OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 3 FEBRUARY 1971 (1)

Mr President,

Members of the Court,

Before consideration of the reference for a preliminary ruling from the Finanzgericht München the following observations must be made.

We have already encountered Regulation No 160/66 of the Council of 27 October 1966 (Official Journal No 195 of 28 October 1966, p. 3361), instituting a system of trade in respect of certain goods resulting from the processing of agricultural products, which entered into force on 1 April 1967, in a number of other cases. It created a special levy system for imports of such products from third countries in view of the higher prices prevailing within the Community for agricultural products (for example for milk and sugar, which are both relevant in the present case) because of the existing market organizations. The levy is composed of two elements: an ad valorem duty for the protection of the food industry in the Community (fixed in Annex I to Regulation No 83/67 of the Council of 18 April 1967 (Official Journal, No 81 of 26 April 1967, p. 1597) which entered into force on 1 June 1967) and a variable component to cover the differences in prices for the processed agricultural products mentioned (fixed by the Commission on the basis of the standard quantities laid down in Annex II to Regulation No 83/67). According to the Annex to Regulation No 160/66 this system also applies to products under tariff heading 18.06 (‘Chocolate and other food preparations containing cocoa’), that is, to a tariff heading which was first subdivided under Community law by the agreement of 2 March 1960 relating to the establishment of part of the Common Customs Tariff in respect of the products in List G in Annex I to the Treaty establishing the European Economic Community and which mere reads:

‘Chocolate and other food preparations containing cocoa:

A —Cocoa powder, simply sweetened …

B —Other.’

(I might mention, by the way, that a further breakdown was made by the above-mentioned Regulation No 83/67. Ignoring all subdivisions which are merely dependent on the content of sucrose, milk-fat, etc., it reads as follows:

‘Chocolate and other food preparations containing cocoa:

A —Cocoa powder, simply sweetened by the addition of sucrose,…

B —Other:

I.Ice cream…

II.Not specified’)

It must further be observed with regard to Regulation No 160/66 that Article 16 provided for a maximum limit for the levy in certain cases. Article 16 provides:

‘If, on the entry into force of the present regulation, the customs duty applicable to a product covered by it is consolidated under the GATT system, then as long as such consolidation continues, the total amount of the levy referred to in Article 10, expressed as a percentage of the import price of the product in question, may not exceed the rate of duty in the consolidated Common Customs Tariff applicable in respect of third countries.’

Consolidated rates of customs duty were mentioned in relation to the customs duty concessions made by the Community under GATT as laid down in List XL of Annex B to the Protocol to the General Agreement on Tariffs and Trade concerning the results of the 1960-61 customs conference of 16 July 1962. In this respect in the present case there is a maximum levy of 27 % for tariff heading 18.06 (according to the French text which alone is authentic),

‘Chocolat et autres préparations alimentaires contenant du cacao (Chocolate and other food preparations containing cocoa):

B —Autres (Other)’

that is, the whole of tariff heading 18.06, with the exception of sweetened cocoa mentioned under A, is covered by the customs duty concession. Accordingly, preparations containing milk-fat with a cocoa content also come under the customs duty concession. On the other hand, however, milk-powder and other products under tariff heading 04.02 were covered by Regulation No 13/64 (Official Journal No 34 of 27 February 1964, p. 549) on the progressive establishment of a common organization of the market in milk and milk products. In this field, apart from certain types of cheese, there were no customs duty concessions and therefore no provision corresponding to Article 16 of Regulation No 160/66, and the full levy was thus payable. Consequently it must have appeared advantageous to mix milk-powder or other products under tariff heading 04.02 with cocoa in order to benefit from the above-mentioned consolidated duty when making imports. According to the information furnished by the Commission this evidently occurred on a large scale and a gap in the protection of the market for milk and milk products thus come to light. When this was realized in 1967, the Community immediately applied itself to altering the duty concession for tariff heading 18.06 B in GATT. According to the GATT rules, however, there was no question of a unilateral withdrawal before the end of 1969. Thus the only possibility that remained was to negotiate a modification of the duty concession with the consent of the other parties to GATT, which is always permissible where special circumstances exist. The Community lodged an application to this end with GATT in June 1967 and empowered the Commission to undertake the necessary negotiations. In the summer of 1967 the Commission succeeded in obtaining from Great Britain and Switzerland, the two countries directly benefiting from the concession, their agreement for the enactment of customs measures without waiting for the end of the negotiations. There was of course the condition that the traditional patterns of trade should not be disturbed. Then on the basis of this agreement Regulation No 755/67 of the Council (Official Journal No 260 of 27 October 1967, p. 4) was adopted on 26 October 1967‘providing for derogation from Article 16 of Regulation No 160/66 in respect of certain goods under tariff heading 18.06 B of the Common Customs Tariff’. Article 1 provided as follows: ‘By derogation from the provisions of Article 16 of Regulation No 160/66/EEC, the amount of the tax referred to in Article 10 of that Regulation shall be collected in full on imports into the Member States of goods classified under heading 18.06 B of the Common Customs Tariff, other than:

