C-285/91
ECLI:EU:C:1992:320
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MERCK v HAUPTZOLLAMT HAMBURG-JONAS
OPINION OF ADVOCATE GENERAL LENZ delivered on 9 July 1992 *
Mr President, those quotations or prices and prices within Members of the Court, the Community may be covered by an export refund.'
3. White sugar (heading ex 17.01 A of the A — Facts Common Customs Tariff = CN Code 1701 99 10) is one of the products listed in Article 1(1 )(a) of the regulation. That prod 1. The request for a preliminary ruling from uct is at the beginning of the manufacturing the Finanzgericht (Finance Court) Hamburg process by which the applicant in the main which I am to consider today relates to proceedings (hereinafter 'the applicant') pro export refunds for vitamin C (ascorbic acid) duces the ascorbic acid exported. falling under heading 29.38 V C of the Com mon Customs Tariff (= CN Code 2936 2700). 4. The mechanism for fixing the export refunds for products manufactured in this 2. That product is listed in Annex I to Regu way by processing products which them lation (EEC) No 1785/81 on the common selves are subject to the relevant market organization of the markets in the sugar sec organization — for example, the organiza tor. 1 Consequently, its exportation may give tion of the market in sugar — is laid down 2 rise to the grant of an export refund under by Regulation (EEC) No 3035/80. That the conditions set out in Article 19 of that mechanism, which is at issue in these pro regulation. Article 19(1) provides, inter alia, ceedings, consists essentially of two pro as follows: cedures. For certain 'basic products' listed in Annex A to that regulation — including white sugar —, a refund rate is fixed under 'To the extent necessary to enable the prod Article 4, generally each month (Article ucts listed in Article 1(1)(a), (c) and (d) to be 4(1)), in accordance with the criteria set out exported in the natural state or in the form in Article 4(2) to (5). The manner in which, of goods listed in Annex I to this Regulation on the basis of that rate, the refund has to be on the basis of quotations or prices on the calculated for the products which are actu world market for the products listed in Arti ally exported (which are referred to as cle 1(1 )(a) and (c), the difference between 'goods' — see the second subparagraph of Article 1(1) of Regulation No 3035/80) is set
* Original language: German. 1 — Council Regulation of 30 June 1981 (OJ 1981 L 177, p. 4); 2 — Council Regulation of 11 November 1980 laying down gen since Regulation No 2306/88 (OJ 1988 L 201, p. 65), Annex eral rules for granting export refunds on certain agricultural I to Regulation No 1785/81 no longer refers specifically to products exported in the form of goods not covered by ascorbic acid, but generally to Chapter 29 of tne Common Annex II to ttie Treaty, and the critcna for fixing the amount Customs Tariff. of such refunds (OJ 1980 L 323, p. 27).
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out in Article 3 in conjunction with Article 'When goods are used in the manufacture of 2 of the regulation. Article 3 determines 'the the goods exported, the refund rate to be quantity of each of the basic goods to be taken in calculating the amount applying to taken' in each case. For that purpose, it each of the basic products, to products draws a distinction between goods listed in derived from the processing thereof, or to Annex B (Article 3(1) and (2)) and goods products assimilated to one of those two cat listed in Annex C (Article 3(3)). The princi egories in accordance with Article 1(2) which ple, which, admittedly, is tempered by vari were used in the manufacture of the goods ous detailed rules, consists in the case of exported, shall be the rate applicable when 5 Annex B in actually calculating the 'quantity the former goods are exported unaltered'. ... actually used in the manufacture of the exported goods'. In the case of Annex C, the — flat-rate — calculation is set out in the annex itself and hence Article 3(3) merely 7. This mechanism — as I have already men refers to it. tioned — also applies to other market orga nizations, in particular to the organization of the market in cereals governed by Regulation (EEC) No 2727/75, 6 Article 16 of which is 5. The first paragraph of Article 2 lays down the parallel provision to the aforementioned the following rule on that basis: Article 19 in the case of the organization of the market in the sugar sector. However, Annex B, to which Article 16 of Regulation No 2727/75 refers, has covered ascorbic acid 'The amount of the refund granted for the only since 28 January 1989, the date on 7 quantity, determined in accordance with which amending Regulation No 166/89 Article 3, of each of the basic products entered into force. exported in the form of the same type of goods, shall be obtained by multiplying this quantity by the rate of the refund on the basic product calculated per unit of weight in 8. As regards the ascorbic acid which the 3 accordance with Article 4 . ' applicant has exported since 1984, the manu facturing process was made up of the follow ing stages:
6. In addition, the fourth paragraph of Arti cle 2 (in the version of Article 2 amended by 8 Article 1(5) of Regulation (EEC) No white sugar (sucrose) — glucose — sorbitol 4 2223/86 ) or the third (original) paragraph — ascorbic acid. of that article, to which the national court's order refers, provides as follows: 5 — German version as corrected by corrigendum in OJ 1981 L 322, p . 42. 6 — Council Regulation of 29 October 1975 on the common 3 — German version as corrected by corrigendum in OJ 1981 L organization of the market in cereals (OJ 1975 L 281, p. 1), 322, p. 42. which has in the meantime been replaced by Council Regu 4 — Council Regulation of 14 July 1986 amending Regulation lation (EEC) No 1766/92 of 30 June 1992 (OJ 1992 L 181, (EEC) No 3035/80 laying down general rules for granting P. 21). export refunds on certain agricultural products exported in 7 — Commission Regulation of 24 January 1989 amending Regu the form of goods not covered by Annex II to the Treaty, lation (EEC) No 2727/75 on the common organization of and the criteria for fixing the amount of such refunds (OJ the market in cereals (OJ 1989 L 20, p. 16). 1986 L 194, p. 1). 8 — See Article l(2)(a) of Regulation No 1785/81.
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9. The particular feature of this process is — 0, 74 kg of white sugar for 1 kg of that sucrose is first used to obtain glucose, D-glucitol (sorbitol) in aqueous solution, which is itself then converted into sorbitol, obtained from sucrose, whereas the 'classical' method consists of converting the sucrose directly into sorbitol.
10. It appears from the documents in the — 2, 45 kg of maize for 1 kg of D-glucitol main proceedings that Hauptzollamt (Princi (sorbitol), other than in aqueous solution, pal Customs Office) Hamburg-Jonas (here obtained from amylaceous products, inafter 'the defendant') initially granted refunds in respect of exports of the product manufactured by the applicant by that pro cess. However, as from 1987 (application of — 1, 06 kg of white sugar for 1 kg of 21 August 1987, export made on 12 August D-glucitol (sorbitol) other than in aque 1987) it rejected 106 successive applications 9 ous solution, obtained from sucrose.' for refunds, by decision of 18 July 1989.
12. It should be observed here that, before 11. According to the national court's order, that footnote to the annex in question was the defendant initially relied on the fourth added, the conversion coefficients applicable paragraph of Article 2 of Regulation No to sorbitol (both sorbitol falling within 3035/80, inferring from that provision that Chapter 29 and sorbitol falling within Chap since the exported goods were manufactured ter 38 of the Common Customs Tariff) were from sorbitol, the refund had to be calcu set out in the actual body of the text of the lated on the basis of the rate applicable to annex. The actual coefficients themselves sorbitol. The refund for sorbitol is calculated underwent, at least as regards the varieties of in accordance with Annex C to Regulation sorbitol obtained from sugar, no change. No 3035/80. In this connection, the defen dant relies on footnote 7, which was incor porated into Annex C by Regulation No 2223/86 and reads as follows: 13. The defendant considers that the glucose from which the sorbitol was obtained consti tutes an amylaceous product within the 'The refund shall be determined in relation meaning of the aforementioned footnote, to the quantities used of D-glucitol (sorbitol) irrespective of the agricultural product from obtained from any amylaceous products and which it was actually manufactured. Glucose of D-glucitol (sorbitol) obtained from does not come under the common organiza sucrose, and shall be calculated on the basis tion of the market in the sugar sector, but of the following quantities of maize and under the common organization for cereals, white sugar: and no refund was laid down for it at the material time; it has only given rise to export refunds since Regulation No 166/89 entered into force.
— 1, 52 kg of maize for 1 kg of D-glucitol (sorbitol) in aqueous solution, obtained 9 — German version as corrected by corrigendum m OJ 1986 L from amylaceous products, 272. p. 35.
