1 BY ORDER OF 12 JANUARY 1971 RECEIVED AT THE COURT REGISTRY ON 19 MARCH 1971, THE BUNDESFINANZHOF OF THE FEDERAL REPUBLIC OF GERMANY REFERRED UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, A QUESTION ON THE INTERPRETATION OF ARTICLE 1 ( D ) OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ( OJ 1962, NO 30 ).
THE JURISDICTION OF THE COURT
2 WHILST REQUESTING THE COURT TO DEFINE THE SCOPE OF ARTICLE 1 ( D ) OF REGULATION NO 19/62 WITH REGARD TO CERTAIN PRODUCTS, THE BUNDESFINANZHOF GIVES DETAILS AS TO THE COMPOSITION OF THIS PRODUCT . THE GUENTHER HENCK UNDERTAKING MAINTAINS THAT BECAUSE OF THESE DETAILS, THE QUESTION WHICH HAS BEEN REFERRED DOES NOT IN FACT REQUEST THE COURT TO DEFINE THE MEANING AND THE SCOPE OF THE ABOVEMENTIONED PROVISION BUT TO APPLY THAT SAME PROVISION TO THE CASE IN QUESTION .
3 ALTHOUGH ARTICLE 177 OF THE TREATY DOES NOT ALLOW THE COURT TO GIVE A RULING ON A SPECIFIC CASE WHEN IT IS CALLED UPON TO INTERPRET COMMUNITY LAW, THE NEED, HOWEVER, TO REACH A HELPFUL INTERPRETATION OF THE PROVISIONS IN QUESTION JUSTIFIES THE STATEMENT BY THE NATIONAL COURT OF THE LEGAL CONTEXT INTO WHICH THE INTERPRETATION SOUGHT MUST BE PLACED . THE DETAILS CONTAINED IN THE QUESTION WHICH HAS BEEN REFERRED ENABLE THE CATEGORY OF PRODUCTS WHICH MAY COME WITHIN THE PROVISION IN QUESTION TO BE ASCERTAINED IN A GENERAL AND ABSTRACT WAY .
4 MOREOVER, SINCE REGULATION NO 19/62 WAS REPEALED AND REPLACED FROM 1 JULY 1967 BY OTHER PROVISIONS OF COMMUNITY LAW, THE GUENTHER HENCK UNDERTAKING MAINTAINS THAT THE COURT CANNOT GIVE A REPLY TO THE QUESTION WHICH HAS BEEN REFERRED ON THE BASIS OF LEGAL RULES WHICH WERE NOT APPLICABLE AT THE TIME OF THE IMPORTS IN QUESTION .
5 THE PRINCIPLE OF LEGAL CERTAINTY MAKES IT NECESSARY TO REFER TO THE STATE OF THE LAW IN FORCE WHEN THE REGULATION IN QUESTION WAS APPLIED . THE WORDING OF THE QUESTION WHICH HAS BEEN REFERRED DOES NOT PREVENT THE INTERPRETATION REQUESTED BEING SOUGHT WHILST COMPLYING WITH THAT PRINCIPLE .
ON THE SUBSTANCE OF THE CASE
6 IN ITS QUESTION, THE BUNDESFINANZHOF REQUESTS THE COURT TO RULE WHETHER THE EXPRESSION " KIBBLED MILLET GRAIN " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 OF THE COUNCIL AND MENTIONED UNDER TARIFF HEADING EX 11.02 A III B IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING UNWORKED FRAGMENTS OF GRAIN SIMILAR TO THOSE OF KIBBLED MILO GRAIN WHICH INCLUDE IN ADDITION MANY LUMPS OF VARYING SIZES FORMED BY THE AGGLUTINATION OF PARTICLES OF MILO, GIVEN, MOREOVER, THAT EVEN WHERE SOME OF THEIR CONSTITUENT ELEMENTS HAVE BEEN REMOVED THIS PRODUCT STILL CONTAINS 64.3 PER CENT OR 66.4 PER CENT STARCH, 10 PER CENT OR 9.7 PER CENT CRUDE ALBUMEN AND 3 PER CENT OR 3.6 PER CENT FAT . FURTHERMORE, THE BUNDESFINANZHOF ASKS WHETHER OTHER CONSTITUENTS SUCH AS PROTEINS OR RAW FIBRES MUST BE REQUIRED TO REACH MAXIMUM OR MINIMUM LEVELS WITH REGARD TO THAT PRODUCT .
