61975J0106

1 . COMMON CUSTOMS TARIFF - FLAKED BARLEY UNDER TARIFF SUBHEADING 11.02 E I B 1 - CONCEPT - ROLLED GRAINS OF BARLEY UNDER SUBHEADING 11.02 E I A 1 - DIFFERENCE

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM - EXPORTATION - CERTIFICATE - PRODUCT INDICATED - PRODUCT EXPORTED - DIFFERENCE - EXPORT REFUND - GRANTING - RATE - FIXING - ABSENCE - BENEFIT - RIGHT - ABSENCE

( REGULATION NO 120/67 OF THE COUNCIL , ARTICLE 16 ; REGULATION NO 1041/67 OF THE COUNCIL , ARTICLE 1 AND ARTICLE 3 )

1 . FLAKED BARLEY UNDER TARIFF HEADING 11.02 E I B 1 IS MANUFACTURED FROM GRAINS SUBJECTED TO HULLING WHICH REMOVES PART OF THEIR HUSK AND WHAT DISTINGUISHES IT FROM ' ROLLED GRAINS ' OF BARLEY UNDER SUBHEADING 11.02 E I A 1 IS THUS NOT WHAT IS REMOVED IN ROLLING .

2 . ARTICLE 16 OF REGULATION NO 120/67 AND ARTICLES 1 AND 3 OF REGULATION NO 1041/67 MAY BE UNDERSTOOD AS CONFERRING A RIGHT TO THE GRANT OF AN EXPORT REFUND EVEN IF THE PRODUCT EXPORTED DIFFERS FROM THAT FOR WHICH THE EXPORT CERTIFICATE WAS ISSUED .

WHEN AT THE RELEVANT DATE NO RATE OF REFUND IS FIXED FOR THE PRODUCT WHICH IS ACTUALLY EXPORTED THERE IS NO RIGHT TO A REFUND .

IN CASE 106/75

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

MERKUR-AUSSENHANDEL GMBH

AND

HAUPTZOLLAMT HAMBURG-JONAS ( PRINCIPAL CUSTOMS OFFICE OF HAMBURG-JONAS ),

ON THE INTERPRETATION OF SUBHEADING 11.02 E I A 1 OF THE COMMON CUSTOMS TARIFF ,

1 BY AN ORDER OF 29 AUGUST 1975 WHICH REACHED THE COURT ON 3 OCTOBER 1975 THE FINANZGERICHT HAMBURG SUBMITTED UNDER ARTICLE 177 OF THE EEC TREATY PRELIMINARY QUESTIONS ON THE INTERPRETATION OF SUBHEADING 11.02 E I A 1 OF THE COMMON CUSTOMS TARIFF .

THOSE QUESTIONS WERE RAISED WITHIN THE FRAMEWORK OF A DISPUTE RELATING TO THE EXPORT OF FOUR CONSIGNMENTS OF GOODS WHICH THE PLAINTIFF IN THE MAIN ACTION DECLARED AS FLAKED BARLEY COMING UNDER SUBHEADING NO 11.02 E I B 1 BB OF THE CUSTOMS NOMENCLATURE BUT WHICH THE DEFENDANT IN THE MAIN ACTION , AFTER EXAMINING SAMPLES TAKEN FROM THE EXPORTED CONSIGNMENTS , CLASSIFIED AS ROLLED BARLEY GRAINS UNDER SUBHEADING 11.02 E I A 1 .

THE DEFENDANT IN THE MAIN ACTION REFUSED TO GRANT A REFUND FOR THIS EXPORT SINCE REGULATION NO 1383/72 OF THE COMMISSION OF 30 JUNE 1972 , FIXING THE REFUNDS APPLICABLE ON THE EXPORTATION OF PROCESSED CEREALS AND RICE PRODUCTS ( JO NO L 149 , P . 30 ), WHICH WAS IN FORCE AT THE DATE OF THE EXPORTATION IN DISPUTE , DID NOT PRESCRIBE A REFUND FOR ROLLED BARLEY .

