61973J0012

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1 . COMMUNITY LAW - INTERPRETATION - THIRD COUNTRIES - LAWS OR CUSTOMS - REFERENCE - INADMISSIBILITY

2 . AGRICULTURE - COMMON ORGANIZATION OF MARKETS - PRODUCTS SUBJECT TO A SINGLE PRICE SYSTEM - EXPORT REFUNDS - GRANT - CONDITION - REQUIREMENTS AS TO QUALITY - CRITERIA FOR ASSESSMENT

( REGULATION NO 1041, ARTICLE 6 )

3 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - INTERPRETATION - ABSENCE OF COMMUNITY PROVISIONS - AUTHORITY OF EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE

4 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - SAUSAGES AND THE LIKE - TARIFF SUB-HEADINGS 16.01 B I A ) AND 16.01 B I C ) - MEANING

1 . IN THE ABSENCE OF ANY EXPRESS REFERENCE TO THE LAWS OR CUSTOMS OF A THIRD COUNTRY A COMMUNITY PROVISION MUST BE INTERPRETED IN RELATION TO AND IN THE CONTEXT OF ITS OWN SOURCES .

2 . A PRODUCT WHICH CANNOT BE MARKETED WITHIN THE COMMUNITY ON NORMAL TERMS AND UNDER THE DESCRIPTION GIVEN IN THE CLAIM FOR THE GRANT OF A REFUND WOULD NOT FULFIL THE REQUIREMENTS AS TO QUALITY SET OUT AT ARTICLE 6 OF REGULATION NO 1041 .

THE FACT THAT THE AMOUNT OF THE REFUND EXCEEDS THE PRICE IN FACT PAID BY THE EXPORTER ON THE HOME MARKET FOR THE EXPORTED PRODUCT IS AN INDICATION THAT DOUBTS SHOULD BE CAST ON THE QUALITY OF THE PRODUCT .

THE QUESTION WHETHER PRODUCTS FOR WHICH AN EXPORT REFUND IS CLAIMED MEET THE REQUIREMENTS AS TO QUALITY LAID DOWN BY ARTICLE 6 OF REGULATION NO 1041/67 MUST BE ASSESSED ON THE BASIS OF CRITERIA IN FORCE WITHIN THE COMMUNITY .

3 . IN THE ABSENCE OF COMMUNITY PROVISIONS THE EXPLANATORY NOTES TO THE BRUSSELS CONVENTION ON NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS ARE AUTHORITATIVE AS A VALID MEANS OF INTERPRETING COMMON HEADINGS .

4 . THE CLASSIFICATION OF A PRODUCT UNDER SUB-HEADING 16.01 B I A ) PRESUPPOSES THAT ITS INGREDIENTS HAVE BEEN SUBJECTED TO A DRYING PROCESS AND MOREOVER THAT THEY ARE COMPOSED OF MEAT, NOT MERELY OF OFFAL .

SUB-HEADING 16.01 B I C ) IS A RESIDUAL HEADING UNDER WHICH SHOULD BE CLASSIFIED ALL SAUSAGES AND THE LIKE AND OTHER SIMILAR PRODUCTS COMPOSED OF MEAT, OFFAL OR BLOOD, WITHIN THE MEANING OF THE ABOVEMENTIONED EXPLANATORY NOTES, WHICH CANNOT BE INCLUDED UNDER THE OTHER HEADINGS .

IN CASE 12/73

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

CLAUS W . MURAS, MERCHANT, PLAINTIFF,

AND

HAUPTZOLLAMT HAMBURG-JONAS, DEFENDANT,

ON THE INTERPRETATION OF ARTICLE 15 OF REGULATION NO 121/67/EEC OF THE COUNCIL OF 13 JUNE 1967, AND ARTICLE 6 OF REGULATION NO 1041/67/EEC OF THE COMMISSION OF 21 DECEMBER 1967, AND ON THE INTERPRETATION OF TARIFF HEADING EX . 16.01 B 1 A ) AND C ),

1 BY ORDER OF 25 JANUARY 1973, LODGED AT THE REGISTRY OF THE COURT ON 21 FEBRUARY, THE HAMBURG FINANZGERICHT REFERRED A NUMBER OF QUESTIONS, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, ON THE INTERPRETATION OF ARTICLE 15 OF REGULATION NO 121/67/EEC ( OJ NO 117, P . 2283/67 ), OF ARTICLE 6 OF REGULATION NO 1041/67/EEC ( OJ NO 314, P . 23 ), OF SUB-HEADING 16.01 B 1 A ) AND C ) OF ANNEX II TO REGULATION NO 137/67/EEC ( OJ NO 122, P . 2395 ) AND OF THE ANNEX TO REGULATION NO 222/68/EEC ( OJ 1968, L 49, P . 5 ).

ON THE FIRST QUESTION

2 THE FIRST QUESTION ASKS THE COURT TO SAY WHETHER ARTICLE 15 OF REGULATION NO 121/67/EEC IS TO BE INTERPRETED AS MEANING THAT AN EXPORT REFUND CANNOT BE GRANTED IF THE AMOUNT OF THE REFUND EXCEEDS THE PRICE IN FACT PAID FOR THE EXPORTED PRODUCT ( IN THIS CASE, A BATCH OF SAUSAGES ) ON THE HOME MARKET .

3 THIS PROVISION LAYS DOWN THAT, TO ALLOW THE EXPORT OF THE PRODUCTS LISTED IN ARTICLE 1 OF THE ABOVE REGULATION ON THE BASIS OF WORLD MARKET RATES OR PRICES, THE DIFFERENCE BETWEEN THESE RATES AND PRICES AND COMMUNITY PRICES MAY BE RECOVERED BY MEANS OF AN EXPORT REFUND .

COMMUNITY PRICES ARE CALCULATED IN ACCORDANCE WITH ARTICLE 3 OF REGULATION NO 177/67/EEC ( OJ 2614 ), HAVING REGARD TO PRICES AT THE VARIOUS MARKETING STAGES WITHIN THE COMMUNITY AND PRICES ON EXPORT . THE REGULATION FURTHER PROVIDES, IN THE SECOND PARAGRAPH OF ARTICLE 2, THAT, FOR THE CALCULATION OF THE REFUND, ACCOUNT SHALL BE TAKEN OF THE PRICE FOR THE QUANTITY OF FEED GRAIN NEEDED TO MANUFACTURE THE PRODUCT IN QUESTION . THE AMOUNT OF THE REFUND DOES NOT, THEREFORE, DEPEND UPON THE PRICE IN FACT PAID FOR THE EXPORTED PRODUCT ON THE HOME MARKET .

4 THUS THE GRANT OF A REFUND IS NOT NECESSARILY EXCLUDED IF THE AMOUNT OF THE REFUND EXCEEDS THE PRICE IN FACT PAID ON THE HOME MARKET .

ON THE FIRST PART OF THE SECOND QUESTION

5 IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, THE COURT IS ASKED WHETHER THE CRITERIA AS TO QUALITY PROVIDED BY ARTICLE 6 OF REGULATION NO 1041/67/EEC ARE TO BE DETERMINED ACCORDING TO THE COMMERCIAL CUSTOMS AND THE HEALTH REGULATIONS OF THE MEMBER STATES OR ACCORDING TO THOSE OF THE RECIPIENT COUNTRIES .

6 UNDER THE PROVISIONS OF ARTICLE 6, THE REFUND IS ONLY GRANTED FOR PRODUCTS " IN FREE CIRCULATION WITHIN THE COMMUNITY WHICH ARE OF SOUND AND FAIR MARKETABLE QUALITY AND, IN THE CASE OF PRODUCTS INTENDED FOR HUMAN CONSUMPTION, WHICH HAVE CHARACTERISTICS OR ARE IN A CONDITION SUCH AS DO NOT EXCLUDE OR SUBSTANTIALLY IMPAIR THEIR USE FOR THAT PURPOSE ".

THE SEVENTH RECITAL OF THE ABOVEMENTIONED REGULATION LAYS DOWN THAT ONLY PRODUCTS IN FREE CIRCULATION WITHIN THE COMMUNITY CAN BENEFIT UNDER THE ARRANGEMENTS PROVIDED BY THAT REGULATION, AND THAT MOREOVER EXPORTED PRODUCTS MUST BE OF SUCH A QUALITY THAT THEY CAN BE MARKETED ON NORMAL TERMS .

