JUDGMENT OF 2. 5. 1979 — CASE 137/78 HENNINGSEN FOOD v PRODUKTSCHAP VOOR PLUIMVEE EN EIEREN
In Case 137/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the College van Beroep voor het Bedrijfsleven (administrative court of last instance in matters of trade and industry) for a preliminary ruling in the action pending before that court between
THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure
II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
(a) First question
(a) First question
(b) Second question
(a) First question
(b) Second question
Ill — Oral procedure
Decision
Costs
I —. Facts and written procedure
1. The undertaking Henningsen Van den Burg manufactures products bearing the marks Hentex 76 and Hentex 10 which it has exported for some two years to the United Kingdom and to which it refers in its export declarations as whole hen-egg powder stating the tariff heading as 04.05 BI of the Common Customs Tariff.
2. With regard to the exportations concerned in this case the British customs authorities refused to accept their tariff classification under heading 04.05 B I given in the export forms and classified the goods under tariff heading 21.07 F subsequently renumbered in Council Regulation (EEC) No 2500/77 of 7 November 1977 amending Regulation (EEC) No 950/68 on the Common Customs Tariff as tariff heading 21.07 G. This heading does not make provision for the application of monetary compensatory amounts to the products concerned.
3. A copy of the judgment making the reference was received at the Court on 14 June 1978.
II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
(1). The applicants in the main action submit in particular the following observations:
(a). First question
3. When, for any reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a). The heading which provides the most specific description shall be preferred to headings providing a more general description.
(b). Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets, which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable.
(b). Second question
(2). The United Kingdom states explicitly that its observations refer to the first question submitted by the Netherlands court, and recalls that, although the Common Customs Tariff was not fully applicable by the United Kingdom at the time when the transactions in dispute took place, it nevertheless applied the nomenclature contained in the tariff in accordance with Article 39 (4) of the Act of Accession.
(3). The Commission first recalls the essential aspects of the system for monetary compensatory amounts and the detailed rules applicable thereto, in particular those based on the provisions of Article 2 a of Regulation No 974/71, as amended by Regulation No 509/73, and of Article 11 (2) of Regulation No 1380/75 and in particular makes the following observations:
(a). First question
(b). Second question
(i). A compensatory amount on export, which is determined on the day of export (as defined in Article 8 (2)) the payment of which is conditional upon the production of proof that the product in respect of which the customs export formalities were completed has left the territory of the exporting Member State in which the formalities were completed (Article 10(1)).
(ii). A compensatory amount on import which is determined on the day of import (as defined in Article 8 (5)), the payment of which is conditional on the production of proof that customs formalities have been completed and that the duties and charges having equivalent effect payable in the importing Member State have been charged (Article 10(2)).
Ill —. Oral procedure
1. The College van Beroep voor het Bedrijfsleven, in its judgment of 9 June 1978 which was received at the Court Registry on 14 June 1978, referred to the Court pursuant to Article 177 of the EEC Treaty, questions on the interpretation of certain provisions of the Common Customs Tariff and on Regulation (EEC) No 1380/75 of the Commission of 29 May 1975 (Official Journal 1975, L 139, p. 37) laying down detailed rules for the application of monetary compensatory amounts.
2. Those questions were raised in the context of a case concerning the application of Article 2 a of Regulation (EEC) No 974/71 of the Council of 12 May 1971 (Official Journal, English Special Edition 1971 (I), p. 257), as amended by Regulation No 1112/73 of the Council of 30 April 1973 (Official Journal 1973, L 114, p. 4). According to that provision, where a product exported from one Member State has been imported into a Member State which has to grant a compensatory amount upon importation, the exporting Member State may, by agreement with the importing Member State, pay the compensatory amount which should be granted by the said importing Member State.
3. At the time at which the events in question took place that provision was applied to exports from the Netherlands to the United Kingdom. Pursuant to the said provision the applicants in the main action claimed from the Produktschap voor Pluimvee en Eieren (hereinafter referred to as the Produktschap) payment, on the importation into the United Kingdom of certain products having a content in whole hen-egg powder of 52 %, of the compensatory amounts payable by the United Kingdom on the importation of goods under subheading 04.05 B I of the Common Customs Tariff. The Netherlands authorities accepted the classification of the said products under subheading 04.05 B I (Eggs, not in shell; egg yolks: Suitable for human consumption) which entails the application of compensatory amounts, whilst the British authorities considered, when the products were imported into the United Kingdom, that they came under subheading 21.07 G I (a) 1 (Food preparations not elsewhere specified or included: Other: … Containing no starch or containing less than 5 % by weight of starch) to which on the other hand compensatory amounts are not applicable.
