OPINION OF MR ROEMER — CASE 30/71 SIEMERS v HAUPTZOLLAMT BAD REICHENHALL

Mr President,

Members of the Court,

In the case referred for a preliminary ruling with which I am dealing today there are once again tariff classifications problems, that is, questions which relate to the interpretation and application of the Common Customs Tariff. First I must relate the following facts.

On 30 May and 9 July 1968, Kurt Siemers & Co., Hamburg, the plaintiff in the main action, imported from Switzerland into the Federal Republic of Germany certain quantities of a product which the firm described as diet-mayonnaise and which consisted, at least according to the firm's declaration in respect of the second import—of wine-vinegar, whole egg (probably deep frozen), salt and butter oil. In accordance with the firm's application, the competent customs offices, without an examination, that is without taking samples, classified the product under heading 21.04 (sauces, mixed condiments and mixed seasonings) and imposed, in addition to turnover tax, merely the relevant customs duty. The goods were later sold to a firm in Hamburg, which apparently processed them into butter oil and allegedly exported them, against refunds, to third countries.

On the basis of a memorandum from the Customs Division of the Businesses Inspectorate of 5 September 1969 regarding the examination of the plaintiff's imports, from which it emerged that the product was not regarded in the trade as mayonnaise, that is as condiments and seasonings or sauces, and consequendy could be classified only under heading 21.07 as food preparations not elsewhere specified or included, the appropriate customs office issued an amended tax assessment on 22 October 1969 and, since products under tariff heading 21.07, in so far as they contain milk products, are covered by the marketing system of Regulation No 160/66 of 27 October 1966 (OJ L 14 p. 1) with its higher import duties, imposed a corresponding supplementary assessment. Since Messrs Siemers did not agree with this, they took the matter before the Finanzgericht München.

In their grounds of application, Messrs Siemers alleged that it is common knowledge that it is perfectly possible to produce mayonnaise from butter oil. It follows from the explanatory notes to the German Customs Tariff that mayonnaise comes within the concept mixed condiments and mixed seasonings within the meaning of heading 21.04 and it makes no difference whether it is manufactured from milk or vegetable fat. The fact that the goods in question should be classified under heading 21.04 also follows from Regulation No 241/70 of the Commission of 9 February 1970 (OJ L 32/6) on the classification of goods under subheading 21.07 F of the Common Customs Tariff. Article 1 of this provides as follows: Food preparations based on milkfats, which contain various ingredients (egg yoke, vinegar, salt, for example) used also in the preparation of sauces, mixed condiments or mixed seasonings and which are clearly not intended for consumption in the unaltered state as sauces, mixed condiments or mixed seasonings shall fall within the Common Customs Tariff subheading: No 21.07 Food preparations not elsewhere specified or included: F other. According to Siemers it is implicit in Article 2 of the regulation, which prescribes the day on which the regulation shall enter into force, that it effects an amendment of the law. Apart from this even after the entry into force of this regulation before there can be classification under heading 21.07 it must be established at the relevant date that the goods in question are clearly not intended for consumption in the unaltered state as sauces, mixed condiments or mixed seasonings. There is no such clarity in the plaintiffs case since it was not patently obvious to the customs officials that the imported mayonnaise was to be used otherwise than as described in Regulation No 241. Finally, the supplementary demand for customs duty also infringes the principle of good faith since the plaintiff had accurately stated the composition of the imported product when applying for clearance. The case-law of the Bundesfinanzhof whereby a person who has neglected to obtain a binding customs notice cannot rely on the principle of good faith is, properly understood, no longer applicable because, according to the principles of Community law, national authorities are no longer empowered to issue binding customs tariff notices.

On the other hand, the Hauptzollamt contends that a product can be described as mayonnaise and thus as a mixed condiment or seasoning under heading 21.04 only if it is ready for consumption. It maintains that the product in question did not in any event correspond in its composition and flavour to marketable mayonnaise. It argues that in this respect reference can also be made to Regulation No 241/70 which did not really make any change in the law. The product in question, which was made from milkfat and therefore covered by this regulation, was not in fact used in the trade either in the Federal Republic of Germany or abroad as a sauce, condiment or seasoning and in no case consumed in the unaltered state.

In view of this dispute the resolution of which necessitates a decision on various questions of European law, the court before which the matter was brought stayed the proceedings by order dated 25 May 1971 and referred the following questions for a preliminary ruling:

I should now like to give my opinion on these questions regarding which the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities have presented their views orallv and in writing.

I shall begin with a brief preliminary Observation on the actual wording of the questions. As we have seen, the present case concerns the interpretation of heading 21.04. In this respect it should be borne in mind that products under this tariff heading were not made the subject of common tariff until 1 July 1968, that is, with the entry into force of the Common Customs Tariff of Regulation No 950/68 (OJ L 172/1). However, since the imports in question were partly effected in May 1968 it could be said that an interpretation of Community law has been incorrectly requested to this extent. Nevertheless, it might be possible to consider refraining the question. It is in fact evident that the court making the reference is obviously only considering a tariff classification under heading 21.04 or 21.07, that is, that it is also a question of the scope of the latter tariff heading. It is certainly possible to clarify this because the products covered by it already came within the scope of the common marketing system of Regulation No 160/66 of 27 October 1966 at the date of the first import (May 1968).

Nevertheless, like the Commission I believe that an amendment of this kind is unnecessary. In fact, at the date of the second import, the tariff law of the Community was exclusively applicable and thus to this extent the questions raised cannot be criticized. In addition there is really no substantial difference between the legal problems involved in the two cases, since the dispute mainly turns on the distinction between headings 21.04 and 21.07. In agreement with all those concerned in the proceedings I shall not therefore alter the questions raised but shall proceed to treat them uniformly.

1. The first question relates to the interpretation of heading 21.04 (sauces; mixed condiments and mixed seasonings). It may be understood as a general inquiry as to whether or not it is decisive for the classification under this heading that a product has been manufactured by using butter, butter fat or fract butter oil

2. With the second question the Finanzgericht asks what importance trade usage has for the classification of a product under heading 21.04 or 21.07. If trade usage is important the Finanzgericht would like to know in addition whether the trade usage of one Member State can be taken into consideration or whether the uniform trade usage existing in all Member States must be considered.

3. The third question relates to Regulation No 241/70 of the Commission of 9 February 1970on the classification of goods under subheading No 21.07 F of the Common Customs Tariff. The objective of this regulation as appears from its recitals and Article 1, is by negative definition to clarify the distinction between headings 21.04 and 21.07. Since the imports in question in the main action took place in May and July 1968 and the regulation (according to Article 2 thereof) entered into force only on 13 February 1970, the Finanzgericht would like to know whether the regulation was by virtue of its content, already applicable on 27 May and 9 July 1968 or whether it only applies to imports which take place after its entry into force.

4. A fourth group of questions relates to the interpretation of Regulation No 241/70 just mentioned, that is, the interpretation of the word clearly and the problems related thereto.

5. Finally, the last question concerns the binding customs tariff notices (verbindliche Zolltarifauskunfte) found in German law. In this respect the Finanzgericht would like to know whether they can still be issued after the entry into force of Regulation No 950 or, with regard to products which are covered by the marketing system of Regulation No 160/66, after its entry into force, or whether they conflict with the concept of the uniform application of Community customs law.

6. Accordingly, to summarize, I can propose the following answers to the questions raised:

1 Translated from the German.

2 Paragraph 94 in conjunction with Paragraph 144 of the Abgabenordnung.

3 Paragraph 28 of the Allgemeine Zollordnung.

4 Cf. Bail-Schädel-Hutter, Kommentar zum Zollgesetz, note to Article 23.

5 Cf. Bail-Schädel-Hutter op. cit., p. 266.

6 Cf., ibid., note to Article 23.

7 Cf. Bail-Schädel-Hutter, op. cit., note to Article 23.