JUDGMENT OF 26.4.1972 — CASE 92/71 INTERFOOD v HAUPTZOLLAMT HAMBURG
In Case 92/71 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending before that court between
THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco (Rapporteur) and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I— Summary of the facts and procedure
The facts and the course of the procedure may be summarized as follows:
1) The Interfood undertaking obtained customs clearance for 500 containers of apricots from Spain holding less than 5 kg but more than 4.5 kg without spirit. The customs office took three containers as samples for analysis and found that the average sugar content was 9.2 % by weight. The customs office considered that the goods must be classified under subheading 26.06 B II(a) 6(bb) and imposed customs duties at the rate of 22.4 %. Interfood did not dispute the figures obtained by refractometry but claimed that customs duties were not chargeable on the goods at the rate of 22.4 % as ‘apricots in syrup’. It requested that the rate of 17 % should be applied. The customs office rejected this complaint by a decision of 23 October 1970 with the explanation that, as stated in Additional Note No 2 to Chapter 20 of the Common Customs Tariff, apricots ‘shall be considered as (gelten als) containing added sugar’ when the sugar content thereof exceeds 9 % by weight. Since the average sugar content of the fruit in dispute was 9.2 % it followed that it must be considered as containing added sugar and classified under subheading 20.06 B II (a) 6(bb). The parties disagree of this interpretation and on the scope of the said additional note. After the Finanzgericht Hamburg had been requested to give a ruling on the dismissal of the complaint it decided, by an order of 15 October 1971 to stay the proceedings and to request the Court to give a preliminary ruling on the following questions:
‘Question I
Must subheading 20.06 B II(a) 6(bb) of the Common Customs Tariff read together with Additional Note No 2 to Chapter 20 be interpreted to mean that, when fruit (other than pineapples and grapes) referred to under heading 20.06 of the tariff has a sugar content which, determined in accordance with Additional Note No 1 to Chapter 20, exceeds 9 % by weight but is less than 13 %, it is liable to customs duty at the high rate prescribed for fruit containing added sugar (regardless of whether sugar has been added), despite the fact that fruit prepared without added sugar in packings of a net capacity of 4.5 kg or more is specifically referred to under subheading 20.06 B II(c) of the Common Customs Tariff which fixes the rate of duty for apricots at 17 %?
Question II
If the answer to Question I is in the negative, is it necessary, having regard to the wording of subheading 20.06 B II(c) of the Common Customs Tariff, to interpret Additional Note No 2 to Chapter 20 to mean that (in accordance with the ruling of the Court of Justice regarding the levy fixed by Regulation (EEC) No 865/68) although the customs duties may only be levied at the high rate on products processed by an actual addition of sugar, the fact remains that if the sugar content of fruit coming under subheadings 20.06 B II(a) 6(bb) and 26.06 B II(c) 1(aa) of the Common Customs Tariff exceeds 9 % by weight the burden of proving the natural sugar content is borne by the importer?’
2) A copy of the order making the reference was lodged at the Court Registry on 9 November 1971. Interfood GmbH, represented by Dietrich Ehle, the Government of the Federal Republic of Germany, represented by Rudolf Morowitz, assisted by Ernst H. Cludius and Harry Schäpe, and the Commission of the European Communities, represented by its Legal Adviser, Peter Gilsdorf, acting as Agent, submitted observations in accordance with Article 20 of the Protocol on the Statute of the Court. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure without any preparatory inquiry. Interfood GmbH, the Government of the Federal Republic of Germany and the Commission of the European Communities presented oral argument at the hearing on 24 February 1972. The Advocate-General delivered his opinion at the hearing on 21 March 1972.
