61978J0137

1 . COMMON CUSTOMS TARIFF - TARIFF HEADINGS - EGGS , NOT IN SHELL , AND EGG YOLKS SUITABLE FOR HUMAN CONSUMPTION AS IN SUBHEADING 04.05 B I - CONCEPT

2 . COMMON CUSTOMS TARIFF - TARIFF HEADINGS - FOOD PREPARATIONS UNDER SUBHEADING 21.07 G I ( A ) 1 - SPECIFIC CASE

1 . IT IS CLEAR FROM THE WORDING OF SUBHEADING 04.05 B I OF THE COMMON CUSTOMS TARIFF AND FROM THE EXPLANATORY NOTES TO THE TARIFF THAT THE PRODUCTS TO WHICH THE SUBHEADING REFERS ARE ESSENTIALLY BIRDS ' EGGS , NOT IN SHELL , AND EGG YOLKS , WITHOUT FURTHER PROCESSING , TO WHICH ANY CHEMICAL COMPONENTS ARE ADDED IN SMALL QUANTITIES ONLY , IN ORDER TO PRESERVE THEM .

2 . A PRODUCT COMPOSED OF 52% WHOLE HEN-EGG POWDER , 25% SOYA MEAL , 22% GLUCOSE SYRUP AND 1% SALT AND LECITHIN DOES NOT COME UNDER HEADING 04.05 B I OF THE COMMON CUSTOMS TARIFF BUT CONSTITUTES A ' ' FOOD PREPARATION ' ' COMING UNDER SUBHEADING 21.07 G I ( A ) 1 OF THE TARIFF .

IN CASE 137/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

HENNINGSEN FOOD INC ., NEBRASKA , UNITED STATES OF AMERICA ,

VAN DEN BURG EIERPRODUKTEN BV ., WAALWIJK , THE NETHERLANDS ,

BOTH IN THEIR CAPACITY AS MANAGING PARTNERS OF THE PARTNERSHIP TRADING AS HENNINGSEN VAN DEN BURG , WAALWIJK ,

ON THE ONE HAND ,

AND

PRODUKTSCHAP VOOR PLUIMVEE EN EIEREN ( POULTRY AND EGGS BOARD ), ZEIST , THE NETHERLANDS ,

ON THE OTHER ,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF WITH REGARD TO THE TARIFF CLASSIFICATION OF PRODUCTS KNOWN AS ' ' HENTEX 76 ' ' AND ' ' HENTEX 10 ' ' AND OF CERTAIN PROVISIONS OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ,

1THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN , IN ITS JUDGMENT OF 9 JUNE 1978 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 14 JUNE 1978 , REFERRED TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY , QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF AND ON REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 ( OFFICIAL JOURNAL 1975 , L 139 , P . 37 ) LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS .

2THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF A CASE CONCERNING THE APPLICATION OF ARTICLE 2 A OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), AS AMENDED BY REGULATION NO 1112/73 OF THE COUNCIL OF 30 APRIL 1973 ( OFFICIAL JOURNAL 1973 , L 114 , P . 4 ). ACCORDING TO THAT PROVISION , ' ' WHERE A PRODUCT EXPORTED FROM ONE MEMBER STATE HAS BEEN IMPORTED INTO A MEMBER STATE WHICH HAS TO GRANT A COMPENSATORY AMOUNT UPON IMPORTATION , THE EXPORTING MEMBER STATE MAY , BY AGREEMENT WITH THE IMPORTING MEMBER STATE , PAY THE COMPENSATORY AMOUNT WHICH SHOULD BE GRANTED BY THE SAID IMPORTING MEMBER STATE ' ' .

