1 BY AN ORDER OF 15 OCTOBER 1971 RECEIVED AT THE REGISTRY ON 9 NOVEMBER 1971 THE FINANZGERICHT HAMBURG REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF CERTAIN TARIFF SUBHEADINGS OF CHAPTER 20 OF THE COMMON CUSTOMS TARIFF IN CONJUNCTION WITH ADDITIONAL NOTE NO 2 TO THIS CHAPTER .
THE FIRST QUESTION
2 IN THE FIRST QUESTION THE COURT IS ASKED TO RULE WHETHER THE WORDING OF SUBHEADING 20.06 B II ( A ) 6 ( BB ) OF THE COMMON CUSTOMS TARIFF READ TOGETHER WITH ADDITIONAL NOTE NO 2 TO CHAPTER 20 MUST BE INTERPRETED TO MEAN THAT WHEN FRUIT, OTHER THAN PINEAPPLES AND GRAPES, IN THIS CASE APRICOTS, REFERRED TO UNDER HEADING 20.06 OF THE TARIFF HAS A SUGAR CONTENT EXCEEDING 9 PER CENT BUT LESS THAN 13 PER CENT IT IS LIABLE TO THE HIGHER RATE PRESCRIBED FOR FRUIT WITH ADDED SUGAR REGARDLESS OF WHETHER SUGAR HAS BEEN ADDED .
TARIFF HEADINGS 20.06 B II ( A ) 6 ( BB ) AND 20.06 B II ( C ) 1 ( AA ) OF THE COMMON CUSTOMS TARIFF APPLY RESPECTIVELY TO PRODUCTS " CONTAINING ADDED SUGAR " AND " NOT CONTAINING ADDED SUGAR " SUBJECTING THEM TO DIFFERENT CUSTOMS DUTIES . ACCORDING TO ADDITIONAL NOTE NO 2 APPEARING AT THE BEGINNING OF CHAPTER 20 OF THE COMMON CUSTOMS TARIFF LAID DOWN IN REGULATION NO 2451/69 OF THE COUNCIL OF 8 DECEMBER 1969 ( JO L 311, 1969 ) THE PRODUCTS UNDER HEADING 20.06 SHALL BE CONSIDERED AS " CONTAINING ADDED SUGAR " IF THEIR SUGAR CONTENT EXCEEDS 9 PER CENT BY WEIGHT ACCORDING TO THE KIND OF FRUIT CONCERNED .
4 THE PLAINTIFF IN THE MAIN ACTION MAINTAINS THAT THIS NOTE MERELY ESTABLISHES A PRESUMPTION AS TO THE CLASSIFICATION WHICH MAY BE REBUTTED BY EVIDENCE TO THE CONTRARY .
IT MAINTAINS IN PARTICULAR THAT SINCE THIS WAS THE SOLUTION ADOPTED BY THE COURT IN ITS JUDGMENT OF 17 JUNE 1971 IN CASE 3/71 FOR THE PURPOSE OF THE APPLICATION OF THE LEVY, THE SAME SOLUTION MUST PREVAIL FOR THE PURPOSE OF THE CUSTOMS TARIFF .
THE APPLICANT CONSIDERS IT INADMISSIBLE THAT WITHIN THE SAME TARIFF AND THE SAME CHAPTER A CLASSIFICATION PROVISION MAY BE INTERPRETED DIFFERENTLY ACCORDING AS IT RELATES TO THE CLASSIFICATION OF THE PRODUCT FOR THE PURPOSE OF IMPOSING THE LEVY OR FOR THE PURPOSE OF CUSTOMS DUTIES .
5 SUCH AN ARGUMENT FAILS TO OBSERVE THE INDEPENDENT NATURE OF THE PROVISIONS OF THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS .
ALTHOUGH, IN ACCORDANCE WITH ARTICLE 9 ( 2 ) OF REGULATION NO 865/68 OF THE COUNCIL OF 28 JUNE 1968 ( OJ L 153, 1968, ENGLISH SPECIAL EDITION 1968 ( I ), P . 225 ), THE IMPLEMENTING PROVISIONS OF THE COMMON CUSTOMS TARIFF APPLY TO THE CLASSIFICATION OF PRODUCTS COMING UNDER THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS ESTABLISHED BY THIS REGULATION, SUCH CLASSIFICATION IS CONCLUSIVE REGARDING THE IMPOSITION OF CUSTOMS DUTIES BUT IS MERELY A GUIDE REGARDING ANY LEVY CHARGEABLE .
