C-38/72

JUDGMENT OF THE COURT 14 DECEMBER 1972 1

Arend van de Poll KG v Hauptzollamt Trier (Reference for a preliminary ruling by the Finanzgericht Rheinland-Pfalz)

'Common Customs Tariff: Heading 23.07'

Case 38/72

Summary

1. Common Customs Tariff — Tariff Classification — Heading 23.07 — Interpretation (Regulations Nos 19/62 and 55/62)

Hauptzollamt Trier (Head customs office, Trier)

— Language of the Case: German.

JUDGMENT OF 14. 12. 1972 — CASE 38/72

on the interpretation of Article 1(d) of and of the Annex to Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organiza­ tion of the market in cereals, of Article 12 of Regulation No 55 of the Council of 30 June 1962 on the system governing processed cereal products and of Regulation No 178/64 of the Commission of 12 November 1964 on the amount of and condi­ tions governing premiums on denaturing of wheat and rye,

THE COURT

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

VAN DE POL v HAUPTZOLLAMT TRIER

Furthermore, in respect of processed regulation provides that the amount of the products containing, besides cereals, sub intra-Community levy shall be equal to stantial quantities of milk, sugar or the difference between the free-at-frontier molasses, a supplementary amount is price of the product from the exporting provided equal to the levies, charges and Member State and the threshold price in duties levied on imports of those materials. the importing Member State, this difference Article 12(1) of Regulation No 55 states being reduced by a fixed amount.

According to Article 12(2) of Regulation (subheading 23.07 B, I (d)(1) of the No 55, if 100 kgs of processed product Customs Tariff, 1965). contain either more than 5 kgs of milk, in Attached to the above declarations were powdered or other form, or more than the suppliers' invoices indicating that the 15 kgs of molasses or sugar, an additional product was made up of about 87% amount shall be added to the amount of common wheat and 3% cod liver oil, to the variable component of the levy equal which were added, in seven cases, 10% to the amount of the levies, charges and barley, in one case, 5 % barley and 5 % oats duties of all kinds imposed on importation and, in another case, 7% barley and 3% into each Member State of the quantity of oats.

of the consignments and had them examined The products imported by Arend van de by the 'Zolltechnische Pr fungs-und Poll should therefore be classified in Lehranstalt' (Customs technical inspection accordance with the fact that their main and training establishment), Frankfurt am component is wheat. Main. For its part, Arend van de Poll claimed The 'Zolltechnische Prüfungs- und Lehr that a mixture of cereals to which cod liver anstalt' reached the conclusion that the oil or fish oil has been added can no samples examined contained 92 and 96% longer be considered a simple mixture of common wheat and 8 and 4% barley, cereal grains falling within Chapter 10 of respectively. the Customs Tariff. It also found 0.70 and 0.87 % respectively For such a mixture to be classified under of cod liver oil. the heading covering 'preparations of a It classified the product as a simple kind used in animal feeding' it is not mixture of cereal grains coming under necessary that the additive should be an tariff heading 10.01 of the customs tariff ingredient in the fodder and constitute not (wheat and meslin). less than 1 % of it by weight. On the oasis of that expert report, the By order of 3 May 1972 the third chamber customs office, by notification of 7 October of the Finanzgericht Rheinland-Pfalz 1965, corrected by notification of 1 decided to stay the proceedings until the December 1965, changed the tariff classifi Court of Justice has given a preliminary cation of the product and in calculating ruling on the following questions: the levy applied tariff heading 10.01 B of the customs tariff then in force.

Finanzgericht Rheinland-Pfalz. (2) If the answer is in the affirmative, is In the course of the hearing before that it necessary that the different cereals court the German customs authorities used in the composition of the product admitted that simple mixtures of cereals, should be in a certain (minimum) whether or not they contained cod liver oil, proportion; if so, what is that propor tion? could be considered as preparations used for animal feeding within the meaning of tariff heading 23.07. (3) If the answer to the first question is in It is however necessary that the proportions the negative: must the Annex to of materials in the mixture should corres

VAN DE POL v HAUPTZOLLAMT TRIER

(4) If this is so, can the addition of 0.87 Judge-Rapporteur at the hearing on or 0.76% of cod liver oil or fish oil be 7 November 1972. considered sufficient for this purpose? The Advocate-General delivered his opin­ ion at the hearing on 6 December 1972. (5) If the reply to question (3) is in the negative, can one also speak of an 'animal food preparation' or of a II — Observations submitted to the 'preparation of a kind used in animal Court feeding' when a denaturing agent has been added? Can cod liver oil or fish The written and oral observations sub­ oil be regarded as denaturing agents mitted by the Commission of the Com­ within the meaning of Regulation munities may be summarized as follows: No 178/64?

(8) If the replies to questions (6) and (7) (a) Its very terms indicate that a first are in the affirmative, does the existence condition for the classification of a product of slightly smaller proportions have an effect on the classification? If so, under tariff heading 23.07 is that it should within what limits? be a 'preparation'. It emerges from the case-law of the Court that 'preparation' means either the pro­ The order of the Finanzgericht Rheinland- cessing of a product or its mixture with Pfalz was filed at the Registry of the Court on 28 June 1972. other products. Mixtures of different In accordance with Article 20 of the varieties of cereals can therefore satisfy this condition. Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 18 September 1972 by (b) The second condition is that this the Commission of the European Com­ preparation should be intended solely for munities. animal feeding. Alter hearing the report of the Judge- An Explanatory Note to me Brussels Rapporteur and the views of the Advocate- Nomenclature excludes from heading 23.07 General, the Court decided to open the 'preparations which, when account is oral procedure without any preparatory taken, in particular, of the nature, purity inquiry. and proportions of the ingredients ... can The commission of the European Com­ be used indifferently for feeding animals munities, represented by its Legal Adviser, or as human food'. Whether or not a Dieter Oldekop, presented its oral obser­ preparation is covered by heading 23.07 vations and replied to questions put by the therefore depends on a positive and a

negative condition: the preparation should (d) As regards the negative condition for be suitable for the feeding of animals but classification of a product as an animal must not also be capable of human food preparation—unsuitability for human consumption. consumption—note C of the Explanatory Notes to the Brussels Nomenclature (c) The condition of suitability for animal indicates that to ascertain whether a feed is satisfied by a large number o: product is suitable both for the feeding of products which, by reason both of their animals and human consumption account consistency and their composition, are so must in particular be taken of its nature, diverse that it seems impossible to find the purity and proportions of the different a general definition for them on the basis ingredients, the hygiene requirements com of their ingredients. From the Explanatory plied with during manufacture and the Notes to the Brussels Nomenclature, to indications given on the packaging or any which reference must be made in the other information concerning its use. absence of provisions concerning inter pretation enacted on the subject by the (e) Since the dispute in the main action Community, it can be deduced that the concerns mixtures of cereals, it is important inclusion of a preparation under heading to note that the Explanatory Notes 23.07 presupposes not only that it is exclude from heading 23.07 in particular capable of use for the feeding of animals 'simple mixtures of cereal grains (Chapter but also that the product concerned, 10), of cereal flours .

In the limited to preparations ordinarily used in absence of one of those two conditions the feeding of animals. This is confirmed they may not be classified as animal food by the previous version of the Explanatory preparations. Notes, which stated in particular that This is the only interpretation which 'Finally, other feeding-stuffs may be permits of a clear and logical distinction obtained from other animal or vegetable between heading 23.07 and the products substances . . . the characteristic for inclu falling within Chapter 10 (cereals).

. . in possible only if by reason of the propor so far as they are of a kind used in the tions of the different components or feeding of animals'. Finally, it follows from because of additives, the mixture possesses, the Explanatory Notes as a whole, in by comparison with 'neutral' cereal mix particular from the distinction therein tures, a specific quality, namely typical between 'complete feed', 'supplementary suitability for animal feeding. feed' and preparations intended 'for use This interpretation is evident in Regulation in making complete or supplementary No 139 of the Council of 14 November feeds', that for a product to fall within 1962 relating to the levies applicable to heading 23.07 it must be ascertained cereal mixtures (JO p. 2729). It is consistent whether the preparation in question can with the desire to limit the application ordinarily be used for the feeding of cattle. of provisions relating to levies on processed

which are among the varieties of cereals In determining whether products fall under most frequently used as basic materials in tariff heading 23.07 it must also be ensured animal foodstuffs—constitutes a prepara­ that the rules governing the system of levies tion ordinarily used in animal feeding, even on cereals are not evaded, for example by if at the same time it contains common the separation of the component parts of a wheat and oats. If the mixture contains cereal mixture imported as an animal food no other material it is generally what is preparation or by subsequent processing called in the Explanatory Notes a 'premix' of the mixture into a food product. which, after importation, is processed in an animal feed factory by the addition of other forage materials into a complete feed Question 3 or a supplementary feed appropriate from the point of view of food hygiene. It follows from the observations submitted with regard to the first two questions that (g) Because of the many possible uses as if a mixture of cereals is not already, by animal feed and the methods of prepara­ virtue of the respective proportions of its tion, it is not possible to give a general various components, typically and ex­ reply to the question asking what minimum clusively suitable as forage for animals, as proportion of the various ingredients must required for its classification under heading be present in the mixture before it can 23.07, it can acquire such suitability only be said to be a preparation suitable for if other materials are added to it which feeding animals. A reply can only be given themselves constitute specific forage ma­ on an individual basis, having regard to terials or which render the mixture unfit the circumstances. In any case, such a reply for human consumption. could not be given under the Article 177 procedure. That is a question of the application of Community law which is a Question 4 matter for the national courts. Speaking generally, it can only be said that The addition of cod liver oil or fish oil barley and maize are typical forage cereals, can have two functions: to denature cereals but that at a similar level of quality or to increase the nutritive value of the common wheat is typically of bread- mixture. making quality. A high proportion of As regards denaturing, it should be noted common wheat in a mixture of cereals that according to the French provisions might therefore give rise to the assumption in force at the time when the disputed that it is not a preparation which is imports were made, the denaturing pre-

A preparation which is typically suitable Questions 7 and 8 as forage cannot be covered by heading 23.07 if at the same time it is fit for human The observations submitted in connexion consumption. It becomes an animal food with questions 5 and 6 make these questions preparation within the meaning of tariff irrelevant.

Grounds of judgment

1 By order of 3 May 1972, registered at the Court of 28 June 1972, the Finanzgericht Rheinland-Pfalz (Finance Court of the Rhineland-Palatinate) referred, in pursuance of Article 177 of the EEC Treaty, a number of questions on the interpretation of heading 23.07 of the Common Customs Tariff — in the version in force at the time when the event occurred — referred to in Article 1 (d) of and the Annex to Regulation No 19 of the Council of 4 April 1962 on the progressive establishment of a common organization of the market in cereals (JO 1962, p. 933) and Article 12 of Regulation No 55 of the Council of 30 June 1962 on the system governing processed cereal products (JO 1962, p. 1583).

VAN DE POL v HAUPTZOLLAMT TRIER

It is clear from the order making the reference that these questions were put in the context of a dispute concerning the classification, with a view to the application of intra-Community levies, of a product composed mainly of common wheat, mixed with barley and oats and containing a small additional amount of cod liver oil.

2 According to the plaintiff in the main action this product falls under heading 23.07 ('preparations of a kind used in animal feeding'), whereas the customs administra­ tion, the defendant in the main action, claims that it should be classified under heading 10.01 of the Customs Tariff ('wheat and meslin').

5 This explanation is supported by the Explanatory Notes to the Brussels Nomen­ clature relating to heading 23.07, in which it is stated that 'This heading excludes: ... (b) Simple mixtures of cereal grains ... (c) Preparations which, when account is taken, in particular, of the nature, purity and proportions of the components, the hygiene requirements complied with during manufacture and, where appro­ priate, the indications given on the packaging or any other information concerning their use, can be used indifferently for feeding animals or as human food'.

JUDGMENT OF 14. 12. 1972 — CASE 38/72

These Notes permit two distinct criteria to be deduced: first, from the particular use to which the product is to be put as forage and, secondly, from the impossibility of using the same product for human consumption.

6 In particular, it appears from the above that the addition of a denaturing agent to a mixture of cereals does not bring the product within the classification of heading 23.07 if, on the other hand, the product is not capable of being used specifically as forage for cattle.

7 Practical considerations arising in individual cases from the application of criteria laid down by the Customs Tariff are a matter for the national courts.

That is true, in fact, of all matters concerning the composition of cereal mixtures and the proportions of different cereals used, the nature and proportion of other additional nutrients and the nature of and method of applying the products used to render foods unfit for human consumption.

Regulation No 55 of the Council of 30 June 1962 on the system governing processed cereal products; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially 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 Finanzgericht Rheinland-Pfalz by order of 3 May 1972, hereby rules:

Heading 23.07 of the Common Customs Tariff, to which reference is made in Article 1(d) of and the Annex to Regulation No 19 of 4 April 1962 and in Article 12 of Regulation No 55 of 30 June 1962 must be interpreted as meaning that it is concerned exclusively with cereal-based animal food preparations which are specifically intended for use as forage, provided that they are not, at the same time, fit for human consumption.

Lecourt Monaco Pescatore

Donner Trabucchi Mertens de Wilmars Kutscher