1.

I will deal with the first two questions together as the Federal Government and the Commission and, as regards essentials, Bollmann also, have done. You will recall the divergent views which have been put forward. The Federal Government's view is in essence that Member States have jurisdiction to clarify the relevant Community regulations in this case because they are not sufficiently clear and the Community has apparently not so far made full use of its legislative powers in relation to tariff classification. Apart from this it is clear that the descriptions of goods in Regulation No 22 referred to the Common Customs Tariff and the principles for its application, that is to say, also to the practice adopted of necessity by Member States for the purposes of explanation. Bollmann counters this argument by proceeding on the basis that even during the transitional period the Community alone had sovereignty in the field of tariffs over goods covered by market organizations. It is therefore clear that the jurisdiction to explain tariff questions was also reserved to the Community. Further the existing Community provisions for classifying tariffs are adequate; in particular Article 1 of Regulation No 22 does not require clarification. If the problem is considered in this light Member States cannot be deemed to have the power to make new rules of tariff classification which would endanger legal uniformity. In any case when the common market organizations entered into force existing national explanatory notes continued to be applicable to the extent to which they were compatible with EEC law. Finally the Commission's view is nearer to that of Bollmann, although without being entirely on all fours with it. The Commission does in fact regard as admissible measures taken by national legislatures for facilitating the application of Community law and consequently national rules for interpreting Community descriptions of a general nature. It stresses however that Member States do not have the freedom and the discretionary powers to assign specific goods to a particular tariff heading. If endeavours are made to find an answer to the questions referred by examining this wide range of opinions it is necessary to lay emphasis at the outset on an essential principle. It is in fact abundantly clear that the common market organizations can only fulfil their functions if their uniform application throughout the whole of the Community is guaranteed. In particular there can be no departure from the principle that in every Member State the same rates of levy must be applied to the same goods. If this principle were not adopted, there would be every reason to expect that mechanisms of market organization would run into serious difficulties and that there would in particular be the danger of diversions of trade with third countries — it is a third country which is involved in the main action. This appreciation of the problem certainly does not call in question the validity of the view put forward by the Bollmann firm and the Commission, namely that sovereignty in tariff matters relating to goods covered by a market organization has been transferred to the Community. If this view is right, it is however at the same time clear that in principle Member States no longer have an independent discretionary power to make binding rules in this field. Any such relevant questions of classification for tariff purposes are rather to be decided by the Community — Bollmann has called attention to this in its statement of case — as it has done in numerous legislative measures since 1962. On the other hand we are also faced with the fact that tariffs — including tariffs of levies — commonly include standard descriptions of goods which again and again give rise to doubts about their interpretation and to difficulties in their application. These difficulties appear to arise also in relation to the list of goods in this case as is shown by the facts in the main action. So the question can properly be asked whether it can be assumed, notwithstanding the sovereign power which the Community has in principle in tariff matters, that Member States have powers of clarification and definition at least so long as these are no detailed and accurate Community rules. As we have seen this is the Federal Government's argument. It can however easily be shown that it has no foundation. In fact it emerges from an examination of the entire system applicable to this case that in spite of the general nature of the description of goods in Regulation No 77 Community law itself clearly states in the final analysis how the goods in question are to be classified. On this point it is significant that the list of goods in Regulation No 22 and Regulation No 77 adopts the nomenclature of the Common Customs Tariff, which, as everyone knows, is based on the Brussels Nomenclature. As the Commission has explained a valuable aid to interpretation can therefore be found in the explanatory notes on the Brussels Nomenclature. Further the Decision of the Council of 13 February 1960 contains provisions for classification and interpretation relating to the Common Customs Tariff. Finally Article 8 of Regulation No 77 is itself a special provision relating to the classification of goods for tariff purposes and I will refer to this again in another connexion. All this in fact permits the conclusion to be drawn that Community law is wholly and comprehensively applicable to the present question of tariffs and, to use Bollmann's expression, ‘self-executing’. Although there is no separate detailed treatment of the classification of goods for tariff purposes in Community law, Member States clearly do not retain any national discretionary power to classify goods subject to the tariff, which the German Government claims it has by likening Community law to a wide-meshed net, that is to say, any discretion to issue binding provision of national law in the matter. At all events one limitation could be placed on the argument developed so far, which the Commission advocates but which is contrary to the view of Bollmann. Administrative requirements make it quite impossible to dispense with accurate and detailed rules, because they secure and facilitate administrative uniformity. Having regard to this necessity it seems defensible to accept that Member States have the power to issue explanatory notes on the tariff of levies which go beyond what can be directly inferred from the Community provisions. It is true that such notes — and this fact is decisive — cannot be final, binding measures, no matter when they were or will be made, but they are subject to the reservation that they must be compatible with the classification principles of Community law which take precedence. Subject to this essential limitation it must be recognized that Member States have the power to explain tariff rules, because this power does not represent a threat to the uniformity of administrative practice in the Community or offer any opportunity for manipulating the national tariff, which would be a danger which could not be discounted if questions concerning the classification of goods for tariff purposes were left to be decided by Member States exercising genuine discretionary powers. This proposition can moreover be all the more readily accepted, because apparently it is the practice of the Member States before issuing any such explanatory notes to reach agreement with each other and the Commission's experts. It seems to me indeed doubtful whether the court making the reference when it settled its questions had in mind such declaratory explanatory notes. Although the notion of the sovereign power of the Community in tariff matters, as I have described it so far, is to be inferred from the system provided by Regulations Nos 22 and 77 or — if you like — from the way in which Article 1 of Regulation No 22 sets out the list of goods in question, it must now still be shown that another result cannot be reached on the basis of Article 14 of Regulation No 22 (to which the Bundesfinanzhof also referred). Article 14 of Regulation No 22, as we know, provides that ‘Member States shall take all steps to adapt their legislative and administrative provisions and regulations in such a way that the provisions of the present Regulation, unless hereby otherwise expressly provided may be effectively implemented as from 1 July 1962’. In fact in order to understand its actual meaning the best thing to do is to adopt the Commission's interpretation. This is that Article 14 and other similar provisions, which as a matter of routine were incorporated in all market organizations, are primarily intended to supersede the systems which existed before, that is to say, to draw the attention of Member States to the need to repeal conflicting national laws. In addition Article 14 — the Commission argues — has an important part to play in the context of the necessary co-operation between Member States and Community institutions under the system of the common market organizations, that is to say, in the sharing of tasks which is essential to the market organizations. In fact these organizations are run on the basis that the necessary central decisions are made by the Community institutions whilst the administrative implementation is the responsibility of Member States. If Article 14 of Regulation No 22 is regarded in this light, it and other similar provisions refer primarily to the creation of the administrative conditions for putting into effect market organizations. They include measures such as the designation of the competent authorities, the fixing and computation of certain prices, the grant of licences, the conversion of the levy rates expressed in units of account, their calculation by means of specific conversion factors, etc. On the other hand there does not appear to be any justification for the assumption that Article 14 authorizes the adoption of tariff measures, that is to say, provisions which go beyond what is to be regarded as permissible classification and explanation of tariff headings in order to facilitate administration in the way I have mentioned above. With regard to the first two questions referred by the Bundesfinanzhof the following is therefore a summary of my submission. Sovereignty in tariff matters relating to the goods described in Regulation No 22 was transferred to the Community where that regulation entered into force. The question under which tariff heading goods are to be classified is governed solely by Community law. Member States have no jurisdiction to issue binding, explanatory notes. Subject to this reservation national explanatory notes can however be issued in order to facilitate administrative tasks.