JUDGMENT OF 8. 2. 1990 CASE C-233/88 JUDGMENT OF THE COURT (Fifth Chamber) 8 February 1990 * In Case C-233/88 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tariefcommissie (administrative court of last instance in revenue matters), Amsterdam, for a preliminary ruling in the proceedings pending before that court between Gijs van de Kolk-Douane Expéditeur BV and Inspecteur der Invoerrechten en Accijnzen, Amersfoot, on the validity of Additional Note 6(a) inserted into Chapter 2 of Section I of Part II of the Common Customs Tariff by Council Regulation (EEC) No 3400/84 of 27 November 1984 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (Official Journal 1984, L 320, p. 1), THE COURT (Fifth Chamber) composed of: Sir Gordon Slynn, President of Chamber, M. Zuleeg, R. Joliet, J. C. Moitinho de Almeida and G. C. Rodriguez Iglesias, Judges, Advocate General: G. Tesauro Registrar: H. A. Rühl, Principal Administrator after considering the observations submitted on behalf of the plaintiff in the main proceedings by its counsel, N. P. J. Ooyevaar; * Language of lhe case: Dutch. I-278
VAN DE KOLK the Council of the European Communities, by Y. Crétien, Legal Adviser, assisted by H. Daalder, a member of its Legal Department, acting as Agents; the Commission of the European Communities, by R. Barents, a member of its Legal Department, acting as Agent, having regard to the Report for the Hearing and further to the hearing on 15 June 1989, after hearing the Opinion of the Advocate General delivered at the sitting on 12 October 1989, gives the following Judgment 1 By an order of 28 June 1988, which was received at the Court on 16 August 1988, the Tariefcommissie, Amsterdam, referred a question to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling on the validity of Additional Note 6(a) inserted into Chapter 2 of Section I of Part II of the Common Customs Tariff by Council Regulation (EEC) No 3400/84 of 27 November 1984 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (Official Journal 1984, L 320, p. 1). 2 Additional Note 6(a) states that '"Seasoned meat" of poultry, swine or bovine animals, excluding the products described in paragraph (c), falls within subheadings 16.02 B I, 16.02 B III (a) and 16.02 B III (b) 1 (aa) respectively. "Seasoned meat" shall be uncooked meat that has been seasoned either in depth or over the whole surface of the product with seasoning either visible to the naked eye or clearly distinguishable by taste'. 3 The dispute in the main proceedings concerns the tariff classification of certain poultry meat which was imported as 'seasoned chicken breasts, boned and skinned'. According to the report of the analysis carried out by the laboratory of I - 279
JUDGMENT OF 8. 2. 1990 CASE C-233/88 the Ministry of Finance, it was found that only the top had been seasoned and that therefore seasoning has not been applied over the whole surface of each piece or is not clearly distinguishable by taste'. Consequently, the products in question did not meet the conditions laid down in Additional Note 6(a) and therefore could not be regarded as seasoned meat falling within Heading 16.02. The Netherlands authorities refused to grant a request for a further analysis of the goods, on the ground that it was out of time, and the goods were classified under subheading 02.02 B I (c). 4 Since the imported meat was classified under Heading 02.02 ( Dead poultry (that is to say, fowls, ducks, geese, turkeys and guinea fowls) and edible offals thereof... fresh, chilled or frozen'), the importer became liable for payment of HFL 50 675.70 in respect of agricultural levies and monetary compensatory amounts; monetary compensatory amounts are not applicable to meat which falls within Heading 16.02 ( Other prepared or preserved meat or meat offal'). 5 The importer appealed to the Tariefcommissie which considered that there were doubts regarding the validity of Additional Note 6(a) since it was not in conformity with the criteria of the Brussels Convention on the Nomenclature for the Classification of Goods in Customs Tariffs of 15 December 1950 {United Nations Treaty Series, Vol. 347, p. 127, hereinafter referred to as 'the Convention on the Nomenclature'), applicable in the present case. Those criteria enable a distinction to be drawn between Headings 02.02 and 16.02 and were defined by the Court of Justice in its judgment of 17 March 1983 in Case 175/82 Dinter v Hauptzollamt Köln-Deutz [1983] ECR 969. The Tariefcommissie therefore referred the following question to the Court of Justice for a preliminary ruling: Is Additional Note 6(a) to Chapter 2 of the Common Customs Tariff as laid down by the Council in the annex to Regulation (EEC) No 3400/84 valid?' 6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. I-280
VAN DE KOLK 7 In order to answer the Tariefcommissie's question, it must be determined first of all whether the Council exceeded its discretionary power to interpret the Common Customs Tariff when it adopted the note at issue. 8 According to the Explanatory Notes of the Customs Cooperation Council (EN/AS 35 February 1982), established by a convention which was opened for signature on the same day as the Convention on the Nomenclature and whose tasks include the provision of advice on the interpretation of the Nomenclature, Heading 16.02 covers 'Meat and meat offals prepared or preserved by other processes not provided for in Chapter 2, including those merely covered with batter or bread crumbs, truffled or seasoned (e. g. with pepper and salt)'. 9 As the Court pointed out in its judgment of 19 November 1975 in Case 38/75 Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijnzen [1975] ECR 1439, paragraph 25), the Customs Cooperation Council's interpretation of the Nomenclature is binding on the Community when it reflects the general practice followed by the Member States, unless it is incompatible with the wording of the heading concerned or goes manifestly beyond the discretion conferred on the Customs Cooperation Council. 10 When the Customs Cooperation Council's interpretation of the Nomenclature is not binding on the Community, or if it has not given an interpretation, the Community legislature has the power to interpret, by means of regulations and subject to review by the Court of Justice, the Nomenclature as it is to be applied by the Community. 11 The note at issue purports to specify what is to be understood by seasoned meat or meat offals within the meaning of the abovementioned Explanatory Notes of the Customs Cooperation Council. In order to do so it lays down criteria for classification based on the sensory analysis of the goods. 12 Those classification criteria comply with the case-law of the Court of Justice according to which, in the interests of legal certainty and ease of verification, goods must be classified on the basis of the objective characteristics and properties I-281
JUDGMENT OF 8. 2. 1990 CASE C-233/88 of products which can be ascertained when customs clearance is obtained (see, inter alia, the judgment of 16 December 1976 in Case 38/76 Luma v Hauptzollamt Duisburg [1976] ECR 2027, paragraph 7). 13 In order to apply criteria such as those set out in the note at issue, there are objective techniques of sensory analysis which have recently been developed and for which national and international standards have been laid down, for example, Standard DIN 10954 in the Federal Republic of Germany and Standard ISO 4120, which the International Organization for Standardization, Geneva, submitted to its member committees in 1982. As the Commission has pointed out, those methods of analysis allow, in particular, the goods as presented for customs clearance to be accurately assessed for the four basic flavours sweet, acid, salt and bitter which can be detected, even at very low levels, by a statistically significant population. 1 4 It is true that in its judgment of 17 March 1983 in Case 175/82, cited above, the Court took the view that a criterion as subjective as taste may not be used to assess the seasoning of meat and that Heading 16.02 of the Common Customs Tariff must be interpreted as meaning that it also includes poultry meat to which salt and pepper have been added even if the pepper can be detected only microscopically. 15 However, it must be pointed out that that judgment was delivered in different circumstances from those in the present case; there was no provision in a regulation on the interpretation of the Common Customs Tariff and at the time of the national authorities' inspection of the goods Standard ISO 4120 had not yet been devised. 16 In those circumstances, it must be concluded that in laying down the abovementioned criteria, the Council did not infringe the principle of legal certainty and did not otherwise exceed the discretionary power conferred on it in that field. 17 Nor is the note at issue contrary to the Convention on the Nomenclature under which the Contracting Parties undertake not to make changes in the chapter or I-282
VAN DE KOLK section notes in a manner modifying the scope of the chapters, sections and headings (Article II(b)(ii)). 18 Additional Note 6(a) does not change the scope of the chapters, sections and headings of the Nomenclature. It merely specifies the criteria to be taken into account for classifying certain goods under a particular heading of the Common Customs Tariff in accordance with the interpretation given in relation to that heading by the Customs Cooperation Council. 19 Consequently, the reply to the national court must be that consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Additional Note 6(a) to Chapter 2 of Section I of Part II of the Common Customs Tariff as laid down in Council Regulation No 3400/84 of 27 November 1984. Costs 20 The costs incurred by the Council and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT (Fifth Chamber), in answer to the questions referred to it by the Tariefcommissie Amsterdam, by an order of 28 June 1988, hereby rules: Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Additional Note 6(a) to Chapter 2 of Section I of Part II of the Common Customs Tariff as laid down in Council Regulation (EEC) I-283
JUDGMENT OF 8. 2. 1990 CASE C-233/88 No 3400/84 of 27 November 1984 amending Regulation (EEC) No 950/68 on the Common Customs Tariff. Slynn Zuleeg Joliét Moitinho de Almeida Rodriguez Iglesias Delivered in open court in Luxembourg on 8 February 1990. J.-G. Giraud Registrar G. Slynn President of the Fifth Chamber I-284