1. 

The present case has been referred to the Court by the Tariefcommissie (Administrative Court for Customs and Excise), Amsterdam, and raises the question whether a customs classification regulation adopted by the Commission continues to be valid after the regulation on the basis of which the customs classification regulation was adopted is repealed. In addition a subsidiary question is raised concerning the limits of the Commission's discretion in adopting customs classification regulations.

2.

On 8 December 1988 and 12 February 1989 Pell Nederland BV imported from Argentina a total of four consignments of residues resulting from the extraction of maize germ oil. Gebroeders Van Es Douane Agenten BV (hereinafter ‘Van Es’) carried out the import formalities in connection with the importation.

3.

The four consignments were declared under customs tariff subheading 23069091 of the Combined Nomenclature, which was introduced by Council Regulation (EEC) No 2658/87 of 23 July 1987. ( 1 ) No import duties or agricultural levies had to be paid at the time when the importation took place on goods falling within that subheading.

4.

The Customs and Excise Authorities in Rotterdam (Inspecteur der Invoerrechten en Accijnzen) carried out a check on the four consignments and found that they consisted of maize residues resulting from the extraction of oil and not containing ingredients which were not obtained from maize with — calculated by weight on the dry product — a fat content of less than 3% by weight, a protein content of 11.5% or more and a starch content of over 45%. As a result of the finding as to starch content — between 46.6% and 49.5% for the four consignments — the authorities decided that the goods should be classified instead under tariff subheading 23021090. The requirement regarding the content of residues resulting from the extraction of maize germ oil, to which importance was thus being attached, was to be found in Regulation (EEC) No 482/74 of the Commission of 27 February 1974. ( 2 )

For goods falling within subheading 23021090, an agricultural levy of HFL 332.13 per 1000 kg net weight applied to the consignment declared on 8 December 1988 and a levy of HFL 307.23 per 1000 kg net weight applied to the consignments declared on 12 February 1989. Accordingly an agricultural levy of HFL 1197831 in total was demanded in respect of the four consignments. Van Es explained to the Court that that levy exceeded the value of the goods.

5.

An objection lodged with the Customs and Excise Authorities against that decision was dismissed. An appeal was brought before the Tariefcommissie, which referred two questions to the Court concerning Regulation No 482/74.

6.

The Common Customs Tariff Nomenclature (‘the CCT Nomenclature’) was introduced by Council Regulation (EEC) No 950/68 of 28 June 1968 ( 3 ) and applied until 1 January 1988. Chapter 23 of the CCT Nomenclature concerns ‘Residues and waste from the food industries; prepared animal fodder’. Tariff heading 23.04 of that chapter is worded as follows:

7.

On 16 January 1969 the Council adopted Regulation (EEC) No 97/69 which, in order to ensure uniform application of the Common Customs Tariff in all Member States, empowered the Commission to issue so-called customs classification regulations to ‘specify the content of the headings or subheadings of the Common Customs Tariff without, however, amending the text thereof’. ( 4 ) The customs chssification regulation contested in this case — Regulation No 482/74 — was adopted on the basis of that regulation. Article 1 of Regulation No 482/74 provides:

‘Residues resulting from the extraction, by solvents or by compression, of maize germ oil shall fall within subheading No 23.04 B of the Common Customs Tariff only where they contain the following ingredients in the quantities specified, calculated by weight on the dry product.

8.

The Combined Nomenclature was introduced by Council Regulation No 2658/87 with effect from 1 January 1988. That regulation repealed Regulation No 950/68 on the Common Customs Tariff and Regulation No 97/69 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (see Article 16 of the regulation). Chapter 23 of the Combined Nomenclature, like Chapter 23 of the CCT Nomenclature, concerns ‘Residues and waste from the food industries; prepared animal fodder’. Subheading 23069091 of that chapter, under which the consignments involved in this case were declared, is worded as follows:

Subheading 23021090 of the same chapter, under which the consignments of goods in question were classified after checks were undertaken, is worded as follows:

‘2302 Bran, sharps and other residues, whether or not in the form of pellets derived from the sifting, milling or other working of cereals or of leguminous plants:

9.

Article 15(1) in Regulation No 2658/87 lays down rules regarding the transition from the old to the new nomenclature and is worded as follows:

‘The codes and the descriptions of goods established on the basis of the combined nomenclature shall replace those established on the basis of the nomenclatures of the Common Customs Tariff and the Nimexe, without prejudice to international agreements concluded by the Community before the entry into force of this Regulation, and to acts taken in implementation thereof, which refer to the said nomenclatures.

Community acts which include the tariff or statistical nomenclature shall be amended accordingly by the Commission.’

10.

The Commission has adopted three regulations with reference to Article 15 of Regulation No 2658/87, namely Regulation (EEC) No 646/89 of 14 March 1989, ( 5 ) Regulation (EEC) No 2723/90 of 24 September 1990 ( 6 ) and Regulation (EEC) No 2080/91 of 16 July 1991. ( 7 ) Those regulations amend a number of the customs classification regulations which the Commission had adopted on the basis of Regulation No 97/69, so that the references therein to the codes based on the CCT nomenclature are replaced by references to the corresponding codes based on the Combined Nomenclature.

11.

Article 9(1 )(a) of Regulation No 2658/87 constitutes a basis for the adoption of regulations concerning the tariff classification of goods in the Combined Nomenclature corresponding to the basis which, with regard to the CCT nomenclature, was laid down in repealed Regulation No 97/69. The Commission adopted, by reference to Article 9, Regulation No 439/91 of 25 February 1991, ( 8 ) which repeals a number of the regulations adopted by the Commission on the basis of Regulation No 97/69. ( 9 )

12.

Regulation No 482/74 on the classification of goods within subheading No 23.04 B of the Common Customs Tariff is not mentioned in any of those regulations and has thus neither been expressly amended nor expressly repealed since the introduction of the Combined Nomenclature.

13.

The first question submitted by the national court is worded as follows:

‘Is Regulation No 482/74 still in force with regard to the four declarations for importation at issue, notwithstanding the provisions of Article 16 of the current Common Customs Tariff Regulation?’

14.

The answer to that question requires chiefly that a position be taken on three issues: first, whether Regulation No 482/74 has lapsed because the regulation on the basis of which it was adopted has been repealed; second, whether Regulation No 482/74 has lapsed because it has not been expressly adjusted to the Combined Nomenclature in accordance with Article 15 of the new nomenclature regulation; third, whether Regulation No 482/74 has lapsed because, in the light of the other enactments of the Commission, it would be contrary to the principle of legal certainty to allow it to be applied.

15.

As far as the first of those three sub-questions is concerned, Van Es claims that a regulation lapses when the legal measure on which it was based is repealed, unless the regulation is given a new legal basis which, in its view, was not the case with regard to Regulation No 482/74. It draws attention to the fact that, in its order for reference, the Tariefcommissie expressed the same view. The Commission claims that the repeal of Regulation No 97/69 does not mean that regulations issued on the basis thereof automatically lapse and refers to the principle tempus regit actum.

16.

The Court of Justice has, in its case-law, laid down the legal basis on which this question is to be answered. It appears from the judgment in Case C-315/88 Bagli Pennacchiotti ( 10 ) that under Community law there is no general principle that a legal measure automatically lapses in a situation in which the legal basis is repealed and there is no express provision maintaining the measure in question in force. ( 11 ) On the other hand it is clearly not true that every legal measure continues in force until it is expressly repealed. It follows from the Court's judgment in that case that certain conditions must be fulfilled before a regulation whose legal basis has been repealed continues to apply. In its judgment the Court attached weight to the fact that the earlier legal basis provision had been superseded by a new legal basis provision with an identical content, that the disputed regulation was issued in accordance with a procedure identical to that provided for in the later basic regulation and that there was no discernible contradiction between the regulation and subsequent provisions of Community law. On that basis, the Court concluded that the earlier regulation should be deemed to apply and was to be regarded as the enactment embodying the detailed rules for implementation of the later legal basis provision until such time as a new enactment was adopted.

17.

Van Es advances two grounds on which the Pennacchiotti case should be distinguished from the present case. First, the Pennacchiotti case concerned a basic regulation which could not be applied unless implementing regulations were adopted. If the earlier implementing regulation had become invalid, a legal void would have resulted which would have had serious consequences for a large number of wine producers in the Community. The present case, however, concerns solely the definition of the content of a tariff heading. Secondly, the Pennacchiotti case concerned implementing provisions on the basis of which Community citizens were granted significant rights. The present case, however, involves Community citizens being subjected to significant financial expense. Van Es thus claims that the Court's acceptance that the implementing provisions in question continued to apply — apart from the circumstances expressly mentioned by the Court — was in addition contingent on the existence of the circumstances singled out by the company.

18.

That cannot be correct. In my view it must be assumed that in the Pennacchiotti case the Court was laying down a general principle that regulations whose legal basis has been repealed continue to apply when a new enactment is adopted that supersedes the repealed legal basis enactment and contains a legal basis provision corresponding to the repealed provision and, in addition, on the basis of an overall assessment of the new rules, it can be assumed that the earlier regulations are also to supplement or set out the details of the new rules in the same way as they did for the repealed rules.

In the Pennacchiotti case there is nothing to suggest that the Court attached decisive weight to the circumstances mentioned by Van Es and it will also be noticed that it could create difficult questions of delimitation if those circumstances were to apply as conditions governing the question whether regulations whose legal basis has been repealed may continue to apply.

19.

No other arguments have been advanced in the case against maintaining the legal position which results from the Court's judgment in the Pennacchiotti case. It can, moreover, be assumed that that legal position leads to results which — although the question is resolved in different ways in the Member States — correspond to those which ensue from the legal position in the majority of the Member States. ( 12 )

20.

There can, furthermore, be no doubt that the legal position described is that which was assumed to be the case by the Council when it adopted the new nomenclature regulation. The Community legislature cannot have intended that the large number of customs classification regulations adopted on the basis of Regulation No 97/69 should lapse. The legislature must have assumed that in principle they would continue in force, even without an express provision to that effect. That is supported by the fact that the Commission subsequently adopted enactments which, on the basis of Article 15 of the new nomenclature regulation, technically adapt earlier customs classification regulations to the Combined Nomenclature.

21.

The Commission considers the provision in Article 15 that the new Combined Nomenclature codes and descriptions of goods are to take the place of the earlier CCT codes and descriptions of goods as express confirmation that the Council had decided to maintain in force the earlier customs classification regulations. That view cannot, however, be correct. It is clear that Article 15 does not specially concern customs classification regulations and the provision — even if it were assumed that the earlier customs classification regulations lapsed when the new nomenclature regulation was issued — would have a comprehensive scope of application, namely the numerous regulations, in particular in the sphere of agriculture, which refer to the now repealed CCT nomenclature, and whose continued existence was not in doubt because the new nomenclature regulation does not repeal their legal basis. ( 13 )

22.

Therefore even though, in my view, the most appropriate way to draft Community legislation in situations such as the present is to make clear in an express provision whether earlier enactments are to continue in force, in the light of the foregoing it must be assumed that earlier enactments also continue to apply without any express provision to that effect.

23.

Accordingly it must be decided whether the conditions governing whether regulations continue to apply are satisfied as far as Regulation No 482/74 is concerned.

24.

It is evident that the circumstances to which the Court attached weight in Pennacchiotti are also present in this case. Article 9(1 )(a) of the new nomenclature regulation provides the legal basis for the adoption of regulations concerning the tariff classification of goods in the Combined Nomenclature and thus has a content essentially identical to Article 3(1) of Regulation No 97/69 which afforded the basis for Regulation No 482/74. Regulation No 482/74 was adopted after a procedure (see Article 3(2) of Regulation No 97/69) identical to that laid down in Article 10 of the new nomenclature regulation referred to in Article 9. Finally, no contradiction can be discerned between the provisions in Regulation No 482/74 and the subsequent Community provisions.

25.

In the present connection it is not enough that the relevant legal basis provisions fundamentally have an identical content. It must, as the logical consequence of the view of principle expressed by the Court in the Pennacckiotti judgment, be a condition of the continued validity of customs classification regulations that the relevant tariff headings should basically be identical in content also.

26.

Van Es claims that there is an essential difference between the earlier CCT subheading and the present Combined Nomenclature subheading, mainly lying in the fact that the new version is more specific. Van Es points out, furthermore, that the Combined Nomenclature is in general more detailed and contains more headings and subheadings than the CCT Nomenclature.

The Commission agrees that the Combined Nomenclature is more complex than the CCT Nomenclature inasmuch as there are more subdivisions, but contends that the provisions in the new regulation are essentially identical to the provisions in the earlier regulation and often simply reproduce them verbatim. The Commission adds that there is no difference between the terms of subheading 23.04 B of the CCT Nomenclature and subheading 23069091 of the Combined Nomenclature as far as residues resulting from the extraction of maize germ oil are concerned.

27.

The content of the two tariff subheadings is, in my view, basically the same. Subheading 23.04 B of the CCT Nomenclature and subheading 23069091 of the Combined Nomenclature are both to be found in Chapter 23 of the respective nomenclature and those chapters have identical titles. Both subheadings fall under tariff headings which cover oilcake and other residues resulting from the extraction of vegetable oils; it is simply a question of the goods description in heading 2306 containing further details. Both subheadings concern goods ‘other’ than ‘oilcake and other residues resulting from the extraction of olive oil’; in subheading 23069091 a further subdivision has merely been added whereby a separate subheading for such other goods ‘of germ of maize’ has been added. The differences indicated are not, in my opinion, significant. There is no difficulty in finding that subheading 23.04 B of the CCT Nomenclature has been superseded by subheading 23069091 of the Combined Nomenclature as far as residues resulting from the extraction of maize germ oil are concerned.

28.

Regulation No 482/74 refers to subheading 23.04 B of the CCT Nomenclature and continued application of the regulation after the introduction of the Combined Nomenclature therefore presupposes that that reference is replaced expressly or by implication by a reference to subheading 23069091 of the Combined Nomenclature. As already stated, there was no express adjustment of Regulation No 482/74 in accordance with Article 15 of the new nomenclature regulation. Consideration must therefore be given to the question whether the conditions governing when a regulation continues to apply can be regarded as satisfied when it is necessary by implication to adjust the text of the regulation to the new rules.

29.

Van Es claims that the lack of express adjustment of Regulation No 482/74 to the Combined Nomenclature means that the object of the regulation has been removed and it has become redundant since no heading is to be found in the Combined Nomenclature with the code mentioned in the regulation. Van Es denies that customs classification regulations can be regarded as adjusted by implication to the new Combined Nomenclature, and claims that a legal position according to which regulations can be applied even if they have not been expressly adjusted to the new Combined Nomenclature would be contrary to the principle of legal certainty and good legislative practice. ( 14 )

30.

It is possible that it would give rise to a problem of legal certainty if Community citizens had to find out for themselves whether the references in Community enactments to the CCT codes should be regarded as replaced by references to the corresponding Combined Nomenclature codes. But the implied adjustment that it is necessary to undertake in the present connection is precisely implied only in the sense that no express amendment of Regulation No 482/74 has taken place, but not in the sense that the Community legislature has not adopted a position on the question.

As stated by the Commission, the first paragraph of Article 15(1) of the new nomenclature regulation must be interpreted as meaning that references in Community enactments to the codes and descriptions of goods established on the basis of the CCT nomenclature are replaced by operation of law by those laid down on the basis of the Combined Nomenclature. The Commission points out that Article 15 is only applicable where the transition from the old to the new nomenclature simply requires merely technical adjustment. If, however, it is necessary to make amendments regarding content, the old customs classification regulations must be regarded as having lapsed, since such amendments require express adjustment with an appropriate legal basis.

Application of Regulation No 482/74 under the new nomenclature does simply require merely technical adjustment and Article 15 therefore provides the necessary legal basis for regarding the reference to the earlier CCT code as replaced by the new Combined Nomenclature code.

31.

Van Es claims that the second paragraph of Article 15(1) lays down an actual duty on the Commission to adjust Community enactments to the Combined Nomenclature and that from that provision it therefore appears that earlier customs classification regulations are only valid if they have been expressly adjusted to the Combined Nomenclature and given a new legal basis.

Against that, the Commission contends that Article 15 gives it a basis, for the sake of clarity and expediency, to carry out a technical adjustment of Community enactments to the Combined Nomenclature when that proves necessary. ( 15 ) Article 15 should not, however, be interpreted to the effect that it is a requirement in order for a regulation to continue in force that it be expressly maintained in force by the Commission.

32.

