Avis juridique important

Judgment of the Court (Fourth Chamber) of 9 August 1994. - Walter Stanner GmbH & Co. KG v Hauptzollamt Bochum. - Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. - Common Customs Tariff - Swine meat imported from Bulgaria. - Case C-393/93. European Court reports 1994 Page I-04011

Summary Parties Grounds Decision on costs Operative part

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Common Customs Tariff ° Tariff headings ° Meat of animals living in the wild but which, in the light of their zoological and genetic characteristics, are domestic swine ° Classification under subheading 02.01 A III(b) ° Excluded

The Common Customs Tariff must be interpreted as meaning that, with regard to imports from Bulgaria effected between 1983 and 1985, meat of animals which, in the light of their zoological and genetic characteristics, are domestic swine does not come under tariff subheading 02.01 A III(b), as defined in Regulation No 3000/82 amending Regulation No 950/68 on the Common Customs Tariff (meat of swine other than domestic swine), even if that meat has been certified by the competent authorities in Bulgaria as being of swine living in the wild in Bulgaria (Type B wild swine).

In view of the wording of the different subheadings under which swine meat may be classified, from which it follows that the classification criterion for distinguishing the meat of domestic swine from the meat of swine other than domestic swine lies in the notion of species, which identifies a category defined on the basis of objective zoological and genetic criteria and not on the basis of the specific method by which the animals are bred, subheading 02.01 A III(b) can cover only meat of species of swine which are distinguishable from domestic species of swine by reason of their zoological and genetic characteristics.

This interpretation cannot be gainsaid by an amendment made in 1992 to the explanatory notes on the Combined Nomenclature, according to which the meat of animals of the swine species certified by the competent authorities in Australia as meat of swine living in the wild in Australia is considered as meat of swine other than of domestic swine, since that note was adopted several years after the imports in question for the application of a different nomenclature and concerns the special case of Australia, and since no text of that kind has been adopted in respect of meat imported from Bulgaria.

In Case C-393/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht Duesseldorf (Federal Republic of Germany) for a preliminary ruling in the proceedings pending before that court between

Walter Stanner GmbH & Co. KG

and

Hauptzollamt Bochum

on the interpretation of subheading 02.01 A III(b) of the Common Customs Tariff, as defined in Council Regulation (EEC) No 3000/82 of 19 October 1982 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (OJ 1982 L 318, p. 1),

THE COURT (Fourth Chamber),

composed of: M. Diez de Velasco (Rapporteur), President of the Chamber, C.N. Kakouris and P.J.G. Kapteyn, Judges,

Advocate General: M. Darmon,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° the French Government, by C. de Salins, Deputy Director of the Legal Department of the Ministry of Foreign Affairs, and J.-L. Falconi, Principal Assistant in the Legal Department of the said Ministry, acting as Agents,

° the Commission of the European Communities, by F. de Sousa Fialho, of its Legal Service, assisted by H.-J. Rabe, of the Hamburg and Brussels Bars, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiff, represented by A. Desing, Rechtsanwalt, Fuessen, the French Government, represented by N. Eybalin, Foreign Affairs Assistant in the Legal Department of the Ministry of Foreign Affairs, acting as Agent, and the Commission at the hearing on 5 May 1994,

after hearing the Opinion of the Advocate General at the sitting on 16 June 1994,

gives the following

Judgment

1 By order of 12 August 1993, received at the Court on 27 August 1993, the Finanzgericht (Finance Court) Duesseldorf referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of subheading 02.01 A III(b) of the Common Customs Tariff, as defined in Council Regulation (EEC) No 3000/82 of 19 October 1982 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (OJ 1982 L 318, p. 1).

2 That question was raised in proceedings between Walter Stanner GmbH & Co. KG ("Stanner") and the Hauptzollamt (Principal Customs Office) Bochum concerning the tariff classification of several consignments of swine meat imported from Bulgaria.

3 According to the documents before the Court, Stanner, which operates a game import and export business in Fuessen, imported from Bulgaria over the period from 21 November 1983 to 8 March 1985 several consignments of swine meat described as "Type B wild swine" and declared them under tariff subheading 02.01 A III(b) applicable to meat of swine other than domestic swine. The customs posts cleared the consignments in question in accordance with the declaration and charged customs duty in addition to import sales tax.

5 Stanner disputed that classification in proceedings before the Finanzgericht Duesseldorf, arguing that the meat in question was derived from wild swine or, at least, was not derived from a domestic species, on the ground that the swine in question had been living since time immemorial in the wild in north-eastern Bulgaria. For that reason, it argued, the meat was derived from a species of swine other than domestic swine, within the meaning of subheading 02.01 A III(b).

6 In contrast, the Hauptzollamt Bochum takes the view that only swine of a species which is different from the zoological point of view can be treated as "other" than domestic swine within the meaning of subheading 02.01 A III(b), with the result that the meat in question must be classified under subheading 02.01 A III(a) as meat of domestic swine.

7 In its order for reference, the national court takes the view that the distinction between meat of domestic swine and meat of swine other than domestic swine must be established according to objective criteria derived from the zoological and genetic characteristics of the species and not according to criteria such as the method of breeding.

8 It points out that in this case the "Type B wild swine" imported by the plaintiff from Bulgaria have zoological characteristics typical of domestic swine and ought for that reason to have been classified under subheading 02.01 A III(a). The Finanzgericht Duesseldorf, however, is in some doubt as to that classification because of a 1992 amendment to the explanatory notes relating to heading 02.03 (meat of swine, fresh, chilled or frozen) of the Combined Nomenclature. According to the relevant note, "the meat of animals of the swine species certified by the competent authorities in Australia as meat of swine living in the wild in Australia is considered as meat of swine other than of domestic swine" (OJ 1992 C 34, p. 2).

9 According to the national court, the fact that the swine meat imported by Stanner bears, in the light of the analyses carried out, a closer resemblance to genuine wild boar meat than does the meat of Australian wild swine also suggests that the meat certified by the competent authorities in Bulgaria as meat of swine living in the wild in Bulgaria is in fact meat of swine other than domestic swine.

10 On the basis of those considerations, the Finanzgericht Duesseldorf stayed the proceedings and referred the following question to the Court for a preliminary ruling:

"Is subheading 02.01 A III(b) of the Common Customs Tariff, as amended by Council Regulation (EEC) No 3000/82 of 19 October 1982 (OJ 1982 L 318, p. 1), to be interpreted as meaning that swine meat which the competent Bulgarian authorities have certified to be the meat of swine living in the wild in Bulgaria (Type B wild swine) is to be classified for tariff purposes as meat of swine other than domestic swine?"

11 By that question, the national court seeks essentially to ascertain whether the Common Customs Tariff must be interpreted as meaning that meat of animals which, in the light of their zoological and genetic characteristics, are swine and which has been certified by the competent authorities in Bulgaria as being of swine living in the wild in Bulgaria (Type B wild swine) comes under tariff subheading 02.01 A III(b).

12 It is important to note, first, that tariff subheading 02.01 A III (meat of swine) draws a distinction between "meat of domestic swine" (subheading 02.01 A III(a)) and meat of swine "other" than domestic swine (subheading 02.01 A III(b)). That distinction corresponds to the distinction made in the case of live swine under subheading 01.03, in which "domestic species" (01.03 A) are distinguished in the same way from "other" species (01.03 B).

13 Secondly, according to the explanatory notes regarding subheading 02.01 A III(b), that subheading includes only the meat of animals falling within subheading 01.03 B. In the version applying at the time of the events material to this case, the explanatory notes on subheading 01.03 B stated that that subheading covered only live swine of the non-domestic species such as wild boar, warthogs, babiroussa and peccary.

16 In this case, it follows from the wording of the tariff subheadings in question that the classification criterion for distinguishing the meat of domestic swine from the meat of swine other than domestic swine lies in the notion of species, which identifies a category defined on the basis of objective zoological and genetic criteria and not on the basis of the specific method by which the animals are bred.

17 That interpretation is corroborated by the list contained in the abovementioned explanatory notes, which, while not exhaustive, refers merely to species with certain specific zoological and genetic features and not to their way of life or method of breeding.

18 It follows that subheading 02.01 A III(b) can cover only meat of species of swine which are distinguishable from domestic species of swine by reason of their zoological and genetic characteristics.

Costs

21 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fourth Chamber),

in answer to the question referred to it by the Finanzgericht Duesseldorf, by order of 12 August 1993, hereby rules:

The Common Customs Tariff must be interpreted as meaning that meat of animals which, in the light of their zoological and genetic characteristics, are swine and which has been certified by the competent authorities in Bulgaria as being of swine living in the wild in Bulgaria (Type B wild swine) does not come under tariff subheading 02.01 A III(b), as defined in Council Regulation (EEC) No 3000/82 of 19 October 1982 amending Regulation (EEC) No 950/68 on the Common Customs Tariff.