C-80/72

HOOFDPRODUKTSCHAP voor AKKERBOUWPRODUKTEN of The Hague,

on the interpretation or validity of certain provisions of Regulation, No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals together with various Regulations of the Council and of the Commission on the system of exports and the fixing of refunds for processed products based on cereals, with regard to the classification, in the Common Customs Tariff established by Regulation No 950/68 of the Council of 28 June 1968, of certain processed products derived from barley.

THE COURT

composed of: R. Lecourt, president, R. Monaco and P. Pescatore (Rap­ porteur), (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen and A. J. Mackenzie Stuart, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

I — Facts and procedure different cargoes, weighing respectively 344 500; 492 150 and 300 000 kgs of The facts and proceedings can be goods, described by the company as summarized as follows: 'barley flour', 325 950 kg and 511 680 kg Regulation No 120/67 of the Council of of goods described as 'barley flour in 13 June 1967 on the common grain' and 'barley flour in pellets'. organization of the market in cereals On the basis of this information (OJ No 117, 19. 6. 1967, p. 2269) by furnished by the export company, the Article 16 (1), provides that a refund, competent Dutch bodies granted the equal to the difference between the company, for the products classified quotations on the world market and the under subheading 11.01 C II of the prices in the Community, may be Common Customs Tariff ('Barley four of granted on the export to third countries an ash content, related to the dry of cereals or processed products made material, not exceeding 2 % by weight') from cereals, in particular, those export refunds calculated by reference to products classified under Common the rates fixed for February, April, July Customs Tariff heading ex 11.01 C and August 1968 respectively, by 'Barley flour or oat flour' heading ex Commission Regulations No 122/68 of 23.02 ('bran, sharps, and other residues 30 January 1968 (OJ L 29, p. 13), No derived from the sifting, milling or 372/68 of 28 March 1968 (OJ L 78 p. working of cereals'). 14), No 814/68 of 28 June 1968 (OJ L In implementation of Article 16 (5) of 149, p. 23) and No 1138/68 of 30 July Regulation No 120/67, the Council, by 1968 (OJ L 188, p. 13) prescribing its Regulation No 360/67 of 25 July refunds for products processed from 1967 on the import and export system cereals and from rice. for products processed from cereals and The total amount of refunds granted to from rice (OJ L 174, p. 13), adopted Lassiefabrieken NV was 291 892.30 inter alia general rules on the grant of florins. refunds for exports, and the criteria for fixing their amount. Checks carried out in September 1968 by the 'Rijkslandbouwproefstation' (Na­ From 29 July 1968, Regulation No tional Agricultural Inspection Establish­ 360/67 was replaced by Regulation No ment) at Maastricht on samples taken 1052/68 of the Council of 23 July 1968 from various lots established that the on the import and export system for products exported by Lassiefabriek NV products processed from cereals and were composed of light grains of barley, from rice. (OJ L 179, p. 8). too small and broken, still including By article 14 (5) of Regulation No some small residues of husks (which 360/67, and Article 6 (6) of Regulation product is sometimes termed 'light No 1052/68, refunds are fixed once a barley'), residue from the first shelling, month. sharps made up partly of the inner On 22 February, 11 April, 5 July, 23 tegument and partly of grain, and grain July and 16 August 1968, Koninklijke which was judged to be too small when Lassiefabrieken NV, having its registered the hulled barley was sifted. office at Wormerveer (Netherlands) Microscopic examination of the samples exported to Portugal or Denmark, 5 revealed a bran content of between 20

and 33 % and a flour constituent 360/67/EEC, and of Regulations content of between 36 and 52 %. (EEC) No 122/68, No 372/68 and No 814/68 and/or the contents of Chemical analysis, by the Ewers method, the relevant Annexes to those established a crude cellulose content of Regulations be interpreted in such a between 8.7 % and 14.5 %, a moisture way that for the application of those

