3.

The third question relates to Regulation No 241/70 of the Commission of 9 February 1970‘on the classification of goods under subheading No 21.07 F of the Common Customs Tariff’. The objective of this regulation as appears from its recitals and Article 1, is by negative definition to clarify the distinction between headings 21.04 and 21.07. Since the imports in question in the main action took place in May and July 1968 and the regulation (according to Article 2 thereof) entered into force only on 13 February 1970, the Finanzgericht would like to know whether the regulation was ‘by virtue of its content, already applicable on 27 May and 9 July 1968’ or whether it only applies to imports which take place after its entry into force. In this connexion it must be observed, first of all, that Regulation No 241/70 of the Commission is based on Regulation No 97/69 of the Council of 16 January 1969 (OJ L 14, 1) ‘on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff’. This regulation of the Council concerns in particular ‘measures which may be necessary for classifying certain goods’ in the Common Customs Tariff. As appears from its recitals it is intended to make it possible for provisions to be adopted to ‘specify the content of the headings or subheadings of the Common Customs Tariff’ without, however, amending the subheadings of the Common Customs Tariff without, however, amending the text thereof. For this purpose (Article 1 of Regulation No 97/69 so provides) a Committee on Common Customs Tariff Nomenclature is set up in which a representative of the Commission shall be the chairman. The representative of the Commission shall submit to the Committee a draft of the provisions to be adopted and the Committee shall deliver its opinion on the draft. Opinions shall be delivered by a majority of 12 votes, the votes of the Member States being weighted as provided in Article 148 (2) of the EEC Treaty. The Commission shall adopt the provisions envisaged where they are in accordance with the opinion of the Committee. Where there is no such accord, the Commission shall propose to the Council the provisions to be adopted and the Council shall act by a qualified majority. Since in the present case the provisions of the Commission were in accordance with the opinion of the Committee, Regulation No 241/70 of the Commission could be issued. As regards the applicability of this regulation (there is no question as to its validity and contrary to the plaintiffs opinion there is nothing which could be said to invalidate it) the answer to the question raised in my view requires no comprehensive investigation of the problem of the date from which such regulations relating to classification and interpretation can be applied in general and whether in certain circumstances they apply only to imports which have been made after they come into force. In the present case, and this facilitates our examination, it seems to foe established that we are not concerned with a rule which could be applied only to imports made after it came into force. In fact, the Brussels Explanatory Notes, that is an authoritative source of information in the absence of explanatory provisions in Community law, show, in relation to heading 21.04, that it covers preparations which are intended for the improvement of flavour of foods. Thus it depends, and the examples given in the Brussels Notes also support this, on whether the preparations are suitable and intended for consumption in the unaltered state. Nor does Regulation No 241/70 provide anything to the contrary and its recitals expressly refer to the requirements relating to the use of ‘products falling within heading 21.04 of the Common Customs Tariff, as appears from the Explanatory Notes to the Brussels Nomenclature’. Accordingly it lays down that preparations of a specifically defined composition, which are clearly not intended for consumption in the unaltered state, are to come under heading 21.07 and not heading 21.04. We are thus really faced with the clarification of a legal situation already in existence by virtue of Regulation No 950/68 and ascertainable with the aid of the Brussels Explanatory Notes. On the other hand, it is erroneous to speak, as the plaintiff has done in the proceedings, of a change in the substance of the legal situation, in the substantive tariff law, a change in the tariff classification and a transfer from one heading to another heading with the different rate of duty. However, although Regulation No 241/70 is merely of a confirmatory or declaratory nature and although it has merely elucidatory effect, in this capacity it may certainly be used as an aid in ascertaining the original meaning of the text of the tariff (cf. Case 14/70, [1970] ECR)—in other words—there can be no objection to applying it to imports which took place under the system of Regulation No 950/68 and for which the definitive charge had not yet been decided at the date of the entry into force of Regulation No 241/70. This does not mean any real, legislative, retroactive effect, but merely a kind of retroactive effect which legal interpretations of this type may possess quite properly. The only, in the Commission's view, legislative factor in Regulation No 241/70, the concept ‘clearly’ does not make any difference, for in truth it has a restrictive effect, that is favourable for the businesses concerned. Furthermore, there is nothing in the regulatory nature of the provision in question, in its legal basis or in the fact that it specifies a date for its entry into force which was not a date preceding its date of enactment to vitiate this conclusion which is supported both by the Government of the Federal Republic and the Commission. In the judgment in Case 74/69 ([1970] ECR), it was stated, as is known, ‘the uniform application of Community law is only guaranteed if it is the subject of formal measures taken in the context of the Treaty’, ‘an official interpretation of a regulation by an informal document of the Commission is not enough to confer on that interpretation an authentic Community character’. Thus in order to establish the binding force mentioned in that judgment the form of a regulation had to be chosen; according to Community law there was no other means available. Such an explanatory provision, however, does not necessarily thereby have a legislative character. Moreover, according to Article 191 of the EEC Treaty, regulations must come into force on a specific date. However, in the present case, precisely in view of the function of the explanatory provision, the stipulation of a date for entry into force cannot preclude the possibility of retroactive effect. On the contrary, the provision must be understood to the effect that from the date of the entry into force it binds courts and authorities, in relation to all cases which have not yet been decided, that is, those for which an application of the regulation is still being considered. Moreover, I would also point out that according to Community law binding explanatory provisions are not the prerogative of the Council, which drafted the Common Customs Tariff and its classification of goods, but that on the contrary the Commission may be delegated to do so. In any event, this view may be advocated because the procedure prescribed is so designed that an appropriate participation of the representatives of the Member States seems to be assured. In fact, it may be said to resemble the management committee procedure of the agricultural market regulations, that is, a procedure that you have already held to be compatible with Community law (Case 25/70, [1970] ECR; Case 26/70, [1970] ECR; Case 30/70, [1970] ECR). Finally, nothing can be derived from the plaintiff's reference to Article 28 of the EEC Treaty, the legal basis for Regulation No 97/69 of the Council. Even though Article 28 mentions alterations of duties in the Common Customs Tariff, this does not at all necessarily mean that everything that is done on the basis of this provision must be designed to effect a change in substantive tariff law. Properly understood, this article is not infringed even on the assumption that it covers all measures of the Council within the scope of its sovereignty in tariff matters, in so far as binding force is intended to be attributed to them, that is, including the issue of explanatory notes and the authorization of the Commission to issue them. Consequently, the third question must be answered, as suggested by the Commission and the Government of the Federal Republic, to the effect that Regulation No 241/70 of the Commission, as a valid explanatory provison binding on the authorities and the courts, must foe applied when considering all import matters not yet concluded at the date of its entry into force.