Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The plaintiff in the main action, an undertaking established in Hamburg, imported a certain quantity of apricots in containers holding under 5 kg but over 4.5 kg, without spirit, from Spain into the Federal German Republic and on 21 July 1970 made an application for customs clearance for free circulation. In the clearance proceedings the competent customs authority carried out sample tests on the imported goods and found an average sugar content of 9.2 % by weight. Consequently the customs authority put the goods under tariff heading 20.06 (Fruit otherwise prepared or preserved, whether or not containing added sugar or spirit) and sub-classified them under heading. 20.06 B II(a) 6(bb), that is to say, as apricots Containing added sugar, in immediate packings of a net capacity of 1 kg or less and levied customs duty at the rate of 22.4 %, in addition to the import turnover tax. This was done because Additional Note No 2 to Chapter 20 of the Common Customs Tariff provides: The products classified under heading 20.06 shall be considered as containing added sugar when the sugar content thereof exceeds by weight the percentages given hereunder, according to the kind of fruit concerned: pineapples and grapes, 13 %, other fruits, including mixtures of fruit, 9 %.

The Interfood undertaking considers that this tariff classification is incorrect because the imported product contained only its own natural sugar as opposed to added sugar. In its view in such a case, even if the content in natural sugar exceeds 9 %, classification under tariff heading 20.06 B II(c) 1(aa) must follow, that is to say, the relevant product must be considered as apricots Not containing added sugar, in immediate packings of a net capacity of 4.5 kg or more and consequently duty should only be levied at the rate of 17 %. Interfood lodged a claim on this ground for the partial return of the duty which it had paid. Nevertheless the application was dismissed by the Principal Customs Office on the basis of the second subparagraph of Article 2(3) of Regulation No 865/68 of the Council of 28 June 1968 (OJ L 153, p. 8, English Special Edition 1968 (I), p. 225) under which the added sugar content means the refractometer reading obtained, reduced by the figure appearing in column 2 of Annex I to the regulation (in the case of apricots, 9). The Principal Customs Office emphasized that this provision forms the basis for the aforementioned Additional Note No 2 to Chapter 20 of the Common Customs Tariff under which preserved apricots with a sugar content exceeding 9 % by weight must be considered as fruit containing added sugar. As a result of this the product in question must be treated as a product containing added sugar, on the basis of its sugar content even though no sugar has in fact been added.

Interfood has made an application against this decision to the Finanzgericht Hamburg. In essence it founds its application on the preliminary ruling delivered by the Court in Case 3/71 ([1971] ECR 577). In its view the decisive factor is that no sugar was added to the imported product; consequently it is also incorrect to classify it on the basis of the said Additional Note to tariff heading 20.06 B II(a) 6(bb). The Principal Customs Office, the defendant, opposes this view maintaining that the judgment in Case 3/71 is irrelevant because the present case does not relate to liability to the duty but to the tariff classification of a product. In addition it must be noted that in the said judgment the Court regarded the additional note as having legal effect within the sphere of customs law.

The question as it appears to the Finanzgericht is whether the Additional Note to Chapter 20 of the Common Customs Tariff contains a legal definition which cannot be challenged or whether it should only be accorded the status of an explanation or whether it is to be considered merely as a rebuttable presumption. Considering that the problem must be settled in accordance with Community law, the Finanzgericht by a decision of 15 October 1971 stayed the proceedings and referred the following questions for a preliminary ruling:

We will now consider what answers are appropriate, the views of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities having been given in writing and orally.

1 Translated from the German.