II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court
The observations submitted under Article 20 of the Protocol on the Statute of the Court may be summarized as follows:
A — Observations submitted by Interfood GmbH
The first question
a) Interfood recalls that prior to the entry into force of Regulation No 865/68 of the Council and the introduction of the. additional notes to Chapter 20 of the Common Customs Tariff the distinction between the two subheadings in dispute presented no problem since the tariff classification of the products was decided solely on the basis of the sugar actually added. Following the introduction of the additional notes the practice regarding tariff classification underwent a modification. The customs administration thereafter checked the sugar content of the product exclusively by the refractometric method prescribed in Regulation No 865/68 without endeavouring to determine whether such sugar was natural or added. It is consequently necessary to determine the significance of the Additional Notes to Chapter 20. They could constitute In its judgment in Case 3/71 the Court held that Additional Note No 2 merely constituted a guide (a rule of interpretation) intended to facilitate the classification of the products in question. This ruling of the Court related expressly and exclusively to the classification of a specific product under a specific tariff heading for the purpose of the liability of the product to the levy. However this view must of necessity prevail also with regard to the customs tariff. Additional Note No 2 cannot be interpreted differently in the Common Customs Tariff, a fortiori in the same chapter, according as it relates to the classification of a product for the purposes of imposing the levy or imposing customs duties. It is clear from Article 9(2) of Regulation No 865/68 (second half) that a tariff nomenclature constitutes an entity applicable for the purposes both of the liability of a product to the levy and of its classification in the customs tariff: the rules of interpretation also constitute an entity. In the first half of this provision there is no reference to the additional notes: the latter follow solely from Article 2 of Regulation No 865/68. The first conclusion to be drawn from this is that Additional Note No 2 does not constitute a legal definition even as regards the classification of products in the customs tariff. It is merely a rule of interpretation facilitating the classification of products in this tariff. The principles laid down by the Court in its judgment in Case 3/71 also hold good with regard to this classification. The first question should thus be answered in the negative.
either a non-exclusive rule of interpretation intended to facilitate the tariff classification of a product;
or a legal definition binding the customs authorities.
b) In addition Interfood maintains as an alternative that the conclusions thus drawn cannot be modified if Additional Note No 2 is regarded as a legal definition. The word ‘gelten’ appearing in this note and in Article 2(3) of Regulation No 865/68 does not imply that each time the legislature used this word it intended to establish an irrebuttable presumption regarding certain factual elements for, as the judgment in Case 3/71 shows, this word may, taking account of the objectives and of the overall plan of the rules, constitute a simple presumption. According to the preamble to Regulation No 865/68 its essential aim is to bring the trading system for processed products into line with that laid down for sugar and cereals. Far from merely embracing the imposition of the levy on the ‘sugar’ contained in processed products, the trading system involves first and foremost the application of the customs duties provided for by the Common Customs Tariff. It is precisely the amount of such duties which indicates whether or not sugar has been added to the product during processing.
c) Interfood adds that in any event the interpretation of the disputed Note 2 as a legal definition based on a fiction amounts to ignoring the fact that the Finanzgericht Hamburg has already pointed out in its order of reference that one and the same concept (the addition of sugar) must not be differently interpreted in the same chapter, in one place as a simple presumption and in another as an irrebuttable presumption according as the liability of a product to the levy or its classification in the Common Customs Tariff is concerned. Fictions created by law are subject to strict legal limits. In tax terminology a fiction or irrebuttable presumption is a form of generalization. A ‘complete’ generalization is one which precludes the submission of contrary evidence by the person liable for payment and is allowed only in a very limited number of cases under the constitutional principle of the appropriateness of the means to the end. With regard to such appropriateness only in cases where proof is particularly difficult may the legislature have recourse if necessary to what is known as an ‘incomplete’ generalization which is one involving a reversal of the burden of proof which then falls on the person liable for payment. Furthermore it is clear from the wording of Article 18 of Regulation No 865/68 that it must be applied in such a way that account is taken of the objectives of Articles 39 and 110 of the Treaty. The importation of apricots without added sugar does not affect those objectives since Community production in this sector does not meet the needs of the Community. On the other hand the classification of apricots without added sugar under the subheading laid down for apricots with added sugar infringes the principle of liberalizing customs and external trade as set out in Articles 18, 29 and 110 of the EEC Treaty.
d) Interfood finally recalls a decision of the Federal Ministry of Finance of 8 July 1971 (Annex 1) which, following the judgment of the Court in Case 3/71, instructs the customs services to impose the levy only in cases where the percentage of sucrose by weight is exceeded and the importer cannot prove that the sugar was not added to the relevant product. Moreover the principal customs offices were instructed to draw up a report to that Ministry for 1 September 1971 regarding the findings made in this respect. Interfood requests that the outcome of those reports should be communicated to the Court or notified to the parties concerned. It considers that the reply to the first question should be as follows :
‘Tariff subheading 20.06 B II(a) 6(bb) of the Common Customs Tariff read together with Additional Note No 2 to Chapter 20 must be interpreted to mean that, with regard to the imposition of customs duties, this subheading takes effect only in the case of processed products to which sugar has in fact been added’.
The second question
Interfood considers that the reply to this question is determined by judgment of the Court in Case 3/71 according to which, if by refractometric examination the sugar content is found to exceed 9 %, there is a presumption that sugar has been added but this presumption may be rebutted by evidence to the contrary. The importer may prove that the product in question only contains natural sugar. This ruling also applies to the tariff classification of apricots with a sugar content exceeding 9 %. Nevertheless, despite this division of the burden of proof, it is in principle for the customs administration to prove that the classification applied by it is well founded. Although in exceptional cases there is a presumption in favour of the customs administration, with an opportunity for the importer to submit evidence to the contrary, such exceptions should however be strictly limited. It is precisely those two conditions which are absent in the case of the importation of apricots from Spain.
In this connexion Interfood founds on documentation produced as an annex, in particular on the Spanish regulations on the export of preserved fruit (Annex 3) and on economic considerations derived
from the intended use of the product in the jam and bakery industries ;
from the level of the price of sugar which is continually rising in Spain so that adding sugar would produce an unacceptable increase in the price of the product and would consequently discourage purchasers;
from the fact that of itself the content in natural sugar has no effect on the importer's buying price or selling price.
It follows from all those factors that in most cases of imports of apricot pulp it is quite unnecessary to prove that no sugar has been added to the product since such an addition would not make commercial sense. Furthermore the customs administration would be less burdened with work if it were to analyse apricot pulp exclusively by sample instead of analysing each batch to determine the tariff classification of the goods. If in a specific case serious doubts were to arise whether or not sugar had been added to a product the importer should be entitled to submit evidence to the contrary. In principle it is however for the importer to determine the mode of proof to be employed. This evidence might be constituted not only by a declaration from the forwarding agent and production of an export certificate but also by an expert's opinion indicating primarily the degrees of variation in the natural sugar content of the fruit in question in the course of the relevant year in the country in question. In so far as the sugar content of the fruit examined falls within the limits of those variations this must be held as constituting proof to the contrary.
Interfood considers that the reply to be given to the second question should be as follows :
‘If the imported fruit has a sugar content exceeding 9 % by weight and if, after exhausting all the methods of proof and checking at its disposal, the customs administration continues to harbour legitimate doubts whether the product contains only natural sugar, the importer is justified in adducing contrary evidence by the means at his disposal in order to prove that no sugar has been added to the product’.
B — Written observations submitted by the Government of the Federal Republic of Germany
a) The German Government refers of all to the historical background to heading 20.06. It maintains that preserved fruit under heading 20.06 has always posed particular problems for customs administrations since the sugar content constitutes an important economic component of the products in question. This is why in certain Member States since the fifties a distinction has been made within this heading between products with added sugar and products without added sugar. This distinction was adopted by the decision of the Council of 13 February 1960 approving part of the Common Customs Tariff (JO 80 A, 1960) and providing at Chapter 20 of the tariff for a provision conforming to No 2 of the Additional Notes to the Common Customs Tariff. From the initial entry into force of the Common Customs Tariff this provision has formed an integral part of the tariff. It corresponds to the concessions agreed in the course of the Dillon Round of GATT (1960 to 1961). With regard to all the consolidated duties under tariff headings 20.06 B II and 20.07 B I to VII, List XL in Annexes A to the GATT Protocol, repeating the results of the 1960 to 1961 Conference, was clarified by an explanatory note indicating The undertaking given by the Member States of the EEC under GATT with regard to heading 20.06 and the structure of the Common Customs Tariff are thus in accord. The interpretation of Additional Note No 2 must be deduced from this relationship. On the other hand this interpretation had no connexion with the provisions adopted in 1967 on the common organizations of the market. It was only with regard to its particular objectives that the organization of the markets in processed fruit and vegetable products (last affected by Regulation No 865/68) expanded the division of the customs tariff initially adopted in accordance with the undertaking arising from GATT. It is clear from this development that the tariff headings cannot be interpreted on the basis of the organization of the markets but that on the contrary the structure of that organization may be explained only by the tariff provisions.
