Avis juridique important

Judgment of the Court (Second Chamber) of 16 December 1992. - Firma John Friedrich Krohn v Hauptzollamt Hamburg-Jonas. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Subheading 23.04 B of the Common Customs Tariff - Residues resulting from the extraction of maize germ oil containing inter alia fragments of maize stalks and traces of other cereals and soya. - Case C-194/91. European Court reports 1992 Page I-06661

Summary Parties Grounds Decision on costs Operative part

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Common Customs Tariff ° Tariff headings ° Residues resulting from the extraction of maize germ oil ° Classification within subheading 23.04 B notwithstanding the presence of other substances deriving in particular from the maize plant, other cereals or soya ° Conditions ° Very small quantity of the extraneous substances and technical impossibility of avoiding their presence

(Commission Regulation No 482/74, Art. 1)

The last sentence of Article 1 of Regulation No 482/74 on the classification of goods under subheading No 23.04 B of the Common Customs Tariff must be interpreted as meaning that the products resulting from the extraction of maize oil fall under that subheading even when they contain, in addition to the residues resulting from the extraction of oil from the actual maize germs, other substances deriving in particular from the whole of the maize plant, other cereals or soya, in so far as those substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring cost disproportionate to the commercial value of the derived products in question. Since the Community legislature has not set a maximum permitted level for matter extraneous to maize grains, it is for the national court, in resolving the case before it, to fix the permissible level of such matter.

In Case C-194/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht, Hamburg for a preliminary ruling in the proceedings pending before that court between

John Friedrich Krohn GmbH & Co.

and

Hauptzollamt Hamburg-Jonas,

on the interpretation of the last sentence of Article 1 of Commission Regulation (EEC) No 482/74 of 27 February 1974 on the classification of goods within subheading 23.04 B of the Common Customs Tariff (OJ 1974 L 57, p. 23),

THE COURT (Second Chamber),

composed of: J.L. Murray, President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,

Advocate General: C. Gulmann,

Registrar: L. Hewlett, Administrator

after considering the written observations submitted on behalf of:

- Krohn GmbH by Juergen Guendisch, Rechtsanwalt of Hamburg,

- and on behalf of the Commission of the European Communities, by Blanca Rodriguez Galindo, of its Legal Service, and Arnold Ridout, a British civil servant seconded to the Commission' s Legal Service as part of an exchange scheme with national civil servants, acting as Agents, assisted by Hans-Juergen Rabe, Rechtsanwalt of Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Krohn GmbH and the Commission of the European Communities at the hearing on 1 October 1992,

after hearing the Opinion of the Advocate General at the sitting on 29 October 1992,

gives the following

Judgment

1 By order of 8 March 1991, received at the Court Registry on 29 July 1991, the Finanzgericht (Finance Court), Hamburg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of the last sentence of Article 1 of Commission Regulation (EEC) No 482/74 on the classification of goods within subheading 23.04 B of the Common Customs Tariff (OJ 1974 L 57, p. 23).

2 Those questions were raised in the context of a dispute between John Friedrich Krohn GmbH & Co., "the plaintiff", and the Hauptzollamt (Principal Customs Office) Hamburg-Jonas, "the defendant", regarding the tariff classification of goods imported into Germany from the United States of America.

3 These goods were declared to be products resulting from the extraction of maize oil falling under subheading 23.04 B of the Common Customs Tariff, which includes among others residues from vegetable oil extraction, free of duties on imports.

4 However, according to analyses carried out at the request of the German customs authorities, the samples taken were not pure products resulting from maize oil production but contained maize stalk fragments and also fragments of wheat, other cereals and soya.

5 The national authorities then classified the imported goods as animal feed preparations, under subheading 23.07 B I (c) 1. Since these goods were subject to import duties, the national authorities demanded from the plaintiff back payment of import levies and monetary compensatory amounts.

6 The plaintiff brought an action in the national court, which is uncertain whether the imports in dispute are covered by Article 1 of Regulation No 482/74, which provides in particular that residues resulting from the extraction of maize germ oil may not contain ingredients that are not obtained from maize grains.