3AT THE TIME AT WHICH THE EVENTS IN QUESTION TOOK PLACE THAT PROVISION WAS APPLIED TO EXPORTS FROM THE NETHERLANDS TO THE UNITED KINGDOM . PURSUANT TO THE SAID PROVISION THE APPLICANTS IN THE MAIN ACTION CLAIMED FROM THE PRODUKTSCHAP VOOR PLUIMVEE EN EIEREN ( HEREINAFTER REFERRED TO AS ' ' THE PRODUKTSCHAP ' ' ) PAYMENT , ON THE IMPORTATION INTO THE UNITED KINGDOM OF CERTAIN PRODUCTS HAVING A CONTENT IN WHOLE HEN-EGG POWDER OF 52% , OF THE COMPENSATORY AMOUNTS PAYABLE BY THE UNITED KINGDOM ON THE IMPORTATION OF GOODS UNDER SUBHEADING 04.05 B I OF THE COMMON CUSTOMS TARIFF . THE NETHERLANDS AUTHORITIES ACCEPTED THE CLASSIFICATION OF THE SAID PRODUCTS UNDER SUBHEADING 04.05 B I ( ' ' EGGS , NOT IN SHELL ; EGG YOLKS : SUITABLE FOR HUMAN CONSUMPTION ' ' ) WHICH ENTAILS THE APPLICATION OF COMPENSATORY AMOUNTS , WHILST THE BRITISH AUTHORITIES CONSIDERED , WHEN THE PRODUCTS WERE IMPORTED INTO THE UNITED KINGDOM , THAT THEY CAME UNDER SUBHEADING 21.07 G I ( A ) 1 ( ' ' FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED : OTHER : . . . CONTAINING NO STARCH OR CONTAINING LESS THAN 5% BY WEIGHT OF STARCH ' ' ) TO WHICH ON THE OTHER HAND COMPENSATORY AMOUNTS ARE NOT APPLICABLE .

4FOLLOWING THE TARIFF CLASSIFICATION ADOPTED BY THE BRITISH AUTHORITIES THE PRODUKTSCHAP TOOK THE VIEW THAT , WITH REGARD TO THE PRODUCTS IN QUESTION , IT WAS UNABLE TO PAY THE COMPENSATORY AMOUNTS ON IMPORTATION INTO THE UNITED KINGDOM SINCE THE BRITISH AUTHORITIES HAD NOT COMPLETED THE FORMALITIES LAID DOWN BY ARTICLE 11 OF THE SAID REGULATION NO 1380/75 AS CONDITIONS FOR THE GRANT BY THE EXPORTING MEMBER STATE OF THE COMPENSATORY AMOUNT PAYABLE BY THE IMPORTING MEMBER STATE . THE APPLICANTS IN THE MAIN ACTION THUS COMPLAIN THAT THE NETHERLANDS AUTHORITIES HAVE INTERPRETED AND APPLIED WRONGLY THE PROVISIONS OF ARTICLE 11 OF REGULATION NO 1380/75 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF THE ABOVE-MENTIONED ARTICLE 2 A OF REGULATION NO 974/71 AND CONTEST THE TARIFF CLASSIFICATION ADOPTED BY THE BRITISH AUTHORITIES .

5IN ORDER TO SETTLE THIS DISPUTE THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN HAS SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT :

' ' 1 . IS ARTICLE 1 ( 2 ) OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL , READ IN CONJUNCTION WITH THE CONTENT OF THE ANNEX TO COUNCIL REGULATION ( EEC ) NO 2500/77 , IN PARTICULAR WITH THE CONTENT OF TARIFF SUBHEADINGS 04.05 B I AND 21.07 G I ( A ) 1 AS SET OUT IN THAT ANNEX , TO BE INTERPRETED AS MEANING THAT A PRODUCT SUCH AS ' HENTEX ' WHICH IS COMPOSED OF :

52% WHOLE HEN-EGG POWDER

25% SOYA MEAL

22% GLUCOSE SYRUP

1% SALT AND LECITHIN

MUST BE CLASSIFIED UNDER TARIFF SUBHEADING 04.05 B I OR UNDER TARIFF SUBHEADING 21.07 G I ( A ) 1?

2.IS THE SECOND SENTENCE OF ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 1380/75 OF THE COMMISSION TO BE INTERPRETED AS MEANING THAT , EVEN IF THE PRODUCT ' HENTEX ' DOES FALL UNDER TARIFF SUBHEADING 04.05 B I AND THE CUSTOMS IMPORT FORMALITIES FOR THE UNITED KINGDOM HAVE BEEN COMPLETED AND THE DUTIES AND CHARGES HAVING EQUIVALENT EFFECT PAYABLE IN THAT MEMBER STATE HAVE BEEN LEVIED BUT THE CONTROL COPY WITHIN THE MEANING OF THAT PROVISION HAS NOT BEEN FURNISHED BY THE UNITED KINGDOM , ON THAT GROUND ALONE THE RESPONDENT IS NOT EMPOWERED AND A FORTIORI IS NOT OBLIGED TO GRANT AND PAY THE MONETARY COMPENSATORY AMOUNT TO THE EXPORTER/IMPORTER CONCERNED?

' '

6WITH REGARD TO THE FIRST QUESTION SUBHEADING 04.05 B I REFERS TO THE PRODUCTS TO WHICH IT APPLIES AS ' ' EGGS , NOT IN SHELL ; EGG YOLKS . . . SUITABLE FOR HUMAN CONSUMPTION ' ' . IT IS CLEAR FROM THE EXPLANATORY NOTES TO THE CUSTOMS TARIFF OF THE EUROPEAN COMMUNITIES THAT THAT SUBHEADING APPLIES TO SUCH PRODUCTS ' ' EVEN IF THEY HAVE UNDERGONE A PARTICULAR TREATMENT WITH A VIEW TO REMOVING PATHOGENIC GERMS . . . ' ' AND TO EGGS , NOT IN SHELL , AND EGG YOLKS ' ' PRESERVED BY ADDING SMALL QUANTITIES OF CHEMICALS . . . ' ' . IT IS CLEAR FROM THE WORDING OF THE SAID SUBHEADING AND OF THE ABOVE-MENTIONED EXPLANATORY NOTES THAT THE PRODUCTS TO WHICH THE SUBHEADING REFERS ARE ESSENTIALLY BIRDS ' EGGS , NOT IN SHELL , AND EGG YOLKS , WITHOUT FURTHER PROCESSING , TO WHICH ANY CHEMICAL COMPONENTS ARE ADDED IN SMALL QUANTITIES ONLY , IN ORDER TO PRESERVE THEM .

7ON THE OTHER HAND HEADING 21.07 RELATES TO ' ' FOOD PREPARATIONS NOT ELSEWHERE CLASSIFIED OR INCLUDED ' ' . THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURES STATE WITH REGARD TO THAT HEADING , AT ( A ) AND ( B ), THAT , PROVIDED THAT SUCH PREPARATIONS ARE NOT COVERED BY ANY OTHER HEADING OF THE NOMENCLATURE , THAT HEADING COVERS INTER ALIA ' ' PREPARATIONS CONSISTING WHOLLY OR PARTLY OF FOODSTUFFS , USED IN THE MAKING OF . . . FOOD PREPARATIONS FOR HUMAN CONSUMPTION ' ' . FURTHERMORE , SUBHEADING 21.07 G I ( A ) 1 HAS A RESIDUARY CHARACTER IN RELATION TO FOOD PREPARATIONS AS A WHOLE INASMUCH AS IT REFERS TO THE ' ' OTHER ' ' FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED ' ' CONTAINING NO STARCH OR CONTAINING LESS THAN 5% BY WEIGHT OF STARCH ' ' .