THE DEFENDANT REFUSED THE APPLICATION OF THE PLAINTIFF IN THE MAIN ACTION FOR REFUNDS FOR FLAKED BARLEY ( TARIFF SUBHEADING 11.02 E I B 1 ) AND FOR BARLEY ( TARIFF HEADING 10.03 ), SINCE IT HAD NOT EXPORTED THOSE PRODUCTS .

2 IT IS ASKED FIRST OF ALL WHETHER SUBHEADING 11.02 E I A 1 OF HEADING 11.02 OF THE COMMON CUSTOMS TARIFF , ' ROLLED BARLEY GRAINS ' , DIFFERS FROM TARIFF HEADING 11.02 E I B 1 , ' FLAKED BARLEY ' , IN THAT FLAKED BARLEY , AS OPPOSED TO ROLLED BARLEY GRAINS , MUST BE MANUFACTURED FROM HULLED GRAINS OF BARLEY ( SHELLED OR HUSKED ), OR WHETHER THE DIFFERENCE BETWEEN THOSE TWO TARIFF SUBHEADINGS LIES IN THE FACT THAT FLAKED BARLEY IS MERELY ROLLED ( CRUSHED OR GROUND ), WITHOUT PRIOR HULLING OF THE GRAINS OF BARLEY , MORE INTENSIVELY ( INVOLVING THE REMOVAL OF PART OF THE HUSK IN THE COURSE OF THIS OPERATION ) THAN ROLLED BARLEY GRAINS .

3 SINCE NO DEFINITION OF THE WORDS ' FLAKED BARLEY ' AND ' ROLLED BARLEY GRAINS ' IS CONTAINED INITIALLY IN THE COMMON CUSTOMS TARIFF AND SINCE TARIFF HEADING 11.02 DOES NOT STATE EXPRESSLY WHETHER THE MANUFACTURE OF FLAKED BARLEY INVOLVES PRIOR HULLING , REFERENCE MUST BE MADE TO THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE .

BY HULLED GRAINS THE SAID NOTES MEAN ' GRAIN FROM WHICH THE PERICARP ( THE SKIN BENEATH THE HUSK ) HAS BEEN PARTIALLY REMOVED . GRAINS OF THE BRACTEIFEROUS VARIETIES OF BARLEY ARE ALSO CLASSIFIED IN THIS HEADING IF THEIR HUSKS ( OR HULLS ) HAVE BEEN REMOVED ; GENERALLY THE FLOURY KERNEL IS THEN VISIBLE . ( THE HUSKS CAN BE REMOVED ONLY BY GRINDING SINCE THEY ADHERE TOO FIRMLY TO THE GRAIN KERNEL TO BE SEPARATED BY MERE THRESHING OR WINNOWING - SEE EXPLANATORY NOTE TO HEADING 10.03 ). '

BY ' ROLLED OR FLAKED GRAIN ( PRINCIPALLY BARLEY AND OATS ) ' THE NOTES MEAN GRAIN ' OBTAINED BY CRUSHING OR ROLLING THE WHOLE GRAIN . IN THIS PROCESS THE GRAIN IS FREQUENTLY STEAM-HEATED OR ROLLED BETWEEN HEATED ROLLERS BUT THIS IS NOT REGARDED AS REMOVING THE PRODUCT FROM THIS CHAPTER . '

4 IT IS CLEAR FROM THE FOREGOING THAT FLAKED GRAINS ARE PRODUCED BY HULLING WHICH CONSISTS IN REMOVING A PART OF THE HUSK FROM THE GRAIN .

FURTHERMORE , ALTHOUGH THE EXPLANATORY NOTES TO THE CUSTOMS TARIFF OF THE EUROPEAN COMMUNITIES ARE APPLICABLE SUBSEQUENT TO THE MATTERS AT ISSUE THEY ARE BASED ON THE SAME INTERPRETATION IN THAT THEY PROVIDE THAT ' FLAKED GRAINS COMING UNDER THIS SUBHEADING ARE HULLED AND ROLLED GRAINS WHICH FREQUENTLY STILL RETAIN PART OF THE HUSK . '

FURTHERMORE THE FACT THAT FLAKED GRAINS ARE CRUSHED OR ROLLED IN NO WAY ALTERS THIS FINDING .

