Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords
1 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - CHARGING AND GRANTING - POWERS OF A MEMBER STATE WHOSE CURRENCY FLUCTUATES UPWARDS OR DOWNWARDS - PAYMENT BY THE EXPORTING MEMBER STATE OF COMPENSATORY AMOUNTS WHICH SHOULD BE GRANTED ON IMPORTATION BY ANOTHER MEMBER STATE - PERMISSIBILITY
( REGULATION NO 974/71 OF THE COUNCIL , ART . 2A )
2 . AGRICULTURE - MONETARY COMPENSATORY AMOUNTS - PAYMENT BY THE EXPORTING MEMBER STATE OF COMPENSATORY AMOUNTS WHICH SHOULD BE GRANTED ON IMPORTATION BY ANOTHER MEMBER STATE - TARIFF CLASSIFICATION OF GOODS DECIDED BY THE IMPORTING MEMBER STATE - BINDING ON THE EXPORTING MEMBER STATE
( REGULATION NO 974/71 OF THE COUNCIL , ART . 2A ; REGULATION NO 1380/75 OF THE COMMISSION , ART . 11 ( 2 ))
3 . COMMON CUSTOMS TARIFF - TARIFF HEADINGS - CLASSIFICATION OF GOODS - ABSENCE OF UNIFORM CRITERIA - PROCEDURES FOR RESOLVING DISPUTES - REFERENCE FOR A PRELIMINARY RULING - APPLICATION TO THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE
( EEC TREATY , ART . 177 ; REGULATION NO 97/69 OF THE COUNCIL , ART . 2 )
4 . COMMON CUSTOMS TARIFF - TARIFF HEADINGS - FORAGE AND OTHER PREPARATIONS USED IN ANIMAL FEEDING WITHIN THE MEANING OF SUBHEADING 23.07 B I ( C ) 1 - SPECIFIC CASE
Summary
1 . IN PROVIDING THAT WHERE A PRODUCT IMPORTED INTO A MEMBER STATE WHICH ' ' HAS TO GRANT ' ' A COMPENSATORY AMOUNT UPON IMPORTATION THE EXPORTING MEMBER STATE MAY , ' ' BY AGREEMENT WITH THE MEMBER STATE ' ' , PAY THE COMPENSATORY AMOUNT WHICH ' ' SHOULD BE GRANTED ' ' BY THE LATTER , THE PROVISIONS OF ARTICLE 2A OF REGULATION NO 974/71 SHOW THAT THAT REGULATION DID NOT INTEND TO TRANSFER TO THE EXPORTING MEMBER STATE RESPONSIBILITY FOR ' ' GRANTING ' ' MONETARY COMPENSATORY AMOUNTS ON IMPORTATION INTO ANOTHER MEMBER STATE BUT ONLY TO ALLOW THE EXPORTING MEMBER STATE THE OPPORTUNITY TO ' ' PAY ' ' , BY AGREEMENT WITH THE IMPORTING MEMBER STATE AND ON ITS BEHALF , THE MONETARY COMPENSATORY AMOUNT ON IMPORTATION WHICH THE IMPORTING MEMBER STATE ITSELF IS REQUIRED TO GRANT .
2 . ARTICLE 2A OF REGULATION NO 974/71 OF THE COUNCIL AND ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT FOR THE PURPOSES OF DETERMINING THE MONETARY COMPENSATORY AMOUNT ON IMPORT INTO ANOTHER MEMBER STATE THE EXPORTING MEMBER STATE IS BOUND BY THE TARIFF CLASSIFICATION GIVEN TO THE GOODS IN QUESTION BY THE IMPORTING MEMBER STATE . IF THEREFORE THE TARIFF CLASSIFICATION GIVEN BY THE IMPORTING MEMBER STATE INVOLVES NO MONETARY COMPENSATORY AMOUNT OR INVOLVES A LOWER MONETARY COMPENSATORY AMOUNT THAN THAT RESULTING FROM THE TARIFF CLASSIFICATION GIVEN BY THE EXPORTING MEMBER STATE , THE EXPORTING MEMBER STATE IS OBLIGED TO PAY NO MONETARY COMPENSATORY AMOUNT ON IMPORT OR MUST PAY A LOWER COMPENSATORY AMOUNT CORRESPONDING TO THE TARIFF CLASSIFICATION GIVEN BY THE IMPORTING MEMBER STATE .
