1. 

In the present case, the French Government seeks a declaration by the Court of Justice that Commission Regulation (EC) No 1641/94 ( 1 ) of 6 July 1994 amending Council Regulation (EEC) No 2658/87 ( 2 ) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff is null and void.

2. 

The contested regulation (hereinafter ‘the Regulation’) states in its preamble that its aim is to ‘specify the scope’ of tariff subheading 23031019‘by replacing Additional Note No 1 to Chapter 23 [of the combined nomenclature appearing in the Annex to Regulation No 2658/87] by the note given in Article 1 of this Regulation’, obviously worded differently.

3. 

Both notes provide keys to the tariff classification of the product known as corn gluten feed, whose mass production in the United States of America and importation into the European Communities exempt from customs duties has given rise to the concern which has prompted the French Government to bring this action.

4. 

What appears on the surface to be a technical matter — the drafting of a simple note to supplement a particular tariff subheading — in fact conceals a delicate commercial issue, of undeniable economic importance, which has been the subject of difficult negotiations between the Commission and the Government of the United States of America. The course of the negotiations and their final result both led to questions being raised in the European Parliament ( 3 ) and produced reactions from the trade circles concerned.

5. 

Briefly, the parties disagree on the tariff classification of the product in question: the Commission, by means of the contested regulation, classifies it under heading 2303 (residues of starch manufacture) whilst the French Government classifies it under heading 2309 (preparations of a kind used in animal feeding). The dispute would be resolved in the Commission's favour if the Regulation were held to be valid, since it amends the Additional Note in such a way as to allow corn gluten feed to be classified under heading 2303 without any difficulty.

6. 

The applicant Government contests the Regulation on the following grounds:

7.

Goods are now classified for the twin purposes of the Common Customs Tariff and the Community's statistical requirements through the use of what is called the ‘combined nomenclature’ introduced by the aforementioned Regulation No 2658/87. It is one of the frequent amendments made to that regulation which is, precisely, the subject-matter of this action for annulment.

8.

Chapter 23 of the combined nomenclature, to which, as both parties agree, the dispute is confined, covers ‘Residues and waste from the food industries; prepared animal fodder’. The heading and subheading below it read as follows:

9.

Subheadings 23031011 and 23031019 (whose only difference, as can be seen, consists in the proportion of the respective protein content of the products) had been the subject of an earlier Additional Note according to which both would include

‘... only residues from the manufacture of starch from maize and do not cover blends of such residues with products derived from other plants or products derived from maize otherwise than in the course of production of starch by the wet process’.

10.

The first amendment made to that Additional Note was made by Commission Regulation (EEC) No 3492/91 ( 4 ) of 29 November 1991, which gave the following wording to it (the changes are indicated in italics):

‘Subheadings 23031011 and 23031019 include only residues from the manufacture of starch from maize and do not cover blends of such residues with products derived from other plants or products derived from maize otherwise than in the course of production of starch by the wet process. These products may, however, contain residues from the extraction of maize germ oil hy the wet process.

Their starch content may not exceed 28% by weight on the dry product in accordance with the method contained in Annex 1.1 to Directive 72/199/EEC ( 5 ) of the Commission and their fat content cannot exceed 4.5% by weight on the dry product determined in accordance with method A contained in Annex I to Directive 84/4/EEC ( 6 ) of the Commission.’.

11.

The second amendment — now being contested — to the Additional Note adds to the 1991 wording new and significant information as follows (the new parts are in italics):

‘The following Additional Note shall replace the actual Additional note 1 to Chapter 23 of the combined nomenclature in the Annex to Regulation (EEC) No 2658/87:

12.

In other words, from 1 July 1994 — according to the Additional Note contained in the Regulation — the following are added to subheading 23031019 and are classified, therefore, as a particular kind of residue of starch manufacture:

13.

If the wording of the new Additional Note is valid as a matter of law, subheading 23031019 of the combined nomenclature is to be applied to corn gluten feed; if it is not, that product is to be classified under heading 2309, as the applicant Government proposes.

14.

The choice of heading has customs implications: if the French Government's argument is upheld, it means that imports of the product in question will attract certain customs duties which they would not attract under the customs rules contended for by the Commission.

15.

The scope of the action for annulment brought by the French Government is thus restricted to the new elements which the contested regulation introduced into the Additional Note, that is to say the addition of screenings from maize and of residues of maize steep-water, as set out above. The wording in which Regulation No 3492/91 ( 7 ) framed the Additional Note is therefore not at issue.