ON THE OTHER HAND ROLLED BARLEY GRAINS ARE MERELY SUBJECTED TO A TREATMENT WHICH , WHILST MODIFYING THEIR FORM , DOES NOT REMOVE MOST OF THEIR HUSKS , WHICH , ACCORDING TO THE BRUSSELS EXPLANATORY NOTES , ADHERE TOO FIRMLY TO THE GRAIN KERNEL TO BE SEPARATED BY MERE THRESHING OR WINNOWING .

5 CONSEQUENTLY THE REPLY MUST BE THAT ' FLAKED ' BARLEY UNDER TARIFF SUBHEADING 11.02 E I B 1 IS MANUFACTURED FROM GAINS SUBJECTED TO HULLING WHICH REMOVES PART OF THEIR HUSK AND THAT WHAT DISTINGUISHES IT FROM ' ROLLED GRAINS ' OF BARLEY UNDER SUBHEADING 11.02 E I A 1 IS THUS NOT WHAT IS REMOVED IN ROLLING .

6 IT IS THEN ASKED , IF AN AFFIRMATIVE ANSWER IS GIVEN TO THE FIRST LIMB OF QUESTION 1 , WHETHER THE PROVISIONS OF ARTICLE 12 ( 1 ) OF REGULATION NO 120/67 , IN ACCORDANCE WITH WHICH ALL EXPORTS FROM THE COMMUNITY OF ANY OF THE PRODUCTS LISTED IN ARTICLE 1 SHALL BE SUBJECT TO THE SUBMISSION OF AN EXPORT LICENCE , READ TOGETHER WITH ARTICLE 2 ( 1 ) OF REGULATION ( EEC ) NO 1373/70 , UNDER WHICH THE EXPORT LICENCE SHALL AUTHORIZE AND REQUIRE THE EXPORTATION OF THE QUANTITY OF THE SPECIFIED PRODUCT DURING THE PERIOD OF VALIDITY OF THE LICENCE , MEAN THAT ARTICLE 16 OF REGULATION NO 120/67 AND ARTICLES 1 AND 3 OF REGULATION NO 1041/67 OPEN A RIGHT TO THE GRANTING OF AN EXPORT REFUND EVEN IF THE PRODUCT EXPORTED DIFFERS FROM THAT FOR WHICH THE EXPORT CERTIFICATE WAS ISSUED .

7 ARTICLE 12 OF REGULATION NO 120/67 OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 33 ) PROVIDES THAT EXPORTS FROM THE COMMUNITY SHALL BE SUBJECT TO THE SUBMISSION OF AN EXPORT LICENCE , THE ISSUE OF WHICH SHALL BE CONDITIONAL UPON THE LODGING OF A DEPOSIT GUARANTEEING THAT EXPORTATION IS EFFECTED DURING THE PERIOD OF VALIDITY OF THE LICENCE AND WHICH SHALL BE FORFEITED IF THE TRANSACTION IS NOT EFFECTED WITHIN THAT PERIOD .

APART FROM THE FOREGOING , ARTICLE 16 OF THE SAID REGULATION PROVIDES THAT TO THE EXTENT NECESSARY TO ENABLE THE PRODUCTS TO BE EXPORTED ON THE BASIS OF QUOTATIONS OR PRICES FOR THOSE PRODUCTS ON THE WORLD MARKET , THE DIFFERENCE BETWEEN THOSE QUOTATIONS OR PRICES AND PRICES IN THE COMMUNITY MAY BE COVERED BY AN EXPORT REFUND .

THOSE TWO PROVISIONS REFER TO DIFFERENT SITUATIONS SINCE THE ONLY CONSEQUENCES PRESCRIBED IF GOODS ARE EXPORTED WHICH DO NOT CORRESPOND TO WHAT IS STATED IN THE CERTIFICATE ARE , UNDER ARTICLE 14 ( 2 ) OF REGULATION NO 1373/67 OF THE COMMISSION OF 10 JULY 1970 ON JOINT IMPLEMENTING RULES FOR IMPORT , EXPORT AND ADVANCE-FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( JO NO L 158 OF 20 JULY 1970 , P . 1 ), THAT THE MEMBER STATES IN QUESTION ARE OBLIGED TO NOTIFY THE COMMISSION OF THIS AND THAT THE DEPOSIT LODGED MAY POSSIBLY BE FORFEITED .

IN ADDITION , ACCORDING TO ARTICLE 1 ( 2 ) OF REGULATION NO 1041/67/EEC OF THE COMMISSION OF 21 DECEMBER 1967 ON DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS ON PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 323 ), ACCEPTANCE OF THE DOCUMENT BY WHICH THE DECLARANT STATES HIS INTENTION TO EXPORT THE PRODUCTS IN QUESTION AND QUALIFY FOR A REFUND SHALL BE CONSIDERED TO BE THE COMPLETION OF THE CUSTOMS EXPORT FORMALITIES .

8 CONSEQUENTLY THE REPLY MUST BE THAT THE PRODUCT EXPORTED MAY QUALIFY FOR A REFUND EVEN IF IT DIFFERS FROM THAT FOR WHICH THE CERTIFICATE WAS ISSUED .

9 FINALLY , IF QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE , IT IS ASKED WHETHER , WHERE AT THE RELEVANT DATE NO RATE OF REFUND WAS FIXED FOR THE PRODUCT ACTUALLY EXPORTED ( ROLLED BARLEY GRAINS UNDER TARIFF SUBHEADING 11.02 E I A 1 ), THERE EXISTS A RIGHT TO THE GRANT OF AN EXPORT REFUND IN RESPECT OF THE BASIC PRODUCT WHICH MAY QUALIFY FOR A REFUND ( BARLEY UNDER TARIFF HEADING 10.03 ).

10 THE REFUND IS ONLY GRANTED IF THE EXPORTED PRODUCT IS LISTED IN THE ANNEX TO THE REGULATIONS FIXING THE AMOUNTS .

UNDER THE ABOVE-MENTIONED REGULATION NO 1383/72 NO RATE OF REFUND HAD AT THE TIME BEEN FIXED FOR ROLLED BARLEY GRAINS .

IT IS NOWHERE PROVIDED THAT IN THE LATTER CASE THE REFUND FOR BASIC PRODUCTS SHALL AT LEAST BE GRANTED .

ACCORDINGLY THE ANSWER TO THE THIRD QUESTION MUST BE IN THE NEGATIVE .

COSTS

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF 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 QUESTIONS SUBMITTED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 29 AUGUST 1975 , HEREBY RULES :

1 . FLAKED BARLEY UNDER TARIFF SUBHEADING 11.02 E I B 1 IS MANUFACTURED FROM GRAINS SUBJECTED TO HULLING WHICH REMOVES PART OF THEIR HUSK AND WHAT DISTINGUISHES IT FROM ' ROLLED GRAINS ' OF BARLEY UNDER SUBHEADING 11.02 E I A 1 IS THUS NOT WHAT IS REMOVED IN ROLLING .

2 . ARTICLE 16 OF REGULATION NO 120/67 AND ARTICLES 1 AND 3 OF REGULATION NO 1041/67 MAY BE UNDERSTOOD AS CONFERRING A RIGHT TO THE GRANT OF AN EXPORT REFUND EVEN IF THE PRODUCT EXPORTED DIFFERS FROM THAT FOR WHICH THE EXPORT CERTIFICATE WAS ISSUED .

3 . WHEN AT THE RELEVANT DATE NO RATE OF REFUND IS FIXED FOR THE PRODUCT WHICH WAS ACTUALLY EXPORTED THERE IS NO RIGHT TO A REFUND .