C-334/95

2. The relevant provisions of the milk regu­ 3. At the material time Annex I to Council lation are as follows: Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomencla­ 3 ture and on the Common Customs Tariff (hereinafter the 'Customs Tariff') provided as * Original language: Danish. 1 — OJ, English Special Edition 1968 (I), p. 176, as last amended follows: by Council Regulation (EC) No 1587/96 of 30 July 1996 amending Regulation (EEC) No 804/68 on the common organization of the market in milk and milk products (OJ 1996 L 206, p. 21). 2 — OJ 1992 L 302, p. 1, as most recently amended by Regu- 3 — OJ 1987 L 256, p. 1, as amended by Commission Regulation lation (EC) No 82/97 of the European Parliament and the (EEC) No 2505/92 of 14 July 1992 amending Annexes I and Council of 19 December 1996 amending Regulation (EEC) II to Council Regulation (EEC) No 2658/87 on the tariff and No 2913/92 establishing the Community Customs Code statistical nomenclature and the common customs tariff (OJ 1997 L 17, p. 1). (OJ 1992 L 267, p. 1).

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KRÜGER v HAUPTZOLLAMT HAMBURG-JONAS

Supplemen­ Rate of duty tary unit

autonomous (%) conventional CN-Code Description or (%) levy (AGR)

1 2 3 4 5

2101 10 99 Other 20,8 13 + MOB

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OPINION OF MR ELMER — CASE C-334/95

4. The Explanatory Notes of the Customs (4) Preparations with a basis of coffee ... Co-operation Council to the Harmonized These preparations include, inter alia: Commodity Description and Coding Sys­ tem, known as the harmonized system, are worded as follows as regards heading 21.01: (a) "Coffee pastes" consisting of mixtures of ground, roasted coffee with vegetable fats and sometimes other ingredients ...

'21.01 ... ...'

5. The provisions of the customs regulation which are relevant for present purposes are The heading covers: as follows:

shall apply, without prejudice to special rules Section 4 laid down in other fields

Export

— to trade between the Community and Article 161 third countries,

1. The export procedure shall allow Com­ munity goods to leave the customs territory of the Community.

Exportation shall entail the application of exit formalities including commercial policy measures and, where appropriate, export TITLE IV duties.

2. With the exception of ... all Community goods intended for export shall be placed CUSTOMS-APPROVED TREATMENT under the export procedure. OR USE

authorities which relate to the application of Article 244 customs legislation, and which concern him directly and individually.

The lodging of an appeal shall not cause implementation of the disputed decision to be suspended. Any person who has applied to the customs authorities for a decision relating to the application of customs legislation and has not obtained a ruling on that request within the period referred to in Article 6(2) shall also be entitled to exercise the right of The customs authorities shall, however, sus­ appeal. pend implementation of such decision in whole or in part where they have good rea­ son to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned. The appeal must be lodged in the Member State where the decision has been taken or applied for.

Where the disputed decision has the effect of causing import duties or export duties to be charged, suspension of implementation of that decision shall be subject to the existence 2. The right of appeal may be exercised: or lodging of a security. ....

Procedure before the national court and (a) initially, before the customs authorities questions referred to the Court designated for that purpose by the Mem­ ber States;

6. Krüger GmbH&Co . KG (hereinafter (b) subsequently, before an independent 'Krüger') is the producer of 'Cappuccino body, which may be a judicial authority Tasse', which is manufactured with a basis of or an equivalent specialized body, coffee extract and contains, inter alia, according to the provisions in force in skimmed milk. In respect of exports of that the Member States. product in 1993 Krüger received export

11. Krüger then brought an action before the Finanzgericht Hamburg for suspension 7. By letter of 3 February 1994 Krüger of implementation of the decision. By enquired of the Hauptzollamt (Principal decision of 21 September 1995 the Finan­ Customs Office) Hamburg-Jonas why its zgericht Hamburg, by reference to Article subsidiary had not received a refund on the 244 of the customs regulation, granted export of the same product. By letter of 11 Krüger's application for suspension of February 1994 the Hauptzollamt Hamburg- implementation, on the ground that there Jonas replied that export refunds were only was some doubt as to the validity of the milk granted in respect of skimmed milk con­ regulation. The Finanzgericht Hamburg also tained in preparations with a basis of coffee granted leave to appeal against the decision and not in respect of skimmed milk con­ to suspend implementation of the decision tained in preparations with a basis of coffee and referred the following questions to the extract. Court for a preliminary ruling:

'1 . Does [the milk regulation], read in con­ 8. By decision of 30 May 1994 the Haupt- junction with the Annex thereto, zollamt Hamburg-Jonas demanded repay­ infringe the second subparagraph of ment of the DM 89 411 paid to Krüger in Article 40(3) of the EC Treaty, and is it connection with the export of Cappuccino consequently invalid, inasmuch as it Tasse in 1993 on the ground that this amount does not provide for the grant of an had been paid in error, since the product had export refund for milk and/or milk been manufactured with a basis of coffee products contained in edible prepara­ extract and not with a basis of coffee. tions falling within .Combined Nomen­ clature Code No 2101 10 and produced with a basis of extracts, essences or con­ centrates of coffee?

5. If the answer to Question 3 is in the negative: in cases in which there exists doubt as to the validity of the Commu­ nity legislation on which the decision is based, what are the criteria according to 13. Krüger maintains that the milk regu­ which the suspension of implementation lation infringes the second subparagraph of falls to be determined? Article 40(3) of the Treaty, since two identi­ cal or comparable products are treated differ­ ently for no reason. Both products are used as foodstuffs and semi-finished products in the food-manufacturing industry. Consum­ ers make no distinction between coffee 6. Is the second paragraph of Article 177 drinks made from coffee extract and those of the EC Treaty to be interpreted as made from roasted coffee. The food- precluding, in cases such as this, the manufacturing industry chooses between

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KRÜGER v HAUPTZOLLAMT HAMBURG-JONAS

14. The Commission and the Council state that the products in question are not identi­ The Association des Fabricants de Café cal and point in that regard to the Explana­ Soluble des Pays de la CEE (Afcasole, Paris), tory Notes of the Customs Cooperation the Fédération Européenne des Associations Council, which refer, as examples of prepara­ de Torréfacteurs de Café (EUCA, Brussels) tions with a basis of coffee, to coffee pastes and the Kaffeerösterverband, Hamburg, and, as examples of preparations with a basis informed the Commission that no prepara­ of coffee extract, to instant coffee. The ingre­ tions with a basis of coffee with added milk dients, manufacturing processes and prices or milk products currently existed. are different. Moreover, preparations with a basis of coffee are served in certain types of establishment, while preparations with a basis of coffee extract are served in other types of establishment. Preparations with a basis of coffee have a different flavour from those with a basis of coffee extract and leave a sediment after use; they are therefore not 15. The Council has further pointed out interchangeable with preparations with a that, according to the case-law of the Court, basis of coffee extract. discrimination can only be established on the basis of a specific comparison of the actual effects of different treatment of two groups of traders and not on the basis of a purely theoretical deduction from the provisions of the regulations. Krüger has failed to demon­ strate the existence of traders who have been treated more favourably than itself. It fol­ lows from the case-law of the Court that the Furthermore, the value of the skimmed milk/ fact that the products might be interchange­ skimmed milk powder in preparations with a able does not preclude different treatment basis of coffee extract is low in comparison from being justified.

17. According to the Council and the Com­ mission, when drawing up the milk regu­ lation the Community legislature considered it necessary to grant an export refund in respect of the milk products in preparations 19. It must make no difference whether any 'with a basis of coffee', since the value of the preparations with a basis of coffee with milk products contained in them was rela­ added milk actually existed, exist at present tively high. On the other hand, it was not or will exist in the future. In principle, such considered appropriate to grant an export products are conceivable, for example for use refund in respect of the milk products in in espresso machines. There is no reason to preparations 'with a basis of extracts, question the accuracy of the observation of essences or concentrates' of coffee, since the the Council and the Commission that the value of the milk products in those goods value of the milk content of preparations was relatively low. 'with a basis of extracts, essences or concen­ trates' of coffee is less than that of the milk products in preparations 'with a basis of cof­ fee'. No reason for that difference in value is given. Perhaps it lies in the fact that, all else being equal, the value of the coffee in prepa­ rations containing milk products is higher in 18. Since the Customs Tariff contained no the case of preparations 'with a basis of separate subheadings for preparations 'with a extracts, essences or concentrates' than in the basis of extracts, essences or concentrates' of case of preparations 'with a basis of coffee', coffee and preparations 'with a basis of cof­ since the former product presupposes that fee', the milk regulation could not adopt the the latter product has been processed.

20. In that regard, it is irrelevant that the coffee with added milk or milk products are Combined Nomenclature was subsequently interchangeable. The Court has little evi­ amended, by Commission Regulation (EC) dence on which to base its decision, and the 4 No 3115/94 of 20 December 1994, so that situation is not improved by the fact that at 5 there are now two subheadings for prepara­ present it is possible that no preparations tions, one covering preparations with a basis with a basis of coffee with added milk or of coffee extract and the other concerning milk products exist. Krüger has failed to other products. That regulation entered into demonstrate the existence of a specific prod­ force on 1 January 1995, but the Hauptzol- uct which might serve as a reference point lamt Hamburg-Jonas had already decided on for an analysis of interchangeability. To my 11 February 1994 that refunds should not be mind, however, there is no need to form a granted in respect of the milk and milk prod­ view on whether the products are inter­ ucts in preparations with a basis of coffee changeable. extract. In my opinion there is no reason to suppose that the decision taken by the Hauptzollamt Hamburg-Jonas on 11 Febru­ ary 1994 was affected by the amendments to the Customs Tariff made by the regulation of 20 December 1994. 23. As stated above, the value of the milk/ milk products in preparations with a basis of coffee extract and so forth represents a rela­ tively smaller proportion of the final price than the value of the milk/milk products in preparations with a basis of coffee. As the 21. It is therefore necessary to consider Council and the Commission pointed out, whether the fact that refunds are granted in there is greater risk that the milk will be respect of the milk products in preparations replaced by another product when the milk with a basis of coffee but not the milk prod­ represents a more significant proportion of ucts in preparations with a basis of coffee the price of the finished product. It is for extract constitutes discrimination within the that reason that it was only considered nec­ meaning of the second subparagraph of essary to grant export refunds in respect of Article 40(3) of the Treaty. the proportion of milk in preparations with a basis of coffee. To my mind that is a valid objective reason for treating preparations with a basis of coffee with added milk or milk products differently from preparations with a basis of coffee extract with added milk or milk products. 22. In. order to determine whether there is discrimination, it is necessary in principle to establish whether preparations with a basis of coffee extract with added milk or milk products and preparations with a basis of

28. Krüger maintains that a decision order­ ing recovery of export refunds is a decision taken by the customs authorities which relates to the application of customs legisla­ 25. By its second question, the national tion, in accordance with Article 243(1) of the court seeks to ascertain whether the breach customs regulation. Admittedly, the first sen­ of the prohibition of discrimination set out tence of Article 1 of the customs regulation in the second subparagraph of Article 40(3) only defines the customs rules as the Code of the Treaty precludes the recovery of established therein and the provisions export refunds granted in respect of the milk adopted to implement them, but according and/or milk products contained in edible to the second sentence of Article 1 its scope preparations with a basis of coffee extract. extends to trade between the Community and third countries in goods covered by the Community Treaties. Since export refunds necessarily relate to the export of goods to non-member countries they fall within the scope of the customs regulation. Articles 161 26. That question presupposes that it has and 162 of the customs regulation confirm been established, in answer to the first ques­ that the customs rules also include the export tion, that the second subparagraph of Article procedure. The export refunds procedure 40(3) of the Treaty has been infringed. As forms an integral part of the export pro­ stated above, however, there has been no cedure, or is at least directly linked with that such infringement. Accordingly, I consider procedure, and therefore falls under the cus­ that there is no need to answer the second toms rules in the broad sense. question.

and import duties. The repayment of refunds decisions taken by the customs authorities paid in error does not fall within its scope. which relate to the application of customs legislation, and which concern him directly and individually. Article 244 further provides that such an appeal is not to cause imple­ mentation of the decision to be suspended but that the customs authorities are to sus­ pend implementation of the disputed decision where they have good reason to 30. The Commission further states that believe that the decision is inconsistent with export refunds are based on special rules customs legislation or that irreparable dam­ adopted under the various market organiza­ age is to be feared for the person concerned. tions. In the words of the customs regu­ lation, these are 'special rules laid down in other fields' (see Article 1). The fact that export refunds are granted only where goods are actually exported and are therefore linked to the export procedure defined in Articles 161 and 162 of the customs regu­ lation does not mean that the scope rattorte materiae of the customs regulation is extended. The second paragraph of Article 244 of the customs regulation authorizes sus­ pension of implementation of a decision only where there is good reason to believe that the decision is inconsistent with customs leg­ 32. It follows expressly from those provi­ islation or that irreparable damage is to be sions that what may be suspended is the feared, but not where there is reason to implementation of decisions relating to the doubt the validity of the Community law on application of customs legislation. Pursuant which the decision is based. Moreover, the to Article 1 of the customs regulation, the criteria governing suspension of implementa­ customs rules are to consist in the Code tion apply, according to the wording of established therein and the provisions Article 244, only to the customs authorities. adopted to implement them. The customs On the other hand, Article 244 contains no rules concern the collection of import and criteria governing suspension decided by a export duties. Export refunds are amounts judicial authority or an equivalent special­ paid out and by definition are not customs ized body, see Article 243(2)(b). Article 244 duties or taxes. Nor is a decision relating to is not therefore capable of serving as a gen­ the repayment of export refunds adopted on eral rule applicable to interim relief. the basis of the customs rules: it is adopted on the basis of the provisions relating to export refunds under the market organiza­ tion in question. The requirement in the sec­ ond paragraph of Article 244 that there should be good reason to believe that the disputed decision is inconsistent with cus­ toms legislation before implementation of 31. I should point out that Article 243(1) of the decision may be suspended cannot there­ the customs regulation provides that any fore be fulfilled in cases relating to demands person is to have the right to appeal against for repayment of export refunds.

Fifth question

38. Krüger maintains that Article 244 of the customs regulation may be applied by anal­ ogy, in accordance with the case-law of the 36. By this question the national court seeks in effect to ascertain the basis on which a national court may order suspension of 6 — [1991] ECR I-415. implementation of an administrative decision 7 — [1995] ECR I-3761.

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KRÜGER v HAUPTZOLLAMT HAMBURG-JONAS

Court. The export procedure is closely — in its assessment of all those conditions, linked to the export refunds procedure and it respects any decisions of the Court of without such analogous application Commu­ Justice or the Court of First Instance nity law would contain a lacuna which ruling on the lawfulness of the Commu­ would amount to discrimination. nity act or on an application for interim measures seeking similar interim relief at Community level.'

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OPINION OF MR ELMER — CASE C-334/95

impact of interim relief on the Community presumably consider it more appropriate to interest and that in addition to the condi­ request the parties to the case, and the pubic tions laid down in the case-law the national prosecutor in criminal cases, to gather the court should be required to give the Com­ necessary information on the views of the munity institution which adopted the act Community institutions in a particular field whose validity is challenged an opportunity where that proves necessary to enable the to express its views. national court to assess the Community interest. I do not consider it appropriate in a case such as this to specify how the national courts must ensure that the interests of the Community are properly protected.

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KRÜGER v HAUPTZOLLAMT HAMBURG-JONAS

— in its assessment of all those conditions, it leave to appeal against a decision granting respects any decisions of the Court of interim relief must be granted. In that way Justice or the Court of First instance rul­ the Finanzgerichtsordnung allows the ques­ ing on the lawfulness of the Community tion as to whether the conditions for the act or on an application for interim mea­ grant of interim relief are met to be exam­ sures seeking similar interim relief at ined by a higher court, which is in the inter­ Community level. est of Community law.

Sixth question

48. I would point out that a national court which orders interim relief on the ground that there is doubt as to the validity of Com­ 46. By the sixth question the national court munity law is required, pursuant to the case- seeks to ascertain whether the second para­ law of the Court of Justice (see, most graph of Article 177 of the Treaty is to be recently, Case C-465/93 Atlanta), to refer a interpreted as precluding a court which has question for a preliminary ruling if the valid­ ordered suspension of implementation of an ity of the measure is not already in issue administrative decision and referred ques­ before the Court of Justice. tions to the Court for a preliminary ruling from granting leave to appeal against its decision.

Justice, that would in reality amount to 50. For those reasons, I would propose that allowing it to set aside measures of Commu­ the Court rule, in answer to the sixth ques­ nity law without the Court being able to tion, that the second paragraph of Article give a definitive ruling on the validity of the 177 of the EC Treaty is to be interpreted as Community measure in question. It follows not precluding a national court which sus­ that the duty to refer the matter to the Court pends implementation of a national adminis­ of Justice is inextricably linked to the trative decision based on a Community regu­ decision of a national court ordering interim lation and refers to the Court for a relief in respect of a national measure based preliminary ruling a question on the validity on Community law. If the decision ordering of the Community regulation on the ground interim relief is set aside on appeal, the asso­ that it entertains serious doubts in that ciated duty to refer a question to the Court regard from granting leave to appeal against of Justice for a preliminary ruling also lapses. its decision ordering suspension.

Conclusion

51 . For the foregoing reasons , I would propose that the Court answer the questions referred by the Finanzgericht Hamburg as follows:

(1) Examination of this question , in the light of the order for reference and the other evidence before the Court , has revealed nothing capable of casting doubt on the validity of Regulation ( EEC ) No 804 / 68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products , as last amended by Council Regulation ( EC ) No 1587/96 of 30 July 1986 amending Regulation ( EEC ) No 804 / 68 on the common organization of the market in milk and milk products .

— the court takes due account of the Community interest; and

— in its assessment of all those conditions, it respects any decisions of the Court of Justice or the Court of First Instance ruling on the lawfulness of the Community act or on an application for interim measures seeking simi­ lar interim relief at Community level.

(4) The second paragraph of Article 177 of the EC Treaty is to be interpreted as not precluding a national court which suspends implementation of a national administrative decision based on a Community regulation and refers to the Court for a preliminary ruling a question on the validity of the Community regulation on the ground that it entertains serious doubts in that regard from granting leave to appeal against its decision ordering suspension.

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