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14. The applicant brought an action against 17. 1. In this connection, account should be the decision of rejection. The Finanzgericht taken of the special feature of the case at Hamburg, before which the action was issue, namely that the ascorbic acid exported brought, has doubts as to the interpretation is obtained directly from sorbitol, whereas of some of the aforementioned provisions of the basic product itself constitutes only the Regulation No 3035/80. It therefore referred starting point for subsequent stages in the the following question to the Court for a processing. However, the various alternatives preliminary ruling: set out in Article 3(1) are based on the quan tity 'actually used in the manufacture of the exported goods', and the first sentence of Article 3(2) makes it clear that 'Must the fourth paragraph of Article 2 and Article 3(1), (2) and (3) in conjunction with footnote 7 to Annex C to Regulation (EEC) No 3035/80 be interpreted as meaning that export refunds can also be granted for vita 'the products used unprocessed in the manu min C produced from sorbitol at the rates of facture of exported goods shall be considered refund laid down in respect of sugar if the as actually used'. 10
sorbitol has been obtained from glucose pro duced from white sugar?'
18. It follows that the provision applicable to the calculation in question must do two B — Assessment things.
15. I. I would observe in limine that, of the provisions cited in the national court's ques In the first place, it has to make the arithmet tion, the fourth paragraph of Article 2 of ical connection between the exported prod Regulation No 3035/80 is not applicable to uct and the goods which were directly uti the calculation of the export refund in this lized in order to manufacture it (namely, case, as defined by the question itself. As the sorbitol). term 'ed'nd the method of calculating the refund described therein show, that provi sion relates to the case where exported goods were manufactured using several agricultural Secondly, the same connection has to be products (see the fifth recital in the preamble established between those goods and the to the regulation). basic product; here again, account has to be taken of the special feature consisting in the fact that sorbitol is listed in Annex C to the 16. II. In contrast, in accordance with the regulation, with the result that — at least system of the regulation, as described above, according to the rule set out in Article 3(3) the starting point should be Article 3(1) and — the flat-rate conversion rates set out (2) in order to find a clause which might therein are applicable. possibly preclude any entitlement to refunds, since the exported product is listed in Annex B to the regulation. 10 — My emphasis.
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19. 2. To my mind, the first indent of 22. Since the conditions set out in the first Article 3(1 )(c) of the regulation constitutes indent are satisfied, the quantity of the basic that provision. It provides, inter alia, as product to be taken has to be determined in follows: two stages.
'in the case of use: 23. It is stipulated in the first place that that quantity has to be determined 'on the basis of the quantity of the product actually used in the manufacture of the goods exported'. — either of a product not covered by Annex Consequently, it must be determined in the II to the Treaty derived from the process first stage what quantities of sorbitol were — ing of a product referred to in (a) or (b), actually — used to manufacture the quanti ties of ascorbic acid exported.
24. Next, the quantity of the basic product which has to be calculated on that basis is the quantity, to be determined on the basis 'equal ... subject to the provisions of para of the quantity of the product actually used graph 3, to the quantity established by the in the manufacture of the goods exported, competent authorities in accordance with shall be equal, for each of the basic products Article 8(1)'. The reservation in favour of in question and subject to the provisions of paragraph 3 concerns — and I cannot see paragraph 3, to the quantity established by how it could be otherwise construed — the the competent authorities in accordance with case where the product (directly) used to Article 8(1).' manufacture the exported goods is listed in Annex C to the regulation and where, there fore, the conversion formulas mentioned 20. (a) Leaving aside the uncertainties therein have to apply. Since sorbitol is one of expressed in the national court's order, to those products, this is the approach which has to be taken. The conversion formula, which I shall return later, the case at issue which has remained unchanged since the falls without question within the system of entry into force of Regulation No that provision. 3035/80 for varieties of sorbitol coming under Chapters 29 and 38 of the Common Customs Tariff which are manufactured 21. As far as the conditions set out in that from sugar, has appeared, since the entry into indent are concerned, it should be observed force of Regulation No 2223/86, in footnote that a product not listed in Annex II to the 7 to Annex C, which is mentioned in the Treaty, to wit, sorbitol, was used to manufac national court's question and has been ture the exported goods. In turn, that prod quoted above. 11It indicates what quantities uct was obtained by processing a basic prod of white sugar should be taken for each kilo uct, namely a product referred to in Article gram of sorbitol. 3(1 )(a). It will be necessary to show herein after that that conclusion is not undermined by the fact that the sorbitol obtained was not derived directly from the basic product. 11 — Sec section 11. above.
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25. (b) According to the system of the of footnote 7 to Annex C. That provision, applicable provisions, as understood in this which is referred to in the Finanzgericht's sense, they do not stand in the way of the argument, provides as follows: applicant's claim to refunds. In the final analysis, the doubts expressed about this by the defendant and by the national court are not convincing. 'Where, during one of the stages of manufac ture of [the exported] goods, a basic product is itself processed into another more elabo
26. The particular feature due to the fact that rate basic product used at a later stage, only the sorbitol is obtained from the basic prod the latter basic product shall be considered as uct, not directly, but through the intermedi actually used.' ate stage of the production of glucose could be relevant for the purposes of the applica tion of the provisions mentioned in two respects. First, the wording of the first indent of Article 3(1)(c) requires that the 28. The Commission has rightly pointed out product used, which does not come under that that provision covers only the case Annex II to the Treaty, (in this case, sorbitol) where a basic product is processed into be 'derived from the processing of a product another basic product. But glucose is not a referred to in (a) or (b)' (in this case, the basic product for the purposes of Regulation basic product). Secondly, — and this is the No 3035/80. aspect to which the national court's uncer tainties apply — footnote 7 refers to 'quan
tities . . . of D-glucitol (sorbitol) . . . obtained from sucrose'. The question, which is raised in the same way by the two provisions, 29. Secondly, the interest which the Com namely whether the sorbitol must have been munity has in principle in granting subsidies derived directly from the basic product, for the exportation of products listed in without intermediate processing stages, must Annexes B and C of Regulation No 3035/80, clearly, in my view, be answered in the neg which are processed products covered by the ative. same common market organization as the basic product, does not depend on the num ber or the identity of the intermediate prod ucts not intended to be marketed which arise
27. In the first place, it should be noted that in the course of processing. Rather, from the nowhere is it stated in the two passages from point of view of the market organizations — the instrument that the basic product should a point of view which takes account of com 'actually have been used' to manufacture sor petition with products on the world market bitol. Consequently, the first sentence of which, for their part, are manufactured using Article 3(2), which provides that the prod (cheaper) products on the world market —, ucts used unprocessed in the manufacture of exportation remains exportation of basic (exported) goods are to be considered as products 'in the form of' processed products actually used, cannot, of necessity, come into (see, for example, Article 19 of Regulation
it. Likewise, neither can the second sentence No 1785/81). Where the manufacturer opts of the first subparagraph of Article 3(2) be for an unusual process, which seems to be applied, whether for the purposes of the first the case here, that does not mean that an indent of Article 3(1 )(c) or for the purposes export refund has to be refused for that
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reason, but only that possibly the correctness 32. But, even if distorted results were to be of the proposed calculation method should obtained on the basis of the calculation set be questioned, a matter to which I shall out in footnote 7 owing to the peculiarities return forthwith. of the manufacturing process, that would probably not be capable in principle of caus ing the grant of export refunds to be refused. 30. Here I shall simply mention the fact At the most, consideration should be given that, by virtue of Annex A to Regulation No to placing a narrow interpretation on the ref 2727/75, glucose is a product falling within erence made in Article 3(1 )(c) to Article 3(3) the common organization of the market in and hence to the aforementioned footnote. cereals. In my view, that does not mean that In such case, it would be the quantity of the the exportation becomes as a result an expor basic product 'established by the competent tation of cereals (or of cereal starch) in a authorities in accordance with Article 8(1)' modified form, but it remains an exportation see the end of the first sentence of Article of sugar (processed into other products eligi 3(1)(c) which would be taken. ble for refunds under Annex I to Regulation No 1785/81).
31. 3. Admittedly, I am unable, without 33. 4. As regards the wording of the reply more precise knowledge of the chemical to the national court's question, reference details, to establish positively whether in the should not be made to the fourth paragraph case of the particular process chosen by the of Article 2 of Regulation No 3035/80, applicant the conversion formula set out in which is mentioned in the question, since it footnote 7 produces correct results. How is not applicable and the conclusions reached ever, there is no evidence to suggest that the with regard to the claim to refunds conse results are incorrect; not even the defendant quently are not based on the interpretation seems to claim that this is the case. of that provision.
C — Conclusion
34. For all the above reasons, I propose that the Court should reply to the question referred by the Finanzgericht Hamburg as follows:
Article 3(1), (2) and (3) of Regulation No 3035/80 in conjunction with foot note 7 to Annex C , which was added to that regulation by Regulation No 2223/86, must be interpreted as meaning that they do not prevent the grant of export refunds for vitamin C (ascorbic acid) obtained from sorbitol at the rates of refund laid down in respect of sugar where the sorbitol is obtained from glucose, which itself is produced from white sugar.
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