61992J0033

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Common Customs Tariff ° Tariff headings ° Salted meat of bovine animals ° Classification under heading 0210 of the Combined Nomenclature ° Conditions ° Total salt content of 1.2% by weight, obtained by impregnating the meat with salt deeply and evenly in all its parts for the purposes of long-term preservation

Heading 0210 of the Common Customs Tariff (Combined Nomenclature) must be interpreted as meaning that meat of bovine animals may be classified under that heading as salted meat only if it has been deeply and evenly impregnated with salt in all its parts for the purposes of long-term preservation so that it has a minimum total salt content of 1.2% by weight. Meat of bovine animals to which for the purposes of preservation a quantity of salt has been added such that the total salt content measured (approximately 0.5%) amounts to more than three times the natural salt content (0.15%) may not be classified as salted under heading 0210.

In Case C-33/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof for a preliminary ruling in the proceedings pending before that court between

Gausepohl-Fleisch GmbH

and

Oberfinanzdirektion Hamburg

on the interpretation of heading 0210 "Meat and edible meat offal, salted, in brine, dried or smoked" of the Combined Nomenclature of the Common Customs Tariff,

THE COURT (First Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, R. Joliet and D.A.O. Edward, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Gausepohl-Fleisch GmbH, by Volker Schiller, Rechtsanwalt, Cologne,

° the Kingdom of Belgium, by J. Devadder, Administrative Director at the Ministry of Foreign Affairs, Foreign Trade and Development Cooperation, acting as Agent,

° the Commission of the European Communities, by Richard Wainwright, a Legal Adviser, and Arnold Ridout, a national civil servant seconded to the Legal Service of the Commission under the arrangements for exchanges with national civil servants, acting as Agents, assisted by Hans-Juergen Rabe, Rechtsanwalt, Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Gausepohl-Fleisch GmbH and the Commission of the European Communities at the hearing on 18 March 1993,

after hearing the Opinion of the Advocate General at the sitting on 31 March 1993,

gives the following

Judgment

1 By order of 22 October 1991, received at the Court on 10 February 1992, the Bundesfinanzhof (Federal Finance Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of heading 0210 of the Combined Nomenclature of the Common Customs Tariff in the version contained in Annex I to Commission Regulation (EEC) No 2587/91 of 26 July 1991 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1991 L 259, p.1).

2 These questions were raised in proceedings between Gausepohl-Fleisch GmbH and Oberfinanzdirektion Hamburg (Principal Customs Office, Hamburg) concerning the tariff classification of goods defined as "meat of bovine animals, salted".

3 It is apparent from the documents in the main proceedings that the dispute concerns two consignments of beef with a total salt content of 0.71% and 1.2% respectively.

4 In 1989 the Oberfinanzdirektion Hamburg issued to Gausepohl-Fleisch two binding customs tariff notices classifying the products in question under heading 0202 ("Meat of bovine animals, frozen") of the Combined Nomenclature of the Common Customs Tariff although Gausepohl-Fleisch considered that they fell under heading 0210 ("Meat ... salted ... of bovine animals") of that tariff.

5 In support of its appeal to the Bundesfinanzhof Gausepohl-Fleisch argued that a minimum total salt content of 0.5%, which amounts to more than three times the natural salt content of 0.15%, ensures that the period of preservation of the meat exceeds the time required for transportation and that meat of bovine animals containing that percentage of salt ought therefore to be classified under heading 0210 of the Common Customs Tariff.

6 The Oberfinanzdirektion considered that meat could not be classified as salted under heading 0210 of the Common Customs Tariff unless it had undergone a process of deep salting and had a minimum total salt content of 2%.

7 In those circumstances, the Bundesfinanzhof stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

"1. Is the Common Customs Tariff (Combined Nomenclature) to be interpreted as meaning that meat of bovine animals to which a quantity of salt has been added for the purposes of preservation such that the total salt content measured (approximately 0.5%) amounts to more than three times the natural salt content (approximately 0.15%) is to be classified as salted under heading 0210?

2. If not, how high must the salt content be and what other conditions (such as depth of salting or period of preservation as compared with the time required for transportation), if any, must be fulfilled for meat of bovine animals to be classifiable as salted under heading 0210?"

8 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

9 It should be first borne in mind that the Court has consistently held that the decisive criterion for the customs classification of goods under the Common Customs Tariff must generally speaking be sought in the objective characteristics and properties of the products at the time of their presentation for customs clearance (see judgment in Case 175/82 Dinter [1983] ECR 969).

10 Chapter 2 of the Common Customs Tariff contains the following three headings: "Meat of bovine animals, fresh or chilled" (heading 0201), "Meat of bovine animals, frozen" (heading 0202, mentioned above) and "Meat and edible meat offal, salted, in brine, dried or smoked; edible flours and meals of meat or meat offal" (heading 0210 ° mentioned above). It is therefore clear from the scheme of that chapter that, for tariff classification purposes, the meat covered by it is either fresh or chilled meat of bovine animals or meat that has undergone one of the various processes required for long-term preservation.

11 It follows that meat of bovine animals to which a quantity of salt has been added merely for the purpose of transportation cannot be regarded as salted for the purposes of heading 0210. On the other hand, salting as a method of preserving meat of bovine animals for a longer period must be applied evenly to all parts of the meat.

12 That conclusion finds confirmation in the terms of the Customs Cooperation Council' s Explanatory Note to tariff subheadings 0210 11 11 and 0210 11 19, which specifies in relation to swine meat that salting as a method of long-term preservation must be deep salting and the period of preservation must considerably exceed the time required for transportation. Although that Explanatory Note is not legally binding and relates, moreover, only to swine meat, it may nevertheless provide a useful indication as to the minimum objective criteria required for meat of bovine animals to be classified as "salted".

13 It must next be determined what total salt content is to be regarded as a minimum percentage for meat to be classified under heading 0210.

14 The documents before the Court show that various different figures have been adopted by the authorities of the Member States. They do however suggest that the minimum total salt content required for the long-term preservation of meat may be set at 1.2% by weight.

15 That percentage should therefore, as proposed by the Belgian Government in its written observations and by the Commission at the hearing, be adopted as the minimum total salt content required for meat to be classified under heading 0210.

16 The reply to the questions from the national court should therefore be that heading 0210 of the Common Customs Tariff (Combined Nomenclature) must be interpreted as meaning that meat of bovine animals may be classified under that heading as salted meat only if it has been deeply and evenly impregnated with salt in all its parts for the purposes of long-term preservation so that it has a minimum total salt content of 1.2% by weight. Meat of bovine animals to which, for the purposes of preservation, a quantity of salt has been added such that the total salt content measured (approximately 0.5%) amounts to more than three times the natural salt content (0.15%) may not be classified as salted under heading 0210.

Costs

17 The costs incurred by the Kingdom of Belgium 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 (First Chamber),

in answer to the questions referred to it by the Bundesfinanzhof, by 22 October 1991 of, hereby rules:

Heading 0210 of the Common Customs Tariff (Combined Nomenclature) must be interpreted as meaning that meat of bovine animals may be classified under that heading as salted meat only if it has been deeply and evenly impregnated with salt in all its parts for the purposes of long-term preservation so that it has a minimum total salt content of 1.2% by weight. Meat of bovine animals to which, for the purposes of preservation, a quantity of salt has been added such that the total salt content measured (approximately 0.5%) amounts to more than three times the natural salt content (0.15%) may not be classified as salted under heading 0210.