1 BY ORDER OF 25 JUNE 1980 WHICH WAS RECEIVED AT THE COURT ON 9 JULY 1980 THE HESSISCHES FINANZGERICHT ( FINANCE COURT , HESSE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS CONCERNING THE INTERPRETATION OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKETS IN CEREALS ( JOURNAL OFFICIEL 1962 , P . 933 ) AND REGULATION NO 141/64 OF THE COUNCIL OF 21 OCTOBER 1964 ON THE RULES APPLYING TO PROCESSED PRODUCTS DERIVED FROM RICE AND OTHER CEREALS ( JOURNAL OFFICIEL 1964 , P . 2666 ).
2 THE MAIN ACTION CONCERNS THE EXPORT REFUNDS PAYABLE IN RESPECT OF A PRODUCT WHICH THE EXPORTER HAD DESCRIBED AS ' ' SORGHUM FLAKES WITH AN ASH-CONTENT OF 2% OR LESS BY WEIGHT ON THE DRY PRODUCT ' ' . ON THE BASIS OF THAT DESCRIPTION THE REFUND SHOULD BE CALCULATED ON THE BASIS OF A PROCESSING COEFFICIENT OF 180/100 , MEANING THAT A QUANTITY OF 180 KG OF SORGHUM WAS REQUIRED IN ORDER TO PRODUCE 100 KG OF FLAKES .
3 ON THE BASIS OF AN EXPERT ' S ANALYSIS THE GERMAN AGRICULTURAL INTERVENTION AGENCY RESPONSIBLE FOR GRANTING THE REFUNDS IN QUESTION FOUND THAT THE EXPORTED GOODS WERE MADE FROM SORGHUM GRAINS WHICH HAD NOT BEEN HULLED . IT THEREFORE TOOK THE VIEW THAT THE REFUND SHOULD BE CALCULATED ON THE BASIS OF A PROCESSING COEFFICIENT OF 102/100 ( FOR ROLLED GRAINS ) INSTEAD OF 180/100 ( FOR FLAKES ). IN SO DOING IT RELIED ON EXPLANATORY NOTE ( 6 ) ON SUBHEADING 11.02 OF THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , ACCORDING TO WHICH FLAKES MUST BE MADE FROM HULLED GRAINS .
4 IT WAS NOT CONTESTED BY THE EXPORTER THAT THE SORGHUM GRAINS USED TO MAKE THE GOODS EXPORTED HAD NOT BEEN HULLED BUT MERELY SUBJECTED TO STEAM-TREATMENT AND ROLLED OUT . HOWEVER , IT MAINTAINED THAT ARTICLE 5 ( 1 ) OF REGULATION NO 141/64 , WHICH LAYS DOWN THE PROCESSING COEFFICIENTS APPLICABLE IN RESPECT OF FLAKES , DID NOT SUBJECT THE APPLICATION OF THE COEFFICIENT OF 180/100 TO ANY CONDITION OTHER THAN THAT CONCERNING THE ASH-CONTENT , AND THAT THAT CONDITION WAS SATISFIED IN THE CASE IN POINT .
5 IN ORDER TO BE ABLE TO RESOLVE THE PROBLEMS THUS RAISED AS TO THE INTERPRETATION OF COMMUNITY RULES THE FINANZGERICHT REFERRED THE FOLLOWING FOUR QUESTIONS TO THE COURT OF JUSTICE :
' ' ( A ) DO ' FLAKES OF SORGHUM ' ( FLOCKEN VON SORGHUM ) ( ARTICLE 1 , POINT ( D ), OF REGULATION ( EEC ) NO 19 IN CONJUNCTION WITH THE ANNEX THERETO ) OF THE TYPE REFERRED TO IN ARTICLE 5 ( 1 ) B ( B ) OF REGULATION ( EEC ) NO 141/64 (( HAVING AN ASH-CONTENT OF ) 2% OR LESS BY WEIGHT ON THE DRY PRODUCT ) DIFFER FROM SORGHUM FLAKES ( SORGHUMFLOCKEN ) OF THE TYPE REFERRED TO IN ARTICLE 5 ( 1 ) B ( C ) OF REGULATION ( EEC ) NO 141/64 MERELY BY THEIR ASH-CONTENT OR SHOULD FLAKED SORGHUM ( HAVING AN ASH-CONTENT OF ) 2% OR LESS BY WEIGHT ALSO BE HULLED?
( B)IN THE CONTEXT OF QUESTION ( A ) WAS IT POSSIBLE FOR THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , WHICH MADE THE CHARACTER OF ' FLAKED ' DEPENDENT ON HULLING ( EXPLANATORY NOTE NO 62 TO TARIFF HEADING NO 11.02 ), TO BE USED AS AN AID TO INTERPRETATION IN RELATION TO EXPORTS IN THE YEAR 1965?
( C)DID THE TERM ' HULLING ' AS USED IN NOTE 2 TO TARIFF HEADING NO 11.02 MEAN , EVEN IN RELATION TO SORGHUM WHICH IS A SO-CALLED NAKED CEREAL ( NACKTGETREIDE ) THAT THE PERICARP INCLUDING THE ALEURON CELLS SHOULD HAVE BEEN REMOVED IN SUCH A WAY THAT THE FLOURY KERNEL WAS ' GENERALLY ' VISIBLE? DID ' GENERALLY ' MEAN : FOR THE MOST PART ( MORE THAN 50% ) OR ALMOST ENTIRELY ( MORE THAN 75%)?
( D)(BY WAY OF A COMPLEMENT TO THE ABOVE OR - IF QUESTIONS ( A ) TO ( C ) ARE ANSWERED IN THE NEGATIVE - ALONE ). IN INTERPRETING THE CONCEPT OF ' FLAKES ' SHOULD RECOURSE BE HAD TO THE PENULTIMATE PARAGRAPH IN THE PREAMBLES TO REGULATION ( EEC ) NO 55 AND REGULATION ( EEC ) NO 141/64 , THE FIRST PARAGRAPH OF ARTICLE 2 OF REGULATION ( EEC ) NO 92 AND THE FIRST PARAGRAPH OF ARTICLE 15 OF REGULATION ( EEC ) NO 141/64 , ACCORDING TO WHICH REFUNDS FOR PROCESSED PRODUCTS WERE TO BE CALCULATED ON THE BASIS OF THE LEVY APPLICABLE IN RESPECT OF THE BASIC PRODUCTS REQUIRED FOR THEIR MANUFACTURE?
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6 THE FIRST , THIRD AND FOURTH QUESTIONS CONCERN THE INTERPRETATION OF THE WORDS ' ' FLAKES OF SORGHUM ' ' , WHILST THE METHOD OF INTERPRETATION TO BE USED FORMS THE SUBJECT-MATTER OF THE SECOND QUESTION , WHICH IT IS APPROPRIATE TO EXAMINE FIRST .
SECOND QUESTION ( METHOD OF INTERPRETATION )
7 ARTICLE 5 OF REGULATION NO 141/64 REFERS , FOR A DESCRIPTION OF THE PRODUCTS TO WHICH IT APPLIES , TO SUBHEADING 11.02 OF THE COMMON CUSTOMS TARIFF . SIMILARLY , IN ARTICLE 1 OF REGULATION NO 19 , WHICH WAS THE BASIC REGULATION FOR THE CEREALS SECTOR AT THE TIME IN QUESTION , AND IN THE ANNEX TO THAT REGULATION , THE PRODUCTS SUBJECT TO THE COMMON ORGANIZATION OF THE MARKETS ARE DEFINED BY REFERENCE TO THE HEADINGS OF THE COMMON CUSTOMS TARIFF . IT FOLLOWS THAT THE TERMS USED BY THOSE TWO REGULATIONS TO DEFINE AND DISTINGUISH THE VARIOUS PRODUCTS PROCESSED FROM CEREALS HAVE THE SAME MEANING AS THOSE WHICH APPEAR IN THE COMMON CUSTOMS TARIFF .
8 THE COURT HAS ALREADY HELD , IN ITS JUDGMENT OF 15 DECEMBER 1971 ( CASE 21/71 BRODERSEN ( 1971 ) ECR 1069 ) THAT IN ORDER TO DEFINE THE CONCEPTS USED IN THE ANNEX TO REGULATION NO 19 , IN THE ABSENCE OF EXPLANATORY NOTES ATTACHING TO THE COMMON CUSTOMS TARIFF AND IN THE LIGHT OF THE FACT THAT THE TARIFF HEADING IN QUESTION EXACTLY REPRODUCED A HEADING IN THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , IT WAS NECESSARY TO REFER TO THE EXPLANATORY NOTES TO THAT NOMENCLATURE . IN ITS JUDGMENT OF 8 APRIL 1976 ( CASE 106/75 MERKUR-AUSSENHANDEL ( 1976 ) ECR 531 ) THE COURT DECIDED ON THE BASIS OF THOSE EXPLANATORY NOTES THAT FLAKES ARE DISTINGUISHED BY THE FACT THAT THEY ARE PRODUCED BY HULLING , WHICH CONSISTS OF REMOVING FROM THE GRAINS A PORTION OF THEIR HUSK .
9 THE NATIONAL COURT IS UNCERTAIN WHETHER TO FOLLOW THOSE DECISIONS FOR THREE REASONS .
10 IN THE FIRST PLACE , IT NOTES IN THE GROUNDS OF ITS ORDER THAT NO INTERPRETATION IS REQUIRED IF THE TERMS OF A PIECE OF LEGISLATION ARE SUFFICIENTLY CLEAR AND PRECISE . ARTICLE 5 ( 1 ) B ( B ) DOES NOT MAKE THE APPLICATION OF A PROCESSING COEFFICIENT OF 180/100 TO FLAKES OF CEREALS OTHER THAN BARLEY AND OATS SUBJECT TO ANY CONDITIONS OTHER THAN THAT THEIR ASH-CONTENT MUST NOT EXCEED 2% .
11 WHILST THE PROVISION IN QUESTION APPLIES TO FLAKES OF SORGHUM HAVING AN ASH-CONTENT OF NOT MORE THAN 2% BY WEIGHT , IT CONTAINS NO DEFINITION OF THE CONCEPT ' ' FLAKES ' ' . THAT CONCEPT MAY BE DEFINED ONLY BY REFERRING TO THE WORDS USED BOTH IN THE COMMON CUSTOMS TARIFF AND IN THE ANNEX TO REGULATION NO 19 , AS WELL AS IN ARTICLE 5 OF REGULATION NO 141/64 , TO DESCRIBE OTHER PRODUCTS PROCESSED FROM CEREALS , SUCH AS KIBBLED , ROLLED , PEARLED OR HULLED CEREAL .
12 IN THE SECOND PLACE , THE FINANZGERICHT HAS RESERVATIONS ABOUT RELYING ON THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE WHICH WERE NOT KNOWN AT THE TIME TO THOSE CONCERNED OF THE FEDERAL REPUBLIC OF GERMANY AND WHICH , MOREOVER , WERE AVAILABLE ONLY IN ENGLISH AND FRENCH .
13 HOWEVER , IT IS PERMISSIBLE FOR THE NATIONAL COURT TO HAVE RECOURSE IN INTERPRETING THE WORDING OF PROVISIONS OF COMMUNITY LAW TO COMMENTARIES ORIGINATING WITHIN THE CUSTOMS COOPERATION COUNCIL , WHOSE WORK HAS CONSTITUTED AN IMPORTANT FACTOR IN ESTABLISHING AND IMPLEMENTING THE COMMON CUSTOMS TARIFF . IT MUST BE NOTED , FURTHERMORE , THAT THE EXPLANATORY NOTES HAD BEEN PUBLISHED AT THE TIME OF THE FACTS IN QUESTION AND THAT THEY WERE AVAILABLE TO THOSE CONCERNED .
14 LASTLY , THE NATIONAL COURT ASKS WHETHER IT MAY BASE ITSELF ON THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE IN THE CASE OF EXPORTS CARRIED OUT IN 1965 , HAVING AGREED TO THE FACT THAT THE EXPLANATORY NOTES TO THE COMMON CUSTOMS TARIFF , WHICH COINCIDE LARGELY WITH THOSE ON THE NOMENCLATURE , WERE NOT PUBLISHED UNTIL LATER AND THE JUDGMENTS OF THE COURT WHICH REFER TO THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL WERE DELIVERED IN 1971 AND 1976 .
15 IT MUST BE REMEMBERED , HOWEVER , THAT THE CONCEPT ' ' FLAKES ' ' HAD ALREADY APPEARED IN THE COMMON CUSTOMS TARIFF AND IN THE AGRICULTURAL REGULATIONS APPLICABLE TO PRODUCTS PROCESSED FROM CEREALS AT THE TIME OF THE FACTS IN THE CASE IN POINT . THE FACT THAT THE CONCEPT WAS INTERPRETED BY THE COURT AFTER THE EVENTS IN QUESTION DOES NOT JUSTIFY THE INFERENCE THAT THE SAME CONCEPT MIGHT PREVIOUSLY HAVE HAD A DIFFERENT MEANING .
16 THE REPLY TO THE SECOND QUESTION MUST THEREFORE BE THAT IT IS PERMISSIBLE FOR THE NATIONAL COURT TO USE AS AN AID TO INTERPRETATION , IN RELATION TO EXPORTS CARRIED OUT IN 1965 , THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , ACCORDING TO WHICH THE CHARACTERISTIC OF FLAKES IS THAT THEY ARE NECESSARILY MADE FROM HULLED GRAIN .
THE FIRST , THIRD AND FOURTH QUESTIONS ( THE CONCEPT OF ' ' FLAKES ' ' )
17 IT FOLLOWS FROM THE FOREGOING THAT THE TERM ' ' FLAKES ' ' AS USED IN ARTICLE 5 ( 1 ) B ( B ) OF REGULATION NO 141/64 IS TO BE UNDERSTOOD AS IMPLYING THAT THE PRODUCT THUS DESIGNATED IS MADE FROM HULLED GRAIN .
18 THE FIRST QUESTION AND THE FIRST LIMB OF THE THIRD QUESTION ASK IN EFFECT IF THAT APPLIES ALSO IN THE CASE OF SORGHUM FLAKES , SORGHUM BEING A SO-CALLED ' ' NAKED ' ' CEREAL FROM WHICH THE BRACTS MAY BE REMOVED MERELY BY THRESHING OR WINNOWING , WHICH IS NOT SO IN THE CASE OF BRACTEIFEROUS CEREALS , THE BRACTS OF WHICH ADHERE STRONGLY TO THE GRAIN EVEN AFTER THRESHING OR WINNOWING .
19 THE PROCESS OF HULLING IS EXPLAINED IN EXPLANATORY NOTE ( 3 ) ON SUBHEADING 11.02 OF THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , ACCORDING TO WHICH HULLED GRAIN MUST HAVE HAD THE PERICARP WHOLLY OR PARTIALLY REMOVED . ALTHOUGH THE NOTE MAKES SPECIAL REFERENCE TO THE BRACTEIFEROUS VARIETIES OF BARLEY IT DOES NOT DRAW A DISTINCTION BETWEEN NAKED CEREALS AND BRACTEIFEROUS CEREALS .
20 THE EXPORTER , WHO IS THE PLAINTIFF IN THE MAIN ACTION , HAS CONTENDED THAT SUCH AN INTERPRETATION IS NOT ACCEPTABLE IN THE CASE OF SORGHUM BECAUSE REMOVING THE PERICARP WOULD BE DETRIMENTAL TO THE NUTRITIVE VALUE OF THE PRODUCT .
21 HOWEVER , IT SHOULD BE EMPHASIZED THAT THE FOOD-VALUE OF A PRODUCT IS MERELY ONE OF THE FACTORS WHICH MAY BE TAKEN INTO CONSIDERATION IN CLASSIFYING A PRODUCT IN A PARTICULAR HEADING OF THE COMMON CUSTOMS TARIFF . IN THE PRESENT INSTANCE THE PRODUCTS PROCESSED FROM CEREALS WHICH FORM THE SUBJECT-MATTER OF SUBHEADING 11.02 ARE IDENTIFIED , ACCORDING TO THE WORDING OF THAT HEADING AND THE EXPLANATORY NOTES THEREON , BY THE BASIC PRODUCTS FROM WHICH THEY ARE MADE AND BY THE TECHNICAL OPERATIONS TO WHICH THEY HAVE BEEN SUBJECTED .
22 THE SECOND LIMB OF THE THIRD QUESTION ASKS WHETHER , IN ORDER TO BE CONSIDERED AS HULLED , THE GRAINS MUST HAVE HAD THEIR PERICARP , INCLUDING THE ALEURON CELLS , REMOVED .
23 EXPLANATORY NOTE ( 3 ), CITED ABOVE , STATES THAT IN HULLED GRAIN THE PERICARP HAS BEEN ' ' WHOLLY OR PARTIALLY ' ' REMOVED : ' ' GENERALLY THE FLOURY KERNEL IS THEN VISIBLE ' ' .
24 THAT EXPLANATION INDICATES THAT THE HULLING PROCESS CONSISTS OF REMOVING THE PERICARP FROM THE GRAIN WHOLLY OR PARTIALLY , IN SUCH A WAY THAT IN MOST CASES THE WHOLE OR PARTIAL REMOVAL OF THE PERICARP ENTAILS THE REMOVAL , FROM A PORTION OF THE OUTSIDE OF THE GRAIN , OF THE INNER COVERING ( THE TESTA ) AND THE ALEURON CELLS , SO THAT PART OF THE FLOURY KERNEL IS REVEALED .
25 THE REPLY TO THE FIRST AND THIRD QUESTIONS MUST THEREFORE BE THAT ARTICLE 5 OF REGULATION NO 141/64 IS TO BE INTERPRETED AS MEANING THAT SORGHUM FLAKES ARE PRODUCED FROM HULLED SORGHUM GRAINS . THE GRAIN IS HULLED WHEN PART OR THE WHOLE OF THE PERICARP IS REMOVED SO THAT IN MOST CASES THE FLOURY KERNEL BECOMES PARTIALLY VISIBLE ON THE OUTSIDE OF THE GRAIN .
26 THAT INTERPRETATION IS BORNE OUT , MOREOVER , BY THE GENERAL LOGIC OF ARTICLE 5 OF REGULATION NO 141/64 . THERE CAN BE NO REASON FOR APPLYING A PROCESSING COEFFICIENT OF 180/100 , A RATE JUSTIFIED BY THE AMOUNT OF THE BASIC PRODUCT LOST IN THE COURSE OF PROCESSING IT INTO FLAKES , TO SORGHUM GRAIN WHICH HAS MERELY BEEN SUBJECTED TO STEAM-TREATMENT AND ROLLING .
27 IN THESE CIRCUMSTANCES THE FOURTH QUESTION PUT BY THE NATIONAL COURT IS REDUNDANT .
28 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THIS CASE IS , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHES FINANZGERICHT BY ORDER OF 25 JUNE 1980 , HEREBY RULES :
1 . IT IS PERMISSIBLE FOR THE COURTS TO USE AS AN AID TO INTERPRETATION , IN RELATION TO EXPORTS CARRIED OUT IN 1965 , THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , ACCORDING TO WHICH THE CHARACTERISTIC OF FLAKES IS THAT THEY ARE NECESSARILY MADE FROM HULLED GRAIN .
2.ARTICLE 5 OF REGULATION NO 141/64 IS TO BE INTERPRETED AS MEANING THAT SORGHUM FLAKES ARE PRODUCED FROM HULLED SORGHUM GRAIN . THE GRAIN IS HULLED WHEN PART OR THE WHOLE OF THE PERICARP IS REMOVED SO THAT IN MOST CASES THE FLOURY KERNEL BECOMES PARTIALLY VISIBLE ON THE OUTSIDE OF THE GRAIN .