that by this list must be understood any sugar content ‘exceeding a content of x % regardless of whether such content is of natural origin or results from an addition of sugar;
that the rates fixed as limits for the natural and presumed sugar content, considered as representative percentages (by weight) of natural sugar’ are fixed standard rates without regard to the particular case.
b) The German Government then expressed the view with regard to the meaning of the word ‘gelten’ appearing in No 2 of the Additional Notes to the Common Customs Tariff (German version) that it may not be interpreted as a presumption capable of being rebutted by evidence to the contrary. First of all against this interpretation there must be set the fact that the subdivision of tariff heading 20.06 was not effected in connexion with the common organization of the market in sugar and the organization for processed fruit and vegetable products. It is a purely tariff measure, that is to say, one taken in international interests in order to classify products under a clear subheading. The Common Customs Tariff which is based on the Brussels Nomenclature in fact require to arrange products under a tariff subheading in accordance with a universally valid system without taking account of the fact that customs duties may vary from country to country. Only in this way can international agreements make reference to specific products and the uniform Community application of a customs union be ensured. As a result the Common Customs Tariff does not recognize simple presumptions because they frequently give rise to different classifications as the burden of proof on the parties is a matter of chance. Consequently the frequency of expressions including the word ‘gelten’ and their place in the context indicate that it was intended thereby to give clear instructions for the classification of a product. Thus it was that those expressions are included for the main headings both by the Brussels Customs Cooperation Council and by the European Communities which, regarding the subheadings, adhere strictly to the Brussels Nomenclature. By using indifferently the words ‘gelten’, ‘gehören’ or ‘sind’ in several chapters the wording of the customs tariff indicates clearly that it intends to give irrefutable instructions as to classification. Additional Note No 2 to Chapter 20 can only be understood in this sense. The interpretation advocated does not conflict with the problems of the levy under the common organization of the markets in Regulation No 865/68. Such an organization of the markets does not lay down the tariff classification of a product but merely makes provision under certain conditions for a levy on products which come under a certain tariff subheading Even if no levy were imposed, for example because calculation of the sugar content did not reveal a quantity of sugar subject to the levy, such calculation would not in any way alter the classification
c) By means of technical considerations, supported by an expert opinion appended to its statement, the German Government also remarks that there is no technical process which can determine the origin of sugar by analysing it. With regard to prepared fruit it is in fact impossible to determine whether the sugar has been added or not since the total sugar content comes within the margin of the fluctuation in the natural sugar content of the various fruits. The German Government adds that those considerations are not intended to take account of cases in which there are added to prepared fruit types of sugar which do not exist in the fruit in its natural state or which do so only in insignificant quantities or which include additional substances which the fruit does not contain. Those instances are devoid of practical importance because it cannot be seriously disputed that sugar has been added if the presence of sugar other than that peculiar to the fruit is proved.
d) The German Government submits that the reply to the national court should be as follows :
The first question
‘No 2 of the Additional Notes to Chapter 20 of the Common Customs Tariff determines the classification of products coming under heading 20.06 solely in terms of their sugar content independently of whether sugar has in fact been added to such products’.
The second question and as an alternative
‘The question of the classification of products referred to in heading 20.06 of the Common Customs Tariff is a preliminary to that of the levy within the meaning of Regulation No 865/68. Classification of products which varies according to evidence is impossible’.
C — Written observations submitted by the Commission of the European Communities
The first question
The Commission of the European Communities considers that the first question can only be answered in the affirmative, that is to say, the tariff classification of a product under the two subheadings carrying different rates can in no circumstances depend on the question whether sugar has actually been added to the fruit. This view is consistent with that which has always been maintained by the Community and with the established practice of the Member States since the entry into force of the Common Customs Tariff.
a) In support of this view the Commission invokes the historical precedents for the relevant provisions of the Common Customs Tariff.
i) It recalls first of all that the Common Customs Tariff was the outcome of a regrouping and overlapping of the previous customs tariffs of the Member States, taking account of the Brussels Nomenclature. The distinction between preserved fruit with added sugar and other preserved fruit stems from the French customs tariff. This distinction is only comprehensible with reference to Note V to Chapter 20 from which it follows that preserved fruit comes under the system for preserved fruit without sugar or syrup or if the sugar content exceeds 7 % or 13 % it is subject to the system for fruit preserved in a sugar solution without its being necessary to investigate the origin of the sugar in either case. It will be noted that the French tariff has refrained from employing the term of ‘added sugar’ or an equivalent concept although the fixing of a higher rate of customs duties for preserves with a sugar content exceeding 7 % or 13 % was based on the consideration that in general sugar is added to such fruit. The French system was adopted by the Common Customs Tariff from the moment when it came into existence in 1960. In the Common Customs Tariff the system underwent two substantial modifications; the first consisted in raising the limit for the sugar content above which preserved fruit other than pineapples and grapes were subject to a higher customs duty, the other in substituting for the distinction between ‘fruit without sugar’ as opposed to ‘fruit in a sugar solution’, the distinction, more realistic and conforming more closely to Chapter 20 of the Brussels Nomenclature, between ‘fruit not containing added sugar’ and ‘fruit containing added sugar’. However, as is clear from the preparatory work on the Common Customs Tariff there was no question of departing from the principle of the French tariff wherein it is intended that the fixed percentages should constitute an absolute criterion for classification under the heading carrying with it a higher or lower rate of customs duty.
ii) The Commission then recalls the Dillon negotiations and their outcome. By this customs agreement, concluded within the framework of GATT in 1962, the Commission in particular consolidated the customs duties applicable to the goods pertaining to Chapter 20, which were important from the commercial point of view. The trading partners of the Community thereby accepted the fixed differential rates (9 % and 13 % sugar content respectively) which had been previously fixed independently by the Communities. If it were not necessary to understand those rates in their absolute sense it must be supposed that those trading partners would not have omitted from the agreement a point of such importance to them. On the other hand the consolidation of customs duties was limited in favour of the Community by a reservation whereby the Community retained the right, in addition to the consolidated duty, to levy an additional duty on sugar applicable to the quantity of sugar contained in the product ‘in excess of a content of x % by weight’. It is significant that the right to levy this additional duty (which subsequently was to become the levy) did not depend in this reservation on the existence of ‘added sugar’ but on the simple fact that a certain percentage was exceeded.
b) These considerations are also confirmed by an approach based on logic and the establishment of the concepts of the customs tariff. The expression ‘fruit containing added sugar’ in Additional Note No 2 to Chapter 20 cannot be interpreted in accordance with its ordinary meaning; in Chapter 20 it has a specific meaning which was exhaustively defined by the legislature in this note. From the point of view of draftsmanship it would in fact be impossible to conceive of the Common Customs Tariff, and from the practical point of view of its application by the customs authorities the tariff would be useless, if the possibility of creating specific concepts, in the form of legal fictions, were ruled out. The concepts peculiar to and the logic of the customs tariff thus exclude the application in this sphere of the same criteria as, for example, in civil law. The Common Customs Tariff can only be applied in practice if the customs law is strictly interpreted in that its concepts and definitions are applied without admitting proof to the contrary.
c) It is moreover impossible for technical reasons to distinguish natural sugar from added sugar and for this reason the legislature had recourse to the fiction contained in Additional Note No 2. On this point the Commission refers to its observations in Case 3/71 and produces an expert opinion in support. If the Court considers it necessary to settle this point or if it has doubts as to the accuracy of this opinion, the Commission requests the Court to order a fresh expert opinion. If the conclusions of the expert opinion submitted are regarded as correct, the Commission considers that an interpretation of Additional Note No 2 as constituting a simple presumption is unfounded since reversing the burden of proof involves The Commission also cites a memorandum from the American State Department of 19 October 1971 (Annex VI) wherein the view is expressed that the interest of the countries wishing to export to the Community is not necessarily to determine in each case the content in added sugar but that those countries should endeavour to reach a general solution on as broad a basis as possible in the interests of commerce and the simplification of administration.
either, in the case of chemical proof, obliging the importer to submit an ‘impossible’ proof to the contrary,
or the admission of evidence other than chemical evidence. However there is no other reliable proof which meets the requirements of a customs administration working quickly under practical conditions. In fact following the judgment of the Court in Case 3/71 the financial authorities were induced, since chemical evidence was not available, to authorize the administrative proof (cf. the circular from the Federal Minister of Finance of 8 July 1971) by a procedure which to a large extent paves the way for abuse of the law.
