Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. By an order received at the Court Registry on 16 August 1988 the Tarief commissie, Amsterdam, requested a preliminary ruling under Article 177 of the EEC Treaty on a question concerning the validity of Additional Note 6(a) of Chapter 2 of the Common Customs Tariff in the Annex to Council Regulation (EEC) No 3400/84 of 27 November 1984 amending Regulation (EEC) No 950/68 on the Common Customs Tariff.
2. The Common Customs Tariff headings in that annex which are at issue in the present case are worded as follows: Dead poultry (that is to say fowls, ducks, geese, turkeys and guinea fowls) and edible offals thereof (except liver), fresh, chilled or frozen (Heading 02.02) and Other prepared or preserved meat or meat offal (Heading 16.02).
3. It is precisely in application of Additional Note 6(a) that the Netherlands customs authorities refused to classify the goods presented by Van de Kolk under subheading 16.02 B I (a) 1 (bb), because they considered that the goods in question did not meet the conditions laid down in that note, and in particular that the seasoning was not visible to the naked eye nor distinguishable by taste.
4. However, the argument put forward by the national court rests on a premiss whose basis we must examine in more detail.
5. In order to determine whether that view is correct, it is necessary first of all to describe — albeit briefly — the system set up by the Convention on the Nomenclature.
6. In my view, two basic features emerge from the foregoing.
7. It follows that it is one thing to interpret a heading of the Common Customs Tariff without a specific additional note explaining its scope but quite another to assess the validity of any additional note, drawn up after delivery of a judgment interpreting the heading of the Common Customs Tariff, with regard to the obligation imposed by the Convention not to change the scope of the corresponding heading of the Nomenclature.
8. The above considerations help to define the scope of the judgment in Dinter, in which the Court interpreted Heading 16.02 of the Common Customs Tariff.
9. The Council subsequently adopted Additional Note 6(a) in which it specified that seasoned meat is uncooked meat that has been seasoned either in depth or over the whole service of the product with seasoning either visible to the naked eye or clearly distinguishable by taste.
10. It should above all be pointed out in that regard that the Court has already had occasion to rule on the validity of the criterion of visibility to the naked eye as a decisive requirement for the customs classification of goods.
11. With regard to the adoption of the criterion of taste as a method for classifying goods, it must be stated that, as the Commission has rightly pointed out, the science of sensory analysis has been progressively developed and has become an increasingly widely used tool for analysing food products.
12. Finally, it must be emphasized that the Commission has explained the reasons for the adoption of such rigorous methods of classification.
13. In the light of the above considerations, namely (a) the generic nature of Heading 16.02 (other prepared or preserved meat or offal) of Chapter 16 (concerning preparations of meat, of fish, of crustaceans or molluscs) of the Nomenclature in the annex to the Convention; (b) the fact that Explanatory Note EN/AS 35 of February 1982 is of little help in interpreting the heading in question since it does not explain what is to be understood by seasoned meat; (c) the need for a better definition of the concept of seasoning, since it is reasonable to argue that the mere addition of a few grains of salt or pepper does not really constitute seasonings, I conclude that consideration of the question referred to the Court has revealed nothing to suggest that specific information such as that given in the note at issue is such as to change the scope of Heading 16.02 in relation to Heading 02.02 of the Nomenclature in the annex to the Convention.
1 Original language: Italian.
2 OJ 1984, L 320, p. 1.
3 It should be pointed out that although the Explanatory Notes to the Common Customs Tariffcannot modify the text of the Tariff itself, they nevertheless constitute an important factor in its interpretation enabling the scope of the various tariff headings or subheadings to be defined or clarified; see the judgment of 26 February 1980 in Case 54/79 Hako-Schuh v Hauptzollamt Frankfurt am Main-Ost [1980] ECR 311, paragraph 6.
4 Sec the judgment of 17 March 1983 in Case 175/82 Diner v Hauptzollamt Koln-Deutz [1983] ECR 969, paragraph 11.
5 To be precise, the Customs Inspector readied that conclusion by wrongly applying a substantively identical provision in Commission Regulation (EEC) No 3678/88 (OJ 1988, L 366, p 53) The Tariefcommissie then cleared up the error by correctly identifying the applicable provision.
6 United Nations Treaty Sertes, Vol 347, p 127 (official texts in English and French)
7 There is, moreover, no dispute that the Community has taken over from the Member States the commitments arising from the convention in question and is bound by those commitments; sec the judgment of 19 November 1975 in Case 38/75 Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijnzen [1975] ECR 1439, p. ragraphs 21 to 23. In that regard it should be pointed our that in Council Decision 87/369/EEC of 7 April 1987 (OJ 1987, L 198, p. 1), the Council approved, on behalf of the Community, the International Convention on the Harmonized Commodity Description and Coding System, which was adopted in Brussels on 14 June 1983 and which was intended to replace the 1950 Brussels Convention as the international basis for customs tariffs and statistical nomenclatures.
8 See the preamble to the Convention.
9 Established by the Convention establishing the Customs Cooperation Council adopted in Brussels on 15 December 1950 (United Nations Treaty Series, Vol. 157, p. 129).
10 See paragraph 10 of the judgment in Dinter, cited above.
11 See the judgment of 30 September 1982 in Case 317/81 Howe & Bainbridge BV v Oberfinanzdirektion Frankfurt am Main [1982] ECR 3257, paragraphs 14, 17, 19 and 20.