Joined opinion of Mr Advocate General Roemer delivered on 7 July 1971. # Günther Henck v Hauptzollamt Emmerich. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Kibbled maize grains. # Case 12-71. # Günther Henck v Hauptzollamt Emmerich. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Maize groats. # Case 13-71. # Günther Henck v Hauptzollamt Emmerich. # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Kibbled millet grain. # Case 14-71

‘(1)

Must the phrase “maize groats” referred to in Article 1 (d) of Regulation No 19/62 of the Council of the EEC in conjunction with the annex to that regulation (No ex 11.02,ex A, ex III (b) of the Common Customs Tariff) be interpreted as meaning that these are indeed such products when they consist in floury fragments derived from rough grinding of hulled maize grains from which the germ has been removed and when the granules are coarser than those of maize meal or merchantable quality, when in other words they ought rather to be described as groats (“Griitze”)? Must the fat content be taken into account in addition and in particular must a fat content of 0.9 % to 1.5 % be considered necessary and sufficient?

(2)

It the answer to the questions set forth under (1) above is in the negative:

Must the phrase “hulled maize grains” (“Getreidekorner, geschalt, von Mais”), referred to in the provision mentioned under (1) above to be interpreted as meaning that these are indeed such products when they display the characteristics indicated in (1)?

(3)

If the answer to question (2) is in the negative:

Must the phrase “kibbled maize grains” (“Getreidekorner, geschrotet, von Mais”), referred to in the provision mentioned under (1) above be interpreted as meaning that these are indeed the products involved when they display the characteristics indicated under (1), that is in particular where the grains are hulled and where the maize germ has been removed therefrom?

(4)

If the answer to question (3) is in the negative:

May it be deduced from the fact that Community regulation No 19/62 in conjunction with the annex to the regulation mentions heading 11.02 of the Common Customs Tariff that therefore paragraphs 5 and 6 of the general rules for the interpretation of the Common Customs Tariff must also be applied, with the result that a commodity which in a heading of the Common Customs Tariff if not included in any subheading must be classified the same as the article which is the most similar thereto?’

1.

The plaintiff objects that the quesdons on the classification of the goods have been worded with regard to goods which have specific characteristics. The Court is thereby requested to apply the law, but Article 177 only provides for a power of abstract interpretation whilst the application of the law is reserved to the court referring the case.

This objection is certainly correct in that in the context of the powers of interpretation laid down in Article 177 the provision at issue may only be generally interpreted, in other words, the provision may not be applied to a specific situation and in the context of questions on the classification of goods, the characteristics of the imported goods in question may not be declared (there appears still to be some disagreement over the details relating to them). However, my view is that in spite of the wording used by the court referring the cases they are essentially genuine requests for an interpretation within the meaning of Article 177. The fact that the goods in question are exactly described is no more of an obstacle than is the description of the actual problems arising from the main action in other cases. In fact all that is being achieved by this means is that the clarification of questions relating to Community law is restricted to the extent necessary for the purposes of the main action and exhaustive interpretation of a provision, which is largely irrelevant in this case, is avoided. Even when the requests for interpretation are thus defined it seems that Article 177 may be correctly applied if the Court of Justice endeavours to give a sufficiently abstract reply to the questions referred and does not apply the provision which is being interpreted to a specific situation.

As in earlier cases it is therefore only a matter of eliciting the questions for interpretation, to which the Court may reply, from the statements of the court referring the questions which are perhaps too concrete.

1.

In the first case the question, as you know, is how the concept of ‘kibbled maize grain’ within the meaning of tariff heading ex 11.02 to which reference is made in the annex to Regulation No 19 must be interpreted. The court wishes to know whether goods accord with this concept, even if starch has been extracted therefrom, if they still contain certain quantities of starch and fat or whether the contents in other constituents such as protein and crude fibres are also of importance. In addition the court asks whether it matters whether the grains are degermed.

If the entire system of the Common Customs Tariff is used as the starting point, it is necessary to state first that tariff heading 11.02 which is in question belongs to a chapter which, inter alia, covers milling products. According to the operations described in this heading, certain types of milling processes are of importance; when kibbling takes place, which is the concept concerned here, the coarse fragmentation of the grains in principle leaves the natural composition unchanged. This seems to follow from general usage (with regard to which the plaintiff referred to the Neuer Brockhaus 1968 under the word ‘Schrot’). In this respect reference can also be made to Regulation No 55 of the Council and the levy system for products obtained from the processing of cereals. It can be deduced from Article 5 (1) (g) thereof, which refers to cereals which have only been kibbled that this is the crudest form of processing. In this connexion what is also relevant is the calculation of the levy, the variable component of which depends upon the; levy applicable to the quantity of the) primary product necessary for the manu-i facture of the processed product. Since| only a quantity of 102 kilograms is mentioned in this connexion it is clear, that it is assumed that there is a very] small quantity of waste and that virtually no constituents are removed from the) primary product. Moreover the Explana tory Notes to the Brussels Nomenclature may be quoted (according to the case-law of the Court, Case 14/70, [1970] ECR, these are an essential means of interpretation). In fact kibbled grains are described therein as grain broken into fragments and differing from groats in, that the fragments are coarser and more irregular.

Certainly one cannot stop short with these fundamental findings. The above-mentioned Explanatory Notes to the Brussels Nomenclature make that clear since they do not only refer in the ‘general’ remarks on Chapter 11 to the possibility of the extraction of certain constituents but as regards kibbled grains also in the abovequoted definition and the comparison with groats. Important, too, is the statement that kibbled maize grains may also be produced from degermed maize, that is, from a product from which the valuable germ, which contains oil and moreover adversely affects the storage qualities, has been removed. If I understand correctly, the plaintiff has not contested this enlightening explanation given by the Commission in principle, but has only observed that what one finds in the trade is solely kibbled grain obtained from maize which has not been degermed. Accordingly, there may be kibbled grain even after certain constituents have been removed and the concept of kibbled grain does not necessarily require that the natural composition of the original product is in no way altered. That this is the correct view is, moreover, made evident by the following consideration. When starch is manufactured from maize, kibbled maize is the interim product which as such naturally comes under tariff heading 11.02. On this basis, it can be stated, as the Commission does, that even if the starch is removed to some extent this in no way alters the abovementioned classification, because, following a general principle of interpretation, a product remains under a tariff heading so long as it does not become necessary, owing to a process which alters the product essentially, to speak of a new product which comes under a special tariff heading. In this connexion, according to the view expressed by the plaintiff to the customs office, only tariff heading 23.03 (residues of starch manufacture) comes into consideration. Correctly understood, this tariff heading cannot be applied when the amount of starch extracted is only very small, but solely to a genuine waste product, that is, to a product which remains as the residue of a process the object of which is to extract all the starch which can economically be removed from the raw material by employing modern techniques. In my opinion such conclusions can be reached in the present case although there was not yet in 1964 a tariff taking priority under Community law in respect of heading 23.03. In order to distinguish the provisions on the common organization of the markets it is in fact necessary to direct one's attention to the headings which are not included because the Community legislature, so to speak, took a negative decision relating to them. This does not seem objectionable, above all when a concept like that of residue is concerned which can in the nature of things scarcely have any content other than that which has been identified.

Although the considerations so far, which are based essentially on the system of the Common Customs Tariff, therefore already show that it is not only necessary to speak of kibbled grain when the natural composition of the grain has been completely retained but also when some of the ingredients have been removed, to answer the question of tariff classification which relates to a provision on the common organization of the market additional decisive factors are the purpose and requirements of the common organization of the market. The Court of Justice emphasized this clearly in Case 74/69, [1970] ECR (on the tariff classification of tapioca flour). Thus it should also be remembered that the common organization of the market aims to protect domestic producers (in the present case, producers of feedstuffs).

This protection is ensured by increasing the prices of imported goods to the level of Community prices with the help of certain subsidies, and thus guaranteeing producers in the Community an adequate income. For this protection to be effective there is no doubt in the present case that all products which have been subjected to a kibbling process come within the levy system applicable to kibbled grain, provided that they are comparable to kibbled grain which comes under tariff heading 11.02 in view of their composition, value and possible uses, even if they contain some farinaceous constituents, in other words, even if because of their structure they cannot be considered as pure kibbled grains. Chiefly for this reason classification for tariff purposes turns on the composition of the goods and indeed—since starch extraction is at issue in the main action and the value of such feedstuffs depends mainly on the starch content—on the starch content of the imported product, or in other words, on the question to what extent starch can be removed before it becomes impossible to classify the product under tariff heading 11.02.

No objections can be raised against this, as the plaintiff tries to do, by referring to the German Law on feedstuffs. It is indeed correct that in this field (or to be precise, under paragraph 19 of the Regulation implementing the Law on Feedstuffs of 21 July 1927) the following definition applies to the concept ‘kibbled cereal grain’:

‘Kibbled cereal gram or leguminous vegetables is ground grain. Any modification by removing parts of the grain or any admixture is prohibited.’

However, the view cannot be taken that this must be considered as a legal definition in other fields too, so long as no other criteria are expressly laid down. Clearly such a consideration is impossible on the one hand because the aims of the legislation on feedstuffs are not identical to those of revenue law and on the other because by their nature definitions contained in national legislation cannot be decisive with regard to the meaning of concepts of Community law which must have the same scope in all six Member States.

With regard to the starch content of raw maize, degermed maize and kibbled maize grain, under the relevant provisions there seem to be no doubts, according to the statements made by the Commission. In this connexion I would refer the Court to the tables which the Commission has compiled on page 15 et seq. of its observations. With regard to the constituent ‘nitrogen-free extracts’, figures can be obtained from them which vary from 49 to 77.9 % or from 59.7 to 74.4 % in the case of raw maize, in the case of degermed maize amount to 72.3 % and in the case of kibbled maize are between 60.1 % and 67.1 %. In the reports contained in the file in the main action the average starch content of maize is given as 60 to 64 %, 59 to 64 % and 58 to 65 %. Products which are similar to kibbled maize and which must thus be treated as kibbled grain are therefore also goods the starch content of which comes within the range of variation of the natural composition of maize grain (which applies to the products identified in the order for reference). On the other hand, it would be a mistake to speak of residues of starch manufacture in this case since the starch content of maize pulp is given as between 34.5 % and 36.4 %, that is, at a level well below that of the starch content of natural maize grain.

No conclusive argument against this can be based on the levy system applicable to tariff heading 23.02 (Bran, sharps and other residues derived from the sifting, milling or working of cereals). It is true that distinctions are made therein according to the starch content (see Regulations Nos 55/62, OJ No 54, p. 1581, and 5/63, OJ No 18, p. 189) and it is also correct that under Regulation No 141/64 (OJ No 169, p. 2666), which of course only came into force from October 1964, these can still be residues of the type described above even if the starch content is over 45 %. It seems however to be important that in the present case the goods do not have a starch content of that order of magnitude. Moreover it cannot be established by means of the abovementioned regulations which delimit goods of another type that one is still concerned with residues within the meaning of tariff heading 23.03 if the starch content reaches the level of the present case, that is, comes within the range of variation of the natural composition of maize.

Finally, I must state, in company with the Commission, that in so far as the question of the importance of other constituents is raised, no decisive distinguishing criteria can be obtained. This applies above all to the fat content. It is not a safe criterion of assessment because when fats are stored for some time they disintegrate and because the fat content is reduced by the degerming process. At the most it can be said that kibbled grain may be said to exist, on the basis of the fat content, if as seems to be so in the present case, it lies within the framework of the range of variation at least of the natural fat content of degermed maize. The same applies to the protein content. This too is not by itself a safe criterion because, inter alia, it depends on whether the maize germ has been removed. At the most it can be regarded as an indication that this is kibbled maize if it comes within the range of variation of the natural composition of maize grain and in addition the other constituents of the goods indicate that this is kibbled grain. (In the case of true residues of the manufacture of starch from maize the protein content seems on the other hand to be increased and the starch content reduced.) With regard to the content in crude fibres, it must be said that it is ruled out as a distinguishing criterion because it can easily be manipulated. Even when it is relatively high (perhaps as the result of grinding the grain with its spikes or because crude fibres are mixed with the pure kibbled grain or because a certain amount of kibbled grain is added to pure residues) it can still be spoken of as kibbled grain in view of the possible use of the goods as feedstuff. Finally, with regard to the ash content the Commission observed that until now this has been of no importance for the distinction in question. Even if it is important under certain Community regulations with regard to the distinction between tariff heading11.01, ‘cereal flours’ and tariff heading 23.02, ‘Brans, sharps and other residues’, this cannot automatically be applied to the distinction between kibbled grain and residues of the manufacture of starch from maize. Moreover, similar considerations to those with regard to the content in crude fibres (such as the possibility of manipulation) should be taken into account.

Accordingly, the question asked in the first case can be answered as follows: kibbled maize grain within the meaning of tariff heading 11.02 of the Common Customs Tariff is maize grain which has been coarsely ground by mechanical means, whether or not it has been degermed and which essentially displays the natural composition of maize. The removal of a small quantity of starch is unimportant provided that the starch content comes within the expected natural range of variation for maize.

2.

In the second case the imported goods cannot in the opinion of the Bundesfinanzhof, in contrast to the plaintiff's view, be considered as food preparations; the only tariff classification which comes into consideration is heading 11.02. The Bundesfinanzhof is, however, not certain which tariff classification is correct within heading 11.02, when it is necessary to speak of ‘maize groats’, ‘hulled maize grain’ or ‘kibbled maize grain’ and which of the various rates of levy laid down in Regulation No 55 must therefore be applied. Accordingly, it requests the interpretation of the concept of ‘maize groats’ with regard to a product having certain properties and asks whether the fat content is important in this respect. Moreover the interpretation of the other concepts in question is requested in the alternative (‘hulled maize grain’ and ‘kibbled maize grain’), also with regard to goods having certain properties. Finally, the Bundesfinanzhof inquires about the application of certain general provisions on classification.

As regards the main question in this case, the answer thereto is evidendy less difficult than the answer to the question referred in the first case. In fact both the plaintiff in the main action and the Commission reach an interpretation of the concept of ‘maize groats’ which covers the product which is to be judged in the main action. In this connexion they may rely upon the view prevailing in the trade (as follows inter alia from the reports from the Bundesforschungsanstalt fur Getreideverarbeitung (Federal Research Institute for Cereal Processing) of May 1964) and they may in particular refer to the fact that in the trade ‘maize grits’ meansgoods having quite specific properties. Accordingly, ‘maize groats’ is a milling product obtained from hulled, degermed maize and is a coarse-grained product resulting from grinding the flour kernel. In support of this view guidance can be obtained from the Explanatory Notes to the Brussels Nomenclature which, as I have already said, are, according to case-law, an important means of interpretation. In fact, they describe the principal products which come within heading 11.02 and state with regard to ‘groats’ that they consist of small fragments or floury kernels obtained by the rough grinding of grains. Meal differs therefrom in that finer grounds are produced by further processing (sifting or re-grinding) without resulting in flour at that stage. When the husk (pericarp) is partially removed, this is hulled grain, and as regards kibbled grain it is stated that this is grain broken into fragments and differing from groats in that the fragments are coarse and more irregular (which, as we have seen, embraces the conclusion that in principle all natural constituents of the grain including husks and germ tissue must be found.

Moreover, the considerations which form the basis of Regulation No 55 and which concern the policy of the common organization of the market, must be remembered in the present connexion. The levies which have been prescribed are in fact graduated according to the quantity of processed basic product, that is, in proportion to the amount of processing. In the case of maize groats the variable component applicable to 100 kg of processed product corresponds to the amount of levy applicable to 182 kg of the basic product used in the manufacture thereof. In the case of types of hulled cereals 167 kg of the basic product forms the basis for the levy, and, finally, in the case of kibbled cereal grain it is 102 kg. The commercial value of the products in question and the need to protect domestic production is reflected in these figures. Therefore, if there is no doubt that a valuable product is being imported which may come within one of these categories the necessary tariff classification must be adopted according to the higher degree of processing, in this case, groats, in order to protect domestic producers of comparable goods, even if the product is coarser than groats. On the other hand, the levy applicable with regard to kibbled grain would not meet the need to protect domestic producers.

For the rest, additional distinguishing criteria are not important in the case which is now before the Court.

In particular, during the period concerned the fat content was of no importance with regard to identifying goods as maize groats. In this connexion it must be said at the most that a very low fat content which comes within the range of variation of the natural fat content of pure flour kernels (as, moreover, a low content in crude fibres) argues in favour of the assumption that it is groats. It must finally be said with regard to provisions which were adopted subsequently and which lay down more precise distinguishing criteria that there is no need to enter into them. However it is worth noticing that they seem to confirm the view put forward by the Commission and the plaintiff in the main action.

Accordingly, with regard to the mam question in the second case it can be held that maize groats means a product of the milling industry obtained from hulled, degermed maize which is obtained by coarse grinding of the flour kernel. It follows at the same time from this reply that the questions asked in the alternative and those on the applicability of the general provisions on tariff classification are no longer relevant.

3.

In the third case the interpretation of the concept of ‘kibbled millet grain’ is at issue, onec more with regard to goods having certain characteristics. This is characterized by the fact that it consists essentially of unworked fragments of grain, contains in addition lumps of milo particles and has a certain starch content. The Bundesfinanzhof wishes to know whether these goods can be considered as kibbled millet or whether maximum or minimum contents in other constituents are also necessary.

Clearly the problems associated with this case are linked with those in the first case which was concerned with kibbled maize grain. This is mainly because milo, which is a type of sorghum millet rich in starch, according to the statements of the Commission, can often serve as a substitute for maize. Therefore I would refer essentially to the observations on the first case and shall restrict myself now to a short supplementary account because the arguments of the parties coincide to a great extent with those put forward in the first case,.

This means that in the present connexion, too, according to general usage and the view prevailing in the trade it must be assumed that it is ‘kibbled grain’ if the grains are simply processed and coarsely ground, that is, it is a product which essentially displays the natural composition of grain. In that connexion I would refer you to the levy system laid down in Regulation No 55 which has already been mentioned, from which it follows that when cereals are processed into kibbled grain there are only very small residues. Moreover the aims pursued by Regulations Nos 19 and and 55 which concerned the policy on the common organinzation of the market must be remembered, in other words, the need to guarantee sufficient protection to the feedstuff producers of the Community. It follows therefrom that products from which certain substances, especially starch, have been removed in very small quantities and which are essentially comparable and are analogous according to their value, composition and use, must be considered as kibbled grain.

This applies in any case in so far as starch has not been removed in large quantities according to the criteria discussed within the context of the first case and therefore it is impossoble to speak of genuine residues within the meaning of tariff heading 23.03.

With regard to the natural composition of milo grain and hulled millet the important values can again be obtained from the technical works on the subject, in particular, the fact that its starch content is similar to that of maize, In this connexion I would refer to the tables contained in the written observations of the Commission. Therefore it must be assumed that it is kibbled millet within the meaning of the common organization of the market if the products to be assessed display an essentially similar composition, particularly if the starch content, according to which the value as feedstuff is measured (and which is on average 68 % in the case of hulled millet), is around that value and comes within the range of variation of the natural starch content of millet grain. On the other hand, it would be a mistake to consider a classification under heading 23.03 because true residues of starch manufactured from millet apparently only have a starch content of between 20.3 % and 36.9 % in general. The fat content is, moreover, as in the first case, not a decisive factor if it comes within the range of variation of the natural fat content of flour kernels (which probably applies to the goods in question in the main action).

In the same way, the content in crude fibres and the ach content are not of decisive importance. In this connexion too I would refer to what I said on the first case.

Finally it must be emphasized that the existence of lumps of agglutinated milo particles cannot influence the tariff classification, and this is the only additional remark which is necessary in the present case. It must be granted that in this respect there are variations from the typical composition of kibbled grain. However, as the Commission correctly observed, a special characteristic of the product must be taken into consideration, that is, the fact that it is soft grain during the processing of which a relatively large amount of flour is produced. Besides, the formation of lumps can be attributed to damp storage and the decomposition of the germ oil. Therefore so long as the grain is essentially similar to kibbled grain as regards its composition, a certain proportion of lumps cannot in fact make out compelling grounds for its inclusion in another tariff heading.

Accordingly, as tne Commission suggested, the reply to the third question must be given by using a definition which essentially corresponds to that given in the first case.

First case:

‘Kibbled maize grain’ within the meaning of tariff heading 11.02 of the Common Customs Tariff is maize grain which has been coarsely ground by mechanical means, whether or not it has been degermed, which essentially has the natural composition of maize. The removal of a very small quantity of starch is unimportant so long as the starch content comes within the natural range of variation expected in the case of maize.

Second case:

‘Maize groats’ within the meaning of Article 1(d) of Regulation No 19/62 is produced by milling hulled and degermed maize. This concept also covers a product which is the result of grinding the flour kernel and which is coarser-grained than maize groats which are of merchantable quality.

Third case:

‘Kibbled millet grain’ within the meaning of tariff heading 11.02 of the Common Customs Tariff is millet grain which has been coarsely ground by mechanical means and which essentially has the natural composition of millet. The removal of a very small quantity of starch is unimportant so long as the starch content comes within the natural range of variation expected in the case of millet. The existence of lumps of milo particles is of no importance with regard to the tariff classification.