61972J0042

European Court reports 1973 Page 00057 Greek special edition Page 00353 Portuguese special edition Page 00015

Summary

AGRICULTURE - GOODS RESULTING FROM THE PROCESSING OF AGRICULTURAL PRODUCTS - IMPORTS - CHARGES - FIXING SUCH CHARGES - CRITERIA - MILKFAT - CONTENT - DETERMINATION (REGULATION OF THE COUNCIL NO 83/67, ANNEX V)

IN VIEW OF THE PURPOSES AND FLAT-RATE NATURE OF THE SYSTEM ESTABLISHED BY REGULATION NO 160/66 OF THE COUNCIL, THE VALIDITY OF THE PROVISIONS OF REGULATION NO 83/67 OF THE COUNCIL, ADOPTED IN IMPLEMENTATION OF IT, IS NOT AFFECTED BY THE FACT THAT THE METHOD OF ANALYSIS PROVIDED FOR BY THAT REGULATION FOR THE CALCULATION OF THE MILKFAT CONTENT YIELDS APPROXIMATE VALUES OF SUCH CONTENT.

Parties

IN CASE 42/72 REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE MUNICH FINANZGERICHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN ALFONS LUETTICKE GMBH, COLOGNE, AND HAUPTZOLLAMT OF PASSAU,

Subject of the case

ON THE VALIDITY OF ARTICLE 7 ( 3 ) COMBINED WITH ANNEX V OF REGULATION NO 83/67/EEC OF THE COUNCIL OF 18 APRIL 1967 ( OJ 1967, NO 81 ), ESTABLISHING TARIFF SPECIFICATIONS RELATING TO GOODS COVERED BY REGULATION NO 160/66/EEC OF THE COUNCIL, AND DETERMINING THE FIXED COMPONENTS APPLICABLE TO SUCH GOODS AND THE QUANTITIES OF BASIC PRODUCTS TO BE TAKEN AS HAVING BEEN USED IN THEIR MANUFACTURE,

Grounds

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.

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.

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.

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.

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.

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.

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.

Decision on costs

8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT.

Operative part

THE COURT IN ANSWER TO THE QUESTION REFERRED TO IT BY THE MUNICH FINANZGERICHT BY DECISION OF THAT COURT DATED 14 JUNE 1972, HEREBY RULES : ARTICLE 7 ( 3 ) OF REGULATION NO 83/67 OF THE COUNCIL OF 18 APRIL 1967, COMBINED WITH ANNEX V OF THE SAME REGULATION, IS NOT INVALID BY REASON OF THE FACT THAT THE VALUES OF MILKFAT CONTENT, OWING TO FACTORS OF UNCERTAINTY IN THE METHOD OF ANALYSIS LAID DOWN IN THE SAID ANNEX, ARE DETERMINED APPROXIMATELY.