C-12/71

JUDGMENT OF 14. 7. 1971 — CASE 12/71

Tariff Heading ex 11.02 A III (b) in essential constituents of maize in such the annex to that Regulation must be proportions that the quantity of those interpreted as including a product ingredients corresponds to the normal whether or not degermed which has values of the natural contents of had starch extracted and contains the maize.

In Case 12/71

Reference to the Court under Article 177 of the EEC Treaty by the Bundes- finanzhof, Seventh Chamber, for a preliminary tilling in the action pending before that court between

Günther Henck, Hamburg-Altona,

and

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and described in the customs declarations as procedure an 'English product consisting in waste flour resulting from the extraction of The facts which form the basis of this starch from maize'. In accordance with case may be summarized as follows: the customs declaration, the customs 1. On 20 January, 26 February and 6 office classified this product under the March 1964, the Gunther Henck under­ heading 23.03 of the German customs taking obtained customs clearance for the tariff, which corresponds to the Customs release to the market of cargoes of goods Tariff and which did not prescribe pay­

HENCK v HAUPTZOLLAMT EMMERICH

of Justice grain" (Getreidekörner, geschrotet, von Mais) referred to in Article 1 (d) The observations submitted under of Regulation No 19/62 of the Coun Article 20 of the Protocol on the Statute cil of the EEC in conjunction with the annex to that regulation (No ex of the Court may be summarized as follows: 11.02, ex A, ex III (b) of the Com mon Customs Tariff) be interpreted Admissibility as meaning that this is indeed such a A — According to the Henck undertak product even where, when starch has been extracted from it, it still con ing, the Bundesfinanzhof is not seeking the interpretation of the expression 'kib tains 60.5%, 61.4% or 62.3% starch bled maize grain' but rather the applica as against 10.7%, 11.3% or 10.8%

tion of the Court under Article 177 of mum or minimum amounts, and does the Treaty. it matter whether the grain has been Moreover, the court making the refer degermed?' ence, in wording its question, failed to 2. The order for reference was received take into consideration that Regulation at the Registry of the Court of Justice No 19/62 was replaced from 1 July on 19 March 1971. 1967 by Regulation No 120/67. Since The Gunther Henck undertaking and the law applicable to the imports in the Commission of the European Com question was that in force when the munities submitted written observations goods were imported, that is in 1964, in accordance with Article 20 of the the interpretation requested must solely Protocol on the Statute of the Court of inquire into what the contents of the

JUDGMENT OF 14. 7. 1971 — CASE 12/71

'What was the meaning of the expres­ — the Henck undertaking imported the sion "kibbled maize grain" within the product in question when Regulation meaning of Article 1 (d) of Regula­ No 1962 was in force; tion No 19/62 for the period from — the German customs authorities did

emerged. authorities by applying in particular The Henck undertaking points out in to the latter for a binding tariff as particular that because of the length of sessment in accordance with Para national proceedings and the relatively graph 23 of the German Customs short duration of Community rules, Law, since such assessments are, ac which are often replaced and amended, cording to the case-law of the Court, the German courts are no longer able of no effect in the Community to follow the developments in Commun

however not new. It puts forward many the classification which was applic arguments on this subject based both on able at that time; national practice and Community prac — for these reasons, the Henck under tice with regard to regulations and it taking is of the opinion that the in claims that it follows from those, that terpretation of Article 1 (d) of Regu the retroactive effect of legal provisions lation No 19/62 must now be sought represents a quite exceptional and limited exclusively on the basis of the sour

HENCK v HAUPTZOLLAMT EMMERICH

Subject to these observations, the Henck to define the whole extent of the field undertaking leaves it to the Court to of application of that heading in this determine the admissibility of the ques­ case.

The substance of the case cil and therefore did not come within A — The Henck undertaking considers the common organization of the agri that according to both Community law cultural market either in 1964 or sub and national law and the 'Explanatory sequently. The Court of Justice there Notes to the Brussels Nomenclature', fore has no jurisdiction in the present two criteria were decisive for the defini case to interpret it, since the power of tion of the concept 'kibbled grain' at the interpretation given it by Article 177 beginning of 1964: of the Treaty only exists in respect of — from the point or view or its com tariff headings which come within Com position, the product must show all munity law. the essential elements of grain in the B — The Commission of the European natural state: the combination of Communities states that it has no objec these constituent elements must not tions as to the admissibility of the be altered in any way; question which has been referred. It — from the point of view of its points out that at the time when the structure the product must consist in goods in question were imported, the coarse irregular fragments of kibbled products mentioned in tariff heading grain. 11.02 of the Common Customs Tariff, No other criteria have been establish but not the 'residues of starch manu ed since the beginning of 1964 either facture' within the meaning of tariff by Community law or by German law heading 23.03, came within the common either because of commercial practices organization of the market established or finally through uniform administrative by Regulation No 19/62 and the levy practice of the six Member States. system laid down by Regulation No The Henck undertaking emphasizes that

Because of this resem in Regulation No 55/62 which can in blance, the criteria which enable the this case be the subject-matter of a distinction between heading 11.02 and proceeding under Article 177 of the 23.02 to be made must apply by analogy Treaty. to the products covered by tariff head Moreover, since the question which has ing 23.03; been referred relates to a product which (a) with regard to the distinction be is precisely described as to its composi

JUDGMENT OF 14. 7. 1971 — CASE 12/71

ash content, the lower the quality of facture referred to in tariff heading the flour; 23.03.

120/67. This attitude on the part of the the criterion for making the distinc tion which is based on the structure legislature cannot be evaded by inter preting the phrase 'kibbled grain' in a of the product. completely unjustified way so as to in At the end of these considerations, the clude farinaceous residues of starch Henck undertaking concludes as follows: manufacture. This would be opening (a) The phrase 'kibbled maize grain' the door to arbitrary decisions. within the meaning of Article 1(d) The Henck undertaking summarizes its of Regulation 19/62 in conjunction attitude to the matter thus: with the annex to that same regula (a) According to the feedstuffs industry tion must be interpreted to the and commercial practice the phrase effect that from January to March 'kibbled grain' has for a long time 1964 it included products derived described the product derived from from the grinding of maize grain a method of grinding during which which had been coarsely kibbled it was prohibited under paragraph and displayed the natural character 19 of the Regulation of 21 July 1927 istics of that grain to which ingred implementing the Law on Feedstuffs ients should not have been added or to alter the natural state of the pro

maize is offered for human food and tion No 55/62 of the Council that animal feedstuffs, and explains the chief the starch content cannot be a bar processes to which it is subjected, that to the classification of the product is, on the one hand, dry-grinding and under tariff heading 23.02. The same on the other, wet-grinding. The term applies as regards products to be dry-grinding refers to the different pro classified under tariff heading 23.03. cesses by which maize is as a rule There did not exist any provision cleaned, hulled, degermed and, accord of Community law or provisions of ing to the amount of the grinding, national law or, finally, any direc reduced to kibbled grains, groats, meal, tives laying down a maximum starch flour or flakes.

HENCK v HAUPTZOLLAMT EMMERICH

grinding. They result in the breakdown position to make a decision as to of the product into its constituents so which subheading within tariff heading as to isolate each of those constituents. 11.02 the products in question belong Tariff heading 11.02 does not only to, in view of the information given cover the primary products in their during these proceedings. In any case, pure state which are derived from dry- this question comes within the juris grinding but also applies to products diction of the national court.

heading 23.03. These residues are only product to product because of the the products which remain after a pro harvest, the place of origin, storage cess enabling all the starch which may conditions, etc), be economically obtained to be extract — of certain maize products, such as ed from the raw material. The distinc flours (either obtained from the tion between tariff heading 11.02 and whole maize or from degermed tariff heading 23.03, although it depends maize), flakes, meal, groats, kibbled also on the nature of each product, is, grains .

uses. If it had to be acknowledged that After indicating the importance of the a product comes within tariff heading protein and ash contents in distinguish 23.03 even where its starch has been ing between products within tariff removed in reduced proportions, con- heading 11.02 and those within heading

3 Although Article 177 of the Treaty does not allow the Court to give a ruling on a specific case when it is called upon to interpret Community law, the need, however, to reach a helpful interpretation of the provisions in question justifies the statement by the national court of the legal context into which the interpretation sought must be placed. The details contained in the ques­ tion which has been referred enable the category of products which may come within the provision to be ascertained in a general and abstract way.

4 Moerover, since Regulation No 19/62 was repealed and replaced from 1 July 1967 by other provisions of Community law, the Giinther Henck under­ taking maintains that the Court cannot give a reply to the question which has been referred on the basis of legal rules which were not applicable at the time of the imports in question.

HENCK v HAUPTZOLLAMT EMMERICH

5 The principle of legal certainty makes it necessary to refer to the state of the law in force when the regulation in question was applied. The wording of the question which has been referred does not prevent the interpretation requested being sought whilst complying with that principle.

On the substance of the case

6 The Bundesfinanzhof requests the Court to rule whether the expression 'kibbled maize grain' used in Article 1 (d) of Regulation No 19/62 of the Council and mentioned under tariff heading 11.02 A III b in the annex to that regulation must be interpreted as including a product which has had starch extracted from it, still contains 60.5%, 61.4% or 62.3% starch as against 10.7%, 11.3% or 10.8% moisture and has a fat content of 3.28%, 3.48% or 3.88% (ascertained according to the Stoldt-Weibull method). Moreover, the Bundesfinanzhof asks whether other constituents such as pro­ teins or raw fibres must be required to reach certain maximum or minimum levels and whether it is indispensable that the grain has been degermed.

JUDGMENT OF 14. 7. 1971 — CASE 12/71

the treatment which it underwent. It follows that kibbled maize grain which has undergone processing enabling certain constituents to be extracted from it continues to come under tariff heading ex 11.02 if it still contains the essential constituents of maize in quantities corresponding to normal varia­ tions in the natural content of those constituents in the original product. The act of degerming that product is not sufficient to exclude it from heading ex 11.03 when its constituents fulfil the abovementioned condition and when, as regards its use, it serves purposes comparable to those of grain which has not been degermed. As regards kibbled grain which has undergone starch extrac­ tion processing, the abovementioned explanatory notes to the headings in Chapter 11 do not rule out the possibility that cereals, including maize, which have undergone such processing may belong to the chapter in question. More­ over, it appears from the customs tariff which was applicable at that time that only in so far as they are waste do those cereals not come under that chapter but have to be classified amongst the 'residues from the manufacture of starch' within the meaning of tariff heading 23.03. Although in this case the Court cannot interpret the said heading which was not included in the common organization of the market at the time when Regulation No 19/62 was in force but still came within national customs tariffs, it cannot, however, define the scope of tariff heading ex 11.02 without taking into consideration, in respect of products which have undergone starch extraction processing, the dividing line which must be drawn between those products and 'residues' referred to in heading 23.03. The concept of 'residues' implies that kibbled maize grain which still contains 60% or more starch after undergoing a process of starch extraction may not be considered waste but must because of its starch content be placed under the same tariff heading as that applicable to kibbled grain which has not undergone the same process.

THE COURT

in answer to the question referred to it by the Bundesfinanzhof (Seventh Chamber) of the Federal Republic of Germany pursuant to the order made by that court on 12 January 1971, hereby rules:

The expression 'kibbled maize grain' used in Article I(d) of Regulation No 19/62 and mentioned under tariff heading ex 11.02 A III b in the annex to that regulation must be interpreted as including a product which, whether it has or has not been degermed, has had starch ex­ tracted from it and contains the essential constituents of maize in such

proportions that the quantity of those substances corresponds to the normal values of the natural contents of maize.

Lecourt Dormer Trabucchi

Monaco Mertens de Wilmars Pescatore Kutscher