7 NEITHER REGULATION NO 19/62 NOR REGULATION NO 55/62 DEFINE " KIBBLED MILLET GRAIN " WITHIN THE MEANING OF THE ABOVEMENTIONED TARIFF HEADING EX 11.02 . IN THE ABSENCE OF PROVISIONS OF COMMUNITY LAW ON THE SUBJECT, THE EXPLANATORY NOTES AND CLASSIFICATION OPINIONS LAID DOWN BY THE CONVENTION ON THE NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS ARE AUTHORITATIVE AS A VALID MEANS OF INTERPRETING HEADINGS IN THE COMMON CUSTOMS TARIFF . IT APPEARS FROM THOSE NOTES CONCERNING THE HEADINGS IN CHAPTER 11 OF THE TARIFF THAT FRAGMENTS OR FLOURY KERNELS OBTAINED BY THE ROUGH GRINDING OF MILO WHICH HAVE THE ESSENTIAL CHARACTERISTICS OF THE ORIGINAL PRODUCT WITH REGARD TO THEIR COMPOSITION MUST BE CONSIDERED, ALSO TAKING INTO CONSIDERATION THE PRACTICE IN THE MILLING OF MILO AND IN THE MILO TRADE, AS " KIBBLED MILLET GRAIN " WITHIN THE MEANING OF TARIFF HEADING EX 11.02 . SINCE ANY AGGLUTINATION OF THIS GRAIN INTO NUMEROUS LUMPS OF VARYING SIZES DOES NOT INVOLVE AN ALTERATION IN ITS NATURAL COMPOSITION, IT IS NOT THE FACTOR WHICH DETERMINES ITS EXCLUSION FROM THE ABOVE DEFINED CATEGORY OF " KIBBLED GRAIN ".
8 THE NATIONAL COURT ASKS WHETHER THE FACT THAT THIS PRODUCT HAS UNDERGONE STARCH EXTRACTION CAN AFFECT ITS CLASSIFICATION IN THE CATEGORY OF KIBBLED MILLET GRAIN WITHIN THE MEANING OF TARIFF HEADING EX 11.02 .
9 THE INTERPRETATION OF A TARIFF HEADING MUST IN DOUBTFUL CASES TAKE INTO CONSIDERATION BOTH THE FUNCTION OF THE CUSTOMS TARIFF IN VIEW OF THE NEEDS OF THE SYSTEM OR ORGANIZATION OF THE MARKETS AND OF ITS PURELY CUSTOMS FUNCTION . ALTHOUGH REGULATION NO 19/62 INCLUDES KIBBLED MILLET GRAIN WITHIN THE MEANING OF HEADING EX 11.02 IN THE SYSTEM OF THE COMMON ORGANIZATION OF THE MARKET IN CEREALS AND MADE IT LIABLE TO THE LEVY SYSTEM BY REGULATION NO 55/62, THIS WAS MAINLY BECAUSE OF ITS STRUCTURE AND USE AND NOT BECAUSE OF THE TREATMENT WHICH IT UNDERWENT . IT FOLLOWS THAT KIBBLED MILLET GRAIN WHICH HAS UNDERGONE PROCESSING ENABLING CERTAIN CONSTITUENTS TO BE EXTRACTED THEREFROM CONTINUES TO COME UNDER TARIFF HEADING EX 11.02 IF IT STILL CONTAINS THE ESSENTIAL CONSTITUENTS OF MILO IN QUANTITIES CORRESPONDING TO NORMAL VARIATIONS IN THE NATURAL CONTENT OF THOSE CONSTITUENTS IN THE ORIGINAL PRODUCT .
10 FURTHERMORE, THE ABOVEMENTIONED EXPLANATORY NOTES TO THE HEADINGS IN CHAPTER 11 DO NOT RULE OUT THE POSSIBILITY THAT CEREALS, INCLUDING MILLET, WHICH HAVE UNDERGONE SUCH PROCEEDING MAY BELONG TO THE CHAPTER IN QUESTION . MOREOVER, IT APPEARS FROM THE CUSTOMS TARIFF WHICH WAS APPLICABLE AT THAT TIME THAT ONLY IN SO FAR AS THEY ARE WASTE DO THOSE CEREALS NOT COME UNDER THAT CHAPTER BUT HAVE TO BE CLASSIFIED AMONGST THE " RESIDUES FROM THE MANUFACTURE OF STARCH " WITHIN THE MEANING OF TARIFF HEADING 23.03 . ALTHOUGH THE COURT CANNOT INTERPRET THE SAID HEADING WHICH WAS NOT INCLUDED IN THE COMMON ORGANIZATION OF THE MARKET AT THE TIME WHEN REGULATION NO 19/62 WAS IN FORCE BUT STILL CAME WITHIN NATIONAL CUSTOMS TARIFFS, IT CANNOT, HOWEVER, DEFINE THE SCOPE OF TARIFF HEADING EX 11.02 WITHOUT TAKING INTO CONSIDERATION, IN RESPECT OF PRODUCTS WHICH HAVE UNDERGONE STARCH EXTRACTION PROCESSING, THE DIVIDING LINE WHICH MUST BE DRAWN BETWEEN THOSE PRODUCTS AND " RESIDUES " AS REFERRED TO IN HEADING 23.03 . THE CONCEPT OF " RESIDUES " IMPLIES THAT KIBBLED MILLET GRAIN WHICH STILL CONTAINS 60 PER CENT OR MORE STARCH AFTER UNDERGOING A PROCESS OF STARCH EXTRACTION MAY NOT BE CONSIDERED WASTE BUT MUST BECAUSE OF ITS STARCH CONTENT BE PLACED UNDER THE SAME TARIFF HEADING AS THAT APPLICABLE TO KIBBLED GRAIN WHICH HAS NOT UNDERGONE THE SAME PROCESS .
11 FOR THOSE REASONS, THE EXPRESSION " KIBBLED MILLET GRAIN " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 AND MENTIONED UNDER TARIFF HEADING EX 11.02 A III B IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING A PRODUCT WHICH CHIEFLY CONSISTS IN UNWORKED FRAGMENTS OF GRAIN SIMILAR TO THOSE OF KIBBLED MILO GRAIN WHICH MAY IN ADDITION INCLUDE MANY LUMPS OF VARYING SIZES FORMED BY THE AGGLUTINATION OF PARTICLES OF MILO . THIS PRODUCT COMES UNDER THE ABOVEMENTIONED TARIFF HEADING IF SOME OF ITS CONSTITUENT ELEMENTS HAVE BEEN REMOVED IF IT STILL CONTAINS THE ESSENTIAL CONSTITUENTS OF MILO IN SUCH PROPORTIONS THAT THE QUANTITY OF THOSE CONSTITUENTS IS NOT SMALLER THAN THE NORMAL VALUES OF THE NATURAL CONTENTS OF MILO .
12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND SINCE THESE PROCEEDINGS ARE SO FAR 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 QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF ( SEVENTH CHAMBER ) OF THE FEDERAL REPUBLIC OF GERMANY PURSUANT TO THE ORDER MADE BY THAT COURT ON 12 JANUARY 1971, HEREBY RULES :
THE EXPRESSION " KIBBLED MILLET GRAIN " USED IN ARTICLE 1 ( D ) OF REGULATION NO 19/62 AND MENTIONED UNDER TARIFF HEADING EX 11.02 A III B IN THE ANNEX TO THAT REGULATION MUST BE INTERPRETED AS INCLUDING A PRODUCT WHICH CHIEFLY CONSISTS IN UNWORKED FRAGMENTS OF GRAIN SIMILAR TO THOSE OF KIBBLED MILO GRAINS WHICH MAY IN ADDITION INCLUDE MANY LUMPS OF VARYING SIZES FORMED BY THE AGGLUTINATION OF PARTICLES OF MILO . THIS PRODUCT COMES UNDER THE ABOVEMENTIONED TARIFF HEADING WHERE SOME OF ITS CONSTITUENT ELEMENTS HAVE BEEN REMOVED IF IT STILL CONTAINS THE ESSENTIAL CONSTITUENTS OF MILO IN SUCH PROPORTIONS THAT THE QUANTITY OF THOSE CONSTITUENTS IS NOT SMALLER THAN THE NORMAL VALUES OF THE NATURAL CONTENTS OF MILO .