16.

Although not primarily relied upon as a decisive ground for annulment, the plea of insufficient reasoning must be examined as matter of priority, as befits any plea that a legislative measure has infringed an essential procedural requirement.

17.

The requirement that Community legislative acts must state the reasons on which they are based is laid down in the Treaty and failure to fulfil that requirement undoubtedly constitutes a breach of essential procedural requirements for the drawing up of such acts. Article 190 of the EC Treaty provides that ‘regulations, directives and decisions adopted ... by the Council or the Commission shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty’.

18.

That requirement, which has always existed in Community law, has acquired added significance since the entry into force of the Treaty, on European Union, ( 8 ) since, according to Declaration No 17 annexed to the Final Act thereof, ‘the transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration’.

19.

In order for there to be transparency in the adoption of Community legislative acts, it is undoubtedly essential that they should contain a sufficient statement of reasons which are entirely clear and do not conceal any element relevant to the legislative process.

20.

The Regulation at issue appears to contain reasoning since it has a preamble setting out a series of explanatory reasons. The preamble contains the following statements:

‘Whereas in order to ensure uniform application of the combined nomenclature, it is necessary to adopt provisions concerning the classification of residues of starch manufacture;

Whereas CN code 23031019 includes only residues from the manufacture of starch from maize, but do not cover blends of such residues with products derived from other plants or products derived from maize otherwise than in the course of production of starch by the wet process;

Whereas, these residues may, however, contain residues from the extraction of maize germ oil by the wet milling process, screenings from maize used in the wet process in a proportion not exceeding 15% by weight, and residues of maize steepwater, arising from the wet process, including residues of steep-water used for the manufacture of alcohol or of other starch derived products;

Whereas residues from the manufacture of starch from maize by the wet process have a starch content not exceeding 28% by weight on the dry product in accordance with the method contained in Annex 1.1 to Directive 72/199/EEC of the Commission, as amended by Directive 93/28/EEC, and a fat content which does not exceed 4.5% on the dry product determined in accordance with method A contained in Annex I to Directive 84/4/EEC of the Commission;

Whereas the scope of the subheading in question should be specified, by replacing Additional note 1 to Chapter 23 by the note given in Article 1 of this Regulation;

Whereas the Customs Code Committee — Tariff and Statistical Nomenclature Section has not given its opinion within the time-limit indicated by its Chairman.’

21.

None the less, upon perusal of this preamble it is apparent that, in reality, it merely repeats literally either the wording of earlier provisions or what is laid down in the operative part of the Regulation. Apart from the reference to the absence of an opinion of the ‘Customs Code Committee’ (a significant omission which I will consider below), ( 9 ) not a single reason justifying the new wording given to the Additional Note is stated.

22.

If by ‘statement of reasons’ is meant a prior statement of the real reasons which have led a Community institution to adopt an act, then the Regulation has no statement of reasons. Or, in other words, it is silent about the real reasons for its adoption.

23.

That this is so may be inferred from the details set out by the French Government in its application concerning the vagaries of the negotiations between the Commission and the United States of America and the compromises reached by the Commission during those negotiations. Those details may in fact also be inferred from other subsequent pieces of legislation in which the Commission, paradoxically, does reveal the genuine reasons for amending the wording of the Additional Note.

24.

Likewise, the arguments used by the Commission in its defence, which refer to the need to adopt the Regulation in order to avoid a trade conflict with the United States of America, explain a posteriori the real reasons for the Regulation which do not appear in its preamble.

25.

The conflict of interests between the two parties to those negotiations has been simmering over a period of years. A first Memorandum of Understanding, signed in Geneva on 15 October 1991 by the representatives of the Government of the United States and of the Commission of the European Communities, ( 10 ) entailed an amendment to the Explanatory Note, mentioned above, on the basis of which Regulation No 3492/91 included under subheading 23031019 residues from the extraction of maize germ oil by the wet process. ( 11 )

26.

According to the Commission's official reply to the French Ministry of Agriculture and Fisheries made by letter of 16 July 1993, ( 12 ) negotiations were continued until they achieved the following result:

‘The agreement on the clarification of the concession granted within the GATT to corn gluten feed was concluded between the Commission and the American authorities in November last year. That agreement was annexed to the exchange of correspondence of 23 November and 4 December 1992 between Ambassador Hills and Vice President Andriessen ... Approval of the agreement will have to be accompanied with the necessary adaptations of the Community customs legislation in accordance with the procedures provided for in that respect.’

