pursuant to Regulation No 19. certain other details concerning re­ — Regulation No 19 authorized the funds, in relation to which a distinc­ Member States to grant up to a tion was drawn between 'export to certain amount refunds upon ex­ Member States' and 'export to third ports 'to a Member State' (Article countries' (cf. for instance Articles 5 19 (2)) or 'to third countries' (Article and 6 of Regulation No 91). Accord­ 20 (2)); these concepts were not de­ ing to these provisions the Member fined in either Regulation No 19 or States were obliged regularly to in the provisions made pursuant inform the Commission of the thereto. Regulation No 19 provided amount of refunds granted and also in detail for the refund granted to furnish it with certain other parti­ upon certain products such as cereal culars; this information had to be meal of durum wheat, referred to in furnished 'according to destination Article 1 (c) of Regulation No 19. of exports' separately in respect of — On the other hand as regards the each Member State and in the aggre­ processed products referred to in gate in respect of exports to third Article 1 (d), which are listed as an countries (cf. for instance Article 6 annex to the regulation and which of Regulation No 91).

countries in the case of Regulation — According to Article 1 (1) of Regula­ No 164/64). tion No 164/64, the interpretation of — According to Article 5 (1) of Regu­ which is the subject-matter of the lation No 141/64, the variable com­ third question referred by the Bun- ponent of the levy corresponded to desfinanzhof, 'In trade with third the average amount of the levy which countries, the refund which may be had to be imposed upon certain given allowed . . . during a given month quantities of the basic product; in must not exceed the average refund respect of 100 kg of hulled barley, which could have been allowed dur­ the 'processing rate' amounted to ing the 25 first days of the preceding 160 kg of raw barley (Article 5 (1), month on export of the quantity of heading C (b)). basic product on which the variable — Article 14 (1) of the regulation pro­ component was calculated'. vided that within the framework of — Commission Decision of 17 July intra-Community trade, refunds 1962, published in the Official Jour­ might only be granted when the nal (p. 2140 et seq.) had instituted threshold price in force in the ex­ for the application in the importing porting Member State for the basic Member State of the system of intra- product was higher than that in force Community agricultural levies . . . in the importing Member State; the within the framework of methods of difference between the two threshold administrative cooperation, referred prices constituted the maximum to in the first paragraph of Article amount authorized in respect of the 10 (2) of the Treaty, a movement refunds. Within the framework of certificate for goods on form DD4'. trade with third countries, Article 15 According to Article 2 of this decis­ provided that in the determination by ion this certificate 'can only be util­ the Commission of the amount of the ized to the extent that the goods to refund 'account shall be taken in par­ which it refers are transported di­ ticular of world market conditions rectly from the exporting Member and of the prices of the basic pro­ State to the importing Member State'. ducts'. B — German law — Regulation No 162/64, the validity of which is questioned by the second According to paragraph 1 (1) of the question referred by the Bundes- 'Erstattungsverordnung Getreide und finanzhof, provided by Article 1 (1) Reis' (Regulation on export refunds in thereof that the maximum amounts respect of cereals and rice) of 24 authorized in respect of the refunds November 1964 (Bundesgesetzblatt I,

p. 917 et seq.) refunds are allowed on subject in those countries to legal export of the products referred to; in transactions other than those neces respect of some of them nevertheless, sary for that purpose. If such country for instance cereal meal of durum wheat, is unknown it shall be deemed to be a refund is made only when the export the last known country to which the is to a third country whilst in respect goods were sent.' of others, for instance hulled barley 2.

of the European Economic Commun 1964 to 16 December 1965, Rhein ity. Export to third countries takes muhlen, the appellant on a point of law place when the country of consump tion is a third country. The concept in the main proceedings delivered barley grains and cereal meal of durum wheat of country of consumption is deter to various undertakings in Belgium, mined by reference to the provisions Italy and Switzerland. The conditions relating to the statistics of foreign trade.' of delivery were for instance: 'cif Antwerp', 'free Chiasso', 'free Bolzano', The provisions applicable are therefore free Basel', 'free Trieste', 'free Mestre', those which appear in the 'Verordnung 'free Genoa', etc. In all cases the parties zur Durchführung des Gesetzes iiber had chosen not to prepare a certificate die Statistik des grenzüberschreitenden on form DD4. Warenverkehrs' (Regulation on the im At the time of these exports, the under plementation of the law relating to the taking received refunds in the form of statistics of foreign trade) amended by authorizations to import free of levy. the text of 13 January 1964 (Bundes- On 7 December 1966 the Einfuhr- und gesetzblatt I, p. 9 et seq.). Under the Vorratsstelle fur Getreide und Futter- provisions of paragraph 10 (6) and (7) mittel revoked the decision granting of that regulation: these refunds on the grounds that con

The latter rejected its ap (2) In respect of goods, the country peal by a judgment of 12 August 1968 of consumption of which is not known, and in particular declared: it shall be the country of destination — Rheinmuhlen is in no way entitled (Empfangsland). Under the provisions to the refunds in question since in of paragraph 11 (2): respect of the exports in question 'The country of destination (Emp the 'country of consumption' within fangsland) is that country in which the meaning of the German regula the goods must be delivered without tion relating to export refunds and having remained in the country of of the regulation relating to statistics transit except for the purpose of of foreign trade was in each case a transport and without having been Member State.

— The provisions contained in the regu Rheinmuhlen brought before the Bun- lations in question are not in con desfinanzhof an appeal on a point of tradiction to Community law. Whilst law against the judgment of the Finanz- it is true that the EEC regulations gericht. did not use the concept of 'country of consumption' but limited them 3. Operative part of the order referring selves to drawing a distinction be the matter and the grounds therefor

have reached third countries; try of destination' used in Regulations (b) that they have reached a third Nos 90 and 91 and relating to the country determined in advance; destination of the exports. (c) that they have reached a third — The question of which State is in country directly, that is to say, any particular case the 'country of that they have been transported consumption' depends on the knowl there by virtue of a single freight edge which the exporter had of the document and have not remained destination of the goods at the in the countries of transit (Mem

sed; cision of 17 July 1962 limits itself or is there export to third countries to providing a system of proof for merely if: the collection of the intra-Commun- (a) goods are exported without a ity levy and has no effect on the movement certificate on form material character of the operation. DD4 even to a Member State;

(b) they are not transported direcdy reason of the fact that the goods reached from one Member State to an­ the Member States; further, it con­ other Member State; siders that the reply to be given to or by what other criteria must this these questions will determine whether concept be determined? the German regulation on refunds could, (2) Is Regulation No 162/64/EEC of taking into account the principle of the Commission of 29 October 1964 Community preference, provide that in (OJ 1962, p. 2739) invalid in view respect of cereal meal of durum wheat of the fact that it restricts in the the refunds would be granted only in aggregate the refunds in trade be­ the case of exports to third countries. tween the Member States to certain 4. Procedure percentages of the rates of refund The order of the Bundesfinanzhof re­ permissible under Regulation No 141/64/EEC of 21 October 1964 ferring the matter was received at the Court Registry on 3 March 1971. (OJ 1964, p. 2666), whereas the refunds granted in trade with third Rheinmuhlen, the Einfuhr-und Vor- ratsstelle fur Getreide und Futtermittel countries could reach the full amount of the variable component and the Commission of the European Communities submitted written obser­ of the lew applicable to imports? vations under Article 20 of the Protocol (3) In the event of a negative reply to on the Statute of the Court of Justice Question 2: in view of the limita­ of the EEC. tion introduced by Regulation No 162/64/EEC on the amount of After hearing the report of the Judge- the refund applied in trade between Rapporteur and the views of the Ad­ vocate-General, the Court decided to Member States and of the aim pur­ sued by this means (the protection open the oral procedure without any preparatory inquiry. of trade between the Member States and of the markets of importing The parties to the main action and the Commission were heard on 30 June Member States against price dis­ 1971. tortions) must the concept of ex­ The Advocate-General delivered his ports to third countries within the meaning of Regulation No 164/64/ oral and reasoned opinion at the hearing on 22 September 1971. EEC of 29 October 1964 (OJ 1964, p. 2743) be interpreted otherwise Rheinmuhlen is represented by Dr than in the cases mentioned in Modest, Advocate at Hamburg, the Question 1, in particular in a nar­ Einfuhr- und Vorratsstelle by Mr rower sense, and must it be defined Schaller (Assessor) and by Mr Stock- more strictly than in those cases burger, Advocate at Frankfurt am Main, in relation to the concept of exports the Commission by its Legal Adviser, Mr Gilsdorf. to a Member State? In the grounds tor the order, the Bun­ II — Observations submit­ desfinanzhof finds that none of the ted under Article 20 Community regulations applicable dur­ of the Protocol on the ing the period in question provided a Statute of the Court precise definition of the concept 'ex­ of Justice of the EEC ports to third countries'; that in its view it is open to question whether the pro­ 1. The first question visions of the German regulations re­ lating to this concept are compatible The observations of Rheinmuhlen may with Community law. be summarized as follows:

