C-33/92
ECLI:EU:C:1993:127
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OPINION OF MR TESAURO — CASE C-33/92
OPINION OF ADVOCATE GENERAL TESAURO delivered on 31 March 1993 *
Mr President, specifically on the question whether it is to Members of the Court, be classified under subheading 0202 30 90 (other meat of bovine animals, frozen) in accordance with the binding customs tariff 1. The Bundesfinanzhof has referred to the notices issued by the Oberfinanzdirektion Court for a preliminary ruling two questions in connection with the consignments in relating essentially to the interpretation of question, or under subheading 0210 20 90 the expression 'salted meat' in heading (meat of bovine animals, salted, boneless) as 0210 of the Combined Nomenclature of the the plaintiff claims. C o m m o n Customs Tariff. It asks specifically whether meat of bovine animals to which a quantity of salt has been added such that the total salt content amounts to more than three times the natural salt content is to be classi- The national court first thought the meat in fied under heading 0210 and, if not, h o w question should be classified under heading high the salt content must be and what other 0202, that is as frozen meat, only if it could conditions, if any, must be fulfilled for the not be regarded as sufficiently highly salted product in question to be classified under to be classified under heading 0210 and the that heading. essential aim of the questions referred to the Court is thus to establish the point at which the quantity of salt added is such that the meat of bovine animals at issue can with cer- The questions were raised in proceedings tainty be regarded as 'salted' for the pur- between Gausepohl-Fleisch G m b H and the poses of heading 0210. Oberfinanzdirektion, Hamburg, concerning the customs classification of two consign- ments of frozen meat of bovine animals with a total salt content of between 0.71 and 1.2%, the natural salt content of the meat in 3. That being said, it must first be recalled question being 0.15%. that the Court has consistently held that 'having regard to the imperatives of legal cer- tainty and ease of verification, the decisive 2. It is common ground between the parties criterion for the tariff classification of goods that the meat in question falls under Chapter must be sought generally in their objective 2 of the Combined Nomenclature, 'Meat and characteristics and qualities, as defined in the edible meat offal', which covers meat of headings and subheadings of the CCT, and bovine animals, both frozen (heading 0202) in the notes to the sections or chapters'. 1 and salted (heading 0210). The dispute which The Explanatory Notes to the Harmonized gave rise to the present proceedings turns
1 — See, for example, judgment in Case C-120/90 Post [1991] * Original language: Italian. ECR I-2391, paragraph 11.
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Commodity Description and Coding System Chapter 2 of the Combined Nomenclature, may also be of some assistance in this con- as the case-law of the Court confirms, 3 com- nection. 2 prises meat which has undergone a preserv- ing process that may consist of freezing or salting inter alia. It also appears from Chap- ter 2 of the Explanatory Notes to the Har- monized System that fresh meat (that is, meat in the natural state) remains classified as such even if it has been sprinkled with salt in order to ensure its preservation while However, the term 'salted' under heading being transported, so superficial salting is not 0210 is not defined in the notes to the sec- enough for the meat in question to be tions or chapters or in the Explanatory regarded as 'salted'. Clearly, this argument Notes to the Harmonized System. Moreover, must apply equally to frozen meat, otherwise it is clear from documents submitted by the any meat to which salt had been added Commission that the question of the quan- would be regarded as 'salted' for the pur- tity of salt necessary for meat of bovine ani- poses of heading 0210, irrespective of the mals to be regarded as 'salted' for the pur- amount of salt added in each case. poses of heading 0210 has been raised and discussed without success at meetings of the Ad hoc Working Party on Agriculture and the Committee on Common Customs Tariff Nomenclature. And, significantly, it also Whether a product is classified under one emerged during the procedure that the prac- heading (frozen meat) rather than another tice of the Member States varied greatly in (salted meat) therefore depends essentially this matter. Nevertheless, as we shall see, on the process employed in the particular some useful guidance for the purposes of the case to ensure the actual preservation of the present case can be derived from the general product in question, so that when the pre- system of Chapter 2. serving process employed is freezing the fact that salt has been added (whether before or after) is entirely irrelevant for tariff classifica- tion purposes.
4. However, before considering the interpre- However, that being said, it appears from the tation of heading 0210 and in particular the order for reference that the meat in the term 'salted', it seems to me essential to say present case is intervention meat which had something about the criteria for deciding originally been frozen and was therefore how meat that has been both frozen and treated with salt only after it had been defro- salted should be classified in a case such as zen. Clearly, in those circumstances, the this. addition of salt could be intended to preserve the meat in question and it could therefore be regarded as 'salted' for the purposes of
2 — It should be noted that the Court has consistently held that although the Explanatory Notes cannot modify the text of the tariff itself, they nevertheless constitute an important fac- tor in its interpretation, enabling the scope of the various tar- 3 — See judgment in Case 175/82 Dinter [1983] ECR 969, para- iff headings or subheadings to be defined or clarified. graph 6.
