1 BY ORDER OF 25 FEBRUARY 1971, RECEIVED AT THE COURT REGISTRY ON 27 APRIL 1971, THE HESSISCHES FINANZGERICHT REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION OF THE TERMS OF " HULLED GRAINS : BARLEY " AND " PEARLED GRAINS : BARLEY " APPEARING IN HEADING 11.02 OF THE COMMON CUSTOMS TARIFF .
2 THE FILE SHOWS THAT THROUGH THIS REQUEST THE FINANZGERICHT SEEKS TO OBTAIN INFORMATION ON WHICH TO ESTABLISH WHETHER THE CRITERIA ADOPTED BY THE NATIONAL AUTHORITIES IN ORDER TO IDENTIFY " PEARLED BARLEY " FOR THE PURPOSES OF THE REFUNDS ON EXPORTS TO THIRD COUNTRIES PROVIDED FOR BY ARTICLE 20 OF REGULATION NO 19/62 OF THE COUNCIL ( JO 1962, P . 933 ) WERE IN ACCORDANCE WITH COMMUNITY LAW .
3 IN ACCORDANCE WITH THIS PROVISION REGULATION NO 141/64/EEC OF THE COUNCIL ( JO NO 169, P . 2666 ), WHICH WAS IN FORCE DURING THE PERIOD IN QUESTION IN THIS CASE, GOVERNED THE POWER CONFERRED UPON EACH MEMBER STATE TO GRANT REFUNDS ON EXPORTS OF PROCESSED CEREAL PRODUCTS TO THIRD COUNTRIES BY FIXING CRITERIA FOR DETERMINING THE MAXIMUM AMOUNT OF PERMITTED REFUNDS .
4 THIS REGULATION FIXED HIGHER MAXIMUM AMOUNTS FOR " PEARLED BARLEY " THAN FOR " HULLED BARLEY ". THE TERMS " HULLED GRAINS " AND " PEARLED GRAINS " ARE CONTAINED IN THE ANNEX TO REGULATION NO 19/62 WHICH REFERS, IN THIS RESPECT, TO HEADING 11.02 OF THE COMMON CUSTOMS TARIFF WHICH DISTINGUISHES BETWEEN " HULLED GRAINS : BARLEY " AND " PEARLED GRAINS : BARLEY ". IN ORDER TO DEFINE THESE CONCEPTS IN THE ABSENCE OF EXPLANATORY NOTES ATTACHING TO THE COMMON CUSTOMS TARIFF AND IN THE LIGHT OF THE FACT THAT THIS TARIFF HEADING EXACTLY REPRODUCED A HEADING IN THE BRUSSELS NOMENCLATURE, IT IS NECESSARY TO REFER TO THE EXPLANATORY NOTES CONCERNING THAT NOMENCLATURE .
5 WITHIN THE CONTEXT OF THE OPTIONAL EXPORT REFUNDS PROVIDED FOR BY THE ABOVEMENTIONED REGULATIONS THE MEMBER STATES WERE BOUND, IN ORDER TO RESPECT THE MAXIMUM AMOUNTS ALLOWED BY THOSE REGULATIONS, TO REGARD AS " PEARLED BARLEY " ONLY THOSE PRODUCTS WHICH SATISFIED AT LEAST THE CONDITIONS LAID DOWN BY THE EXPLANATORY NOTES TO HEADING 11.02 IN THE DOCUMENT KNOWN AS THE " BRUSSELS NOMENCLATURE ". THEREFORE, ALTHOUGH WHEN FIXING THE CONDITIONS FOR THE GRANT OF THE REFUNDS WHICH THEY DECIDED FREELY TO AWARD, THE MEMBER STATES WERE BOUND TO OBSERVE A CERTAIN NUMBER OF RULES OR PRINCIPLES WHICH WERE NECESSARY TO THE APPLICATION OF THE GENERAL SCHEME LAID DOWN BY REGULATION NO 19, THEY HAD, ON THE OTHER HAND, THE POWER TO APPLY MORE RESTRICTIVE CRITERIA THAN THOSE ESTABLISHED BY THE COMMUNITY RULES . IN PARTICULAR, AND WITHOUT PREJUDICE TO THE UNIFORM SCOPE OF THE CONCEPTS CONTAINED IN THE COMMON CUSTOMS TARIFF, WITHIN THE LIMITED CONTEXT OF THE REGULATIONS REFERRED TO ABOVE AND TO THE EXTENT TO WHICH THEY WERE FREE NOT TO GRANT ANY EXPORT REFUND ON PEARLED BARLEY, THE MEMBER STATES WERE A FORTIORI EMPOWERED TO LIMIT THIS GRANT TO TYPES OF THIS PRODUCT WHICH HAD ADDITIONAL CHARACTERISTICS TO THOSE REQUIRED BY THE COMMUNITY RULES .
6 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE HESSISCHES FINANZGERICHT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HESSISCHES FINANZGERICHT BY ORDER OF THAT COURT DATED 25 FEBRUARY 1971, HEREBY RULES :
1 . WITHIN THE CONTEXT OF THE APPLICATION OF THE SCHEME OF OPTIONAL REFUNDS ON EXPORTS OF PROCESSED CEREAL-BASED PRODUCTS TO THIRD COUNTRIES WHICH IS LAID DOWN IN ARTICLE 20 OF REGULATION NO 19/62 OF THE COUNCIL, REGULATION NO 141/64/EEC OF THE COUNCIL AND REGULATION NO 60/66/EEC OF THE COMMISSION, THE MEMBER STATES COULD ONLY REGARD AS " PEARLED BARLEY " THOSE PRODUCTS WHICH SATISFIED AT LEAST THE CONDITIONS LAID DOWN BY THE EXPLANATORY NOTES TO HEADING 11.02 IN THE DOCUMENT KNOWN AS THE " BRUSSELS NOMENCLATURE ".
2 . WITHIN THE CONTEXT OF THE APPLICATION OF THE ABOVEMENTIONED PROVISIONS, THE NATIONAL AUTHORITIES WERE ENTITLED TO ADD TO THOSE MINIMUM REQUIREMENTS OTHER MORE RESTRICTIVE CONDITIONS .
