C-30/71

— on the interpretation of Regulation No 950/68 of the Council of 28 June 1968 (OJ L 172, p. 1);

— on the applicability and, if appropriate, interpretation of Regulation No 241/70 of the Commission of 9 February 1970 (OJ L 32, p. 6);

— if appropriate, on the interpretation of Regulation No 160/66 of the Council of 27 October 1966 (OJ 195, p. 3361),

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and H.Kutscher, Presidents of Chambers, A. M. Dormer (Rapporteur), A. Trabucchi, R. Monaco and P. Pescatore, Judges.

Advocate-General: K. Roemer

informal notice of duty imposed im conditions being fulfilled for this classifi port duty in accordance with the clas cation which refers to products which sification of the goods. are not intended for use as sauce or As regards the import or y jury, tne condiment or mixed seasoning. plaintiff stated that the product was Finally the plain tiff maintained that in made of wine vinegar, whole egg, salt view of the fact that the national ad and butter oil. ministrations were no longer entitled to After import the plain tiff sold these issue 'verbindliche Zolltarifauskünfte goods to a company 'Agricola AG', (binding customs tariff notices) the Hamburg, which processed them into plaintiff could rely on good faith.

mayonnaise. Mayonnaise is mentioned in Contrary to the plain tin s argument, the the explanatory notes to the German sole purpose of Regulation No 241/70 Customs Tariff, Note I (1) to heading is solely to ensure uniform application 21.04. Since the explanatory notes make of the Common Customs Tariff in the no distinction, it is irrelevant whether Member States of the EEC. the base of the mayonnaise is milk fat As regards the plaintiff s statement that or vegetable fat. the German revenue authorities are no

intended to amend the state of law. This after the latter had entered into force. is shown by the fact that the regulation In view of the foregoing the German fixes the date on which it enters into court by order dated 27 May 1971, force and by the fact that the heading registered at the Court of Justice on 15 refers to 'classification of goods'. Even June 1971, referred the following ques if the regulation was only of an interpre tions to the Court for a preliminary tative nature, the product in question ruling: could not be classified under heading I (a) Does it make any difference for 21.07 in the absence of the requisite the classification of a product de-

(b) Is trade usage ('Verkehrsauffass- II (a) Since the entry into force of ung') relevant for the classification Regulation No 950/68 are the Oberfinanzdirektionen still em­ of a product under heading 21.04 or 21.07? If so, is the trade usage powered to issue binding customs in all the Member States decisive tariff notices ('verbindliche Zoll- or can a trade usage prevailing tarifauskünfte') under Article 23 of the German Zollgesetz? solely in one Member State be taken into account if it diverges (b) If (a) is answered in the negative: was this also the case before the from the trade usage in other Member States? entry into force of Regulation No (c) Was Regulation No 241/70, by 950/68 with regard to products that were subject to EEC com­ virtue of its content, already ap­ plicable in 27 May and 9 July mercial rules, in this case Regu­ lation No 160/66 of the Council? 1968, or not until 13 February 1970? The plaintiff, the Government of the Federal Republic of Germany and the (d) In the event of an affirmative Commission of the European Commun­ answer to question (c): ities submitted written observations in (1) Must the word 'clearly' in accordance with Article 20 of the Pro­ Regulation No 241/70 be un­ tocol on the Statute of the Court of derstood as meaning that on Justice of the EEC. the basis of the properties of Upon hearing the report of the Judge- the product at the relevant Rapporteur and the views of the Ad­ date it must be automatically vocate-General, the Court decided to discernible that the product is open the oral procedure without hold- not intended for consumption ins a preparatory inquiry. in the unaltered state as a Kurt Siemers & Co., represented by sauce, mixed condiment or Peter Wendt, the Government of the mixed seasoning? Federal Republic of Germany, represen­ (2) By whom (the Customs Office ted by Horst Laubereau and Harry or the appropriate trade Schäpe and the Commission of the circles) must this be discern­ European Communities, represented by ible? In this connexion may Peter Kalbe, presented oral argument at reference be made to the trade the hearing on 5 October 1971. usage in the importing coun­ The Aavocate-General delivered his

Question I (a) of more than 50% and one with a fat content of less than 50%. Mayonnaise The plaintiff maintains that it follows with a fat content of less than 50% from the explanatory notes to the Brus may contain butter or butter oil with sels Nomenclature of 1955 (explanatory out losing the quality of mayonnaise, if notes to heading 21.04, in particular the melting point is lowered by the paragraphs (1) and (4) that milkfats may stabilizing agents. be used in the preparation of sauces, I he Government of the Federal mixed condiments and mixed seasonings. Republic of Germany concludes from In the absence of relevant Community this that goods specified as diet- provisions, the explanatory notes con mayonnaise with a milkfat content of stitute an important guide to the inter more than 50% cannot be classified pretation of the Common Customs under heading 21.04 of the Common

ing. constitutes the normal ingredient in the The Commission of the European Com manufacture of the said products. munities observes that it appears from In the third place, Regulation No 241/ the Explanatory Notes to the Brussels 70 itself clearly shows that sauces, mixed Nomenclature of 1955 that the use of condiments and mixed seasonings may milkfat as a basic ingredient in sauces, contain milkfats. mixed condiments and mixed season The Government of the Federal Re ings cannot as such affect the classifica public of Germany states that milkfats tion of the products in question. are not suitable as a basis for mayon

Since this quality depends States for the classification of the pro on the unsaturated fatty acid content, ducts in question. To take into account the use of butter oil, which has a higher the trade usage in a single Member saturated fatty acid content than veget State in classifying the goods is, how able oil, does not come into question as ever, incompatible with the uniform a basis for such mayonnaise. application of the Common Customs It is true that a process for the manu Tariff.

JUDGMENT OF 24. 11. 1971 — CASE 30/71

By virtue of their sible to take account of trade usage content, provisions of the nature of those which exists in only one Member of Regulation No 241/70 are only State. • explanatory, having as their objective The Government of the Federal Re clarification of the scope of the tariff public of Germany observes that neither headings to which they refer. The im the 'règles générales pour l'interpréta- plied recommendation of the Court of tion de la nomenclature tarifaire' nor Justice contained in its judgment of 18 those on the interpretation of the June 1970, Hauptzollamt Bremen- Nomenclature of the Common Customs Freihafen v Bremer Handelsgesellschaft Tariff contain provisions referring to (manioc flour) Case 74/69, [1970] trade usage. Since there could be a ECR, to take formal measures to ensure trade usage only in respect of the parti the uniform application of the Common cular product, the question should be Customs Tariff inspired the Com answered only in respect of mayonnaise. mission to act in such a way.

absence of a provision making it retro and in particular Article 3 thereof which active the said regulation did not apply authorizes the Commission to adopt the on 27 May and 9 July 1968. The ques provisions required for the application tion from the Finanzgericht on the of the Nomenclature of the Common applicability of Regulation No 241/70 Customs Tariff as regards classification 'by virtue of its content' has its origin of goods. The scope of this power is in the unfounded argument of the determined by its objective, in parti Hauptzollamt that the regulation has cular to define the Common Customs only a declaratory effect. However, it Tariff. From this it likewise appears that appears from fundamental provisions Regulation No 241/70 is of a declara such as those of Regulation No 97/69 tory nature. Finally an argument in

SIEMERS v HAUPTZOLLAMT BAD REICHENHALL

However it ob product was intended at the date rele vant for tariff classification. serves that the question whether it is clear that the goods are intended for The Commission observes that it has consumption in the unaltered state as no objection to account being taken of sauces, mixed condiments or mixed commercial documents or circumstances seasonings, cannot be decided except surrounding the manner in which the on the basis of the physical properties product is subsequently treated in order of the goods alone. These properties to infer whether it is 'clearly' intended form the sole objective criterion to for consumption in the unaltered state. assess the nature of their intended con The Government of the Federal Re

This means that The Government of the Federal Re legislative measures and measures by public of Germany observes that the the executive amending or supplement classification of the products in question ing the Common Customs Tariff are must depend on physical properties and not open to Member States. In view of the fact that the verbindliche Zolltari- the external characteristics which they possess at the time when the classifica fauskünfte are measures executing the tion is being considered. Common Customs Tariff binding on the customs authority it is clear that they are Question I (d) (2) incompatible with Community law.

JUDGMENT OF 24. 11. 1971 — CASE 30/71

unlawful even if the case-law of the not likely. It follows from these con­ Court relates only to legislative siderations that the Oberfinanzdirek- measures. tionen are entitled in the absence of The Commission observes that the ob­ Community rules to issue verbindliche jective of the verbindliche Zolltarifaus- Zolltarifauskünfte in so far as they relate künfte is the protection of legitimate to the interpretation of the Common confidence of parties in the interpreta­ Customs Tariff in a particular case. tion of the Common Customs Tariff by The Government of the Federal Re­ the authorities of a Member State. In public of Germany maintains that it is so far as they are concerned with the clear that the verbindliche Zolltarifaus­ interpretation of individual cases they künfte are permissible because they are compatible with Community law. In have the same effect as classification of such a case the possible wrong inter­ the products within the framework of pretation of the customs tariff by a the normal customs procedure. They verbindliche Zolltarifauskünfte has the must be regarded as administrative acts same consequences as an incorrect which bind only the customs offices. classification in the ordinary way by the Parties concerned have a right of appeal customs authorities. A small number of to the Bundesfinanzhof against the wrong classifications is inevitable and verbindliche Zolltarifauskünfte. does not prejudice the correct function­ ing of the Common Customs Tariff. Question II (b) However if the verbindliche Zolltari­ I he plaintiff, Commission and the fauskunfte assumed the character of Government of the Federal Republic of authoritative interpretations and auto­ Germany observe that their opinion on matically applied to numerous and the previous question likewise applies to roughly identical cases, the correct the power of the Oberfinanzdirektionen functioning of the Common Customs to issue verbindliche Zolltarifauskünfte Tariff would foe jeopardized in the event before the entry into force of Regulation of a wrong interpretation. This would No 950/68 with regard to products be all the more so since review by a coming under Regulation No 160/66 court of law of the interpretation given is of the Council.