3 . SINCE THE APPLICATION OF THE COMMON CUSTOMS TARIFF IS A MATTER FOR THE NATIONAL AUTHORITIES OF EACH MEMBER STATE THERE CAN BE NO GUARANTEE OF A UNIFORM TARIFF CLASSIFICATION FOR THE SAME PRODUCT SO LONG AS THE CLASSIFICATION HAS NOT BEEN DEFINED FOR THE WHOLE OF THE COMMUNITY BY MEANS OF THE PROCEDURES LAID DOWN FOR THAT PURPOSE BY COMMUNITY LAW . IN THE PRESENT STATE OF COMMUNITY LAW , APART FROM THE PROCEDURE REFERRED TO IN ARTICLE 177 OF THE EEC TREATY WHICH IS AVAILABLE TO NATIONAL COURTS TO WHICH THE IMPORTERS AND EXPORTERS CONCERNED MAY APPLY , THE ONLY PROCEDURE PROVIDED FOR BY COMMUNITY LAW TO ENSURE UNIFORM TARIFF CLASSIFICATION OF GOODS WHERE THE IMPORTING MEMBER STATE CLASSIFIES THE SAME PRODUCT DIFFERENTLY FROM THE EXPORTING MEMBER STATE IS THE POSSIBILITY WHICH THE MEMBER STATES CONCERNED , HAVE IN ACCORDANCE WITH ARTICLE 2 OF REGULATION NO 97/69 , OF SUBMITTING THE PROBLEM OF TARIFF CLASSIFICATION OF THE PRODUCT IN QUESTION TO THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE ESTABLISHED BY ARTICLE 1 OF THAT REGULATION .
4 . A PRODUCT INTENDED FOR ANIMAL FEED AND COMPOSED OF 90% MAIZE STARCH WHICH HAS BEEN TREATED OTHERWISE THAN BY CHEMICAL MEANS , 5% CALCIUM CHLORIDE AND 5% MAGNESIUM CHLOR- IDE COMES UNDER SUBHEADING 23.07 B I ( C ) 1 OF THE COMMON CUSTOMS TARIFF .
Parties
IN CASE 795/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) AT THE HAGUE FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
HANDELMAATSCHAPPIJ PESCH & CO BV , VOORTHUIZEN ,
AND
HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ( CENTRAL BOARD FOR AGRICULTURAL PRODUCTS ), THE HAGUE ,
Subject of the case
ON THE INTERPRETATION OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ) AND REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1975 , L 139 , P . 37 ), AND OF THE COMMON CUSTOMS TARIFF ,
Grounds
1 BY A JUDGMENT DATED 2 NOVEMBER 1979 , RECEIVED AT THE COURT ON 8 NOVEMBER 1979 , THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS ON THE INTERPRETATION OF VARIOUS PROVISIONS OF THE COMMUNITY RULES RELATING TO MONETARY COMPENSATORY AMOUNTS AND OF THE COMMON CUSTOMS TARIFF .
2 THE QUESTIONS HAVE BEEN RAISED IN PROCEEDINGS RELATING TO THE APPLICATION OF ARTICLE 2A OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), AS AMENDED BY REGULATION NO 1112/73 OF THE COUNCIL OF 30 APRIL 1973 ( OFFICIAL JOURNAL 1973 , L 114 , P . 4 ). THAT PROVISION READS AS FOLLOWS :
' ' WHERE A PRODUCT EXPORTED FROM ONE MEMBER STATE HAS BEEN IMPORTED INTO A MEMBER STATE WHICH HAS TO GRANT A COMPENSATORY AMOUNT UPON IMPORTATION , THE EXPORTING MEMBER STATE MAY , BY AGREEMENT WITH THE IMPORTING MEMBER STATE , PAY THE COMPENSATORY AMOUNT WHICH SHOULD BE GRANTED BY THE SAID IMPORTING MEMBER STATE ' ' .
DETAILED RULES FOR THE APPLICATION OF THAT PROVISION WERE LAID DOWN BY THE COMMISSION IN REGULATION NO 1380/75 OF 29 MAY 1975 ( OFFICIAL JOURNAL 1975 , L 139 , P . 37 ) AND IN PARTICULAR ARTICLE 11 ( 2 ) THEREOF WHICH PROVIDES THAT THE PAYMENT BY THE EXPORTING MEMBER STATE OF THE MONETARY COMPENSATORY AMOUNT WHICH SHOULD BE GRANTED BY THE IMPORTING MEMBER STATE SHALL BE CONDITIONAL UPON THE PRODUCTION OF ' ' PROOF THAT CUSTOMS IMPORT FORMALITIES HAVE BEEN COMPLETED ' ' , WHICH PROOF , ACCORDING TO THE SECOND SUBPARAGRAPH OF ARTICLE 11 ( 2 ), IS TO BE FURNISHED BY PRODUCTION OF A SPECIAL COPY OF THE COMMUNITY TRANSIT DOCUMENT , REFERRED TO AS ' ' THE CONTROL COPY ' ' .
3 AT THE TIME OF THE OCCURRENCES IN QUESTION BETWEEN NOVEMBER 1976 AND OCTOBER 1977 INCLUSIVE THE PROVISIONS OF ARTICLE 2A OF REGULATION NO 974/71 APPLIED TO PRODUCTS EXPORTED FROM THE NETHERLANDS TO THE UNITED KINGDOM . IT APPEARS FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION DURING THE SAID PERIOD EXPORTED FROM THE NETHERLANDS A NUMBER OF CONSIGNMENTS OF TREATED MAIZE DESTINED FOR THE UNITED KINGDOM . THE NETHERLANDS AUTHORITIES CLASSIFIED THE GOODS UNDER SUBHEADING 35.05 A OF THE COMMON CUSTOMS TARIFF IN ACCORDANCE WITH THE DECLARATION OF THE EXPORTER .
4 RELYING ON THE PROVISIONS OF THE AFORESAID ARTICLE 2A THE PLAINTIFF CLAIMED FROM THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN , WHICH IS THE INTERVENTION AGENCY IN THE NETHERLANDS RESPONSIBLE FOR IMPLEMENTING THE COMMON AGRICULTURAL POLICY IN RELATION TO CEREALS , IN ADDITION TO THE COMPENSATORY AMOUNT PAYABLE ON EXPORT , PAYMENT OF THE COMPENSATORY AMOUNT ON IMPORT INTO THE UNITED KINGDOM CORRESPONDING TO THE SAID TARIFF CLASSIFICATION . THE HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN REJECTED THE LATTER CLAIM . AFTER BEING INFORMED BY THE BRITISH AUTHORITIES BY MEANS OF A SPECIAL REMARK ON THE AFOREMENTIONED CONTROL COPY THAT THEY CLASSIFIED THE PRODUCT IN QUESTION UNDER SUBHEADING 23.07 B I ( C ) 1 OF THE COMMON CUSTOMS TARIFF , INVOLVING A LESSER MONETARY COMPENSATORY AMOUNT ON IMPORT INTO THE UNITED KINGDOM THAN THAT RESULTING FROM SUBHEADING 35.05 A , THE AFOREMENTIONED INTERVENTION AGENCY DECIDED TO PAY THE PLAINTIFF THE LESSER MONETARY COMPENSATORY AMOUNT CORRESPONDING TO SUBHEADING 23.07 B I ( C ) 1 .
5 IN ORDER TO DETERMINE FIRST THE SCOPE OF ARTICLE 2A OF REGULATION NO 974/71 IN A CASE SUCH AS THE PRESENT AND THE TARIFF CLASSIFICATION OF THE PRODUCTS IN QUESTION THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED THE FOLLOWING TWO QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ' 1 . ARE ARTICLE 2A OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL AND ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION TO BE INTERPRETED AS MEANING THAT IF THE COURT OF JUSTICE HAS NOT YET RULED ON THE CLASSIFICATION OF A PRODUCT IN THE COMMON CUSTOMS TARIFF , THE EXPORTING MEMBER STATE IS WHOLLY BOUND BY THE OPINION OF THE IMPORTING MEMBER STATE AS NOTIFIED TO THE EXPORTING MEMBER STATE AS REGARDS THE DETERMINING OF THE MONETARY COMPENSATORY AMOUNT TO BE PAID BY THAT STATE IN RESPECT OF THE IMPORT OF THE PRODUCT CONCERNED INTO THE IMPORTING MEMBER STATE SO THAT IF , PURSUANT TO THAT OPINION ON THE BASIS OF THE COMPOSITION OF THE PRODUCT AND ITS CLASSIFICATION IN THE COMMON CUSTOMS TARIFF , NO MONETARY COMPENSATORY AMOUNT OR A LOWER MONETARY COMPENSATORY AMOUNT THAN THAT PAID IN RESPECT OF EXPORT WERE PAYABLE , THE EXPORTING MEMBER STATE IS ACCORDINGLY OBLIGED TO PAY NO MONETARY COMPENSATORY AMOUNT IN RESPECT OF THE IMPORT OF THAT PRODUCT INTO THE IMPORTING MEMBER STATE OR TO PAY A LOWER MONETARY COMPENSATORY AMOUNT ;
OR
ARE THE COMMUNITY PROVISIONS TO BE INTERPRETED AS MEANING THAT THE EXPORTING MEMBER STATE ALONE ALSO DECIDES AS TO THE GRANT OF MONETARY COMPENSATORY AMOUNTS IN RESPECT OF IMPORT INTO ANOTHER MEMBER STATE AS REGARDS THE PAYMENT AND FIXING OF THE AMOUNTS TO BE PAID?
