OPINION OF MR CAPOTORTI — CASE 87/78 WELDING v HAUPTZOLLAMT HAMBURG-WALTERSHOF

Mr President,

Members of the Court,

1. The present case concerns the validity of a regulation of the Commission enacting one of the implementing provisions concerning the levy on sugar and fixing in that connexion a particular method for determining the sucrose content of certain products.

2. The fact nevertheless remains that the method prescribed in that last provision entails the disadvantage of involving in the calculation of the levy certain components of the product in question, in particular dextrin and maltose, which are not per se subject to the levy on sugar.

3. In the light of these considerations the first preliminary question, concerning the validity of the second subparagraph of Article 7 (2) of the said Regulation No 837/68 of the Commission, appears to give rise to three distinct problems. However, the problem of alleged ultra vires acts on the part of the Commission is to a certain degree connected with the question of discrimination and accordingly in the following discussion it is inappropriate to give wholly separate consideration to those two aspects.

4. According to the analysis made by Welding of maltrin 10 and maltrin 20 those imported products have a dextrose (or maltose) content of 11.6 and 18.2 % respectively. The rest of those products, that is, more than 80 %, is dextrin, that is, a substance falling under heading 35.05 of the Common Customs Tariff which is subject to the levy applicable to cereals, which is lower than that prescribed for sugar. Accordingly, Welding maintains that only the said percentages of dextrose should be taken into consideration for the purposes of calculating the levy payable on sugar. If this were not so importers of the product in question would receive discriminatory treatment in comparison with undertakings which import separately the two constituents of the product in question (the German court appears to concur on this point).

5. To conclude my examination of the problems raised by the first question it remains to consider the doubt expressed by the German court regarding the provision of a sufficient statement of reasons for the derogation from the rule contained in the first subparagraph introduced by the said second subparagraph of Article 7 (2).

6. Since in my view all the problems raised by the first question call for a negative answer it is unnecessary to consider the second question.

1 Translated from the Italian.