Opinion of Advocate General

Mr President,

Members of the Court,

1. The Bundesfinanzhof has referred to the Court for a preliminary ruling two questions relating essentially to the interpretation of the expression salted meat in heading 0210 of the Combined Nomenclature of the Common Customs Tariff. It asks specifically whether meat of bovine animals to which a quantity of salt has been added such that the total salt content amounts to more than three times the natural salt content is to be classified under heading 0210 and, if not, how high the salt content must be and what other conditions, if any, must be fulfilled for the product in question to be classified under that heading.

2. It is common ground between the parties that the meat in question falls under Chapter 2 of the Combined Nomenclature, Meat and edible meat offal, which covers meat of bovine animals, both frozen (heading 0202) and salted (heading 0210). The dispute which gave rise to the present proceedings turns specifically on the question whether it is to be classified under subheading 02023090 (other meat of bovine animals, frozen) in accordance with the binding customs tariff notices issued by the Oberfinanzdirektion in connection with the consignments in question, or under subheading 02102090 (meat of bovine animals, salted, boneless) as the plaintiff claims.

3. That being said, it must first be recalled that the Court has consistently held that having regard to the imperatives of legal certainty and ease of verification, the decisive criterion for the tariff classification of goods must be sought generally in their objective characteristics and qualities, as defined in the headings and subheadings of the CCT, and in the notes to the sections or chapters. The Explanatory Notes to the Harmonized Commodity Description and Coding System may also be of some assistance in this connection.

4. However, before considering the interpretation of heading 0210 and in particular the term salted, it seems to me essential to say something about the criteria for deciding how meat that has been both frozen and salted should be classified in a case such as this.

5. The above observations, intended to clarify the terms of the problem in hand, also suggest a number of points that are relevant to the interpretation of heading 0210: (a) it is impossible to deduce from the Combined Nomenclature how much salt must be present in meat for it to be regarded as salted; (b) the quantity of salt added must be such as to constitute a process for preserving the meat in question, so merely superficial salting is not sufficient; and lastly (c) salting for the purposes of transportation alone is not sufficient.

6. In fact, the difficulties arise precisely from the absence of any criterion for distinguishing between salting merely for the purpose of preserving meat during transportation and salting as a method of ensuring its actual (if temporary) preservation. It has been claimed in the course of the procedure that, from a scientific point of view, a salt content of 4 to 5% is necessary for salting to be regarded as sufficient actually to preserve the product. On the other hand, it has righdy been pointed out that preservation — or to be precise, the period of preservation — depends not only on the salt content but also on other factors such as the type and cut of the meat in question, the environmental conditions and the level of hygiene in packaging. It is consequendy impossible to define what deep salting means in the abstract.

7. It is quite clear from the above considerations that the criteria I have mentioned for describing meat of bovine animals as salted for the purposes of heading 0210, which can in any case be deduced from the system of Chapter 2 of the Combined Nomenclature, lack the objectivity required to enable a product to be classified under a given tariff heading in a uniform way.

8. In the light of these considerations, I therefore propose that the Court give the following answer to the questions referred to it by the Bundesfinanzhof:

1 Original language: Italian.

2 See, for example, judgment in Case C-120/90 Post [1991] ECR I-2391, paragraph 11.

3 It should be noted that the Court has consistently held that although the Explanatory Notes cannot 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.

4 See judgment in Case 175/82 Dinter [1983] ECR 969, paragraph 6.

5 See paragraph 3 of the general notes to Chapter 2 of the Combined Nomenclature.

6 See expert opinion of the Federal Office for Meat Research (Annex 1 to the Commission observations).

7 See expert opinion of the Federal Office for Meat Research (Annex 1 to the Commission observations).