Hauptzollamt Krefeld v Maizena GmbH (5/82)

I —Facts and procedure

Regulation No 120/67/EEC of the Council of 13 June 1967 on the common organization of the market in cereals (Official Journal, English Special Edition 1967, p. 33) provided for a system of refunds for maize used in the manufacture of starch.In Article 1 (1) of Regulation No 371/67/EEC of 25 July 1967 (Official Journal, English Special Edition 1967, p. 219) the Council provided that as from 1 July 1967 the Member States were to grant a production refund on maize intended for the manufacture of starch equal to the difference per 100 kg between the threshold price of that product and 6.80 units of account. The lauer figure was the supply price of maize guaranteed to Community producers of starch in order to ensure their competitiveness in relation to competitors in nonmember countries and manufacturers of substitute products.Regulation (EEC) No 1060/68 of the Commission of 24 July 1968 (Official Journal, English Special Edition 1968 (II), p. 352) introduced a system of advance payment of the refund. Anide 1 thereof provides that the Member State responsible for granting the production refund for cereals used by the brewing industry or for the manufacture of starch is to advance the refund to the manufacturer in an amount not exceeding the difference, per 100 kg of cereals, between the threshold price at the stan of the marketing year and 6.80 units of account, if the manufacturer applies for such advance and furnishes proof that the cereals in question are on his premises or under official supervision. The regulation contains, inter alia, a provision which does not merely govern the grant of an advance, but deals with the calculation of the refund itself. That provision is Article 3, according to which “the production refund shall be paid to the manufacturer, account being taken of the threshold price for the cereal valid for the month of its processing, within 30 days from the date on which he furnishes proof that the cereal has been processed or, in the case of maize groats or meal, that they have been used in the brewery”.Nevertheless, even after Regulation No 1060/68 had come into effect, the German authorities continued for several years to calculate the refund on the basis of the rates in force on the day of receipt of the request for official supervision, as required by a notice issued by the Federal Minister for Food, Agriculture and Forestry on 22 December 1967.As has already been seen, the amount of the refund corresponds to the difference between the threshold price and the supply price of the cereal and it therefore varies in keeping with changes in those prices.In July 1974 the threshold price for maize was 107.45 units of account per tonne and the supply price was 68.00 units of account per tonne, resulting in a refund of 39.45 uniu of account (equal to DM 144.39) per tonne.The refund applicable from 1 August 1972 was to be calculated on the basis of a threshold price of 106.60 units of account per tonne, as a result of the combined provisions of Regulation (EEC) No 1125/74 of the Council of 29 April 1974 (Official Journal 1974, L 128, p. 12) and Regulation (EEC) No 1427/74 of the Council of 4 June 1974 (Official Journal 1974, L 151, p. 1), and a supply price of 82.00 units of account per tonne, as a result of Regulation (EEC) No 1132/74 of the Council of 29 April 1974 (Official Journal 1974, L 128, p. 24).The difference between those two prices was 24.60 units of account (DM 90.04) per tonne.By a notice dated 9 July 1974, published in the Bundesanzeiger [Federal Gazette] of 10 July 1974, relating to production refunds for maize, the Federal Minister for Food, Agriculture and Forestry stated that, for maize placed under supervision in the period from 11 to 31 July 1974 and not processed into starch by that date at the latest, the refund, fixed by virtue of the first sentence of paragraph VII (2) of the notice of 22 December 1967 “on the basis of the rate in force on the day of the request for official supervision”, was reduced by DM 51.24 per tonne. That reduction corresponds more or less to the reduction required to achieve the refund laid down by the Community regulations from 1 August 1974. The notice dated 9 July 1974 also provided, in paragraph 2, that the refund should initially take the form of an advance and that the right to a refund arose at the time of processing.In July 1974 Maizena received a refund of DM 144.39 per tonne for a quantity of 63172.11 tonnes of maize placed under customs supervision but not yet processed. It processed the maize after 31 July 1974 within the time-limit of 90 days provided for in Article 2 (3) of Regulation No 1060/68.As a result of a check carried out at Maizena's warehouses, the Hauptzollamt [Principal Customs Office] Krefeld determined that 31190.025 tonnes of maize, being part of the quantity referred to above, had been placed under customs supervision in the period from 11 to 31 July 1974.By a decision dated 12 September 1974, based on the notice of 9 July 1974, the Hauptzollamt therefore requested Maizena to repay DM 51.24 per tonne. (It is clear that this figure is calculated by taking into account the threshold price in force until 31 July 1974, whereas if account had been taken of the threshold price in force in the month of processing the figure would have been DM 54.35. But this is of no importance in the present case because the Bundesfinanzhofs question relates only to the effects of changes in the supply price).Maizena objected to that decision and, after its objection had been rejected, commenced proceedings against the Hauptzollamt before the Finanzgericht [Finance Court] Düsseldorf. The case was brought on appeal before the Bundesfinanzhof, which by order of 24 November 1981 referred the following question to the Court of Justice:How was the production refund to be calculated for maize which was placed under customs supervision before 1 August 1974 but was only afterwards processed into starch, within the time-limit laid down for processing?The order making the reference was lodged at the Registry of the Court of Justice on 7 January 1982.In accordance with Article 20 of the Protocol on the Statute of the Court of Justice written observations were submitted by Maizena, represented by W. Kleinmann of Messrs. Gleiss, Luu, Hootz, Hirsch and Partners, Rechtsanwälte, Stuttgart, and by the Commission of the European Communities, represented by Jörn Sack, a member of its Legal Department, acting as Agent.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.By order of 19 May 1982 the Court also decided to assign the case to the First Chamber pursuant to Article 95 (1) and (2) of the Rules of Procedure.