Opinion of Mr Advocate-General Trabucchi

Mr President,

Members of the Court,

1. The present proceedings arise from a dispute over the classification for customs purposes of a consignment of an alcoholic product imported into the Federal Republic of Germany from Belgium in September 1968. It concerns rough brandy distilled from molasses spirit, the analysis of which showed it to be completely neutral and chemically pure, and which was therefore classified under tariff heading 22.09-A-II as ethyl alcohol or neutral spirits, undenatured, of a strength of less than 80o. Prior to the analysis, the product had been classified under tariff heading 22.09-C-V-b comprising spirituous beverages. Once classified under heading 22.09-A-II, the product was subject to a customs duty, whereas it would have been exempt if its classification under heading 22.09-C-V-b had been maintained.

2. During the course of the hearing, the Council submitted that the Court did not have jurisdiction to pronounce on the validity of Regulation No 7a, on the ground that the Treaty of Accession of 22 January 1972 and the Act concerning the Conditions of Accession of the new Member States to the Community had the effect of conferring on that Regulation the same legal status as the Treaty which governed the accession of the new States to the Community. The Council stresses that Regulation No 7a had the effect of supplementing the Treaty (which perhaps involves a tacit reference to Article 1 of the Treaty of Accession according to which the new members shall become parties to the Treaties as amended or supplemented) and that Articles 7 and 8 of the Act of Accession, relating to the retention of the status in law of acts of the Community, do not concern the Regulation in question. The Council refers further to Protocol No 19 annexed to that Act, paragraph (2) of which provides that the necessary measures to facilitate the use of Community cereals in the manufacture of spirituous beverages may be taken within the framework of the Regulation on the common organization of the markets to be adopted in the sector of alcohol. It is argued that if it were possible to invalidate Regulation No 7a, this Protocol would lose all meaning.

3. In order to reply to the first question, we must define the power conferred on the Council by Article 38 (3), in so far as the detailed rules and the procedure for its exercise are concerned.

4. The second question the concept of products of first-stage processing which have a direct connexion with products of the soil, of stockfarming and of fisheries. This concept assumes decisive importance in the definition of the limits of the power conferred on the Council to supplement that list, according to the provision of Article 38 (3).

5. The third question posed by the Bundesfinanzhof concerns the classification for customs purposes of a product which the importer had described as brandy for drinking, from molasses spirit, flavoured, and which the customs authorities had considered in the first instance as being a spirituous beverage, classifying it therefore under heading 22.09-C-V-b of the Common Customs Tariff; whereas subsequently, as the result of analysis showed the product to be completely neutral and without the addition of flavouring substances, it was classified as ethyl alcohol or neutral spirits, undenatured, of a strength of less than 80o and as such fell under tariff heading 22.09-A-II.

I propose that you should reply to the questions of the Bundesfinanzhof in the following manner:

1 Translated from the Italian.