THE BASIS FOR IMPOSING THE LEVY IS LAID DOWN BY ARTICLE 2 ( 1 ) OF REGULATION NO 865/68 IN TERMS OF WHICH IT SHALL BE CHARGED " ON THE VARIOUS ADDED SUGARS ".
NO MATTER HOW UNSATISFACTORY IT IS IN PRACTICE, THE DIVERSITY OF CRITERIA WHICH MAY RESULT FROM THOSE TWO LEGAL SYSTEMS IN DETERMINING SEPARATELY THE BASIS FOR IMPOSING THE LVY AND FOR IMPOSING CUSTOMS DUTIES, IT IS NOT FOR THE COURT TO REMEDY THIS SITUATION, BY MODIFYING, BY WAY OF INTERPRETATION, THE CONTENT OF THE PROVISIONS APPLICABLE TO ONE OR OTHER CASE SINCE SUCH MODIFICATION PERTAINS EXCLUSIVELY TO THE COMPETENCE OF THE COMMUNITY LEGISLATURE .
6 SINCE AGREEMENTS REGARDING THE COMMON CUSTOMS TARIFF WERE REACHED BETWEEN THE COMMUNITY AND ITS PARTNERS IN GATT THE PRINCIPLES UNDERLYING THOSE AGREEMENTS MAY BE OF ASSISTANCE IN INTERPRETING THE RULES OF CLASSIFICATION APPLICABLE TO IT .
CONSEQUENTLY ACCOUNT SHOULD BE TAKEN OF THE CONTENT OF AGREEMENTS CONCLUDED IN THE COURSE OF THE TARIFF CONFERENCE OF 1960 TO 1961 WHEREBY THE COMMUNITY AGREED TO CONSOLIDATE THE CUSTOMS DUTIES APPLICABLE TO CERTAIN PRODUCTS INCLUDING THOSE UNDER HEADING 20.06 WHILST ITS GATT PARTNERS ACCEPTED THE RATES OF 9 PER CENT AND 13 PER CENT SUGAR CONTENT PREVIOUSLY FIXED INDEPENDENTLY BY THE COMMUNITY .
SINCE THOSE RATES WERE FIXED WITHOUT REGARD FOR THE ORIGIN OF THE SUGAR AND ON THE SOLE BASIS OF THE EXTENT OF ITS SUGAR CONTENT IT WAS CLEARLY THE INTENTION OF THOSE WHO FIXED THEM THAT SUCH RATES SHOULD AFFORD AN ABSOLUTE CRITERION OF CLASSIFICATION MAKING FOR THE UNIFORM CLASSIFICATION OF GOODS IN RELATIONS BETWEEN THE COMMUNITY AND OTHER MEMBERS OF GATT .
7 THE ABSOLUTE NATURE OF THIS CRITERION EMERGES YET MORE CLEARLY FROM THE CONDITIONS RELATING TO THE RIGHT OF THE COMMUNITY TO MAKE LIMITED EXCEPTIONS TO THE PRINCIPLE OF CONSOLIDATION OF CUSTOMS DUTIES .
ACCORDING TO THE EXPRESS WORDING OF NOTE ( 2 ) TO LIST XL OF THE PROTOCOL TO THE GENERAL AGREEMENT ON TARIFFS AND TRADE REPEATING THE RESULTS OF THE TARIFF CONFERENCE OF 1960 TO 1961 CONSENT WAS GRANTED TO THE RESERVATION IN FAVOUR OF THE APPLICATION BY THE COMMUNITY, OVER AND ABOVE THE CONSOLIDATED CUSTOMS DUTY, OF AN ADDITIONAL DUTY ON SUGAR NOT BECAUSE THE PRODUCT CONTAINED ADDED SUGAR BUT BECAUSE THE QUANTITY OF SUGAR IT CONTAINED IN EXCESS OF A CONTENT WHICH FOR THE PRODUCTS UNDER HEADING 20.06 WAS 9 PER CENT AND 13 PER CENT BY WEIGHT .