IT TRANSPIRES FROM THE GROUNDS GIVEN BY THE HAMBURG FINANZGERICHT THAT THE PROBLEM AT ISSUE IS WHETHER THIS REQUIREMENT MUST BE INTERPRETED AS AN IMPLICIT REFERENCE TO THE HEALTH REGULATIONS OF THE THIRD COUNTRIES TO WHICH THE PRODUCTS ARE EXPORTED OR TO REGULATIONS IN FORCE WITHIN THE COMMUNITY .

7 IN THE ABSENCE OF ANY EXPRESS REFERENCE TO THE LAWS OR CUSTOMS OF A THIRD COUNTRY A COMMUNITY PROVISION MUST BE INTERPRETED IN RELATION TO AND IN THE CONTEXT OF ITS OWN SOURCES .

THE REFUND SYSTEM IS INSTRUMENTAL IN THE COMMON ORGANIZATION OF MARKETS FOR THE PURPOSE OF ACHIEVING THE OBJECTIVES SET BY ARTICLE 39, AND IN PARTICULAR THE STABILIZATION OF THE COMMUNITY MARKET PROVIDED FOR BY ARTICLE 40 ( 3 ) AND BY THE FIFTH RECITAL OF REGULATION NO 121/67 .

TO MAKE THE GRANT OF A REFUND DEPENDENT UPON THE LAWS OR CUSTOMS OF A THIRD STATE WOULD DEPRIVE THE COMMUNITY OF ALL CERTAINTY IN THE USE OF THIS INSTRUMENT AND WOULD MAKE EFFECTIVE CONTROL BY THE COMMUNITY IMPOSSIBLE .

8 THEREFORE THE QUESTION WHETHER PRODUCTS FOR WHICH AN EXPORT REFUND IS CLAIMED ARE IN CONFORMITY WITH THE REQUIREMENTS SET OUT IN ARTICLE 6 OF REGULATION NO 1041/67 MUST BE EXAMINED ON THE BASIS OF CRITERIA IN FORCE WITHIN THE COMMUNITY .

ON THE SECOND PART OF THE SECOND QUESTION AND THE FIRST PART OF THE THIRD QUESTION

9 THE COURT IS REQUESTED BY THE SECOND PART OF THE SECOND QUESTION TO STATE WHETHER IT IS TO BE DEDUCED FROM THE FACT THAT THE AMOUNT OF THE REFUND EXCEEDS THE PRICE IN FACT PAID FOR THE PRODUCT ON THE HOME MARKET THAT THE PRODUCT DOES NOT CONFORM TO THE REQUIRED STANDARDS OF QUALITY .

10 IF THE ANSWER IS NEGATIVE, THE FIRST PART OF QUESTION 3 REQUESTS AN INTERPRETATION OF THE PHRASE " OF SOUND AND FAIR MARKETABLE QUALITY ".

11 THESE QUESTIONS, BEING CLOSELY CONNECTED, WILL BE EXAMINED TOGETHER .

12 THIS REQUIREMENT, CONTAINED IN ARTICLE 6 OF REGULATION NO 1041/67, CONSTITUTES A GENERAL, OBJECTIVE CONDITION FOR THE GRANT OF A REFUND, WHATEVER THE REQUIREMENTS AS TO CATEGORY AND QUALITY LAID DOWN BY THE REGULATIONS FIXING THE AMOUNTS OF REFUND FOR EACH PRODUCT .

A PRODUCT WHICH COULD NOT BE MARKETED WITHIN THE COMMUNITY UNDER NORMAL CONDITIONS AND UNDER THE DESCRIPTION GIVEN IN THE CLAIM FOR THE GRANT OF A REFUND WOULD NOT MEET THESE REQUIREMENTS AS TO QUALITY .

THE FACT THAT THE AMOUNT OF THE REFUND EXCEEDS THE PRICE IN FACT PAID BY THE EXPORTER ON THE HOME MARKET FOR THE PRODUCT EXPORTED IS AN INDICATION THAT DOUBTS SHOULD BE CAST ON THE QUALITY OF THE PRODUCT .