2.DOES A PRODUCT CONSISTING OF 90% MAIZE STARCH , 5% CALCIUM CHLORIDE AND 5% MAGNESIUM CHLORIDE COME UNDER SUBHEADING 35.05 A OR UNDER SUBHEADING 23.07 B I ( C ) 1 OR UNDER ANOTHER HEADING OF THE COMMON CUSTOMS TARIFF?
' '
THE FIRST QUESTION
6 ARTICLE 2A OF REGULATION NO 974/71 OF THE COUNCIL OF 12 MAY 1971 , AS AMENDED BY ARTICLE 2 OF REGULATION NO 1112/73 OF 30 APRIL 1973 READS AS FOLLOWS :
' ' WHERE A PRODUCT EXPORTED FROM ONE MEMBER STATE HAS BEEN IMPORTED INTO A MEMBER STATE WHICH HAS TO GRANT A COMPENSATORY AMOUNT UPON IMPORTATION , THE EXPORTING MEMBER STATE MAY , BY AGREEMENT WITH THE IMPORTING MEMBER STATE , PAY THE COMPENSATORY AMOUNT WHICH SHOULD BE GRANTED BY THE SAID IMPORTING MEMBER STATE . IN THIS CASE NO COMPENSATORY AMOUNT SHALL BE GRANTED BY THE IMPORTING MEMBER STATE FOR PRODUCTS ORIGINATING IN THE MEMBER STATE CONCERNED . THE COMPENSATORY AMOUNT SHALL BE CONVERTED ON THE BASIS OF THE SPOT-MARKET RATE OF THE RELEVANT CURRENCIES AS RECORDED OVER A PERIOD TO BE DETERMINED ' ' .
7 TO DETERMINE THE MEANING AND SCOPE OF THAT PROVISION IT IS NECESSARY TO INTERPRET IT ACCORDING TO ITS WORDING AND THE PRINCIPLES GOVERNING THE FUNCTIONING OF THE MECHANISM OF MONETARY COMPENSATORY AMOUNTS AS PROVIDED FOR IN ARTICLE 1 ( 1 ) OF REGULATION NO 974/71 . AS APPEARS FROM THAT REGULATION , THE FUNCTIONING OF THE SAID SYSTEM CONSISTS MAINLY IN THE APPLICATION BY EACH MEMBER STATE OF MONETARY COMPENSATORY AMOUNTS INTENDED TO COMPENSATE FOR FLUCTUATIONS BEYOND A GIVEN MARGIN IN THE EXCHANGE RATE OF ITS NATIONAL CURRENCY . TO THAT END ARTICLE 1 ( 1 ) OF THE SAID REGULATION PROVIDES THAT THE MEMBER STATE WHOSE CURRENCY FOR THE PURPOSES OF COMMERCIAL TRANSACTIONS FLUCTUATES UPWARDS OR DOWNWARDS BEYOND THE ABOVE-MENTIONED LIMIT SHOULD ' ' CHARGE ' ' MONETARY COMPENSATORY AMOUNTS ON IMPORTS AND ' ' GRANT ' ' THEM ON EXPORTS OF THE AGRICULTURAL PRODUCTS SPECIFIED IN ARTICLE 1 ( 2 ) AND THUS IMPLIES THAT THE LEVYING OR GRANTING OF THE MONETARY COMPENSATORY AMOUNTS IN RESPECT OF EACH IMPORT OR EXPORT IS THE RESPONSIBILITY OF THE MEMBER STATE INTO WHICH THE PRODUCTS REFERRED TO ARE IMPORTED OR WHENCE THEY ARE EXPORTED . REGULATION NO 1112/73 , WHICH CONTAINS THE DISPUTED PROVISIONS OF ARTICLE 2A , IS ONE OF THIS SERIES OF REGULATIONS . AS APPEARS FROM THE FOURTH RECITAL THERETO IT IS BASED ON THE PRINCIPLE THAT ' ' EACH MEMBER STATE MAY COMPENSATE FOR DEVIATIONS DUE TO TRENDS IN ITS CURRENCY SITUATION ' ' AND THEREFORE IS NOT INTENDED TO AFFECT THE PRINCIPLES GOVERNING THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .
8 IN PROVIDING THAT WHERE A PRODUCT IMPORTED INTO A MEMBER STATE WHICH ' ' HAS TO GRANT ' ' A COMPENSATORY AMOUNT UPON IMPORTATION THE EXPORTING MEMBER STATE MAY , ' ' BY AGREEMENT WITH THE IMPORTING MEMBER STATE ' ' , PAY THE COMPENSATORY AMOUNT WHICH ' ' SHOULD BE GRANTED ' ' BY THE IMPORTING MEMBER STATE THE PROVISIONS OF ARTICLE 2A OF THE SAID REGULATION SHOW THAT THAT REGULATION DID NOT INTEND TO TRANSFER TO THE EXPORTING MEMBER STATE RESPONSIBILITY FOR ' ' GRANTING ' ' MONETARY COMPENSATORY AMOUNTS ON IMPORTATION INTO ANOTHER MEMBER STATE BUT ONLY TO ALLOW THE EXPORTING MEMBER STATE THE OPPORTUNITY TO ' ' PAY ' ' , BY AGREEMENT WITH THE IMPORTING MEMBER STATE AND ON ITS BEHALF , THE MONETARY COMPENSATORY AMOUNT ON IMPORTATION WHICH THE IMPORTING MEMBER STATE ITSELF IS REQUIRED TO GRANT .
9 THOSE RULES ARE MOREOVER CONSISTENT WITH THE GENERAL PRINCIPLES RELATING TO THE APPLICATION OF THE COMMON CUSTOMS TARIFF AND GOVERNING THE FUNCTIONING OF MONETARY COMPENSATORY AMOUNTS . IT IS COMMON GROUND ON THE ONE HAND THAT THE DETERMINATION OF THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO IMPORT OR EXPORT IS LINKED TO THE TARIFF CLASSIFICATION TO WHICH THE IMPORTED OR EXPORTED PRODUCTS ARE SUBJECT AND ON THE OTHER HAND THAT THE IMPLEMENTATION OF THE COMMON CUSTOMS TARIFF IS THE RESPONSIBILITY OF THE IMPORTING STATE IN THE CASE OF EACH IMPORT AND THE EXPORTING STATE IN THE CASE OF EACH EXPORT . IT IS PRECISELY HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE APPLICATION OF THE COMMON CUSTOMS TARIFF AND THE APPLICATION OR DETERMINATION OF THE MONETARY COMPENSATORY AMOUNTS THAT THE AFOREMENTIONED ARTICLE 2A MAKES A DISTINCTION BETWEEN THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS ON IMPORTATION BY THE EXPORTING MEMBER STATE AND THEIR GRANTING BY THE IMPORTING MEMBER STATE AND BY THAT IMPLIES THAT THE EXPORTING MEMBER STATE IN PAYING THE COMPENSATORY AMOUNTS FOR WHICH THE IMPORTING MEMBER STATE IS LIABLE IS BOUND BY THE TARIFF CLASSIFICATION WHICH THE IMPORTING MEMBER STATE APPLIES TO THE PRODUCTS IN QUESTION FOR THE PURPOSES OF THEIR IMPORTATION .
10 REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1975 , L 139 , P . 37 ) CORROBORATES THAT INTERPRETATION . ARTICLE 11 ( 2 ) THEREOF PROVIDES THAT WHERE AN EXPORTING STATE WISHES TO EXERCISE THE OPTION PROVIDED FOR IN ARTICLE 2A OF REGULATION NO 974/71 PAYMENT BY THE EXPORTING MEMBER STATE OF THE MONETARY COMPENSATORY AMOUNT DUE FROM THE IMPORTING MEMBER STATE IS CONDITIONAL INTER ALIA UPON ' ' PRODUCTION OF PROOF THAT CUSTOMS IMPORT FORMALITIES HAVE BEEN COMPLETED ' ' . SINCE THE CUSTOMS IMPORT FORMALITIES NECESSARILY INVOLVE CLASSIFICATION OF THE GOODS IN QUESTION IN ACCORDANCE WITH THE CLASSIFICATION MADE BY THE NATIONAL AUTHORITIES OF THE IMPORTING MEMBER STATE IT FOLLOWS THAT ACCORDING TO THE SYSTEM ESTABLISHED BY THAT PROVISION THE TARIFF CLASSIFICATION MADE BY THE IMPORTING MEMBER STATE BINDS THE EXPORTING MEMBER STATE AS REGARDS PAYMENT OF THE COMPENSATORY AMOUNTS ON IMPORT . PURSUANT TO THAT PHILOSOPHY ARTICLE 10A OF THE ABOVE-MENTIONED REGULATION NO 1380/75 WHICH WAS ADDED BY REGULATION NO 1556/77 OF THE COMMISSION OF 11 JULY 1977 ( OFFICIAL JOURNAL 1977 , L 173 , P . 10 ) MOREOVER PROVIDES THAT , AS REGARDS COMMUNITY TRANSIT AND BY REFERENCE TO THE NORMAL CASE IN WHICH EACH MEMBER STATE PAYS THE MONETARY COMPENSATORY AMOUNTS WHICH IT HAS TO GRANT ITSELF , THE COMPETENT AUTHORITIES , ON CLEARING THE PRODUCT FOR RELEASE FOR HOME USE MUST INFORM THE CUSTOMS OFFICE OF DEPARTURE OF THEIR CLASSIFICATION .
11 SUCH RULES , IT IS TRUE , ARE LIKELY TO CREATE DIFFICULTIES FOR TRADERS IN TRADE BETWEEN MEMBER STATES IN SO FAR AS THE TARIFF CLASSIFICATION APPLIED BY THE EXPORTING MEMBER STATE DIFFERS FROM THAT OF THE IMPORTING MEMBER STATE . SUCH DIFFICULTIES ARE , HOWEVER , NOT DUE TO THE CONTESTED PROVISIONS OF ARTICLE 2A OF REGULATION NO 974/71 AND MAY EVEN OCCUR OUTSIDE THOSE PROVISIONS SINCE THEY ARISE FROM A LACUNA IN THE RULES FOR APPLYING THE COMMON CUSTOMS TARIFF . SINCE THE APPLICATION OF THAT TARIFF IS A MATTER FOR THE NATIONAL AUTHORITIES OF EACH MEMBER STATE THERE CAN BE NO GUARANTEE OF A UNIFORM TARIFF CLASSIFICATION FOR THE SAME PRODUCT SO LONG AS THE CLASSIFICATION HAS NOT BEEN DEFINED FOR THE WHOLE OF THE COMMUNITY BY MEANS OF THE PROCEDURES LAID DOWN FOR THAT PURPOSE BY COMMUNITY LAW . IN THE PRESENT STATE OF COMMUNITY LAW , APART FROM THE PROCEDURE REFERRED TO IN ARTICLE 177 OF THE EEC TREATY WHICH IS AVAILABLE TO NATIONAL COURTS AND TO WHICH THE IMPORTERS AND EXPORTERS CONCERNED MAY APPLY , THE ONLY PROCEDURE PROVIDED FOR BY COMMUNITY LAW TO ENSURE UNIFORM TARIFF CLASSIFICATION OF GOODS WHERE , AS IN THE PRESENT CASE , THE IMPORTING MEMBER STATE CLASSIFIES THE SAME PRODUCT DIFFERENTLY FROM THE EXPORTING MEMBER STATE , IS THE POSSIBILITY WHICH THE MEMBER STATES CONCERNED HAVE , IN ACCORDANCE WITH ARTICLE 2 OF REGULATION NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 12 ) OF SUBMITTING THE PROBLEM OF TARIFF CLASSIFICATION OF THE PRODUCT IN QUESTION TO THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE ESTABLISHED BY ARTICLE 1 OF THAT REGULATION .
12 HAVING REGARD TO THOSE FACTORS IT IS THEREFORE NECESSARY TO ANSWER THE FIRST QUESTION TO THE EFFECT THAT ARTICLE 2A OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL AND ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT FOR THE PURPOSES OF DETERMINING THE MONETARY COMPENSATORY AMOUNT ON IMPORT INTO ANOTHER MEMBER STATE THE EXPORTING MEMBER STATE IS BOUND BY THE TARIFF CLASSIFICATION GIVEN TO THE GOODS IN QUESTION BY THE IMPORTING MEMBER STATE . IF THEREFORE THE TARIFF CLASSIFICATION GIVEN BY THE IMPORTING MEMBER STATE INVOLVES NO MONETARY COMPENSATORY AMOUNT OR INVOLVES A LOWER MONETARY COMPENSATORY AMOUNT THAN THAT RESULTING FROM THE TARIFF CLASSIFICATION GIVEN BY THE EXPORTING MEMBER STATE , THE EXPORTING MEMBER STATE IS OBLIGED TO PAY NO MONETARY COMPENSATORY AMOUNT ON IMPORT OR MUST PAY A LOWER COMPENSATORY AMOUNT CORRESPONDING TO THE TARIFF CLASSIFICATION GIVEN BY THE IMPORTING MEMBER STATE .
THE SECOND QUESTION
13 IN THE SECOND QUESTION THE NATIONAL COURT IS ASKING THE COURT OF JUSTICE TO INTERPRET CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF FOR THE PURPOSE OF DETERMINING WHETHER PRODUCTS SUCH AS THOSE IN THE PRESENT CASE COME UNDER SUBHEADING 35.05 A OR UNDER SUBHEADING 23.07 B I ( C ) 1 OF THE COMMON CUSTOMS TARIFF .
14 SINCE SUBHEADING 35.05 COMES UNDER CHAPTER 35 ON ALBUMINOIDAL SUBSTANCES AND GLUES , IT APPLIES , AS ITS WORDING SHOWS , TO SUBSTANCES SUCH AS STARCHES MADE SOLUBLE . SUBHEADING 23.07 B I ( C ) 1 , WHICH COMES UNDER CHAPTER 23 , APPLIES INTER ALIA TO MIXTURES USED IN ANIMAL FEED ( OTHER THAN FISH OR MARINE MAMMAL SOLUBLES ) ' ' CONTAINING MORE THAN 30% BY WEIGHT OF STARCH ' ' AND ' ' CONTAINING NO MILK PRODUCTS OR CONTAINING LESS THAN 10% BY WEIGHT OF SUCH PRODUCTS ' ' .
15 ACCORDING TO THE PARTICULARS CONTAINED IN THE QUESTION UNDER CONSIDERATION THE RELEVANT PRODUCT CONSISTS OF 90% MAIZE STARCH , 5% CALCIUM CHLORIDE AND 5% MAGNESIUM CHLORIDE . SINCE IT IS STARCH , WHICH ACCORDING TO THE PARTICULARS CONTAINED IN THE FILE HAS BEEN SUBJECT TO NON-CHEMICAL PROCESSING INTENDED TO MAKE IT SOLUBLE , IT CANNOT ON THE ONE HAND COME UNDER SUBHEADING 11.08 A I , WHICH APPLIES TO UNTREATED MAIZE STARCH , OR ON THE OTHER HAND BE CLASSIFIED AS GLUE MADE FROM STARCH UNDER SUBHEADING 35.05 B . IN THOSE CIRCUMSTANCES AND HAVING REGARD TO THE COMPOSITION OF THE SAID PRODUCT THE ONLY HEADINGS OR SUBHEADINGS WHICH CAN BE CONSIDERED FOR THE PURPOSES OF TARIFF CLASSIFICATION ARE SUBHEADINGS 23.07 B I ( C ) 1 AND 35.05 A OF THE COMMON CUSTOMS TARIFF .
16 RULE A 1 OF THE RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF PROVIDES THAT ' ' FOR LEGAL PURPOSES , CLASSIFICATION SHALL BE DETERMINED ACCORDING TO THE TERMS OF THE HEADINGS AND ANY RELATIVE SECTION OR CHAPTER NOTES ' ' . RULE A 3 ( A ) OF THE GENERAL RULES PROVIDES FURTHER THAN WHEN , FOR ANY REASON , GOODS ARE , PRIMA FACIE , CLASSIFIABLE UNDER TWO OR MORE HEADINGS ' ' THE HEADING WHICH PROVIDES THE MOST SPECIFIC DESCRIPTION SHALL BE PREFERRED TO HEADINGS PROVIDING A MORE GENERAL DESCRIPTION ' ' .
17 IT IS COMMON GROUND THAT THE PRODUCT IN QUESTION IS SPECIALLY INTENDED FOR ANIMAL FEED OR AT LEAST IS USED AS A RAW MATERIAL IN THE ANIMAL FEED INDUSTRY . HAVING REGARD TO THE AFOREMENTIONED GENERAL RULES OF INTERPRETATION IT MUST THEREFORE BE ACCEPTED THAT IN VIEW OF ITS MAIN PURPOSE THE PRODUCT MEETS THE CONCEPT OF ' ' ANIMAL FODDER ' ' WITHIN THE MEANING OF CHAPTER 23 OF THE COMMON CUSTOMS TARIFF AND MUST BE CLASSIFIED AS ' ' FORAGE ' ' OR AT LEAST AS ' ' OTHER PREPARATIONS OF A KIND USED IN ANIMAL FEEDING ' ' TO WHICH HEADING 23.07 REFERS . HAVING REGARD TO ITS COMPOSITION IT COMES MORE PARTICULARLY UNDER SUBHEADING 23.07 B I ( C ) 1 .
18 THE FACT THAT ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION THE PRODUCT IN QUESTION , BECAUSE OF ITS STRONG CONCENTRATION OF CALCIUM AND MAGNESIUM , MUST FOR THE PURPOSES OF DIRECT CONSUMPTION BE USED IN WEAK PROPORTIONS IN SUBSTITUTE FEEDS INTENDED FOR SUCKLER FEED IN NO WAY ALTERS ITS PURPOSE WHICH IS BASICALLY TO SERVE AS ANIMAL FEED WHATEVER THE MANNER IN WHICH IT MUST BE ADMINISTERED AND THUS CANNOT SUFFICE TO ALTER ITS TARIFF CLASSIFICATION AS FORAGE UNDER HEADING 23.07 .
19 FOR ALL THOSE REASONS IT IS NECESSARY TO ANSWER THE SECOND QUESTION TO THE EFFECT THAT A PRODUCT INTENDED FOR ANIMAL FEED AND COMPOSED OF 90% MAIZE STARCH WHICH HAS BEEN TREATED OTHERWISE THAN BY CHEMICAL MEANS , 5% CALCIUM CHLORIDE AND 5% MAGNESIUM CHLORIDE COMES UNDER SUBHEADING 23.07 B I ( C ) 1 OF THE COMMON CUSTOMS TARIFF .
Decision on costs
THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE 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 , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN , BY JUDGMENT OF 2 NOVEMBER 1979 , HEREBY RULES :
1 . ARTICLE 2A OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL AND ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION MUST BE INTERPRETED AS MEANING THAT FOR THE PURPOSES OF DETERMINING THE MONETARY COMPENSATORY AMOUNT ON IMPORT INTO ANOTHER MEMBER STATE THE EXPORTING MEMBER STATE IS BOUND BY THE TARIFF CLASSIFICATION GIVEN TO THE GOODS IN QUESTION BY THE IMPORTING MEMBER STATE . IF THEREFORE THE TARIFF CLASSIFICATION GIVEN BY THE IMPORTING MEMBER STATE INVOLVES NO MONETARY COMPENSATORY AMOUNT OR INVOLVES A LOWER MONETARY COMPENSATORY AMOUNT THAN THAT RESULTING FROM THE TARIFF CLASSIFICATION GIVEN BY THE EXPORTING MEMBER STATE , THE EXPORTING MEMBER STATE IS OBLIGED TO PAY NO MONETARY COMPENSATORY AMOUNT ON IMPORT OR MUST PAY A LOWER COMPENSATORY AMOUNT CORRESPONDING TO THE TARIFF CLASSIFICATION GIVEN BY THE IMPORTING MEMBER STATE .
2 . A PRODUCT INTENDED FOR ANIMAL FEED AND COMPOSED OF 90% MAIZE STARCH WHICH HAS BEEN TREATED OTHERWISE THAN BY CHEMICAL MEANS , 5% CALCIUM CHLORIDE AND 5% MAGNESIUM CHLORIDE COMES UNDER SUBHEADING 23.07 B I ( C ) 1 OF THE COMMON CUSTOMS TARIFF .
Full & Egal Universal Law Academy