countries' must have the same meaning the Commission proceeded on the basis in all the Member States. It would be of a precise interpretation of these con­ incompatible with the idea of a com­ cepts, an interpretation supported by mon organization of the agricultural Rheinmuhlen. markets and moreover illogical that the For all these reasons the undertakings same commercial operation might be were at that time convinced that there considered by the exporting Member was 'export to a Member State' only State as an intra-Community export when the exporter had requested and and, on the contrary, by the importing obtained a certificate on form DD4. Member State as an import from a This conviction was based on the idea third country. This is the reason why that no purchaser was bound to request the national legislature was not itself the benefit of the preference which at­ authorized to define these concepts. tached to intra-Community imports, so The concept of exports to the Member that the parties were free to give their States' and of 'imports from Member operations the legal character of exports States' must be interpreted stricto sensu, to third countries by not using the cer­ whilst the concepts of 'exports to third tificate DD4. This interpretation was countries' and of 'imports from third in conformity with the meaning and ob­ countries' must be the subject of a wide jectives of Regulation No 19 and could interpretation; this is the only way of not result in anyone's obtaining an im­ avoiding the benefits linked to intra- proper advantage. It took no account of Community trade being improperly all the subjective aspects and in par­ granted. The demarcation of the con­ ticular attached no importance to what cepts of 'exports to the Member States' the exporter knew or proposed to do in and of 'exports to third countries' must relation to the subsequent fate of the be based on objective points of view; goods. only objective means of proof are suited (c) Rheinmuhlen protests against the in­ to proving that one is dealing with one ferences which the Hessisches Finanz­ or other category of export. gericht drew from the insertion in a certain number of the sale contracts of (b) Such means ot proot is the produc­ tion or non-production of the DD4 precise clauses relating to costs and ex­ certificate prescribed by the decision of penses. Thus for instance, a clause such 17 July 1962. Consequently, as is shown as 'cif Antwerp', whilst clearly referring by an 'export certificate' which Rhein­ to a Member State, nevertheless does muhlen put on the Court file, the Ger­ not permit of definite conclusions as man administration always required un­ regards the country of destination, since the port of Antwerp is an outlet. dertakings wishing to benefit from a re­ fund to indicate whether a certificate (d) The reply to be given to the first on form DD4 had been delivered. If question of the Bundesfinanzhof ought this was not the case it granted, without therefore to be as follows:

