1 BY ORDER OF 12 JANUARY 1971, RECEIVED AT THE COURT ON 26 JANUARY 1971, THE FINANZGERICHT, BERLIN, HAS ASKED THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, TO GIVE A PRELIMINARY RULING ON CERTAIN QUESTIONS CONCERNING THE INTERPRETATION AND VALIDITY OF REGULATION NO 865/68 OF THE COUNCIL OF 28 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES ( OJ ENGLISH SPECIAL EDITION 1968 ( 1 ) P . 225 ).
THE FIRST QUESTION
2 THE FIRST QUESTION ASKS WHETHER ARTICLE 2 OF REGULATION NO 865/68, IN CONJUNCTION WITH ARTICLE 9 OF THAT REGULATION AND WITH THE RULES ON THE COMMON CUSTOMS TARIFF ( ADDITIONAL NOTE NO 2 TO CHAPTER 20, TARIFF HEADING 20.06 B I ( E ), MAY BE INTERPRETED AS MEANING THAT WHEN THE SUGAR CONTENT OF THE IMPORTED PRODUCT, IN THIS CASE OF CHERRIES IN SPIRIT, ASCERTAINED BY REFRACTOMETRY EXCEEDS 9 PER CENT BY WEIGHT IT MUST BE CONSIDERED THAT THEY CONTAIN " ADDED SUGAR ", OR WHETHER THE LEVY MAY BE IMPOSED ONLY IF SUGAR HAS IN FACT BEEN ADDED .
3 UNDER ARTICLE 2 ( 1 ) OF REGULATION NO 865/68 A LEVY " ON THE VARIOUS ADDED SUGARS " MAY IN CERTAIN CIRCUMSTANCES BE IMPOSED IN ADDITION TO THE CUSTOMS DUTY WHICH CAN BE DEMANDED UNDER THIS REGULATION . THIS LEVY IS DETERMINED IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY PARAGRAPHS ( 2 ) TO ( 6 ) OF THE SAME ARTICLE, INCLUDING ANNEXES I AND III, WHICH RESPECTIVELY LAY DOWN FIXED SUGAR CONTENTS AND A METHOD OF ANALYSIS WHEREBY IN CERTAIN CIRCUMSTANCES THE TRUE SUGAR CONTENT CAN BE DETERMINED BY WAY OF EXCEPTION TO THE FIXED VALUES . ARTICLE 9 ( 2 ) OF THE SAME REGULATION PROVIDES MOREOVER THAT " THE GENERAL RULES FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF AND THE SPECIAL RULES FOR ITS APPLICATION SHALL APPLY TO THE TARIFF CLASSIFICATION OF THE PRODUCTS COVERED BY THIS REGULATION " . UNDER ADDITIONAL NOTE NO 2, APPEARING AT THE HEAD OF CHAPTER 20 OF THE COMMON CUSTOMS TARIFF FIXED BY REGULATION NO 950/68 OF 20 JUNE 1968 ( OJ L 172, P . 86 ), " THE PRODUCTS CLASSIFIED UNDER HEADING NO 20.06 SHALL BE CONSIDERED AS " CONTAINING ADDED SUGAR " WHEN THE " SUGAR CONTENT " THEREOF EXCEEDS BY WEIGHT THE PERCENTAGES GIVEN HEREUNDER, ACCORDING TO THE KIND OF FRUIT CONCERNED : ... OTHER FRUITS ... 9 PER CENT " .
4 THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT THE LEVY PRESCRIBED BY ARTICLE 2 ( 1 ) OF REGULATION NO 865/68 IS APPLICABLE ONLY IF SUGAR HAS IN FACT BEEN ADDED TO THE PRODUCT IN QUESTION . ACCORDING TO THE VIEW OF THE CUSTOMS AUTHORITIES, PUT FORWARD BEFORE THE NATIONAL COURT AND SUPPORTED BY THE COMMISSION BEFORE THE COURT, THE STANDARD METHODS ESTABLISHED BY REGULATION NO 865/68, IN CONJUNCTION WITH THE ABOVEMENTIONED ADDITIONAL NOTE TO THE COMMON CUSTOMS TARIFF, CREATED A LEGAL FICTION OR PRESUMPTION ACCORDING TO WHICH ANY SUGAR CONTENT, EVEN IF NATURAL, MUST BE REGARDED AS " ADDED SUGAR " AS SOON AS THE PROPORTION OF SUGAR EXCEEDS THE PERCENTAGE SPECIFIED .
5 THE PREAMBLE TO REGULATION NO 865/68 STATES THAT THE AIM OF ARTICLE 2, WHICH INTRODUCES A LEVY ON " ADDED SUGAR " , IS TO ENSURE THAT THE TRADING SYSTEM FOR CERTAIN PRODUCTS PROCESSED FROM FRUIT IS BROUGHT INTO LINE WITH THAT LAID DOWN FOR SUGAR ITSELF, SO THAT THE SUGAR INCORPORATED INTO PROCESSED PRODUCTS IS SUBJECT TO A LEVY UNDER CONDITIONS SIMILAR TO THOSE APPLIED WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF THAT MARKET . HENCE, IT WOULD BE INCOMPATIBLE WITH THE SYSTEM ADOPTED BY REGULATION NO 865/68 IF THE NATURAL SUGAR CONTENT OF PRODUCTS PROCESSED FROM FRUIT WERE SUBJECTED TO THE LEVY . THIS CONCLUSION FOLLOWS FROM ARTICLE 2 ( 1 ) WHICH PROVIDES THAT THE BASIS OF CHARGE OF THE LEVY IS NOT THE SUGAR CONTENT, BUT THE " VARIOUS ADDED SUGARS ".
IN VIEW OF THIS PROVISION, PARAGRAPH ( 2 ) ET SEQ . OF THE SAME ARTICLE CAN ONLY BE INTENDED TO FIX, FOR CASES IN WHICH SUGAR HAS IN FACT BEEN ADDED, DETAILS OF THE APPLICATION OF THE LEVY AND ITS AMOUNT . HENCE IT IS IMPOSSIBLE TO SEE IN THESE PROVISIONS AN IRREBUTTABLE PRESUMPTION WHICH ENABLES NATURAL SUGAR, IN SO FAR AS THE PERCENTAGE THEREOF EXCEEDS THE LEVELS DEFINED UNDER THE FIXED ASSESSMENTS OR THE METHODS OF ANALYSIS LAID DOWN BY THE PROVISIONS IN QUESTION, TO BE REGARDED AS ADDED SUGAR .
6 THIS INTERPRETATION IS NOT AFFECTED BY ADDITIONAL NOTE NO 2 TO CHAPTER 20 OF THE COMMON CUSTOMS TARIFF, SINCE THIS PROVISION, INCORPORATED IN A REGULATION CONCERNING CUSTOMS DUTIES, CANNOT ALTER THE BASIS OF CHARGE OF AN AGRICULTURAL LEVY, ESPECIALLY SINCE IT IS REFERRED TO BY ARTICLE 9 ( 2 ) OF REGULATION NO 865/68 ONLY FOR THE PURPOSES OF " TARIFF CLASSIFICATION " OF THE PRODUCTS TO WHICH THE REGULATION RELATES . ACCORDINGLY, THIS ADDITIONAL NOTE CAN HAVE NO OTHER PURPOSE EXCEPT TO GIVE GUIDANCE, ON THE BASIS OF THE TOTAL SUGAR CONTENT, TO FACILITATE THE TARIFF CLASSIFICATION OF PRODUCTS WITHIN THE CATEGORY OF FRUIT SUBJECT EITHER TO A CUSTOMS DUTY AND A LEVY, OR TO A CUSTOMS DUTY ALONE . IN VIEW OF THE PROVISIONS OF REGULATION NO 865/68, THE EFFECT OF THAT NOTE IS TO ESTABLISH THAT PRODUCTS WITH A SUGAR CONTENT OF LESS THAN 9 PER CENT ARE EXEMPT FROM THE LEVY, WHILST CREATING, IN THE CASE OF PRODUCTS WITH A HIGHER SUGAR CONTENT, A PRESUMPTION WITH REGARD TO CLASSIFICATION AGAINST WHICH EVIDENCE IN REBUTTAL MAY BE BROUGHT . WHEN SUCH A PRODUCT HAS A SUGAR CONTENT EXCEEDING 9 PER CENT, IT IS THEREFORE OPEN TO THE IMPORTER TO PROVE, WHERE APPROPRIATE, THAT IT CONTAINS ONLY NATURAL SUGAR .
7 THE ANSWER MUST THEREFORE BE GIVEN THAT THE PROVISIONS OF ARTICLE 2 OF REGULATION NO 865/68, IN CONJUNCTION WITH ADDITIONAL NOTE NO 2 TO CHAPTER 20 OF THE COMMON CUSTOMS TARIFF, TO WHICH REFERENCE IS MADE BY ARTICLE 9 OF THE SAME REGULATION, SUBJECT TO THE LEVY ONLY THOSE PRODUCTS PROCESSED BY THE ACTUAL ADDITION OF SUGAR, BUT THAT IF THE SUGAR CONTENT OF A PRODUCT COMING UNDER TARIFF HEADING 20.06 B I ( E ) EXCEEDS 9 PER CENT, IT IS FOR THE IMPORTER TO PROVE THAT THE PRODUCT CONTAINS ONLY NATURAL SUGAR .
THE SECOND AND THIRD QUESTIONS
8 THE SECOND AND THIRD QUESTIONS ARE PUT ON THE ASSUMPTION THAT A SUGAR CONTENT EXCEEDING 9 PER CENT BY WEIGHT MUST, AS A MATTER OF LAW, BE DEEMED, WITHOUT ITS BEING PERMITTED TO BRING EVIDENCE IN REBUTTAL, TO CONSTITUTE " ADDED SUGAR " WITHIN THE MEANING OF REGULATION NO 865/68 .
9 IN VIEW OF THE ANSWER GIVEN TO THE FIRST QUESTION, THESE TWO QUESTIONS NO LONGER HAVE ANY PURPOSE .
THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH 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, A STEP, IN THE ACTION PENDING BEFORE THE FINANZGERICHT, BERLIN, THE DECISION ON COSTS IS THEREFORE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT, BERLIN, BY ORDER OF THAT COURT OF 12 JANUARY 1971, HEREBY RULES :
THE PROVISIONS OF ARTICLE 2 OF REGULATION NO 865/68 OF THE COUNCIL OF 28 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES, IN CONJUNCTION WITH ADDITIONAL NOTE NO 2 TO CHAPTER 20 OF THE COMMON CUSTOMS TARIFF, TO WHICH REFERENCE IS MADE IN ARTICLE 9 OF THE SAID REGULATION, MUST BE INTERPRETED AS MEANING THAT ONLY PRODUCTS PROCESSED BY THE ACTUAL ADDITION OF SUGAR ARE SUBJECT TO THE LEVY, BUT THAT IF THE SUGAR CONTENT OF A PRODUCT COMING UNDER TARIFF HEADING 20.06 B I ( E ) EXCEEDS 9 PER CENT BY WEIGHT, IT IS FOR THE IMPORTER TO PROVE THAT THE PRODUCT CONTAINS ONLY NATURAL SUGAR .
