1.

As we have heard it is first of all important to know whether tariff heading 20.06 B II(a) 6(bb) read together with Additional Note No 2 to Chapter 20 of the Common Customs Tariff must be interpreted as covering apricots with a sugar content exceeding 9 % and less than 13 % regardless of whether sugar was added. The question to be clarified is thus whether the additional note comprises a fiction, a legal definition, an irrebuttable presumption (as the Commission and the Federal Government both maintain) or whether, as the plaintiff thinks, it merely, has the status of an explanation to facilitate tariff classification and does not exclude contrary evidence to show that no sugar has been added. In order to answer this question it must be assumed that the additional note and the relevant tariff heading are to be considered as an entity. This may be asserted because it is evident that the additional note merely constitutes a definition valid for all the products to which it relates and is intended to simplify the presentation of the customs tariff. This does not provide any comment at all on the legal nature or legal content of the question put. The problem must be solved by other considerations. In turning to these I must admit from the outset that the arguments set out by the Commission and the Federal Republic have made a considerable impression on me. Both of these parties to the proceedings made their deductions primarily on the basis of the acknowledged fact that, in order to cover all goods, customs law has to make generalizations and that such generalizations constitute an essential element in the development of the law in this field. On this ground and also because the interests of foreign trade frequently require specific criteria, customs law to a large extent operates in a sphere where words are not used in their ordinary sense. The Federal Government quotes as an example of this the distinction between crude and refined animal oils in Chapter 15 which does not accord with scientific views. At page 11 of its observations the Commission has cited a series of similar examples (such as the definition of ‘calves’ in the Additional Note to Chapter 1 or ‘ivory’ in the additional notes to Chapter 5 of the Common Customs Tariff). What these parties to the proceedings have brought out seems to me important, namely, that not only the customs legislation of the Member States but also the Common Customs Tariff contain frequently recurring fictions but appear to be devoid of rebuttable presumptions. This is frequently indicated by wording such as: the product ‘shall be classified as’ (ist zu tarifieren als), these products ‘are covered by tariff heading X’ (gehören zur Tarifstelle X), or again the recourse had to the word ‘mean’ (gelten). In particular this last-mentioned word occurs in 50 places in the notes to the Brussels Nomenclature and in 30 places in the additional notes inserted in the Customs Tariff by EEC regulations. It may be taken from this that the word is in fact to be understood as intending an obligatory tariff classification since it is frequently employed as an equivalent for other expressions, such as ‘do not cover’, ‘cover only’ or ‘also constitute’. Accordingly expressions of this nature appear to have been frequently understood as constituting fictions both by the Customs Co-operation Council of Brussels and in the established practice of the Member States. In view of this it must indeed seem astonishing to consider similar expressions in the relevant Additional Note to Chapter 20 of the Common Customs Tariff as mere explanations, as equivalent to interpretative provisions and to regard them solely as rebuttable presumptions. In any event support for this view is not to be found, as the plaintiff seeks to find it, in reliance on the fact that the Treaty makes provision for the objectives of Articles 39 and 110 to be taken into account. Arguments of this nature are much too vague to permit definite conclusions to be drawn in matters of customs tariff law in which, as both the Federal Government and the Commission emphasize, the legislature in principle enjoys wide freedom. Likewise there is simply no force in the plaintiff's reference to the principles of constitutional law regarding the admissibility of fictions as such and establishing limits to be observed in this respect in accordance with the principle of employing appropriate means to achieve the end in view. In particular it cannot be conceded that such principles are also valid in the sphere of customs law with its peculiar administrative and commercial problems and that they are moreover common to all Member States in this sphere. On the other hand at least two and indeed possibly three serious arguments may be advanced in support of the view of the Commission and of the Federal Republic that the Additional Note to Chapter 20 contains an irrebuttable presumption. The first important factor here is the negotiations in the Dillon Round, within the framework of GATT, which in 1962 resulted in an agreement on customs concessions and the consolidation of reduced customs rates. These negotiations were conducted on the basis of the Common Customs Tariff, in the version of the Decision of the Council of 13 February 1960, that is to say of a text Chapter 20 of which already contained additional notes whose content corresponds to that in force today. In this connexion it is important that with regard to tariff heading 20.06 the members of the Community who were parties to the agreement, clearly and directly accepted the percentages for the sugar content suggested by the Community and thus accepted fixed rates regarding the natural sugar content. Indeed had they not intended that these rates should be absolute the Community States would certainly not have omitted a clear reference to