1 BY ORDER DATED 14 JUNE 1972, RECEIVED AT THE COURT ON 6 JULY 1972, THE MUNICH FINANZGERICHT APPLIED TO THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, FOR A RULING ON THE VALIDITY OF ARTICLE 7 ( 3 ) OF REGULATION NO 83/67/EEC OF THE COUNCIL OF 18 APRIL 1967, COMBINED WITH ANNEX V OF THE SAME REGULATION ( OJ 1967, NO 81 ). THIS QUESTION HAS ARISEN FROM AN ACTION ON THE DETERMINATION OF THE QUANTITIES OF MILKFAT CONTAINED IN IMPORTED " CREAM MILK CHOCOLATE IN BULK " REQUIRED FOR THE PURPOSES OF ITS TARIFF CLASSIFICATION . THE METHOD APPLIED FOR THIS PURPOSE BY THE NATIONAL AUTHORITIES IS THAT LAID DOWN BY ARTICLE 7 ( 3 ) OF REGULATION NO 83/67 AND DESCRIBED IN ANNEX V THERETO .
2 ARTICLE 7 ( 3 ) OF THE SAID REGULATION LAYS DOWN THAT THE PERCENTAGE BY WEIGHT OF MILKFAT CONTAINED IN A PRODUCT SHALL BE DETERMINED ACCORDING TO THE METHOD DESCRIBED IN ANNEX V THERETO . THE METHOD DESCRIBED IN ANNEX V IS AN INDIRECT METHOD OF ANALYSIS, BASED ON THE PRINCIPLE ACCORDING TO WHICH THE PERCENTAGE OF MILKFAT IS CALCULATED FROM THE BUTYRIC INDEX OF THE TOTAL FAT AND ON AN AVERAGE BUTYRIC INDEX CONTAINED IN MILKFAT .
3 ACCORDING TO LUETTICKE, THIS METHOD CONTAINS SEVERAL UNCERTAIN FACTORS LEADING TO ERRONEOUS RESULTS AND HAVING THE EFFECT OF IMPOSING ON THE IMPORTER AN UNJUSTIFIED FISCAL CHARGE ANALOGOUS TO A TAX HAVING EQUIVALENT EFFECT TO A CUSTOMS DUTY . THESE FACTORS OF UNCERTAINTY ARE DUE NOT ONLY TO THE INCORRECT RELATIONSHIP BETWEEN THE TOTAL FAT CONTENT TAKEN AS THE BASIS OF CALCULATION AND THE FACTOR APPLIED, BUT ALSO AND ABOVE ALL TO THE FACT THAT THE SAID METHOD TAKES INTO ACCOUNT NEITHER BLANK TESTS NOR FLUCTUATIONS OF THE BUTYRIC INDEX OF MILKFAT, NOR, LASTLY, THE MARGIN OF ERROR FROM ONE EXPERIMENTER TO ANOTHER . BY NOT PROVIDING FOR A CORRECTIVE FLAT-RATE COEFFICIENT TO COMPENSATE FOR THE ERRORS ARISING FROM THESE FACTORS OF UNCERTAINTY, THE METHOD IN DISPUTE GIVES VALUES OF THE CONTENT OF MILKFAT IN THE IMPORTED GOODS WHICH ARE BOTH APPROXIMATE AND TOO HIGH .
4 IN DEFINING IN ANNEX V THE METHOD OF ANALYSIS FOR DETERMINING THE MILKFAT CONTENT, REGULATION NO 83/67 ESTABLISHES A MATERIAL CONDITION WHICH IS INDISPENSABLE TO THE IMPLEMENTATION OF REGULATION NO 160/66/EEC OF THE COUNCIL OF 27 OCTOBER 1966 ON THE TRADE ARRANGEMENTS APPLICABLE TO CERTAIN GOODS . BY VIRTUE OF THIS REGULATION, AND IN PARTICULAR ARTICLE 10, IMPORTS INTO A MEMBER STATE FROM A THIRD COUNTRY ARE SUBJECT TO A CHARGE TAKING THE PLACE OF CUSTOMS DUTIES AND CONSISTING OF TWO ELEMENTS, ONE FIXED, CONSTITUTING AND AD VALOREM CUSTOMS DUTY, AND THE OTHER VARIABLE . THIS LATTER ELEMENT IS INTENDED TO COVER, IN RESPECT OF THE QUANTITIES OF BASIC PRODUCTS TO BE TAKEN AS HAVING BEEN USED IN MANUFACTURE, THE INCIDENCE OF THE DIFFERENCE BETWEEN THE PRICES OF THE SAID PRODUCTS IN THE IMPORTING MEMBER STATE ON THE ONE HAND, AND THOSE OF IMPORTS COMING FROM THIRD COUNTRIES ON THE OTHER HAND . THE REASON FOR THIS SYSTEM IS THE NECESSITY, EXPRESSED BY REGULATION NO 160/66, TO ADAPT THE PROTECTION ACCORDED TO THE GOODS IN QUESTION TO THAT ENJOYED BY BASIC AGRICULTURAL PRODUCTS .