—chocolate in bulk (blocks, bars, sticks, etc.);

—confectionery containing cocoa or chocolate, whether or not filled;

—ice cream containing cocoa or chocolate;

—cholocate and other food preparations containing cocoa, put up for retail sale in packings of a net content of not more than 500 grammes and having a fat content derived from milk of not more than 6.5 % of the whole.’

This regulation entered into force on 30 October 1967 and according to Article 2 thereof was to remain in force ‘up to the date of the decision of the Council concerning the conclusions of the negotiations opened in accordance with Article XXVIII of the General Agreement on Tariffs and Trade’.

Later, be it mentioned in this connexion, Regulation No 755/67 was supplemented by Regulation No 1114/68 of the Council (Official Journal, L 186 of 30 July 1968, p. 3) which entered into force on 1 August 1968, and added the following indent to the list of exceptions contained in Article 1 of Regulation No 755/67:

‘preparations for the manufacture of chocolate, known as “chocolate milk crumbs” with a fat content by weight derived from milk greater than 6.5 % and less than 11 % and with a sucrose content by weight equal to or greater than 45 % and less than 60 % :

—in powdered form;

—granulated or in pieces of varying sizes’.

This supplementing amendment originally applied until 30 September 1968 and was then extended until 31 December 1968 by Regulation No 1498/68 of 27 September 1968 (Official Journal, L 238 of 28 September 1968, p. 4). Finally, Article 4 of Regulation No 2121/68 of the Council (Official Journal L 311 of 28 December 1968, p. 1) ‘amending the Common Customs Tariff and Annexes I and II to Regulation No 83/67 and derogating for certain goods coming under tariff heading 18.06 of the Common Customs Tariff from Article 16 of Regulation No 160/66, which entered into force on 1 January 1969, expressly repealed Regulation No 755/67.’

Of course, this is not yet a complete list of the provisions relevant to the present case. For the sake of completeness it must also be pointed out that on 24 October 1967 the Council adopted Regulation No 752/67 (Official Journal No 263 of 30 October 1967, p. 1) ‘making certain amendments to Annexes I and II to Regulation 83/67 in respect of chocolate and other food preparations containing cocoa’. This had become necessary because the product descriptions in Regulation No 755/67 did not correspond with those of tariff heading 18.06 of the Common Customs Tariff as amended by Regulation No 83/67. Regulation No 752/67 was published in the Official Journal of the Communities of 30 October 1967 and entered into force on 1 December 1967. Tariff heading 18.06 (leaving out further subdivisions) then took the following form:

‘Chocolate and other food preparations containing cocoa:

A —Cocoa powder, simply sweetened by the addition of sucrose…:

B —Other:

I.Chocolate in bulk; chocolates, whether or not filled (not including ice cream); sugar confectionery and substitutes thereof made from sugar substitutes, containing cocoa:

II.Ice cream, with a milk fat content… :

III.Not specified:…’

This regulation was in turn amended by Regulation No 735/68 of the Council (Official Journal L 138 of 21 June 1968, p. 1) ‘amending certain provisions of Regulations Nos 83/67 and 372/67’ which entered into force on 1 July 1968. Tariff heading 18.06 was thereby subdivided as follows:

‘Chocolate and other food preparations containing cocoa:

A —Cocoa powder, simply sweetened by the addition of sucrose,…

B —Ice-cream:…;

C —Chocolate and chocolate preparations, whether or not filled; confectionery and substitute products made from sugar substitutes, containing cocoa:…;

D —Not specified:…;’

Finally, it must be mentioned that the 1960-61 GATT Protocol was amplified by the Geneva Protocol of 30 June 1967. Accordingly the relevant List XL relating to the European Economic Community makes the following concession for tariff heading 18.06:

‘Chocolate and other food preparations containing cocoa:

A —Cocoa powder, simply sweetened…;

ex B —other:

—chocolate in bulk (blocks, bars, sticks, etc.) 27 % (das [additional duty on sugar] 1) 12 % + em [variable component]

—confectionery containing cocoa or chocolate, whether or not filled … 27 % (das 1) 12 % + em

—ice cream containing cocoa or chocolate, 27 % (das 1) 12 % + em

—other products prepared for retail sale, in packages of a net content of not more than 500 grammes 27 % (das 1) 12 % + em’.

The concessions agreed to in the Geneva Protocol were progressively brought into effect from 1 July 1968 onwards.

Most of these provisions are directly relevant to the main action although some of them are merely indirectly relevant. On 29 November 1967, 12 January 1968 and 28 June 1968 Alfons Lütticke GmbH [hereinafter referred to as ‘Lütticke”] imported products listed under tariff heading 18.06 from Austria into the Federal Republic of Germany and cleared them through customs. The products were described as “chocolate in bulk” (“Schokoladenmasse”), “powdered chocolate in bulk” (“pulverisierte Schokoladenmasse”) and “raw material for chocolate in bulk” (“Schokoladengrundmasse”) and according to the customs declarations were composed of cocoa in bulk, milk ingredients and (in two cases) sugar. The appropriate customs office regarded them as cocoa powder in bulk and other food preparations containing cocoa and issued the corresponding levy assessments under Article 10 of Regulation No 160/66 (that is to say, customs duty of 19 % and variable component amounts for milk in accordance with Regulation No 83/67). Lütticke did not agree with this. In its opinion, the products were “chocolate in bulk” (“Schokoladenmasse”) within the meaning of Regulation No 755/67, upon which only the consolidated customs duty rate of 27 % and (which is of no further relevance here) at most an additional amount (which had in fact been reserved in a footnote at the time of consolidation) for the sugar content should have been levied. It therefore lodged a protest against the levy assessments and as this was not successful it finally took the matter to the Finanzgericht (Finance Court) München. It contended that the imported product contained all the basic substances necessary for the manufacture of chocolate and already manifested a certain degree of processing. In its view this is sufficient for the definition of “chocolate in bulk” within the meaning of Regulation No 755/67 as, properly understood, this definition also covers, provided that the essential properties of a chocolate preparation are present, at least semi-finished and intermediate products, but on the other hand it does not demand that the product in question shall fulfil the requirements demanded of finished chocolate with regard to composition and external form. The defendant Hauptzollamt (Principal Customs Office) on the other hand, persists in the view that “chocolate in bulk” is a product which is customary in the trade, that is to say, unfilled chocolate (also in granule form), ready for consumption, but that the term does not cover semi-finished products such as those imported by the plaintiff.

Thus the Finanzgericht had the problem of interpreting a product definition of Regulation No 755/67. Since details of the composition of semi-finished products and the various production stages and manufacturing processes were moreover in dispute in the proceedings, the Finanzgericht, by order of 3 August 1970, stayed proceedings and at the request of the plaintiff referred the following questions for a preliminary ruling:

(a)only unfilled chocolate, ready for consumption including chocolate in the form of granules or, if this question is answered in the negative,

(b)only intermediate or semi-finished products of the chocolate industry?

2. If Question 1 (b) is answered in the affirmative, what minimum conditions must a preparation fulfil in order to be regarded as “chocolate in bulk” within the meaning of Article 1 of Regulation No 755/67/EEC of the Council:

(a)in respect of its composition?

(aa)Must the preparation already include all the ingredients of the end-product, whether chocolate or milk chocolate?

(bb)If the answer to Question (aa) is in the affirmative, must certain minimum and maximum limits be observed for the proportions of cocoa, milk and sugar constituting the ingredients, although there are no relevant regulations on food at Community level and although the national food law provisions diverge from one another in this respect?

(cc)If the answers to Questions (aa) and (bb) are in the affirmative, what minimum and maximum limits must be observed for the proportions of the ingredients of milk chocolate?

(dd)In the case of Question (cc), does it suffice, in particular, if the preparation already contains all the ingredients of the end-product, chocolate or milk chocolate, in such quantities that the minimum limits according to the food law provisions of any Member State — although not necessarily of the Federal Republic of Germany—are satisfied and does this apply to the maximum limits?

(b)with regard to the stage reached in processing towards the finished product?

(aa)Must the preparation have already undergone all the processing stages of chocolate production, such as the mixing of the ingredients, the drying of the mixture (if ingredients in a liquid state are used), the fine-reduction, conching and crystallization of the mixture, right down to the moulding?

(bb)If the answer to Question (aa) is in the negative, does the mere mixing of the ingredients suffice or must there be a further stage of processing?

(c)with regard to the method of manufacture?

(aa)Must a specific technical process have been used at the particular processing stage or stages, which the preparation must in any event have undergone in the processes mentioned in Question (b), by employing quite specific types of machines or is it irrelevant how the mixture has been produced and, where necessary, dried and fine-reduced?

(bb)In particular, must a specific process be used for the compounding of the cocoa constituents with the milk constituents or is it irrelevant whether, for example, the compounding is achieved with milk powder or liquid milk?

(cc)If the answers to Questions (aa) and (bb) are the first alternatives, according to what technical process must the mixing and, where necessary, the drying and fine-reduction have been effected and what types of machines must be used for this purpose?

(dd)Must all the ingredients of the preparation—cocoa, milk and, where applicable, sugar—have been intimately compounded with one another or is it sufficient that an intimate compound has been produced either of cocoa and milk alone or of cocoa, milk and part of the sugar?

In the light of the observations made in writing and orally by the plaintiff in the main action and by the Commission of the European Communities, I shall now examine these questions.

1.At the oral hearing the plaintiff claimed inter alia that Regulation No 755/67, the interpretation of which is requested, was no longer in force on 27 November 1967. This followed from the second paragraph of Article 2 already mentioned, and from the fact that on 27 November 1967 the Council made a decision concerning the conclusion of multilateral agreements signed at the 1964-67 trade conference (Official Journal, L 305 of 19 December 1968, p. 1). Accordingly, at the dates of the imports (29 November 1967, 12 January 1968 and 28 June 1968) relevant to the main action the partial revocation of the Community's customs duty concessions enacted in Regulation No 755/67 was no longer in force. Consequently there was no question of the application of the term “chocolate in bulk” used for the first time in that regulation, the only determining factor being the scope, mentioned in the statement of facts, of the consolidation previously in force. This conclusion is unaffected by the amendment of the second paragraph of Article 2 of Regulation No 755/67 made by Regulation No 1114/68 as this did not enter into force until 1 August 1968 and could not have retroactively revived Regulation No 755/67.

In my opinion, the Commission convincingly showed at the hearing that the correctness of these conclusions, whereby the request for interpretation would have had to be regarded as of no consequence for the proceedings in the national court, is only apparent. In fact Article 2 of Regulation No 755/67 was based not on the decisions mentioned by the plaintiff regarding the conclusion of the negotiations in the so-called “Kennedy Round”, that is to say, the 1964-67 conference, but solely on the negotiations concerning the partial withdrawal of a customs duty concession in the so-called “Dillon Round”, that is, the 1960-61 conference. This is clear from the preamble to Regulation No 755/67. First, it mentions an authorization granted to the Commission by a decision of 25 July 1967, a date by which the Geneva (1967) Protocol and the annexes thereto had already been signed (on 30 June 1967). Secondly, according to the preamble to the regulation there can be no doubt about the true subject of the negotiations. They were solely concerned with the partial withdrawal of the customs duty concession for products under tariff heading 18.06 B, and not with completing the concessions in the Kennedy Round. The decision of the Council mentioned in Article 2 of Regulation No 755/67 cannot therefore be the decision of 27 November 1967 but possibly, in so far as the negotiations with the United Kingdom (one of the States involved) are concerned, the decision of the Council of 20 December 1968“on the conclusion of an Agreement with the United Kingdom negotiated pursuant to Article XXVIII of GATT” (Official Journal L 311 of 28 December 1968, p. 24). This in turn follows clearly from the preamble to this decision which also mentions the authorization granted to the Commission on 25 July 1967 and the amendment of the concession for tariff heading 18.06 B List XL which was added to the General Agreement on Tariffs and Trade as an annex by virtue of the Protocol fisting the results of the 1960-61 tariff conference. Incidentally, nothing is known of the conclusion of the negotiations with Switzerland, the other contracting party which comes into the picture as a principal supplier.

Thus the conclusion can be drawn from these facts and the Commission's observations that Regulation No 755/67 did not cease to have effect on 27 November 1967 but only after the date relevant to the main action (most probably on 31 December 1968). Accordingly, the request for interpretation is certainly relevant for the purpose of the main action.

2.At the hearing (for the first time) the plaintiff expressed further doubts as to the validity of Regulation No 755/67. The doubts relate first to the preamble to the regulation which refers to unpublished documents and is therefore alleged to be inadequate. Secondly, the doubts refer to the procedure whereby the regulation came into being, in that it was questioned whether the scheme thereof was entered in the agenda of the Council meeting in due time, in accordance with the standing orders, and approved with due observance of the requirements as to a majority. Finally, the doubts relate to the content of the regulation. In the opinion of the plaintiff the regulation conceals its true meaning and is contradictory, which is incompatible with constitutional principles. Moreover, its conformity with the GATT was questioned (in this respect doubts were expressed whether ah the members states of GATT had expressed their agreement and it was alleged that the agreement of Great Britain and Switzerland was not sufficient; whether the contracting parties had established that Switzerland and Great Britain were the principal suppliers of the products in question; and whether the suspension of a concession was permissible at all under GATT). In the view of the plaintiff, for these reasons also an interpretation of Regulation No 755/67 was unnecessary.

At the same time the representative of the Commission at the hearing sought to dispel these doubts. However, it is doubtful whether this need be done at ah in the present case. As I have already indicated, it can be seen from the papers in the case that such problems were not put before the Finanzgericht, to which the plaintiff itself proposed the formulation of the questions submitted to the Court, and were therefore not made a subject of the reference. When such situations arose in previous cases of reference to the Court it refused in principle to go beyond requests for interpretation expressly worded and to examine questions of validity which had only been raised by the parties to the proceedings. In this respect I may refer to the judgment in Case 44/65 (Hessische Knappschaft v Maison Singer et Fils [1965] ECR 970-971) in which the Court stressed that the parties to proceedings in which a reference was made to the Court could not alter or add to the questions formulated in the reference and that the Court was not compelled to deal with questions of validity which had not been raised by the national court. Now although in that case the Court did nevertheless refute (albeit not in the operative part of the judgment) the doubts expressed as to the validity of the provisions to be interpreted, its attitude to the principle just mentioned can be seen quite clearly in Case 4/68 (Firma Schwarzwaldmilch GmbH v Einfuhr- und Vorratsstelle für Fette [1968] ECR 377). Even in a case where the question expressly concerned the validity of a Community measure, the Court refused to deal with additional questions of the parties which had even been raised already in the national court when that court had formulated precise questions of validity with a different content (Case 17/67, Firma Max Neumann v Hauptzollamt Hof/Saale [1967] ECR 441). It is solely in Case 5/67 (W. Beus GmbH & Co. v Hauptzollamt München [1968] ECR 95-96) that a different approach is to be seen, although in that case reference was made simply on validity of a regulation, and in Joined Cases 73 and 74/63 (N.V. Internationale Crediet- en Handelsvereniging Rotterdam and De Coöperatieve Suikerfabriek en Raffinaderij G.A. Puttershoek v Minister van Landbouw en Visserij [1964] ECR 14) where, in examination of a question of validity which had been requested, the Court took up a specific further question of its own motion.

It may therefore be assumed that the Court will follow these principles in the present case and therefore refuse to go into the questions of validity raised by the plaintiff. It is moreover all the easier to do so since the views expressed (in so far as they really are substantiated points and not merely vague doubts), especially when compared with the observations of the Commission, certainly cannot so clearly put in question the validity of Regulation No 755/67 that, in the interest of disposing of the enquiry from the Finanzgericht in a practical way, it would appear unavoidable to deal with them. For these reasons I shall not go further into the doubts of the plaintiff but shall turn immediately to the questions of interpretation referred to the Court.

3.Regarding the interpretation of Regulation No 755/67, the first question of the Finanzgericht seeks an interpretation of the product description “chocolate in bulk” in Article 1 of the regulation. The views of the plaintiff will be remembered from the summary of the position in the main action. It considers that at least intermediate and semi-finished products of chocolate manufacture should also be regarded as “chocolate in bulk”. The Commission, on the other hand, is of the opinion that only chocolate ready for consumption should be held to be “chocolate in bulk”.

As the plaintiff demands and as is usual in questions of tariff classification, I shall deal first with the arguments based on the wording. As the term to be interpreted is a compound term, two components must be examined, “chocolate” and “in bulk”.

The first word obviously presents no difficulties. By common consent its meaning is clear. It describes chocolate ready for consumption, that is, a product which displays all the essential characteristics of the composition and the processing of chocolate, even if it is sometimes a product that still requires moulding and packing. Common usage of language certainly indicates this meaning. However, this is also adopted by the Explanatory Notes to the Brussels Nomenclature, to which it is accepted that reference may be made, because at that time Community explanatory notes had not yet been issued. In fact they state under the term “chocolate”, inter alia, that “chocolate and chocolate goods may be put up either as slabs, tablets, bars, pastilles, croquettes, granules or powder or in the form of chocolate-coated products (creams, bonbons, fruit, liqueurs, etc.).

However, difficulties arise when the words “chocolate” and “in bulk” are joined. In the opinion of the Commission, “chocolate in bulk” is a mass made from chocolate because the term “in bulk” (Masse) refers to a homogeneous structure, even if it is perhaps unmoulded and to this extent not finished. It must be contrasted with the term “filled chocolate”. The plaintiff, on the other hand, concludes from the fact that the term “Masse” in both German and French describes a substance without shape (“corps informe”) that word-compounds with Masse necessarily indicate an unfinished product, that is to say, a semi-finished product. This view is also supported by the parlance of the trade, particularly product descriptions in the food industry containing the component “Masse”. It must be deduced from them that they are products intended for further processing. In this respect the plaintiff gives many quotations from publications, particularly for the term “chocolate in bulk”, and concludes from them that in German (and also Dutch) usage its meaning clearly coincides with that advocated by the plaintiff.

Nevertheless, it seems to me that the plaintiff has not quite succeeded in proving that this is clearly so in German usage. Examples which it submitted itself show in fact that not all words compounded with “Masse” indicate a semi-finished product for the manufacture of the product with which the word “Masse” is coupled. Mention might merely be made of the terms “Nußmasse” and “Kakaomasse” which certainly describe products made from nuts and cocoa and not products for the manufacture of nuts and cocoa. Support may even be found in the literature cited by the plaintiff (Buttiker, Praktische Warenkunde der Nahrungsmittel, Würzmittel, Genußmittel and Haushaltsmittel, 3rd Edition, p. 184) for the proposition that the term “Schokoladenmasse”, with regard to the substance, sometimes describes a finished product which merely requires to be moulded. Accordingly, the least that can be said is that German usage is not unequivocally in favour of the definition advocated by the plaintiff, and that to this extent doubts remain.

The situation is obviously different with the French and Italian expressions “chocolat en masse” and cioccolata in massa' which clearly seem to point to the definition given by the Commission. This can be seen in the French Customs Tariff of 1955 which contains the following wording for tariff heading 18.06:

‘Chocolat et autres préparations alimentaires contenant de cacao:

A —Chocolat en masse (plaques, plaquettes, tablettes, pastilles, croquettes, objects divers, etc.) en poudre ou en granules, contenant en cacao:…’

(‘Chocolate and other food preparations containing cocoa:

A —Chocolate in bulk (slabs, tablets, bars, pastilles, croquettes, various, etc.) in the form of powder or of granules containing in cocoa:…’)

According to this ‘chocolat en masse’ is undoubtedly an end-product. If doubts still existed they would be dispelled by the additional explanatory notes prepared by France for the customs nomenclature, for these state in relation to the term ‘chocolat en masse’: ‘cette dernière expression couvrant le chocolat sous ses formes habituelles: plaques, plaquettes, tablettes, pastilles, croquettes, sujets divers (…) à le condition, s'il s'agit du chocolat contenant des substances alimentaires autres que le cacao et le sucre (…) que ces substances soient en mélange intime dans la pate et broyés s'il y a lieu …’ (‘this latter term covering chocolate in all its usual forms: slabs, tablets, bars, pastilles, croquettes, various (…) on condition that with regard to chocolate containing food substances other than cocoa and sugar (…) these substances be intimately mixed in the paste and crushed where necessary …’). The French term ‘chocolat en masse’ therefore certainly means unfilled chocolate ready for consumption in a form usual in the trade. Now undoubtedly terms in Community law cannot be interpreted solely by reference to the language of one Member State. However, in the present case I would agree with the Commission when it states that where there are divergent meanings, as is obviously the case here, preference cannot be given, as the plaintiff demands, to the most favourable interpretation but that the meaning common to all four languages must be regarded as the correct one. In view however of the doubts existing as to the German term, it is certainly the meaning of the French term ‘chocolat en masse’ which is correct. Moreover, there is good reason also to follow the French sense because, of the four official languages of the Community, only French was chosen for authentic texts in GATT. It may therefore be assumed that when the customs duty concession was formulated using French terms it was also primarily their meaning that was envisaged.