the negative: classified under tariff heading 11.01 (cereal flours) when, comprising bran, 2. Must the provisions mentioned in sharps and other residues derived from Question 1 and/or the contents of the sifting, milling or working of barley the Annexes therein mentioned be they fell under heading 23.02 of the interpreted in such a way that, in Common Customs Tariff, for which the relation to the question under which refunds were fixed at a lower level. of the two abovementioned tariff When these decisions were annulled on 1 subheading a product such as that in December 1970 by the 'College van question must be classified, the Beroep voor het Bedrijfsleven', the decisive question is the nature of the 'Hoofdproduktschap voor Akker product in so far as that nature is bouwprodukten' notified Lassiefabrieken apparent, not only from the results NV by letter of 7 December 1970 of a of a chemical analysis, and the new decision reducing the amount of the contents thus determined in export refund to which it was entitled to cellulose, ash, starch, etc, but also 78 933.37 florins. from other characteristic properties Lassiefabrieken NV appealed against this which are ascertained not by means of chemical analysis but by other new partial withdrawal of export means, eg by means of visual refunds, on 10 December 1970, to the

1. Must the provisions of Regulation Common Customs Tariff, as No 120/67/EEC, read in conjunction contained in the Annex to with those of Regulation No Regulation (EEC) No 950/68,

likewise be interpreted in such a way such a way that those references that, for the application of those include a reference to columns 1 and provisions and/or contents, in 2 of that Annex, and hence also to relation to the grant of a refund in the contents of that footnote? respect of export from the If Questions 5 and 6 must both be Community, for the classification of answered in the affirmative: a product such as that now in question under one of the two 7. Are the contents of that footnote abovementioned tariff subheadings, devoid of force as being a criterion such as that mentioned in incompatible with the provisions of Question 2 must be employed? Article 190 of the Treaty If Question 1 must be answered in establishing the European Economic the affirmative; Community, on the ground that Regulation (EEC) No 1052/68, on 4. Must the provisions of the the point dealt with in that footnote, Regulations mentioned in Question 1 dees not contain any statement of and/or the contents of The Annexes reasons, as required by Article 190? therein mentioned, read where necessary in conjunction with the 8. If not, are the contents of that provisions of Regulation No footnote devoid of force as being 228/67/EEC, be interpreted in such incompatible with any provision of a way that the starch content of the the Treaty or of a Regulation product, where this is decisive for implementing the Treaty, or with the admission of the product to one any principle of law underlying the of the two abovementioned tariff Treaty or such provision, which subheadings, must be determined in precludes an amendment in the rules the goods as such rather than in the based on the Treaty, such as that dry material? contained in the footnote — Whatever answer may be given to whereby, for the classification of a Question 1: product under 11.01 C or under 23.02 A respectively, there is 5. Do the contents of the footnote to imposed as a criterion a starch 'cereal flours' on page 1 of the content greater or less than 45 %, Annex to Regulation (EEC) No whereas formerly that criterion was 1052/68 — in so far as they lay not in force — from being effected down that the relevant product, in in the manner adopted in Regulation order to be admitted to the heading (EEC) No 1052/68, namely by therein mentioned, must have a means of inclusion in a footnote in starch content exceeding 45 %, and the Annex to that Regulation? also, if it is a product of barley, an ash content not exceeding 3 % by 9. If not, are the contents of that weight, and that if either of these footnote devoid of force as being conditions is not satisfied, the incompatible with any provision or product must be classified under with any principle of law, as subheading 23.02 A — form part of mentioned in Question 8, which the provisions of Regulation (EEC) would preclude an amendment such No 1052/68 itself, and enjoy the as is mentioned in Question 8 from same legal force as those provisions? being introduced without any transitional period? 6. If so, must the provisions of Regulation (EEC) No 1052/68, 10. If not, are the contents of that wherein reference is made to footnote devoid of force as being columns 3, 4 and 5 of the Annex to incompatible with any provision of that Regulation, be interpreted in Regulation No 120/67 EEC?