d) Finally with regard to the effect of the judgment in Case 3/71 on the present proceedings the Commission raises the question whether such a judgment can be upheld in that it could not have taken account of a fact — that chemical analysis cannot distinguish added sugar in preserved fruit from natural sugar — which the Court did not know or at any rate did not know with the same accuracy and certainty as it does today. If the Court were however to think reconsideration unnecessary or, after reconsideration, were to uphold that judgment, the decision to be taken in the present case would in no way be prejudiced. In that judgment the Court interpreted Article 2 of Regulation No 865/68 on the basis of the declared objective of the system of levies, that is to say, the protection of the organization of the markets against added sugar. Similar reasons cannot prevail in fixing the rate of customs duty as the Community legislature is generally free in this matter. It could have made a higher rate of customs duty depend upon a higher sugar content without its being of the slightest importance from the point of view of the ratio legis to ascertain whether this content derives from added sugar. In Case 3/71 the Court also found that the system of the organization of the market is in principle independent of tariff law. The opposite is also true in that the tariff provisions must in principle receive an interpretation independent of the provisions of the organization of the markets. The Commission subsequently expounds its argument by recalling that Additional Note No 2 relates exclusively to the tariff classification of a product and emphasizes the purely indicative value which must be attached to the letter L shown against certain tariff subheadings.
The second question
The Commission observes that if, despite its view, the Court felt obliged to give a negative reply to the first question this would of necessity involve an affirmative reply to the second question and thus an interpretation of Additional Note No 2 as a simple presumption for classification in general.
According to the judgment in Case 3/71 the burden of proof that the product does not contain added sugar rests on the importer. It must nevertheles be made clear that this proof to the contrary does not relate to the sugar content in general but only to the question whether sugar has been added. If the importer is unable to prove that no sugar has been added to the product it is impossible for him to prove that the natural sugar content exceeds the rates in the legal fiction (9 % in the case of apricots). The Commission requests that the judgment should provide a complete clarification of this point which is of considerable practical importance and expresses the wish that the Court should indicate the manner in which the contrary proof required of the importer must be adduced in practice.
The Commission recalls that it has suggested an affirmative reply to the first question which would render superfluous consideration of the second question.
Grounds of judgment
1. By an order of 15 October 1971 received at the Registry on 9 November 1971 the Finanzgericht Hamburg referred to the Court under Article 177 of the EEC Treaty two questions on the interpretation of certain tariff subheadings of Chapter 20 of the Common Customs Tariff in conjunction with Additional Note No 2 to this chapter.
The first question
2. In the first question the Court is asked to rule whether the wording of subheading 20.06 B II(a) 6(bb) of the Common Customs Tariff read together with Additional Note No 2 to Chapter 20 must be interpreted to mean that when fruit, other than pineapples and grapes, in this case apricots, referred to under heading 20.06 of the tariff has a sugar content exceeding 9 % but less than 13 % it is liable to the higher rate prescribed for fruit with added sugar regardless of whether sugar has been added.
3. Tariff headings 20.06 B II(a) 6(bb) and 20.06 B II(c) 1 (aa) of the Common Customs Tariff apply respectively to products ‘containing added sugar’ and ‘not containing added sugar’ subjecting them to different customs duties. According to Additional Note No 2 appearing at the beginning of Chapter 20 of the Common Customs Tariff laid down in Regulation No 2451/69 of the Council of 8 December 1969 (JO L 311, 1969) the products under heading 20.06 shall be considered as ‘containing added sugar’ if their sugar content exceeds 9 % by weight according to the kind of fruit concerned.
4. The plaintiff in the main action maintains that this note merely establishes a presumption as to the classification which may be rebutted by evidence to the contrary. It maintains in particular that since this was the solution adopted by the Court in its judgment of 17 June 1971 in Case 3/71 for the purpose of the application of the levy, the same solution must prevail for the purpose of the customs tariff. The applicant considers it inadmissible that within the same tariff and the same chapter a classification provision may be interpreted differently according as it relates to the classification of the product for the purpose of imposing the levy or for the purpose of customs duties.
5. Such an argument fails to observe the independent nature of the provisions of the common organization of the agricultural markets. Although, in accordance with Article 9(2) of Regulation No 865/68 of the Council of 28 June 1968 (OJ L 153, 1968, English Special Edition 1968(I), p. 225), the implementing provisions of the Common Customs Tariff apply to the classification of products coming under the common organization of the agricultural markets established by this regulation, such classification is conclusive regarding the imposition of customs duties but is merely a guide regarding any levy chargeable. The basis for imposing the levy is laid down by Article 2(1) of Regulation No 865/68 in terms of which it shall be charged ‘on the various added sugars’. No matter how unsatisfactory it is in practice, the diversity of criteria which may result from those two legal systems in determining separately the basis for imposing the levy and for imposing customs duties, it is not for the Court to remedy this situation, by modifying, by way of interpretation, the content of the provisions applicable to one or other case since such modification pertains exclusively to the competence of the Community legislature.
6. Since agreements regarding the Common Customs Tariff were reached between the Community and its partners in GATT the principles underlying those agreements may be of assistance in interpreting the rules of classification applicable to it. Consequently account should be taken of the content of agreements concluded in the course of the Tariff Conference of 1960 to 1961 whereby the Community agreed to consolidate the customs duties applicable to certain products including those under heading 20.06 whilst its GATT partners accepted the rates of 9 % and 13 % sugar content previously fixed independently by the Community. Since those rates were fixed without regard for the origin of the sugar and on the sole basis of the extent of its sugar content it was clearly the intention of those who fixed them that such rates should afford an absolute criterion of classification making for the uniform classification of goods in relations between the Community and the other members of GATT.
7. The absolute nature of this criterion emerges yet more clearly from the conditions relating to the right of the Community to make limited exceptions to the principle of consolidation of customs duties. According to the express wording of Note (2) to List XL of the Protocol to the General Agreement on Tariffs and Trade repeating the results of the Tariff Conference of 1960 to 1961 consent was granted to the reservation in favour of the application by the Community, over and above the consolidated customs duty, of an additional duty on sugar not because the product contained added sugar but because the quantity of sugar it contained in excess of a content which for the products under heading 20.06 was 9 % and 13 % by weight. If it was possible to justify the imposition of an additional duty it was, in the express words of this reservation, not because sugar had been added but because percentages of sugar had been exceeded.
8. This conclusion is confirmed with particular regard to the Community by the section of the Common Customs Tariff approved by the Decision of the Council of 13 February 1960 (JO 80 A 1960) and referring inter alia to the products under heading 20.06. The structure of this heading, which classified products without added sugar and those with added sugar under the same subheadings, shows clearly that those who drew up the tariff did not intend that the origin of the sugar contained in such products should be a conclusive criterion for tariff classification. Furthermore this tariff heading was supplemented by an additional note defining products containing added sugar, which was repeated in its essentials by the additional note in dispute.
9. It is clear from those considerations as a whole that Additional Note No 2 to Chapter 20 of the Common Customs Tariff is to be understood as a classification provision based exclusively on the sugar content of the relevant products in excess of certain percentages by weight. The reply must therefore be that the provisions of subheading 20.06 B II(a) 6(bb) of the Common Customs Tariff read together with Additional Note No 2 to Chapter 20 must be interpreted to mean that fruit, other than pineapples and grapes, referred to under heading 20.06 of the tariff having a sugar content determined in accordance with Additional Note No 1 to Chapter 20 which exceeds 9 % by weight is subject for the purpose of customs duties to the rate prescribed for fruit containing added sugar regardless of whether sugar has in fact been added.
10. The second question is superfluous since an affirmative reply has been given to the first question.
Costs
11. The costs incurred by the Government of the Federal Republic of Germany and by the Commission of the European Communities which submitted observations to the Court are not recoverable and since these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court the decision on costs is a matter for that court.
On those grounds, Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the undertaking Interfood GmbH, the Government of the Federal Republic of Germany and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to the Decision of the Council of 13 February 1960 (JO. 80A, 1960); Having regard to the Regulations of Council No 865/68 of 28 June 1968 (OJ L 153, English Special Edition 1968 (I), p. 225) and No 2451/69 of 8 December 1969 (JO. L 311, 1961); Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the Finanzgericht Hamburg in accord-with the judgment delivered by that court on 15 October 1971, hereby rules: