A —According to the Henck undertaking, the Bundesfinanzhof is not seeking the interpretation of the expression ‘kibbled maize grain’ but rather the application of Article 1 (d) of Regulation No 19/62 in this case. But questions of interpretation which are referred for a preliminary ruling may only be posed generally and in the abstract. The application of Community law to actual cases does not come within the jurisdiction of the Court under Article 177 of the Treaty.Moreover, the court making the reference, in wording its question, failed to take into consideration that Regulation No 19/62 was replaced from 1 July 1967 by Regulation No 120/67. Since the law applicable to the imports in question was that in force when the goods were imported, that is in 1964, the interpretation requested must solely inquire into what the contents of the Community law applicable were at that time. The question put by the German Court can therefore only be admitted in so far as it asks:‘What was the meaning of the expression “kibbled maize grain” within the meaning of Article 1 (d) of Regulation No 19/62 for the period from January to March 1964, having regard to the annex to that regulation?’These objections raise, according to the Henck undertaking, a problem which appears insignificant but which is in fact very important; that of an interpretation given by a court almost ten years after the dispute arose and which attributes to the applicable law a meaning which the parties could not have taken into consideration when the dispute emerged.The Henck undertaking points out in particular that because of the length of national proceedings and the relatively short duration of Community rules, which are often replaced and amended, the German courts are no longer able to follow the developments in Community legislation and case-law and are therefore no longer even in a position to ensure the certainty of the law in cases to come. Having made these remarks as to the meaning and significance in this respect of the judgments of the Court in Cases 72/69 and 74/69, it deals with the problem of ‘the retroactive effect of decisions made by courts’ which, although it does not arise as often as that of the retroactive effects of the law, is however not new. It puts forward many arguments on this subject based both on national practice and Community practice with regard to regulations and it claims that it follows from those, that the retroactive effect of legal provisions represents a quite exceptional and limited phenomenon. It concludes by recalling the need to avoid the application of the law in general and of Community law in particular injuring the legal protection of those subject to the law by weakening the certainty of the law in legal relationships.At the end of these observations, it summarizes its position in the matter as follows:— the Henck undertaking imported the product in question when Regulation No 1962 was in force;— the German customs authorities did not consider that this product came within the common organization of the agricultural market at the time when it was imported;— the German customs authorities changed their mind about the classification of that product after the latter had been marketed;— Henck undertaking had not been able to protect itself against the amendments made a posteriori to the tariff classification by the German customs authorities by applying in particular to the latter for a binding tariff assessment in accordance with Paragraph 23 of the German Customs Law, since such assessments are, according to the case-law of the Court, of no effect in the Community sphere;— in spite of the fact that at the time when the goods were imported the German customs authorities agreed with the plaintiff in the main action in classifying the goods in question under tariff heading 23.03 and in spite of the fact that it could not be foreseen that there would be a dispute with the customs authorities on this point, the plaintiff has now, after seven years, to accept a decision on the classification which was applicable at that time;— for these reasons, the Henck undertaking is of the opinion that the interpretation of Article 1 (d) of Regulation No 19/62 must now be sought exclusively on the basis of the sources of information and the means of interpretation at the disposal of the parties and the German customs authorities at the beginning of 1964. In other words, the interpretation of the abovementioned provisions of Community law must be sought by the Court of Justice by referring to the time when the product in question was imported.Subject to these observations, the Henck undertaking leaves it to the Court to determine the admissibility of the question which has been referred.Moreover it observes that it follows from the grounds of the order for reference that the essential subject-matter of the dispute concerns the distinction between tariff heading 11.02 and tariff heading 23.03. But tariff heading 23.03 was only put under the Common Customs Tariff by Regulation No 950/68 of the Council and therefore did not come within the common organization of the agricultural market either in 1964 or subsequently. The Court of Justice therefore has no jurisdiction in the present case to interpret it, since the power of interpretation given it by Article 177 of the Treaty only exists in respect of tariff headings which come within Community law.
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