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heading 0210. And this, in my view, is pre- that meat merely 'seasoned' with salt falls cisely what the national court has in mind within heading 16.02 and not within when it says that the meat in question should Chapter 2. 5 be classified as frozen only if it cannot be classified as salted, in that, as it also points out, meat which was originally frozen is to be classified as frozen even when partially or totally defrozen. 4 All that remains to be decided, therefore, is when salting is such as to constitute a pre- serving process and/or when it can be stated that it has not been carried out merely for the purpose of preserving the product during transportation. It has already been estab- lished that meat which has been merely sprinkled with salt is not to be classified as 5. The above observations, intended to clar- salted for the purposes of heading 0210. This ify the terms of the problem in hand, also is borne out by the Explanatory Note to suggest a number of points that are relevant subheadings 0210 11 11 and 0210 11 19 on to the interpretation of heading 0210: (a) it is meat of swine and there has been much dis- impossible to deduce from the Combined cussion in the present case as to whether it Nomenclature how much salt must be might be applicable to salted meat of bovine present in meat for it to be regarded as 'salt- animals as well. ed'; (b) the quantity of salt added must be such as to constitute a process for preserving the meat in question, so merely superficial salting is not sufficient; and lastly (c) salting for the purposes of transportation alone is not sufficient. I should like to say at once that this point does not seem to me to be crucial: first, because most of the information contained in that note, namely the requirement with respect to deep salting and the fact that the percentage salt content may vary consider- ably between different types and cuts of meat, does not touch on the problem and can in any case — as we have seen — be deduced This is all confirmed by the fact that the from the system of Chapter 2, if only by a other processes listed under heading 0210, process of elimination. Second, it appears on namely pickling in brine, drying and smok- closer examination that even the condition ing, are intended to ensure preservation for a expressly mentioned in the note, that the longer period and also by the judgment in period of preservation must considerably Dinter, cited above, in which it is stated that exceed the time required for transportation, Chapter 2 comprises meat which has under- is not new and in any case follows logically gone a preserving process and, in particular, from the fact that salting for the purposes of
4 — See paragraph 3 of the general notes to Chapter 2 of the 5 — See expert opinion of the Federal Office for Meat Research Combined Nomenclature. (Annex 1 to the Commission observations).
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heading 0210 must be intended to ensure of meat of the same type, with the same salt preservation for purposes other than trans- content. portation.
7. It is quite clear from the above consider- ations that the criteria I have mentioned for 6. In fact, the difficulties arise precisely from describing meat of bovine animals as 'salted' the absence of any criterion for distinguish- for the purposes of heading 0210, which can ing between salting merely for the purpose in any case be deduced from the system of of preserving meat during transportation and Chapter 2 of the Combined Nomenclature, salting as a method of ensuring its actual (if lack the objectivity required to enable a temporary) preservation. It has been claimed product to be classified under a given tariff in the course of the procedure that, from a heading in a uniform way. scientific point of view, a salt content of 4 to 5% is necessary for salting to be regarded as sufficient actually to 'preserve' the product. 6 On the other hand, it has righdy been pointed out that preservation — or to be precise, the period of preservation — To avoid such a conclusion, which leaves to depends not only on the salt content but also the national court the task of deciding — on other factors such as the type and cut of albeit in the light of the criteria I have men- the meat in question, the environmental con- tioned — whether or not meat of bovine ani- ditions and the level of hygiene in packaging. mals to which salt has been added should be It is consequendy impossible to define what regarded as 'salted' for the purposes of head- 'deep salting' means in the abstract. ing 0210, the Commission partly altered its position in the course of the oral procedure by suggesting a minimum salt content required for meat to be classified under heading 0210, namely 1.2% of the weight. That figure may certainly constitute an N o r is it possible to determine how far important reference point for the national ('considerably') the period of preservation court inasmuch as the Commission has said must exceed the time required for transpor- it intends to propose that a criterion of this tation for meat to be regarded as 'salted'. In kind be inserted in the relevant Combined the present case, for example, the time Nomenclature. However, in view of the required for transporting the meat in ques- present wording of the Combined Nomen- tion was only one hour but it was preserved clature on the subject, I think such a crite- for up to two days, a period that could cer- rion ought not to be regarded as decisive for tainly be regarded as considerably exceeding the purposes of the interpretation the Court the time required for transportation. But the has been asked to give. time required for transportation in each case would then become crucial and that would lead to discrimination between consignments
My definitive view is, first, that a salt content 6 — See expert opinion of the Federal Office for Meat Research amounting to more than three times the nat- (Annex 1 to the Commission observations). ural salt content is not of itself sufficient for
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meat to be regarded as 'salted' for the pur- of salt such as to ensure its preservation for a poses of heading 0210 and, second, that meat period which considerably exceeds the time of bovine animals, even if previously frozen, required for transportation, account also is to be classified as 'salted' for the purposes being taken of the other factors mentioned of heading 0210 when it contains a quantity above.
8. In the light of these considerations, I therefore propose that the Court give the following answer to the questions referred to it by the Bundesfinanzhof:
(1) Meat of bovine animals which has a total salt content amounting to more than three times the natural salt content is not, of itself, such as to be classifiable under heading 0210 of the Common Customs Tariff (Combined Nomencla- ture).
(2) In the present state of Community law, meat of bovine animals is to be clas- sified as 'salted' for the purposes of heading 0210 when it has undergone a process of deep salting which, account also being taken of the cut of meat in question and of the climatic and environmental conditions, is such as to ensure its preservation for a period which considerably exceeds the time required for transportation.
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