THE EEC TREATY BY THE BUNDESFINANZHOF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
HAUPTZOLLAMT BIELEFELD
AND
OFFENE HANDELSGESELLSCHAFT IN FIRMA H . C . KOENIG
Subject of the case
ON THE VALIDITY OF EEC-REGULATION NO 7A/59 OF 18 DECEMBER 1959 ( OJ 1961, P . 71 ) AND THE INTERPRETATION OF TARIFF HEADINGS NOS 22.09-A-II AND 22.09-C-V-B OF THE COMMON CUSTOMS TARIFF
Grounds
1 BY ORDER OF 16 OCTOBER 1973 OF THE BUNDESFINANZHOF, FILED AT THE REGISTRY ON 3 DECEMBER 1973, A PRELIMINARY RULING WAS REQUESTED OF THE COURT AS TO THE VALIDITY AND INTERPRETATION OF EEC REGULATION NO 7A/59 OF THE COUNCIL, BEARING THE DATE 18 DECEMBER 1959 ( OJ 1961, P . 71 ), AS WELL AS TO THE INTERPRETATION OF TARIFF SUBHEADINGS NOS 22.09-A-II AND 22.09-C-V-B OF THE COMMON CUSTOMS TARIFF .
2 DURING THE ORAL PROCEDURE THE COUNCIL ADDUCED ARGUMENTS FROM THE ACTS RELATING TO THE ACCESSION TO THE COMMUNITIES OF THE KINGDOM OF DENMARK, OF IRELAND AND OF THE UNITED KINGDOM, IN ORDER TO CHALLENGE THE JURISDICTION OF THE COURT TO PRONOUNCE UPON THE VALIDITY OF REGULATION NO 7A .
ACCORDING TO SUCH ARGUMENT, AS AN ADDITION TO THE EEC TREATY, THE REGULATION IN QUESTION WAS, IN ANY EVENT, VALIDATED BY ARTICLE 1 OF THE TREATY OF ACCESSION, WHICH PROVIDES THAT THE STATES ACCEDING BECOME PARTIES TO THE TREATY ESTABLISHING THE COMMUNITIES 'AS AMENDED OR SUPPLEMENTED '.
MOREOVER, PROTOCOL NO 19, ANNEXED TO THE ACT OF ACCESSION, CONCERNING SPIRITUOUS BEVERAGES OBTAINED FROM CEREALS WOULD HAVE NO MEANING WITHOUT THE SUPPORT OF A VALID ORGANIZATION OF THE MARKET IN ALCOHOL, WHICH, IN ITS TURN, NECESSARILY PRESUPPOSES THE VALIDITY OF THE PROVISIONS MADE BY REGULATION NO 7A .
3 THE ACTS RELATING TO THE ACCESSION OF THE NEW MEMBER STATES HAVE AS THEIR ESSENTIAL PURPOSE THE EXTENSION TO THOSE STATES OF THE ENTIRETY OF COMMUNITY LAW IN FORCE AT THE TIME OF ACCESSION .
ALTHOUGH CERTAIN CLAUSES IN THESE ACTS, SUCH AS ARTICLE 3 OF THE TREATY OF ACCESSION, MAY BE CONSIDERED AS A RECOGNITION, BY ALL THE PARTIES, OF THE BINDING CHARACTER OF DECISIONS TAKEN OR AGREEMENTS REACHED WITHIN THE GENERAL SYSTEM OF COMMUNITY LAW, NO PROVISION IN THE TREATY OF ACCESSION OR IN THE ACTS ACCOMPANYING IT CAN BE CONSTRUED AS VALIDATING MEASURES, WHATEVER THEIR FORM, WHICH ARE INCOMPATIBLE WITH THE TREATIES ESTABLISHING THE COMMUNITIES .
4 ACCORDINGLY, IT WOULD APPEAR THAT THE PRELIMINARY OBJECTION OF THE COUNCIL MUST BE REJECTED .
AS TO THE FIRST QUESTION
5 THE FIRST QUESTION ASKS WHETHER REGULATION NO 7A OF THE COUNCIL, ADDING CERTAIN PRODUCTS TO THE LIST IN ANNEX II TO THE TREATY, IS VALID, ALTHOUGH NOT ADOPTED UNTIL AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE POWER CONFERRED BY ARTICLE 38 OF THE TREATY ESTABLISHING THE EEC .
THE NATIONAL COURT POINTS OUT IN THIS CONNEXION THAT REGULATION NO 7A, ALTHOUGH BEARING THE DATE OF 18 DECEMBER 1959, WAS NOT PUBLISHED IN THE OFFICIAL JOURNAL UNTIL OVER A YEAR