C-150/73

JUDGMENT OF THE COURT OF 13 DECEMBER 1973 1

Hollandse Melksuikerfabriek

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

Case 150/73

In Case 150/73

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

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

1 — Language of the Case: Dutch.

JUDGMENT OF 13. 12. 1973 — CASE 150/73

JUDGMENT

Issues of fact and of law

I — Facts and procedure Article 3 (3) of this Regulation provides that in respect of the goods listed in 1. The national proceedings are Annex C, (in particular lactalbumin) the concerned with the system of export quantity of basic products to be taken in refunds on lactalbumin, manufactured calculating the amount of the refund from whey, a product which comes shall be that shown in that Annex under tariff heading 04.02 'milk and against each of those goods. cream, preserves, concentrated or Article 4 provides that the rate of the sweetened'. refund shall be fixed for each month per 2. The basic Regulation in the milk 100 kilogrammes of basic products listed in Annex A. sector, Regulation No 804/68 of the Council of the EEC (OJ L 148, 28. 6. As regards albumins, Annex C may be 1968, p. 13) provides for the possibility represented as follows: of the grants of export refunds for certain milk products — inter alia lactalbumin — which do not come Eggs in shell within Annex II of the Treaty and which kg are not therefore in themselves agrciultural products. Under the 35.02 A. II (a) Ovalbumin and (4 ) provisions of Article 17 (1) of lactalbumin Regulation No 804/68 a refund may be granted for 'milk and cream, etc.', (4 ) A quantity resulting from the application of the likewise in the form of lactalbumin. coefficient fixed for calculating the amount of the import charge'. Under the provisions of Article 17 (3), the general rules for granting refunds, By various Regulations the Commission for fixing their amount and for their fixed the refunds in respect of eggs and advance fixing, are to be adopted by the egg yolks exported in the form of Council. ovalbumin (e.g. Regulation No EEC Under Article 17 (4) refunds shall be 2304/71 of the Commission (OJ L 243, fixed at regular intervals, in conformity 29. 10. 1971, p. 25) ). with the Management Committee procedure (Vide Articles 29 and 30 of 3. During the period from 30 December 1971 to 29 November 1972 the said Regulation). The Regulations fixing the refunds are made by the the plaintiff in the main action exported Commission. to third countries 32 lots of lactalbumin containing 80 % dry milk fat. Pursuant to Article 17 (3) the Council made Regulation No 204/69 of 28 Since the Melksuikerfabriek considered January 1969 (OJ L 29, 5. 2. 1969, p. 1), that Regulation No 204/69 had placed laying down general rules for granting lactalbumin on the same footing as export refunds on certain agricultural ovalbumin, they applied to the

Hoofdproduktschap for the grant of an calculating the amount of the import export refund in respect of lactalbumin. charge'? By Decision of 11 January 1973, the 4. If the above questions are answered Hoofdproduktschap voor Akkerbouw- in the affirmative, are the provisions produkten rejected this application on of the said Regulation then binding, the grounds that: (insofar as they lead to an affirmative 'nowhere (in Regulation No 204/69) is it answer to the questions), although stated that whey, a product which must lactalbumin is not mentioned in be classified in tariff heading 04.02, is Annex II of the Treaty establishing placed on the same footing as another the European Economic Community basic milk product that can be the and that Regulation was not enacted subject of a refund, nor that whey, or in the manner provided by Article 235 any other basic milk product is placed of the Treaty? on the same footing as eggs in shell. . .

Court: Council of 27 June 1967, relating to the 1. Must what is stated in Annex C of common system of trade for ovalbumin and lactalbumin (OJ No 130 of 28 June Regulation (EEC) No 204/69 be 1967, p. 2596) provides that import interpreted as meaning, that the duties shall be applied to ovalbumin and reference (4) in the vertical column to lactalbumin.

3. If the answer to the second question 204/69 to put lactalbumin on the same be likewise in the affirmative, does footing as ovalbumin and thus enable a the refund payable in connexion with refund to be granted in respect of the export of the product have to be lactalbumin based upon a product calculated on the basis of what is coming under another organization of mentioned under footnote (4), viz. 'a the market. Putting it on the same quantity resulting from the applica footing in this way lies outside the tion of the coefficient fixed for framework of the organizations of the

II — Written observations submitted to the The text of Annex C to Regulation No Court 204/69 of the Council specifically mentions 'ovalbumin and lactalbumin'. As regards the quantity of the basic Observations of the Hoofdproduktschap product — eggs in shell — which has to The Hoofdproduktschap adheres to the be taken into account for the purpose of arguments it presented in the national the calculation of the amount of the proceedings and refers to the judgment refund this Annex refers to the in which these are set out. coefficient used in the system of trade (Regulation No 170/67) for the purpose The reply to the first question ought to of determining the import charge on be that Annex C of Regulation No ovalbumin and lactalbumin. 204/69 does not relate to lactalbumin. Lactalbumin could in principle, based on The mention of lactalbumin in Annex C the basic milk product from which it is to Regulation No 204/69 accordingly manufactured give rise to an export does not arise from an error. refund, but this was not the system of The Commission can see no reason at all Regulation No 204/69. why the footnote should not apply to lactalbumin: the Regulation does not Observations of the Commission supply any other method of calculation on the basis of which the Commission The Commission of the European Communities observes that Regulation could assess the percentage of the export No 204/69 only supplies rules and refund in respect of lactalbumin if it criteria which have to be observed in should decide to fix it (which it has not fixing refunds. It does not give rise to yet done). any claim for the grant of a refund. This Bearing in mind the close similarity of would require an action on the part of ovalbumin and lactalbumin, both from a the Commission which under the technical and from a commercial point relevant basic regulations is called upon of view, it seemed appropriate that — in periodically to fix the refunds. the event of the Commission fixing When making the regulations fixing the export refunds in respect of lactalbumin level of refunds in respect of eggs and — both refunds should be at the same egg yolks exported in the form of goods level.

On the fourth question proceedings and the Commission were heard. The Council is in principle competent to lay down general rules pursuant to The Hollandse Melksuikerfabriek on Article 43 of the Treaty and pursuant to that occasion repeated its arguments put an enactment implementing that Article, forward in the national proceedings, in as regards the grant of refunds in respect particularly drawing attention to the of lactalbumin. following: Pursuant to the basic regulation for the — lactalbumin and ovalbumin are milk sector (Regulation No 804/68), interchangeable to such a point that lactalbumin, being one of the basic they are pratically one and the same products referred to in Article 1 of that product; regulation, is eligible for an export refund; whey, the substance from which — both products are under the lactalbumin is processed, is one of those provisions of Regulation No 170/67 products referred to in Article 1, bearing subject to the same levy on in mind the fact that whey falls under importation; tariff heading 04.02. — the export refunds must be The Council made use of this power in calculated by the same method its Regulation No 204/69 and has pursuant to the provisions of Article included lactalbumin in Annex C of that 3 (3) and (4) of Regulation No Regulation, which is based upon the 204/69; basic regulation for the milk sector. Even if the calculation of the refunds for — these regulations recognise a link lactalbumin is based on data referring to between these two products which a product other than that from which are practically identical, so that in lactalbumin is produced, this does not fixing the refund in respect of detract in law from the fact that when ovalbumin the Commission impliedly the Commission fixes the rates of the fixed a refund for lactalbumin; refunds, the latter are granted in relation to the agricultural product from which — this thesis is confirmed by the fact lactalbumin is manufactured. that the Hoofdproduktschap in 1971 and 1972 on the basis of the same Regulation No 204/69 does not lay down the refunds in respect of system granted a refund to the lactalbumin and ovalbumin, but in Melksuikerfabriek upon exportation of lactalbumin. respect of agricultural products that are exported in the form of lactalbumin and The Hoofdproduktschap, whilst accept­ ovalbumin. The Commission sees no ing the Commission's conclusions, reason why this rule might not be made disputes the Council's power to lay on the basis of Article 43 of the Treaty. down a method of calculation — even The refund is and remains, notwith­ on a lump-sum basis — for the refund standing the method of calculation, an on lactalbumin based on a product not agricultural measure. belonging to the milk sector. As regards Regulation No 170/67, putting lactalbumin and ovalbumin on a The Commission confined itself to

3 It appears from the court record that the national proceedings are concerned with the question whether the Council by using that description intended to place lactalbumin on the same footing as ovalbumin so that the regulations of the Commission fixing the refund for eggs exported in the form of ovalbumin would likewise apply to milk exported in the form of lactalbumin.

4 The effect of the provisions of Regulation No 204/69 must be looked for not in isolation but in the context of the complete system in the matter of export refunds for milk products not covered by Annex II to the Treaty.

5 The basic system for the milk sector, i.e. Regulation No 804/68 of the Council (OJ L 148, 28.6.1968, p. 13) provides by Article 17 (1) the possibility of the grant of refunds for milk products coming under tariff heading 04.02 that are exported in the form of products mentioned in the Annex, inter alia lactalbumin.

HOLLANDSE MELKSUIKERFABRIEK v HOOFDPRODUKTSCHAP AKKERBOUWPRODUKTEN

6 The general rules concerning the grant — and the fixing of the amount — of refunds are, pursuant to Article 17 (3), to be laid down by the Council.

7 The refunds are pursuant to Article 17 (4), to be fixed periodically by the Commission by the 'Management Committee' procedure.

14 The Commission has clearly not made such a regulation.

15 Accordingly, whilst the Commission has repeatedly laid down a rate of refund for eggs exported in the form of ovalbumin, this does not give rise to a claim to refund for milk exported in the form of lactalbumin.

JUDGMENT OF 13. 12. 1973 — CASE 150/73

16 Accordingly, the reply to the national court must be that though the criteria in Regulation No EEC 204/69, and in particular in Annex C for calculating the amount of export refunds for ovalbumin refer to lactalbumin, this does not imply that the provision of a refund available on export of ovalbumin extends also to export of lactalbumin, in the absence of a special provision in a regulation of the Commission made under Article 17 of Regulation No 804/68.

Costs

17 The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities, who submitted their observations to the Court, are not recoverable and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the national court, the decision as to costs is a matter for that Court.

Lecourt Donner Sørensen Monaco Mertens de Wilmars

Pescatore Kutscher Ó Dálaigh Mackenzie Stuart

Delivered in open court in Luxembourg on 13 December 1973.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI