1BY AN ORDER OF 29 SEPTEMBER 1977 WHICH WAS RECEIVED AT THE COURT ON 5 JANUARY 1978 THE FINANZGERICHT MUNSTER REFERRED TO THE COURT FOR A PRELIMINARY RULING , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , QUESTIONS RELATING IN PARTICULAR TO THE INTERPRETATION OF REGULATION NO 823/68 OF THE COUNCIL OF 28 JUNE 1968 DETERMINING THE GROUPS OF PRODUCTS AND THE SPECIAL PROVISIONS FOR CALCULATING LEVIES ON MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 199 ) AND REGULATION NO 1216/68 OF THE COMMISSION OF 9 AUGUST 1968 LAYING DOWN THE METHOD FOR DETERMINING THE LACTOSE CONTENT OF COMPOUND FEEDING-STUFFS IMPORTED FROM THIRD COUNTRIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 421 ) IN CONNEXION WITH THE APPLICATION OF SUBHEADINGS B I A 3 AND B I A 4 OF TARIFF HEADING 23.07 OF THE COMMON CUSTOMS TARIFF .
2IT APPEARS FROM THE ORDER MAKING THE REFERENCE THAT THE PLAINTIFF IN THE MAIN ACTION IMPORTED INTO GERMANY FROM THE NETHERLANDS BETWEEN JANUARY AND MARCH 1975 SEVERAL CONSIGNMENTS OF COMPOUND FEEDING-STUFFS UNDER TARIFF SUBHEADING 23.07 B I A .
WITH A VIEW TO PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS THE PLAINTIFF DECLARED THAT THE GOODS CAME UNDER SUBHEADING B I A 3 OF TARIFF HEADING 23.07 , DISTINGUISHED BY A MILK PRODUCT CONTENT BY WEIGHT OF NOT LESS THAN 50% BUT LESS THAN 75% .
3ON THE BASIS OF ARTICLE 11 ( 1 ) OF REGULATION NO 823/68 , ACCORDING TO WHICH ' ' THE MILK PRODUCT CONTENT OF PRODUCTS FALLING WITHIN TARIFF SUBHEADING NO EX 23.07 B SHALL BE DETERMINED BY APPLYING A COEFFICIENT OF 2 TO THE LACTOSE CONTENT PER 100 KG OF THE PRODUCT IN QUESTION ' ' , THE GERMAN CUSTOMS AUTHORITIES CLASSIFIED THE PRODUCT UNDER SUBHEADING B I A 4 OF HEADING 23.07 , DISTINGUISHED BY A MILK PRODUCT CONTENT BY WEIGHT OF NOT LESS THAN 75% AND SUBJECT TO A HIGHER MONETARY COMPENSATORY AMOUNT THAN PRODUCTS UNDER SUBHEADING B I A 3 .
4THE PLAINTIFF IN THE MAIN ACTION CHALLENGED THAT CLASSIFICATION , ARGUING THAT AS IT IS CONTAINED IN A REGULATION RELATING TO THE CALCULATION OF LEVIES ON PRODUCTS FROM THIRD COUNTRIES THE COEFFICIENT LAID DOWN BY REGULATION NO 823/68 IS NOT APPLICABLE TO INTRA-COMMUNITY TRADE .
IN ITS VIEW , AS THE METHOD OF CALCULATION LAID DOWN BY ARTICLE 11 OF REGULATION NO 823/68 IS NOT APPLICABLE , THE PRODUCT SHOULD BE CLASSIFIED HAVING REGARD TO ITS ACTUAL MILK PRODUCT CONTENT , WHICH IS LESS THAN 75% BY WEIGHT , AND THEREFORE ASSIGNED TO SUBHEADING 23.07 B I A 3 .
5IN ORDER TO RESOLVE THAT PROBLEM THE FINANZGERICHT ASKED FOUR QUESTIONS WORDED AS FOLLOWS :
1 . IS THE ' ' MILK PRODUCT CONTENT ' ' WHICH RESULTS FROM THE APPLICATION OF ARTICLE 11 ( 1 ) OF REGULATION ( EEC ) NO 823/68 OF THE COUNCIL OF 28 JUNE 1968 AND OF ARTICLE 1 OF REGULATION ( EEC ) NO 1216/68 OF THE COMMISSION OF 9 AUGUST 1968 DECISIVE WITH REGARD TO THE AMOUNT OF THE MONETARY COMPENSATORY AMOUNTS WHICH IT WAS NECESSARY TO IMPOSE DURING THE PERIOD FROM JANUARY TO MARCH 1975 ON COMPOUND FEEDING- STUFFS COMING UNDER TARIFF SUBHEADINGS 23.07 B I A 3 OR 23.07 B I A 4 OF THE COMMON CUSTOMS TARIFF WHICH WERE IMPORTED FROM THE NETHERLANDS INTO THE FEDERAL REPUBLIC OF GERMANY?
2 . IF QUESTION 1 IS ANSWERED IN THE NEGATIVE :
IS THE ' ' ACTUAL ' ' MILK PRODUCT CONTENT DECISIVE?
3 . IF QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE :
DOES IT FOLLOW FROM COMMUNITY LAW WHICH METHOD IS TO BE USED FOR DETERMINING THE ACTUAL MILK PRODUCT CONTENT?
4 . WITHIN THE CONTEXT OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , IS THE TARIFF CLASSIFICATION MADE BY THE EXPORTING MEMBER STATE OF THE EUROPEAN COMMUNITIES BINDING UPON THE IMPORTING MEMBER STATE?
QUESTIONS 1 , 2 AND 3
6THE QUESTIONS CONTAINED IN THE ORDER MAKING THE REFERENCE SHOULD BE ANSWERED IN THE LIGHT OF THE PROVISIONS OF THE REGULATION WHICH FORMS THE BASIS FOR AND THE GENERAL FRAMEWORK OF THE SYSTEM OF COMPENSATORY AMOUNTS , NAMELY REGULATION 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 ).
7UNDER ARTICLE 1 ( 1 ) OF THAT REGULATION MEMBER STATES ARE TO BE AUTHORIZED TO :
' ' ( A ) CHARGE ON IMPORTS FROM MEMBER STATES AND THIRD COUNTRIES ,
( B ) GRANT ON EXPORTS TO MEMBER STATES AND THIRD COUNTRIES ,
COMPENSATORY AMOUNTS FOR THE PRODUCTS REFERRED TO BELOW UNDER THE CONDITIONS DETERMINED HEREINAFTER . ' '
THE SECOND PARAGRAPH OF THAT ARTICLE STATES THAT THOSE PROVISIONS ARE TO APPLY TO ' ' PRODUCTS COVERED BY INTERVENTION ARRANGEMENTS UNDER THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ' ' AND TO ' ' PRODUCTS WHOSE PRICE DEPENDS ON THE PRICE OF THE PRODUCTS REFERRED TO . . AND WHICH ARE GOVERNED BY THE COMMON ORGANIZATION OF MARKETS ' ' .
8THOSE PROVISIONS THUS INVOLVE A GENERAL REFERENCE TO THE RULES RELATING TO THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS AS REGARDS THE DETERMINATION OF THE ' ' PRODUCTS ' ' SUBJECT TO THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .
THEREFORE THE RULES GOVERNING THE DETERMINATION OF THE PRODUCTS SUBJECT TO THE SYSTEM OF COMPENSATORY AMOUNTS ARE TO BE SOUGHT IN THE PROVISIONS OF THE REGULATIONS ON THE ORGANIZATION OF THE VARIOUS AGRICULTURAL MARKETS AND , IN THE PRESENT INSTANCE , IN THE PROVISIONS CONCERNING THE ORGANIZATION OF THE MARKET FOR MILK , GIVEN THAT THE PRODUCTS IN QUESTION ARE DESIGNATED ACCORDING TO THE HEADINGS AND SUBHEADINGS OF THE COMMON CUSTOMS TARIFF TO WHICH REFERENCE IS MADE BOTH BY THE AGRICULTURAL REGULATIONS AND BY THE REGULATIONS FIXING THE MONETARY COMPENSATORY AMOUNTS , SUCH AS COMMISSION REGULATION NO 539/75 ( OFFICIAL JOURNAL L 57 , P . 2 ), WHICH WAS APPLICABLE AT THE TIME OF THE FACTS UNDERLYING THE MAIN ACTION .
9IN VIEW OF THAT GENERAL REFERENCE NO EXCEPTION CAN BE MADE IN RESPECT OF THE APPLICATION , TO A PARTICULAR PRODUCT , OF A SPECIFIC RULE RELATING TO CLASSIFICATION , SUCH AS THAT CONTAINED IN ARTICLE 11 OF REGULATION NO 823/68 , OR OF REGULATION NO 1216/68 OF THE COMMISSION .
SUCH AN EXCEPTION CANNOT BE JUSTIFIED BY THE ARGUMENT THAT THE AFORESAID PROVISIONS WERE INTRODUCED FOR THE SOLE PURPOSE OF REGULATING TRADE WITH THIRD COUNTRIES , AS THE PARTICULAR OBJECT OF THE REFERENCE IN ARTICLE 1 OF REGULATION NO 974/71 IS TO RENDER APPLICABLE TO THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS ALL THE DETERMINING FACTORS RELATING TO THE PRODUCTS IN QUESTION , INCLUDING THOSE WHICH WERE LAID DOWN IN RELATION TO THE EXTERNAL TRADE OF THE COMMUNITY , SINCE THOSE PROVISIONS FORM AN INTEGRAL PART OF THE ' ' COMMON ORGANIZATIONS OF THE MARKET ' ' REFERRED TO BY THE AFORESAID REGULATION .
10THE ARGUMENT DERIVED BY THE PLAINTIFF IN THE MAIN ACTION FROM WHAT IT REGARDS AS THE PROTECTIVE NATURE OF THE COEFFICIENT LAID DOWN BY ARTICLE 11 OF REGULATION NO 823/68 MUST ALSO BE REJECTED AS , ACCORDING TO THE SIXTH RECITAL IN THE PREAMBLE TO THAT REGULATION , THE ONLY AIM OF THE COEFFICIENT IS TO EMPHASIZE THE PROPORTION , IN COMPOUND FEEDING-STUFFS CONSISTING OF CEREALS AND MILK PRODUCTS , OF MILK INGREDIENTS BECAUSE THEY ' ' HAVE A MUCH GREATER EFFECT ON PRICE FORMATION THAN CEREAL INGREDIENTS ' ' .
11NOR , FINALLY , CAN ANY ARGUMENT BE DERIVED FROM THE PROVISIONS AND STRUCTURE OF COMMISSION REGULATION NO 1463/73 OF 30 MAY 1973 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL L 146 , P . 1 ) SINCE THAT REGULATION , IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 6 OF REGULATION NO 974/71 ON WHICH IT IS BASED , PRINCIPALLY LAYS DOWN THE DETAILED FINANCIAL AND ADMINISTRATIVE RULES FOR THE APPLICATION OF THE SYSTEM OF COMPENSATORY AMOUNTS .
IN THOSE CIRCUMSTANCES THAT REGULATION WAS NOT REQUIRED TO RESTATE THE PROVISIONS OF ARTICLE 1 OF REGULATION NO 974/71 WITH REGARD TO THE DETERMINATION OF THE PRODUCTS SUBJECT TO MONETARY COMPENSATORY AMOUNTS AND THEIR CLASSIFICATION IN THE HEADINGS OF THE COMMON CUSTOMS TARIFF .
THUS IT APPEARS THAT THE PURPOSE OF ARTICLE 6 OF REGULATION NO 1463/73 ON WHICH THE PLAINTIFF IN THE MAIN ACTION RELIES IS MERELY TO LINK THE PAYMENT OF MONETARY COMPENSATORY AMOUNTS TO THE OTHER OPERATIONS CARRIED OUT IN TRADE WITH THIRD COUNTRIES AT THE FRONTIER PURSUANT TO THE CUSTOMS TARIFF AND THE AGRICULTURAL RULES , WHILE ARTICLES 7 TO 15 PROVIDE , IN RESPECT OF INTRA- COMMUNITY TRADE , A CERTAIN NUMBER OF SPECIFIC PROVISIONS OF A FINANCIAL OR ADMINISTRATIVE NATURE WHICH HAVE NO BEARING ON THE CLASSIFICATION OF GOODS FOR THE PURPOSE OF THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS .
CONSEQUENTLY , NO ARGUMENT MAY BE DERIVED FROM AN ALLEGED INSUFFICIENCY IN REGULATION NO 1463/73 AS , BY VIRTUE OF THE REFERENCE BY ARTICLE 1 OF THE BASIC REGULATION NO 974/71 TO THE COMMON ORGANIZATIONS OF THE MARKET AND THE REFERENCE BY THE LATTER TO THE HEADINGS OF THE COMMON CUSTOMS TARIFF , A COMPLETE LEGAL FRAMEWORK IS ESTABLISHED WHICH ENABLES THE CLASSIFICATION OF GOODS FOR THE PURPOSES OF THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS TO BE DETERMINED .
12SUPPORT MAY BE FOUND FOR THESE CONCLUSIONS IN THE FACT THAT , IN THE ABSENCE OF ANY EXPRESS PROVISION , IT WOULD BE INAPPROPRIATE FOR THE HEADINGS OF THE COMMON CUSTOMS TARIFF TO BE APPLIED IN DIFFERENT WAYS TO THE SAME PRODUCT DEPENDING ON WHETHER THEY ARE USED FOR THE CLASSIFICATION THEREOF IN CONNEXION WITH THE LEVYING OF CUSTOMS DUTIES , THE APPLICATION OF THE SYSTEM OF THE COMMON ORGANIZATIONS OF THE MARKET OR THE APPLICATION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS .
13THE ANSWER TO THE FIRST QUESTION SHOULD BE THAT THE METHOD OF CALCULATING THE ' ' MILK PRODUCT ' ' CONTENT WHICH RESULTS FROM THE APPLICATION OF ARTICLE 11 ( 1 ) OF REGULATION NO 823/68 OF THE COUNCIL IS DECISIVE WITH REGARD TO THE AMOUNT OF THE MONETARY COMPENSATORY AMOUNTS WHICH MUST BE CHARGED ON COMPOUND FEEDING-STUFFS COMING UNDER TARIFF SUBHEADINGS 23.07 B I A 3 OR 23.07 B I A 4 OF THE COMMON CUSTOMS TARIFF WHICH WERE IMPORTED FROM THE NETHERLANDS INTO THE FEDERAL REPUBLIC OF GERMANY DURING THE PERIOD FROM JANUARY TO MARCH 1975 .
14IN THESE CIRCUMSTANCES IT IS NOT NECESSARY TO REPLY TO THE SECOND AND THIRD QUESTIONS .
THE FOURTH QUESTION
15THE FOURTH QUESTION ASKS WHETHER , WITHIN THE CONTEXT OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , THE TARIFF CLASSIFICATION MADE BY THE EXPORTING MEMBER STATE IS BINDING UPON THE IMPORTING MEMBER STATE .
IT APPEARS FROM THE FILE ON THE CASE THAT THAT QUESTION WAS RAISED IN VIEW OF THE FACT THAT , ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION , THE GOODS IN QUESTION , WHICH ORIGINATED IN THE NETHERLANDS , WERE CLASSIFIED BY THE NETHERLANDS AUTHORITIES UNDER TARIFF SUBHEADING 23.07 B I A 3 IN CONNEXION WITH THE GRANTING OF COMPENSATORY AMOUNTS ON EXPORTATION , WHILE THE GERMAN CUSTOMS AUTHORITIES HOLD THAT THEY COME UNDER SUBHEADING 23.07 B I A 4 .
16ON THE BASIS OF COMMUNITY LAW AS APPLICABLE AT THE TIME OF THE DISPUTE THERE WAS NO OBLIGATION ON THE RELEVANT AUTHORITIES OF ONE MEMBER STATE TO ACCEPT A TARIFF CLASSIFICATION DECISION MADE IN RESPECT OF A GIVEN PRODUCT IN ANOTHER MEMBER STATE .
IN THOSE CIRCUMSTANCES THE CUSTOMS AUTHORITIES OF THE IMPORTING COUNTRY WERE FREE TO DETERMINE THE CLASSIFICATION OF A PRODUCT IF THEY CONSIDERED THAT IN THE EXPORTING COUNTRY THE CLASSIFICATION OF THE PRODUCT WAS NOT IN CONFORMITY WITH THE RELEVANT COMMUNITY PROVISIONS .
17THE ANSWER TO THE FOURTH QUESTION SHOULD THEREFORE BE THAT WITHIN THE CONTEXT OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , THE TARIFF CLASSIFICATION MADE BY THE EXPORTING MEMBER STATE WAS NOT BINDING UPON THE IMPORTING MEMBER STATE AT THE TIME OF THE DISPUTE .
COSTS
18THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
AS 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 FINANZGERICHT MUNSTER , 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 MUNSTER BY ORDER OF 29 SEPTEMBER 1977 , HEREBY RULES :
1 . THE METHOD OF CALCULATING THE ' ' MILK PRODUCT ' ' CONTENT WHICH RESULTS FROM THE APPLICATION OF ARTICLE 11 ( 1 ) OF REGULATION NO 823/68 OF THE COUNCIL OF 28 JUNE 1968 DETERMINING THE GROUPS OF PRODUCTS AND THE SPECIAL PROVISIONS FOR CALCULATING LEVIES ON MILK AND MILK PRODUCTS IS DECISIVE WITH REGARD TO THE AMOUNT OF THE MONETARY COMPENSATORY AMOUNTS WHICH MUST BE CHARGED ON COMPOUND FEEDING-STUFFS COMING UNDER TARIFF SUBHEADINGS 23.07 B I A 3 OR 23.07 B I A 4 OF THE COMMON CUSTOMS TARIFF WHICH WERE IMPORTED FROM THE NETHERLANDS INTO THE FEDERAL REPUBLIC OF GERMANY DURING THE PERIOD FROM JANUARY TO MARCH 1975 .
2 . WITHIN THE CONTEXT OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS , THE TARIFF CLASSIFICATION MADE BY THE EXPORTING MEMBER STATE WAS NOT BINDING UPON THE IMPORTING MEMBER STATE AT THE TIME OF THE DISPUTE .
