C-28/70

1. Within the scope of its powers under of Community law, having regard to the Article 177, the Court has no jurisdiction facts submitted by the latter. to apply the Treaty to a specific case. 2. The description 'poultry' under tariff headings 01.05 and 02.02 of the Common It must confine itself to extracting from Customs Tariff applies to those species the wording of the question formulated of poultry reared for use or slaughter, by the national court those matters in particular for the production of only which pertain to the interpretation foodstuffs.

In Case 28/70

Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg for a preliminary ruling in the action pending before that court between :

Kommanditgesellschaft in Firma Otto Witt, Stelle über Winsen-Luhe

and

Hauptzollamt Lüneburg,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Issues of fact and of law This tariff classification is the subject of the case at present pending before the Finanz­ The facts and procedure may be sum­ gericht (Finance Court) Hamburg. That marized as follows: court held that the charge of the levy on poultry was laid down by Regulation No 22 1. In May and in August 1964 the limited of the Council of the EEC of 4 April 1962 partnership Otto Witt imported from the and that at the date of the imports in United States consignments of frozen question there were no rules of interpre­ 'Rock Cornish Game Hens' (hereinafter tation issued by the competent authorities, referred to as 'game hens'). and it decided by an order of 6 May 1970 The German customs administration had to stay the proceedings and to refer to the originally applied headings 02.04-B 50 of the Court of Justice, under the first and second customs tariff to this poultry, but after the paragraphs of Article 177 of the EEC Treaty Oberfinanzdirektionen (Regional Finance the following question: Offices) of Hanover and of Hamburg had 'Must "Rock Cornish Game Hens" be issued on 5 and 9 October 1964 respectively considered as poultry within the meaning binding customs tariff notifications (ver­ of Article 1 of Regulation No 22 of the bindliche Zolltariffauskünfte) which stated Council of the EEC on the progressive that the game hens came under heading establishment of a common organization 02.02-(A)-I-c of the customs tariff, the of the market in poultry meat?' Hauptzollamt (Principal Customs Office) Lüneburg addressed to Otto Witt on 6 May 2. The order for reference reached the 1965 two corrective notices of assessment Court Registry on 21 June 1970. applying heading 02.02-(A)-I-b of the Otto Witt and the Commission of the tariff of levies to the products. European Communities submitted written On 19 May 1965, Otto Witt KG lodged observations in accordance with Article 20 an objection against these two notices of of the Protocol on the Statute of the Court assessment with the Hauptzollamt, which of Justice annexed to the EEC Treaty. dismissed the objection in a decision of 22 Upon hearing the report of the Judge- June 1965. Rapporteur and the views of the Advocate-

In support of its view, Otto Witt submits II — Observations submitted in ac­ information and experts' reports annexed cordance with Article 20 of to its statement of case. For the details the Protocol on the Statute of and a closer consideration of the matter, the Court of Justice it refers to the arguments and offers of proof in its pleadings of 16 September and 13 November 1969 and 26 January 1970 which The observations submitted in accordance it reaffirms in toto. Photocopies of those with Article 20 of the Protocol on the pleadings are produced as a schedule to Statute of the Court of Justice may be these written observations. summarized as follows: B — Observations of the Commission A — Observations submitted by Otto Witt The Commission recalls first of all the rules Otto Witt considers that the game hens applicable for the interpretation of the cannot be classified in the same category nomenclature of the Common Customs as ordinary table fowl, but that they come Tariff and then goes on to try to determine under the tariff heading for wild fowl raised the exact scope of the question. in captivity. It adds that the following It maintains that tariff headings 01.05 and points are not disputed by the parties to 02.02 of the Common Customs Tariff, the main action: relating to the poultry referred to in Article 1 of Regulation No 22, apply to — the external appearance, the taste and the same poultry, in the live state and in the the price of. the imported game hens dead state respectively, in other words, differ from those of typical farmyard that the expression 'poultry' under heading poultry; 02.02 has the same scope as that under heading 01.05. — these products were resold in Germany From this interpretation, as confirmed by as wild fowl; the French and English texts of the tariff and by the 'Explanatory Notes to the — some years before this case, the Ober­ Brussels Nomenclature', it follows there­ finanzdirektion Düsseldorf issued a fore that the question whether the game binding customs tariff notification (ver­ hens fall within 'dead poultry' under bindlich Tarifauskunft) whereby the heading 02.02 depends solely on whether game hens were to be subject to the tariff in their live state these products can be applicable to wild fowl; classified under live poultry under heading 01.05. — at the request of the importer, the The German text of heading 01.05 confines Hauptzollamt informed them that the the expression 'poultry' to a small number game hens should be given customs of species 'fowls, ducks, geese, turkeys and clearance as wild fowl and matters had guinea fowls'. proceeded on this basis for one year; Far from being purely exemplary, this list excludes the application of heading 01.05 — it appears from its reply to the Finanz- (and thus of heading 02.02, as regards dead