ON THE SECOND PART OF THE THIRD QUESTION

13 THE SECOND PART OF THE THIRD QUESTION IS PRINCIPALLY CONCERNED TO OBTAIN THE PROPER INTERPRETATION OF THE DESCRIPTIONS OF THE GOODS DESIGNATED " SAUSAGES AND THE LIKE " AND " OTHER ", WITHIN THE MEANING OF ANNEX II ( C ) EX . 16.01 B 1 A ) AND B ) OF REGULATION NO 137/67/EEC OF THE COUNCIL OF 13 JUNE 1967 AND THAT OF THE ANNEX TO REGULATION ( EEC ) NO 222/68 OF THE COMMISSION OF 23 FEBRUARY 1968 .

14 THE WORDING OF THIS SUB-HEADING IN THE AUTHENTIC TEXTS IN ALL THE OFFICIAL COMMUNITY LANGUAGES GIVES PRIME IMPORTANCE TO THE FACT THAT THE PRODUCT IN QUESTION SHOULD HAVE BEEN PRESERVED TO A CERTAIN EXTENT BY A DRYING PROCESS .

IN THE ABSENCE OF COMMUNITY PROVISIONS ON THIS SUBJECT THE EXPLANATORY NOTES TO THE BRUSSELS CONVENTION ON NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS ARE AUTHORITATIVE AS A VALID MEANS OF INTERPRETING COMMON HEADINGS .

THE VERSION OF THESE WHICH WAS VALID AT THE TIME OF THE EVENTS LEADING TO THE MAIN ACTION STATES THAT HEADING 16.01, " SAUSAGES AND THE LIKE, OF MEAT, MEAT OFFAL OR ANIMAL BLOOD ", COVERS MEAT OR OFFAL PRODUCTS EITHER COOKED OR UNCOOKED .

IN PARTICULAR, THIS VERSION STATES THAT " TRUE MEAT-BASED SAUSAGES AND THE LIKE ( FRANKFURTER SAUSAGES, SALAMI ETC .) " COME UNDER HEADING 16.01 .

THEREFORE THE PRODUCT IN QUESTION MUST COMPRISE A MEAT BASE, NOT MERELY OFFAL .

15 THE CLASSIFICATION OF A PRODUCT UNDER SUB-HEADING 16.01 B 1 A ) PRESUPPOSES THAT ITS INGREDIENTS HAVE BEEN SUBJECTED TO A DRYING PROCESS AND THAT MOREOVER THEY ARE COMPOSED OF MEAT, NOT MERELY OF OFFAL .

16 SUB-HEADING 16.01 B 1 C ) IS A RESIDUAL HEADING IN WHICH ARE CLASSIFIED ALL SAUSAGES AND THE LIKE AND OTHER SIMILAR PRODUCTS COMPOSED OF MEAT, OFFAL OR BLOOD, WITHIN THE MEANING OF THE ABOVEMENTIONED EXPLANATORY NOTES, WHICH CANNOT BE INCLUDED UNDER THE OTHER HEADINGS .

17 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HAMBURG FINANZGERICHT BY ORDER OF THAT COURT DATED 25 JANUARY 1973, HEREBY RULES :

1 . THE QUESTION WHETHER PRODUCTS FOR WHICH AN EXPORT REFUND IS CLAIMED MEET THE REQUIREMENTS AS TO QUALITY LAID DOWN BY ARTICLE 6 OF REGULATION NO 1041/67 MUST BE ASSESSED ON THE BASIS OF CRITERIA IN FORCE WITHIN THE COMMUNITY .

2 . A PRODUCT WHICH COULD NOT BE MARKETED WITHIN THE COMMUNITY UNDER NORMAL CONDITIONS AND UNDER THE DESCRIPTION GIVEN IN THE CLAIM FOR A REFUND WOULD NOT MEET THESE REQUIREMENTS AS TO QUALITY .

3 . THE CLASSIFICATION OF A PRODUCT UNDER SUB-HEADING 16.01 B 1 A ) PRESUPPOSES THAT ITS INGREDIENTS HAVE BEEN SUBJECTED TO A DRYING PROCESS AND MOREOVER THAT THEY ARE COMPOSED OF MEAT, NOT MERELY OF OFFAL .