5 TO ACHIEVE THIS END AS EFFECTIVELY AS POSSIBLE, REGULATION NO 160/66 WAIVED THE REQUIREMENT OF PROVING, ON THE IMPORT OF ANY GOODS RESULTING FROM PROCESSING, THE NATURE AND QUANTITY OF PROCESSED BASIC PRODUCTS THEY CONTAIN, AND OPTED FOR A FLAT-RATE SYSTEM OF CLASSIFICATION AND CHARGE . FOR THE PURPOSES OF THEIR TARIFF CLASSIFICATION, THE GOODS CONCERNED WERE GROUPED UNDER TARIFF SPECIFICATIONS DEFINED BY VARIOUS BANDS OF COMPOSITION, ALLOWING FOR CLASSIFICATION, ACCORDING TO THE QUANTITIES OF BASIC PRODUCTS THEY CONTAIN, OF THE MOST REPRESENTATIVE COMMERCIAL VARIETIES . FOR EACH SPECIFICATION, THE SAID REGULATION, AS WELL AS REGULATION NO 83/67, ADOPTED IN IMPLEMENTATION OF IT, FIXED ON A FLAT-RATE BASIS THE QUANTITIES OF THE DIFFERENT BASIC PRODUCTS TO BE TAKEN AS HAVING BEEN USED IN THE MANUFACTURE OF THE TAXABLE GOODS . THE VARIABLE FACTOR TO BE CHARGED ON THESE GOODS WAS, UNDER THE TERMS OF ARTICLE 12 OF THE SAID REGULATION, FIXED QUARTERLY ON THE BASIS OF THE AVERAGE OF THE THRESHOLD PRICES AND THE C.I.F . PRICES ESTABLISHED FOR EACH PERIOD IN QUESTION .
6 WITHIN THE FRAMEWORK OF THE SYSTEM THUS ESTABLISHED, THE CALCULATION OF THE QUANTITIES OF BASIC PRODUCTS IN THE GOODS MUST ABOVE ALL DEPEND ON THE NECESSITY OF HAVING RECOURSE TO A UNIFORM METHOD OF ANALYSIS THROUGHOUT THE COMMUNITY AND AT THE SAME TIME OF AVOIDING FRUSTRATING THE PROTECTIVE PURPOSES OF THE SYSTEM . IT IS IMPOSSIBLE TO FIND A GROUND OF ILLEGALITY IN THE FACT THAT THE METHOD OF ANALYSIS EMPLOYED DOES NOT TAKE INTO ACCOUNT ALL FACTORS CAPABLE OF ARRIVING AT EXACT VALUES .
7 HAVING REGARD, THEREFORE, TO THE FLAT-RATE STRUCTURE AND THE PURPOSES OF THE SYSTEM ESTABLISHED BY REGULATION NO 160/66, THE FACT THAT THE METHOD OF ANALYSIS DESCRIBED IN ANNEX V OF REGULATION NO 83/67 IS AFFECTED BY FACTORS OF UNCERTAINTY AND, BECAUSE OF THIS, RESULTS IN APPROXIMATE VALUES OF THE MILKFAT CONTENT, IS NOT SUFFICIENT TO CONSTITUTE A DEFECT AFFECTING THE VALIDITY OF THE PROVISIONS OF REGULATION NO 83/67 ON WHICH IT IS BASED .