If all Question 7-10 inclusive must General L. J. Schippers and the be answered in the negative; Commission represented by its legal advisers J. H. J. Bourgeois and P. Kalbe, 11. Is Article 4 of Regulation (EEC) No submitted their oral observations at the 950/68, in so far as it provides that hearing of 8 May 1973. that Regulation shall come into The Advocate-General presented his force on 1 July 1968, devoid of force opinion at the hearing on 23 May 1973. as being incompatible with the provisions of the first paragraph of Article 191 of the Treaty, or with any other provision of the Treaty, II — Observations submit since that Regulation was published ted to the Court

13. Are the contents of the abovemen derogate from the latter. The footnote to tioned footnote devoid of force as the first page of the Annex to Regulation being incompatible with the No 1052/68 contradicts Regulation No provisions of Regulation (EEC) No 120/67, in that it makes classification 950/68 and/or the contents of the under heading 11.01 conditional on the Common Customs Tariff, as product in question having a starch contained in the Annex to that content exceeding 45 %, and, in the case

March 1973. interpretation of a Regulation' lacking any binding effect. The Court, upon hearing the report of However, if the note were considered as the Judge-Rapporteur, and the opinion a rule with the same legal effect as the cf the Advocate-General, decided to Regulation itself, it must be recalled that commence the oral procedure without it involves a derogation from the any preparatory inquiry. Common Customs Tariff; a regulation Lassiefabrieken NV, represented by F. in implementation of Regulation No Salomonson, Advocate of Dordrecht, the 120/67, enacted by a qualified majority, Hoofdproduktschap voor Akkerbouw- cannot validly modify Regulation No produkten, represented by its Secretary- 950/68 on the Common Customs Tariff,

which adopted the tariff nomenclature determined on the dry material and not deriving in particular from Regulation on the goods as such. No 120/67 and thus of the Regulations The question of when Regulation 950/68 in implementation of the latter, and came into force is of no importance for which, moreover, was enacted unani the result of the main dispute: there is mously. no difference between the classifications So important an alteration in the law as operative on the basis of the combined that introduced by the disputed note provisions of Regulations Nos 120/67 cannot be enacted without a statement and 360/67 on the one hand, and the of the reasons therefore, surreptitiously Common Customs Tariff on the other. (in the form of a footnote) and without The plaintiffs in the main action declare observing any transitional period. that they share the views argued, in Case 72/69, by the Government of the Federal The note is relevant only to the fifth export at issue in the main action, as the Republic of Germany, viz. that the starch content is the sole distinguishing other four exports were completed prior factor between the two headings in to the entry into force of Regulation No 1052/68, and fell under the combined question, and by the Commission which considers that the composition, quality provisions of Regulations Nos 120/67,

The main action, in fact, concerns high quality The Hoofdproduktschap voor Akker animal foodstuffs, due to their high bouwprodukten, the defendant in the starch content. According to the Court, main action, in essence submitted the 'starch residues' were to be distinguished following observations: from 'flour' by their starch content 1. The first question which concerns alone. The Court likewise ruled that 'in the period prior to 29 July 1968, when classifying flour as a product of the Regulation No 360/67 was replaced by milling industry, the Common Customs Regulation No 1052/68, must be Tariff does not have in view a fixed answered in the negative.

950/68. It emerges from the wording of the application of this criterion to barley subheading 23.02 that a starch content flour immediately entails the classifica limited to 28 % is one of the criteria tion of the product in dispute under deciding the inclusion of a residuary heading 11.01. product under either subheading 23.02 A It emerges from the judgment of the I b 1, or subheading 23.02 A I b 2.

JUDGMENT OF 20. 6. 1973 — CASE 80/72

in the specification of heading 11.01 taking account of a starch content not (cereal flours). less than 28 % without indicating whether this content constitutes the The matter may also be understood in the following way: while the limit of criterion of classification of a product 28 % does not appear in the relevant under heading 23.02 or heading 11.01. specification of the headings as a Heading 23.02 is thus not defined criterion for classification under one or otherwise than in Regulation No 360/67. other of these headings, it could Regulation No 1052/68 excludes from nevertheless follow from the very nature heading 11.01, products with a starch of the product that it could only be content of less than 45 %, and, in the classified under tariff heading 11.01, case of products based on barley, since it has a starch content exceeding products with an ash content exceeding 28 %. This is not the case: processed 3 %; account must be taken of this products based on barley, derived from requirement, to classify the product in light grains of barley, too small and dispute. This is indicated by the broken, with fragments of straw still judgment of the Court in Case No 18/72 adhering to them (sometimes this (Granaria, judgment of 30. 11. 1972 Rec. product is termed, 'light barley', and is 1972, p. 1163). obtained by washing the barley), waste from the first hulling, sharps and hulled 4. It emerges from Regulation No grains which were too small, rejected 228/67 of the Commission of 28 June from sifting, with a starch content of 1967 on the starch content of compound between 32.5 % and 35.5 %, a straw feeding stuffs, on the content of starch content of 20 % and an ash content of and of ash in brans and on the

KONINKLIJKE LASSIEFABRIEKEN v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN

determine the product to which the 11. As Regulation No 950/68 provided provisions on basic products, coefficients that it should enter into force on 1 July, and fixed components relate. Articles 5 this was the date of its entry into force, and 8 of the Regulation explicitly refer by Article 191 of the EEC Treaty. The to tariff headings and to the products, fact that publication did not take place appearing in Columns 1 and 2 of the until a later date is not irreconcilable Annex. with Article 191.

JUDGMENT OF 20. 6. 1973 — CASE 80/72

the same meaning in both cases. with binding force for the interpretation of the refund nomenclature of Furthermore, unless the contrary is Regulation No 1138/68; its aim is indicated, the description of goods in the plainly to define the nomenclature of the Common Customs Tariff, when applied Annex to Regulation No 1052/68 for the to the refunds system, retains its original calculation and definition of the levies scope and meaning for classification alone, which explains its insertion in purposes. This meaning is to be Regulation No 1137/68 on levies, and determined in the light of the canons of not in 1138/68 on refunds. interpretation and the principles appropriate to the interpretation of the On the other hand, it must be considered

system. absence of binding rules, the explanatory On any interpretation, the question notes to the Brussels Nomenclature and whether the note in question has the explanatory notes to the customs tariff force of a binding rule of classification of the European Communities; in the may be ignored, as it emerges from the absence of such explanatory notes, or decisions of the Court (Case 30/71, when no conclusion can be drawn from Siemers, judgment of 24 November them in the particular case, the Brussels 1971, Rec. 1971, p. 919 and Case 77/71 Nomenclature of 1950, the explanatory Gervais-Danone, judgment of 15 notes and classification opinions issued December 1971, Rec. 1971, p. 1127) that by the Nomenclature Committee under it applies only to exports carried out the authority of the Customs after 29 July 1968 the date when Cooperation Council in accordance with Regulation No 1052/68 came into force, the Brussels Convention of 15 December and that Regulations Nos 122/68, 1950; finally, when classifying on the 372/68 and 814/68 apply to exports basis of the terms and structure of the prior to that date. With regard tariff provisions of headings 11.01 and

