Judgment of the Court of 3 March 1971. - Alfons Lütticke GmbH v Hauptzollamt Passau. - Reference for a preliminary ruling: Finanzgericht München - Germany. - Chocolat. - Case 51-70.



European Court reports 1971 Page 00121

Danish special edition Page 00025

Greek special edition Page 00705

Portuguese special edition Page 00037



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - RULES GOVERNING TRADE WITH THIRD COUNTRIES - PROCESSED PRODUCTS - CHOCOLATE IN BULK - CONCEPT

( REGULATION NO 755/67/EEC OF THE COUNCIL, ARTICLE 1 )

Summary

THE TERM " CHOCOLATE IN BULK " IN THE FIRST INDENT OF ARTICLE 1 OF REGULATION NO 755/67 OF THE COUNCIL OF 26 OCTOBER 1967 MUST BE INTERPRETED AS COVERING SOLELY CHOCOLATE READY FOR CONSUMPTION WHICH CAN BE MARKETED AS CHOCOLATE .

Parties

IN CASE 51/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT MUENCHEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ALFONS LUETTICKE GMBH, COLOGNE,

AND

HAUPTZOLLAMT PASSAU,

Subject of the case

ON THE INTERPRETATION OF THE TERM " CHOCOLATE IN BULK " IN ARTICLE 1 OF REGULATION NO 755/67 OF THE COUNCIL OF THE EEC OF 26 OCTOBER 1967 ( OFFICIAL JOURNAL, 1967, NO 260 ),

Grounds

1 BY AN ORDER OF 3 AUGUST 1970, RECEIVED AT THE COURT ON 18 AUGUST 1970, THE FINANZGERICHT MUENCHEN, PURSUANT TO ARTICLE 177 OF THE EEC TREATY REFERRED SEVERAL QUESTIONS RELATING TO THE INTERPRETATION OF REGULATION NO 752/67/EEC OF THE COUNCIL OF 24 OCTOBER 1967 ( OFFICIAL JOURNAL 1967, NO 263 ) AND REGULATION NO 755/67/EEC OF THE COUNCIL OF 26 OCTOBER 1967 ( OFFICIAL JOURNAL 1967, NO 260 ).

THE FIRST QUESTION

2 IN THE FIRST QUESTION THE COURT IS ASKED TO RULE WHETHER THE TERM " CHOCOLATE IN BULK " IN ARTICLE 1 OF REGULATION NO 755/67/EEC IS TO BE INTERPRETED TO THE EFFECT THAT IT ONLY COVERS CHOCOLATE READY FOR CONSUMPTION OR ONLY INTERMEDIATE OR SEMI-FINISHED PRODUCTS OF THE CHOCOLATE INDUSTRY .

3 THIS QUESTION RELATES TO THE TARIFF CLASSIFICATION OF CERTAIN FOOD PREPARATIONS FOR THE MANUFACTURE OF CHOCOLATE WHICH WERE IMPORTED INTO THE COMMUNITY IN NOVEMBER 1967 AND JANUARY AND JUNE 1968 . IT EMERGES FROM THE ORDER OF THE COURT MAKING THE REFERENCE, THE CUSTOMS DECLARATIONS AND THE WRITTEN OBSERVATIONS SUBMITTED BY THE COMMISSION AND BY THE PLAINTIFF IN THE MAIN ACTION UNDER ARTICLE 20 ( 2 ) OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE THAT THESE ARE PREPARATIONS CONTAINING 0 TO 20 PER CENT SUGAR, 10 TO 26 PER CENT COCOA OR COCOA IN BULK AND 64 TO 74 PER CENT MILK .

4 THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT THE REGULATION FOR WHICH THE INTERPRETATION IS REQUESTED WAS NO LONGER IN FORCE AT THE TIME OF THE IMPORTS IN QUESTION . HOWEVER, THIS REGULATION, ACCORDING TO THE SECOND PARAGRAPH OF ARTICLE 2 THEREOF, " SHALL APPLY UP TO THE DATE OF THE DECISION OF THE COUNCIL CONCERNING THE CONCLUSION OF THE NEGOTIATIONS OPENED IN ACCORDANCE WITH ARTICLE XXVIII OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE ". THE PREAMBLE TO THE SAID REGULATION SHOWS THAT THE NEGOTIATIONS REFERRED TO ARE THOSE IN WHICH THE COMMISSION WAS AUTHORIZED TO PARTICIPATE BY DECISION OF THE COUNCIL OF 25 JULY 1967 . NO DECISION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 2 ABOVEMENTIONED WAS MADE BEFORE THE ADOPTION OF REGULATION NO 2121/68 OF THE COUNCIL OF 20 DECEMBER 1968, ARTICLE 4 OF WHICH REPEALED REGULATION NO 755/67 WITH EFFECT FROM 1 JANUARY 1969 . IT FOLLOWS THAT REGULATION NO 755/67 WAS STILL IN FORCE AT THE TIME OF THE IMPORTS IN QUESTION .

5 BY ARTICLE 1 OF REGULATION NO 755/67 THE AMOUNT OF THE TAX REFERRED TO IN ARTICLE 10 OF REGULATION NO 160/66 IS, BY WAY OF DEROGATION FROM ARTICLE 16 OF THAT REGULATION, TO BE COLLECTED IN FULL ON PRODUCTS CLASSIFIED UNDER TARIFF HEADING 18.06 - B OF THE COMMON CUSTOMS TARIFF OTHER THAN " CHOCOLATE IN BULK ", CONFECTIONERY CONTAINING COCOA OR CHOCOLATE, WHETHER OR NOT FILLED, ICE-CREAM CONTAINING COCOA OR CHOCOLATE AND CHOCOLATE AND OTHER FOOD PREPARATIONS SATISFYING CERTAIN CONDITIONS OF PACKAGING FOR RETAIL SALE . THEREFORE, IN DETERMINING THE SCOPE OF APPLICATION OF THESE PRODUCT DESCRIPTIONS, IT MUST BE BORNE IN MIND THAT REGULATION NO 755/67 APPLIES ONLY TO CERTAIN LISTED PRODUCTS .

6 NEITHER FROM THE LETTER NOR FROM THE CONTEXT CAN THE TERM " CHOCOLATE IN BULK " AS USED IN REGULATIONS NOS 752/67 AND 755/67 BE SO INTERPRETED AS TO EXTEND THE SCOPE OF APPLICATION TO INTERMEDIATE OR SEMI-FINISHED PRODUCTS NECESSARY FOR THE MANUFACTURE OF CHOCOLATE . IN PARTICULAR, IT MUST BE CONCLUDED FROM ANNEXES I AND II TO REGULATION NO 752/67 OF THE COUNCIL THAT THE CUSTOMS TARIFF, WHICH AMENDS REGULATION NO 83/67 ON THIS POINT, CLASSIFIED " CHOCOLATE IN BULK " UNDER THE SAME TARIFF HEADING ( 18.06 - B - I ) AS " CHOCOLATE GOODS " AND " SUGAR CONFECTIONERY " WHICH ARE PRODUCTS READY FOR CONSUMPTION . IT CANNOT BE DEDUCED FROM LETTER ( A ) OF THIS TARIFF HEADING, WHICH RELATES TO PRODUCTS " CONTAINING NO SUCROSE OR CONTAINING LESS THAN 5 PER CENT BY WEIGHT OF SUCROSE ", THAT REGULATION NO 752/67 WAS INTENDED, BY THE USE OF THE TERM " CHOCOLATE IN BULK ", ALSO TO COVER INTERMEDIATE OR SEMI-FINISHED PRODUCTS IN CHOCOLATE MANUFACTURING . SINCE ONLY FINISHED PRODUCTS COME UNDER TARIFF HEADING 18.06 - B - I, THE DESIGNATION CONTAINED UNDER LETTER ( A ) MUST REFER NOT TO " CHOCOLATE IN BULK " BUT TO " SUBSTITUTES MADE FROM SUGAR SUBSTITUTES ".

7 IN COMMON USAGE THE TERM " IN BULK " DESCRIBES A PRODUCT THAT HAS NO PARTICULAR FORM OR WHICH IS CHARACTERIZED BY A HOMOGENEOUS MIXTURE OF ITS CONSTITUENTS . THE MORE DETAILED DESCRIPTION " BLOCKS, BARS, STICKS ... " ADDED IN BRACKETS TO THE FIRST INDENT OF ARTICLE 1 OF REGULATION NO 755/67 INDICATES THE VARIOUS FORMS IN WHICH " CHOCOLATE IN BULK " MAY EXIST . " CHOCOLATE IN BULK " MAY BE REGARDED AS " READY FOR CONSUMPTION " IF IT CAN BE MARKETED AS CHOCOLATE; THIS DOES NOT NECESSARILY PRECLUDE IT FROM UNDERGOING A FURTHER PRODUCTION OR PACKAGING STAGE . THUS IN THE PRESENT CASE THE TERM " IN BULK " MEANS A HOMOGENEOUS MASS OF CHOCOLATE, REGARDLESS OF THE FORM IN WHICH IT IS PRESENTED .

8 ACCORDINGLY, THE TERM " IN BULK " CANNOT BE SO INTERPRETED AS TO DESCRIBE A PRODUCT WHICH IS NOT READY FOR CONSUMPTION . TO ATTRIBUTE TO THE TERM " CHOCOLATE IN BULK " A WIDER SCOPE AND NOT LIMIT IT SOLELY TO PRODUCTS READY FOR CONSUMPTION WOULD BE INCOMPATIBLE WITH THE AIMS OF REGULATION NO 755/67, WHICH WITH THE WITHDRAWAL OF THE TARIFF CONCESSIONS FOR FOOD PREPARATIONS FOR THE MANUFACTURE OF CHOCOLATE TOOK ACCOUNT AS FAR AS POSSIBLE OF THE NECESSITY OF PROTECTING THE MARKET FOR MILK AND MILK PRODUCTS WITHIN THE COMMUNITY . MOREOVER, IT FOLLOWS FROM ARTICLE 1 OF REGULATION NO 1114/68 OF THE COUNCIL OF 29 JULY 1968, IN WHICH THE PROVISIONS OF ARTICLE 16 OF REGULATION NO 160/66 WERE EXTENDED TO PREPARATIONS FOR CHOCOLATE MANUFACTURING, THAT THE COUNCIL EXPRESSLY DESCRIBED THESE PRODUCTS AND THE CONDITIONS WHICH THEY HAD TO FULFIL WITH REGARD TO THEIR MILK FAT CONTENT . ALTHOUGH REGULATION NO 1114/68 HAD NOT YET ENTERED INTO FORCE AT THE TIME OF THE IMPORTS IN QUESTION IT SUPPLEMENTED REGULATION NO 755/67 WITHOUT AMENDING IT AND THEREFORE ALLOWS A BETTER UNDERSTANDING OF THE GUIDING PRINCIPLE OF THIS REGULATION .

9 IT IS THEREFORE APPROPRIATE TO REPLY THAT THE TERM " CHOCOLATE IN BULK " IN THE FIRST INDENT OF ARTICLE 1 OF REGULATION NO 755/67 MUST BE INTERPRETED AS COVERING SOLELY CHOCOLATE READY FOR CONSUMPTION WHICH CAN BE MARKETED AS CHOCOLATE .

10 SINCE THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE THE REMAINING QUESTIONS BECOME SUPERFLUOUS .

Decision on costs

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT MUENCHEN, THE DECISION OF COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT MUENCHEN BY ORDER OF 3 AUGUST 1970, HEREBY RULES :

THE TERM " CHOCOLATE IN BULK " IN THE FIRST INDENT OF REGULATION NO 755/67 OF THE COUNCIL OF 26 OCTOBER 1967 MUST BE INTERPRETED AS COVERING SOLELY CHOCOLATE READY FOR CONSUMPTION, WHICH CAN BE MARKETED AS CHOCOLATE .