37/88 · GlobalLawDB

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Judgment of the Court (Fourth Chamber)27 September 1989^noteIn Case 37/88REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court) Hamburg, for a preliminary ruling in the proceedings pending before that court betweenRheinkrone-Kraftfutterwerk Gebr. Hübers GmbH & Co. KG, Wesel,andHauptzollamt Hamburg-Jonas (Principal Customs Office, Hamburg-Jonas)THE COURT (Fourth Chamber)composed of: T. Koopmans, President of Chamber, C. N. Kakouris and M. Diez de Velasco, Judges,Advocate General: W. Van GervenRegistrar: B. Pastor, Administratorafter considering the observations submitted by— Rheinkrone-Kraftfutterwerk Gebr. Hübers GmbH & Co. KG, the applicant in the main proceedings, represented by Fritz Modest and Barbara Festge, of the Hamburg Bar,— the Commission of the European Communities, represented by its Legal Adviser Mr Dierk Booss, acting as Agent, assisted by Jean Imbach, a lawyer, and at the hearing by Hasso Prahl, acting as an expert,having regard to the Report for the Hearing and further to the hearing on 18 April 1989,after hearing the Opinion of the Advocate General delivered at the sitting on 25 May 1989,gives the following

Judgment

1By an order of 30 October 1987, which was received at the Court on 2 February 1988, the Finanzgericht Hamburg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions relating to the interpretation of Article 30(3) of Commission Regulation No 1371/81 of 19 May 1981 laying down detailed rules for the administrative application of monetary compensatory amounts (Official Journal 1981, L 138, p. 1), and the general principle of the protection of legitimate expectations.

2Those questions were raised in the course of proceedings between Rheinkrone-Kraftfutterwerk Gebr. Hübers GmbH & Co. KG, Wesel (hereinafter referred to as ‘Rheinkrone’), and the Hauptzollamt Hamburg-Jonas (hereinafter referred to as ‘the Hauptzollamt’).

3.Rheinkrone exported various consignments of wheat flour, composed of both wheat flour falling under subheading 11.01 A of the Common Customs Tariff, representing less than 90% by weight of the product in question, and wheat bran falling under subheading 23.02 A II of the Common Customs Tariff, representing between 10 and 20% by weight of the product in question. The dispute in the main proceedings relates to the question whether monetary compensatory amounts granted to Rheinkrone ought to have been fixed, in pursuance of Article 30(3) of Regulation No 1371/81, at the rate applicable to wheat flour, as the customs office initially decided, or at the lower rate applicable to wheat bran.

4Article 30(3) of Regulation No 1371/81 is worded as follows:‘Monetary compensatory amounts which may be granted on mixtures falling within Chapter 2, 10 or 11 of the Common Customs Tariff shall be determined as followed :(a) in mixtures where one of the components represents at least 90% by weight, the rate applicable to that component applies;(b) in other mixtures, the rate applicable shall be that of the component which results in the lowest monetary compensatory amount. In cases where one or more of the components are not eligible for monetary compensatory amounts, no monetary compensatory amount shall be granted for the mixtures’

5Taking the view that the dispute raised a problem concerning the interpretation of Community rules, the Finanzgericht Hamburg decided, pursuant to Article 177 of the EEC Treaty, to stay the proceedings until the Court had given a preliminary ruling on two questions. By an order of 30 June 1988, which was received at the Court on 11 July 1988, the Finanzgericht Hamburg withdrew the second preliminary question. The Court is therefore only called upon to decide the first question, which is as follows:‘Is Article 30(3) Regulation (EEC) No 1371/81 of 19 May 1981 (Official Journal 1981, L 138, p. 1) to be interpreted as meaning that the term “mixture” covers only a product whose components fall under Chapters 2, 10 or 11 of the Common Customs Tariff or does that term also cover products whose components consist of products falling under Chapters 2, 10 or 11 and of products falling under other chapters; in particular, are mixtures of wheat flour and wheat bran which according to the General Rules for the interpretation of the Common Customs Tariff are to be classified as wheat flour mixtures within the meaning of Article 30(3) of Regulation (EEC) No 1371/81?’

6Reference is made to the Report for the Hearing for a more detailed account of the facts of the main proceedings, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

7The question raised by the national court in fact comprises the following two questions:(a) May a product which pursuant to the provisions of the Common Customs Tariff is classified in a tariff heading under a single designation nevertheless constitute a “mixture” within the meaning of Article 30(3) of Regulation No 1371/81 on the sole ground that it is composed of two or more substances?(b) If so, does Article 30(3) of Commission Regulation No 1371/81 refer solely to mixtures which not only fall as such under one of Chapters 2, 10 or 11 of the Common Customs Tariff but are also made up of components which each fall under one of those chapters of the Common Customs Tariff; or does it relate to all mixtures falling under Chapters 2, 10 or 11 even if certain of their components fall under another chapter of the Common Customs Tariff?’

Question (a)

8The classification of a mixture, that is to say a product composed of two or more substances, is carried out in accordance with the General Rules and the specific provisions of the Common Customs Tariff; accordingly, a composite product is classified in a heading under a single designation.

9Thus, in accordance with Rule 2 (b) of the General Rules for the interpretation of the nomenclature of the Common Customs Tariff, ‘any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances... The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.’ Rule 3 (a) provides that for the classification of the products referred to in Rule 2 (b) ‘the heading which provides the most specific description shall be preferred to headings providing a more general description’, while under Rule 3 (b) ‘mixtures... which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable’.

10As regards more specifically products deriving from the milling of wheat, Note 2 to Chapter 11 provides that they fall within that chapter if they have, by weight on the dry product, both: (a) a starch content exceeding 45%, and (b) an ash content not exceeding 2.5%. Moreover, in accordance with the same note, the products in question are to be classified under Heading 11.01 (cereal flours) if their rate of passage through a sieve with an aperture of 315 micrometers is equal to or greater than 80%.

11Pursuant to Note 2 to Chapter 11, a mixture of wheat flour and wheat bran which complies with the criteria set out above is to be classified under the designation wheat flour in subheading 11.01 A of the Common Customs Tariff.

12The classification of such a product under the designation ‘wheat flour’ does not mean that it is no longer a mixture of wheat flour and wheat bran, but merely defines the manner in which it is to be treated for the purposes of the Common Customs Tariff.

13Article 30(3) of Regulation No 1371/81 refers to ‘mixtures’ in general without being more specific. Consequently, the expression ‘mixtures’ must be understood according to its normal meaning. No argument based on the wording or the purpose of the legislation can support an interpretation whereby this provision refers not to mixtures classified under a single designation in a tariff heading but solely to mixtures composed of substances falling under different tariff headings. On the contrary, the fact that the purpose of the Community legislation on monetary compensatory amounts differs from that underlying the Common Customs Tariff militates in favour of an interpretation whereby Article 30(3) of Regulation No 1371/81 refers to all mixtures, regardless of the fact that they may be classified for tariff purposes under a single designation.

14Consequently, the reply to be given to question (a) is that Article 30(3) of Commission Regulation No 1371/81 of 19 May 1981 must be interpreted as meaning that the term ‘mixtures’ covers all products composed of two or more substances, irrespective of their tariff classification.

Question (b)

15In this connection it must be observed that the wording of Article 30(3) of Regulation No 1371/81 merely speaks of mixtures falling within Chapters 2, 10 or 11 of the Common Customs Tariff, without laying down any additional conditions; more particularly, it does not require that the components of the mixture in question should themselves also fall within Chapters 2, 10 or 11.

16Moreover, there is no support for the view that the purpose of the provision in question calls for an interpretation different from the one which follows from its wording. On the contrary, Article 30(3), which is a provision governing monetary compensatory amounts, pursues objectives which differ from those underlying the Common Customs Tariff and take into account the possibility that traders may be prompted to mix different products or to separate them into their components in order to take advantage of the different rates of monetary compensatory amounts. The provision in question must therefore be interpreted independently of the Common Customs Tariff, in so far as such an interpretation is necessitated by the different objectives pursued by the two sets of rules.

17Consequently, the reply to be given to question (b) is that Article 30(3) of Regulation No 1371/81 must be interpreted as applying to mixtures falling under Chapters 2, 10 or 11 of the Common Customs Tariff even if certain components of those mixtures fall under another chapter of the Common Customs Tariff.

Costs

18The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Fourth Chamber),in answer to the question referred to it by the Finanzgericht Hamburg, by order of 30 October 1987, hereby rules:

(1).Article 30(3) of Commission Regulation No 1371/81 of 19 May 1981 must be interpreted as meaning that the term ‘mixtures’ refers to all products composed of two or more substances, irrespective of their tariff classification.

(2).Article 30(3) of Regulation No 1371/81 must be interpreted as applying to mixtures falling under Chapters 2, 10 or 11 of the Common Customs Tariff even if certain components of those mixtures fall under another chapter of the Common Customs Tariff.

Delivered in open court in Luxembourg on 27 September 1989.