3.

Regarding the interpretation of Regulation No 755/67, the first question of the Finanzgericht seeks an interpretation of the product description “chocolate in bulk” in Article 1 of the regulation. The views of the plaintiff will be remembered from the summary of the position in the main action. It considers that at least intermediate and semi-finished products of chocolate manufacture should also be regarded as “chocolate in bulk”. The Commission, on the other hand, is of the opinion that only chocolate ready for consumption should be held to be “chocolate in bulk”. As the plaintiff demands and as is usual in questions of tariff classification, I shall deal first with the arguments based on the wording. As the term to be interpreted is a compound term, two components must be examined, “chocolate” and “in bulk”. The first word obviously presents no difficulties. By common consent its meaning is clear. It describes chocolate ready for consumption, that is, a product which displays all the essential characteristics of the composition and the processing of chocolate, even if it is sometimes a product that still requires moulding and packing. Common usage of language certainly indicates this meaning. However, this is also adopted by the Explanatory Notes to the Brussels Nomenclature, to which it is accepted that reference may be made, because at that time Community explanatory notes had not yet been issued. In fact they state under the term “chocolate”, inter alia, that “chocolate and chocolate goods may be put up either as slabs, tablets, bars, pastilles, croquettes, granules or powder or in the form of chocolate-coated products (creams, bonbons, fruit, liqueurs, etc.)”. However, difficulties arise when the words “chocolate” and “in bulk” are joined. In the opinion of the Commission, “chocolate in bulk” is a mass made from chocolate because the term “in bulk” (Masse) refers to a homogeneous structure, even if it is perhaps unmoulded and to this extent not finished. It must be contrasted with the term “filled chocolate”. The plaintiff, on the other hand, concludes from the fact that the term “Masse” in both German and French describes a substance without shape (“corps informe”) that word-compounds with Masse necessarily indicate an unfinished product, that is to say, a semi-finished product. This view is also supported by the parlance of the trade, particularly product descriptions in the food industry containing the component “Masse”. It must be deduced from them that they are products intended for further processing. In this respect the plaintiff gives many quotations from publications, particularly for the term “chocolate in bulk”, and concludes from them that in German (and also Dutch) usage its meaning clearly coincides with that advocated by the plaintiff. Nevertheless, it seems to me that the plaintiff has not quite succeeded in proving that this is clearly so in German usage. Examples which it submitted itself show in fact that not all words compounded with “Masse” indicate a semi-finished product for the manufacture of the product with which the word “Masse” is coupled. Mention might merely be made of the terms “Nußmasse” and “Kakaomasse” which certainly describe products made from nuts and cocoa and not products for the manufacture of nuts and cocoa. Support may even be found in the literature cited by the plaintiff (Buttiker, Praktische Warenkunde der Nahrungsmittel, Würzmittel, Genußmittel and Haushaltsmittel, 3rd Edition, p. 184) for the proposition that the term “Schokoladenmasse”, with regard to the substance, sometimes describes a finished product which merely requires to be moulded. Accordingly, the least that can be said is that German usage is not unequivocally in favour of the definition advocated by the plaintiff, and that to this extent doubts remain. The situation is obviously different with the French and Italian expressions “chocolat en masse” and cioccolata in massa' which clearly seem to point to the definition given by the Commission. This can be seen in the French Customs Tariff of 1955 which contains the following wording for tariff heading 18.06: ‘Chocolat et autres préparations alimentaires contenant de cacao: A — Chocolat en masse (plaques, plaquettes, tablettes, pastilles, croquettes, objects divers, etc.) en poudre ou en granules, contenant en cacao: …’ (‘Chocolate and other food preparations containing cocoa: A — Chocolate in bulk (slabs, tablets, bars, pastilles, croquettes, various, etc.) in the form of powder or of granules containing in cocoa: …’) According to this ‘chocolat en masse’ is undoubtedly an end-product. If doubts still existed they would be dispelled by the additional explanatory notes prepared by France for the customs nomenclature, for these state in relation to the term ‘chocolat en masse’: ‘cette dernière expression couvrant le chocolat sous ses formes habituelles: plaques, plaquettes, tablettes, pastilles, croquettes, sujets divers (…) à le condition, s'il s'agit du chocolat contenant des substances alimentaires autres que le cacao et le sucre (…) que ces substances soient en mélange intime dans la pate et broyés s'il y a lieu …’ (‘this latter term covering chocolate in all its usual forms: slabs, tablets, bars, pastilles, croquettes, various (…) on