1.Wünsche emphasizes, recalling the factual details of the case, that both practice and expert opinion militate in favour of its argument that the preparatory mixture “barley flour, other” in question constitutes by itself the product classified under tariff heading 11.02 because it has a starch content which exceeds 45% by weight and an ash content not exceeding 3% Dy weight.Furthermore, it observes that by adopting Regulations Nos 661/72 and 1121/72, which were applicable at the time of exportation, the Commission excluded residues resulting from the working of cereals, referred to under heading 23.02 of the Common Customs Tariff as ingredients of compound feeding-stuffs, in respect of which refunds may be granted, although such products are also covered by Annex A to Regulation No 120/68 of the Council and, accordingly, qualify, in principle, for a refund.Wünsche points out that in substance the first question seeks to ascertain whether the method by which the cereal is worked or processed is decisive in connection with the classification for tariff purposes of the products resulting therefrom. It takes the view, in that regard, that, according- to the consistent case-law of the Court, such processes have no bearing on the rate of duty charged on goods or on their classification for tariff purposes. It observes in particular that in Case 80/72 (Koninklijke Lassiefabrieken v Hoofdproduktschap voor Akkerbouwprodukten [1973] ECR 635) the Court referred to a note in the annex to Regulation No 1052/68 which states that:“Inclusion under this heading [headings 11.01 and 11.02] is subject to the condition that the product in question has a starch content exceeding 45% and an ash content not exceeding ... 3% for products based on barley ...” and concluded, in the undertaking's opinion, that the crucial factor was the starch and ash content of the product in question. It adds that the Explanatory Notes to the Brussels Nomenclature lead to the same conclusion.According to Wünsche, it must be borne in mind that barley flours are generally obtained by sifting residues from the production of hulled barley, that such meals are milled products arising from hulling and not from grinding and that consequently the production of barley flour by hulling is normal practice. Thus, it is also possible to sute that dust from the hulling of barley or a preparatory mixture containing dust from the hulling of barley cannot come within tariff heading 23.02 if the starch content is in excess of 45% and the ash content is below 3%.Wünsche points out that the second question seeks to ascertain whether all the cereal ingredients contained in the feeding-stuff in question must be considered together, apart from the preparatory mixture called “barley flour, other”. In that connection, it maintains that, for the exporter, only those types of product which are in existence at the time of manufacture and are added at that time may form the subject-matter of a declaration on the composition of the feeding-stuff and that the different types of product used in its manufacture must be declared separately, broken down “by tariff headings” (Article 2 (1) of Regulation No 1913/69). Therefore, in reply to the second question, it proposes the following answer:“The proportion of cereal products used in the composition of compound feeding-stuffs, within the meaning of Regulations Nos 661/72 and 1121/72, must be determined not on the basis of all the ingredients contained in the compound feeding-stuff, in the form which it takes after the working or processing of the cereals, but by reference to the products — broken down by tariff headings — which are already in existence at the time of manufacture and are subsequently used and applied at that time as specific ingredients of the compound feeding-stuff.”On the basis of those observations, Wünsche also replies to the third question by maintaining that a cereal product, within the meaning of the said regulations, may also be derived from a preparatory mixture of milled barley and dust from the hulling of barley, in so far as it was already in existence at the time when the compound feeding-stuff was manufactured, fell at that stage within tariff heading 11.01 or 11.02 and was subsequently actually used in the manufacture of the compound feeding-stuff. Composite products may also be regarded as cereal products provided that their starch content exceeds 45% by weight and their ash content is below 3%. Furthermore, Wünsche argues that it was under no obligation to declare separately, broken down by tariff headings (Article 2 (1) of Regulation No 1913/69), the different ingredients of the preparatory mixture.In the alternative, it replies to the fourth question along the same lines, arguing that if the dust from hulling is added prior to the manufacture of the compound feeding-stuff, the mixture should be classified on the basis of its starch and ash content and the right to a refund should be assessed by reference to that mixture.The plaintiff maintains that, unlike the Bundesfinanzhof, which stated that it had proceeded on the assumption that Regulations Nos 661/72 and 1121/72 laying down that only the products within Chapter 10 and tariff headings 11.01 and 11.02 must be regarded as cereal-based compound feeding-stuffs qualifying for refunds were in conformity with Regulation No 968/68, in particular Article 7 (1) thereof, it is convinced that the ingredients of compound feeding-stuffs must be accorded preferential treatment where they qualify, in principle, for refunds and have actually been used in the manufacture of compound feeding-stuffs. It observes that the Commission was not empowered, contrary to the express terms of Article 7 (1) of Regulation No 968/68, to restrict that possibility and to withhold refunds in respect of residues derived from the processing of the cereals classified under tariff heading 23.02 also referred to in Annex A to Regulation No 120/68.It points out that, most important of all, the Commission was not entitled to restrict the scope of Article 7 (1) of Regulation No 968/68 of the Council simply through the recitals in the preambles to Regulations Nos 1913/69, 661/72 and 1121/72 and that it was no more justified in restricting the concept of cereal products qualifying for refunds merely by means of a footnote to Regulations Nos 661/72 and 1121/72.For all those reasons, the plaintiff considers that the products within tariff heading 23.02 must, in so far as they have actually been used in the manufacture of compound feeding-stuffs, be accorded the status of ingredients of cereals which qualify for the refunds in respect of the products within tariff heading 23.02. It takes the view that the note set out in the annex to Regulations Nos 661/72 and 1121/72 lacks validity in so far as it is an obstacle to the grant of refunds.
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