61974J0014

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1 . EEC TREATY - PRODUCTS ORIGINATING IN THE GERMAN DEMOCRATIC REPUBLIC - FREE CIRCULATION IN THE FEDERAL REPUBLIC OF GERMANY - NOT COMMUNITY PRODUCTS

( EEC TREATY, PROTOCOL ON GERMAN INTERNAL TRADE )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - AGRICULTURAL PRODUCERS - GUARANTEE OF INCOME - PRICE MECHANISM - LIMITATION TO COMMUNITY PRODUCTS

( EEC TREATY, ARTICLE 40 )

1 . THE DISPENSATION GRANTED BY THE PROTOCOL ON GERMAN INTERNAL TRADE ANNEXED TO THE TREATY DOES NOT HAVE THE RESULT OF MAKING THE GERMAN DEMOCRATIC REPUBLIC PART OF THE COMMUNITY, BUT ONLY THAT A SPECIAL SYSTEM APPLIES TO IT AS A TERRITORY WHICH IS NOT PART OF THE COMMUNITY .

THE IMPORTATION OF GOODS INTO THE FEDERAL REPUBLIC OF GERMANY UNDER THE PROTOCOL CANNOT THEREFORE BE REGARDED AS IMPORTATION FROM A THIRD COUNTRY, SINCE IT IS GERMAN INTERNAL TRADE .

ALTHOUGH SUCH GOODS ARE ENTITLED TO CIRCULATE FREELY IN THE FEDERAL REPUBLIC OF GERMANY WITHOUT CUSTOMS CLEARANCE, THEY ARE NOT REGARDED BY REASON OF THIS AS HAVING AN ORIGIN IN THE FEDERAL REPUBLIC OF GERMANY .

2 . THE ORGANIZATION OF THE AGRICULTURAL MARKETS HAS ESTABLISHED PRICE MECHANISMS INTENDED TO GIVE AGRICULTURAL PRODUCERS CERTAIN GUARANTEES OF INCOME .

THE BENEFIT OF THESE MEASURES IS LIMITED, IN GENERAL, TO PRODUCTS OF THE COMMUNITY, THAT IS TO SAY OF THOSE COUNTRIES WHICH CONTRIBUTE TO THE FINANCING OF THE COMMON AGRICULTURAL POLICY .

IN CASE 14/74

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FIRMA NORDDEUTSCHES VIEH - UND FLEISCHKONTOR, GMBH, HAMBURG,

AND

HAUPTZOLLAMT-AUSFUHRERSTATTUNG ( HEAD CUSTOMS OFFICE, EXPORT REFUNDS ) HAMBURG-JONAS,

ON THE INTERPRETATION OF ARTICLES 6 ( 1 ) AND 7 OF REGULATION ( EEC ) NO 177/67 OF THE COUNCIL OF 27 JUNE 1967, LAYING DOWN GENERAL RULES FOR GRANTING EXPORT REFUNDS ON PIGMEAT AND CRITERIA FOR FIXING THE AMOUNT OF SUCH REFUNDS ( OJ L 130 OF 28 JUNE 1967, P . 2614 ), AND OF ARTICLE 4 ( 1 ) AND ( 2 ) ( D ) OF REGULATION ( EEC ) NO 802/68 OF THE COUNCIL OF 27 JUNE 1968, ON THE COMMON DEFINITION OF THE CONCEPT OF THE ORIGIN OF GOODS ( OJ L 148 OF 28 JUNE 1968, P . 1 ) IN CONJUNCTION WITH THE 'PROTOCOL ON GERMAN INTERNAL TRADE AND CONNECTED PROBLEMS',

1 BY ORDER DATED 30 JANUARY 1974, RECEIVED AT THE COURT REGISTRY ON 1 MARCH 1974, THE FINANZGERICHT HAMBURG, IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY, RAISED THE QUESTION OF THE INTERPRETATION OF ARTICLES 6 ( 1 ) AND 7 OF REGULATION ( EEC ) NO 177/67 OF THE COUNCIL OF 27 JUNE 1967 AND OF ARTICLE 4 ( 1 ) AND ( 2 ) ( D ) OF REGULATION ( EEC ) NO 802/68 OF THE COUNCIL OF 27 JUNE 1968 IN CONJUNCTION WITH THE 'PROTOCOL ON GERMAN INTERNAL TRADE AND CONNECTED PROBLEMS' ANNEXED TO THE EEC TREATY .

THE COURT IS ASKED WHETHER THE AFOREMENTIONED PROVISIONS ARE 'TO BE INTERPRETED AS MEANING THAT PRODUCTS WITHIN THE MEANING OF ARTICLES 1 ( 1 ) OF REGULATION NO 121/67/EEC, WHICH HAVE BEEN BROUGHT FROM THE GERMAN DEMOCRATIC REPUBLIC INTO THE FEDERAL REPUBLIC OF GERMANY UNDER THE TERMS OF THE AGREEMENT ON INTER-ZONAL TRADE, ARE ELIGIBLE FOR EXPORT REFUNDS ON EXPORT FROM THE FEDERAL REPUBLIC TO A THIRD COUNTRY '.

IT APPEARS FROM THE ORDER OF REFERENCE THAT THIS QUESTION HAS ARISEN IN PROCEEDINGS RELATING TO THE EXPORT BY THE PLAINTIFF IN THE MAIN ACTION TO JUGOSLAVIA ON 27 JUNE AND 4 JULY 1969 OF CONSIGNMENTS OF PIGMEAT UNDER HEADING 02.01.A-III-A-5 DESCRIBED AS 'SWINE BELLIES AND CUTS OF BELLIES', THE DEFENDANT IN THE MAIN ACTION MAINTAINING THAT THE GOODS ORIGINATED IN THE GERMAN DEMOCRATIC REPUBLIC, WERE BROUGHT TEMPORARILY TO THE FEDERAL REPUBLIC OF GERMANY AND THEN RE-EXPORTED IN THE SAME CONDITION .

2 UNDER ARTICLE 6 ( 1 ) OF REGULATION NO 177/67 THE REFUND PAYABLE ON PIGMEAT EXPORTED FROM THE COMMUNITY IS SUBJECT TO PROOF THAT IT IS 'OF COMMUNITY ORIGIN '.

ARTICLE 6 MAKES ONE EXCEPTION WHERE ARTICLE 7 APPLIES .

THIS EXCEPTION RELATES ONLY TO PRODUCTS IMPORTED FROM THIRD COUNTRIES AND RE-EXPORTED TO THIRD COUNTRIES .

NO REFUND IS HOWEVER GRANTED UNDER ARTICLE 7 'UNLESS THE EXPORTER PROVES : ... THAT THE LEVY WAS COLLECTED ON IMPORTATION '.

IT IS ESTABLISHED THAT IMPORTS FROM THE GERMAN DEMOCRATIC REPUBLIC INTO THE FEDERAL REPUBLIC OF GERMANY ARE NOT LIABLE TO LEVIES .

THE PRODUCTS IN QUESTION THEREFORE, IN ANY EVENT, CANNOT COME UNDER THE PROVISIONS OF ARTICLE 7 .

3 THE PLAINTIFF IN THE MAIN ACTION RELIES ON ARTICLE 6 REGULATION NO 177/67 TO MAINTAIN THAT PIGMEAT WHICH HAS BEEN BROUGHT INTO THE FEDERAL REPUBLIC OF GERMANY FROM THE GERMAN DEMOCRATIC REPUBLIC UNDER THE TERMS OF THE SO-CALLED 'INTER-ZONAL' TRADE SHOULD BE REGARDED AS A PRODUCT OF COMMUNITY ORIGIN .

4 REGULATION NO 802/68 GIVES A COMMUNITY DEFINITION TO THE CONCEPT OF THE ORIGIN OF GOODS 'FOR PURPOSES OF ... THE UNIFORM APPLICATION OF ALL MEASURES ADOPTED, IN RELATION TO THE EXPORTATION OF GOODS, BY THE COMMUNITY OR BY MEMBER STATES '.

UNDER ARTICLE 4 OF THE SAID REGULATION "'GOODS WHOLLY OBTAINED OR PRODUCED IN ONE COUNTRY' MEANS ... PRODUCTS DERIVED FROM LIVE ANIMALS RAISED THEREIN ".

ARTICLE 6 THEREFORE DOES NOT AUTHORIZE THE GRANT OF A REFUND FOR PRODUCTS DERIVED FROM ANIMALS RAISED OUTSIDE THE COMMUNITY .

5 THE PLAINTIFF IN THE MAIN ACTION MAINTAINS NEVERTHELESS THAT, IN THE LIGHT OF THE PROVISIONS OF ARTICLE 1 OF THE PROTOCOL ON GERMAN INTERNAL TRADE, ARTICLE 4 OF REGULATION NO 802/68 MUST BE INTERPRETED AS MEANING THAT GOODS IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY FROM THE GERMAN DEMOCRATIC REPUBLIC MUST BE TREATED AS PRODUCTS ORIGINATING IN THE FEDERAL REPUBLIC OF GERMANY .

