C-13/71

JUDGMENT OF 14. 7. 1971 — CASE 13/71

In Case 13/71

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

Günther Henck, Hamburg-Altona

and

Hauptzollamt Emmerich

Issues of fact and of law

I — Summary of the facts and sugar'. In accordance with the customs procedure declaration, the customs office classified these products in subheading 21.07 B of The facts which form the basis of this the German customs tariff, which cor­ case may be summarized as follows: responds to the Common Customs Tariff 1. On 23 and 31 March 1964, the and which provides for the payment of Gunther Henck undertaking obtained customs duties in addition to die counter­ customs clearance for the release to the vailing charge. Subsequently, on the basis market of consignments of a commodity of reports from the Zolltechnische Prü­ described in the customs declaration as fungs- und Lehranstalt, Cologne, the 'maize grits, a food product intended for customs authorities decided to classify human consumption, without sugar' or as the products in question as 'maize groats maize grits, a food product which is not or meal' in subheading 11.02 A III b described or included elsewhere, intend­ of that tariff and thus to demand ad­ ed for human consumption, without ditional duty as a levy.

HENCK v HAUPTZOLLAMT EMMERICH

When the proceedings relating to this (4) If the answer to question (3) is in tariff classification had been brought the negative: before the Bundesfinanzhof in the last May it be deduced from the fact that instance the latter decided to stay the Community Regulation No 19/62 proceedings and referred the following in conjunction with the annex to questions to the Court in application of that regulation mentions heading Article 177 of the EEC Treaty: 11.02 of the Common Customs

769,

JUDGMENT OF 14. 7. 1971 — CASE 13/71

in this case. But questions of interpre though it does not arise as often as that tation which are referred for a prelimi of the retroactive effects of the law, is nary ruling may only be posed generally and in the abstract. The application of however not new. It puts forward many arguments on this subject based both on Community law to actual cases does not come within the jurisdiction of national practice and Community prac the Court under Article 177 of the tice with regard to regulations and it claims that it follows from those that

legal relationships. tation requested must solely inquire into At the end of these observations, it what the contents of the Community law summarizes its position in the matter as applicable were at that time. The ques follows: tion put by the German Court can there — the Henck undertaking imported the fore only be admitted in so far as it asks: product in question when Regulation No 19/62 was in force; What was the meaning of the expres — the German customs authorities did sion "maize groats" within the mean not consider that this product came ing of Article 1 (d) of Regulation No within the common organization of 19/62 in March 1964, having regard agricultural market at the time when to the annex of that regulation?' it was imported; These objections raise, according to the —the German customs authorities Henck undertaking, a problem which changed their mind about the classifi appears insignificant but which is in fact cation of this product after the very important; that of an interpretation latter had been marketed: given by a court almost ten years after — the Henck undertaking had not been the dispute arose and which attributes to able to protect itself against the the applicable law a meaning which the amendments made a posteriori to the parties could not have taken into con tariff classification by the German sideration when the dispute emerged. customs authorities by applying in The Henck undertaking points out in particular to the latter for a binding particular that because of the length of tariff assessment in accordance with the national proceedings and the relative Paragraph 23 of the German Cus ly short duration of Community rules, toms Law, since such assessments which are often replaced and amended, are, according to the case-law of the the German courts are no longer able to Court, of no effect in the Community follow the developments in Community sphere; legislation and case-law and are therefore — in spite of the fact that at the time no longer even in a position to ensure when the goods were imported the

German customs authorities agreed matter of proceedings under Article 177 with the plaintiff in the main action in of the Treaty. classifying the goods in question It follows from the facts in the present under Tariff Heading 21.07 B and in case that the questions which have been spite of the fact that it could not be referred do not so much relate to the foreseen that there would be a dis distinction between the products in tariff pute with the customs authorities on heading 11.02 and those in heading this point, the plaintiff has now, after 21.07. They are rather concerned with seven years, to accept a decision on the distinction between the various pro the classification which was applicable ducts in tariff heading 11.02, as re at that time; enacted in Regulation No 55/62. — for these reasons, the Henck under The substance of the case taking is of the opinion that the interpretation of Article 1(d) of Regu A — The Henck undertaking recalls the lation No 19/62 must now be sought observations which it put forward in exclusively on the basis of the sources Case 12/71 as to the meaning of the of information and the means of concept of 'kibbled maize grain', at least interpretation at the disposal of the in March 1964. The concept of 'maize parties and the German customs auth groats or meal' must now be defined on orities at the beginning of 1964. In the basis of that concept.

Thus the production of maize groats or meal B — The Commission of the European Communities declares that it has no presupposes that the maize grains have previously been treated. The fat objections as to the admissibility of the content and content in crude fibres questions which have been referred. It of maize groats or meal are for that points out that when the goods in ques reason very low. The former is nor tion were imported, maize products came mally less than 1.5% in the dry within the common organization of the material and the latter is never more market laid down by Regulation No than 1.2% in the dry material. 19/62 in which Article 5 (1) of Regula In support of these arguments, tion No 55/62 referring to: (b) maize Henck undertaking refers to annexes 'groats and meal', (d) hulled maize 3 to 13 of its statement of defence grains and (g) kibbled maize grains pro and puts forward offers of proof. vided that a levy should be charged.

JUDGMENT OF 14. 7. 1971 — CASE 13/71

From regards the concept of 'groats' that the point of view of tariff classification, the product referred to consists in heading 11.02 of the Common Customs a granular product which is obtained Tariff applies to the products which re after the initial milling operation by a sult from the milling of maize and sifting process or by a second nulling which have undergone the processes operation. laid down in that same heading with There was only a precise definition of the exception of the flours referred to the concept of 'maize groats or meal' in tariff heading 11.01 and residues in Community law from 1970 under within the meaning of Chapter 23.

With re tion for the interpretation of the con gard to the classification of these pro cept of 'maize groats' in March 1964, ducts within tariff heading 11.02 and it reflects the view of commercial Regulation No 55/62, the Commission circles as it existed even before 1970 relies inter alia on the Explanatory and repeats the definition previously Notes to the Brussels Nomenclature on accepted in those circles. In the ab heading 11.02 and points out that in sence of a different legal definition the absence of a different definition it it is quite justified to take account of must be acknowledged that the Com such an opinion for the interpreta munity legislature re-enacted tariff tion of Article 1(d) of Regulation No heading 11.02 in Regulation No 55/62

HENCK v HAUPTZOLLAMT EMMERICH

the product obtained by rough grinding tions in the fat content of maize grains. of hulled maize grain from which the The distinction between maize 'groats' germ has been removed must therefore and 'meal' on account of the fat con­ be considered as groats within the mean­ tent was introduced for the first time ing of Article 5 (1) (d) of Regulation in October 1964 with Regulation No No 55/62. 141/64 in order to adapt the rate of The Commission examines the develop­ levy to differences in quality. ment of the German Tariff terminology Finally the Commission recalls the pro­ relating to heading 11.02 and states that posal that it submitted to the Council the expression 'Grobgrieß und Fein­ for a new nomenclature for the sub­ grieß' which is contained in Regulation headings within tariff heading 11.02 No 19/62 was recently replaced by the supplemented by additional explanatory expression 'Grütze und Grieß' which notes to Chapter 11 of the Common the German legislature used in 1952 and Customs Tariff (schedules 1 and 2 to observes that considerations based on the statement of defence). However it market policy are also in favour of states that this new provision departs classifying the products in question un­ considerably from Regulation No 55/62 der the category of 'maize groats'. and that therefore the explanatory notes It supports this opinion not only with which it contains cannot be used with­ arguments drawn from Article 5 (1) (b) out reservation with regard to the tariff of Regulation No 55/62 but also with headings in Regulation No 55/62. The the consideration that these products, Commission concludes that: because of their importance from the commercial point of view, make it neces­ 'The product described by the Bun­ sary to apply higher rates of levy in desfinanzhof must be considered as order to protect domestic production "maize groats" within the meaning effectively. In addition it observes that of Article 5 (1) (b) of Regulation No according to Regulation No 55/62, the 55. Since the answer to the first fat content is not a decisive distinguish­ question is in the affirmative it is ing criterion since a content of 0.9% unnecessary to examine the other to 1.5% corresponds to normal varia­ questions.'

4 In addition, since Regulation No 19/62 was repealed and placed by other provisions of Community law from 1 July 1967, the Giinther Henck under­ taking maintains that the Court cannot reply to the question which has been referred by basing its reply on legal rules which were not applicable when the product in question was imported. 5

The principle of legal certainty makes it necessary to refer to the state of the law in force when the provision in question was applied. The wording of the questions which have been referred does not prevent the interpretation which has been requested from being sought whilst observing that principle.

On the substance of the case 6

In its first question, the Bundesfmanzhof requests the Court of Justice to rule whether the expression 'maize groats' used in Article 1 (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 is the result of rough grinding of hulled maize grain from which the germ has been removed and the grains of which are coarser than those of maize meal of merchantable quality and which in other words ought rather to be described as groats. The Bundesfinanzhof asks in addition whether account must be taken for this purpose of the fat content and in particular whether a fat con­ tent of 0.9% to 1.5% must be considered necessary and sufficient.

7 Neither Regulation No 19/62 nor Regulation No 55/62 which was issued in implementation thereof define maize groats' within the meaning of tariff heading ex 11.02 and Article 5 (1) (b) of the latter regulation. In the absence of provisions of Community law, the Explanatory Notes and the Classification Opinions laid down by the Convention on the Nomenclature for the Classifi­ cation of Goods in the Customs Tariffs are authoritative as a valid means of the interpretation of headings in the Common Customs Tariff. It follows from those notes on the headings in Chapter 11 of the Tariff that floury fragments which are less coarse and irregular than kibbled grain but the granules of

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

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Günther Henck undertaking and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 39, 40 and 177; Having regard to Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals; Having regard to Regulation No 55 of the Council of 30 June 1962;

OPINION OF MR ROEMER — CASE 13/71

Having regard to Regulation No 1011/70 of the Commission of 29 May 1970 on certain quality requirements for maize groats and meal used by the Community brewing industry; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT,

OPINION OF MR ADVOCATE-GENERAL ROEMER

(See Case 12/71, p. 754)