Nevertheless, the matter cannot of course rest with these considerations. The interpretation must have a wider basis and therefore we must further examine what other considerations can be invoked to strengthen or possibly weaken the conclusion drawn so far. First, there are the additional words in brackets (‘blocks, bars, sticks, etc.’) added to the term ‘chocolate in bulk’ in Article 1 of Regulation No 755/67 which, as we have seen, also support the presumption that the French customs tariff was being copied. In fact, it may be said in agreement with the Commission, that these additional words, at least so far as the consistency of the product is concerned, refer to typical finished products. Moreover this also applies to ‘blocks’ which, contrary to the contention of the plaintiff, not only form an intermediate product in the manufacture of chocolate intended for storage but are also suitable for sale to the final customer. It may be seen that this must be so from the Explanatory Notes to the Common Customs Tariff, formulated in April 1970, where they expressly mention ‘chocolate in blocks’ (that is, a product ready for consumption) as an example of chocolate.

Of course a systematic interpretation of Regulation No 755/67 is more important. In this respect the Commission points out that of the products listed in Article 1 in four indents, the products mentioned in the last three indents are clearly finished products ready for consumption, which justifies the assumption that this was the decisive criterion for the entire scheme and thus also decisive for the definition of the term ‘chocolate in bulk’ which is found in the first indent. On the other hand, it cannot be contended against this interpretation that ‘chocolate in bulk’ within the meaning of the first indent must be segregated from ‘chocolate’ within the meaning of the fourth indent, and that this forces one to the conclusion that since ‘chocolate’ is a finished product, ‘chocolate in bulk’ cannot at the same time be a finished product and must therefore be regarded as an intermediate product. The Commission has rightly pointed to the fact that Regulation No 755/67 was issued for reasons of trade policy, that it contained the repeal of a GATT measure but that its purpose was not to change the customs nomenclature. According to the Commission the question of tariff classification had therefore not been to the fore when the regulation was issued, which can be seen from the fact that the fourth indent covers the entire tariff heading, although tariff heading 18.06A cannot have been intended. It maintained that a certain amount of overlapping, which was otherwise unknown to the customs tariff, could not therefore be excluded. However, this meant that provided that the two conditions there mentioned were fulfilled, the fourth indent covered the whole of the tariff heading ‘chocolate and other food preparations containing cocoa’. Accordingly, ‘chocolate in bulk’, confectionery and ice cream, put up for retail sale in packings of a net content of not more than 500 grammes and having a fat content derived from milk of not more than 6.5 % of the whole, necessarily came under two of the four categories. However, if it had been intended to exclude this one would have imagined that the fourth indenr would have been supplemented by the word ‘other’. The Commission argued that in particular the wording of the Community's tariff concession granted at the 1964-67 trade conference for tariff heading 18.06B supported this, especially as it could be assumed that the scope of the products under tariff heading 18.06B subject to a tariff concession was not intended to be altered but merely clarified by this other version differing from Regulation No 755/67. Moreover, it maintained that its interpretation (that ‘chocolate in bulk’ is chocolate ready for consumption) was further supported because otherwise chocolate ready for consumption which was not imported in packages of up to 500 grammes for retail sale (and therefore not covered by the fourth indent in Article 1 of Regulation No 755/67) would be subject to the full levy in Regulation No 160/66, and this could not have been intended. In fact it is difficult to deny that these contentions have persuasive force.

Furthermore, the Commission s viewpoint is not contradicted by the wording of Regulation No 752/67, mentioned at the outset, which came into force on 1 December 1967 and which in Annex I combines ‘chocolate in bulk’ with ‘chocolates’ in one subheading; from this the plaintiff in turn draws the conclusion that since solely chocolates are products ready for consumption ‘chocolate in bulk’ must be a less developed product. Although it must be conceded that the different wording of Regulation No 752/67, applicable simultaneously with Regulation No 755/67, may at first sight give rise to some uncertainty, this divergence is not inexplicable for it was not possible simply to adopt the structure and terms of Regulation No 755/67 for Regulation No 752/67 which, as the Commission says, originated in ‘tariff theory’. Apart from this, the contrast between ‘chocolate in bulk’ and ‘chocolates’ does not force one to accept the plaintiff's claim because it is equally possible to maintain the view that chocolates are products in a customary trade packing whereas ‘chocolate in bulk’ is a finished product without a special form. This would merely mean that the term ‘chocolate in bulk’ must be more narrowly defined in Regulation No 752 67 than in Regulation No 755/67 (which moreover makes the absence of the addition in brackets in Regulation No 752/67 understandable). The Commission also showed convincingly that support cannot be found for the argument of the plaintiff in Regulation No 752/67 in so far as subheading 18.06B(a) covers products without a sugar content. In fact this in no way proves that ‘chocolate in bulk’ is necessarily an unfinished product, as this tariff heading also covers preparations based on sugar substitutes. Moreover, it is significant that a corresponding tariff heading is also found in Regulation No 735/68, a provision which substituted chocolate, that is a product clearly ready for consumption, for ‘chocolate in bulk’.

Thus, although the arguments examined so far cannot upset the Commission's view, the ratio of Regulation No 755/67, on the other hand, supports it. As has been said, this regulation concerned the partial revocation of a tariff concession in the interest of the common organization of the milk market. The withdrawal became necessary with regard to food preparations with milk containing cocoa which were neither customary in the trade nor ready for consumption. On the other hand, the maximum limits of the levy had to be observed for products which were customary in the trade, that is, in so far as the main countries supplying them, Switzerland and Great Britain, had an interest in the preservation of traditional trade patterns. This fact no doubt leads to a restrictive interpretation of the exceptions laid down in Regulation No 755/67, indeed to the assumption that they only cover finished products and that any mixed products which are difficult to delineate and create a danger of evasion must be disregarded. If ‘chocolate in bulk’ also covered semi-finished products it would be incomprehensible why later (in Regulation No 1114/68) ‘chocolate milk crumbs’, a food preparation containing cocoa, and therefore an intermediate product, was expressly added to the list of exceptions in Regulation No 755/67. Since this amounted to a supplementary provision by means of a special indent it can certainly not be said that it was merely a clarification. On the contrary, it must be accepted that it was an alteration of substance.

Finally, confirmation is found for the correctness of the conclusion drawn so far in the preliminary draft for the explanatory notes which was prepared by the customs experts of the Member States in November 1967 for the Common Customs Tariff and thus also for tariff heading 18.06. It also includes the term ‘chocolate in bulk’ and defines subheading 18.06B I, ‘chocolate in bulk, chocolates, whether or not filled (not including ice cream); confectionery containing cocoa and corresponding preparations containing cocoa based on sugar substitutes’, as follows:

1.Chocolate in blocks and chocolates, whether or not filled, usually in the form of slabs, bars, pastilles, croquettes, decorative crumbs, flakes and all other possible forms (…), even if they contain other foods, such as milk, cream, fruit or liqueurs;

2.Chocolate powder, made exclusively from processed chocolate, without the addition of other substances.

Even though the draft was prepared in the absence of a Dutch expert and was not published, a certain importance must however be attached to it in the present context.

For all these reasons the first question can therefore be answered in the way advocated by the Commission and there is no need to examine the tariff provisions cited by the plaintiff which, as the Commission has shown, would not produce anything material. Moreover in view of this result it is superfluous to examine the second question referred by the national court with its numerous subdivisions since it would only have been relevant if ‘chocolate in bulk’ had included semi-finished products.

4.In conclusion therefore I suggest that Question 1 raised by the Finanzgericht München should be answered as follows:

The term ‘chocolate in bulk’ in Regulation No 755/67 does not cover intermediate or semi-finished products of the chocolate industry. Chocolate in bulk must be considered to mean solely chocolate, that is to say, a commodity which possesses all the characteristics of chocolate and is ready for consumption.

(1) Translated from the German.