JUDGMENT OF 28.3. 1979 — CASE 158/78 BIEGI v HAUPTZOLLAMT BOCHUM

In Case 158/78 REFERENCE to the Court pursuant to Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Münster for a preliminary ruling in the proceedings pending before that court between

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and G. Bosco, Judges, Advocate General : H. Mayras 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

(b) Second question

(c) Third question

(d) Fourth question

(a) Temporal application of Regulation No 1669/77

(b) Tariff classification of turkey pieces

III — Oral procedure

Decision

First question

Second question

Third question

Fourth question

Costs

I —. Facts and written procedure

1. The point at issue in the present case is whether certain poultry meat should be classified in the Common Customs Tariff as boned or boneless poultry cuts (excluding offals) or as edible offals.

2. The objection lodged by Biegi against the said corrective assessment was rejected by the Hauptzollamt Bochum and Biegi subsequently submitted an application to the Finanzgericht Münster which, by order of 27 April 1978, stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty:

3. The order referring the questions to the Court was received at the Registry on 26 July 1978.

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. Biegi first sets out the factual and legal considerations underlying the case. It observes in particular that the tariff classification under subheading 02.02 C which it seeks, is founded on:

(a). First question

(b). Second question

(c). Third question

(d). Fourth question

2. The Commission sets out its observations on the various questions under two main headings.

(a). Temporal application of Regulation No 1669/77

(b). Tariff classification of turkey pieces

1. Regulation (EEC) No 1669/77 does not oblige the Finanzgericht to classify within tariff subheading 02.02 B I the goods therein defined which were imponed before the entry into force of that regulation.

2. The content of that regulation correctly interpreted the tariff provision in question. It is valid.

3. On a proper interpretation of the customs tariff the turkey pieces described in the questions referred to the Court for a preliminary ruling fall within tariff subheading 02.02 B I: Poultry cuts.

4. In the present instance the question whether the tariff classification is for the imposition of the levy and monetary compensation is not relevant for the result obtained.

III —. Oral procedure

1. By order of 27 April 1978, which was received at the Court Registry on 26 July 1978, the Finanzgericht Münster referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty a number of questions concerning the validity and temporal application of Commission Regulation (EEC) No 1669/77 of 25 July 1977 on the classification of goods under Common Customs Tariff subheading 02.02 B I (Official Journal L 186 of 1977, p. 23), and concerning the interpretation of certain subheadings of the Common Customs Tariff.

2. In implementation of Regulation (EEC) No 97/69 of the Council of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (Official Journal, English Special Edition 1969 (I), p. 12) and in order to define the relative scope of subheadings 02.02 B I (Poultry cuts (excluding offal): Boned or boneless) and 02.02 C (Offals) the Commission adopted Regulation No 1669/77, Article 1 of which defines the products to be classified under subheading 02.02 B I as follows:

3. The plaintiff in the main action, whilst accepting that the classification adopted by the customs authorities is in conformity with that laid down by Article 1 of Regulation No 1669/77 nevertheless denies that that classification is well founded and argues that the aforesaid article contains an error of fact and that it lacks legal basis inasmuch as, in adopting that provision, the Commission made a substantive amendment to the Common Customs Tariff and exceeded the powers conferred upon it by Regulation No 97/69 of the Council.

4. In order to resolve that dispute the Finanzgericht Münster raised the following questions:

5. As regards the first question, Article 3 of Regulation No 97/69 of the Council, pursuant to which Regulation No 1669/77 was adopted, confers on the Commission the power to adopt the provisions required for the application of the nomenclature of the Common Customs Tariff as regards classification of goods.

6. It is clear from those rules that in this field the Council has conferred on the Commission, acting in co-operation with the customs experts of the Member States, a wide discretion as to the choice between two or more tariff headings in which a given product might be classified.

7. Article 1 of Regulation No 1669/77 does not amend the text of the Common Customs Tariff but specifies the content of a tariff subheading with regard to a given product.

8. It appears from the third recital that Article 1 of Regulation No 1669/77 specifies the tariff classification of the products referred to therein having regard to the tariff subheadings of Chapter 2, Section I, relating on the one hand to Poultry cuts (excluding offals): Boned or boneless and, on the other, to Offals.

9. It is precisely in cases such as the present one where the tariff does not lay down an exhaustive list of products falling within one or other subheading but merely gives examples of generic definitions that the Commission, in cooperation with the national experts, has the power to adopt a regulation determining the types of products covered by it.

10. The answer to the national court must therefore be that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Commission Regulation No 1669/77 of 25 July 1977.

11. With regard to the second question, as has been stated above, Regulation No 1669/77 was adopted by the Commission in the exercise of the power, conferred on it by Regulation No 97/69, to specify the content of the headings or subheadings of the Common Customs Tariff by means of measures effecting, subject to the conditions laid down in Article 4 of the latter regulation, the inclusion of goods under a particular heading or subheading.

12. As regards the third question, subheading 02.02 C, considered in the context of heading 02.02, constitutes a residuary subheading with regard to the whole of subheading 02.02 B.

13. By stating that that tariff subheading covers poultry meat without bones regardless of the part of the carcass from which it comes the Explanatory Notes to the Customs Tariff relating to it show that the subheading has a general scope and covers all cut poultry meat resulting from boning, irrespective of the manner in which it was obtained or its commercial value.

14. Having regard to the wide scope which the interpretative rules set out above attribute to the concept of boned or boneless meat within subheading 02.02 B I, the manner in which the product is presented, the way in which it was produced, the use to which it is to be put and its commercial value cannot be decisive criteria for its tariff classification.

15. On the other hand it is clear from the Explanatory Notes and the aforesaid interpretative rules that the decisive criterion for the tariff classification in subheading 02.02 B I is the objective characteristics of the product.

16. Moreover Commission Regulation No 1669/77 merely confirms this as an interpretative criterion since, in describing the composition of the products listed, it refers to pieces of raw frozen poultry meat with fibrous, gristly and fatty tissue attached thereto.

17. The third question should thus be answered to the effect that boned or boneless poultry cuts come under Common Customs Tariff subheading 02.02 B I, and regardless of the manner in which they are presented, the way in which they were produced, the use to which they are to be put and/or their commercial value, they do not constitute offals within the meaning of subheading 02.02 C so long as they essentially consist of muscle or fragments of muscle comprising only a small proportion of tendons, fat and fibrous tissue.

18. As regards the fourth question, in the absence of express provisions it would be inappropriate for the headings of the Common Customs Tariff to be applied differently for one and the same product depending on whether the classification is for the imposition of customs duties, the application of the rules of common organizations of the market or of the system of monetary compensatory amounts.

19. For those reasons the answer should be that the criteria for the tariff classification of products coming under Common Customs Tariff heading 02.02 are, for the purposes also of the imposition of the levy and the application of monetary compensatory amounts, those which result from the rules of interpretation and application of the tariff and its nomenclature.

20. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

On those grounds, THE COURT, in answer to the questions referred to it by the Finanzgericht Münster by order of 27 April 1978, hereby rules:

1 Consideration of the first question raised has disclosed no factor of such a kind as to affect the validity of Commission Regulation No 1669/77 of 25 July 1977.

2 Commission Regulation No 1669/77 of 25 July 1977 is not binding on national courts which have to define the tariff classification of goods imported before its entry into force.

3 Boned or boneless poultry cuts come under Common Customs Tariff subheading 02.02 B I, and regardless of the manner in which they are presented, the way in which they were produced, the use to which they are to be put and/or their commercial value, they do not constitute offals within the meaning of subheading 02.02 C so long as they essentially consist of muscle or fragments of muscle comprising only a small proportion of tendons, fat and fibrous tissue.

4 The criteria for the tariff classification of products coming under Common Customs Tariff heading 02.02 are, for the purposes also of the imposition of the levy and the application of monetary amounts, those which result from the rules of interpretation and application of the tariff and its nomenclature.