C-138/73

JUDGMENT OF THE COURT OF 28 NOVEMBER 1973 1

Codrico NV

v Hoofdproduktschap voor Akkerbouwprodukten (preliminary ruling requested by the College van Beroep voor het Bedrijfsleven)

Case 138/73

Summary

Agriculture — Cereals — Rice — Export refunds — Processed products — Classifica­ tion — Fats — Fat content — Examination — Absence of Community Rules — Proba­ tive value — To be assessed by the national court (Regulation No 2410/70 of the Commission, Article 1; Regulation No 1052/68 of the Council, Article 11)

on the interpretation of Article 1 of Regulation No 2410/70 of the Commission of 27 November 1970, fixing the refunds to be applied to the export of pro­ ducts processed from cereals and from rice (OJ L 260, 1. 12. 1970, p. 21)

1 — Language of the Case: Dutch.

JUDGMENT OF 28. 11. 1573 — CASE 138/73

taken together with Article 11 of Regulation No 1052/68 of the Council of 25 July 1968, on the import and export system for such products (OJ L 179, 25. 7. 1968, p. 8).

THE COURT

composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presi­ dents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, C. Ó Dalaigh (Rapporteur), Judges,

CODRICO v HOOFDPRODUKTSCHAP AKKERBOUWPRODUKTEN

p. 7). The analysis made by the plaintiff 2. In response to an application made in its own laboratory of samples taken by the plaintiff in the main action, the on the day of the export in the presence defendant in the main action granted an of the official of the fiscal administration advance fixing certificate, on 28 was conducted according to the method December 1970, for a refund relating to described at 'Annex 5' to the the export to third countries of Bundeszollblatt No 4', and was the 1 500 000 kg net of maize meal under method used by the German customs. subheading 11.02-A-V-(a). Estimated by this method the fat content The plaintiff in the main action, a Dutch in the dry matter of the relevant lot of cereal-exporting company, exported maize meal varied from 1.212 % to 638 500 kg of maize meal to Norway on 1-24 %. 3 February 1971.

This defendant in the main action then analysis was made by the method provisionally fixed the refund due in described in the document entitled connection with this export in the 'Fettbestimmung in Getreide und amount of 114 738-45 florins. Mahlprodukten' (Calculation of the fat The results of an analysis made by the content of cereals and milled products) and called the 'Soxhlet' method. 'Rijkslandbouwproefstation' (State Labo ratory for agricultural products) of a On the basis of data supplied by the sample taken by an official of the Dutch fiscal administration the defendant then fiscal administration on the day of the fixed the refund due in relation to the export showed that the sample export in question definitively at contained a fat content of 1.5 % and a 98 456.70 florins.

During the proceedings the plaintiff mentioned in this judgment entitled maintained that the product which it had 'Fettbestimmung in Getreide und manufactured could not be compared to Mahlprodukten' — be adopted?' animal feedingstuffs. Moreover the plaintiff stated that the reason for 5. The judgment of the College van employing the method published at Beroep was lodged at the Registry of the Annex 5 to the 'Bundeszollblatt No 4' in Court on 30 May 1973. order to ascertain the fat content was The Commission, represented by R. C. that the scientific knowledge necessary Fischer, its legal adviser, submitted for an examination of its activities was written observations on 28 August 1973 purely German. in accordance with Article 20 of the Protocol on the Statute of the Court of 4. The College van Beroep decided to Justice of the EEC. stay proceedings pursuant to Article 177 of the EEC Treaty and refer the Upon hearing the report of the following questions to the Court of Judge-Rapporteur and the opinion of the Advocate-General the Court decided to Justice for a preliminary ruling: open the oral procedure without any '1. Does the correct interpretation of preparatory inquiry. Article 1 of Regulation (EEC) No 2410/70 of the Commission of 27 November 1970 — read in conjunction with Article 11 of II — Written observations Regulation No 1052/68 of the submitted to the Council of 23 July 1968 — involve Court by the Commis­ that so long as no effect has been sion of the European given to the provision in Article 11 of Communities Regulation No 1052/68, in conjunc­ tion with Article 26 of Regulation The Commission considers that the fact No 120/67, for the determination of that up to the present time no method of a method of assessing the fat content analysis has been laid down pursuant to for the application of Regulation No Article 11 of Regulation No 1052/68, in 1052/68, the fat content of products particular for the purpose of assessing mentioned in the Annex to the fat content of the product at issue, is Regulation No 2410/70 under tariff explained by the extent of the headings 11.02-A-V-(a) and preparatory technical studies and 11.02-A-V-(b) must be determined discussions which would be necessary, according to the method for the since they would have to take account of assessment of crude fat described in the difficulties which one or other of the the Annex to the Second Commission Member States might experience in Directive of 18 November 1971 adopting new methods of analysis. The establishing Community methods of Commission recalls that since that time a analysis for the official control of number of Community methods of feedingstuffs? analysis for the official control of animal 2. Must the last-mentioned method be feedingstuffs have been determined adopted exclusively or may also pursuant to the Council Directive of 20 other methods — e.g. the method July 1970 on the introduction of adopted by the plaintiff as described Community methods of sampling and in Annex 5 to Bundeszollblatt No 4, analysis for the official control of mentioned in this judgment, or the feedingstuffs, based upon Articles 43 and

above-mentioned Regulations (which, in since the College van Beroep did not the view of the Commission, is unlikely question the validity of the two other ever to happen). As regards the methods employed in this case it is not assessment of the fat content, these necessary, in the context of these methods are laid down at No 4 of the proceedings before the Court, to Annex to the Second Commission consider the possible advantages and Directive of 18 November 1971 disadvantages of these different methods. establishing Community methods of The Commission emphasises that the analysis for the official control of methods of analysis in question were feedingstuffs (OJ L 279, 20. 12. 1971, p. those available before 1 January 1973, 7). Article 2 of this Directive requires when the Second Directive of the that the Member States shall, not later Commission came into force within the than 1 January 1973, bring into force the Member States, and that during the laws, regulations or administrative period covered by this case — December provisions necessary to comply with the 1970 to February 1971 — this Directive provisions of the said Directive. had not even been issued. Since its entry The Commission notes that prior to into force the methods of analysis it lays 1 January 1973 there was no Community down must also be employed for the legislation prescribing any method of purposes of the application to animal analysis for the assessment of fat content feedingstuffs of Regulation No 1052/68 in application of Regulations Nos 1052/68 and the implementing provisions and 2410/70 to animal feedingstuffs and determined thereunder, provided always that a different method is not established that, in these circumstances, it was incumbent upon the Member States, which pursuant to Article 11 of the said are obliged generally to take all necessary Regulation. steps to secure the application of Com­ Still more generally, the Commission munity legislation, to determine the states that the Community methods of methods of analysis to be adopted for the sampling and analysis determined or to application of the first of these be determined pursuant to the Council Regulations. In the event the Member Directive of 20 July 1970 apply to all States were at liberty either to require official controls of animal feedingstuffs the use of a single method of analysis or provided for in the context of the to indicate or permit different methods, common organization of agricultural provided, of course, that they all enabled markets or in any other context, except identical and valid results to be where specific Community provisions obtained. require the use of different methods. The question whether, in this case, the The Advocate-General delivered his method of analysis employed by the opinion on 15 November 1973, the Dutch authorities coincided with the parties having decided not to submit oral method laid down by law and whether observations.

4 The second question asks whether the last-mentioned method must be used exclusively or whether other methods may also be adopted, for example that adopted by the plaintiffs in the main action, or that applied by the laboratory to which his Norwegian customer had recourse.

5 Article 11 of Regulation No 1052/68 lays down that, for its application, the methods to be used for assessing the fat content of products processed from cereals and rice will be established.

CODRICO v HOOFDPRODUKTSCHAP AKKERBOUWPRODUKTEN

6 These provisions have not yet been introduced.

7 The Second Commission Directive of 18 November 1971 states that the laws, regulations or administrative provisions necessary to comply with the provi­ sions of the said Directive should be introduced within the Member States on 1 January 1973 at the latest.

8 The main action is concerned with the period from December 1970 to February 1971, during which this Directive had not yet been issued.

OPINION OF MR WARNER — CASE 138/73

THE COURT

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven, in accordance with the decision of that court dated 29 May 1973, hereby rules:

Article 1 of Regulation No 2410/70, read in conjunction with Article 11 of Regulation No 1052/68, involves that in the absence of Community rules on the subject the national court is competent to assess the probative value of tests performed with a view to ascertaining the fat content of the products listed at the Annex to Regulation No 2410/70 under tariff headings 11.02-A-V-(a) and 11.02-A-V-(b).

Lecourt Donner Sørensen

Monaco Mertens de Wilmars Pescatore Ó Dálaigh