(a) A starch content (determined by the The experts of the Customs Cooperation modified Ewers polarimetric meth­ Council of Brussels adopted a starch content of 45 % and an ash content of od) exceeding that indicated in Column (2); and 3 % as the limits which taking account of existing manufacturing procedures (b) An ash content (after deduction of and ultimate uses, make it possible to any added minerals) not exceeding establish, between the products under that indicated in Column (3); heading 11.01 and these under heading Otherwise, they fall to be classified in 23.02, a distinction meeting commercial heading No 23.02.' needs and appropriate to the requirements of the common organiza­ The table mentions, in the case of tion of the market. Since these limits barley, a starch content of 45 % and an were adopted in the note accompanying ash content of 3 %. the nomenclature of Regulation No Precise rules of classification were not in 1052/68 and in the text of the Common force when the exports in dispute in the Customs Tariff, and since starch content main action were effected, but a might, since April 1967, be employed by distinction could be drawn between national administrations on the basis of 'barley flour' and 'brans and sharps of a classification opinion by the Common barley', founded objectively on the Customs Council, the use of these following basis: criteria of delimitation is objectively justified, and from the point of view of It emerges from the wording of the headings in dispute that Chapter 11 of the uniform application of Community the Common Customs Tariff does not law, necessary, for the export period in question. encompass all products from the milling of cereals, but only those which are Products of the milling of barley which obtained principally by milling and have both a starch content exceeding which are essentially composed of 45 % and an ash content not exceeding particles obtained by the more or less 3 %, therefore, fall to be classified under intensive crushing of the flour element. Chapter 11; on the other hand, products

of the milling of barley which have a provided for by Regulation 228/67 is starch content not exceeding 45 % and concerned only with calculating the an ash content exceeding 3 % fall to be starch content and its employment classified under heading 23.02. These would not in itself give any answer to limits should be applied, to the extent the question whether the content in that they have been inserted in binding starch and ash, which are decisive Community rules of classification, as factors for classification, should be legal criteria of distinction, and, where calculated on the goods as such or on this is not so, as the most appropriate the dry material. criteria from the point of view of the A reply to the question asked can be objective classification of the products in given only on the basis of the provisions question. and rules applicable to the tariff In the light of these considerations, the classification of the products in question. following observations should be made Most of the rules of classification clearly on the questions put by the 'College van indicate that they adopt the contents of Beroep': the various constituents calculated on the dry material, and the absence of (a) On the first question: a starch such an indication in the note content of 28 % is so far below the rate accompanying the nomenclature of of 45 % considered objectively as the Regulation No 1052/68 must be correct limit, that it cannot serve as a interpreted as requiring the calculation criterion of distinction between headings to be effected on the goods as such.

to be distinguished with sufficient starch contents calculated on the goods accuracy. In particular, it is impossible, as such are clearly less than 30 or 40 %; on the basis of the other criteria, to take conversion of these contents calculated sufficient account of the numerous on the dry material, would give processed products which are common percentages between 27.1 % and 40.2 %, in trade. clearly less than the minimum of 45 % laid down for products coming under (c) On the fourth question: various Chapter 11. arguments could be invoked in favour of extending to the refunds system (d) On questions 5 to 10: the problems Regulation No 228/67 which is directly relating to the nature and validity of the applicable only for distinguishing the footnote to the Annex to Regulation No 1052/68 have little relevance for the different tariff headings within the

KONINKLIJKE LASSIEFABRIEKEN v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN

Grounds of judgment

1 By an order of 8 December 1972, lodged with the Registry of the Court on 11 December 1972, the 'College van Beroep voor het Bedrijfsleven', by virtue of Article 177 of the EEC Treaty, has asked the Court for a preliminary ruling on the interpretation of certain provisions of the Annex to Regulation No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals (OJ p. 2269) and of the Common Customs Tariff laid down by Regulation No 950/68 of 28 June 1968 (OJ L 172, p. 1) in conjunction

JUDGMENT OF 20. 6. 1973 — CASE 80/72

with implementing Regulations Nos 360/67 of 25 July 1967 (OJ 174, p. 13) and 1052/68 of 23 July 1968 (OJ L 179, p. 8) of the Council on the import and export system for products processed from cereals, including the implementing regulations of the Commission, chiefly in order to decide the validity of a provision forming part of the Annex to Regulation No 1052/68;

The state of Co m m u n i t y le g i s l a t i o n at the time of the exports in dispute

2 The questions referred arose within the context of a dispute over the grant of the export refunds provided for in Regulation No 120/67 and over the classification of a product derived from barley, with regard to certain rubrics of tariff headings 11.01, 'cereal flours', and 23.02 'brans, sharps and other residues derived from the sifting, milling or working of cereals';

8 Regulation No 1052/68 was followed by implementing Regulation No 1138/68 of the Commission of 30 July 1968 (OJ L 188, p. 13), governing the fifth and last of the exports which gave rise to the action;

9 By Article 18 of Regulation 120/67, 'the tariff nomenclature resulting from application of this Regulations shall be incorporated in the Common Customs Tariff from the date on which the latter is fully applied';

10 By the provision, the nomenclature of the Customs Tariff replaced the corresponding provisions of the Annex to Regulation No 120/67, with regard to the tariff headings cited by the reference for a preliminary ruling, when Regulation No 950/68 came into force.

11 Finally, the substance of the note introduced by the Annex to Regulation No 1052/68 has been adopted in the form of an 'Additional Note' preceding the provision of Chapter 11 of the Custom Tariff, on the revision of the latter by Regulation No 2451/69 of 8 December 1969 (OJ L 311, p. 1);

On the legal nature and validity of the note in the Annex to Regulation No 1052/68 (Questions 5, 6 and 7)

12 From all the questions referred, it appears that the dispute has been caused, in essence, by the insertion in to the Annex to Regulation No 1052/68 of the note whose aim was to clarify the criteria of classification establishing the distinction between Tariff Headings 11.01 and 23.02;

is By the sixth question, the Court is asked to state whether the provisions of Regulation 1052/68 referring to columns 3, 4 and 5 of the Annex are to be interpreted in such a way as to include a reference to columns 1 and 2 of that Annex; the note in dispute is appended to a heading set out in column 2;

19 The Annex, which is drawn up in the form of a general schedule, is to be considered as a coherent entity within which the detailed provisions are meaningful only in relation to the schedule as a whole;

20 In particular, the entries in columns 3, 4 and 5 would be meaningless unless they were taken on conjunction with the corresponding rubrics in columns 1 and 2;

21 It follows that the note appended to the rubrics which appear in column 2 opposite headings 11.01 and 11.02 relates to all the provisions of the Annex which concern the said headings, including inter alia subheading 23.02 A which is expressly referred to by the note itself;

22 Any reference in the Regulation to columns 3, 4 and 5 therefore constitutes an implicit reference also to columns 1 and 2 and the note appended thereto;

23 The seventh question asks whether the validity of the note is affected by the fact that Regulation No 1052/68 does not, on the point laid down by the note in dispute, contain a statement of reasons in accordance with the requirements of Article 190 of the EEC Treaty.

28 The first question asks whether, with regard to products derived from barley, the criteria of a starch content exceeding 28 % may be taken into consideration as determining the distinction, for the classification of the goods, between tariff headings 11.01 C and 23.02 A;

29 The criterion referred to appears, both in Regulations Nos. 360/67 and 1052/68 and in the Common Customs Tariff, as one of two criteria for classification within one of the subheadings 23.02 A, so that a starch content exceeding 28 % cannot indicate that the goods fall outside the said subheadings;

30 It follows therefrom that the first question must be answered in the negative;

JUDGMENT OF 20. 6. 1973 — CASE 80/72

31 The fourth question requires to be answered only in the event of the reply to the first being affirmative;

32 It appears in fact from the order referring the case that the quantities exported whose classification is in dispute have a starch content of approximately 28 %, so that in this case the choice of the basis of analysis—starch content calculated on the goods as such or on the dry material—could have been of decisive importance;

38 Before the note appearing in the Annex to Regulation No 1052/68 came into force, questions of classification fell to be resolved by the authorities entrusted with the execution of the common agricultural policy, and, as a last resort, by the competent courts, in the light of the general procedures and principles prevailing in the application of the Customs Tariff;

39 In the absence of binding indications for the period prior to the note appearing in the Annex to Regulation No 1052/68, regard may be had to several factors enabling the competent authorities to distinguish between the categories of classification of headings 11.01 and 23.02;

40 It is to be noted that the 'flours' referred to in heading 11.01 must always, of necessity, have a starch content exceeding, and an ash and cellulose content less than that of the original cereal;

41 Explanatory notes were already in existence when the exports in dispute were effected, which, although they were concerned with cereals other than barley, sanctioned the adoption of a starch content of 45 % as a decisive criterion of classification in that sphere;

42 It is therefore clear that the note inserted in the Annex to Regulation 1052/68, far from introducing an innovation into the principles of classification previously in force, restricted itself to establishing precise criteria which were thenceforth authoritatively imposed;

43 It follows that the criteria emerging from that note cannot be considered as conflicting with those previously applied in the context of the normal procedures of interpretation of the Customs Tariff;

49 The ninth question asks whether the note in dispute may be vitiated by the fact that it does not provide for a transitional period;

50 In this case it is sufficient to find that the sole objective of that note was to clarify the meaning of two tariff headings in relation to each other, which question was previously left to the judgment of the competent authorities;

51 The tenth question asks, farther, whether that note is to be considered as devoid of force as being incompatible with one of the provisions of Regulation No 120/67.

52 That question appears to be founded on the hypothesis of a possible incompatibility between the tariff headings laid down by the Annex to Regulation No 120/67 and the note introduced by the Annex to Regulation No 1052/68;

53 The tariff headings laid down in the Annex to Regulation No 120/67 have been in no way modified by Regulation No 1052/68; the scope of the latter,

KONINKLIJKE LASSIEFABRIEKEN v HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN

59 The question of the relationship between the note in dispute and the basic tariff rules which served to lay down these headings should therefore be judged in the same way, regardless of whether the Annex to Regulation No 120/67 or the Common Customs Tariff is in question;

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60 It is therefore irrelevant to establish which was the basic rule applicable at the time of the export in question.

61 In accordance with the abovementioned grounds, and in the absence of any conflict between the note in dispute and the tariff headings whose delimitation the note is intended to clarify, the legality of that note cannot be doubted;

On the means of analysis (Questions 2 and 3)

62 The second question asks whether, apart from the results of a chemical analysis intended to reveal the cellulose, ash, starch etc. contents, in the products in question, account may be taken of other characteristics, established by another means, such as visual (microscopic) observation;

67 Since, insofar as the parties to the main action are concerned, the proceedings are a step in the action before the national court, it is for the latter court to decide the question of costs.

On those grounds

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties to the main action 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 the Statute of the Court of Justice of the European Economic Community, in particular Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

in reply to the questions referred to it by the 'College van Beroep voor het Bedrijfsleven' by its order of 8 December 1972, hereby rules:

1. Examination of the questions referred has revealed no element of such a nature as to affect the validity of the note relating to the heading 'cereal flours' inserted in the Annex to Regulation No 1052/68 of 23 July 1968. This note forms an integral part of the Regulation and enjoys the same legal force as its provisions, (Questions 5, 7, 8, 9, 10, 11, 12 and 13).

Kutscher Ó Dálaigh Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 20 June 1973.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL MAYRAS DELIVERED ON 23 MAY 1973 1

Mr President, Lassiefabrieken, as 'barley flour' coming Members of the Court, under Tariff Heading 11.01. Between 22 February and 16 August The proceedings which caused the 1968, the company exported five lots of College van Beroep voor het Bedrijfsleven these goods to Denmark and Portugal, to refer thirteen questions, the text of third countries, and obtained refunds at which is before you, relate to the the daily rate or by means of fixing in advance. cassification, for the grant of export refunds, of goods described by the The Hoofdproduktschap voor Akker­ plaintiffs in the main action, Koninklijke bouwprodukten, the competent Dutch