6 ARTICLE 1 OF THE PROTOCOL STATES 'SINCE TRADE BETWEEN THE GERMAN TERRITORIES SUBJECT TO THE BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY AND THE GERMAN TERRITORIES IN WHICH THE BASIC LAW DOES NOT APPLY IS A PART OF GERMAN INTERNAL TRADE, THE APPLICATION OF THIS TREATY IN GERMANY REQUIRES NO CHANGE IN THE TREATMENT CURRENTLY ACCORDED THIS TRADE '.

THESE RULES AIM ONLY AT EXONERATING THE FEDERAL REPUBLIC OF GERMANY FROM APPLYING THE RULES OF COMMUNITY LAW TO GERMAN INTERNAL TRADE .

THE DISPENSATION THUS GRANTED DOES NOT HAVE THE RESULT OF MAKING THE GERMAN DEMOCRATIC REPUBLIC PART OF THE COMMUNITY, BUT ONLY THAT A SPECIAL SYSTEM APPLIES TO IT AS A TERRITORY WHICH IS NOT PART OF THE COMMUNITY .

THE IMPORTATION OF GOODS INTO THE FEDERAL REPUBLIC OF GERMANY UNDER THE PROTOCOL CANNOT THEREFORE BE REGARDED AS IMPORTATION FROM A THIRD COUNTRY SINCE IT IS GERMAN INTERNAL TRADE .

ALTHOUGH UNDER ARTICLE 1 OF THE PROTOCOL PRODUCTS ORIGINATING IN THE GERMAN DEMOCRATIC REPUBLIC ARE ENTITLED TO CIRCULATE FREELY IN THE FEDERAL REPUBLIC OF GERMANY WITHOUT CUSTOMS CLEARANCE, THEY ARE NOT REGARDED BY REASON OF THIS AS HAVING AN ORIGIN IN THE FEDERAL REPUBLIC OF GERMANY .

THE ARGUMENT OF THE PLAINTIFF IN THE MAIN ACTION THEREFORE FINDS NO SUPPORT IN THE PROTOCOL .

7 THE PLAINTIFF THEN STATES THAT SINCE UNDER THE PROTOCOL THE PRODUCTS CANNOT BE REGARDED AS ORIGINATING IN A THIRD COUNTRY, THEY MUST NECESSARILY BE REGARDED AS HAVING THE CHARACTERISTICS SET OUT IN ARTICLE 9 ( 2 ) OF THE TREATY AND MUST BE REGARDED AS ORIGINATING IN A MEMBER STATE .

UNDER ARTICLE 6 OF REGULATION NO 1041/67 OF THE COMMISSION ( OJ L 314 OF 23 DECEMBER 1967, P . 9 ) ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM, A REFUND IS GRANTED ONLY IN RESPECT OF PRODUCTS IN FREE CIRCULATION WITHIN THE COMMUNITY .

AS REGARDS THE FREE CIRCULATION OF GOODS, ARTICLE 10 OF THE TREATY MAKES THE DISTINCTION ONLY BETWEEN PRODUCTS ORIGINATING IN A MEMBER STATE AND THOSE COMING FROM A THIRD COUNTRY .

8 THIS ARGUMENT, BASED ONLY ON THE GENERAL SCHEME ESTABLISHED BY ARTICLES 9 AND 10 OF THE TREATY, LOSES SIGHT OF THE FACT THAT THE PROTOCOL ON GERMAN INTERNAL TRADE IS AN INTEGRAL PART OF THE TREATY, AND UNDER THIS PROTOCOL, THE GERMAN DEMOCRATIC REPUBLIC IS NEITHER A MEMBER STATE OF THE EEC NOR, AS REGARDS GERMAN INTERNAL TRADE, A THIRD COUNTRY, BUT A SPECIAL SYSTEM IS APPLIED TO IT .

THIS ARGUMENT MUST ACCORDINGLY BE REJECTED .

9 THE PLAINTIFF IN THE MAIN ACTION CLAIMS FURTHER THAT IT MAY BE DEDUCED FROM THE FACT THAT A SPECIAL REASON HAS BEEN GIVEN IN THE REGULATION ONLY FOR ARTICLE 7 THAT THEREFORE ARTICLE 6 SERVES NO OBJECT OF MARKET REGULATION INDEPENDENT OF ARTICLE 7 AND ITS SOLE OBJECTIVE IS TO MAKE CLEAR THAT THERE SHOULD BE NO REFUND IN RESPECT OF GOODS WHICH HAVE BEEN IMPORTED FROM THIRD COUNTRIES .

PROOF THAT THE REASON FOR EXCLUSION SPECIFIED IN ARTICLE 7 DOES NOT APPLY CAN BE GIVEN BY SHOWING COMMUNITY ORIGIN, AND IF GOODS DO NOT COME UNDER ARTICLE 7 OF REGULATION NO 177/67, THEN BY CONVERSE REASONING IT FOLLOWS THAT THEY HAD THEIR ORIGIN IN THE COMMUNITY .

10 THIS ARGUMENT DISREGARDS THE SYSTEM ESTABLISHED IN ARTICLES 6 AND 7 OF REGULATION NO 177/67 .

THESE PROVISIONS, FAR FROM CONSTITUTING ONLY RULES AS TO THE FORMAL BURDEN OF PROOF, LAY DOWN THE BASIC CONDITIONS FOR THE GRANT OF REFUNDS .

THE MAIN PRINCIPLE HERE IS THAT ONLY PRODUCTS ORIGINATING IN THE COMMUNITY ARE ENTITLED TO A REFUND, AND WHAT IS GRANTED TO PRODUCTS IMPORTED FROM THIRD COUNTRIES AND RE-EXPORTED TO THIRD COUNTRIES IS ONLY A 'REPAYMENT' OF A LEVY ALREADY EXACTED .

THIS ARGUMENT MUST THEREFORE BE REJECTED .

11 FURTHER, THE ORGANIZATION OF THE AGRICULTURAL MARKETS HAS ESTABLISHED PRICE MECHANISMS INTENDED TO GIVE AGRICULTURAL PRODUCERS CERTAIN GUARANTEES OF INCOME PROVIDING, IN THE CASE OF EXPORT TO THIRD COUNTRIES, REFUNDS GRANTED FROM COMMUNITY RESOURCES .

THE BENEFIT OF THESE MEASURES IS LIMITED, IN GENERAL, TO PRODUCTS OF THE COMMUNITY, THAT IS TO SAY OF THOSE COUNTRIES WHICH CONTRIBUTE TO THE FINANCING OF THE COMMON AGRICULTURAL POLICY .

ALTHOUGH TO A CERTAIN EXTENT ARTICLE 7 OF REGULATION NO 177/67 ENABLES A REFUND TO BE GRANTED FOR IMPORTED GOODS, THIS IS LIMITED TO A 'REPAYMENT' OF LEVIES ALREADY EXACTED .

THE SCOPE OF THE PROTOCOL IS THEREFORE MISCONCEIVED IF IT IS SOUGHT TO INFER FROM IT THAT THE COMMUNITY MUST EXTEND THE GUARANTEES OF PRICES UNDER THE COMMON AGRICULTURAL POLICY TO PRODUCTS ORIGINATING IN THE GERMAN DEMOCRATIC REPUBLIC .

12 THE QUESTION RAISED MUST THEREFORE BE ANSWERED IN THE NEGATIVE .

13 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, CANNOT BE REIMBURSED .

AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 30 JANUARY 1974, HEREBY RULES :

ARTICLES 6 ( 1 ) AND 7 OF REGULATION NO 177/67/EEC OF THE COUNCIL OF 27 JUNE 1967 AND ARTICLE 4 ( 1 ) AND ( 2 ) ( D ) OF REGULATION ( EEC ) NO 802/68 OF THE COUNCIL OF 27 JUNE 1968, IN CONJUNCTION WITH THE 'PROTOCOL ON GERMAN INTERNAL TRADE AND CONNECTED PROBLEMS' ANNEXED TO THE EEC TREATY, CANNOT BE INTERPRETED AS ENABLING PRODUCTS WITHIN THE MEANING OF ARTICLE 1 ( 1 ) OF REGULATION NO 121/67/EEC, IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY FROM THE GERMAN DEMOCRATIC REPUBLIC UNDER THE TERMS OF THE AGREEMENT ON INTER-ZONAL TRADE, TO BE GRANTED A REFUND WHEN THEY ARE RE-EXPORTED FROM THE FEDERAL REPUBLIC OF GERMANY TO A THIRD COUNTRY .