Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

In August 1980, Gerlach & Co. BV, whose registered office is in Amsterdam, the plaintiff in the main action, declared goods, which it was importing from Spain, as fish-liver oil, subheading 15.04 A II of the Common Customs Tariff. Accordingly, the Netherlands customs authorities classified the goods under this duty-free subheading. On the basis of tests carried out on a sample, however, the authorities concerned came to the conclusion that the imported goods, though described as perhydrosqualene (Hexametri Tetracosano), should be considered to be an acyclic hydrocarbon within the meaning of subheading 29.01 A I of the Common Customs Tariff. Since such goods were liable, at that time, to a 6.7% duty, the competent authority (Ontvanger der Invoerrechten en Accijnzen) issued a demand, on 23 October 1980, for payment of import duty in the amount of HFL 11942.80.

The Netherlands Inspector of Customs and Excise (Inspecteur der Invoerrechten en Accijnzen) dismissed an objection to that decision, and Gerlach & Co. BV, then instituted proceedings seeking the annulment of the decision: and a reduction tot nihil of the amount in question essentially on the ground principally that acyclic compounds falling under heading 29.01 must be derived from mineral hydrocarbons, while in the present case, the product was of animal origin and should therefore be classified under subheading 15.04 A II.

The defendant Inspector contends, however, that the imported product no longer displays the outward features of fish oil and as a result of the processing which it has undergone, it has, moreover, become a separate chemically defined compound, namely, an acyclic hydrocarbon, which is expressly referred to in subheading 29.01 A. For the purposes of such a classification under the Customs Tariff, it is irrelevant whether the product is of natural or synthetic origin. Even if there is no question of its being used as a power or heating fuel, within the meaning of subheading 29.01 A I, the product must nevertheless be classified under that subheading since prior to importation the plaintiff failed to apply for authorization to classify it under subheading 29.01 A II acyclic hydrocarbons for other purposes — which carries no duty.

The Tariefcommissie considers that in addition to the tariff headings already mentioned heading 15.12 of the Common Customs Tariff must also be taken into account in relation to this product, which it describes as transparent, colourless and odourless and which is mainly used in the cosmetic industry. It considers that the terms of subheading 29.01 A II allow the goods in question to be classified iri principle under that subheading, but it points out that the authorization from the competent authorities provided for in Commission Regulation (EEC) No 1775/77 of 28 July 1977 determining the conditions under which certain petroleum products are eligible upon importation for a favourable tariff arrangement by reason of their end-use (Official Journal, L 195, p. 5) was not obtained, so that the conditions for classification under that subheading have not been met.

The Tariefcommissie therefore suspended the proceedings and, by an order of 16 March 1983, referred to the Court under Article 177 of the EEC Treaty the following preliminary questions :

My opinion on those questions is as follows:

I — The first question

1. The plaintiff in the main action contends that the goods in question should be classified under subheading 15.04 A II of the Common Customs Tariff — fish-liver oils, because, as may be determined by the C-14 method, they are of animal origin and unlike purely synthetic perhydrosqualene, are contaminated with the compound C30H62 in addition to other hydrocarbons.

2. Thus heading 15.12 must be taken into account. This heading covers animal or vegetable oils and fats, wholly or partly hydrogenated or solidified or hardened by any other process, whether or not refined, but not further prepared. As the Commission has told us, it is scarcely possible, without further preparation, to obtain a substance from fish-liver oil which does not have the typical fishy smell and taste and the yellow to reddish-brown colour. For this reason, heading 15.12 can also not be used.

3. I agree with the Commission and the Belgian Government, which also presented observations in this case, that heading 29.01 A, covering acyclic hydrocarbons, which we have still to consider, is relevant. The distinction between goods to be classified under Chapter 15 and those belonging to Chapter 29 is, as the Tariefcommissie has found, determined by Note 1 (d), to Chapter 15 and Note 1 (a) to Chapter 29. According to Note 1 (d), the goods therein listed and other goods falling within Section VI, including therefore those covered by Chapter 29, do not belong to Chapter 15. According to Note 1 (a) to Chapter 29 that chapter applies to separate chemically defined organic compounds, whether or not containing impurities.

II — The second question

It now remains to discuss the second question, under which heading the acyclic hydrocarbon is to be classified, since first it is common ground that it is not intended to be used as a power or heating fuel within the meaning of subheading 29.01 AI and secondly the conditions for classification under subheading 29.01 A II have not been met.

In view of the above considerations, I agree with the Commission in proposing that the questions submitted by the Tariefcommissie be answered as follows:

1 Translated from the German.