C-160/78
ECLI:EU:C:1979:170
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JUDGMENT OF THE COURT (SECOND CHAMBER) OF 28 JUNE 1979 <apnote>1</apnote>
Intercontinentale Fleischhandelsgesellschaft mbH & Co. KG v Hauptzollamt München-West (Preliminary ruling requested by the Finanzgericht München)
"Common Customs Tariff
Case 160/78
Common Customs Tariff — Tariff headings — Meat within the meaning of subheadings 16.02 B III (a) 1, 2 and 3 — Concept
It follows from the definitions contained 16.02 B III (a) 1, 2 and 3 relates only to in heading 1602 of the Common offal so that the percentage of meat to be Customs Tariff, in the version brought taken into account for classification into force by Regulation No 3000/75 of under the said subheading is solely that the Council — in particular in sub of meat of "domestic swine" cannot be headings 16.02 BI (a) and (b), upheld. 16.02 B III (a) and 16.02 B III (b) 1. — that whenever the authors of the The term "meat" in subheadings Common Customs Tariff intended to 16.02 B III (a) 1, 2 and 3 of the Common refer to meat of a particular kind they Customs Tariff in the version brought did so expressly. into force by Regulation No 3000/75 Consequently the argument that the term relates therefore to meat of all kinds, "of any kind" used in tariff subheadings including in particular beef and veal.
In Case 160/78
REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht München [Finance Court, Munich] (IIIrd Senate) for a pre liminary ruling in the action pending before that court between
INTERCONTINENTALE FLEISCHHANDELSGESELLSCHAFT MBH & CO. KG, Großgerau,
1 — Language of the Case: German.
JUDGMENT OF 28. 6. 1979 — CASE 160/78
and
HAUPTZOLLAMT MÜNCHEN-WEST [Principal Customs Office, Munich-West]
on the interpretation of subheading 16.02 B III (a) in the version of the Common Customs Tariff resulting from Regulation No 3000/75 of the Council of 17 November 1975 (Official Journal L 304, p. 1),
THE COURT (Second Chamber)
composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges,
Advocate General: F. Capotorti Registrar: A. Van Houtte
gives the present
JUDGMENT
Facts and Issues
The facts of the case, the procedure and In the version of the Common Customs the observations submitted under Article Tariff in force at the time of the facts 20 of the Protocol on the Statute of the giving rise to the dispute in the main Court of Justice of the European action (May 1976) (cf. Regulation No Economic Community may be 3000/75 of the Council of 17 November summarized as follows: 1975, Official Journal L 304, p. 1) that heading contained the following sub headings:
"A. Liver: I — Facts and procedure
1. Tariff heading 16.02 of the Common B. Other: Customs Tariff includes "other prepared or preserved meat or meat offal" that is, products other than those mentioned in I. Poultrymeat or offal: Chapter 2 and the preceding tariff heading 16.01.
INTERCONTINENTALE FLEISCHHANDELSGESELLSCHAFT v HAUFTZOLLAMT MÜNCHEN-WEST
II. Game or rabbit-meat or offal (Regulation No 2759/75 of the Council, Article 1 (1) (c)).
III. Other: 2. The plaintiff in the main action, (a) Containing meat or offal of Intercontinentale Fleischhandelsgesell domestic swine and schaft mbH & Co. KG, caused to be containing by weight: cleared for free sale on 4 and 5 May 1976 at the Hauptzollamt München- 1. 80% or more of meat or West a total of 82 324.5 kilograms of offal, of any kind, minced meat imported from Romania including fats of any and composed according to the said kind or origin: declaration and the invoice of pigmeat (10%) and beef and veal (90%), in (aa) Hams, fillets and frozen blocks and seasoned. On the basis loins; pieces thereof of the result of the inspection for the purposes of tariff classification the goods (bb) Shoulders and were assigned to tariff subheading pieces thereof 16.02 B III (a) 1 (cc) of the 1976 Common Customs Tariff, the rate of (cc) Other levy being DM 133.45 per 100 kilograms and the rate of the monetary 2. 40% or more but less compensatory amount being DM 41.24 than 80% of meat or per 100 kilograms. offal, of any kind, including fats of any kind or origin. The plaintiff in the main action challenged that classification decision 3. Less than 40% of meat arguing that the term "meat" contained or offal, of any kind, in the definition of subheading including fats of any 16.02 B III (a) referred solely to pigmeat kind or origin. and that consequently mixtures containing by weight less than 40% of (b) Other: pigmeat (as in this instance) should be classified under subheading 16.02 B III 1. Containing bovine meat (a) 3. or offal.