7 Consequently, the national court has requested the Court of Justice to give a preliminary ruling on the following questions:

"1. Is the last sentence of Article 1 of Regulation (EEC) No 482/74 of the Commission of 27 February 1974 to be interpreted as meaning that goods still fall under tariff subheading 23.04 B even when they contain, in addition to the maize-grain residues mentioned therein, other matter such as maize stalks or other types of cereal or traces thereof?

2. If so, how high may the level of foreign matter be, and of what may it consist?"

8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

9 The national court' s questions seek essentially to determine, first, whether products resulting from the extraction of maize oil still fall under subheading 23.04 B of the Common Customs Tariff, even if they contain, in addition to residues deriving from the actual maize grain, other elements deriving in particular from the maize plant, other cereals or soya and, secondly, how high the level of matter not derived from maize grain may be.

10 To determine the scope of a provision of Community law, it is necessary to take into account not only its terms but also its context and objects.

12 It is apparent however from its preamble that the purpose of Regulation No 482/74 is in fact to ensure that residues resulting from the extraction of maize germ oil consist solely of matter remaining after the actual process of extracting the oil. It is also designed to exclude from classification under subheading 23.04 B residues resulting from the extraction of maize germ oil where they are mixed, either with other residues or products of the maize industry or with residues from the production of other vegetable products, for the purposes of manufacturing products or food compounds for cattle, which fall chiefly under heading No 23.07.

13 The third recital in the preamble states in this respect that the term "residues" does not cover products containing substances (except in negligible quantities) which have not undergone an oil-extraction process and have been added to the residues themselves.

14 Since the deliberate addition of a negligible quantity of those substances to the residues resulting from the extraction of maize germ oil does not affect the classification of those residues under subheading 23.04 B, the same necessarily applies in the event of the accidental presence of a negligible quantity of substances extraneous to the actual maize germ.

15 It is apparent, furthermore, from the observations submitted to the Court that the present technology of maize-germ oil extraction, referred to in the sixth recital, does not allow the accidental presence of substances deriving from the whole of the maize plant itself to be entirely excluded from the residues resulting from the extraction of maize germ oil.

16 It is also apparent that the pelletization of those residues, referred to in the second recital, their transshipment, transport by road, rail or inland waterway, as also their storage, can lead to the accidental appearance of impurities, deriving particularly from other types of cereal or from soya, since oil-mills process various oil seeds and transport and storage embrace different types of goods.

17 The classification of residues resulting from the extraction of maize germ oil under subheading 23.04 B presupposes that the matter extraneous to maize germ is present only in very small quantities and that it has been established that it is technically impossible to avoid their appearance under the normal conditions of production, processing, transshipment, transport and storage, except by incurring disproportionate costs in relation to the commercial value of the residues.

18 The answer to the questions referred to the Court by the Finanzgericht Hamburg should therefore be that the last sentence of Article 1 of Regulation No 482/74 must be interpreted as meaning that the products resulting from the extraction of maize oil fall under subheading 23.04 B of the Common Customs Tariff even when they contain, in addition to residues resulting from the extraction of oil from the maize germs themselves, other matter deriving in particular from the whole of the maize plant, other cereals or soya, in so far as those substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring cost disproportionate to the commercial value of the derived products in question. Since the Community legislature has not set a maximum permitted level for matter extraneous to maize grains, it is for the national court, in resolving the case before it, to fix the permissible level of such matter on the basis of the above indications given by the Court.

Costs

19 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Finanzgericht Hamburg, by order of 8 March 1991, hereby rules:

The last sentence of Article 1 of Regulation (EEC) No 482/74 of the Commission of 27 February 1974 on the classification of goods under subheading No 23.04 B of the Common Customs Tariff must be interpreted as meaning that the products resulting from the extraction of maize oil fall under that subheading even when they contain, in addition to residues resulting from the extraction of oil from the maize germs themselves, other matter deriving in particular from the whole of the maize plant, other cereals or soya, in so far as those substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring cost disproportionate to the commercial value of the derived products in question. Since the Community legislature has not set a maximum permitted level for matter extraneous to maize grains, it is for the national court, in resolving the case before it, to fix the permissible level of such matter on the basis of the above indications given by the Court.