condition that with regard to chocolate containing food substances other than cocoa and sugar (…) these substances be intimately mixed in the paste and crushed where necessary …’). The French term ‘chocolat en masse’ therefore certainly means unfilled chocolate ready for consumption in a form usual in the trade. Now undoubtedly terms in Community law cannot be interpreted solely by reference to the language of one Member State. However, in the present case I would agree with the Commission when it states that where there are divergent meanings, as is obviously the case here, preference cannot be given, as the plaintiff demands, to the most favourable interpretation but that the meaning common to all four languages must be regarded as the correct one. In view however of the doubts existing as to the German term, it is certainly the meaning of the French term ‘chocolat en masse’ which is correct. Moreover, there is good reason also to follow the French sense because, of the four official languages of the Community, only French was chosen for authentic texts in GATT. It may therefore be assumed that when the customs duty concession was formulated using French terms it was also primarily their meaning that was envisaged. Nevertheless, the matter cannot of course rest with these considerations. The interpretation must have a wider basis and therefore we must further examine what other considerations can be invoked to strengthen or possibly weaken the conclusion drawn so far. First, there are the additional words in brackets (‘blocks, bars, sticks, etc.’) added to the term ‘chocolate in bulk’ in Article 1 of Regulation No 755/67 which, as we have seen, also support the presumption that the French customs tariff was being copied. In fact, it may be said in agreement with the Commission, that these additional words, at least so far as the consistency of the product is concerned, refer to typical finished products. Moreover this also applies to ‘blocks’ which, contrary to the contention of the plaintiff, not only form an intermediate product in the manufacture of chocolate intended for storage but are also suitable for sale to the final customer. It may be seen that this must be so from the Explanatory Notes to the Common Customs Tariff, formulated in April 1970, where they expressly mention ‘chocolate in blocks’ (that is, a product ready for consumption) as an example of chocolate. Of course a systematic interpretation of Regulation No 755/67 is more important. In this respect the Commission points out that of the products listed in Article 1 in four indents, the products mentioned in the last three indents are clearly finished products ready for consumption, which justifies the assumption that this was the decisive criterion for the entire scheme and thus also decisive for the definition of the term ‘chocolate in bulk’ which is found in the first indent. On the other hand, it cannot be contended against this interpretation that ‘chocolate in bulk’ within the meaning of the first indent must be segregated from ‘chocolate’ within the meaning of the fourth indent, and that this forces one to the conclusion that since ‘chocolate’ is a finished product, ‘chocolate in bulk’ cannot at the same time be a finished product and must therefore be regarded as an intermediate product. The Commission has rightly pointed to the fact that Regulation No 755/67 was issued for reasons of trade policy, that it contained the repeal of a GATT measure but that its purpose was not to change the customs nomenclature. According to the Commission the question of tariff classification had therefore not been to the fore when the regulation was issued, which can be seen from the fact that the fourth indent covers the entire tariff heading, although tariff heading 18.06A cannot have been intended. It maintained that a certain amount of overlapping, which was otherwise unknown to the customs tariff, could not therefore be excluded. However, this meant that provided that the two conditions there mentioned were fulfilled, the fourth indent covered the whole of the tariff heading ‘chocolate and other food preparations containing cocoa’. Accordingly, ‘chocolate in bulk’, confectionery and ice cream, put up for retail sale in packings of a net content of not more than 500 grammes and having a fat content derived from milk of not more than 6.5 % of the whole, necessarily came under two of the four categories. However, if it had been intended to exclude this one would have imagined that the fourth indenr would have been supplemented by the word ‘other’. The Commission argued that in particular the wording of the Community's tariff concession granted at the 1964-67 trade conference for tariff heading 18.06B supported this, especially as it could be assumed that the scope of the products under tariff heading 18.06B subject to a tariff concession was not intended to be altered but merely clarified by this other version differing from Regulation No 755/67. Moreover, it maintained that its interpretation (that ‘chocolate in bulk’ is chocolate ready for consumption) was further supported because otherwise chocolate ready for consumption which was not imported in packages of up to 500 grammes for retail sale (and therefore not covered by the fourth indent in Article 1 of Regulation No 755/67) would be subject to the full levy in Regulation No 160/66, and this could not have been intended. In fact it is difficult to deny that these contentions have persuasive force. Furthermore, the Commission s viewpoint is not contradicted by the wording of Regulation No 752/67, mentioned at the outset, which came into force on 1 December 1967 and which in Annex I combines ‘chocolate in bulk’ with ‘chocolates’ in one subheading; from this the plaintiff in turn draws the conclusion that since solely chocolates are products ready for consumption ‘chocolate in bulk’ must be a less developed product. Although it must be conceded that the different wording of Regulation No 752/67, applicable simultaneously with Regulation No 755/67, may at first sight give rise to some uncertainty, this divergence is not inexplicable for it was not possible simply to adopt the structure and terms of Regulation No 755/67 for Regulation No 752/67 which, as the Commission says, originated in ‘tariff theory’. Apart from this, the contrast between ‘chocolate in bulk’ and ‘chocolates’ does not force one to accept the plaintiff's claim because it is equally possible to maintain the view that chocolates are products in a customary trade packing whereas ‘chocolate in bulk’ is a finished product without a special form. This would merely mean that the term ‘chocolate in bulk’ must be more narrowly defined in Regulation No 752 67 than in Regulation No 755/67 (which moreover makes the absence of the addition in brackets in Regulation No 752/67 understandable). The Commission also showed convincingly that support cannot be found for the argument of the plaintiff in Regulation No 752/67 in so far as subheading 18.06B(a) covers products without a sugar content. In fact this in no way proves that ‘chocolate in bulk’ is necessarily an unfinished product, as this tariff heading also covers preparations based on sugar substitutes. Moreover, it is significant that a corresponding tariff heading is also found in Regulation No 735/68, a provision which substituted chocolate, that is a product clearly ready for consumption, for ‘chocolate in bulk’. Thus, although the arguments examined so far cannot upset the Commission's view, the ratio of Regulation No 755/67, on the other hand, supports it. As has been said, this regulation concerned the partial revocation of a tariff concession in the interest of the common organization of the milk market. The withdrawal became necessary with regard to food preparations with milk containing cocoa which were neither customary in the trade nor ready for consumption. On the other hand, the maximum limits of the levy had to be observed for products which were customary in the trade, that is, in so far as the main countries supplying them, Switzerland and Great Britain, had an interest in the preservation of traditional trade patterns. This fact no doubt leads to a restrictive interpretation of the exceptions laid down in Regulation No 755/67, indeed to the assumption that they only cover finished products and that any mixed products which are difficult to delineate and create a danger of evasion must be disregarded. If ‘chocolate in bulk’ also covered semi-finished products it would be incomprehensible why later (in Regulation No 1114/68) ‘chocolate milk crumbs’, a food preparation containing cocoa, and therefore an intermediate product, was expressly added to the list of exceptions in Regulation No 755/67. Since this amounted to a supplementary provision by means of a special indent it can certainly not be said that it was merely a clarification. On the contrary, it must be accepted that it was an alteration of substance. Finally, confirmation is found for the correctness of the conclusion drawn so far in the preliminary draft for the explanatory notes which was prepared by the customs experts of the Member States in November 1967 for the Common Customs Tariff and thus also for tariff heading 18.06. It also includes the term ‘chocolate in bulk’ and defines subheading 18.06B I, ‘chocolate in bulk, chocolates, whether or not filled (not including ice cream); confectionery containing cocoa and corresponding preparations containing cocoa based on sugar substitutes’, as follows: ‘1. Chocolate in blocks and chocolates, whether or not filled, usually in the form of slabs, bars, pastilles, croquettes, decorative crumbs, flakes and all other possible forms (…), even if they contain other foods, such as milk, cream, fruit or liqueurs; 2. Chocolate powder, made exclusively from processed chocolate, without the addition of other substances.’ Even though the draft was prepared in the absence of a Dutch expert and was not published, a certain importance must however be attached to it in the present context. For all these reasons the first question can therefore be answered in the way advocated by the Commission and there is no need to examine the tariff provisions cited by the plaintiff which, as the Commission has shown, would not produce anything material. Moreover in view of this result it is superfluous to examine the second question referred by the national court with its numerous subdivisions since it would only have been relevant if ‘chocolate in bulk’ had included semi-finished products.