In my opinion Van Es is right in its argument that Article 15 obliges the Commission to carry out technical adjustment to the Community enactments which have retained material significance in the transition to the Combined Nomenclature, the content of which need not be amended. I do not think, however, that the provision can be interpreted to the effect that a failure to make technical adjustments means that the regulations affected should be regarded as having lapsed. Such an interpretation would in fact deprive the first paragraph of Article 15(1) of any real content.

33.

In the light of the foregoing, it may be concluded that the requirements for Regulation No 482/74 continuing in force under the new nomenclature regulation must be regarded as satisfied.

34.

In its judgment in the Pennacchiotti case the Court specified, as stated, that the contested implementing regulation was only applicable until new provisions pursuant to the legal basis enactment in question were adopted. It cannot be excluded that Regulation No 482/74, as Van Es maintains, was superseded by Commission Regulation (EEC) No 315/91 of 7 February 1991, ( 16 ) which was adopted on the basis of Article 9 of the new nomenclature regulation and amends that regulation by adding an additional note to Chapter 23 concerning subheading 23069091. The provision is worded as follows:

‘Subheading 23069091 includes only residues from the extraction of oil from the germs of maize, excluding products containing components from parts of maize grains which have been added after processing and not been subjected to the oil extraction process.’ ( 17 )

35.

Clarification of that question of interpretation is, however, not necessary for the solution of the present case. The factual circumstances relevant to the main proceedings occurred before Regulation No 315/91 was adopted. On that ground alone the regulation cannot therefore be accorded great significance in this case.

36.

Lastly, a position must be taken on Van Es's argument that the enactments of the Council and Commission in connection with the transition to the new nomenclature in the circumstances gave rise to such legal uncertainty with regard to whether Regulation No 482/74 continued in force that on that ground the regulation could not apply after 1 January 1988.

Van Es refers mainly to the fact that the Commission's use of the legal basis under the new nomenclature regulation to make technical adjustments made it unclear whether Regulation No 482/74 continued in force.

37.

That view is not completely without foundation.

38.

The fifth recital in the preamble to Regulation No 646/89 adjusting a number of customs classification regulations adopted on the basis of the CCT nomenclature to the Combined Nomenclature states:

‘for the sake of clarity and simplification those of the said Regulations which are still of practical significance and in which the transposition will involve no changes of substance should be amended accordingly.’

The fifth recital in the preamble to the corresponding regulations, Regulations Nos 2723/90 and 2080/91, states:

‘Whereas those Regulations which are still of practical significance and whose transposition will involve no changes of substance should be amended accordingly and so to complement an initial series of Regulations ( 18 ) which has been adopted by Commission Regulation (EEC) No 646/89 [and in Regulation 2080/91 is added “and Regulation (EEC) No 2723/90”].’

39.

Since the Commission thus expressly mentions that it intends to amend the codes in the customs classification regulations which, after the transition to the Combined Nomenclature, are still of practical significance, and in the two last-mentioned regulations intended to complement the initial amendments, there is some basis for wondering whether the failure to amend the CCT code in Regulation No 482/74 means that the regulation has become redundant.

40.

It cannot be said that any doubt is adequately removed merely because Regulation No 482/74 is not mentioned in Regulation No 439/91, which repeals a number of the earlier customs classification regulations and which, in the third recital in its preamble, states that it is formally repealing regulations which after the transition to the Combined Nomenclature have become redundant. ( 19 )

41.

Nor is any doubt diminished by the adoption of Regulation No 315/91 which, as pointed out by Van Es, does not refer to Regulation No 482/74, despite the fact that the two regulations concern the same tariff heading and in part have the same objective. ( 20 ) That could well give the impression that the Commission itself considers Regulation No 482/74 to have lapsed.

42.

The Directory of Community legislation in force issued half-yearly by the Commission — in which Regulation No 482/74 continues to be listed — affords Community nationals and undertakings assistance in resolving possible doubts of such a nature. It is evident, however, that the existence of the directory cannot exempt the Community legislature from framing its enactments so as to ensure a clear legal position.

It is not obvious that the legislature has fully lived up to that requirement in connection with all the customs classification regulations which were issued before the adoption of the new nomenclature regulation. ( 21 )

43.

There is, however, no reason in connection with the present case to adopt a position on the possible consequences of the legal uncertainty which must have arisen as a result of the Commission's application of the legal basis under the new nomenclature regulation to make technical adjustments to earlier customs classification regulations. It is obvious that the imports which are the subject of the main proceedings took place at a time when the enactments referred to were not yet adopted and when possible legal uncertainty had therefore not yet arisen.

44.

It might, moreover, be worth mentioning that it appears from the file that from the beginning of the 1980s the importer had been carrying out similar imports and there is no reason to believe that, unlike other prudent operators in the area, the importer was unaware of the existence of the customs classification regulation that was of practical significance. On the contrary, the evidence in the case shows that the importer was clear as to the problems that the requirement of a starch content of less than 45% could create precisely for his imports and, moreover, had discussed them with representatives of the Commission. Against that background it is hard to believe that the importer simply assumed that Regulation No 482/74 had lapsed in connection with the adoption of the new nomenclature regulation. The natural course would have been for the importer to seek clarification on the point from the Commission.

45.

In the light of the foregoing, I would suggest that the Court hold that Regulation No 482/74 was still in force at the time material to this case as the regulation which defined the content of subheading 23069091 of the Combined Nomenclature.

46.

The second question raised by the court of reference is worded as follows:

‘In the event that the first question is answered in the affirmative, may Regulation No 482/74 be lawfully applied for the purposes of the classification of goods under subheading 23069091 of the current Common Customs Tariff even though the subheading itself contains no criterion regarding the starch content of residues resulting from the extraction of oil?’

47.

Van Es claims that in laying down the maximum starch content at less than 45% as the criterion distinguishing solid residues resulting from the extraction of maize germ oil which are to be classified under subheading 23069091 from other residues of maize which are to be classified under the residual subheading 230310, the Commission did not confine itself to defining the content of subheading 23069091 but amended its content. That criterion results in excluding products from classification under subheading 23069091 even if they have the objective characteristics and properties which, according to the text of the subheading, are determinant for classification thereunder. On that basis, and with reference to the case-law of the Court, Van Es claims that the Commission has exceeded the limits of its discretionary powers and that in consequence Regulation No 482/74 is invalid.

48.

In support of the above, Van Es refers to the judgment of the Court in Case C-265/89 Vismans Nederland. ( 22 ) That case bears a significant resemblance to the present case. The Court prefaced its judgment by stating that:

49.

The case concerned a customs classification regulation that, as the criterion for distinguishing between products which were to be classified as sugar beet and products which were to be classified as beet pulp and other waste of sugar manufacture, laid down a limit of sucrose content — calculated in percentage weight by reference to dry matter — of 10%. It was not contested in the case that the sucrose content was a relevant criterion for the distinction between the two tariff headings. The applicant claimed, however, that the limit was set too low.

The Court held that the terms ‘residues’ and ‘waste’ referred to substances which were the final result of an extraction process, and went on to state that whilst it was technically possible to extract all the sugar from sugar beet, it was not generally economically possible to reduce the sucrose content below 6 or 7% and, in unfavourable conditions, 10 or 12% by weight. It was, moreover, common ground that as technology then stood the sugar industry did not in practice use products having a sucrose content of between 10 and 12% for further extraction. On that basis the Court held that products having a sucrose content of between 10 and 12% were the final result of sugar extraction and should therefore be classified as beet pulp, and that in laying down a limit which excluded those products from classification under the tariff heading for sugar beet the Commission had amended it and thereby exceeded the limits of its discretion.

50.

It must be admitted that Van Es is right in its claim that a determining factor in this case is that in adopting customs classification regulations the Commission, according to the case-law of the Court, is entided only to define, not to amend, the content of tariff headings. ( 25 ) In assessing whether the Commission has kept within the limits of its discretion the starting point must therefore be the objective characteristics and properties which, according to the text of the tariff heading in question, are decisive for classification thereunder. If it can be found that the requirements laid down by the Commission for classification under that heading result in excluding products which have those objective characteristics and properties, in adopting the customs classification regulation in question the Commission will have amended the content of the heading in question and therefore exceeded the limits of its discretion.

51.

This calls for examination of the question of which objective characteristics and properties are determinant for classification under subheading 23069091 on its wording.

52.

It is not contested that when ‘residues’ are involved, it is possible to define in two ways the products that can be classified under subheading 2302 90 91.

First, there can be products which are the final result of an extraction process. Only products which have undergone a complete maize germ oil extraction process in the sense that they are products from which it is no longer possible to extract oil in an economically rational way can be described as residues. That was held to be the case by the Court in its judgment in Henck ( 26 ) and is repeated by the Commission in the third recital in the preamble to Regulation No 482/74.

Secondly they should be genuine residues as opposed to products containing ingredients (except in negligible quantities), which have undergone no oil-extraction process. The products must therefore not contain ingredients which were already to be found in the basic product but did not undergo any change in the course of the extraction process and they must not contain ingredients which have been subsequently added to the residues themselves. That is also stated by the Commission in the third recital in the preamble to Regulation No 482/74 and has been stated by the Court, inter alia in its judgment in Krohn v Hauptzollamt Hamburg-Jonas. ( 27 )

53.

It is common ground that the requirements laid down in Regulation No 482/74 on minimum and maximum starch, oil and protein contents are aimed at determining whether the products have the said objective characteristics and properties. That is expressly apparent from the sixth recital, where it is stated that the content requirements in question are necessary ‘for the purpose of distinguishing residues resulting from the extraction of maize germ oil, falling within subheading No 23.04 B, from products which have not undergone a complete maize germ oil extraction process and from products containing, in addition to the actual residues, ingredients which have undergone no oil extraction process.’

54.

It is also common ground that the Commission thereby chose relevant criteria which are easy to verify when assessing whether the products have the desired objective characteristics and properties.

Van Es claims only that the limit for the maximum starch content has been set too low. In order to assess the significance of the submissions made by the company it is necessary to understand the function of that criterion.

55.

The requirements concerning the maximum content of oil and the minimum content of protein are undoubtedly laid down in order to determine whether the products in question have undergone a complete maize germ oil extraction process and the requirements are appropriate for that purpose. However, Van Es is right that the requirement concerning maximum starch content is not appropriate for determining whether the products have that objective characteristic. On the contrary, it may be precisely the case that the more oil extracted from the raw material the greater will be the starch content in the residual product. If a requirement as to starch content were to be framed so as to ensure that the products had undergone an adequate extraction process, it would in other words be a minimum content requirement.

A requirement as to maximum starch content may instead be intended to determine whether products are genuine residues as opposed to products containing ingredients which have undergone no oil extraction process. A possible way of getting round the rules would be for cheap starch products to be added to the residues in question which would reduce the product's feedstuff value.

56.

It is not disputed in this case that the starch content in the residues can be very different according to the extraction methods and raw materials used.

It will therefore be understood that the limit on maximum starch content is only appropriate for determining whether the product contains ingredients which have undergone no oil extraction process if that limit is set so high that it is impossible — regardless of the methods and raw materials used — to obtain by a maximally effective oil extraction process a residue whose starch content exceeds that limit.

If the limit on the maximum starch content is, however, set at a level which means that residues which are the result of a bona fide oil extraction process are nevertheless excluded from classification under the subheading for residues from the extraction of maize germ oil, it must be held that in adopting Regulation No 482/74 the Commission has amended the content of that subheading and the regulation must in consequence be declared invalid as far as that criterion is concerned.

57.

Van Es claims that the residues at issue — whose starch content exceeds the limit value of 45% by only a few percentage points — are bona fide residues which have undergone a complete oil extraction process and to which no ingredients have been added which have undergone no oil extraction process.

Van Es mentions that in the main proceedings it proved that they are products from which it is no longer possible to extract oil in an economically rational way and that fact was not disputed by the defendant customs authority. Van Es further explains that the defendant customs authority claimed that other ingredients had been added to the products but that that claim was dismissed by the Tariefcommissie because there was no evidence to support it. Van Es points out that in the order for reference the Tariefcommissie states that ‘it must be accepted as an established fact that residues were imported which result from the extraction of maize germ oil and to which no other components have been added.’

58.

Van Es has further explained that the imported consignments originate from a factory in Argentina which is specially equipped for and concentrates its activities on the extraction of maize germ oil. Since 1982 Pell Nederland BV has been the sole importer into Europe of residues originating from that factory. The Argentinian factory employs extraction methods and uses raw materials which are different from those used in particular in the United States. Those differences mean that the residues from extraction carried out in the Argentinian factory have a different chemical composition, including starch content, from the residues which result from extraction carried out in American factories. Van Es explains that the starch content of residues originating from American factories is normally around 30%, whereas the starch content in residues originating from the Argentinian factory is normally around 42%.

59.

Van Es further explained that the background to the adoption of Regulation No 482/74 was that in the early 1970s problems arose in connection with the customs classification of maize byproducts originating from the United States. The content requirement in the regulation was therefore laid down on the basis of the technology available at that time and in the light of the character of the residues that originated from the United States. According to Van Es, the content requirements laid down are now no longer relevant as far as residues originating from Argentina are concerned, since these will generally have a starch content which is close to the critical limit. Van Es explains that in the 1980s Pell Nederland BV was in contact with representatives of the Commission on the subject of the importation of residues from Argentina and that they insisted that there was no reason to worry about the residues in question since they were after all genuine residues from the extraction of maize germ oil.

60.

None of Van Es's comments has been disputed by the Commission. The Commission has confined itself to stating that the content requirements laid down were the result of negotiations in the Committee on Common Customs Tariff Nomenclature; ( 28 ) they were adopted after a unanimous opinion on the part of the Committee and were based on the manufacturing conditions which applied to the most important suppliers of the products in question at the time when the regulation was adopted. The Commission has explained that the economic groups concerned have suggested to the Nomenclature Committee that Regulation No 482/74 should be amended in the light of technical developments and that within the Committee there is agreement that the maximum starch content is set too low in relation to the present circumstances. The Commission is in the process of examining whether there is reason to amend that maximum content. The Commission concludes that the maximum starch content laid down should be applied until it has been formally amended. ( 29 )

61.

The points made by Van Es suffice, in my opinion, to show that bona fide extraction of maize germ oil can result in residues which have a starch content of over 45%. Such residues which have undergone a complete oil extraction process and do not contain ingredients which have undergone no oil extraction process should be classified under subheading 23069091. It must be stressed that it is not sufficient, in order for a classification criterion laid down by the Commission to be regarded as valid, that for many years it has served its purposes and in most cases can still be expected to do so. The crucial point is that it can lead to products being precluded from classification under a particular heading even if they have the objective characteristics and properties that, according to the text of that heading, are determinant for classification thereunder.

It must, therefore, be concluded that in laying down in Regulation No 482/74 a requirement of a maximum starch content of 45%, the Commission has amended the tariff subheading for the residues from the extraction of maize germ oil, that is to say former subheading 23.04 B in the CCT Nomenclature, now subheading 23069091 in the Combined Nomenclature, in so far as that requirement leads to the exclusion of products which have undergone a complete oil extraction process and do not contain any ingredients which have undergone no oil extraction process. The Commission has thereby exceeded the limits of its discretion and Regulation No 482/74 should, in consequence, be declared invalid on that point.

62.

Nothing has been advanced in the case before the Court to cast doubt on the fact that the disputed four consignments forming the subject-matter of the case before the Tariefcommissie are residues from the extraction of maize germ oil to which no form of foreign matter has subsequently been added and are covered by the wording of subheading 23069091 of the Combined Nomenclature provided the requirement of a maximum starch content of less than 45% is not applicable.

Consideration might perhaps be given to the question whether the Tariefcommissie had sufficient basis for deciding that the disputed residues did not subsequently have any form of foreign matter added to them. It appears in fact from the order for reference that the evidence produced showed that the products did not contain ingredients of any sort of grain other than maize which, it would seem, does not exclude the possibility that the products had parts of maize plants or parts of maize grains added to them which had undergone no oil extraction process. Such added matter would be incompatible with classification under the heading for residues from the extraction of maize germ oil. ( 30 ) In addition, as stated above, not only subsequently added matter but also the fact that the products contain ingredients which were already to be found in the basic product but did not undergo a change in the course of the extraction process prevent classification under that heading.

It is for the Tariefcommissie to decide whether — regardless of the starch content found — it has been sufficiently proved that the residues in issue do not contain parts of the maize plant or grain which have undergone no oil extraction process and were either to be found in the basic product or subsequently added to the genuine residues.

63.

In the light of the foregoing, I would suggest that the Court answer the questions referred to it as follows: