Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1973/R12573.html
Cite as: [1973] EUECJ R-125/73

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61973J0125
Judgment of the Court of 5 December 1973.
Neufeld & Co. v Hauptzollamt Hamburg-Waltershof.
Reference for a preliminary ruling: Finanzgericht Hamburg - Germany.
Turnover equalization tax.
Case 125-73.
European Court reports 1973 Page 01407
Greek special edition 1972-1973 Page 00805
Portuguese special edition 1973 Page 00535

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - PROCESSED PRODUCTS WITHIN THE MEANING OF ARTICLE 1 ( D ) IN CONJUNCTION WITH THE ANNEX TO REGULATION NO 19/62 - LEVY - CALCULATION - TURNOVER EQUALIZATION TAX - SET OFF - PROHIBITION
( REGULATION NO 19 OF THE COUNCIL, ARTICLE 14; REGULATION NO 55 OF THE COUNCIL, ARTICLE 7 )

ARTICLES 14 OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 AND 7 OF REGULATION NO 55 OF THE COUNCIL OF THE EEC OF 30 JUNE 1962 MUST BE INTERPRETED AS MEANING THAT THE AMOUNT OF THE TURNOVER EQUALIZATION TAX IMPOSED ON THE IMPORT OF THE PROCESSED PRODUCTS REFERRED TO IN ARTICLE 1 ( D ) AND IN THE ANNEX TO REGULATION NO 19/62 MAY NOT BE DEDUCTED FROM THE LEVY .

IN CASE 125/73
REFERECE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HAMBURG FINANZGERICHT ( IVTH SENATE ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
NEUFELD AND CO ., BERLIN,
AND
HAUPTZOLLAMT HAMBURG-WALTERSHOF,

ON THE INTERPRETATION OF THE PROVISIONS OF ARTICLE 14 OF REGULATION NO 19 OF THE COUNCIL DATED 4 APRIL 1962 ( OJ 1962, NO 30 ) IN CONJUNCTION WITH ARTICLE 7 OF REGULATION NO 55 OF THE COUNCIL DATED 30 JUNE 1962 ( OJ 1962, NO 54 ), REGARDING THE TAKING INTO ACCOUNT OF TURNOVER EQUALIZATION TAX AND COSTS INHERENT IN DENATURING FOR THE PURPOSES OF THE LEVY ON PROCESSED CEREAL PRODUCTS,

1 BY ORDER DATED 16 MARCH 1973 FILED AT THE COURT REGISTRY ON 18 APRIL 1973 THE HAMBURG FINANZGERICHT REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF VARIOUS PROVISIONS OF REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE GRADUAL ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OJ 1962, NO 30 ), AND OF REGULATION NO 55 OF THE COUNCIL OF 30 JUNE 1962 ON THE SYSTEM OF PROCESSED GOODS BASED ON CEREALS ( OJ 1962, NO 54 ).
THE QUESTION IS WHETHER, TAKING INTO ACCOUNT THE JUDGMENT GIVEN BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ON 12 MAY 1971 IN CASE 76/70, ARTICLES 14 OF REGULATION 19/62 AND 7 OF REGULATION NO 55/62 MUST BE INTERPRETED AS MEANING THAT THE AMOUNT OF THE TURNOVER EQUALIZATION TAX IMPOSED ON THE IMPORT OF PROCESSED PRODUCTS REFERRED TO IN ARTICLE 1 ( D ) AND IN THE ANNEX TO REGULATION NO 19/62 MUST BE DEDUCTED FROM THE AMOUNT OF THE LEVY APPLICABLE TO THESE PRODUCTS .
2 THE QUESTION RAISED DEALS WITH THE CALCULATION OF THE LEVY APPLICABLE TO " TAPIOCA FLOUR " COVERED BY THE EXPRESSION " PROCESSED PRODUCTS " IN ARTICLE 1 ( D ) AND IN THE ANNEX TO REGULATION NO 19/62 .
THIS LEVY, CALCULATED UNDER ARTICLE 14 OF THE SAID REGULATION, IS COMPOSED OF TWO COMPONENTS, THE ONE VARIABLE AND THE OTHER FIXED .
AS REGARDS PROCESSED PRODUCTS NOT CONTAINING THE BASIC PRODUCTS REFERRED TO IN ARTICLE 1 ( A ), THE VARIABLE COMPONENT OF THE LEVY WAS FIXED IN ACCORDANCE WITH ARTICLE 14 ( 1 ) ( A ) ( B ), AFTER TAKING ACCOUNT OF THE CONDITIONS OF THE MARKETS IN PRODUCTS PROCESSED FROM THE ABOVEMENTIONED BASIC PRODUCTS WHICH MUST RESEMBLE THEM .
FOR THIS PURPOSE ARTICLE 7 ( 1 ) PROVIDES, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 2 ( 4 ), THAT FOR THE PROCESSED PRODUCTS REFERRED TO IN THE ANNEX TO REGULATION NO 19/62 UNDER HEADING 11.06 OF THE COMMON CUSTOMS TARIFF, INCLUDING " TAPIOCA FLOUR ", THE VARIABLE COMPONENT APPLICABLE TO 100 KILOGRAMMES OF PROCESSED PRODUCT IS EQUAL TO THE VARIABLE COMPONENT REFERRED TO IN ARTICLE 9 APPLICABLE TO 100 KILOGRAMMES OF MAIZE STARCH .
ACCORDING TO THE SAID ARTICLE 9 THE VARIABLE COMPONENT APPLICABLE TO 100 KILOGRAMMES OF MAIZE STARCH IS EQUAL TO THE LEVY APPLICABLE TO 161 KILOGRAMMES OF MAIZE .
MOREOVER, ARTICLE 7 ( 3 ) ( A ) DETERMINED THE FIXED COMPONENT OF THE LEVY APPLICABLE TO THE PRODUCT IN QUESTION AT 1.70 UNITS OF ACCOUNT .
3 IT APPEARS FROM THESE PROVISIONS THAT, CONTRARY TO THE SYSTEM INSTITUTED BY ARTICLE 10 ( 2 ) OF REGULATION NO 19/62, WHERE THE LEVY MAY VARY ACCORDING TO THE DIFFERENCES EXISTING BETWEEN THE C.I.F . AND THE THRESHOLD PRICES, THE SYSTEM ESTABLISHED BY ARTICLE 14 OF THIS SAME REGULATION AND ARTICLE 7 OF REGULATION NO 55/62 PROVIDES FOR THE APPLICATION OF A LEVY, THE AMOUNT OF WHICH IS CALCULATED BY REFERENCE TO PRE-ESTABLISHED CRITERIA, I.E . THE LEVY WHICH EFFECTIVELY APPLIES TO MAIZE STARCH ON THE ONE HAND AND THE FIXED RATE INDICATED BY THE LEGISLATURE ON THE OTHER .
IN THIS SYSTEM, WHEREBY THERE IS A LEVY ALL THE ELEMENTS OF WHICH ARE FIXED BY COMMUNITY RULES, IT IS NOT POSSIBLE FOR MEMBER STATES TO VARY THE AMOUNT OF THE LEVY BY THE EXPEDIENT OF CRITERIA OF CALCULATION NOT PROVIDED FOR BY THE LEGISLATURE AND TO DEDUCT THE TURNOVER EQUALIZATION TAX, WHERE APPROPRIATE, FROM THE SAID AMOUNT .
SUCH A DEDUCTION WOULD AFFECT THE RATE OF THE FIXED AND VARIABLE COMPONENTS OF THE LEVY, WHICH REGULATION NO 55/62 HAS DIRECTLY OR INDIRECTLY CALCULATED .
4 THEREFORE ARTICLES 14 OF REGULATION NO 19/62 AND 7 OF REGULATION NO 55/62 MUST BE INTERPRETED AS MEANING THAT THE AMOUNT OF THE TURNOVER EQUALIZATION TAX IMPOSED ON IMPORT MAY NOT BE DEDUCTED FROM THE LEVY .

5 THE COSTS INCURRED BY THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE HAMBURG FINANZGERICHT BY ORDER OF THAT COURT DATED 16 MARCH 1973, HEREBY RULES :
ARTICLES 14 OF REGULATION NO 19 OF THE COUNCIL OF THE EEC OF 4 APRIL 1962 AND 7 OF REGULATION NO 55 OF THE COUNCIL OF THE EEC OF 30 JUNE 1962 MUST BE INTERPRETED AS MEANING THAT THE AMOUNT OF THE TURNOVER EQUALIZATION TAX IMPOSED ON THE IMPORT OF THE PROCESSED PRODUCTS REFERRED TO IN ARTICLE 1 ( D ) AND IN THE ANNEX TO REGULATION NO 19/62 MAY NOT BE DEDUCTED FROM THE LEVY .