3 It appears from the documents in the case that the dispute is whether the product in question should be classified under heading 21.04 (sauces; mixed condiments and mixed seasonings) or heading 21.07 (food preparations not elsewhere specified or included) of the Common Customs Tariff. The im­ ports were made on 30 May and 9 July 1968, the first, therefore, before 1 July 1968, the date of the entry into force of the Common Customs Tariff. Nevertheless, at the date of this import the products of heading 21.07 of the Brussels Nomenclature were subject to the provisions of Regulations No 160/66/EEC of the Council of 27 October 1966 establishing a marketing system for certain goods derived from the processing of agricultural products. Thus the question put may in this respect be interpreted as relating to the distinction between heading 21.07, incorporated in this regulation, and heading 21.04.

4 In order to ensure the uniform interpretation and application of the Brussels Nomenclature of 1950, which the Common Customs Tariff has adopted, Articles III and IV of the Brussels Convention provide that a Nomenclature Committee shall prepare explanatory notes and classification notices under the supervision of the Customs Cooperation Council.

8 Regulation No 241 /70 cannot be applied for the purpose of determining the classification of products imported before its entry into force. This regulation, which makes detailed provision for the conditions for classification under heading 21.07, is of a legislative nature and cannot have retroactive effect.

9 It must therefore be answered that the classification of a product under head­ ing 21.04 of the Common Customs Tariff is precluded if the use of butter, butter fat or fractionated butter oil in the manufacture of the product impairs its direct suitability for improving the flavour of certain foods. It is for the competent national court to decide whether this is the case.

The second question

10 The Court is asked to decide whether the entry into force of the Common Customs Tariff can impair the legal effects of verbindliche Zolltarifauskünfte (binding customs tariff notices) issued under Article 23 of the German Zoll- gesetz.

11 This provision stipulates that the Oberfmanzdirektionen, on application, shall issue binding customs tariff notices regarding the tariff heading of the customs tariff to which a product belongs. On the one hand, it is provided that in the event of the amendment or annulment of the notice, for three months there­ after the applicant may still demand tariff classification in accordance with the notice, in so far as the notice is not based on incorrect information supplied by the applicant. On the other hand, it is provided that the notice shall cease to have binding effect if the legal provisions applied in it are amended.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Com­ munity, in particular Article 177; Having regard to Regulations Nos 160/66 of the Council of 27 October 1966 and 950/68 of the Council of 28 June 1968 and Regulation No 242/70 of the Commission of 9 February 1970; Having regard to the Protocol on the Statute of the Court of Justice of the European Community, in particular Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the questions referred to it by the order dated 27 May 1971 of the Finanzgericht München, hereby rules:

1. The classification of a product under heading 21.04 of the Common Customs Tariff is precluded if the use of butter, butter fat or

OPINION OF MR ROEMER — CASE 30/71

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 27 OCTOBER 1971 1

Mr President, heading 21.04 ('sauces, mixed condi­ Members of the Court, ments and mixed seasonings') and im­ posed, in addition to turnover tax, mere­ In the case referred for a preliminary ly the relevant customs duty. The goods ruling with which I am dealing today were later sold to a firm in Hamburg, there are once again tariff classifications which apparently processed them into problems, that is, questions which relate butter oil and allegedly exported them, to the interpretation and application of against refunds, to third countries. the Common Customs Tariff. First I On the basis of a memorandum from must relate the following facts. the Customs Division of the Businesses On 30 May and 9 July 1968, Kurt Inspectorate of 5 September 1969 re­ Siemers & Co., Hamburg, the plaintiff garding the examination of the plaintiff's in the main action, imported from imports, from which it emerged that the Switzerland into the Federal Republic product was not regarded in the trade of Germany certain quantities of a as mayonnaise, that is as condiments and product which the firm described as seasonings or sauces, and consequently 'diet-mayonnaise' and which consisted, could be classified only under heading at least according to the firm's declara­ 21.07 as food preparations not else­ tion in respect of the second import—­ where specified or included', the appro­ of 'wine-vinegar, whole egg (probably priate customs office issued an amended deep frozen), salt and butter oil'. In tax assessment on 22 October 1969 and, accordance with the firm's application, since products under tariff heading the competent customs offices, without 21.07, in so far as they contain milk an examination, that is without .taking products, are covered by the marketing samples, classified the product under system of Regulation No 160/66 of 27