JUDGMENT OF 23.3.1972 — CASE 36/71 HENCK v HAUPTZOLLAMT EMDEN

In Case 36/71 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg (Fifth Chamber) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), R. Monaco and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I— Summary of the facts and of the procedure

II — Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

The first question

The second question

The third question

Grounds of judgment

Costs

I—. Summary of the facts and of the procedure

1. May a product be classified under heading 23.07 of the Common Customs Tariff and therefore made subject to the levy in application of Regulation (EEC) No 19/62 of the Council of 4 April 1962 (OJ No 30, p. 933) (see Article 1 of Regulation No 19/62 in conjunction with the annex to that regulation) on the sole basis of objective characteristics, that is, without regard to the manner in which it is produced or obtained and in particular irrespective of whether or not it is an intentional mixture?

2. To what factual criteria must the composition of the product conform and in particular what must be its content in constituents such as, for example, starch, proteins, fats, etc. (see schedules annexed) in order that it may be classified :

3. Does a mixture, intentionally produced, come under heading 23.07 of the Common Customs Tariff if it is composed:

II —. Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

(a). according to the said Explanatory Notes simple mixtures of cereal grain (Chapter 10), cereal flours or flours of leguminous vegetables (Chapter 11) are not considered as forage preparations;

(b). not every product for the manufacture of which a processed cereal product has been mixed with a substance which it does not generally contain necessarily comes under heading 23.07.

1. By an order of 3 June 1971 which was received at the Court on 30 June 1971 the Finanzgericht Hamburg has referred to the Court of Justice, pursuant to Article 177 of the EEC Treaty, three questions on the interpretation of certain headings of the Common Customs Tariff.

2. First, the Court is asked to rule whether a product may be classified under heading 23.07 of the Common Customs Tariff and therefore made subject to the levy in application of Regulation (EEC) No 19/62 of the Council of 4 April 1962 on the sole basis of objective characteristics, that is, without regard to the manner in which it is produced or obtained and in particular irrespective of whether or not it is an intentional mixture.

3. With reference to tariff heading 23.07 the Annex to Regulation No 19/62 defines the products in question in the following terms : Animal food preparations including sweetened forage; other preparations used in animal feeding (additives, etc.); ex B. containing cereals or containing products covered by the present Regulation.

4. In the interests of legal certainty and of administration the classification of goods in the Common Customs Tariff is in principle carried out on the basis of their objective characteristics.

5. This interpretation is confirmed by note (c) relating to heading 23.07 which appears at the end of the Explanatory Notes to the Brussels Nomenclature; the note excludes from that heading preparations which, when account is taken, in particular, of the nature, purity and proportions of the ingredients … can be used indifferently for feeding animals or as human food.

6. The second question seeks to ascertain to what factual criteria must the composition of the product conform and in particular what must be its content in constituents such as, for example, starch, proteins, fats etc. in order that it may be classified: (a) under heading 11.01 of the Common Customs Tariff, (b) under heading 11.02 of the Common Customs Tariff, (c) under heading 23.07 of the Common Customs Tariff.

7. The third question seeks to ascertain whether a mixture intentionally produced comes under heading 23.07 of the Common Customs Tariff if it is composed either: (a) of 78 % sorghum, 9 % sorghum gluten and the remainder of molasses, maize husks and bran, or (b) of 4.9 % maize gluten, 80.08 % sorghum gluten and the remainder of molasses, maize husks and bran.

8. It is desirable to answer both questions together.

9. Taking account of the problems brought before the German court those questions relate to processed maize and sorghum products and are designed to ascertain the distinction between those products and the residues referred to in headings 23.03 and 23.04 of the Common Customs Tariff.

10. The classification of a product under one of those two headings cannot be affected by the fact that it has undergone processing if the processed product thereafter contains the essential constituents of the basic product in proportions which do not substantially differ from the content in those constituents which the relevant product exhibits in its natural state.

11. With regard particularly to the distinction between headings 23.03 and 23.04 it must be noted that in order to constitute residues within the meaning of those headings either starch or oil must have been extracted from the basic product in proportions equal to those which may be achieved by an economically rational application of modern procedures.

12. Heading 23.07 refers to products which have been finally processed or are the result of a mixture of different substances and which are only suitable for feeding animals.

13. The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities which submitted observations to the Court are not recoverable, and as these proceedings are, so far as the parties to the main action are concerned, a step in the action before the national court, the decision in costs is a matter for that court

On those grounds, Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community ; Having regard to Regulation (EEC) No 19/62 of the Council of 4 April 1962; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it by the Finanzgericht Hamburg (Fifth Chamber) in accordance with the order of that court of 3 June 1971, hereby rules:

1 For the purposes of the classification of a product under heading 23.07 of the Common Customs Tariff, account must be taken of its objective characteristics without its being necessary to consider whether the products referred to by that heading were prepared intentionally or not.

2 (a) Products processed from maize and sorghum may be classified under tariff headings 11.01 and 11.02 if after processing they still contain the essential constituents of the basic product in proportions which do not differ substantially from the content in those constituents which the relevant product exhibits in its natural state. (b) Heading 23.07 refers to products which have been finally processed or are the result of a mixture of different substances and which are only suitable for feeding animals, and not to agglomerated products the basic material or materials of which come as such under a specific heading, even if they contain a binder not generally exceeding 3 % by weight.

(a) Products processed from maize and sorghum may be classified under tariff headings 11.01 and 11.02 if after processing they still contain the essential constituents of the basic product in proportions which do not differ substantially from the content in those constituents which the relevant product exhibits in its natural state.

(b) Heading 23.07 refers to products which have been finally processed or are the result of a mixture of different substances and which are only suitable for feeding animals, and not to agglomerated products the basic material or materials of which come as such under a specific heading, even if they contain a binder not generally exceeding 3 % by weight.