C-175/82

1. The decisive criterion for the customs 2. Heading 16.02 of the Common classification of goods under the Customs Tariff must be interpreted as Common Customs Tariff must meaning that it also includes poultry- generally speaking be sought in the meat to which salt and pepper have objective characteristics and properties been added even if the pepper may of the products at the time of their only be detected microscopically. presentation for customs clearance.

In Case 175/82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Düsseldorf, for a preliminary ruling in the action pending before that court between

HANS DINTER G M B H , whose registered office is in Hamburg,

and 1 — Language of the Case: German.

JUDGMENT OF 17. 3. 1983 — CASE 175/82

JUDGMENT

Facts and Issues

The order making the reference, the particular turkey escalopes and rolled course of the procedure and the obser- turkey roast. In the course of its manu- vations submitted pursuant to Article 20 facture the meat had been seasoned with of the Protocol on the Statute of the a mixture of salt and pepper so as to Court of Justice of the EEC may be enable it to be sold as meat "ready to summarized as follows: roast". At the time of their importation the rolled turkey roast and the escalopes were already packaged for sale to the consumer. They bore a label to that effect, which, in the case of the turkey roast, had the following wording . . . I — Facts and written procedure

The company Hans Dinter GmbH, the "Boneless rolled turkey roast, oven- plaintiff in the main proceedings, ready, seasoned: if kept frozen at -15°C imported into the Federal Republic of and properly stored will keep until . . . Germany from France poultrymeat, in produce of France, weight 700 grams."

DINTER v HAUPTZOLLAMT KÖLN-DEUTZ

Since products falling within that tariff In the grounds of the order making the heading are subject to the charging of reference, the Finanzgericht states that it monetary compensatory amounts the is inclined to take the view that, to be

JUDGMENT OF 17. 3. 1983 — CASE 175/82

are material. However, the concept of as to encompass the simple addition of "Other prepared . . . meat" is neither salt and pepper to the meat, even in defined in more detail in the Common quantities which are discernible only Customs Tariff nor in the Explanatory microscopically. In support of that Notes thereto. The concept of "season- argument it essentially puts forward ing" signifies in common parlance a three arguments. refinement from the point of view of the sense of taste of meat and other foods, which implies that it must be perceptible First, the plaintiff observes that it is clear to the taste. Against that view it may from the Note to Chapter 16 of the however be argued that taste is a Common Customs Tariff that meat subjective criterion and that sensitivity to prepared or preserved by processes other taste is variable from one individual to than those provided for in Chapter 02 another. come within heading 16.02.

Only Communities, represented by R. three genuine methods of preparation are Wägenbaur, Legal Adviser, and by T. mentioned, namely smoking, boiling or van Rijn, a member of its Legal steaming. Consequently, a preparation Department, acting as Agents. within the meaning of tariff heading 16.02 of the Common Customs Tariff must always be assumed whenever a Upon hearing the report of the Judge- product has been treated otherwise than Rapporteur and the views of the by smoking, boiling or steaming. Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the Secondly, the plaintiff relies on the terms matter to the First Chamber. However, it of the Explanatory Notes to the Brussels requested the Commission to give its Nomenclature relating to Chapter 15.02. views on an argument put forward by the A section of that Note is worded as plaintiff in the main proceedings. follows :

"Meat and meat offals prepared or In fact, the court making the reference preserved by other processes not also wishes to know whether proof of provided for in Chapter 2, including seasoning must be obtained by means those merely covered with batter or of objective criteria (for example, breadcrumbs, truffled or seasoned (e.g. microscopic examination) or subjective with pepper and salt)". criteria (for example, by means of the sense of taste). In the plaintiff's view, only objective criteria of proof can be decisive for a tariff classification. In In view of that Explanatory Note it support of that view, it observes that the matters little whether the seasoning was principles generally observed as regards carried out with salt and pepper since it tariff classification refer exclusively to is sufficient that seasoning did take place. the objective condition of products at the time of importation. That accords, moreover, with the well-established case-law of the Court. Furthermore, the Finally, the plaintiff refers to the terms plaintiff considers that the objective of of the preamble to Commission Regu- Community law is to create a uniform lation No 3092/76 of 17 December 1976 legal system within the Community and on the application of monetary that to rely on subjective sensitivity to compensatory amounts to certain beef taste would run counter, to that objective. and veal products (Official Journal In fact, the use of that criterion would L 348, p. 18). The second recital in the result in the same seasoned meat being preamble to that regulation, is worded as given a different tariff classification follows : within the Community. Finally, the plaintiff claims that other forms of preparation within the meaning of tariff heading 16.02, mentioned in the Brussels ". . . the simple seasoning of, or addition Explanatory Notes, always have to be of other substances to, fresh, chilled or ascertained on the basis of objective frozen meat has the consequence that criteria. such treated meat is considered as being prepared or preserved meat for the purposes of application of the Common Customs Tariff; . . ." As far as the second question is concerned, the plaintiff states that, in its view, a reply is not necessary, regard That wording as well as the wording of being had to the view set out above. Article 1 of that regulation show that for Moreover, the question as posed is the Community legislature a simple, that scarcely comprehensible: consumers in is to say, light seasoning of the product the Member States of the European is sufficient to enable it to be regarded as Community are not accustomed to prepared meat within the meaning of eating raw meat and it is therefore tariff heading 16.02 of the Common difficult to imagine that the turkey-meat Customs Tariff. in question would be consumed in the condition in which it is at the time of importation. The use of taste as a criterion thus implies in practice that the The plaintiff observes that the first customs authorities would be obliged, for question raises a second problem in example, to cook or roast the samples addition to that of interpreting the taken for inspection purposes. That concept of "Other prepared . . . meat". procedure would however conflict with

The plaintiff also considers that it would be questionable to rely on the particular sensitivity to taste of the customs official responsible for the tariff classification. First, the Commission argues that, in That would lead to discrepancies in the order to pass from Chapter 02 to tariff classification of the same goods by Chapter 16 of the Common Customs different customs officers. In fact it must Tariff, the meat must have undergone a be borne in mind that within the true preparation changing the condition Community the customs officials of of the product. The Commission's different countries have a differing argument on that point stems from the sensitivity to taste. distinction between tariff headings 02.02 and 16.02. In fact, Chapter 02 comprises edible poultrymeat, which is either fresh, chilled, frozen, salted, in brine, dried or In the light of the foregoing smoked. Products having undergone a considerations, the plaintiff considers more advanced treatment are to be that gustatory proof of a product's regarded as prepared and classified having undergone another kind of accordingly in Chapter 16. That is the preparation within the meaning of tariff case if they are processed into sausages, heading 16.02 of the Common Customs for example, or if they are prepared in Tariff can only be obtained from a ways not mentioned in Chapter 02 such product which is ready to be consumed. as pâtés, meat sauce, marinades, etc. It adds that, if organoleptic proof is held by the Court to be the correct one, a tasting would have to be carried out by an independent group of persons, who were not capable of being influenced and Secondly, the Commission emphasizes were representative of the different that there is a direct relationship between nationalities and peoples of the seasoning and taste. Even if the Community. Only in that way would seasoning by means of salt and pepper that method of tariff classification be were to be considered a preparation not reconcilable with the principles of legal falling within Chapter 02, the question certainty and clarity which require that would arise at what point it might individuals must always be able to know be regarded as "seasoned". In the without ambiguity their rights and duties. Commission's view, seasoning in common parlance signifies the addition to food of spices to bring out its flavour. Consequently, whether a product is The Commission of the European seasoned or not can only be ascertained Communities suggests that the reply to be by resorting to organoleptic criteria. given to the national court's first Therefore, if the seasoning is not question should be that heading 16.02 of perceptible to the taste, the product the Common Customs Tariff must be cannot be regarded as "Other prepared interpreted in such a way that meat to . . . meat" within the meaning of heading which salt and pepper have been added 16.02 of the Common Customs Tariff.

3 According to the information supplied by the plaintiff in the main action, the turkey-meat in question was, at the time of its preparation, lightly seasoned with a mixture of pepper and salt as it passed on a conveyor belt. The Zolltechnische Prüfungs- und Lehranstalt [Customs Laboratory and Training College], Cologne, found however that the seasoning was perceptible neither organoleptically nor optically and that the particles of seasoning were identifiable only microscopically.

JUDGMENT OF 17. 3. 1983 — CASE 175/82

4 The Finanzgericht Düsseldorf, before which the case came, considered that the interpretation of the concept "Other prepared . . . meat" within the meaning of heading 16.02 of the Common Customs Tariff was not free from doubt and therefore referred the two. following questions to the Court of Justice for a preliminary ruling:

" 1 . Is heading 16.02 of the Common Customs Tariff to be interpreted in such a way that it also includes meat to which, according to the method of preparation notified, salt and pepper have been added but in which the presence of pepper may only be identified microscopically or may meat be regarded as being O t h e r prepared . . . meat' only if the seasoning added may be perceived by the sense of taste? If the Court answers the second part of the question in the affirmative :

2. According to which criteria is the existence of the taste to be ascer- tained?"

5 It appears from the Explanatory Notes to Chapter 16 of the Common Customs Tariff that meat prepared or preserved otherwise than as provided for in Chapter 02 falls to be classified under heading 16.02.

n Therefore the reply to be given to the first question is that heading 16.02 of the Common Customs Tariff must be interpreted as meaning that it also includes poultrymeat to which salt and pepper have been added even if the pepper may only be detected microscopically.

i2 In view of that reply the second question has become devoid of purpose.

Costs

1 3 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

T H E C O U R T (First Chamber),

OPINION OF M R ADVOCATE GENERAL MANCINI D E L I V E R E D O N 3 F E B R U A R Y 1983 »

Mr President, the manufacturing process that meat runs Members of the Court, along a conveyor belt and is sprinkled with salt and pepper in such a way as to enable it to be sold ready for cooking. 1. The preliminary questions referred According to Dinter meat processed in to the Court in this case concern the that way must be considered "seasoned" meaning of the expression "Other and thus come within the concept of prepared . . . meat" contained in heading "Other prepared . . . meat" and, at the 16.02 of the Common Customs Tariff. moment of release into free circulation, The Finanzgericht [Finance Court] must be classified under heading 16.02 of Düsseldorf requests the Court to the Common Customs Tariff. The determine the scope of those words in principal customs office at Cologne- order to enable it to resolve a dispute Deutz at first accepted that classification, between a customs office of the Federal consequently levying import turnover Republic of Germany and the company tax. It however had several samples of Hans Dinter GmbH (hereinafter referred the imported goods taken, a part of to as "Dinter") whose registered office is which was examined by the in Hamburg. "Zolltechnische Prüfungs- und Lehr- anstalt" [Customs Laboratory and Dinter imports from France frozen Training College], Cologne. The escalopes and rolled turkey roast. During conclusion reached was that "the

1 — Translated from the Italian.