27.

It is therefore clear that in enacting the Regulation the Commission was merely implementing an agreement or ‘accord’ which it had previously concluded with a nonmember State, but in the preamble to which it omitted to mention this essential factor which led to its adoption in the first place.

28.

It was not until several months later, in the preamble to Commission Regulation (EC) No 2019/94 of 2 August 1994 on imports of residues from the manufacture of starch from maize from the United States of America, ( 13 ) that the reasons for the new rules were made sufficiently clear:

‘Whereas, within the framework of the GATT, the European Community and the USA have agreed to clarify the tariff definition of residues from the manufacture of starch from maize’.

29.

In summary, it is obvious that the actual reason for the contested regulation is an‘accord’ concluded between the Commission and a nonmember State on the tariff classification of a specific product. However, there is no indication of that substantive basis in the preamble to the Regulation itself, whose ‘statement of reasons’ omits not only that essential element but also any other indication which would enable the addressees of the Regulation to know the real, decisive reasons for amending the Additional Note.

30.

In those circumstances, the lack of a proper statement of reasons for the Regulation has two aspects:

31.

In my view, this first defect, consisting of an infringement of an essential procedural requirement, must entail the annulment of the act affected. The Court of Justice has consistently held that the statement of reasons required by Article 190 of the Treaty must be appropriate to the nature of the measure in question and that it must show clearly and unequivocally the reasoning of the institution which enacted the measure. ( 14 ) That is not at all the case here since the apparent reasoning is silent precisely about what it should indicate: it is not therefore a mere error or accidental oversight of minor importance which would not be sufficient by itself to entail as serious a legal consequence as annulment of the measure.

32.

It is true that the statement of the reasons for a measure is not required to specify all relevant matters of fact and law, which are at times many and complex, provided that it falls within the general scheme of the set of measures of which it forms part. However, the statement or reasons for a legislative measure must, logically, state at least the most important of all the factors which actually played a part in its genesis. In the present case, precisely the key factor is omitted, contrary to the minimum requirements of transparency which must govern the entire process of drafting and publication of Community legislative measures.

33.

In so far as the lack of reasoning constitutes an ‘infringement of an essential procedural requirement’ within the meaning of Article 173 of the Treaty and may therefore found an action for annulment, it clearly has the legal effect of rendering the defective measure invalid. The Court of Justice should therefore declare the contested Regulation to be void pursuant to Article 174 of the Treaty.

34.

There could be no objection if the Regulation was merely confined to clarifying or interpreting a specific tariff heading or subheading, since the Commission is empowered to do this under Article 9(1 )(a) of Regulation No 2658/87, referred to above.

35.

That provision enables the Commission to adopt, in accordance with the procedure defined in Article 10 of the regulation, measures relating to the application of the combined nomenclature and, in particular, concerning both ‘the classification of goods’ (first indent) and the ‘explanatory notes’ (second indent).

36.

If, on the other hand, the contested regulation involved a modification of the combined nomenclature as such, the Commission could not use for that end the ‘explanatory notes’ mechanism (nor classification regulations) since the sole purpose of explanatory notes, and that of the measures of general application, is to specify the content of the headings or subheadings of the Common Customs Tariff without amending the text thereof. ( 15 )

37.

In principle, the Council has the power to establish (and therefore to amend) the tariff nomenclature. This was expressly stated by the Court of Justice in its judgment in Case 165/87 Commission v Council ( 16 ) as follows:

‘(...) However, the establishment of a tariff nomenclature is indispensable to the application of customs duties. Without a system of classification of goods it would be impossible to ascribe them to particular tariff headings. It follows that the power given to the Council to make changes in rates necessarily implies, in the absence of express provision in the Treaty, power to establish and amend the nomenclature relating to the application of the Common Customs Tariff.

It follows from that observation that the Council has a general power in relation to tariff matters, which is based both on Article 28 and on Article 113 of the Treaty, inasmuch as it has that power irrespective of whether Common Customs Tariff duties are amended autonomously (Article 28) or under tariff agreements or other measures of common commercial policy (Article 113).’

38.

There is no doubt that the Commission may take part, on its own initiative, (provided that certain procedural requirements are observed) ( 17 ) in the application and interpretation of the combined nomenclature by enacting classification regulations or issuing explanatory notes. However, its role in this respect is subject to limits on which the Court of Justice has ruled on several occasions.

39.

In Vismans Nederland ( 18 ) and GoldStar Europe ( 19 ) the Court held that the Council has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods, with the important proviso that the provisions adopted by the Commission must not modify the text of the tariff.

40.

This is not to ignore the remaining powers which, under Article 9 of Regulation No 2658/87, the Commission has, subject to specific restrictions and limitations, ( 20 ) to act in the legislative process for amending the nomenclature as such.

41.

Such legislative powers must not, however, be confused with the power of mere ‘application’ referred to in Article 9(1 )(a). That power, used by the Commission in this case, does not in any way allow it to amend or alter, directly or indirectly, the text of the nomenclature.

42.

As will be seen below, the changes made by the Regulation to the Additional Note relating to subheading 23031019 did not consist in merely clarifying a preexisting definition without altering its essential characteristics, which the Commission is undeniably competent to do. On the contrary, under the veil of interpretation, the Commission has proceeded in fact to amend the combined nomenclature, thus altering the Common Customs Tariff and thereby changing the customs duties relating to a specific product.

43.

In so acting, the Commission misused its powers, the legal effect of which must be that the Regulation itself is void, since the powers which the Council has conferred upon it in order to specify the scope of tariff headings or subheadings does not give it the power to amend them. In order to arrive at that conclusion it is necessary, logically, to show to what extent the Regulation has amended the content of the tariff subheading in question.

44.

The ‘technical clarification’ of a subheading, as the Commission describes its Note, should be restricted to making explicit what is implicit in the description of such subheading or to interpreting such description in accordance with hermeneutic methods of applied logic. To that end, the Commission must refer the matter to the Nomenclature Committee, which must give an opinion on any problems which may arise.

45.

In its application, the French Government describes in minute detail the various stages in the process of production of starch by the wet process from bulk corn. The Commission, in its defence (paragraph 1 of the part headed ‘Facts’) raises no objection to that description.

46.

Although a particularly technical question is involved, it is necessary, in order to resolve the dispute to analyse that manufacturing process, since it is only on the basis of that analysis that it will be possible to conclude whether or not the new element introduced into the Explanatory Note relating to subheading 23031019 is consistent with the tariff classification in force.

47.

Both parties to the dispute agree that the stages in that manufacturing process are basically the following:

48.

Corn gluten feed is composed of what is left at stage (d), plus steep-water which did not undergo vaporization at stage (b) plus a small amount of maize pellets produced at stage (c).

49.

The product then resulting from the process of cleaning, steeping, separating the germ and the fibrous parts of the maize grain is a suspension which is rich in gluten and starch: when centrifuged, gluten is recovered from which corn gluten meal, rich in proteins (with about 60% protein and falling under subheading 23031011), is made and from which starch in an almost pure state is also obtained.

50.

The starch obtained at the end of that manufacturing process may, in its turn, either be marketed in a powdered form or may be subjected to further processing in order to obtain alcohol or other organic products by hydrolysis from which glucose is derived and from which ethanol is obtained.

51.

The water used in the last-mentioned industrial process is described in the Explanatory Note as ‘steep-water’, although the French Government prefers to refer to it as ‘vinasses de fermentation’: the addition of this water to corn gluten feed (which is the second innovation allowed by the Regulation) increases the energy value of the product.

52.

Likewise, the addition of maize screening residues (which, provided that the added residues do not exceed 15% by weight, is the second innovation allowed by the Regulation) also increases the energy value of the corn gluten feed.

53.

May a product to which the abovementioned constituents are added during the production process described above be regarded as ‘residues of starch manufacture’ within the meaning of subheading 2303 10?

54.

It appears from the documents produced before the Court by the French Government (specifically the minutes of meeting No 179 of the Nomenclature Committee, held from 20 to 22 January 1992) ( 21 ) that the Nomenclature Committee — a specialized body to which Regulation No 2658/87 entrusts the uniform application of the combined nomenclature — at the time replied in the negative. In its view, corn gluten feed fell under heading 2309 (the French Government's argument) and not under 2303 (the Commission's argument).

55.

The Committee took the view that a product approximately one third of which consisted of residues of starch manufacture, approximately one third of residues resulted from the extraction of maize germ oil by the wet milling process and approximately another third of ethanol steep-water solubles could not be classified under heading 2303 at all.

56.

In the Committee's opinion, the latter third of the constituents is obtained during a technological process which is totally different from maize starch manufacturing itself: it is, in fact, a derivative of alcohol manufacture from cereals.

57.

The Committee therefore considered that corn gluten feed should be classified under heading 2309 since it had a specific composition in fats and proteins suitable for the feeding of certain animal species.

58.

This was the only opinion given by the Nomenclature Committee, since it did not manage to deliver another opinion within the prescribed time-limit indicated by its chairman. ( 22 ) Its value as a technical ruling from a body composed of specialists in the field cannot be disregarded.

59.

Even disregarding the opinion of the Nomenclature Committee, I consider that the French Government is right in arguing — in line with the opinion previously analysed — that a product made up of residues from the manufacture of starch from maize, plus maize screenings, plus byproducts of the preparation of alcohol by the fermentation of glucose (even if the glucose comes in turn from maize steep-water) cannot fall within heading 2303 but must be classified under heading 2309 covering preparations of a kind used in cattle feed, at any rate as long as the specific wording of each tariff heading is not amended.

60.

This may be concluded from two kinds of considerations applicable to maize screenings, on the one hand, and to the addition of byproducts of alcohol manufacture, on the other.

61.

As regards the addition of maize residues remaining after screening, their true nature must be ascertained. The Court of Justice has repeatedly explained what is to be understood by ‘residues’ for tariff classification purposes and distinguished these from ‘waste’. ( 23 )

62.

In particular, in its judgment of 22 September 1988 in Case 268/87 Cargill ( 24 ) the Court stated that: ‘as the Court stated in its judgment of 11 March 1982 in Case 129/81 Fancon v SIAT [1982] ECR 967, it follows from the actual wording of heading 23.04 that the term “residue” is not to be confused with that of “waste”. It follows that that heading does not cover all the products which remain after the extraction of a vegetable oil. On the contrary, in order to be covered by that heading they must be products which result directly from the operation of oil extraction and not products which were already to be found in the basic product and did not undergo any change in the course of the oil-extraction process’.

63.

Confronted with those statements, the Commission was obliged to acknowledge in its rejoinder ( 25 ) that maize remains left after screening cannot be regarded as ‘residues of starch manufacture’stricto sensu. In its view, however, the actual wording of subheading 230310 enabled ‘manufacture of starch from maize’ to be regarded as an activity broader than mere ‘extraction of starch from maize’ so that there was no reason to treat ‘residues’ resulting from such manufacture with those resulting from ‘extraction of starch’, and the ruling in Cargill was therefore applicable only to the latter.

64.

I do not believe that this interpretation withstands analysis. In my view, residues from the manufacture of starch from maize ( 26 ) are in fact the residues resulting from the operation of extracting starch from maize. That being so, the Court rulings cited above preclude those parts or remains of maize which were already present in the basic product and which are left over after screening without having undergone any kind of change from being treated as ‘residues’. That is why, by allowing elements which are in fact ‘waste’ from the maize screening process to be incorporated (in not inconsiderable proportions, as will be seen below) as ‘residues’, the new wording which the Regulation gives to the Explanatory Note modifies the nomenclature.

65.

It is certainly inevitable that a very small percentage of impurities will be present together with genuine residues. In its judgment of 16 December 1992 in Case C-194/91 Krohn, ( 27 ) concerning an action analogous to that now before the Court and in which the Court had to decide whether products deriving from the extraction of maize oil should be classified under subheading 23.04 B of the Common Customs Tariff even if they contained, besides maize grain residues in the strict sense, other elements deriving from the maize plant or other cereals, the Court ruled that such classification was permissible only ‘... in so far as the substances extraneous to maize grain are present in very small quantities and it is established that it is technically impossible to avoid their presence under normal conditions of production, processing, transport, transshipment and storage, save by incurring costs disproportionate to the commercial value of the derived products in question’.

66.

It is clear that by permitting the presence of ‘residues resulting from the screening’ of maize (which, as we have seen, are not residues but waste) in a proportion not exceeding 15% by weight, the contested regulation goes far beyond the limits of tolerance allowed by a reasonable interpretation such as that given in Krohn.

67.

The extent to which the Regulation distorts the nomenclature becomes even more evident in that it allows certain products derived from the manufacture of alcohol from the steep-water used in the starch extraction process to be regarded as ‘residues from the manufacture of starch from maize’.

68.

Subheading 230310 expressly excludes ‘concentrated steeping liquors’. As repeatedly stated above, that subheading covers ‘residues from the manufacture of starch from maize (excluding concentrated steeping liquors)’. That being so, residues of steep-water obtained from a process separate from and subsequent to the extraction of starch from maize cannot a fortiori be classified under that subheading.

69.

It must be emphasized that the process of obtaining alcohol (or other products) from maize is a different process, unrelated to the process of extracting starch from maize. The fact that alcohol production plant and starch production plant are more or less integrated in some countries (as appears to be the case in the United States of America) is not sufficient reason for regarding as ‘residues from the manufacture of starch’ what are obviously, once used for obtaining ethanol, residues from the manufacture of alcohol (or of other derived products).

70.

In my view, these considerations amply demonstrate that, by means of the Additional Note, the Regulation has altered the combined nomenclature, allowing products which are preparations used in animal feeding to be classified under subheading 2303 10.

71.

The dispute between the French Government and the Commission as to the reliability of the methods of analysis, verification and certification of the composition of corn gluten feed does not, in my view, provide sufficient criteria to arrive at a definitive conclusion about the alleged impossibility of ascertaining whether the limits imposed by the Additional Note are in fact observed. Such a circumstance is, moreover, irrelevant once the actual tenor of the Note itself is void on the grounds relied on by the French Government.

72.

The French Government states that, by adopting the Regulation, the Commission acted in breach of the commitments entered into by the Community under the International Convention on the Harmonized Commodity Description and Coding System, done at Brussels on 14 June 1983 and approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987. ( 28 )

73.

In particular, it is argued that the Commission did not observe the obligation arising from Article 3(l)(a)(ii) that ‘... each Contracting Party ... thus undertakes that, in respect of its Customs tariff and statistical nomenclatures ... it shall apply the General Rules for the interpretation of the Harmonized System and all the Section, Chapter and Subheading Notes, and shall not modify the scope of the Sections, Chapters, headings or subheadings of the Harmonized System.’

74.

The two litigant parties agree that this plea in law will, naturally, stand or fall according to the position adopted as regards the nature and effects of the changes introduced by the Regulation into the Additional Note. In contesting the French Government's prime argument (that is, by denying that the Regulation involves any modification whatsoever of the combined nomenclature), the Commission also refutes the conclusion at which it arrives.

75.

I, too, accept that the fate of this plea necessarily depends on the position previously adopted by the Court in relation to the content of the Additional Note, and in my view the argument of the French Government is correct. If, as I have argued, the new wording of the Note has altered the combined nomenclature, albeit surreptitiously, the Commission has not honoured its commitment to maintain the harmonized system without any unilateral modifications, as required by the Brussels Convention of 14 June 1983.

76.

An institution or an administration in general commits a misuse of powers when it uses powers conferred on it for a purpose other than that laid down by the enabling provision. In the present case, the Commission will have misused its powers if, in giving a new wording to the Additional Note, it enacted the Regulation for a purpose other than that which in theory should have justified it, even if such purpose was lawful.

77.

Thus, there will be a misuse of powers if, under the guise of an interpretative measure, the combined nomenclature is surreptitiously modified and this legislative procedure is employed in order to evade or render ineffective intervention by other Community organs or institutions.

78.

It is certainly more difficult to assess this ground of nullity in relation to legislative acts than in relation to mere administrative or implementing measures. Nevertheless, there is nothing to prevent a legislative authority (in this case the Commission) from misusing its powers, in particular if such powers were conferred upon it by another organ (the Council) for the purpose of supplementing or interpreting specific provisions adopted by the latter. Where such powers are used to achieve ends (I repeat, even legitimate ends) other than those which should form the basis for the legislation in question, there will be a misuse of powers.

79.

In my view, there are two facts which support my conviction that, in this case, the Commission misused its powers, even accepting that its ultimate purpose was to avoid a trade war with the United States of America. However, as the French Government rightly points out, such a purpose should have been put into effect by classifying corn gluten feed correctly (under heading 2309) followed by a tariff concession granted by the Council, on the basis of Article 113 of the Treaty, allowing a zero tariff rating to be applied to it.

80.

The first fact which gives rise to reservations is the way in which the opinion of the Nomenclature Committee, the specialized body which, under Regulation No 2658/87, must first be consulted in this type of matter, whether concerning classification regulations or additional notes, was avoided. As I have already explained, that opinion was never issued.

81.

In his Opinion in Case C-401/93 GoldStar Europe, ( 29 ) delivered on 21 September 1994, Advocate General Jacobs found that there is no express provision governing the general legal effects of the absence of an opinion from the Nomenclature Committee. That Ucuna, which is apparent in Article 10(2) of Regulation No 2658/87, stands in contrast with the wording of the preceding Regulation No 97/69 which expressly provided for such an eventuality.

82.

In the view of Advocate General Jacobs, the failure by the Committee to issue an opinion within the time-limit laid down by its chairman did not, in that case, prevent the Commission from immediately bringing into force the classificatory measure. He added that ‘there is no suggestion in this case that the time-limit laid down by the Commission representative chairing the Committee was unreasonably short or indeed that there was any other irregularity in the proceedings of the Committee’.

83.

In the judgment which it gave on 13 December 1994 in that case, the Court seems to accept that argument, since it states in paragraph 18 that ‘if the Customs Cooperation Council has not given an interpretation of the nomenclature, the Community legislature has the power to interpret, by means of regulations subject to review by the Court of Justice, the nomenclature as it is to be applied by the Community’.

84.

From the information provided by the Commission ( 30 ) it may be concluded, however, that the time given to the Nomenclature Committee must have been extremely short, since its chairman (who represents the Commission within the Committee) submitted the draft regulation during the meeting of 23 and 24 June 1994 for the requisite opinion, but by 6 July 1994 the Regulation had already been adopted by the Commission and published the next day in the Official Journal with retroactive effect as from 1 July 1994.

85.

The explanation which the Commission offered for the haste, namely that suspension of customs duties on certain residues from the manufacture of starch from maize expired on 30 June 1994, cannot be accepted since this was an issue dating back months if not years. All the indications are that the intention was to place the Committee in a position which made it more difficult, if not impossible to issue its opinion.

86.

Even more significant is the fact that the Commission did not await action by the Council for putting into effect the commitment entered into vis-à-vis the United States of America. This is the second — and more important — of the two facts which support my conviction that the Commission misused its powers and on which the applicant places particular emphasis.

87.

In the statement which the Commission made on 25 March 1993 before the European Parliament on the matter at issue here, ( 31 ) its representative, Sir Leon Brittan, admitted that ‘in the context of the negotiation which led to the Blair House agreement of December 1992’, a number of agreements had been reached with the United States of America on corn gluten feed, and that ‘the Commission approved these arrangements at its meeting of 9 March and the text has been transmitted to the Council’ (emphasis added).

88.

That official statement repeats that ‘the Commission agreed the text implementing the corn gluten feed agreement of 9 March and it has been passed to the Council. The matter has been discussed in the Article 113 committee and the special committee for agriculture. In early June it is expected to go to the Nomenclature Committee which is competent to decide on the changes proposed to the earlier arrangements.’

89.

In the minutes of meeting No 1772 of the Council (Agriculture), which took place in Luxembourg on 20 to 24 June 1994, ( 32 ) the Council merely ‘takes note’ of the Commission representative's account of the arrangements for ‘implementing the 1992 Blair House pre-agreement as regards corn gluten feed imports’. Under the arrangements it is envisaged, inter alia,‘that the Commission submit to the Nomenclature Committee a draft of the wording of the tariff headings in question; that Committee will meet on 23 June 1994’.

90.

In any event, it is clear that at no time did the Council, either within the Article 113 committee or in the special committee on agriculture, give its agreement, beforehand or afterwards, to the decision of the Commission as adopted, a fortiori in the absence of an opinion of the Nomenclature Committee. Nor is it established that the Council assumed or ratified the international commitments entered into by the Commission and which are the basis for the contested regulation.

91.

On the contrary, as the French Government maintains, all the indications are that it was precisely the lack of agreement of the Council which the Commission sought to circumvent by adopting a regulation which, under the guise of mere clarification, went much further, thereby departing from the subordinate purpose of this category of legislative measures which are intended to supplement, but not modify, the wording of the combined nomenclature.

92.

I am therefore of the view that this ground of annulment should also be upheld.

(1)

uphold the application made by the French Government and annul Commission Regulation (EC) No 1641/94 of 6 July 1994 amending Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff;

(2)

order the Commission to pay the costs.