C-151/93

VOOGD VLEESIMPORT EN -EXPORT

OPINION OF ADVOCATE GENERAL LENZ delivered on 24 March 1994

Mr President, the latter (inter alia) as 'pipistrelli' ('bats'). Members of the Court, For the sake of simplicity, I will refer to those products below as 'legs with back por­ tion' and 'wings with back portion'.

A — Introduction

3. It appears that Voogd described those products in its applications for export refunds as 'legs' and 'wings' respectively and claimed the export refunds laid down for those products. The authorities in the Neth­ erlands responsible for granting the refunds 1. This case gives the Court the opportunity take the view that Voogd has to that extent to consider in more detail the anatomy of the given false information. Voogd therefore chicken (Gallus gallus domesticus). found itself the subject of a prosecution, which has come before the Gerechtshof (Regional Court of Appeal), The Hague.

2. During 1987 and 1988, the company M. Voogd Vleesimport en -export BV (hereinaf­ 4. The Gerechtshof has referred the follow­ ter 'Voogd') exported various cuts of poul- ing questions to the Court: trymeat to non-member States in respect of which it claimed export refunds. According to the information given in the order for ref­ erence, the products in question were, on the one hand, chicken legs with (part of) the back (without the rump) and, on the other hand, front portions of the back with wings 1.1 On a correct interpretation of the (mainly) from Italian suppliers, described by Annexes to the Commission regulations referred to below, what meaning is to be given to the descriptions of poultrymeat * Original language: German. products given at Points (a) to (f) below

(f) Description: 'Poultry cuts and set out at 1.1(a) to (f) (applicable in the offal other than liv­ abovementioned periods)? ers, frozen: Of fowls of the spe­ cies Gallus domesti- cas: Cuts: 2.1. On a correct interpretation of the With bone in: Annexes to the Commission regulations Other: Other'. referred to below, what meaning is to be given to the descriptions of poultrymeat Tariff products given at points (a) and (b) heading: 0207.41.71.900. taken from the specified tariff headings Regulation: (EEC) No 3846/87. used for the purposes of export refunds in the poultrymeat sector?

2.2 Under which of the tariff headings need to be reformulated. To answer Ques­ referred to at point 2.1(a) or (b) or 1.1(c) tions 1.1 and 2.1 would signify that the should front portions of the back, with meaning and the content of the tariff head­ wings, of fowls of the species Gallus ings cited therein were to be interpreted by domesticus be classified: the Court in an entirely abstract and general way. That cannot be the function of the Court. It is, however, obvious from the con­ text of the questions referred that what the national court really seeks to know is under — in the period from 1 February 1987 to which of the tariff headings cited above a leg 1 November 1987, with back portion and a wing with back por­ tion are to be classified. If the answer to those questions depends on the size of the back portion and/or the manner in which it is cut, the national court requests the neces­ sary explanations from the Court of Justice — in the period from 1 January 1988 to on that point also. 1 September 1988?

2.3 If that question is too general, the answer depending on the manner in which the portion concerned is cut: 6. In Questions 1.2 and 2.2 of the reference, the national court seeks to know, in the case of legs with back portion, under which of the tariff headings the relevant products belonged in the periods between 1 May 1987 and 1 November 1987 and between how must the pieces be cut in order for 1 January 1988 and 1 October 1988, and, in wings with a piece of the back between them the case of wings with back portion, under to be classified under one of the tariff head­ which headings the products belonged in the ings referred to at points 2.1(a) and (b) and periods between 1 February 1987 and 1.1(c) (applicable in the abovementioned 1 November 1987 and between 1 January periods)? 1988 and 1 September 1988.

6 — Regulation No 1792/88 : 1 July 1988 — Regulation No 1151/87: 1 May 1987

7 — Regulation No 2303/87 ': 1 August 1987 — Regulation No 2882/88 : 1 October 1988

— Regulation No 2800/87: 21 September 1987 Regulation No 2303/87 is not mentioned in the questions referred. Since, however, the tariff headings in the Annex to that regula­ tion correspond with those in the Annexes to Regulations Nos 267/87, 1151/87 and — Regulation No 3205/87 : 1 November 2 2800/87, in so far as they are relevant to the 1987 present case, there is no need to consider that regulation separately. The same applies, in respect of Question 2, to Regulations Nos 2303/87 and 2800/87, which are not men­ tioned although they come within the period to which Question 2.2 refers. 3 — Regulation No 3865/87 : 1 January 1988

4 — Regulation (EEC) No 158/88 of 20 January 1988 (OJ 1988 L 18, p. 12). 1 — Regulation (EEC) No 2303/87 of 30 July 1987 (OJ 1987 5 — Regulation (EEC) No 717/88 of 18 March 1988 (OJ 1988 L 209, p. 56). L 74, p. 37). 2 — Regulation (EEC) No 3205/87 of 27 October 1987 (OJ 6 — Regulation (EEC) No 1792/83 of 24 June 1988 (OJ 1988 1987 L 306. p. 7). L 158, p. 24). 3 — Regulation (EEC) No 3865/87 of 22 December 1987 (OJ 7 — Regulation (EEC) No 2882/88 of 19 September 1988 (OJ 1987 L 363, p. 40). 1988 L 260, p. 37).

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7. On examination of the first question referred, it is clear that the national court is asking whether a leg with back portion is to be classified under one of three tariff head­ ings, which, to simplify matters, may be 9. Those customs provisions are not helpful summarized as: quarters, legs and others. in interpreting the tariff headings 'Legs (and cuts thereof)' and 'Other', but they do, as the Commission said at the hearing, contain indications as to the interpretation of the concepts 'halves' and 'quarters'. The Explan­ atory Notes to the Common Customs Tar­ 9 iff state that 'halves' are to be understood as the left and right halves of the animal 'pro­ It is common ground that none of those tar­ duced by the division of the carcase ... longi­ iff headings is defined by the regulations in tudinally along the backbone'. According to question here, namely Regulations Nos those notes, the expression 'quarters' covers 1151/87, 2800/87 and 3846/87. 'hindquarters consisting of the drumstick, leg, rear part of the back and rump, as well

8 — OJ 1975 L 282, p. 77. 9 — Before 1 January 1988, the Explanatory Notes to the CCCN (Customs Cooperation Council Nomenclature) applied. Since the introduction of the Combined Nomenclature on 8. In those circumstances, one naturally 1 January 1988, the Explanatory Notes to the Combined Nomenclature have applied. Both texts accord with each turns to the customs provisions. Under Arti­ other for the relevant period on the question at issue here.

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as forequarters consisting essentially of one consisting of the drumstick, leg' and 'rear half of the breast with the wing attached'. part of the back'.

12. Let me now turn to the question whether a leg with back portion comes into the category of 'leg' or of 'Other' for the purposes of the regulations referred to 11. Tariff heading 0207.41.71.100 of Regula­ above. In respect of the period after the tion No 3846/87, on the other hand, applies entry into force of Regulation No 3846/87, to halves or quarters 'without rumps'. That is not by chance, as the same regulation con­ tains a further tariff heading (0207.41.11.000) for 'halves or quarters'. The difference 10 — Sec the final part of paragraph 9, above. between the two tariff headings therefore lies 11 —• The problem is solved by the current regulation on the marketing of poultrymcat. Council Regulation (EEC) No in the fact that, in the one case, the rump (or 1906/90 of 26 June 1990 (OJ 1990 L 173, p. 1) laid down marketing standards for poultry. Detailed rules for imple­ a part of it) has to be present, while in the menting that regulation were laid down by Commission other case it does not. The leg with back por­ Regulation (EEC) No 1538/91 of 5 June 1991 (OJ 1991 L 143, p. 11). In Article l(2)(a) a half is defined as half of the tion in question here could therefore be clas­ carcase, obtained by a longitudinal cut in a plane along the sternum and the backbone. A quarter is a half divided by a sified under tariff heading 0207.41.71.100 of transversal cut (Article l(2)(b))- Those provisions were, Regulation No 3846/87. That assumes that however, enacted only after the period in question here and cannot therefore be taken into consideration (sec paragraph the product in question is a 'hindquarter, 13, below).

The Commission rightly pointed out at the It may be noted that Regulation No hearing that in the case of machine cutting, 3846/87 has also been correspondingly amended in the meantime. It now contains a tariff heading 0207.41.71.200 with the 13 — See Commission Regulation (EC) No 3567/93 of 21 December 1993 amending Regulation No 3846/87 (OJ 1993 L 327, p. 1). 14 — Judgment in Case 327/82 Ekro v Proditktschap voor Vee en 12 — See footnote 11, above. Vlees [1984] ECR 107, paragraph 22.

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Nevertheless, it seems to me that that argu­ ment cannot be used in the present case. It is not clear from the Commission's arguments 15. The Commission has argued that an how, in concrete terms, the delimitation is to answer to the question as to the delimitation be effected. The Commission does, it is true, of the two tariff headings may be obtained directly from the marketing regulations on poultrymeat. The common organization of the market in poultrymeat is based on Regu­ 17 — If necessary, the calculation can be made in accordance with the average ratio between their commercial value. Those lation No 2777/75, which has already been coefficients arc laid down by Commission Regulation (EEC) No 3011/79 of 20 December 1979 (OJ 1979 L 337, p. 65). 18 — Second paragraph of Article 2 of Council Regulation (EEC) No 2779/75 of 29 October 1975 laying down general rules 15 — Sec S. Scholtyssek: Geflugel (Poultry), Stuttgart, 1987, for granting export refunds on poultrymeat and criteria for p. 91 (with schematic illustrations). This work was kindly fixing the amount of such refunds (OJ 1975 L 282, p. 90). made available to me by the Lycée Technique Agricole in 19 — It may be pointed out here that the Commission's represen­ Ettelbruck. tative took the view at the hearing that the products 16 — I use that expression here (without any claim to technical exported by Voogd were intentionally cut so as to include a accuracy) to denote a leg cut off at the joints. back portion.

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18. In its judgment in the Ekro case, the Court held that the principle of the uniform application of Community law and the prin­ ciple of equality both require that a provi­ sion of Community law which makes no express reference to national law for the pur­ pose of determining its meaning and scope That interpretation has the merit of clarity 'must normally be given an independent and and may well correspond to the legal posi­ uniform interpretation throughout the Com­ 21 tion today. It cannot, however, be applied to munity'. As has been seen, however, it is the period under examination here, since, for not apparent from the context of the regula­ 20 the reasons I have already given, it has to tions and the purpose of the provisions in be assumed that a leg with a small back por­ question exactly what the anatomical defini­ tion might well have fallen under the tariff tion of a 'leg' should be. heading 'leg' in 1987/88.

17. Nor is an answer to the question at issue here to be found in the philological consid­ erations which Voogd's representative put Here, as in the Ekro case, it cannot be forward at the hearing on the question of assumed, in the absence of a provision to

20 — See paragraph 14, above. 21 — Ekro (cited in footnote 14, above) paragraph 11.

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attached to the leg. The further question therefore inevitably arises whether a cut of poultry that in the estimation of the national court is to be regarded as a leg within the meaning given above retains that quality even if it is attached to a (or, as the case may be, to an additional) piece of back.

21. That principle also applies in the present case. The national court must determine

20. In my opinion, the answer to that ques­ tion should be sought in the General Rules 24 — See footnote 14. 25 — Ekro (cited in footnote 14, above) paragraph 20. 26 — The words quoted arc taken from the 1987 version of the Common Customs Tariff, as set out in Council Regulation (EEC) No 3618/86 of 24 November 1986 (OJ 1986 L 345, 22 — Ekro (cited in footnote 14, above) paragraph 13. p. 1). 23 — Ekro (cited in footnote 14, above) paragraph 15. 27 — Ekro (cited in footnote 14, above) paragraph 24.

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whether the portion of back which remains uncertainties and the lack of clarity I have attached to the leg is so large that it deter­ described, whether Voogd can in any way be mines the essential character of the cut of accused of culpable conduct. poultry as a whole. Only if that is so must that cut of poultry be classified under the 29 tariff heading 'Other'. Although no spe­ cific percentage can be given for that pur­ pose, the national court is, in my opinion, perfectly entitled to take into account the fact that Voogd itself expressed the view (in The classification of wings with back portion its answer to a written question of the Court) that the cut in question is no longer a 'leg' if the additional back portion consti­ tutes more than 25% of the total weight.

30 — In respect of the last-mentioned tariff heading, questions 2.2 and 2.3 of the reference merely allude to point 1.1(c) of the questions referred and thereby) by implication, to Reg­ 28 — It should be reiterated here that the determination of the ulations Nos 1151/87 and 2800/87. One may, nevertheless, exact anatomical boundaries of a 'leg' for this purpose is a assume that the national court also had the corresponding matter for the national court (see paragraph 1S, above). tariff heading used by Regulation No 3846/87 in mind. 29 — Reference should also be made to General Rule for the Since it may well have been an oversight, which is in no interpretation of the Combined Nomenclature A 3c: When way surprising in view of the scope of the questions goods cannot be classified by reference to...3(b), they shall referred, I will refer in my exposition to the last-mentioned be classified under the heading which occurs last in numer­ regulation where appropriate. In any event, there is no dis­ ical order among those "which equally merit consideration. tinction in the subject-matter.

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here. It should be mentioned here also, for Cuts consisting of the two wings and a part the sake of completeness, that the current of the back, where the weight of the part of regulation is free of that defect. Article 1(2) the back does not exceed 45% of the total 31 3 of Regulation No 1538/91 gives under the weight'. 2 heading 'Poultry cuts':

Those provisions are, however, without sig­ '(i) Wing: the humerus (upper arm), radius nificance for the period in question here (spoke bone) and ulna, together with (1987 and 1988). the surrounding musculature. ... The cuts shall be made at the joints.

OPINION OF MR LENZ — CASE C-151/93

the Annex to Commission Regulation (EEC) No 1151/87 of 27 April 1987, the Annex to Regulation (EEC) No 2303/87 of 30 July 1987, and the Annex to Commission Regulation (EEC) No 2800/87 of 18 September 1987.

1.2 Such a product is, so far as the period from 1 January 1988 to 1 October 1988 is concerned, a 'quarter, without rump' within the meaning of tariff head­ ing 0207.41.71.100 of the table in the Annex to Commission Regulation (EEC) No 3846/87 of 17 December 1987 if it can be regarded as a hindquarter con­ sisting of the drumstick, leg, and rear part of the back. The determination whether the product in question corresponds to that definition is a matter for the national court.

1.3 It is for the national court to establish the precise anatomical definition, by reference to the customary methods for cutting up chicken carcases in the Member State in question, the part of the chicken which is described as 'legs and cuts of legs' in tariff heading 02.02. B. II. e) 3 of the table in the Annexes to the regulations referred to in the answer to Question 1.1 and in tariff head­ ing 0207.41.51.000 in the Annex to Regulation No 3846/87 (in the version in force until 1 October 1988).

1.4 If the national court considers that a chicken leg with (part of) the back (with­ out the rump) is not a 'quarter' within the meaning of the answer given under point 1.2 above, but is a 'leg or cut of leg' within the meaning of the answer given under point 1.3 above with a piece of back attached thereto, the product in question falls under the tariff headings referred to in point 1.3 if the pro­ portion which that back portion bears to the product as a whole, having regard to consumer habits and trade practices and to the customary methods for cutting chicken in the Member State or region concerned, does not deter­ mine the essential character of the product.

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