Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. Paul F. Weber, the plaintiff in the main proceedings (hereinafter referred to as Weber), bought from Milchwerke Paderborn-Rimbeck, the defendant in the main proceedings (hereinafter referred to as Milchwerke), goods described in the contract as German skimmed-milk powder. That product was exported first to the Netherlands and later, through a British intermediary, to Japan. In respect of those transactions, Weber received monetary compensatory amounts and export refunds amounting to DM 716476.47.

First and second questions

2. In the first and second questions, the national court asks the Court of Justice to interpret subheading 04.02 A II (b) 1 of the Common Customs Tariff in regard to a product which has certain characteristics concerning its composition, its method of manufacture and the geographical origin of some of its constituents.

3. Let me first consider the point concerning the method of manufacture and its relevance for the purpose of interpreting the provision of the Common Customs Tariff.

4. In this case, subheading 04.02 A II makes no reference to the method of manufacture as a criterion for classification. Moreover, there seems to be no doubt that the particular way in which the product in question is manufactured is not, as such, of such a nature as to affect the analytical values thereof by altering its composition. As the Commission pointed out at the hearing, whether the skimmed-milk powder is obtained by dehydrating cow's milk or by mixing various ingredients in dehydrated form has no effect on the issue.

5. A similar conclusion will be reached after considering the other point raised by the national court, which is the subject of the second question, that is to say, the geographical origin of certain constituents of the Droduct at issue.

6. Let me now turn to the last point, which concerns the composition of the product at issue.

7. Those are the facts. With regard to the law, it should be pointed out that, according to Rule 3(b) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, goods not covered by a specific heading 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.

8. In the light of that information, two questions must be answered. Since the product at issue is a mixture, can it be classified under Heading 04.02 on the basis of the factor which determines its essential character, that is to say, in accordance with Rule 3(b)? If so, is that classification compatible with the terms of that heading or the section or chapter notes?

9. In this case, according to the Commission, Heading 04.02 cannot in any circumstances apply to products or mixtures containing more than 3% by weight of sodium caseinate. That is so even if the skimmed-milk powder continues to determine the character of the mixture.

10. Are those observations sufficient to exclude from Heading 04.02 any mixture of skimmed-milk powder containing more than 3% sodium caseinate?

11. I would like to make the following observations in regard to the study, mentioned above, undertaken by the Committee on Common Customs Tariff Nomenclature at the initiative of the German delegation.

12. However, there is another point. The Commission confirmed at the hearing that as yet there are no analytical methods for determining directly the quantity of sodium caseinate added to milk powder such as that in the present case. That was already made clear by the Ad hoc Group on Chemistry of the Committee on Common Customs Tariff Nomenclature (see the minutes of the meeting of 1 April 1982) in the context of the abovementioned study carried out at the initiative of the German delegation.

13. There is one last matter which must be considered in limine.

14. For the reasons set out above, I propose that the Court should reply to the questions put by the national court as follows:

1 Original language Italian

2 In fact, the Commission's agent claimed, both in the written observations and at the hearing, that sodium caseinate is naturally present in amounts fess than 3% in the dried matter of milk. That statement was later rectified on the basis of information supplied by the expert.

3 It should be noted that the Commission did not see any difficulty in the presence of 7.1% of calcium casemate.