4. Following the tariff classification adopted by the British authorities the Produktschap took the view that, with regard to the products in question, it was unable to pay the compensatory amounts on importation into the United Kingdom since the British authorities had not completed the formalities laid down by Article 11 of the said Regulation No 1380/75 as conditions for the grant by the exporting Member State of the compensatory amount payable by the importing Member State. The applicants in the main action thus complain that the Netherlands authorities have interpreted and applied wrongly the provisions of Article 11 of Regulation No 1380/75 laying down detailed rules for the application of the above-mentioned Article 2 a of Regulation No 974/71 and contest the tariff classification adopted by the British authorities.
5. In order to settle this dispute the College van Beroep voor het Bedrijfsleven has submitted the following questions to the Court:
6. With regard to the first question subheading 04.05 B I refers to the products to which it applies as Eggs, not in shell; Egg yolks … Suitable for human consumption. It is clear from the Explanatory Notes to the Customs Tariff of the European Communities that that subheading applies to such products even if they have undergone a particular treatment with a view to removing pathogenic germs … and to eggs, not in shell, and egg yolks preserved by adding small quantities of chemicals …. It is clear from the wording of the said subheading and of the above-mentioned Explanatory Notes that the products to which the subheading refers are essentially birds' eggs, not in shell, and egg yolks, without further processing, to which any chemical components are added in small quantities only, in order to preserve them.
7. On the other hand heading 21.07 relates to Food preparations not elsewhere classified or included. The Explanatory Notes to the Brussels Nomenclatures state with regard to that heading, at (A) and (B), that, provided that such preparations are not covered by any other heading of the Nomenclature, that heading covers inter aliapreparations consisting wholly or partly of foodstuffs, used in the making of .. . food preparations for human consumption. Furthermore, subheading 21.07 G I (a) 1 has a residuary character in relation to food preparations as a whole inasmuch as it refers to the other food preparations not elsewhere specified or included containing no starch or containing less than 5 % by weight of starch.
8. Although the product in question has a significant content of whole hen-egg powder it contains appreciable quantities of other components, in particular soya meal and glucose syrup which are not in the nature of chemical additives whose sole purpose is to preserve the product. Although the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff provide at 3 (b) that mixtures of products which are not referred to in a specific heading must be classified in accordance with the material which gives them their essential character the Explanatory Notes to the Brussels Nomenclature nevertheless state that that rule can only take effect provided the terms of headings or Section or Chapter Notes do not otherwise require. In those circumstances, it is impossible to classify a commodity having the character of the product in question under birds eggs and egg yolks' within the meaning of subheading 04.05 B I. On the other hand that product displays the characteristics peculiar to a food preparation within the meaning of the Common Customs Tariff. Since the product is not referred to in any heading of the Nomenclature or in any heading or subheading of Chapter 21 of the Tariff it may thus be considered as coming under the Food preparations not elsewhere specified or included … Other of subheading 21.07 G I (a) 1.
9. For those reasons the reply to the first question must be that a product composed of 52 % whole hen-egg powder, 25 % soya meal, 22 % glucose syrup and 1 % salt and lecithin does not come under heading 04.05 B I of the Common Customs Tariff but constitutes a food preparation coming under subheading 21.07 G I (a) 1 of the Tariff.
10. With regard to the second question its wording indicates that the national court submitted that question with reference to circumstances in which even if the product Hentex does fall under tariff subheading 04.05 BI the importing Member State refuses to furnish a certificate to that effect.
11. It is clear from the foregoing considerations that the product in question does not come under tariff heading 04.05 B I applied by the exporting Member State. Since the refusal for the importing Member State to accept such a classification has thus proved to be justified under the Common Customs Tariff the second question submitted becomes devoid of purpose.
12. The costs incurred by the Commission of the European Communities and the Government of the United Kingdom, which have submitted observations to the Court, are not recoverable. As these proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court.
On those grounds, THE COURT (First Chamber), in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by a judgment of 9 June 1978, hereby rules:
1 From 1 July 1977 Article I of Regulation No 2315/69 has been replaced bv Article 10 of Regulation (EEC) No 223/77 (Official journal 1977, L 38, p. 20).