C-295/88
ECLI:EU:C:1989:412
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OPINION OF MR LENZ —CASE C-295/88
OPINION OF MR ADVOCATE GENERAL LEN2 * delivered on 9 November 1989
Mr President, did not satisfy the criteria of Article 5 of Members of the Court, Regulation No 802/68 on the common defi nition of the concept of the origin of goods, 1 since the processing from which the product was obtained could not be regarded as a substantial process or operation or one A — Facts that resulted in the manufacture of a new product or represented an important stage of manufacture. It must therefore be inferred from that finding of the national 1. Corman et Fils, the plaintiff in the main court that the butteroil was not a product of proceedings, claims from the competent Community origin. intervention agency payment of export refunds and monetary compensatory amounts for a product called butteroil which it exported between July 1975 and 4. The cour d'appel also referred four March 1977 to France, the United Kingdom questions to the Court, seeking essentially and countries outside the Community. to determine the provisions under which export refunds and monetary compensatory amounts are payable for the export of the butteroil and whether, in view of the incorrect classification, such payments are 2. The butteroil was obtained by the to be limited to the import duties actually plaintiff from a product called 'nutrix' paid. which was made up of 84% fat, 2 % cocoa and 12% flour. The nutrix was imported into Belgium from France as a Community product under subheading 18.06 D II 5. I shall deal with the observations of the (c) 2, although it was in fact a product parties as far as is necessary in the course of from Austria which had been imported into my Opinion. For the rest, let me refer to the France under the incorrect subheading Report for the Hearing, especially as 19.02 B II (b); the incorrect classification regards the precise wording of the led to the imposition of a levy which was preliminary questions. less than would have been imposed under the correct classification.
B — Opinion
3. In the case pending before the Belgian courts the cour d'appel (Court of Appeal), Brussels, held in an interlocutory judgment 6. It must be stated first of all that it of 14 April 1987 inter alia that the butteroil appears from the written and oral procedure
* Original language: German. 1 — OJ, English Special Edition 1968 (I), p. 165.
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before the Court that the plaintiff in the 8. According to the findings of the national main proceedings and the Commission of court the butteroil which the plaintiff in the the European Communities share the view main proceedings exported was not a that written Community law contains no Community product, so that export refunds basis for the plaintiff's claim to payment of cannot be granted under Article 6 of Regu export refunds. Those two parties also agree lation No 876/68. Furthermore, the that there is an entitlement to payment of exception in Article 7 does not apply since monetary compensatory amounts. the exported product (butteroil) is not the same as the product (nutrix) which was imported into the Community, for the imported product does not come within Annex II to the Treaty whereas the exported product does.
7. I share those two opinions, for the following reasons.
9. I cannot, however, accept the plaintiff's argument, relying on the judgments of 19 Butteroil, as a product falling under October 1977 4in the Quellmehl and maize subheading 04.03 B, comes within the scope groats and meal cases, that the bar on the of the common organization of the market grant of export refunds for products orig in milk and milk products, 2 for which inating outside the Community represents Article 17 provides that export refunds may unlawful discrimination. The different be granted upon certain conditions. On the treatment of the products is justified by the basis of that article the Council adopted fact that the common agricultural policy is Regulation No 876/68 laying down general intended to encourage agricultural rules for granting export refunds on milk producers in the Community. Finally, the and milk products and criteria for fixing the Court held in its judgment of 1 October amount of such refunds. 3Article 6 of Regu 1974 in Case 14/74 that the organization of lation No 876/68 provides that one of the the agricultural markets has established conditions for granting export refunds is price mechanisms intended to give agri that the products should be of Community cultural producers certain guarantees of origin (except where the provisions of income, providing, in the case of export to Article 7 apply). On the importation of third countries, refunds granted from products from non-member countries and Community resources. The benefit of these their re-exportation to non-member measures is limited, in general, to products countries, Article 7 of Regulation No of the Community, 'that is to say of those 876/68 allows the granting of refunds only countries which contribute to the financing if the product to be exported and the of the common agricultural policy'. 5 product previously imported are one and the same and the levy was collected on 4 — Judgments of 19 October 1977 in Joined Cases 117/76 and 16/77 Ruckdeichet and Co. and Others v Hauptzollamt importation. Hamburg-Si. Annen and Olben [1977] ECR 1753, in Joined Cases 124/76 and 20/77 Moulins et huileries de Pont-à-Mousson and Others v Office national interprofes- 2 — Regulation No 804/68 of the Council of 27 June 1968 on sionnel des céréales (1977) ECR 1795. the common organization of the market in milk and milk 5 — Judgment of 1 October 1974 in Case 14/74 Norddeutsches products, OJ, English Special Edition 1968 (I), p. 176 Vieh- und Fleischkontor GmbH v Hauptzollamt Hamburg- 3 — OJ, English Special Edition 1968 (1), p . 234 Jonas [1974] ECR 899, at p. 909.
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10. Unlike export refunds, however, theless under certain circumstances be monetary compensatory amounts are regarded as basic products, especially as payable also in respect of goods which are regards the grant of export refunds and not of Community origin since the relevant monetary compensatory amounts. provisions of Community law contain no corresponding restriction to products with an origin in the Community.
14. As regards the grant of export refunds it does not seem to me necessary to answer 11. Article 1(2) of Regulation No 974/71 that question expressly. Since the national of the Council of 12 May 1971 6 allows court itself found that the exported butteroil compensatory amounts to be charged or was not of Community origin, for that granted, subject to certain conditions, in reason alone no export refunds are payable. respect of products covered by intervention Whether butteroil is to be classified as a arrangements under the common organ basic product or a processed product is ization of agricultural markets and products therefore irrelevant. If, on the other hand, whose price depends on the price of such butteroil were to be regarded as a products. Regulation No 1380/75 of the Community product, export refunds would Commission of 29 May 1975 lays down be payable and again the fact that the basic detailed rules for the application of product, butteroil, was originally manu monetary compensatory amounts. 7 factured from a processed product would be irrelevant.
The questions put by the cour d'appel
15. Similarly, as regards the grant of monetary compensatory amounts there is no need to answer the first question, since it is 12. When I now turn to the various clear that the butteroil was exported as a questions put by the cour d'appel, Brussels, basic product within the meaning of Annex I cannot help entertaining some doubt as to II to the EEC Treaty. whether all the questions raised are relevant to the present proceedings.
2. Second question 1. First question
13. The first question essentially raises the This question seeks an interpretation of problem whether goods which are not listed Article 9 of Regulation No 2682/72 of the in Annex II to the EEC Treaty may never Council of 12 December 1972. 8According to Article 1, however, that regulation relates 6 — Regulation (EEC) No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be 8 — Regulation (EEC) No 2682/72 of the Council of 12 taken in agriculture following the temporary widening of December 1972 laying down general rules for granting the margins of fluctuation for the currencies of certain export refunds on certain agricultural products exported in Member States (OJ, English Special Edition 1971 (I), the form of goods not covered by Annex II to the Treaty, p. 257). and the criteria for fixing the amount of such refunds (OJ, 7 — OJ 1975, L 139, p. 37. English Special Edition 1972 (9 to 28 December), p. 42).
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to the grant of refunds on the export of 19. As far as export refunds are concerned, basic products in the form of goods not this question is relevant only in the case covered by Annex II to the Treaty. As has referred to in Article 7 of Regulation No been found, butteroil is a product covered 876/68, that is to say where the imported by Annex II to the Treaty. Regulation No and exported product are identical. 2682/72 of the Council thus does not apply However, as stated above, that was not the to the export of butteroil. The question of case, so again the question does not require the interpretation of Article 9 thus does not an express answer in that respect. arise.
20. As regards the payment of monetary 3. Third question compensatory amounts, the third subparagraph of Article 12(1) of Regulation No 1380/75 simply states that on exit from the re-exporting Member State the monetary compensatory amount is not to be 16. In so far as the third question concerns applied unless it was applied on entry into the Community principles or rules govern that Member State, or if the option ing the fixing of export refunds, it must provided for in Article 2a of Regulation No again be pointed out that no export refunds 974/71 was exercised on behalf of that State are payable on the export of the butteroil (of which, however, there is no indication since it was not of Community origin and so here). the question does not arise.
21. The defendants in the main proceedings 17. In so far as the third question concerns have submitted that payment should be the fixing of monetary compensatory limited to the amount of import duties amounts, what I have said above can be which were in fact imposed. They have not, repeated: the grant of monetary however, cited any provision upon which compensatory amounts is governed by the such a limitation should be based in respect provisions of Regulations Nos 974/71 and of the grant of monetary compensatory 1380/75. amounts. The Commission, too, has simply stated that the third paragraph of Article 12(1) of Regulation No 1380/75 is applicable to monetary compensatory amounts without, however, claiming that 4. Fourth question any limitation should be applied.
18. The fourth question raises the problem 22. The third paragraph of Article 12(1) whether any monetary compensatory merely makes it a condition of the payment amounts or export refunds due are to be of the monetary compensatory amount that limited on the basis of the duties actually a monetary compensatory amount should levied on the import or the duties which have been levied on import. That was the would have been payable on correct classifi case here since on the importation of the cation. nutrix into Belgium monetary compensatory
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amounts were applied. Since, moreover, on those in fact levied probably does not arise. the importation into Belgium the goods Furthermore, Article 12 of Regulation No were correctly classified and thus a correct 1380/75 contains no restriction like that in, amount in import duties was levied, the for example, Article 7(2) of Regulation No question of a distinction between the import 876/68 in respect of the grant of export duties which should have been levied and refunds on milk and milk products.
C — Conclusion
23. In conclusion I propose that the Court should answer the questions referred to it for a preliminary ruling by the cour d'appel, Brussels, as follows:
'(1) Without prejudice to the rule in Article 7, Article 6(1) of Regulation No 876/68 is to be interpreted as meaning that export refunds are not payable on the export of products which, although they are referred to in Article 1 of Regulation No 804/68, are not of Community origin.
(2) Monetary compensatory amounts are payable, in accordance with the conditions laid down in Regulation No 974/71 and the third subparagraph of Article 12(1) of Regulation No 1380/75, on the export to a non-member country of products covered by Regulation No 804/68 even though they are not of Community origin.'
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