8ALTHOUGH THE PRODUCT IN QUESTION HAS A SIGNIFICANT CONTENT OF WHOLE HEN-EGG POWDER IT CONTAINS APPRECIABLE QUANTITIES OF OTHER COMPONENTS , IN PARTICULAR SOYA MEAL AND GLUCOSE SYRUP WHICH ARE NOT IN THE NATURE OF CHEMICAL ADDITIVES WHOSE SOLE PURPOSE IS TO PRESERVE THE PRODUCT . ALTHOUGH THE GENERAL RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF PROVIDE AT 3 ( B ) THAT MIXTURES OF PRODUCTS WHICH ARE NOT REFERRED TO IN A SPECIFIC HEADING MUST BE CLASSIFIED IN ACCORDANCE WITH THE MATERIAL WHICH GIVES THEM THEIR ESSENTIAL CHARACTER THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE NEVERTHELESS STATE THAT THAT RULE ' ' CAN ONLY TAKE EFFECT PROVIDED THE TERMS OF HEADINGS OR SECTION OR CHAPTER NOTES DO NOT OTHERWISE REQUIRE ' ' . IN THOSE CIRCUMSTANCES , IT IS IMPOSSIBLE TO CLASSIFY A COMMODITY HAVING THE CHARACTER OF THE PRODUCT IN QUESTION UNDER ' ' BIRDS ' EGGS AND EGG YOLKS ' ' WITHIN THE MEANING OF SUBHEADING 04.05 B I . ON THE OTHER HAND THAT PRODUCT DISPLAYS THE CHARACTERISTICS PECULIAR TO A ' ' FOOD PREPARATION WITHIN THE MEANING OF THE COMMON CUSTOMS TARIFF ' ' . SINCE THE PRODUCT IS NOT REFERRED TO IN ANY HEADING OF THE NOMENCLATURE OR IN ANY HEADING OR SUBHEADING OF CHAPTER 21 OF THE TARIFF IT MAY THUS BE CONSIDERED AS COMING UNDER THE ' ' FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED . . . OTHER ' ' OF SUBHEADING 21.07 G I ( A ) 1 .

9FOR THOSE REASONS THE REPLY TO THE FIRST QUESTION MUST BE THAT A PRODUCT COMPOSED OF 52% WHOLE HEN-EGG POWDER , 25% SOYA MEAL , 22% GLUCOSE SYRUP AND 1% SALT AND LECITHIN DOES NOT COME UNDER HEADING 04.05 B I OF THE COMMON CUSTOMS TARIFF BUT CONSTITUTES A ' ' FOOD PREPARATION ' ' COMING UNDER SUBHEADING 21.07 G I ( A ) 1 OF THE TARIFF .

10WITH REGARD TO THE SECOND QUESTION ITS WORDING INDICATES THAT THE NATIONAL COURT SUBMITTED THAT QUESTION WITH REFERENCE TO CIRCUMSTANCES IN WHICH ' ' EVEN IF THE PRODUCT ' HENTEX ' DOES FALL UNDER TARIFF SUBHEADING 04.05 B I ' ' THE IMPORTING MEMBER STATE REFUSES TO FURNISH A CERTIFICATE TO THAT EFFECT .

11IT IS CLEAR FROM THE FOREGOING CONSIDERATIONS THAT THE PRODUCT IN QUESTION DOES NOT COME UNDER TARIFF HEADING 04.05 B I APPLIED BY THE EXPORTING MEMBER STATE . SINCE THE REFUSAL FOR THE IMPORTING MEMBER STATE TO ACCEPT SUCH A CLASSIFICATION HAS THUS PROVED TO BE JUSTIFIED UNDER THE COMMON CUSTOMS TARIFF THE SECOND QUESTION SUBMITTED BECOMES DEVOID OF PURPOSE .

COSTS

12THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF THE UNITED KINGDOM , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY A JUDGMENT OF 9 JUNE 1978 , HEREBY RULES :

A PRODUCT COMPOSED OF 52% WHOLE HEN-EGG POWDER , 25% SOYA MEAL , 22% GLUCOSE SYRUP AND 1% SALT AND LECITHIN DOES NOT COME UNDER HEADING 04.05 B I OF THE COMMON CUSTOMS TARIFF BUT CONSTITUTES A ' ' FOOD PREPARATION ' ' COMING UNDER SUBHEADING 21.07 G I ( A ) 1 OF THE TARIFF .