C-149/73

JUDGMENT OF THE COURT OF 12 DECEMBER 1973 1

Otto Witt KG

v Hauptzollamt Hamburg-Ericus (preliminary ruling requested by the Finanzgericht Hamburg)

'Reindeer meat'

Case 149/73

Summary

JUDGMENT OF 12. 12. 1973 — CASE 149/73

OTTO WITT KG, Stelle,

and

HAUPTZOLLAMT HAMBURG-ERICUS,

on the interpretation of the expression 'game' as it appears in tariff heading 02.04-B of the Common Customs Tariff,

THE COURT

III. other'

In the Explanatory Notes to the CCT, I — Facts and procedure the Commission makes the following statement with regard to subheading 1. The Common Customs Tariff 02.04-B: (CCT), in the version which was in force in 1970, contained the following 'It should be noted that reindeer are held headings: to be 'domestic animals'. Reindeer meat and offals do not therefore come under '02.04: Other meat and edible meat this subheading and are classified under offals, fresh, chilled or frozen: subheading 02.04-C-III.' A 2. Between February and October 1970 B. of game Firma Witt imported frozen caribou

WITT v HAUPTZOLLAMT HAMBURG-ERICUS

This definition is Hamburg Finanzgericht. founded on the concept of suitability for hunting ("Jagdbarkeit"). The Explanatory 3. That Court decided to suspend the Notes to the customs tariff of the proceedings and to refer the following European Communities also speak of questions to the Court of Justice, animals which are suitable for hunting pursuant to Article 177 of the EEC (Note 3). What constitutes game fit for Treaty, for a preliminary ruling: hunting is a matter for individual States '(a) What are the decisive criteria to be to define in their game laws.

hunting?' game laws, if any, which apply in the 4. In the grounds of the order making country of origin. the reference the Finanzgericht stated in However, it is also possible, without particular: referring to game laws, to construe 'According to the statements of the "game" as meaning in general all animals parties and in particular to the public living independently of man which are health certificates issued by the Danish captured by hunting and whose meat is Ministry for Greenland, the meat comes suitable for human consumption.

JUDGMENT OF 12. 12. 1973 — CASE 149/73

If caribou preparatory enquiry. are 'reindeer' within the meaning of the Explanatory Notes, their meat is covered by subheading 02.04-C-III. The II — Written observations expression 'reindeer' has several possible submitted to the Court meanings, since, on the one hand, it designates all the subdivisions of that The Commission states that subheading animal species (genus Rangifer) and on 02.04-C-III, which was in fact intended the other hand, it is sometimes used to play a 'catch-all' role, is only relevant merely to distinguish the European to this case if caribou meat is not to be forms (Rangifer tarandus) as a considered as meat 'of game' pursuant to subspecies of the caribou of North subheading 02.04-B. The meaning which America (Rangifer arcticus or caribou). the Community legislature wished to The question which of these two give the word 'game' is the subject of an meanings is intended by the Explanatory explanation in the Explanatory Notes to Notes is best approached, in the the CCT. Although these Explanatory Commission's view, on the basis of the Notes do not amount to binding rules, fact that the choice of the term 'reindeer' they nevertheless represent, as a has less to do with subtleties of commentary giving the authentic zoological terminology than with the meaning attributed by the Community desire on the part of the customs legislature to a given expression, a basis authorities to form a basis for the and method for the interpretation of the practical application of the tariff.

Notes. The Note with regard to sub caribou. The Commission contends that heading 02.04-B is as follows: 'This a consideration of the possibilities of subheading includes meat and edible using the results thereby obtained for the meat offals of furred or feathered practical application of the CCT game listed at No 01.06' (Note 3). considerably weakens the persuasive The Commission is however of the force of this point of view. European opinion that an exhaustive definition of reindeer and caribou are so similar that the expression 'game' may be dispensed frozen caribou meat cannot be with, and refers to the fact that, in the distinguished from European reindeer Explanatory Notes, the scope of the meat when it is presented for customs expression 'game' is strictly limited and clearance. The substantially higher

Finally, the Commission submits that, of customs, and have no binding effect bearing in mind the general meaning of with regard to third parties or the zoological term 'reindeer' and also institutions. Moreover, to apply these the practical possiblity of making the guidelines for national use, in their form distinction, the expression 'reindeer' in as interpreted by the defendant, would the Explanatory Notes is to be be to infringe the Common Customs understood in its widest sense, including Tariff and fundamental general all species both of reindeer and of provisions of interpretation. The caribou. defendant's arguments display a failure to appreciate the fact that the concept Firma Witt states that the solution of 'game' within the meaning of tariff this matter is of great importance to it, heading 02.04-B must not be interpreted since the German authorities have strictly or arbitrarily by means of forbidden the company to import administrative guidelines for purely caribou meat. The main reason given for national use. In this connexion the this prohibition is that caribou are company adds that in the Explanatory reindeer and cannot therefore be Notes it is not intended that considered as game; according to the domesticated reindeer alone be termed Law for the control of meat, game alone domestic animals. It may well be is not subject to the specific provisions supposed that the compilers of the of this Law as regards imports. Explanatory Notes did not regard the As regards the present case, the company reindeer as the only domestic animal. claims that neither the basic hypothesis In the company's opinion, the decisive nor the grounds put forward in support question in this case is that of knowing of the argument proposed by the the correct interpretation of the German Customs Authorities can expression 'game' within the meaning of withstand close examination. tariff heading 02.04-B; account must The company is of the opinion that the firstly be taken of what constitutes the characteristic of life in the wild state. first supposition made by the Hauptzollamt is in itself inexact. Taking This has the same meaning in common a scientifically zoological point of view, parlance, signifiying the opposing it cannot be said that caribou are concept to that conveyed by the words identical to domestic reindeer. On the 'domestic animal'. All animals which

the control of meat, which makes the with the clear wording of tariff heading distinction between 'furred game, living 02.04-B since, in principle, all subspecies in herds or otherwise under the of the species 'Rangifer tarandus' must supervision of man' and 'furred game be considered as game if account is which is killed in the wild state'. In the taken of the abovementioned character company's opinion, caribou living in the istics. The only exception is the domestic wild state and hunted are clearly reindeer of northern Europe. According­ described in that Law as game. Only ly, the expression 'reindeer' in the domesticated reindeer of the subspecies Explanatory Notes can refer only to the 'Rangifer tarandus tarandus', whose subspecies 'Rangifer tarandus tarandus' meat is obtained by slaughter, should be of the northern European reindeer, classified under tariff heading 02.04-C- which has become a domestic animal. III, whilst all other reindeer, and in particular caribou, should be considered B — Firma Witt and the Commission as game within the meaning of tariff submitted oral observations at the heading 02.04-B. hearing on 14 November 1973. The company further calls attention to During the course of the oral procedure the fact that, according to Nos 3 and 6 counsel for Firma Witt claimed, in of the general rules for the interpretation opposition to the arguments of the of the nomenclature of the Common Commission, that a sufficiently certain Customs Tariff, the most specific basis for forming a distinction between heading is to be used in preference to caribou meat and domestic reindeer headings having a wider scope. There meat could be obtained by the use of can be no doubt that 'meat of game' is a certificates as to the origin of the meat. more specific designation than 'other Certificates of origin are commonly used meats'. for the control of imports of goods in Finally, the company draws attention to many other fields. the following argument: The Commission replied that to require If the expression 'reindeer' which such certificates always involves a risk of appears in the Explanatory Notes must fraud, which should be avoided. be interpreted as covering all reindeer of the species 'Rangifer tarandus' without C — The Advocate-General presented distinction, as the defendant maintains, his opinion at the hearing on 28 this interpretation is not in accordance November 1973.

2 The arguments put forward by the Commission to justify the classification of all reindeer meat under the same subheading in this way, leaving no possibility for a different treatment of the meat of wild reindeer as compared with that of domestic reindeer, consist in the absence as between the two products of objective characteristics and properties which would allow one to be distinguished from the other when submitted for customs clearance.

However, this similarity between the products is not such as to exclude treatment differentiated on the basis of other objective factors, of which evidence can be given when the products are submitted for customs clearance, for example by means of certificates of origin.

3 The Explanatory Notes to the Common Customs Tariff, although an important factor as regards interpretation in all cases where the provisions of the tariff provoke uncertainty, cannot amend those provisions, the meaning and scope of which are sufficiently clear.

The expression 'game' in its ordinary meaning designates those categories of animal living in the wild state which are hunted.

Although the customs authorities can legitimately require conclusive evidence that the animals whose meat is declared by the importer as being covered by subheading 02.04-B are game animals, the Explanatory Notes cannot, in contradiction to the text of the Common Customs Tariff, eliminate all differences of classification as between the meat of wild and domestic animals of the same species.

JUDGMENT OF 12. 12. 1973 — CASE 149/73

in answer to the questions referred to it by the Hamburg Finanzgericht by order of that court dated 18 June 1973, hereby rules:

WITT v HAUPTZOLLAMT HAMBURG-ERICUS

The expression 'game' as it appears at subheading 02.04-B of the Common Customs Tariff 1970 is to be interpreted as applying to animals living in the wild state which are hunted.

Lecourt Sørensen Monaco

Mertens de Wilmars Pescatore Kutscher Ó Dálaigh

Delivered in open court in Luxembourg on 12 December 1973.

1 — Translated from the Italian.