1 BY ORDER DATED 22 FEBRUARY 1973, FILED AT THE COURT OF JUSTICE ON 15 MARCH 1973, THE HAMBURG FINANZGERICHT REFERRED, UNDER ARTICLE 177 OF THE EEC TREATY, THREE QUESTIONS ON THE INTERPRETATION OF SUBHEADING 17.04-D-II OF THE COMMON CUSTOMS TARIFF . IT APPEARS FROM THE ORDER THAT THE QUESTIONS REFER TO THE TARIFF CLASSIFICATION OF A PRODUCT IMPORTED INTO THE FEDERAL REPUBLIC FROM DENMARK IN FEBRUARY 1970, DESIGNATED " BULK CARAMEL " AND CONTAINING ABOUT 50 PER CENT BUTTER OR BUTTERFAT, ABOUT 20 PER CENT SUGAR, ABOUT 20 PER CENT GLUCOSE, ABOUT 5 PER CENT MILK POWDER AND AROMATIC AND FLAVOURING MATERIAL . ON THE FIRST QUESTION
2 IT IS ASKED WHETHER THE MILKFAT CONTENT IN GOODS WITHIN SUBHEADING 17.04-D-II IS SUBJECT TO ANY, AND IF SO, WHAT, LIMITATION .
3 WHEREAS SUBHEADING 17.04-D-I LAYS DOWN AN UPPER LIMIT ( CONTAINING NO MILKFATS OR CONTAINING LESS THAN 1.5 PER CENT BY WEIGHT OF SUCH FATS ), SUBHEADING 17.04-D-II DOES NOT . ALTHOUGH THE WORDING OF SUBHEADING 17.04-D-II DOES NOT STATE THAT THE PRODUCTS COVERED MUST BE LARGELY COMPOSED OF SUGAR, IT DOES INDICATE QUITE CLEARLY THAT INGREDIENTS OTHER THAN SUGAR MUST NOT BE PRESENT IN SUCH PROPORTION AS TO AFFECT THE CHARACTER OF THE PRODUCT AS " SUGAR CONFECTIONERY ". THIS BEING THE CASE, IT IS NOT POSSIBLE TO FIX A GENERALLY APPLICABLE QUANTIFIED LIMIT FOR MILKFAT CONTENT FOR THE PURPOSES OF THE SUBHEADING AT ISSUE . A MAXIMUM LIMIT OF THIS KIND MUST BE FIXED HAVING REGARD TO THE FACTS OF EACH CASE, IN PARTICULAR, DATA AS TO THE METHOD OF MANUFACTURE, COMPOSITION AND USE OF THE PRODUCT IN QUESTION . THUS THE FIXING OF THIS LIMIT MUST BE LEFT TO THE DISCRETION OF THE COURT CHARGED WITH THE APPLICATION OF THE COMMON CUSTOMS TARIFF IN EACH CASE, HAVING REGARD TO THE FACT THAT THE MILKFAT CONTENT OF GOODS COVERED BY SUBHEADING 17.04-D-II OF THE COMMON CUSTOMS TARIFF MUST NOT BE SUCH AS TO AFFECT THE CHARACTER OF THOSE PRODUCTS AS SUGAR CONFECTIONERY . ON THE SECOND AND THIRD QUESTIONS
4 IT IS ASKED WHETHER SEMI-FINISHED PRODUCTS, IN THE FINISHING OF WHICH SUGAR MUST BE ADDED, CAN BE INCLUDED IN " SUGAR CONFECTIONARY " WITHIN THE MEANING OF SUBHEADING 17.04-D-II AND, IF SO, WHETHER SUCH CLASSIFICATION DEPENDS UPON THE GENERAL OPINION OBTAINING IN THE CONFECTIONERY TRADE .
5 THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE STATE WITH REGARD TO HEADING 17.04 THAT THE HEADING ALSO COVERS " PASTES USED FOR MAKING FONDANTS, MARZIPAN, NOUGAT ETC ". THEREFORE PRODUCTS IN THE FORM OF SEMI-FINISHED PRODUCTS ARE TO BE CLASSIFIED UNDER THIS HEADING IF THEY ALREADY DISPLAY THE SPECIFIC AND ESSENTIAL CHARACTERISTICS OF " SUGAR CONFECTIONERY ".
6 WHILST THE PRODUCT IN ITS BULK FORM, NOT HAVING ATTAINED ITS FINAL COMPOSITION IN RESPECT OF ITS PRINCIPAL INGREDIENTS AND REQUIRING, FOR EXAMPLE, THE ADDITION OF SUGAR, MAY, IN SOME CASES, SHOW THE CHARACTERISTICS OF SUGAR CONFECTIONERY WITHIN THE MEANING OF HEADING 17.04, ITS COMPOSITION MUST SPECIFICALLY AND DEFINITELY DESIGNATE IT FOR USE IN THE MAKING OF A CERTAIN CATEGORY OF SUGAR CONFECTIONERY . IN ORDER TO ASCERTAIN IF THIS IS SO, ACCOUNT MUST BE TAKEN OF FACTUAL DATA WITH REGARD TO THE USUAL METHOD OF MANUFACTURE AND COMPOSITION OF THE FINISHED PRODUCT IN QUESTION .
7 ACCORDINGLY, PRODUCTS IN BULK FORM INTENDED FOR USE IN MAKING SUGAR CONFECTIONERY, EVEN IF THEIR SUGAR CONTENT MUST BE INCREASED DURING PROCESSING INTO THE FINISHED PRODUCT, ARE TO BE DEEMED TO BE COVERED BY SUBHEADING 17.04-D-II PROVIDED THAT THEIR COMPOSITION SPECIFICALLY AND DEFINITELY DESIGNATES THEM FOR USE IN THE MAKING OF A CERTAIN CATEGORY OF SUGAR CONFECTIONERY .