C-183/78

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 31 MAY 1979<appnote>1</appnote>

Firma Hans Peter Galster v Hauptzollamt Hamburg-Jonas (preliminary ruling requested by the Bundesfinanzhof)

Case 183/78

1. Common Customs Tariff — Tariff headings — Products "slightly dried or slightly smoked" within the meaning of subheadings 02.06 BI (b) 3 (aa) and 02.06 BI(b) 5 (aa) — Concept

2. Common Customs Tariff — Tariff headings — Frozen meat within the meaning of heading 02.01 — Concept

1. Having regard to the Explanatory drying or slight smoking to ensure the Notes and Additional Notes to the actual preservation of the meat. Common Customs Tariff it is clear that the basis of the decisive cri­ 2. The expression "frozen" in heading terion for tariff classification of 02.01 of the Common Customs Tariff "slightly dried" or "slightly smoked" covers not only meat which has been products within the meaning of sub­ frozen when fresh but also meat headings 02.06 B I (b) 3 (aa) and which has first been slightly dried and 02.06 B I (b) 5 (aa) of that tariff is not subsequently frozen, in so far as its the water/protein ratio in the meat actual and lasting preservation considered in isolation, but is depends essentially upon such primarily the capacity of such slight freezing.

HAUPTZOLLAMT [Principal Customs Office] Hamburg-Jonas,

on the interpretation of certain headings of the Common Customs Tariff concerning pigmeat which has been slightly dried and subsequently frozen,

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

of its claim were brought, also refused to 2. A certified copy of the order of admit the application for an export reference was received at the Court refund. It stated, inter alia, that, in the Registry on 11 September 1978. case of frozen meat, slight drying is of no significance in relation to its sub­ Galster, represented by K. Landry, and sequent freezing. In so far as the actual the Commission of the European keeping quality of meat which has been Communities, represented by its Legal partially dehydrated by slightly drying it Adviser, Peter Kalbe, submitted written is achieved by freezing or deep-freezing, observations pursuant to Article 20 of the the drying process is superseded for tariff Protocol on the Statute of the Court of purposes by the freezing process, and the Justice of the EEC. resultant product is to be classified as "frozen meat" under tariff heading 02.01. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General the Court decided, by order of 17 January 1979, pursuant to Galster appealed against that decision to Article 95 of the Rules of Procedure, to the Bundesfinanzhof, on the ground that assign this case to the First Chamber and the decision was based on a wrong to open the oral procedure without any interpretation of tariff subheadings 02.06 B I (b) 3 (aa) and 02.06 B I (b) preparatory inquiry. 5 (aa), because freezing goods covered by these tariff subheadings after drying cannot in fact convert them into goods II — Written observations sub­ covered by heading 02.01. mitted pursuant to Article 20 of the Protocol on the Statute of the Court of The Bundesfinanzhof decided by an Justice of the EEC order of 22 August 1978 to stay proceedings and refer the following questions to the Court for a preliminary 1. Galster submits, in connexion with ruling: the first question, that frozen meat within the meaning of tariff heading 02.01 is meat which has been frozen when fresh, 1. Does the term "frozen" in tariff since subsequent freezing or deep heading 02.01 cover not only meat freezing of slightly dried meat cannot which has been frozen when fresh but cause its tariff classification to be altered. also meat which has first been "slightly dried" within the meaning of tariff subheadings 02.06 B I (b) 3 (aa) Galster calls attention, in support of its and BI (b) 5 (aa) and only then argument, to the view expressed by the frozen? Bundesfinanzhof itself in its order making the reference and points out that If the answer to this question is in the its interpretation is confirmed by the negative: wording of the tariff headings in question. The wording of heading 02.01 leads to the conclusion that it only 2. How is the term "fresh" in tariff covers, in addition to fresh meat, meat heading 02.01 to be distinguished which has been exposed when fresh to a from the term "slightly dried" in tariff very low temperature. Tariff heading subheadings 02.06 B I (b) 3 (aa) and 02.06 for its part relates only to meat the B I (b) 5 (aa)? keeping quality of which has been

increased independently by one of the when frozen, should consequently processes mentioned in the same remain a product coming within heading heading. It is therefore impossible for 02.06. meat which has been slightly dried within the meaning of subheadings 02.06 B I (b) 3 (aa) and 02.06 B I (b) In support of this analysis Galster has produced, as an annex to its written 5 (aa), because of subsequent freezing, to observations, two opinions, one from the be classified again as fresh meat under Oberfinanzdirektion München [Regional tariff heading 02.01. Finance Office, Munich] of 21 November 1973, and the other from the Zolltechnische Prüfungs- und Lehranstalt The wording of this heading compels the [Technical Customs Examination and conclusion that freezing or deep freezing Teaching Institution], Munich, of meat must not and cannot lead to any 20 June 1974. alteration of its tariff classification. In spite of being frozen fresh meat is still classified under tariff heading 02.01. As far as concerns the second question Likewise frozen meat after it has been Galster points out that according to cooked comes within heading 16.02. Additional Note No 3 to Chapter 2 of the Common Customs Tariff the water/­ protein ratio is decisive for the interpre­ tation of the expression "slightly dried". Galster, in support of this interpretation, refers to the Explanatory Notes to the Common Customs Tariff, published by That note indicates, in the first place, the Ministery for Finance of the Federal that slightly dried meat is different from Republic of Germany (Chapter 2, Part dried meat because its water/protein II) and the opinions expressed within the ratio is more than 2.8 and, in the second context of those notes in paragraphs 10 place, that that ratio must be lower than and 11 of Pan I thereof on tariff that of fresh meat. heading 16.02, and points out that the reason why freezing meat must not and cannot lead to an alteration of the tariff Several expert opinions make it clear that classification lies in the fact that this the water/protein ratio of pigmeat from specific process of preservation is one pigs which have been recently which can be stopped at any time. If the slaughtered is between 3.4 and 4 and freezing of the meat were to entail an that pigmeat with a water/protein ratio alteration of its tariff classification, its of less than 3.3 is regarded as slightly dried. thawing would make another clas­ sification necessary and this must clearly be avoided. Finally it follows from the above- mentioned note that slight drying also leads to an improvement in keeping Thus fresh beef, even when frozen, quality to the extent which is normal and remains a product coming within attainable in the case of a slightly dried heading 02.01; beef which has been product (expert report). The improve­ cooked, even when frozen, remains a ment in the keeping quality is of course product coming within heading 16.02; less in that case than that resulting from beef or pork, seasoned for example with thorough smoking or deep freezing. pepper and salt, even when frozen, However, in so far as keeping quality remains a product coming within assumes importance for the classification heading 16.02. Slightly dried meat, even of a slightly dried product, it should

The specific question raised in the main action relating to the structure of the Meat is "dried" within the meaning of tariff has arisen because the exporter tariff heading 02.06 if it has been claims that the goods in question are preserved and protected against normal "slightly dried" pigmeat within the deterioration by drying. The Explanatory meaning of subheadings 02.06 B I (b) Notes to the Customs Tariff of the 3 (aa) and 02.06 B I (b) 5 (aa) which has European Communities clearly indicate retained that character even though it that meat which has been partially was subsequently frozen. dehydrated but the actual preservation whereof is ensured by freezing or deep freezing falls in tariff heading 02.01 and As a rule, if goods which were originally not heading 02.06. On the other hand within a given tariff heading, such as meat is "dried" if the drying process heading 02.06 for example, subsequently which it has undergone has produced undergo an additional preservation lasting preservation, even if there has not process, they remain within the original been any additional preservation tariff heading until that treatment treatment (such as freezing). produces goods which, owing to their nature and particular features, unquestionably satisfy the requirements for classification within another tariff It is difficult to state, in a generally applicable form of words, exactly when heading. this point is reached during the preser­ vation process in each specific case. In Therefore the issue in this case is in what this connexion a pointer is provided by circumstances "meat and edible meat Additional Note 3 to Chapter 2 of the

tariff which states that for the purposes the other preservation processes (such of the subheadings which are relevant in as salting) mentioned in that tariff this case products whose water/protein heading. ratio in the meat is more than 2.8 shall be considered as "slightly dried and slightly smoked". Therefore it follows The Commission goes on to say that, from this that meat which has been (thor although tariff heading 02.06 contains at oughly) "dried" must have a water/ present specific subheadings for slightly protein ratio of less than 2.8. dried or slightly smoked meat, this is due to the need, which became apparent after It cannot be established from the file the accession of the three new Member whether the water/protein ratio of the States, to define more effectively in the goods to be classified in this case was tariff bacon products which are of below that threshold.

As far as the meat in Commission considers that the questions question is concerned its keeping quality submitted might be answered as follows: has been achieved only by freezing so that the meat at issue is frozen meat as referred to in the Explanatory' Notes to "1. The word 'frozen' in tariff heading 02.01 includes fresh meat which has the Customs Tariff of the European Communities relating to subheading first been slightly dried and then 02.06 B I (b) according to which meat frozen, because drying which is only which has been dehydrated but the slight and not sufficiently thorough actual preservation of which is ensured to ensure preservation does not take by freezing falls in tariff heading 02.01 away from the raw material its (as frozen meat). original character of fresh meat within the meaning of the tariff. As that is the scope of tariff heading 02.06 it follows, as far as concerns the 2. Drying which is only slight and does classification for tariff purposes of not effect a lasting preservation of "slightly dried" meat, that the meat cannot by itself cause it to — Fresch meat which has been be classified under tariff heading

heading 02.06. What is more the quality has been achieved by one of classification of "slightly dried" meat the preservation processes included under subheadings 02.06 B I (b) and under tariff heading 02.06 (salting, 02.06 B I (b) 5 presupposes that such preservation in brine, smoking). meat has undergone as well one of 'Slightly dried' meat only ceases to

4 In order to be apprised of the criteria to be applied when classifying these goods for tariff purposes the Bundesfinanzhof has referred the following questions to the Court for a preliminary ruling:

JUDGMENT OF 31. 5. 1979 — CASE 183/78

1. Does the term "frozen" in tariff heading 02.01 cover not only meat which has been frozen when fresh but also meat which has first been "slightly dried" within the meaning of tariff subheading 02.06 B I (b) 3 (aa) and B I (b) 5 (aa) and only then frozen?

If the answer to this question is in the negative:

2. How is the term "fresh" in tariff heading 02.01 to be distinguished from the term "slightly dried" in tariff subheadings 02.06 B I (b) 3 (aa) and B I (b) 5 (aa)?

5 The Bundesfinanzhof by these questions has asked the Court in substance whether and to what extent heading 02.01 of the Common Customs Tariff covers products such as those mentioned by subheadings 02.06 B I (b) 3 (aa) and 5 (aa) which have been first "slightly dried" and subsequently "frozen".

11 In these circumstances the fact that a product has been slightly dried or slightly smoked cannot be regarded as a criterion for classification for customs purposes of all products which have been partially dehydrated.

12 On the other hand the last paragraph of the Explanatory Notes to the Common Customs Tariff relating to subheading 02.06 B I (b) states that "Meat which has been partially dehydrated, but the actual preservation of which is ensured by freezing or deep freezing falls in heading 02.01."

13 Having regard to those notes and taking into account the above-mentioned Additional Notes it is clear that the basis of the decisive criterion for tariff classification of "slightly dried" or "slightly smoked" products is not, according to the Customs Tariff, the water/protein ratio in the meat considered in isolation, but is primarily the capacity of such slight drying or slight smoking of the meat to ensure the actual preservation of the meat.

14 Products which have been partially dehydrated as a result of being slightly dried or slightly smoked come in fact within heading 02.01 relating to fresh frozen meat in so far as their actual keeping quality has been achieved not by partial dehydration of the meat but by freezing it.

15 When such products have to be classified it is for the national court to determine whether, and to what extent, the lasting preservation of the meat, which is capable of protecting it from normal deterioration, is due to its being slightly dried or slightly smoked or whether it has been achieved essentially by freezing.

in answer to the questions referred to it by the Bundesfinanzhof by order of 22 August 1978, hereby rules:

The expression "frozen" in heading 02.01 of the Common Customs Tariff covers not only meat which has been frozen when fresh but also meat which has first been slightly dried and subsequently frozen, in so far as its actual and lasting preservation depends essentially upon such freezing.

Mertens de Wilmars O'Keeffe Bosco

Delivered in open court in Luxembourg on 31 May 1979.

A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber