1 BY ORDER DATED 2 MAY 1972, RECEIVED AT THE COURT ON 3 MAY 1972, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ASKED THE COURT IN ACCORDANCE WITH ARTICLE 177 OF THE EEC TREATY TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 14 OF REGULATION NO 120 OF THE COUNCIL OF 13 JUNE 1967 ( OJ, ENGLISH SPECIAL EDITION 1967, P . 33 ) AND ON QUESTIONS CONCERNING THE APPLICATION OF CERTAIN PROVISIONS OF COMMUNITY LAW IN THE NATIONAL LAW OF A MEMBER STATE .
QUESTION 1
2 THE FIRST QUESTION ASKS WHETHER ARTICLE 14 OF REGULATION NO 120/67 AND TARIFF HEADING NO 23.02, DEFINED IN BOTH ANNEX A TO THAT REGULATION AND IN THE COMMON CUSTOMS TARIFF AS " BRAN, SHARPS AND OTHER RESIDUES DERIVED FROM THE SIFTING, MILLING OR WORKING OF CEREALS ", MUST BE INTERPRETED AS APPLYING TO PRODUCTS CALLED " HOMINY CHOP SPECIFIED ".
3 GRANARIA, RELYING ON THE NATURE AND METHOD OF PREPARATION OF THE PRODUCTS REFERRED TO BY THE SAID TARIFF HEADING, MAINTAINS THAT IT APPLIES ONLY TO PRODUCTS OBTAINED BY DRY PROCESSES .
4 ON THE OTHER HAND, PRODUCTS OBTAINED BY HUMID PROCESSES COME UNDER OTHER HEADINGS OF THE SAME CHAPTER OF THE COMMON CUSTOMS TARIFF AND IN PARTICULAR RESIDUES RESULTING FROM THE EXTRACTION OF VEGETABLE OILS, WHICH COME UNDER HEADING NO 23.04 .
5 THUS THE QUESTION POSED COMES DOWN IN THE FIRST PLACE TO WHETHER THE TRUE CONSTRUCTION OF ARTICLE 14 OF REGULATION NO 120/67 IMPLIES THAT, FOR PRODUCTS COMING UNDER HEADING NO 23.02, THE METHOD OF PREPARATION EMPLOYED IS DECISIVE .
6 THE WORDS " WORKING OF CEREALS " IN THE DESCRIPTION IN HEADING 23.02 COVER, BY REASON OF THEIR GENERAL SCOPE, ALL POSSIBLE PROCESSES FOR WORKING CEREALS INCLUDING WET PROCESSES .
7 CONFIRMATION OF THIS STATEMENT IS FOUND IN REGULATION NO 1052 OF THE COUNCIL OF 23 JULY 1968, WHICH, IN THE ANNEX THERETO, CONTAINS A NOTE ON HEADING NO 11.01 PROVIDING THAT, IF A PROCESSED PRODUCT BASED ON MAIZE DOES NOT SATISFY THE REQUIRED CONDITIONS FOR CLASSIFICATION UNDER HEADING NO 11.01, IT IS TO BE CLASSIFIED UNDER TARIFF SUBHEADING NO 23.02 A ON THE BASIS OF ITS STARCH CONTENT, FROM WHICH IT IS CLEAR THAT THE CLASSIFICATION OF PRODUCTS UNDER THIS HEADING IS NOT IN PRINCIPLE DETERMINED ON THE BASIS OF THE PROCESS OF WORKING EMPLOYED .
8 MOREOVER IT APPEARS ALSO FROM ARTICLE 3 OF REGULATION NO 302 OF THE COUNCIL OF 18 FEBRUARY 1969, ACCORDING TO WHICH " CEREAL GERM, WHETHER MILLED OR NOT, SHALL IN ALL CASES FALL WITHIN TARIFF HEADING NO 11.02 ", THAT THE DRY OR WET PROCESS USED IN THE PREPARATION OF THESE PRODUCTS IS NOT DECISIVE FOR THE PURPOSE OF THEIR CLASSIFICATION IN THE COMMON CUSTOMS TARIFF .
9 THUS PRODUCTS OF THE TYPE OF THOSE REFERRED TO BY THE ORDER REFERRING THE MATTER ARE NOT EXCLUDED, BY REASON OF THE PROCESS OF WORKING EMPLOYED, FROM HEADING NO 23.02 .
10 NEXT IT IS NECESSARY TO CONSIDER WHETHER HEADING NO 23.04 REFERRING TO " OILCAKE AND OTHER RESIDUES ( EXCEPT DREGS ) RESULTING FROM THE EXTRACTION OF VEGETABLE OILS " MAY, WHERE APPROPRIATE, BE INTERPRETED AS APPLYING TO PRODUCTS OF THE KIND REFERRED TO .
11 IT APPEARS FROM THE CLEAR AND EXPRESS WORDS OF THE DESCRIPTION IN HEADING NO 23.04 OF THE COMMON CUSTOMS TARIFF THAT IT COVERS ONLY RESIDUES RESULTING FROM THE EXTRACTION OF VEGETABLE OILS .
12 IT CANNOT THEREFORE APPLY TO RESIDUES WHICH MAY RESULT FROM THE WORKING OF BASIC PRODUCTS OTHER THAN THAT CONSISTING IN THE EXTRACTION OF VEGETABLE OILS .
13 IT FOLLOWS FROM THE ABOVE THAT ARTICLE 14 OF REGULATION NO 120/67 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT TARIFF HEADING NO 23.02 MAKES NO DISTINCTION REGARDING THE PROCESS EMPLOYED IN WORKING CEREALS SINCE TARIFF HEADING NO 23.04 REFERS ONLY TO RESIDUES RESULTING FROM THE EXTRACTION OF VEGETABLE OILS .
QUESTION 2
14 THE SECOND QUESTION ASKS WHETHER ANY PROVISION OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY OR A REGULATION ADOPTED ON THE BASIS OF THIS TREATY AND IN PARTICULAR ONE OF THE EEC REGULATIONS REFERRED TO IN THE PRESENT ORDER ALLOWS THE COMPETENT NATIONAL AUTHORITY OF A MEMBER STATE TO AVAIL ITSELF, IN PARTICULAR FOR PURPOSES OF NATURAL JUSTICE, OF A PROVISION OF NATIONAL LAW TO EXEMPT THE IMPORTER FROM THE OBLIGATION TO PAY THE LEVY REFERRED TO IN ARTICLE 14 OF REGULATION NO 120/67/EEC ON THE IMPORT INTO THE COMMUNITY OF A PRODUCT COMING UNDER HEADING NO 23.02 OF THE COMMON CUSTOMS TARIFF REFERRED TO IN ANNEX A TO THE SAID REGULATION NO 120/67/EEC .
15 NEITHER REGULATION NO 120/67 NOR ANY OTHER PROVISIONS OF COMMUNITY LAW ENVISAGE THE POSSIBILITY OF THE NATIONAL AUTHORITIES OF A MEMBER STATE GRANTING EXEMPTION FROM THE OBLIGATION TO PAY THE LEVY .
16 SINCE, IN ACCORDANCE WITH ARTICLE 189 OF THE TREATY, THIS REGULATION HAS GENERAL APPLICATION AND IS BINDING IN ITS ENTIRETY, MEMBER STATES MAY NOT, IN THE ABSENCE OF A PROVISION OF COMMUNITY LAW TO THE CONTRARY, HAVE RECOURSE TO NATIONAL MEASURES CAPABLE OF MODIFYING ITS APPLICATION .
17 WHERE THE IMPORT OF AGRICULTURAL PRODUCTS SUBJECT TO THE LEVY SYSTEM INVOLVES THEIR BEING PUT INTO FREE CIRCULATION IN THE COMMUNITY, EXEMPTION FROM THE LEVY GRANTED BY A MEMBER STATE BY NATIONAL MEASURES IS CONTRARY TO THE DISTRIBUTION OF POWERS BETWEEN THE MEMBER STATES AND THE COMMUNITY .
18 THEREFORE IT MUST BE CONCLUDED THAT NO PROVISION OF THE TREATY OR OF THE RULES RELATING TO ITS APPLICATION ENVISAGES THE POSSIBILITY OF THE NATIONAL AUTHORITIES GRANTING EXEMPTION FROM THE LEVY PROVIDED FOR IN ARTICLE 14 OF REGULATION NO 120/67 IN CONNEXION WITH THE IMPORT INTO THE COMMUNITY OF PRODUCTS COMING UNDER HEADING NO 23.02 OF THE COMMON CUSTOMS TARIFF, DEFINED IN ANNEX A TO THAT REGULATION .
19 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY ORDER OF THAT COURT DATED 2 MAY 1972, HEREBY RULES :
1 . ARTICLE 14 OF REGULATION NO 120/67 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT TARIFF HEADING NO 23.02 MAKES NO DISTINCTION REGARDING THE PROCESS EMPLOYED IN WORKING CEREALS SINCE TARIFF HEADING NO 23.04 REFERS ONLY TO RESIDUES RESULTING FROM THE EXTRACTION OF VEGETABLE OILS;
2 . NO PROVISION OF THE TREATY OR OF THE RULES RELATING TO ITS APPLICATION ENVISAGES THE POSSIBILITY OF THE NATIONAL AUTHORITIES GRANTING EXEMPTION FROM THE LEVY PROVIDED FOR IN ARTICLE 14 OF REGULATION NO 120/67 IN CONNEXION WITH THE IMPORT INTO THE COMMUNITY OF PRODUCTS COMING UNDER HEADING NO 23.02 OF THE COMMON CUSTOMS TARIFF, DEFINED IN ANNEX A TO THAT REGULATION .