2. Other: The objection filed by the plaintiff with " the Hauptzollamt was unsuccessful and the plaintiff therefore brought an action before the Finanzgericht Munchen. Of the above products those falling in subheading 16.02 B III (b) are subject to the common organization of the market in beef and veal (Regulation No 805/68 3. By order of 11 July 1978 the Finanz of the Council, Article 1 (c)) whilst all gericht München (IIIrd Senate) referred the products falling in subheading the following question to the Court of 16.02 B HI (a) are subject to the common Justice for a preliminary ruling pursuant organization of the market in pigmeat to Article 177 of the EEC Treaty:
JUDGMENT OF 28. 6. 1979 — CASE 160/78
"Is the term 'meat' in tariff subheadings in question refers to the constituents of 16.02 B III (a) 1, 2 and 3 of the 1976 products other than those of domestic Common Customs Tariff to be swine. interpreted as meaning only pigmeat or also as meaning meat other than pigmeat (for example beef and veal)?" 2. Interpretation in the light of the Expla natory Notes to the Common Customs The order referring the matter to the Tariff Court was lodged at the Court Registry on 27 July. 1978, According to the notes relating to sub heading 16.02 B III, the calculation of In pursuance of Article 20 of the the percentages referred to under sub Protocol on the Statute of the Court of headings (a) 1 to 3 take account only of Justice of the EEC written observations what is meat, offal or fat. If the concept were submitted by the plaintiff in the of meat or offal contained in sub main action, represented by G. Breit and headings 1 to 3 were not confined to R. Grosse of the Frankfurt Bar, and by pigmeat there would logically be no the Commission of the European products which could be classified in Communities, represented by its Legal subheadings 2 (40 to 80%) and 3 (less Adviser P. Kalbe, acting as Agent. than 40%).
The Court, on hearing the report of the Judge-Rapporteur and the views of the 3. Interpretation having regard to the Advocate General, decided to open the position and purpose of the tariff sub oral procedure without any preparatory heading within the structure of the inquiry. Common Customs Tariff
By order of 14 February 1979 the Court, In support of its arguments on this point in application of Article 95(1) of its the plaintiff refers to the expert opinion Rules of Procedure, decided to assign lodged by it, prepared by Erich Dittmar, the case to the Second Chamber. former Finanzprasident and director of the Oberfinanzdirektion [Principal Finance Office], Bremen. II — Written observations The starting-point for the central argument of that report is the basic regu In its written observations the plaintiff in lation for pigmeat, No 2759/75, from the main action maintains the arguments which the legal origins of tariff sub which it put forward before the national heading 16.02 B III (a) derive (cf. Article court and which it now develops as set 17 (1)) and which, for pigmeat, laid out below: down commercial rules linked to the imposition of levies on imports from non- 1. Wording of the tariff subheading member countries. Thus in Article 10 (2) it is provided that the amount of each The term "meat or offal, of any kind, levy must reflect factors based solely on " (tariff subheading 16.02 B III (a) 1) the price of pigs. If the breakdown of should be interpreted in conjunction with tariff subheading 16.02 B III (a) is the more general concept in subheading intended to enable the rates of levy to be (a) preceding it according to which the calculated more precisely it should none subheading in question must relate to the less be in conformity with Article "meat or offal of domestic swine". It is 10 (2) of the regulation, that is to say it only for fats ("of any kind or origin") should retain the connexion solely with that the wording of the tariff subheading the prices of domestic swine. In reliance on
INTERCONTINENTALE FLEISCHHANDELSGESELLSCHAFT v HAUPTZOLLAMT MÜNCHEN-WEST
that argument Mr Dittmar defends the taking account of the aims they serve plaintiff's verbal interpretation of the relating to equalization of prices, on the provision, summarized under heading 1. basis of the pigmeat content alone but it was necessary to fix them taking into 4. The historical development of the tariff consideration the total meat content in classification also leads to the conclusion order to obtain a valid result from both that "meat" within the meaning of tariff the economic point of view and that of subheadings 16.02 B III (a) 1 to 3 of the the policy of the organization of the 1976 Common Customs Tariff should be markets. understood to mean solely pigmeat. Both the explanatory notes relating to According to the Commission it is clear the subheading in question and the from the wording of the heading that record of the development of that sub while subheadings 1 to 3 establish a heading confirm the Commission's view. distinction based on the quantity of The Commission therefore concludes "meat or offal, of any kind," in the "that in the wording of the description prepared product in question it relates in of goods falling within tariff subheadings fact to percentages by weight of all kinds 16.02 B III (a) 1 to 3 the percentage of of meat or offal. That interpretation 'meat ... of any kind' to be taken into enables the mixtures in question to be consideration includes not only the classified as such under tariff subheading pigmeat content but rather the total meat 16.02 B III (a) 1 (cc). content of the prepared product in This literal interpretation is necessary for question". the nomenclature of subheading 16.02 B III to be able to carry out the function which it was intended to be III — Oral procedure given in the context of the common organizations of the market in pigmeat The plaintiff in the main action, and in beef and veal. In fact the prepared represented by G. Breit of the Frankfurt products containing the two types of Bar, and the Commission of the meat were made subject exclusively to European Communities, represented by the import rules laid down for pigmeat M. Beschel, acting as Agent, presented intentionally in order to avoid practical oral argument at the hearing on 10 May difficulties and they fall within tariff 1979. subheading 16.02 B III (a). In spite of that formal classification it was not The Advocate General delivered his possible to determine the levies charged, opinion at the hearing on 7 June 1979.
Decision
1 By order of 11 July 1978, lodged at the Court Registry on 27 July 1978, the Finanzgericht München submitted to the Court in pursuance of Article 177 of the EEC Treaty a question relating to the interpretation of subheading 16.02 B III (a) of the Common Customs Tariff in the version in force in 1976.
JUDGMENT OF 28. 6. 1979 — CASE 160/78
2 The question was raised in the context of an action pending between the Hauptzollamt München-West (hereinafter referred to as "the Haupt zollamt"), the defendant in the main action, and the plaintiff in the main action, an undertaking which in May 1976 imported from Romania a quantity of minced meat, 10% of which was pigmeat and 90% of which was beef or veal. The product was classified by the Hauptzollamt under tariff subheading 16.02 B III (a) 1 (cc) of the Common Customs Tariff. The plaintiff in the main action however challenged that classification decision on the grounds that the term "meat" contained in the definition of subheading 16.02 B III (a) referred solely to pigmeat and that consequently mixtures containing less than 40% by weight of pigmeat — which is the case as regards the mixtures imported in this instance — should be classified under subheading 16.02 B III (a) 3. The objection filed by the plaintiff with the Hauptzollamt was unsuccessful and the plaintiff therefore brought an action before the national court.
3 In order to resolve the question of interpretation the national court decided to refer the following question to the Court of Justice:
"Is the term 'meat' in tariff subheadings 16.02 B III (a) 1, 2 and 3 of the 1976 Common Customs Tariff to be interpreted as meaning only pigmeat or also as meaning meat other than pigmeat (for example beef and veal)?"
4 The tariff heading in question, No 16.02, which is headed "Other prepared or preserved meat or meat offal" contains various subheadings including subheading 16.02 B III (a) covering "Other [prepared meats] ... Containing meat or offal of domestic swine ...". In its turn that subheading is divided into three subheadings depending on the percentage of "meat or offal, of any kind, including fats of any kind or origin" contained in the prepared or preserved meat in question namely 80% or more (16.02 B III (a) 1); 40% or more but less than 80% (16.02 B III (a) 2); less than 40% (16.02 B III (a) 3).
5 The argument put forward by the plaintiff in the main action that the term "of any kind" used in tariff subheadings 16.02 5 III (a) 1, 2 and 3 relates only to offal so that the percentage of meat to be taken into account for classification under the said subheading is solely that of meat of "domestic swine" cannot be upheld.
INTERCONTINENTALE FLEISCHHANDELSGESELLSCHAFT v HAUPTZOLLAMT MÜNCHEN-WEST
6 It is difficult to reconcile that argument with the observation that, in the definition of tariff heading No 16.02, whenever the authors of the tariff intended to refer to meat of a particular kind they did so expressly. So for example in tariff subheadings 16.02 B I (a) and (b), where the classification also depends on the percentage of meat contained in the prepared meat in question, it is expressly provided that the percentage of meat to be taken into consideration is exclusively that of "poultry-meat". Similarly the kind of meat in question is expressly mentioned in subheading 16.02 B III (a) (meat or offal of domestic swine) and in subheading 16.02 B III (b) 1 (bovine meat or offal). If the authors of the tariff had actually intended to make clas sification within subheading 16.02 B III (a) conditional merely on the percentage of pigmeat contained in the prepared meat their drafting practice shows that they would have used other wording and would have inserted the words "of domestic swine" after the word "meat".
7 This conclusion is strengthened by the fact that the words "of meat or offal" are followed by the expression "of any kind" the express purpose of which is to emphasize that the subheading relates to all kinds of meat and offal. The fact that in all the official versions of the Common Customs Tariff, with the exception of the German and Danish versions, the expression "of any kind" is separated by a comma from the words "meat or offal", to which it refers, in fact confirms that the latter expression relates to the. meat as well as to the offal.
8 Contrary to the allegation of the plaintiff in the main action, the Explanatory Notes to the Customs Tariff of the European Communities published by the Commission contain nothing to rule out the interpretation set out above. As regards the tariff heading in question the Explanatory Notes give only details regarding the way in which the percentage of meat or offal contained in the prepared meat is to be calculated. It is not possible to base on that any argument supporting a restrictive interpretation of the word "meat" contained in tariff subheading 16.02 B III (a), which would be incompatible with the wording and the purpose of that subheading in the context of the Common Customs Tariff.
JUDGMENT OF 28. 6. 1979 — CASE 160/78
9 The answer to the question raised should therefore be that the term "meat" in subheadings 16.02 B III (a) 1, 2 and 3 of the Common Customs Tariff in force in 1976 relates to meat of all kinds, including in particular beef and veal.
Costs
10 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
11 As the proceedings are, in so far as the parties to the main action 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 (Second Chamber)
in answer to the question referred to it by the Finanzgericht München by order of 11 July 1978, hereby rules:
The term "meat" in subheadings 16.02 B III (a) 1, 2 and 3 of the Common Customs Tariff in force in 1976 relates to meat of all kinds, including in particular beef and veal.
Mackenzie Stuart Pescatore Touffait
Delivered in open court in Luxembourg on 28 June 1979.
A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber