C-233/88

After the judgment in Case 175/82 was delivered, the Council, by means of Regu- lation No 3400/84, inserted into Chapter 2 2. The Common Customs Tariff headings of the Common Customs Tariff the in that annex which are at issue in the Additional Note 6(a) at issue, which present case are worded as follows: 'Dead provides that: poultry (that is to say fowls, ducks, geese, turkeys and guinea fowls) and edible offals thereof (except liver), fresh, chilled or frozen' (Heading 02.02) and 'Other '"Seasoned meat" of poultry, swine or prepared or preserved meat or meat offal' bovine animals, excluding the products (Heading 16.02). described in paragraph (c), falls within subheadings 16.02 B I, 16.02 B III (a) and 16.02 B III (b) 1 (aa) respectively. "Sea- soned meat" shall be uncooked meat that has been seasoned either in depth or over the whole surface of the product with With regard to Heading 16.02, it should be seasoning either visible to the naked eye or noted that the corresponding Explanatory clearly distinguishable by taste.' Note of the Customs Cooperation Council (EN/AS 35, February 1982) states that it 2 — It should be pointed out that although the Explanatory covers in particular: 'Meat and meat offals Notes to the Common Customs Tariffcannot modify the text of the Tariff itself, they nevertheless constitute an prepared or preserved by other processes important factor in its interpretation enabling the scope of not provided for in Chapter 2, including the various tariff headings or subheadings to be defined or clarified; see the judgment of 26 February 1980 in Case those merely covered with batter or bread 54/79 Hako-Schuh v Hauptzollamt Frankfurt am Main-Ost [1980] ECR 311, paragraph 6. 3 — Sec the judgment of 17 March 1983 in Case 175/82 Diner * Original language: Italian. v Hauptzollamt Koln-Deutz [1983] ECR 969, 1 — OJ 1984, L 320, p. 1. paragraph 11.

The Tariefcommissie took the view, as is expressly stated in the order making the reference, that in its judgment in Dinter the Court ruled on a particular aspect of the Van de Kolk therefore had to pay relationship between Headings 02.02 and HFL 50 675.70 by way of agricultural levies 16.02 set out in the Convention on the and monetary compensatory amounts. Nomenclature and reproduced by the Community in the Common Customs Tariff, and that the Court of Justice thereby implicitly indicated the substance of the Community's obligation in that regard when The Tariefcommissie, Amsterdam — to applying the Convention. which Van de Kolk appealed — found that Article II (b)(ii) of the Brussels Convention on the Nomenclature for the Classification of Goods in Customs Tariffs of 15 5. In order to determine whether that view December 1950, 5 which is binding on is correct, it is necessary first of all to the Community, provides that each describe — albeit briefly — the system set Contracting Party undertakes that, as up by the Convention on the Nomen- respects its customs tariff... it will make no clature. 6 changes in the chapter or section notes in a manner modifying the scope of the chapters, sections and headings as laid down in the Nomenclature. The Tariefcommissie In the Brussels Convention, which entered considered that Additional Note 6(a) may into force on 11 September 1959, the have changed the scope of Heading 16.02, Contracting Parties noted that the as interpreted by the Court of Justice, in so progressive removal of quantitative far as it permits only meats with seasoning restrictions results in customs tariffs which is visible to the naked eye or dis- becoming an increasingly important factor tinguishable by taste to be regarded as seasoned but not meats with seasoning 6 — There is, moreover, no dispute that the Community has taken over from the Member States the commitments which is visible microscopically, as referred arising from the convention in question and is bound by those commitments; sec the judgment of 19 November to by the Court. It has therefore asked the 1975 in Case 38/75 Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijnzen [1975] ECR 1439, p. ra- graphs 21 to 23. In that regard it should be pointed our 4 — To be precise, the Customs Inspector readied that that in Council Decision 87/369/EEC of 7 April 1987 (OJ conclusion by wrongly applying a substantively identical 1987, L 198, p. 1), the Council approved, on behalf of the provision in Commission Regulation (EEC) No 3678/88 Community, the International Convention on the (OJ 1988, L 366, p 53) The Tariefcommissie then cleared Harmonized Commodity Description and Coding System, up the error by correctly identifying the applicable which was adopted in Brussels on 14 June 1983 and which provision. was intended to replace the 1950 Brussels Convention as 5 — United Nations Treaty Sertes, Vol 347, p 127 (official the international basis for customs tariffs and statistical texts in English and French) nomenclatures.

The fundamental provision in the Convention is Article II(a) under which The functions of the Committee, exercised each Contracting Party undertakes to under the authority of the Customs compile its customs tariff in conformity with Cooperation Council and in accordance the Nomenclature set out in the annex to with any directions which the Council may the Convention, subject to such textual give, are listed in Article IV; they are: (a) to adaptations as may be necessary to give collate and circulate information concerning effect to the Nomenclature in its domestic the application of the Nomenclature in the law as from the date on which the customs tariffs of the Contracting Parties; Convention comes into force in respect of it. (b) to study the procedures and practices of the Contracting Parties in relation to the classification of goods and, accordingly, to The Convention requires each Contracting make recommendations to the Council or to Party, as respects its customs tariff, not to the Contracting Parties to secure uniformity omit any of the headings of the Nomen- in the interpretation and application of the clature nor to add any new headings nor to Nomenclature; (c) to prepare explanatory depart from any of the numbers of the notes as a guide to the interpretation and headings (see Article II(b)). The Con- application of the Nomenclature; (d) on its tracting Parties are also required to include own initiative or on request, to furnish to in their own customs tariffs the General Contracting Parties information or advice Rules for the Interpretation of the Nomen- on any matters concerning the classification clature and to make no changes in the of goods; (e) to submit to the Council chapter or section notes in a manner proposals for any amendments to the modifying the scope of the chapters, Convention; (f) to exercise such other sections and headings as laid down in the powers and functions of the Council in Nomenclature. relation to classification of goods as the Council may delegate to it.

