Gervais-Danone AG v Hauptzollamt München-Schwanthalerstraße (77/71)

On Question II (a)

The plaintiff claims that the case-law of the Court of Justice (Judgments of 18 February 1970, Hauptzollamt Hamburg v Bollmann, Case 40/69 [1970] ECR 69 and 8 December 1970, Bakels v Oberfinanzdirektion München, Case 14/70, [1970] ECR 1001), show that the Member States have no power to draw up binding rules of interpretation for the measures affecting it. This signifies that the Member States are not entitled to adopt legislative or executive measures to amend or supplement the Common Customs Tariff.Although the ‘verbindliche Zolltarifauskünfte’ formally constitute executive measures, their substantial effect is that of legislative measures since they are binding on the customs authority in respect of an indefinite quantity of consignments and over an indefinite period. For this reason they are unlawful even though the case-law of the Court only concerns legislative measures.The Government of the Federal Republic of Germany maintains that it is clear that the ‘verbindliche Zolltarifauskünfte’ are lawful as their effect is the same as that of the classification of the products within the context of the ordinary customs procedure. They must be regarded as administrative instructions which are only binding on the customs offices. Persons subject to the jurisdiction of the customs authorities are entitled to appeal to the Bundesfinanzhof against the ‘verbindliche Zolltarifauskünfte’.The Commission observes that the aim of the ‘Verbindliche Zolltarifauskünfte’ is to protect the legitimate expectations of persons subject to the jurisdiction of the customs authorities as regards the interpretation of the Common Customs Tariff by such authorities in a Member State. To the extent to which they are concerned with interpretations of individual cases they are compatible with Community law. In such a case the consequences of a possible mistaken interpretation of the Customs Tariff on the basis of a ‘verbindliche Zolltarifauskünfte’ are the same as an incorrect classification through the ordinary procedures followed by the customs authority. A small number of mistaken classifications are inevitable and do not adversely affect the proper functioning of the Common Customs Tariff. However, if the ‘verbindliche Zolltarifauskünfte’ assume the nature of generally applicable interpretations and, therefore, apply automatically to numerous cases which are almost identical, the proper functioning of the Common Customs Tariff might be endangered in the case of a mistaken interpretation. This is all the more possible in that it is unlikely that a judicial body will consider the interpretation given. These considerations show that in the absence of any Community regulation the Oberfinanzdirektionen are still entitled to issue ‘Verbindliche Zolltarifauskünfte’ to the extent to which they are required for the occasional interpretation of the Common Customs Tariff.