poultry) to any other species of poultry. characteristics and is distinguished from The French text of the Common Customs other genera of fowl but there are no Tariff, the 'Explanatory Notes to the criteria making it possible to distinguish Customs Tariff of the European Communi­ between certain breeds within this genus. ties' and the English text of the Brussels The Commission then examines the ques­ Nomenclature confirm this conclusion. tion whether game hens which are the Therefore the only question to be answered result of a cross with Cornish hens which in this case is whether: are certainly domestic fowl with hens of other breeds may be classified in the above­ (a) the game hens should be considered mentioned genus. It believes that a as 'poultry', precondition for the solution of this (b) belonging to one of the species listed problem is a closer examination of the under heading 01.05. particular zoological characteristics, quali­ ties and peculiarities of these fowls. The In this respect the Commission makes the fact that there is cross-breeding with other following observations : species of hen does not exclude such a classification a priori. The subject-matter (a) As regards the first point the expression of the dispute is essentially a question of 'poultry' refers to all species of poultry what characteristics predominate game which man has domesticated but especially hens and of determining their tariff those which are traditionally raised for classification. utilitarian purposes in agriculture and In this particular case the Commission which supply part of agricultural produc­ believes that the game hens are clearly tion. In particular species and birds which domestic hens. It bases its conclusion in do not result from natural evolution but particular on two letters, issued by the from selective breeding intended to com­ Consumer and Marketing Service and the bine or improve by crossing certain eco­ Agricultural Service of the Ministry of nomically useful characteristics of the Agriculture of the United States and dated various species or breeds, belong to this 21 March and 16 April 1964 respectively, type of bird. and on the expert opinion, all of which This condition of domestication is without are annexed to the file on the case. a doubt satisfied in the case of the game Moreover, in the opinion of the Commis­ hens. sion, the question whether the game hens in fact correspond to the conditions (b) As regards the second point, it follows stated above, their zoological classification from a comparison of the term 'Hühner' and the examination of their specific (fowls) with that of 'Hausgeflügel' (poultry) characteristics is not a question of interpre­ that, of all the existing species of fowls, tation of Community law, but solely a only those which are commonly regarded question of fact falling within the jurisdic­ as domestic fowls ('Haushühner') are here tion of the Finanzgericht dealing with the referred to. Generally this term covers case.

— since the definition refers to the live comparison between a tariff heading and bird, the particular characteristics, de­ a subheading coming under another termined by commercial considerations, heading. Only tariff headings are directly of the slaughtered birds do not constitute comparable and it is only where a good criteria for judging the issue (this product must be classified under one applies in particular to the usual price heading that one can go on to determine of the game hens when slaughtered, the its subheading. taste or the appearance of the meat and its suitability for cooking or roasting); On the basis of these arguments, the Commission reaches the following con­ clusions: — the zoological classification of the birds does not depend on whether or not 1. If 'live' 'Rock Cornish Game Hens' they are caught by hunting; come under heading 01.05 of the Common Customs Tariff, then they — moreover, because of the structure of must, when 'dead', be classified under the nomenclature of the customs tariff, heading 02.02. it is not possible to decide the classifica­ tion of the game hens by making a direct 2. 'Poultry' within the meaning of heading comparison between the terms 'poultry' 01.05 and of Article 1 of Regulation and 'game'. The latter term in fact No 22 covers the domestic forms of the appears in a subheading (paragraph b) species there listed. of heading 02.04, which also covers other sorts of meat whilst the first term covers 3. The birds produced by crossing these the whole of headings 01.05 and 02.02. hens with other species of fowl are However in cases of tariff classification, 'domestic fowl' if these characteristics it is not possible to make a direct of the latter predominate.

4 This heading lists a number of species: fowls, ducks, geese, turkeys and guinea fowls. The question submitted comes down to whether the category 'poultry' more specifically defined by the term 'fowls', can include a product of breeding which has originated from a cross between a phasianida of the species 'Gallus gallus' and a tetraonida.

5 The description 'live poultry' can only cover those species raised in agricultural or industrial concerns for use or slaughter, in particular for the production of food­ stuffs. Thus this description covers types of poultry which are not the result of evolution or natural selection but are the product of a process of breeding or artificial selection which is intended to combine or improve certain economically exploitable qualities of various species. Even poultry derived from the crossing of wild species must be regarded as 'poultry' if it is produced by means of artificial selection for the purposes of slaughter and offered for sale in a way which may be suited to a market for competing or substitute products.

6 Considerations depending on the qualities of taste, the selling price or the zoological characteristics of the birds do not in themselves play any decisive role in this classification.

7 The description 'poultry' in tariff headings 01.05 and 02.02 of the Common Cus­ toms Tariff which are incorporated in Article 1 of Regulation No 22 of the Council of 4 April 1962 applies to those species of poultry which are reared for use or slaughter, in particular for the production of foodstuffs.

Costs

8 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable.

The description 'poultry' under headings 01.05 and 02.02 of the Common Customs Tariff which are incorporated in Article 1 of Regulation No 22 of the Council of 4 April 1962 applies to those species of poultry which are reared for use or slaughter, in particular for the production of foodstuffs.

Lecourt Donner Trabucchi

Monaco Metens de Wilmars Pescatore Kutscher

Delivered in open court in Luxembourg on 8 December 1970.

A. Van Houtte R. Lecourt

Registrar President