available to the importer so that the ritory might export goods from one latter may apply for Community Member State to another by purchasing preference in the importing Member goods in the exporting Member State State. If these conditions are not ful­ at the world market price and reselling filled as from the time when the them in the importing Member State, goods leave the Member State, then also at the world market price. To pre­ the operation must be treated as ex­ vent their so doing would have amoun­ port to third countries.' ted to establishing a discrimination to Even if one does not entirely adopt this the detriment of exporters who are nat­ ionals of the Member States. Where opinion it is in any event necessary, in order to distinguish the intra-Com­ the exporter deals with such a third munity exports from those effected to party there is therefore 'export to the third countries, to bear in mind the third country' even if the exporter following factors: knows that the third party has resold In the cereal trade it is not usual—and the goods or will resell them in a Mem­ ber State. Were this not the case then it would moreover be pointless—to ask the purchaser what use he intends to the legal nature of the operation might make of the goods. It frequently hap­ depend on the question—difficult to pens that the purchaser wishes to retain prove—whether the operation is due to a free hand. That is the reason why the initiative of the original exporter or to that of the third party. there can only be a question of export to a Member State where it is really (e) The system of refunds provided for established that the goods have not only under Regulation No 19 was intended reached the national territory of the to allow exports of cereals coming from Member State in question but also that Member States which maintain high they have been put into free circulation. prices to Member States maintaining This can only be established by means low prices and to third countries. The of an official document and only the Member States maintaining high prices were not therefore free to refuse refunds customs document delivered by the im­ porting Member State can in this re­ or to fix them at an excessively low spect come up for consideration. The level. This applies all the more sinco these States could have collected the question whether the exporter knew that the goods finally would finish up in highest levies and that it was therefore a Member State is immaterial, all the possible to ask of them that they should more so since this knowledge cannot be provide the necessary financial resources. proved by objective means. Besides, the A national system of refunds which sub­ seller of goods, for which the buyer jects exports from one Member State chose not to use a certificate on form to another to a discrimination in favour DD4 and so did not obtain the ad­ of exports coming from third countries vantage of Community preference, must is incompatible with Regulation No 19. logically deduce therefrom that the The observations of the Einfuhr- und goods will not be put into free circula­ Vorratsstelle may be summarized as tion in a Member State. follows:

refunds relating thereto. That is why in constituting export within the meaning fixing the maximum amount in respect of law on refunds; in fact, whilst it is of refunds it was limited to outlining a true that the Member States were bound framework within which the Member at the relevant time to collect the levies States could act quite freely. If it was they nevertheless were not obliged to for them to decide on the grant of re­ grant refunds. funds, it was equally for them to lay The Commission's observations may be down the conditions thereof. summarized as follows: In the Community legislature s concep­ (a) Whilst it is true that the concept of tion the primary purpose of the refunds 'exports to third countries' belongs es­ was to compensate for the disadvantages sentially to Community law, nevertheless in the field of prices and of competition, the Community has only defined the disadvantages which might have im­ framework thereof leaving it to the peded exports to the Member States on Member States to fill in the details as the one hand and to third countries on they wish. the other. That is why it was necessary (b) As regards the scope of the provis­ to draw a clear distinction based on ob­ ions in question under Community law: jective criteria between these two cate­ The fact that goods have been exported gories of exports. The desire to make without a certificate on form DD4 is national products competitive on the re­ not a sufficient criterion to constitute spective markets implies that these pro­ 'export to third countries'. In fact: ducts have in fact to reach those mar­ — The decision of 17 July 1962 was kets. It is not enough therefore to send taken on the basis of Articles 10 and the goods beyond the frontier 'with a 38 of the EEC Treaty in order to Member State or a third country as allow the application of a system of objective destination'; such a condition intra-Community levies in the im­ would just give rise to malpractices. porting Member State; as against this For the same reasons it is not enough the Community provisions relating for the goods to be sent directly or to refunds on exports are based upon under cover of a single transport docu­ Article 43 of the Treaty; ment from one Member State to an­ — The refund is not simply the quid other. pro quo of the lew; Fixing the maximum refunds had the — The refund is an instrument for the purpose of preventing disturbances to purpose of regulating trade and it the Community levy system. There follows that it is not for the exporter would have been a disturbance if the at his pleasure to influence the legal goods which resulted in the grant of a nature of export by not asking for more substantial refund applicable to a certificate on form DD4:

the Bundesfinanzhof, first alternative, not to grant refunds and since at the (a)). Such a condition, the application time in question they had themselves of which would have resulted in great substantially to bear the financial bur practical difficulties, cannot be deduced den which resulted therefrom, they had from the fact that nothing is said on the good grounds for imposing basic condi subject in the relevant instruments. tions in connexion with the grant of Moreover the interpretation by reason refunds as well as stricter proofs than ing from the converse, of the third those imposed by Community law. paragraph of Article 5 of Regulation No Whilst it is true that a wide interpreta 90, under which in the case provided tion of the concept 'export to third for therein the Member States must countries' which would have permitted take all necessary steps to ensure that the interested parties to attach this the 'cereals are in fact exported to third characteristic to any export, would countries', makes it appear that for the hardly have favoured speculation on a purposes of Community law this should refund as high as possible, coupled with not be the normal case. Finally, the a levy as low as possible, at least, it wording of the German version of would have done away with the distinc Regulation No 19 (Ausfuhr 'nach' tion which Community law draws be dritten Ländern, 'nach' einem anderen tween a refund applicable in intra-Com Mitgliedstaat) and still more the wording munity trade and a refund applicable of the other three versions ('a destination to exports to third countries. de'; 'vers'; 'verso'; 'naar') suggests that it (c) In general it must be emphasized is sufficient for the exports to be directed that from a Community point of view to the country in question; this is also the refunds were of no great importance the sense which seems to attach to the at the time. As the countries where expression 'country of destination' (pays prices were high at that time were in de destination) used in Regulations Nos general importing countries, refunds on

trade. ly from one Member State to another Member State' (first question of the 2. The second question Bundesfinanzhof, in fine, (b)) is not The observations of the interested par sufficient for there to have been 'export ties may fee summarized as follows: to third countries'; such a theory would Rheinmuhlen points out that Regula encourage fraud. tion No 162/64, which limits the maxi The concept in question must therefore mum amount of refunds fixed by be understood in this sense: 'The ex Regulation No 141/64 is invalid.

In

its recitals. Regulation No 162/64 consequent upon Regulation No 162/64, states that there exist in various Mem­ the price of imports of these products ber States different processing rates, coming from the Member States of the capable of resulting in price distortions. EEC with high prices had appreciably By the term 'processing rates' must be increased and had made it almost im­ understood the quantities of raw ma­ possible to purchase them. terials required by manufacturers in Finally, if the undertakings of countries order to produce a certain quantity of with lower prices obtained a smaller processed products. The Commission benefit this ought logically to have led proceeded on the basis that the pro­ to a diminution in the intra-Commun­ cessing industries of the different ity levy in favour of these undertakings Member States showed a smaller return in order to allow them to export to the lower the cereal prices in those countries with higher prices. This how­ States were. This opinion is contrary ever did not occur, hence a further dis­ to logic. The levels of cereal prices and crimination, this time to the detriment of the rates of processing are indepen­ of the undertakings in question. dent of each other. The differences The Einfuhr- und Vorratsstelle con­ which exist at the level of prices are siders that Regulation No 162/64 is attributable to the fact that agricultural valid. To restrict the maximum amount production costs differ from one coun­ of the refunds is justified. This reduc­ try to another whilst the level of the tion on a flat rate basis cannot be the processing rate depends on the quality target of any criticism for it has facilita­ of technical equipment and other ted the application of the system of analogous factors. If against all expecta­ refunds. The principle of Community tion this opinion had turned out to be preference cited by the Bundesfinanzhof, in accordance with facts, the Commis­ was drawn up only in respect of imports sion ought to have set out the facts and does not apply to refunds. For the and accordingly to have stated its reasons rest, the Einfuhr-und Vorratsstelle for the provision of the regulation; since refers back to the Commission's argu­ it did not do so Regulation No 162/64 ments.

RHEINMÜHLEN v EINFUHR- UND VORRATSSTELLE GETREIDE

Law

1 By order dated 15 December 1970, received at the Court Registry on 3 March 1971, the Bundesfinanzhof referred to the Court for a preliminary ruling several questions on the interpretation of Regulation No 19 of the Council and of Regulation No 164/64/EEC of the Commission as well as on the validity of Regulation No 162/64/EEC of the Commission.

The first question

2 The first question asks the Court to interpret the concept of 'exports to third countries' in Article 20 (2) of Regulation No 19 and to define it in parti­ cular in relation to the concept of 'exports to another Member State' within the meaning of Article 19 (2) (a) of that regulation.

JUDGMENT OF 27. 10. 1971 — CASE 6/71

More particularly, the Court is asked to rule whether the interpretation of the first concept must be based on certain criteria set out in the question or whether the interpretation should be governed by other criteria to be deter­ mined by the Court.

Thus the Member States were free completely to refrain from granting refunds, which a fortiori included the right to add conditions for the grant of the refund to those prescribed by the Community regulations.

6 Therefore the presence of the factors defining exports to a third country within the meaning of Regulation No 19, regardless of what these factors were, was merely a necessary prerequisite to, but not of itself a sufficient ground for, the grant of a refund.

Thus export to third countries within the meaning of Regulation No 19 could not be used as a ground for compelling a Member State to exercise the power granted to it by that regulation.

RHEINMÜHLEN v EINFUHR- UND VORRATSSTELLE GETREIDE

7 Both the provisions of Regulation No 19 and the recitals in the preamble thereto show that the refunds prescribed by the regulation were intended to offset the price differences between the markets in question.

It follows that 'exports to third countries' within the meaning of that regula­ tion presupposed that the goods were offered for sale on the market of a third country, that is to say, that they must at least have been put into free circulation there.

This argument is erroneous, for it is possible that in certain cases the loss to the importer by reason of the application of the third country levy could largely be offset by the fact that, because of their third-country refund, the exporter was able to offer prices more favourable than those he would have had to offer without the refund.

837:

JUDGMENT OF 27. 10. 1971 — CASE 6/71

11 With regard to the criterion of non-direct transport, reference need only be made to the example of the export of goods from Germany to Italy or vice versa, which often go through Austria or Switzerland but this fact, arising out of the geographical situation of the States in question, does not turn the transaction into an export to a third country.

The second question

12 The second question of the Bundesfinanzhof is whether Regulation No 162/64 of the Commission is rendered invalid by the fact that it restricted the refunds in trade between the Member States on a flat rate basis to certain percentages of the rates of refund permissible under Regulation No 141/64, whereas Regulation No 164/64 did not provide a similar restriction for the refunds granted in trade with third countries.

RHEINMÜHLEN v EINFUHR- UND VORRATSSTELLE GETREIDE

17 (2) As regards the principle of Community preference, it is true that the ninth recital in the preamble to Regulation No 19 states that 'the system to be introduced must enable the preference resulting from the implementation of the Treaty to be maintained in favour of Member States'.

Nevertheless it follows from the context that with the state of development of the market at that time this aim mainly related to import transactions.

The recital referred to did not in such circumstances prevent exports to other Member States from being subject to the same or even less advantageous conditions than those which governed exports to third countries.

18 Accordingly, examination of the question submitted by the Bundesfinanzhof does not reveal any factor capable of affecting the validity of Regulation No 162/64.

The third question 19 In its third question the Bundesfinanzhof asks the Court to rule whether 'in view of the limitation introduced by Regulation No 162/64 on the amount of the refund applied in trade between Member States and of the aim pursued by this means (the protection of trade between the Member States and of the markets of importing Member States against price distortions) the concept of exports to third countries within the meaning of Regulation No 164/64 must be interpreted otherwise than in the cases mentioned in Question 1 — that is to say otherwise than in Regulation No 19 — in particular in a narrower sense, and be defined more stricdy than in those cases in relation to the concept of exports to a Member State'.

24 It must therefore be assumed that in Regulation No 164/64 the expression has the same meaning as in Regulation No 19.

Costs

25 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The first question:

I. The expression 'exports to third countries' within the meaning of Article 20 of Regulation No 19 of the Council of 4 April 1962 pre­ supposed at least that the goods had been or would be put into free circulation in a third country.

2. The Member States were free to require in addition that the goods had been or would be used or consumed, treated or processed in that country.

3. It was for the Member States to determine independently the evi­ dence required to establish that export to a third country had taken place, provided that they did not accept insufficient proof, in parti­ cular the mere fact that the goods were exported without a certi­ ficate DD4 or were not transported direcdy from one Member State to another.

The second question :

Examination of the question submitted by the Bundesfinanzhof does not reveal any factor capable of affecting the validity of Regulation No 162/64/EEC of the Commission of 29 October 1964.