OPINION OF MR ROEMER — CASE 40/69 HAUPTZOLLAMT HAMBURG v BOLLMANN

Mr President,

Members of the Court,

The questions with which we are concerned taday have been referred to us for a preliminary ruling on the interpretation of Regulation No 22 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in poultrymeat (OJ 1962, p. 959) and of the implementing Regulations No 77 and No 136 of the Commission issued in connexion therewith (which were respectively made on 23 July 1962 and 31 October 1962 and published in the Official Journal, 1962 on pages 1881 and 2625).

The first thing to note in these regulations is that Article 4 of Regulation No 22 makes imports of slaughtered poultry and poultry cuts originating in third countries subject to a levy. The amounts of the levy applicable to poultry cuts were fixed for the first time in Regulation No 77 of the Commission and took the form of conversion factors which were related to the amounts óf the levies applicable to slaughtered hens and chickens and turkeys provided for in Regulation No 76. There were to begin with two conversion factors: a conversion factor of 1.25 for cuts of slaughtered farmyard poultry under heading ex 02.02 of the Common Customs Tariff and a conversion factor of 0.46 for edible offals under the same tariff heading. Later Regulation No 136 of the Commission which entered into force on 12 November 1962 divided the hearing cuts of slaughtered farmyard poultry into two sub-headings, backs and necks (with a conversion factor of 0.75), and all other poultry cuts (with a conversion factor of 1.25). Later on Regulation No 79/66 of the Commission of 29 June 1966 (although it has no direct relevance to the present proceedings) introduced another sub-heading of tariff heading poultry cuts ; it provided inter alia for a special conversion factor of 0.50 for backs, necks, backs with necks, rumps, wing ends.

These regulations are of importance in connexion with the importation from the U.S.A. of a certain product which was submitted for customs clearance by Paul G. Bollmann of Hamburg, (hereinafter called Bollmann), a firm of food importers, on 12 November 1962; more precisely, clearance was sought for what Bollmann described as edible turkey offals, these being called turkey rumps in the invoice annexed to the customs declaration.

The Customs Office having jurisdiction first classified the goods, which according to the particulars submitted by Bollmann were intended for human consumption, under heading 02.02-6 of the German tariff of levies (that is to say, under a particular heading of the classification of all goods subject to the levy'covered by the various common organizations of markets which had been carried out on the basis of the German law relating to the collection of levies (Abschöpfungserhebunggesetz of 13 August 1962). In accordance with this law the Customs Office assessed specific sums which were to be paid by way of general and supplementary levy and equalization tax. At a later stage the Customs Office amended its original decision as a result of information concerning the levy payable under the tariff which had come to light in the meantime, that is to say, it demanded payment of the levy on the basis that the goods declared were not to be regarded as edible offals but were to be classified under heading 02.02-B-II-6 as poultry cuts.

An appeal against this decision failed. The decision was amended during the appeal in favour of the importer only to the extent that the principal Customs Office stated that only the general levy was payable. With regard to the important question of the tariff classification the result of Bollmann's appeal to the Finanzgericht (Finance Court) was to begin with favourable. In fact the Finanzgericht accepted the applicant's view and declared that according to the tariff applicable at the date of importation the goods in question must be regarded as edible offals. Accordingly the only amount payable by way of levy was that originally assessed. This decision was based mainly on the explanatory notes to the German customs tariff, which, according to preliminary note to the tariff of levies, are also to be applied for the purpose of interpreting that tariff and which describe rumps as being only edible offals.

The Hauptzollamt (Principal Customs Office) on the other hand did not agree with the judgment of the Finanzgericht. It therefore lodged an appeal with the Bundesfinanzhof (Federal Finance Court), which is still pending. In the further appeal proceedings the Hauptzollamt submitted that the expression edible offals in tariff heading No 02.02 of the German customs tariff and of the tariff of levies has the meaning given to it in tariff heading 02.02 of the Common Customs Tariff. The explanatory notes on the German customs tariff (Chapter 2, paragraph 1, subparagraph 3) referred to by the Finanzgericht according to which rumps are edible offals only in fact covered those parts of the animal's body which are left over when it is slaughtered, of which ox tails are the chief example. Turkey rumps on the other hand are parts of a product known in the trade as backs and necks, i.e. they are regarded as poultry cuts. The Bundesfinanzministerium (The Federal Ministry of Finance), which intervened in the appeal, also took the view that turkey rumps are not edible offals. In its opinion any other view would in particular conflict with Regulation No 79/66 of the Commission of 29 June 1966 (Official Journal, page 2176) which I have already mentioned. As against this the respondent to the appeal takes the view that the later regulations made by the Commission of the European Communities — meaning Regulation No 79/66 — are not relevent to its case. If nevertheless reference is made to them the indirect conclusion can be drawn that turkey rumps by reason of their low commercial value must be regarded as edible offals. Moreover, since they are tails within the zoological meaning of this word the before-mentioned explanatory notes to customs tariff heading No 02.02-C are applicable to them and provide a definition which has to be applied, because there was no definition of edible offals in the tariff of levies in force at that time.

Therefore the question which the Bundesfinanzhof has to decide is how Community law must be interpreted in this case. The answer to this question will determine the amount of the levy and thereby the solution of the problem. Since under the third paragraph of Article 177 of the EEC Treaty the Bundesfinanzhof does not have jurisdiction to interpret Community law it stayed the proceedings by order of 30 July 1969 and referred to the Court for a preliminary ruling the following questions :

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community the respondent to the further appeal, the Government of the Federal Republic of Germany and the Commission of the European Economic Communities submitted their written observations. These parties have in addition also made detailed submissions during the oral procedure.

Let us now see which answers seem to be appropriate in the light of the observations which have been put forward.

The answers to the questions referred

1. I will deal with the first two questions together as the Federal Government and the Commission and, as regards essentials, Bollmann also, have done.

2. Having regard to this result, namely the conclusion that the classification of the disputed goods for tariff purposes is determined ultimately not by national explanatory memoranda but by Community law, the third question has also to be answered. In doing so it will become apparent — as it were incidentally — whether the information relating to the tariff of levies mentioned in the order for reference, which was issued after the goods were imported, is compatible with Community law or whether, as the explanatory notes to the Common Customs Tariff referred to by Bollmann suggest, the tariff classification is correct. In short, I repeat that the Bundesfinanzhof wishes to know whether turkey rumps are backsother poultry cuts or edible offals. These are the three headings which had to be considered under Article 2 of Regulation No 77 as amended by Article 1 of Regulation No 136 and under Article 3 of Regulation No 77 in the case of the imported goods on the date when they were cleared by the customs. The conversion factors applicable to these three headings were 0.75 (backs and necks), 1.25 (other poultry cuts) and 0.46 (edible offals). According to these conversion factors the levy was determined with reference to the amounts of the levy fixed for slaughtered turkeys. The views of the three parties to the proceedings on the third question can easily be summarized: Bollmann regards turkey rumps as edible offals, the Commission and the Federal Government on the other hand consider that the heading backs and necks applies.

3. I can therefore summarize all the conclusions in my opinion as follows:

1 Translated from the German.