To consider, on the other hand, that a given interpretation by the Court of a heading of As we have seen, the Nomenclature is no the Common Customs Tariff can auto- more than the basis upon which the matically be applied to the corresponding Contracting Parties establish their own heading of the Nomenclature in the annex customs tariffs; it is the headings in those to the Convention and necessarily precludes tariffs that the individual comes into contact the adoption by the Community legislature with and that the Court is usually called of additional notes which attribute a upon to interpret. different scope to that heading, would lead to the unfortunate result, which is moreover extraneous to the logic of an inherently Secondly, it should be emphasized that, dynamic system of freezing the interpre- precisely because the interpretation of the tation of the headings of the Nomenclature, various headings is of a highly technical permanently binding the legislature to a nature and must take into account their particular judicial interpretation. practical implementation by the Contracting Parties, the Convention makes provision for an institutionalized and permanent system 8. The above considerations help to define with a view to securing uniformity in the the scope of the judgment in Dinter, in interpretation of the headings of the which the Court interpreted Heading 16.02 Nomenclature. of the Common Customs Tariff.

In the judgment in Dinter, in a case where In that context, the interpretation of the there was no specific additional note and various tariff headings, as laid down in the the explanatory note was in fact not very Common Customs Tariff, given by the enlightening, since it referred to meat Court of Justice of the European seasoned with salt and pepper without spec- Communities, is but one part of a wider ifying what is actually meant by 'seasoned procedure for interpreting the headings of meat', the Court merely applied a general the Nomenclature. Similarly, the regulatory principle of interpretation according to and legislative practice applying in the legal which the decisive criterion for the classifi- orders of the Contracting Parties also cation of goods under the Common

9. The Council subsequently adopted Additional Note 6(a) in which it specified The Court noted that although difficulties that 'seasoned meat' is uncooked meat that caused by the application of a Community has been seasoned either in depth or over provision may be relevant to its interpre- the whole service of the product with tation, they are not of such a nature as to seasoning either visible to the naked eye or call its validity in question, and then stated clearly distinguishable by taste. that the application of the note in question, as interpreted above, did not seem to present special difficulties. In the present case the Court is called upon to determine not whether the additional note in question is in conformity with the It held that in cases where the persons interpretation of Heading 16.02 of the entrusted with the task by the Member State Common Customs Tariff given in its were not able by simple visual examination judgment in Dinter, a question which would to ascertain that the fabric had been treated, be irrelevant since the Council may legislate it followed from the note that such freely, but rather — and this is something treatment, if it had in fact taken place, was quite different — whether, as the result of not sufficient to transfer the fabric from the the adoption of such a note, the Council has tariff heading normally applicable to a necessarily changed the scope of the corre- fabric of that type to another specific sponding heading in the Nomenclature of heading. The note in fact rejected any the Convention, a heading which the Court, examination exceeding the capacities of as I have said, did not interpret in its such persons for the purpose of checking judgment in Dinter. whether or not the fabric had undergone such treatment.

science of sensory analysis has been The adoption of the criterion of taste, as progressively developed and has become an opposed to that of visibility to the naked increasingly widely used tool for analysing eye, is also attributable to the increasingly food products. widespread use of seasonings which are liquid and therefore not visible to the naked Sensory analysis was standardized in the eye. Federal Republic of Germany by Standard 13. In the light of the above considerations, DIN 10954 and received international namely (a) the generic nature of Heading acceptance when the International 16.02 (other prepared or preserved meat or Standards Organization, Geneva, devised offal) of Chapter 16 (concerning prepa- Standard ISO 4120 in 1983. rations of meat, of fish, of crustaceans or molluscs) of the Nomenclature in the annex When applied scientifically, sensory analysis to the Convention; (b) the fact that Expla- is highly accurate and the four basic natory Note EN/AS 35 of February 1982 is flavours, namely sweet, acid, salty and of little help in interpreting the heading in bitter, can be detected in small amounts. question since it does not explain what is to 12. Finally, it must be emphasized that the be understood by 'seasoned meat'; (c) the Commission has explained the reasons for need for a better definition of the concept the adoption of such rigorous methods of of seasoning, since it is reasonable to argue classification. that the mere addition of a few grains of salt or pepper does not really constitute The addition of some seasoning or other to seasonings, I conclude that consideration of meat falling within Chapter 2, even in the question referred to the Court has extremely small quantities and only on a revealed nothing to suggest that specific part of the surface, might enable the meat to information such as that given in the note at be transferred from Chapter 2 to Chapter issue is such as to change the scope of 16. It would later be possible to restore the Heading 16.02 in relation to Heading 02.02 meat to its initial state, thereby causing a of the Nomenclature in the annex to the serious risk of distortion of trade. Convention.