IF IT WAS POSSIBLE TO JUSTIFY THE IMPOSITION OF AN ADDITIONAL DUTY IT WAS, IN THE EXPRESS WORDS OF THIS RESERVATION, NOT BECAUSE SUGAR HAD BEEN ADDED BUT BECAUSE PERCENTAGES OF SUGAR HAD BEEN EXCEEDED .
8 THIS CONCLUSION IS CONFIRMED WITH PARTICULAR REGARD TO THE COMMUNITY BY THE SECTION OF THE COMMON CUSTOMS TARIFF APPROVED BY THE DECISION OF THE COUNCIL OF 13 FEBRUARY 1960 ( JO 80 A 1960 ) AND REFERRING INTER ALIA TO THE PRODUCTS UNDER HEADING 20.06 .
THE STRUCTURE OF THIS HEADING, WHICH CLASSIFIED PRODUCTS WITHOUT ADDED SUGAR AND THOSE WITH ADDED SUGAR UNDER THE SAME SUBHEADINGS, SHOWS CLEARLY THAT THOSE WHO DREW UP THE TARIFF DID NOT INTEND THAT THE ORIGIN OF THE SUGAR CONTAINED IN SUCH PRODUCTS SHOULD BE A CONCLUSIVE CRITERION FOR TARIFF CLASSIFICATION .
FURTHERMORE THIS TARIFF HEADING WAS SUPPLEMENTED BY AN ADDITIONAL NOTE DEFINING PRODUCTS CONTAINING ADDED SUGAR, WHICH WAS REPEATED IN ITS ESSENTIALS BY THE ADDITIONAL NOTE IN DISPUTE .
9 IT IS CLEAR FROM THOSE CONSIDERATIONS AS A WHOLE THAT ADDITIONAL NOTE NO 2 TO CHAPTER 20 OF THE COMMON CUSTOMS TARIFF IS TO BE UNDERSTOOD AS A CLASSIFICATION PROVISION BASED EXCLUSIVELY ON THE SUGAR CONTENT OF THE RELEVANT PRODUCTS IN EXCESS OF CERTAIN PERCENTAGES BY WEIGHT .
THE REPLY MUST THEREFORE BE THAT THE PROVISIONS OF SUBHEADING 20.06 B II ( A ) 6 ( BB ) OF THE COMMON CUSTOMS TARIFF READ TOGETHER WITH ADDITIONAL NOTE NO 2 TO CHAPTER 20 MUST BE INTERPRETED TO MEAN THAT FRUIT, OTHER THAN PINEAPPLES AND GRAPES, REFERRED TO UNDER HEADING 20.06 OF THE TARIFF HAVING A SUGAR CONTENT DETERMINED IN ACCORDANCE WITH ADDITIONAL NOTE NO 1 TO CHAPTER 20 WHICH EXCEEDS 9 PER CENT BY WEIGHT IS SUBJECT FOR THE PURPOSE OF CUSTOMS DUTIES TO THE RATE PRESCRIBED FOR FRUIT CONTAINING ADDED SUGAR REGARDLESS OF WHETHER SUGAR HAS IN FACT BEEN ADDED .
10 THE SECOND QUESTION IS SUPERFLUOUS SINCE AN AFFIRMATIVE REPLY HAS BEEN GIVEN TO THE FIRST QUESTION .
11 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND SINCE 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 NATIONAL COURT THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG IN ACCORDANCE WITH THE JUDGMENT DELIVERED BY THAT COURT ON 15 OCTOBER 1971, HEREBY RULES :
THE PROVISIONS OF SUBHEADING 20.06 B II ( A ) 6 ( BB ) OF THE COMMON CUSTOMS TARIFF READ TOGETHER WITH ADDITIONAL NOTE NO 2 TO CHAPTER 20 MUST BE INTERPRETED TO MEAN THAT FRUIT, OTHER THAN PINEAPPLES AND GRAPES, REFERRED TO UNDER HEADING 20.06 OF THE TARIFF HAVING A SUGAR CONTENT DETERMINED IN ACCORDANCE WITH ADDITIONAL NOTE NO 1 TO CHAPTER 20 WHICH EXCEEDS 9 PER CENT BY WEIGHT, IS SUBJECT FOR THE PURPOSE OF CUSTOMS DUTIES TO THE RATE PRESCRIBED FOR FRUIT CONTAINING ADDED SUGAR REGARDLESS OF WHETHER SUGAR HAS IN FACT BEEN ADDED .
