C-393/93
ECLI:EU:C:1994:258
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STANNER v HAUPTZOLLAMT BOCHUM
OPINION OF ADVOCATE GENERAL DARMON delivered on 16 June 1994"
Mr President, 02.01 A 111(b) applicable to meat of swine Members of the Court, other than domestic swine.
1. What are the criteria to be taken into account for the purpose of determining, in 4. Following inspections carried out at the the light of the Common Customs Tariff, request of the German authorities which, on whether swine meat is to be regarded as the basis of anatomical criteria and factors being of domestic swine or of swine other relating to colour and taste, supported the than domestic swine} conclusion that the meat in question came from animals of a primitive domestic species living in the wild, the authorities amended their initial tariff classification and reclassi fied the imported goods under tariff sub heading 02.01 A 111(a) applicable to meat of domestic swine. 2. That, in substance, is the question which has been submitted to the Court in a dispute between Walter Stanner GmbH&Co. KG ('Stanner') and the Hauptzollamt (Principal Customs Office) Bochum in respect of the tariff classification applicable to imports of meat of swine living in the wild in Bulgaria.
5. Stanner brought the matter before the Finanzgericht Düsseldorf, which has to deal, on the one hand, with the arguments of the plaintiff, which considers that it is the way of life of species which needs to be taken into consideration for the purpose of their tariff 3. Stanner imported from Bulgaria over the classification (leading to the classification of period between November 1983 and the meat at the centre of the dispute under March 1985 several consignments of swine subheading 02.01 A 111(b)) and, on the other, meat described as 'Type B wild swine' and with the position of the German authorities, declared them under tariff subheading which take the view that it is the zoological and genetic characteristics of species which are decisive (leading to the classification of * Original language: French. the meat under subheading 02.01 A 111(a)).
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OPINION OF MR DARMON — CASE C-393/93
6. Although inclined to go along with the their objective characteristics and qualities, as point of view expressed by the German defined in the relevant heading of the Com authorities, the national court has, however, mon Customs Tariff. expressed doubts because of an amendment to the explanatory notes of the Combined Nomenclature which provides as follows: 'the meat of animals of the swine species cer tified by the competent authorities in Aus tralia as meat of swine living in the wild in Australia is considered as meat of swine other than of domestic swine'. 1 10. In the case of animals, reference to a spe- cies relates to morphological or genetic char acteristics and not to a way of life or method of breeding.
7. I would first point out in that regard that subheadings 02.01 A 111(a) and 02.01 A 111(b) deal with meat obtained after the slaughter ing of the live swine referred to in subhead 11. The Court also takes the view that ings 01.03 A and 01.03 B respectively. although the explanatory notes constitute an important means of interpretation of which account must be taken, 3they cannot amend provisions of the Customs Tariff, the mean ing and scope of which are sufficiently 4 clear.
8. The choice with regard to classification is thus between domestic species of swine and other species of swine.
12. In that connection, the explanatory notes on subheading 01.03 B, in the version in force at the time of the material facts, pro vided that the subheading covered
9. According to the case-law of the Court, the decisive criterion for the customs classi 2 — See, in that connection, the judgments in Case 166/84 Tho- masdünger v Oberfinanzdirektion Frankfurt am Main [1985] fication of goods must be sought generally in ECR 3001, paragraph 13, Case 200/84 Daiber v Hauptzoll- amt Reutlingen [1985] ECR 3363, paragraph 13, Case C-177/91 Bioforce [1993] ECR 1-45, paragraph 8, and in Case C-11/93 Siemens Nixdorf [1994] ECR 1-1945, para graph 11. 3 — Judgment in Thomasdünger, cited above, paragraph 14. 1 — Uniform application of the Combined Nomenclature (CN) (Classification of goods) (92/C 34/03), OJ 1992 C 34, p . 2 4 — Judgment in Case 149/73 Witt v Hauptzollamt Hamburg- (emphasis added). Ericas [1973] ECR 1587, paragraph 3.
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'only live swine of the non-domestic species 14. Admittedly, the Commission points out such as: that the Court has ruled, with regard to headings 01.05 and 02.02 of the Common Customs Tariff relating to 'live poultry' and 'dead poultry' respectively, that
1. Wild boar ...;
'considerations depending on the qualities of taste, the selling price or the zoological char 2. Warthogs ..., river hogs or pig deer ... and the black forest pig; acteristics of the birds do not in themselves 6 play any decisive role in this classification'.
3. Babiroussa ...;
15. That case, however, concerned 'this' clas sification as 'poultry', 7that is to say animals raised, as the Court pointed out, 'in agricul tural or industrial concerns', 8their method 4. Peccary ...'. 5 of breeding, expressly referred to in the rel evant wording, being decisive in the circum stances.
13. I have two observations to make at this stage: first, the word 'only' — which, it must be noted, no longer features in the present text of the explanatory notes — calls for a restrictive interpretation of the wording of 16. That is not the case where the central that subheading; second, although it is not criterion for classification is the 'species', exhaustive, that list is confined to species that is to say a category defined by its mor which have certain specific features from the phological and/or genetic constituents. zoological point of view and does not refei to their way of life.
6 — Judgment in Case 28/70 Wilt v Haiiptzollamt Lüneburg [1970] ECR 1021, paragraph 6. 7 — Emphasis added. 5 — Emphasis added. 8 — Judgment in Case 28/70 Will, paragraph 5.
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17. The tariff classification of meat of swine of swine living in the wild in Australia can living in the wild in Australia is not, in my no doubt be explained by the fact that the opinion, of such a kind as to call in question interpretation alone of the subheadings of the views set out above. the Common Customs Tariff did not permit such a classification to be made.
18. The text of the relevant explanatory note supplements the existing notes but does not amend them. We are thus dealing with a spe cific case from which no criterion of a gen eral nature can be drawn. 20. In any event, no text of that kind has been adopted in respect of swine from Bul garia. These must for that reason be classified by reference to the general provisions of the 19. The need for a specific explanatory note Common Customs Tariff and not by analogy to determine the tariff classification of meat to Australian swine.
21. For those reasons, I propose that the Court rule as follows:
In the absence of any express provision to the contrary, only meat of swine which cannot, in the light of their morphological and/or genetic characteristics, be regarded as belonging to domestic species, leaving aside their way of life or method of breeding, can be classified under tariff subheading 02.01 A 111(b) of the Common Customs Tariff.
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