C-18/72

JUDGMENT OF 30. 11. 1972 — CASE 18/72

In Case 18/72

Reference to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven for a preliminary ruling in the action pending before that court between

NV GRANARIA GRAANINKOOPMAATSCHAPPIJ, Rotterdam,

and

PRODUKTSCHAP voor Veevoeder The Hague,

JUDGMENT

Issues of fact and of law

I — Facts and procedure 1968 to 31 October 1970 inclusive it imported a product called 'hominy chop The facts and procedure may be summar­ specified' from the same supplier. This ized as follows: product, which Granaria regarded as an improved form of 'hominy chop', was 1. Prior to 18 July 1968 the undertaking declared under heading No 23.02. As a NV Granaria Graaninkoopmaatschappij result of this calssification it was subject to (hereinafter referred to as 'Granaria') the levy provided for by the said heading imported from South Africa a maize pro­ in accordance with Article 14 of Regulation duct described as 'hominy chop', which was No 120/67 of the Council of 13 June 1967 classified under heading No 23.02 A I of (OJ, English Special Edition 1967, p. 33). the Common Customs Tariff. From 18 July During the same period, 'hominy chop

GRANARIA v PRODUKTSCHAP VOOR VEEVOEDER

2. The College decided that, in order to — Article 12(1) of the In- en Uitvoerbesluit settle the dispute, it was necessary to Landbouwgoederen 1963 (Regulation answer the question whether 'hominy chop concerning imports and exports of specified' must be classified under heading agricultural products 1963), under which No 23.02. In this connexion, it refers to the competent national authority may, the two descriptions of the product given on application, grant exemption from by Granaria and the Produktschap respec­ the provisions of Article 7(1). Under tively, which are not constested. Granaria's Article 2(c) and (g) of the In- en description is as follows: Uitvoerbeschikking 1963 (Ministerial Regulation on imports and exports The maize germ is separated from grains 1963) the competent Minister delegated of maize pre-treated with steam by means the power to fix and apply levies within of appropriate machinery. In the course of the meaning of Articles 7 and 10 of the this treatment, the husks (bran) and a part of first-mentioned regulation to the the soft endosperm are also inevitably Produktschap; separated from the grain. One thus obtains, on the one hand: — the Beschikking Landbouwheffingen- en (a) whole grains of maize separated from -restitutieregime 1968 II (Minsterial the straw; (b) maize rice; (c) maize meal Regulation concerning agricultural levies and (d) straw and, on the other hand: and refunds 1968 II), which, in Article (a) flour of maize germ; (b) bran. 15(l)(d), provides that, on application, It is intended to extract oil from the flour total or partial exemption (in appro­ of maize germ and the latter is used for priate cases by means of a refund) from this purpose; its end products are oil and the obligation to pay the levy may be flour of maize germ from which the oil granted 'in certain cases on grounds of has been removed. That part of the flour natural justice.' of maize germ from which oil cannot be extracted is compressed into oilcake (mixed By order dated 2 May 1972, received at the with bran if necessary) to make "hominy Court Registry on 3 May 1972, the College chop specified".' van Beroep voor het Bedrijfsleven stayed

20 of the Protocol on the Statute of the Does any rule of the Treaty establish­ ing the European Economic Com­ Court may be summarized as follows: munity or of any regulation based on this Treaty and in particular of any A — Question 1 of the EEC regulations mentioned in the present order provide for the possibility that the national authorities Granaria states first of all that 'hominy of a Member State may make use of a chop specified' is, for the purpose of its tariff classification based on the method provision like that of Article 12(1) of the In- en Uitvoerbesluit Landbouw­ of preparing it and its market, a completely goederen 1963 in conjunction with different product from 'hominy chop'. The first is a residuary product of maize Article 2(g) of the In- en Uitvoer­ beschikking Produktschap voor Vee­ obtained by removing the germ by a steam voeder 1963 or like that of Article process whereas the second is the residue 15(1)(d) of the Beschikking Land­ of a dry-milling process. bouwheffingen- en restitutieregime In comparing the description which it gives 1968 II for the granting of exemption to 'hominy chop specified' and the process from an obligation to pay the levy for removing the germ from which it results referred to in Article 14 of Regulation with the wording of heading No 23.02 of No 120/67/EEC in connexion with the the Common Customs Tariff, Granaria import into the Community of a observes that the product in question does product falling under heading No not come under this heading. The present 23.02 referred to in Annex A to that case is not concerned with 'bran, sharps regulation?' and other residues derived from the sifting, milling or working' of maize. The word 'working' refers to operations analogous 3. Written observations were submitted in to sifting or milling; if this were not the case accordance with Article 20 of the Protocol it would be difficult to see the reason for on the Statute of the Court of Justice by headings No 23.03, 23.04 and 23.06. Granaria, represented by N. A. Koedam, Heading No 23.02 is thus concerned solely A. Calje and D. J. J. Den Hartog, Advocates with very old dry processes and thus does at the Rotterdam Bar, the Produktschap not include within its scope 'hominy chop

specified' which is a product obtained when 23.02 A on the basis of its starch content.' the oil is extracted by a steam process. The Commission concludes that according According to the Produktschap ‘hominy to this note a produce processed from chop specified' is on the contrary covered maize intended for import must as a rule by the definition in heading No 23.02. be classified under heading No 23.02 when Referring to the explanatory note to it is shown that it cannot come under heading No 23.04, it observes that this heading No 11.01. heading covers solid residues by extraction The Commission draws attention to the by pressing, solvents or subjecting the oil importance for the purposes of tariff contained in the oil-seeds to centrifugal classification of the definition given by

These headings that heading No 23.02 was the subject of a moreover have been the subject of long more precise definition in Regulation discussions within the Customs Cooper No 360/67/EEC of the Council of 25 July ation Council and within the Community 1967 (JO 1967, No 174) and that Regula where they led in 1967 to the provisional tion (EEC) No 1502/68 of the Council of adoption of a supplemental explanatory 23 July 1968 (OJ, English Special Edition note to heading No 23.04 (sent in a letter 1968 (II), p. 323) contains a note on heading dated 28 August 1967 to the Permanent No 11.01 worded as follows as far as Representatives of the Member States). concerns the present case: However neither this note nor the legal measures which followed, in particular the 'Inclusion under this heading is subject to note on heading No 11.01, resolved all the the condition that the product in question problems. At the beginning of 1972 the

JUDGMENT OF 30. 11. 1972 — CASE 18/72

In Case following answer might be given to the 31/70 the Court considered that there could first question: be no reason to depart from a strict application of the Community rules. In 'Products obtained on processing maize, considering the question submitted to it the other than on the extraction of vegetable Court must adopt the same criterion of oils, are excluded from heading No 23.04 interpretation and not give a general of the Common Customs Tariff and may answer to the Netherlands court since the thus be classified under heading No 23.02 answer required depends on the facts of the in Annex A to Regulation No 120/67/EEC particular case and the law applicable.

national court. The protection of individual be followed in the implementation in rights makes this an absolute necessity. national law of Community regulations The Produktschap refers to the observations cannot affect the content of these measures made by the Netherlands Government. or prejudice their uniform application in all The Government of the Kingdom of the the States, observes that neither the Treaty Netherlands observes that the question of nor any Community regulation allows the the application of equitable criteria on the possibility referred to by the national court. making of a levy has already been discussed On the contrary the provisions referred to in Case 31/70 [1970] ECR 1055 where the of Regulation No 120/67 state clearly and Court in paragraph 4 of the judgment without exception the obligation to pay stated that the levy on import. The possibility referred to by the national court would moreover

GRANARIA v PRODUKTSCHAP VOOR VEEVOEDER

formation in the Common Market and the Council regulation submitted in April 1972 rules provided for in this sphere by adopts this solution likewise in cases where Community law must therefore apply. duties or levies have been wrongly assessed. To make use in these cases of national The situations referred to in this draft are, provisions providing for the grant of however, different from those in question individual exemptions or waivers would in the present case. In any event the refund mean affecting the scope of the Community or waiver provided for therein would regulation and would considerably exceed result from rules of Community law and the scope of the national forms and would not be on the basis of national procedures intended to ensure the imple­ provisions derogating from Community mentation of this regulation in national law.

Question 1

2 The first question asks whether Article 14 of Regulation No 120/67 and tariff heading No 23.02, defined in both Annex A to that regulation and in the Common Customs Tariff as 'bran, sharps and other residues derived from the sifting, milling or working of cereals', must be interpreted as applying to products called 'hominy chop specified'.

JUDGMENT OF 30. 11. 1972 — CASE 18/72

3 Granaria, relying on the nature and method of preparation of the products referred to by the said tariff heading, maintains that it applies only to products obtained by dry processes.

4 On the other hand, products obtained by humid processes come under other headings of the same chapter of the Common Customs Tariff and in particular residues resulting from the extraction of vegetable oils, which come under heading No 23.04.

5 Thus the question posed comes down in the first place to whether the true construc­ tion of Article 14 of Regulation No 120/67 implies that, for products coming under heading No 23.02, the method of preparation employed is decisive.

12 It cannot therefore apply to residues which may result from the working of basic products other than that consisting in the extraction of vegetable oils.

GRAN ARIA v PRODUKTSCHAP VOOR VEEVOEDER

13 It follows from the above that Article 14 of Regulation No 120/67 of the Council must be interpreted as meaning that tariff heading No 23.02 makes no distinction regarding the process employed in working cereals since tariff heading No 23.04 refers only to residues resulting from the extraction of vegetable oils.

Question 2

14 The second question asks whether any provision of the Treaty establishing the European Economic Community or a regulation adopted on the basis of this Treaty and in particular one of the EEC regulations referred to in the present order allows the competent national authority of a Member State to avail itself, in particular for purposes of natural justice, of a provision of national law to exempt the importer from the obligation to pay the levy referred to in Article 14 of Regulation No 120/67/EEC on the import into the Community of a product coming under heading No 23.02 of the Common Customs Tariff referred to in Annex A to the said Regulation No 120/67/EEC.

15 Neither Regulation No 120/67 nor any other provisions of Community law en­ visage the possibility of the national authorities of a Member State granting exemption from the obligation to pay the levy.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the undertaking NV Granaria Graaninkoopmaatschappij, the Produktschap voor Veevoeder 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 Article 177; Having regard to Regulation No 120/67 of the Council of 13 June 1967 (OJ, English Special Edition 1967, p. 33); Having regard to Regulation No 1052 of the Council of 23 July 1968 (OJ, English Special Edition 1968 II, p. 4323); Having regard to Regulation No 302 of the Council of 18 February 1969 (OJ, English Special Edition 1969 (I), p. 47); Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by order of that court dated 2 May 1972, hereby rules:

1. Article 14 of Regulation No 120/67 of the Council must be interpreted as meaning that tariff heading No 23.02 makes no distinction regarding the process employed in working cereals since tariff heading No 23.04 refers only to residues resulting from the extraction of vegetable oils;

2. No provision of the Treaty or of the rules relating to its application envisages the possibility of the national authorities granting exemption from the levy provided for in Article 14 of Regulation No 120/67 in connexion with the import into the Community of products coming under heading No 23.02 of the Common Customs Tariff, defined in Annex A to that regulation.