this effect, as the Commission convincingly emphasizes. An even more significant point is that the parties to the Treaty furthermore accepted a reservation in favour of the Community whereby with regard to certain headings the Community is entitled to levy an additional charge over and above the consolidated rates when specific sugar contents are exceeded. Even at this point it was thus not certain whether added sugar was meant. If this were disregarded by an interpretation of the Common Customs Tariff through a literal construction of the word ‘addition’ this would in fact amount to saying that the Community had independently made further concessions. There is however no support whatsoever for a view of this nature. A second but less important argument arises from the origins of the Common Customs Tariff. In this respect the Commission considers that it is in a position to show evidence of a decisive influence coming from the French customs tariff of 1957. In this tariff, so far as it is relevant now, a distinction was drawn between preserved fruit ‘sans sucre ni sirop’ (without sugar or syrup), and preserved fruit ‘dans un liquide sucré’ (in a sugar solution), which was liable to a higher rate of customs duty. With this must be read Note V to Chapter 20 containing a specific limit for the sugar content and the statement ‘sans qu'il y ait lieu de rechercher l'origine du sucre’ (no investigation into the source of the sugar being necessary). From the documents produced it must be assumed that the Common Customs Tariff was drawn up accordingly and in particular that the figures relating to the natural sugar content, established carefully by experts, were to be understood in absolute terms. Nevertheless when reference is made in the Common Customs Tariff to added sugar this probably follows the example of tariff heading 20.06 of the Brussels Nomenclature (where reference is made to fruit with or without added sugar) and furthermore because it might appear paradoxical to talk of ‘fruit without sugar’ as does the French tariff. The third argument which can be put forward in favour of the view of the Commission and of the Federal Government is certainly weightier and probably the most telling. This is in essence that if the Additional Note to Chapter 20 of the Common Customs Tariff merely contains a rebuttable presumption against which evidence is admissible that sugar has not been added to a product numerous and serious problems must in practice follow. In this connexion the following must be stated: according to what we have heard in the proceedings it certainly appears possible through chemical analysis to produce evidence of added sugar in cases where it has been added to fruit which in its natural state has no sugar or only small quantities or contains additives (such as, for example, glucose syrup). It must however be borne in mind that such additions seldom occur and are clearly of no practical importance. On the contrary the ordinary sugar which is usually added (sucrose which is a combination of dextrose and fructose) cannot be found by the chemical analysis of preserved fruit. According to the expert opinions which have been produced the sugar decomposes, partly through heating during the preserving process and through the effects of the fruit acid mixing with the natural fruit sugar, so that it is no longer possible to distinguish it in the varying proportions of fruit sugar present. Thus the only form of proof which could be adduced here regarding the addition of sugar would be that the total sugar content of a preserved fruit should be compared to the sugar content normally encountered in the relevant fruit. This would however necessarily entail difficult investigations regarding the natural sugar content which appears to vary considerably according to the type of fruit, the year of harvesting, the region of cultivation, the time of harvesting and the type of preparation (preservation by adding water or by dehydration). Furthermore only sugar above an upper limit, fixed empirically, could be considered as added sugar. This would thus pave the way for manipulation and in many cases the added sugar could not be determined. If in the view of these problems it were desired to change to other methods of proof, the so-called administrative proof, the difficulties would generally be even greater. In this connexion the plaintiff points to the fact that in this case the imported product came from Spain and that the imported apricot pulp was packed in containers holding more than 4.5 kg. From this it may be ascertained with certainty that it was a typical semi-finished product without added sugar. It is not for the Court to make decisions of this nature within the framework of a preliminary question (when they are relevant such questions must be dealt with in the main action). However it must be noted that there scarcely appears sufficient proof for the plaintiff's assertion that this is a typical semi-finished product to which it would be uneconomic to add sugar. The position could be different where the plaintiff's reference to a relevant export regulation from the Spanish Ministry of Commerce is concerned; this apparently prescribes certain minimal requirements to be observed regarding the natural sugar content of apricot pulp and of preserved fruit and makes provision for checking on exportation. Nevertheless it would certainly be wrong to seek the solution to the problem of principle which has arisen by having regard only to the peculiarities of the case at issue in the main action. The additional notes now under consideration apply not merely to the goods imported by the plaintiff and to the exporting country in this particular case. If, as appears necessary, the scope of the consideration is broadened, the problem of the admissibility of the administrative