B — · 14/71 · GlobalLawDB

B —The Commission of the European Communities recalls first of all that, of all the kinds of millet, ‘sorghum’ is a kind which is rich in starch and which according to its use and its processing, is very similar to maize and may sometimes be used as a substitute for the latter. Its use as a foodstuff is very limited in Europe; on the other hand, it is widely used for feedstuffs and starch manufacture. As in the case of maize, kibbled grain, groats, meal, flour and flakes may be obtained as primary products through dry-milling of the sorghum. Secondary products, which are used as animal feedstuffs and the composition of which varies according to the process which is used, especially pulps, glutens, flours etc., are the result of starch extraction. The Commission refers to the observations which it put forward in Case 12/71 for further considerations of a technological nature.With regard to the tarift, the Commission recalls that residues of starch manufacture within the meaning of heading 23.03 were not subject to the Common Customs Tariff when the goods in question were imported and points out that, as in the case of maize, experience shows in the case of sorghum, too, that of the various secondary products which are the result of starch manufacture, products which are rich in starch and have a relatively high value are often declared as ‘residues’ within the meaning of tariff heading 23.03 when they are imported. It deduces from this that tariff heading 11.02 applies not only to what are properly speaking primary products which are obtained from the dry milling of the cereals (in this case sorghum) but also to products which are added to residues within the meaning of heading 23.03 and are, as regards their value, their composition and their use, similar to genuine products which are the result of sorghum milling.It follows that true residues within the meaning of tariff heading 23.03 are products which are derived from a process which enables all the starch which can be obtained in an economically profitable way to be extracted from the raw material by modern techniques.Then tne Commission sets rortn its opinion on the concept of ‘kibbled millet grain’: it claims that the latter are broken or cut fragments which are the result of the rough grinding of the sorghum and which have the basic composition of that product.The Commission illustrates tne average composition of sorghum in contrast to other kinds of millet and maintains that the various starch, protein and fat contents pointed out by the Bundesfinanzhof are normal variations in the composition of millet and sorghum. According to their composition, the products in question therefore correspond to ‘kibbled millet grain’ and must be classified under tariff heading 11.02. On the one hand, the presence of fragments of unworked sorghum is no bar to that classification; on the other, the existence of lumps formed by the agglutination of particles of sorghum does not make that same classification impossible. It may occur that such a commodity no longer corresponds to the definition of ‘kibbled grain’ accepted by German law on feedstuffs; but the specific definition of kibbled grain laid down by the law of a single Member State is not necessarily suitable for re-enactment in the sphere concerning the whole of the Community. Moreover, the agglutination of the natural kibbled fragments may be explained by the action of moisture because of ineffective processing or storage. Such agglutination may also be caused by the disintegration of oil in the product which has been superficially degermed and which is therefore rich in fats. It claims that in none of these cases is there a process whereby residues of starch manufacture are produced within the meaning of tariff heading 23.03.Finally the Commission points out that where the kibbled grain is added to a residue or vice versa, when the resulting product is similar in its composition, use and fat content to normal kibbled grain, the fact that such mixing has taken place cannot in any way alter the classification of that product under tariff heading 11.02. It concludes as follows:‘A floury sorghum residue of the type indicated must be considered as “kibbled millet grain” which comes under tariff heading 11.02 and must therefore be subjected to the levy laid down in Article 5 (1) (g) of Regulation No 55. This product is described sufficiently by the information supplied by the Bundesfinanzhof. The maximum or minimum content in other constituents is not necessary in this case for the purposes of the distinction between the products in tariff heading 11.02 and residues within the meaning of tariff heading 23.03.’