4.

According to the analysis made by Welding of maltrin 10 and maltrin 20 those imported products have a dextrose (or maltose) content of 11.6 and 18.2 % respectively. The rest of those products, that is, more than 80 %, is dextrin, that is, a substance falling under heading 35.05 of the Common Customs Tariff which is subject to the levy applicable to cereals, which is lower than that prescribed for sugar. Accordingly, Welding maintains that only the said percentages of dextrose should be taken into consideration for the purposes of calculating the levy payable on sugar. If this were not so importers of the product in question would receive discriminatory treatment in comparison with undertakings which import separately the two constituents of the product in question (the German court appears to concur on this point). Whilst the Commission in its observations does not dispute that the facts adduced by Welding are correct, it maintains that it is technically impossible with regard to the products imported by Welding to apply the criteria prescribed in the first subparagraph of Article 7 (2) of the said Regulation No 837/68 and accordingly to employ the so-called Lane and Eynon method of analysis. It was in fact on the basis of expert opinion maintaining that the Lane and Eynon method is impracticable for products such as those in question (that is, products containing less than 85 % sucrose and invert sugar expressed as sucrose), that the Commission prescribed the other method, based on the dry matter content. I must point out first of all that the rules laid down for the product in question, within the context of the system of the levy, are in accordance, on an objective view, with the criteria for classification adopted in the Common Customs Tariff. Note 2 to Chapter 35 of the Common Customs Tariff in fact provides that ‘For the purposes of heading 35.05, the term “dextrins” is to be taken to apply to starch degradation products with a reducing sugar content, expressed as dextrose on the dry substance, not exceeding 10 %. Such products with a reducing sugar content exceeding 10 % fall in heading 17.02’. Since the level of the dextrose content of the product in question exceeds the said limit of 10 % those products must be classified under tariff subheading 17.02 D covering sugars and sugar-based products; this means that the dextrin content of those products must also be classified as sugar. In view of this outcome under the rules of the Common Customs Tariff it appears logical, as the Commission points out, that the same substance (dextrin) should also be treated as sugar for the purposes of determining the total sugar content referred to in Article 7 (2) of Regulation No 837/68. Since in addition the dry matter content of the two products in question exceeds 10 % of dextrin — and must therefore for the above-mentioned reasons be considered as a whole as sugar in accordance with the said Note 2 to Chapter 35 of the Common Customs Tariff — the taking of the entire dry matter content as the basis for calculating the levy on sugar is also in accordance with the classification criterion of the Common Customs Tariff. The favourable position which traders importing dextrin and dextrose separately enjoy in comparison with those who import those substances ready-mixed is thus a difficulty stemming from the Common Customs Tariff and not from the second subparagraph of Article 7 (2) of the said Regulation No 837/68. Whilst with regard to the levy the classification of products on the basis of the rules of the Common Customs Tariff is not binding it nevertheless constitutes evidence which is not to be disregarded in view of the links existing between levies and customs duties in that both are charges applicable to imports from third countries (cf. the judgment of the Court of Justice of 26 April 1972 in Case 92/71 Interfood GmbH [1972] ECR 231). Even for the purposes of calculating the levy, therefore, it would be improper to depart from the criteria of classification of the Common Customs Tariff unless it were necessary to do so to avoid serious distortions in the operation of the system. With regard to the methods prescribed in Article 7 (2) for determining the sucrose content, Welding conceded at the hearing that those methods are accurate in most cases; Welding explained that it wishes in substance to obtain, rather than a ruling that the contested provision is invalid, a decision that its scope should be restricted with regard to products containing less than 85 % sucrose ascertained on the basis of the dry matter content. Nevertheless, the question is raised here in the general terms in which it was duly worded by the German court. In my view the Commission argues persuasively in pointing out that it is technically impossible to determine exactly the chemical composition of all products containing less than 85 % sucrose and invert sugar expressed as sucrose; that explains the necessity of adopting the method based on the dry matter content of the product — that method was, furthermore, chosen in accordance with the opinion of an independent expert, whose competence was not impugned by Welding. Welding has objected that in the decade following the adoption of the contested Regulation No 837/68 technical advances have made available new and better methods of analysis. In this situation the Commission should not only have amended the second subparagraph of Article 7 (2) but should also have reworded the first subparagraph, in which the Lane and Eynon method is prescribed. It is clear that we are not concerned here to assess whether it is appropriate to revise a provision to bring it into line with technical advances. The only point in question is whether the second subparagraph of Article 7 (2) is valid, and in particular whether the stated ground of invalidity, namely an infringement of the second subparagraph of Article 40 (3), is discernible. In my view it has by no means been established that the above-mentioned provision creates ‘discrimination between producers or consumers within the Community’; this is borne out by the fact that the alleged unfavourable treatment of importers of malto-dextrin as compared with those importing maltose and dextrin separately in no case amounts to discrimination against specified persons or against a group or category. It is clear that any trader can opt to import the two products separately if he considers it more profitable. It must finally be recognized that there is little reason to accept Welding's view that the relevant provision leads to anomalous results, since the system in question, which has been applied since 1968, has not caused any objection until now, apart, perhaps, from an isolated case to which Welding referred at the hearing without, however, providing any details. I therefore consider that the adoption of the method in question for calculating the levy applicable to the relevant products does not involve a breach by the Commission either of the limits of the powers delegated to it by the Council or of the prohibition on discrimination laid down in the second subparagraph of Article 40 (3) of the Treaty.