proof is thrown into relief (quite apart from the fact that this represents an alien element in customs proceedings, which require quick settlement). In principle the choice is between a strict or liberal assessment of the evidence in the proceedings. If the strict interpretation is preferred, as the term ‘proof’ suggests, this would in many cases undoubtedly result in considerable impairment of trade. On the other hand if a liberal attitude were adopted to the interpretation of the evidence this would involve a risk of failing to implement the intention of the legislature, namely that fruit containing added sugar should always be subject to a higher customs duty. This would especially be so if, as the plaintiff advocates and as is prescribed in an order of the Federal Ministry of Finance of 8 July 1971, account were taken solely of the declarations of importers or of the export certificates from the exporting country. It is plain that extensive opportunities for abuse would be afforded through the multiplicity of countries involved, with their diverse administrative structures and unevenly developed means of control as well as the large number of firms in the trade. Finally it should not be forgotten that a procedure of this nature with regard to evidence could lead to considerable differences in its evaluation from country to country, a situation which would undoubtedly be at odds with the principle of the unity of the Common Market. Viewed in this light it is indeed impossible to dismiss out of hand the conclusion that the legislature could scarcely have intended to confer on the words ‘shall be considered as’ contained in Additional Note No 2 to Chapter 20 of the Common Customs Tariff a meaning other than that which they bear in other sections of the customs tariff and to read into them a mere rebuttable presumption. Before this can be accepted as a definite fact one of the arguments to the contrary put forward by the plaintiff indeed remains to be considered, one which it regards as by no means the least important. This relates to Regulation No 865/68 of the Council under which a levy is to be made on processed products containing added sugar and to the findings made in this respect in the judgment in Case 3/71. As the Court is aware it was stated in this judgment that Article 2 of Regulation No 865, which corresponds to the Additional Note to Chapter 20 of the Common Customs Tariff, only contains a rebuttable presumption; it therefore allows the importer to adduce evidence that sugar has not been added to the imported product. The applicant considers that if this is correct there can be no other logical interpretation of the Additional Note to Chapter 20. In this connexion it must admittedly only be regarded as unfortunate and a disservice to legal certainty if essentially similar provisions of Community law receive different interpretations. Accordingly, the Commission too considers that as a matter of principle the Court should reconsider the said decision. Nevertheless this solution which in itself appears the neatest, even if the foregoing is regarded as well founded, is not inevitable. Indeed the view may be maintained that the problems in the present case (tariff classification) can be logically distinguished from those in Case 3/71 (imposing a charge), that the judgment in Case 3/71 does not necessarily constitute res judicata with regard to the present case and consequently a judgment at variance with it would by no means constitute an insupportable contradiction. In this connexion it must first of all be borne in mind that the said additional note was not inserted in the customs tariff by Regulation No 865; rather was it already contained in the customs tariff. It must further be clearly established that the judgment in Case 3/71 was delivered on the wording of Article 2 of Regulation No 865, the express recitals in its preamble and the unequivocal objective of the trading system that only added sugar and not natural sugar contained in the fruit should be subject to a levy. On the other hand the same definitiveness clearly does not prevail in customs law; in this sphere the legislature enjoys significantly greater freedom, as I have already said. Thus there is in fact no obstacle to the view, put forward by the Commission as an alternative, that the provisions on the organization of the market are independent of tariff legislation and of the problems of tariff classification. This can indeed be supported by reference to the findings of the judgment in Case 3/71 which mention that ‘this provision [additional Note No 2 to Chapter 20 of the Common Customs Tariff], incorporated in a regulation concerning customs duties, cannot alter the basis of charge of an agricultural levy especially since it is referred to by Article 9(2) of Regulation No 865/68 only for the purposes of “tariff classification” of the products to which the regulation relates’. The particular significance of this is that in the matter of tariff classification the appearance of the letter L (= levy) opposite a heading or subheading does not necessarily mean that the levy must be imposed. Properly understood the letter L is merely in the nature of a reference to B.5 of the General Rules on the Common Customs Tariff. Finally it must be deduced from the relevant provisions on the organization of the market whether the conditions for imposing a levy (which is of course dependent on the price situation) are present. When the problems related to the judgment in Case 3/71 have been thus overcome there is in fact no obstacle to the view that Additional Note No 2 to Chapter 20 of the Common Custom Tariff contains a legal definition or a fiction against which contrary evidence may not be brought. Consequently this should be the reply to the first question of the Finanzgericht Hamburg.