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Document 61971CC0036

    Opinia rzecznika generalnego Roemer przedstawione w dniu 8 marca 1972 r.
    Günter Henck przeciwko Hauptzollamt Emden.
    Wniosek o wydanie orzeczenia w trybie prejudycjalnym: Finanzgericht Hamburg - Niemcy.
    Sprawa 36-71.

    ECLI identifier: ECLI:EU:C:1972:15

    OPINION OF MR ADVOCATE-GENERAL ROEMER

    DELIVERED ON 8 MARCH 1972 ( 1 )

    Mr President,

    Members of the Court,

    During the period from April 1965 to January 1966 the Henck undertaking, the plaintiff before the court which has referred certain questions to this Court under Article 177 of the EEC Treaty, imported into the Federal Republic of Germany under various descriptions processed cereal products from Belgium. In the course of customs clearance, in accordance with the request of the importer, those products were classified under headings 23.03 and 23.04 of the Common Customs Tariff which encompass respectively the following products: heading 23.03: ‘Beet-pulp, bagasse and other waste of sugar manufacture; brewing and distilling dregs and waste; residues of starch manufacture and similar residues’; heading 23.04: ‘Oil-cake and Other residues (except dregs) resulting from the extraction of vegetable oils’. Since, at the date when they were imported the products to which those headings related did not come under a system of levies, it was possible to import the goods in question free of customs duty other than the turnover equalization tax payable on products coming under heading 23.03.

    Thereafter the principal customs office at Emden considered that the tariff classification which had been made was incorrect and that the goods should in fact be regarded either as mixed forage with varying starch contents or as maize groats and flour with a specific fat content and should therefore be classified under headings 11.01, 11.02 and 23.07. The said headings are entitled as follows: ‘Cereal flours’ (11.01) ; ‘Cereal groats, cereal meal; worked cereal grains, pearled, crushed, flattened (including flakes), except husked, glazed, polished or broken rice; germ of cereals, including flours thereof’ (11.02); ‘Animal food preparations including sweetened forage; other preparations used in animal feeding (additives, etc.): ex B containing cereals or containing products covered by the present Regulation [Regulation 19/62]’ (23.07). Since the products referred to in those headings come under the system of levies established by Regulation No 19/62 (OJ No 30, 1962, p. 933) the principal customs office requested payment of the levies relating to the imports in question together with the turnover equalization tax.

    The objection through administrative channels which the importer made against this assessment was dismissed on the ground that the tariff classification which had been applied was based on the information supplied when the export declaration was lodged in Belgium and on the analysis certificates from a Belgian Ministry. The Henck undertaking then brought the matter before the Finanzgericht Hamburg where it maintained that the Belgian analysis certificates upon which the customs authorities relied did not relate to the imported goods and that the certificates from a laboratory in Antwerp should be taken into consideration. The defendant in those proceedings, the principal customs office, replied that the samples submitted to the laboratory in Antwerp for analysis had been tampered with. It also observed that in support of the tariff classification made it was further entitled to rely on the reports drawn up by the producer undertaking with regard to the composition of the goods and on the analysis supplied by one of the customers of the plaintiff. In order to settle the dispute it still remains for the Finanzgericht Hamburg (as that court itself emphasizes) to ascertain the characteristics actually displayed by the imported goods by an appraisal of the analysis and the data upon which the parties have relied, as I have just indicated.

    However, before undertaking the necessary investigations for that purpose the court decided first of all to obtain clarification of certain points of law. For that reason it decided to make its order of 3 June 1971 whereby it stayed the proceedings and requested this Court to give a preliminary ruling on the following preliminary questions:

    ‘1.

    May a product be classified under heading 23.07 of the Common Customs Tariff and therefore made subject to the levy in application of Regulation (EEC) No 19/62 of the Council of 4 April 1962 (OJ No 30, 1962, p. 933) (see Article 1 of Regulation No 19/62 in conjunction with the annex to that regulation) on the sole basis of objective characteristics, that is, without regard to the manner in which it is produced or obtained and in particular irrespective of whether or not it is an intentional mixture?

    2.

    To what factual criteria must the composition of the product conform and in particular what must be its content in constituents such as, for example, starch, proteins, fats, etc. (see schedules annexed) in order that it may be classified :

    (a)

    under heading 11.01 of the Common Customs Tariff,

    (b)

    under heading 11.02 of the Common Customs Tariff,

    (c)

    under heading 23.07 of the Common Customs Tariff?

    3.

    Does a mixture, intentionally produced, come under heading 23.07 of the Common Tariff if it is composed :

    either

    (a)

     

    of 78 % of sorghum

     

    9 % sorghum gluten

    and, as to the remainder, of molasses, maize husks and bran,

    or

    (b)

     

    of 4.9 % maize gluten

     

    80.08 % sorghum gluten

    and, as to the remainder, of molasses, maize husks and bran?’

    (At this point we should note that, as the grounds of the order making the reference indicate, those figures appear to have been taken from reports drawn up with regard to the composition of the imported goods by the undertaking which, according to the customs authorities, manufactures them).

    Those questions occasioned written and oral observations on the part of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities; let us now consider how these matters should be considered from the point of view of Community law.

    1. 

    First of all I must make some observations on the admissibility of the questions as they have been put to the Court, for the plaintiff in the main action has expressed doubts in that respect.

    (a)

    The doubts relate above all to ques tion 3. The plaintiff maintains that since this question seeks to establish what tariff classification must be assigned to two precisely defined products, it really relates to the application of the law to the present case. It further points out that the Court is prohibited from going so far within the framework of proceedings under Article 177 of the Treaty.

    I must agree with it on this point. It is true that when a reference is made to the Court for a preliminary ruling it may not give a ruling on the tariff classification of clearly specified products. It is in fact only empowered to give a general interpretation in order to assist the national court in applying the customs tariff. In the present case the Court will give this general interpretation regarding heading 23.07 of the Common Customs Tariff, by replying to the first two questions. In this connexion in particular the exam nation of the second question will show the extent to which it is possible to give details of the composition of the products in question. However anything which exceeds this task of interpretation constitutes an application of the legal rule to the facts of the case and consequently falls within the jurisdiction of the national court.

    I must consequently state that, as it has been put, the third question cannot be considered as a request for interpretation which the national court is entitled to address to this Court.

    (b)

    The plaintiff in the main action argues that to the extent to which questions 2(a) and 2(b) relate to products other than maize and sorghum an answer is unnecessary to enable the dispute to be settled.

    This again is an observation with which I must agree, bearing in mind the facts of the case as they have been set out in the order making the reference. In fact there can be no question of the national court's endeavouring to obtain a general interpretation of the tariff headings which it mentions; it can only ask the Court to interpret those headings with regard to certain specific products at issue in the case which has been brought before it. This finding will not, however, require the Court to declare that questions 2(a) and (b) are partially inadmissible. In fact, all that is necessary is to restrict the scope of those questions in accordance with the facts brought to the notice of the Court and to limit them in accordance with the probable intentions of the court making the reference. Since I for my part do not consider this an insurmountable obstacle I shall now do that and consequently express an opinion on question 2(a) and (b) only to the extent to which an answer thereto is relevant to the judgment to be given by the national court.

    2. 

    Having made those preliminary observations I shall now embark upon an examination of the substance of the questions referred to the Court. As the Court will recall, the first question relates to the interpretation of heading 23.07 of the Common Customs Tariff to the extent to which reference is made thereto in the Annex to Regulation No 19/62. The products in question in the present case are defined therein as follows: ‘Animal food preparations including sweetened forage; other preparations used in animal feeding (additives etc.): ex B. containing cereals or containing products covered by the present Regulation’. In putting this question to the Court, the national court does not expect that this Court will give an exhaustive interpretation of the said heading, which would indeed be extremely difficult in view of the large number of products which it encompasses. In its first question the Finanzgericht simply wishes to know whether heading 23.07 may be applied solely according to the characteristics actually displayed by the product, or whether this is only relevant to intentional mixtures, which amounts to saying that regard must also be had to the method of producing the product.

    In this respect I must state from the outset that generally the objective characteristics of products must be above all taken into consideration for the purposes of classifying them in the Common Customs Tariff. This can be explained particularly for administrative reasons as it is often extremely difficult to establish that a particular manufacturing process was applied and to check that this was in fact the case. In addition it must be admitted that the converse could only apply if the words used to describe the products contained in a tariff heading indicate that the manufacturing process is adopted as the criterion.

    With reference to heading 23.07 I do not think that a consideration of its wording enables the conclusion to be drawn that the method of obtaining the product is a decisive factor. Moreover this point of view is confirmed by the Explanatory Notes to the Brussels Nomenclature which, according to the case-law of this Court, must be regarded as an authoritative and useful aid in interpreting the headings of the Common Customs Tariff, in the absence of other explanatory notes which must be taken into consideration. The Explanatory. Notes state that heading 23.07 covers forage preparations ‘designed: (1) To provide the animal with a rational and balanced daily diet (complete feed); (2) To achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed) ; or (3) For use in making complete or supplementary feeds’. Whilst it may be stated with regard to the first group that this description adopts as the criterion the existence of a mixture which is made for certain clearly specified purposes and which is consequently intentional, it is very difficult to maintain that this also holds good for the two other groups of products which it lists. Thus it would be extremely rash to claim that with regard to all the products referred to in heading 23.07 the existence of an intentional mixture is the decisive criterion.

    The plaintiff in the main action unsuccessfully objects with regard to this finding that bran, which is a type of animal feedstuff and is as a general rule obtained from a mixture of several products, has been classified under a special tariff heading. In any event I cannot agree with the Henck undertaking when it claims to deduce from this that when animal feedstuff's are of necessity the result of the use of a specific manufacturing process and are not therefore an intentional mixture, they cannot come under heading 23.07. I should like to point out in particular that, if the argument of the plaintiff had in fact the general scope which the plaintiff attributes to it, it is impossible to understand the significance of Note (c) which appears at the end of the Explanatory Notes to the Brussels Nomenclature on heading 23.07, according to which ‘Preparations which, when account is taken, in particular, of the nature, purity and proportions of the ingredients can be used indifferently for feeding animals or as human food’. This note indicates plainly that the sole decisive criterion lies in the characteristics and objective properties of the product without any need to have regard to the manufacturing process. Furthermore, the argument of the plaintiff is further weakened in view of an observation of the German Government which maintained, without being contradicted, that the Customs Co-operation Council had included in the preparations referred to in heading 23.07 products arising from a single manufacturing process, fish processing. It is certainly true that it would have been impossible to do so if the sole decisive criterion was the existence of intentional mixtures. I should finally like to note (as the German Government has also pointed out) that according to the recitals of the preamble to Regulation No 19/62, the system of levies established by this regulation was adopted with the particular purpose of protecting the processing industry. This constitutes yet another objective which may only be effectively attained by having regard above all to the characteristics displayed by the relevant products and not to the manner in which they have been produced.

    Consequently, it appears that in reply to the first question the Court must hold (in accordance, it appears, with the findings already reached by the Bundesfinanzhof) that the classification of a product under heading 23.07 of the Common Customs Tariff is mainly determined by the objective characteristics which it displays and that there is no need to inquire whether it is an intentional mixture or otherwise.

    3. 

    In its second question, which is in fact a group of three questions, the Finanzgericht asks the Court to what factual criteria the composition of goods must conform in order that they may be classified either under heading 11.01, heading 11.02 or heading 23.07 given that, having regard to the problems brought before this Court, the goods in question can only be those processed maize products and processed sorghum or milo products. The particular problem (always bearing in mind the dispute as it was presented to the national court) is how to distinguish those products and the residues referred to in headings 23.03 and 23.04 of the tariff. This question has been correctly referred to the Court for a ruling even though both the last-named tariff headings did not come under an organization of the market during the relevant period. In this connexion the Court has already ruled on this point in a number of judgments to which it will thus be sufficient to refer.

    (a)

    First of all we must consider here a general problem of interpretation, namely, whether it is permissible to take into consideration the requirements of the organizations of the market in solving questions involving the distinction between headings in the Common Customs Tariff. The Court had already stated in various judgments that such a method is justifiable. Nevertheless the plaintiff in the main action considers that the Court may not have recourse to such a procedure and it strongly urges the Court to refrain from so doing in future. In support of its argument it states that the agricultural regulations refer simply to the Common Customs Tariff which, in its turn, is based on the Brussels Nomenclature. It deduces from this that the economic circles concerned were entitled to believe that the tariff headings to which reference was thus made would not receive an interpretation differing from that generally accepted by the States which were signatories to the Brussels Convention. It claims in any case that there can be no question of bringing within the field of application of the organizations of the agricultural markets by interpretation products which the legislature did not clearly intend should be encompassed by them.

    What view is to be taken of this line of argument and of the urgent appeal which the importer addresses to the Court, requesting it to refrain from adopting the method of interpretation which it has used until now? It is true that the Common Customs Tariff to which the agricultural regulations refer is based on the nomenclature established by the Brussels Convention of 15 December 1950 on the Nomenclature for the Classification of Goods in the Customs Tariffs. It is also certain that there can be no question of modifying by interpretation the scope of the principal headings of this nomenclature within the framework of the Community. However I do not consider that the method approved by the case-law of the Court in any way tends to produce such a result. It appears that the judgments in which the Court has mentioned the principle of interpretation of which the plaintiff complains or those in which it applied that principle were based on the finding that, since the description of goods appearing in the Common Customs Tariff are of necessity worded in general terms, they leave a certain margin for interpretation. Furthermore it must also be observed that there is not complete unanimity in interpreting the nomenclature of the customs tariff as there are divergences both in the practices and in the economic legislation of the States which were signatories to the Brussels Convention and it is clear that they play a part in the application of this nomenclature. Many problems arise especially with regard to new types of product which are constantly appearing precisely in the processed cereals sector, perhaps indeed because of the provisions on the organization of the market laid down by the Community. When, bearing this situation in mind, the correct classification of the goods requires the legal context of the tariff heading, which certainly includes the interests of the organization of the market, to be taken into consideration, this merely amounts in short to advocating the application of an entirely normal method of interpretation. Where problems of demarcation must be resolved it is really only a question of going, if necessary, to the limit permitted by the objective wording of a tariff heading, bearing in mind the existence of a margin of interpretation and certain requirements of the Community. It cannot be claimed that this method fails to observe the principle of the legitimate expectation of interested parties, since, in the first place, all interested parties are aware of the context of the tariff headings in question (in other words, of the political objectives involved); secondly, with regard to completely new products, it is impossible to speak of well-defined international practice on classification which has been adopted for many years and which it is important to take into consideration. Finally, it is also impossible to state that in adopting this method the Court merely endeavours to discover the probable intentions of the legislature. Contrary to the plaintiff's view this does not imply, in the context of disputes regarding tariff classification that, in order to produce a specific result and where it appears sufficiently certain that this corresponds to the intention of the legislature, there is a general provision according to which the application of the heading in question must extend to similar goods. Consequently, I consider that ultimately no objection may be made to the application of the method of interpretation of which the plaintiff in the main action has criticized, and I thus suggest that the Court should, if necessary, again have recourse to it in the present case.

    (b)

    If we now consider heading 11.01 we may acknowledge, adopting the findings which have already been made by the Court in other cases, that the context in which it is situated indicates that this heading refers to products arising from the specific process of cereal milling. Furthermore, it is beyond doubt that the classification of a product under this heading cannot be affected by the fact that it has undergone certain processing operations where the processed product thereafter contains the essential constituents of the basic product in proportions corresponding to the normal variations in the contents in those constituents as displayed by that basic product in its natural state. This indicates in particular that the tariff classification of the product is unaffected by the removal of very small quantities of certain constituents (see the judgment of 14 July 1971 in Case 12/71, Henck v Hauptzollamt Emmerich—kibbled maize grains, [1971] ECR 743). However, in view of the wide variations which the proportions of the constituents of basic products apparently display I consider it unnecessary to quote figures. It is for the national court to reach the necessary findings in this respect, having recourse to an expert, if necessary. If large quantities of its essential constituents are removed from a product, one of the questions which arises is whether the remainder of the product is only what the tariff calls residues or waste. In this respect too, with regard to the extraction of starch and the distinction to be made in relation to heading 23.03 reference may be made to some important rulings contained in the case-law of the Court. From this it is clear that true residues with the meaning of heading 23.03 only exist if from the basic product has been extracted all the starch which it is possible to obtain by applying modern procedures with due regard for economy (see the judgment of 18 June 1970 in Cases 72 and 74/69 [1970] ECR 427 and 451, and of 14 June 1971 in Cases 12 and 14/71 [1971] ECR 743 and 779). This amounts to saying that the essential criterion is the starch content, which appears also to be the determining factor with regard to the nutritional value. However I do not consider that it is appropriate to mention percentages in this case either since it is another point on which there appears to be no agreement between the various parties concerned. These factors, too, must be determined by the national court which, it seems, is required to take into account the fact that the gluten remaining after the starch has been removed shows starch contents equal to those which are also displayed by certain very rich animal feedstuff's. Moreover the only additional observation which I consider may still be made is that the plaintiff's submissions on the necessity for making the distinction turn also on the ash content are not convincing. It has not succeeded in deriving support from the rates of levy fixed for bran and for flour, since that is a quite different problem of demarcation and levies are always imposed on bran and indeed extremely high levies are imposed upon bran which is rich in starch. In addition, there is certainly no possibility that the common market in animal feedstuffs might be disturbed. I should like to observe, furthermore, that it appears easy to manipulate the ash content and that the latter consequently cannot constitute a criterion for ascertaining with certainty whether a product is a genuine residue from the extraction of starch.

    The principles which I have deduced regarding the distinction between products of the milling industry referred to in heading 11.01 and residues from the extraction of starch also apply to the distinction to be made between residues from the extraction of oil from maize referred to in heading 23.04. In this respect it is important to observe that the oil is found principally in the maize germ; on the other hand, although the plaintiff has indicated that modern methods of cultivation produce grains which also contain oil it seems clear that it is only present in very small quantities. When oil is extracted from maize germ it is clearly impossible to consider as genuine residues within the meaning of heading 23.04 either the degermed maize grains or the products obtained by milling those grains. In fact (as has already been established in other cases) they are products of the milling industry to which reference is made in headings 11.01 and 11.02 since the products in question are similar to the latter with regard to their composition, the use for which they are intended and their commercial value. There can only be considered the true waste which remains from the constituents necessary for the extraction of oil as a residue in the proper sense of the word when recourse is had to modern methods of extraction. In this connexion it is clear that the decisive criterion consists in the oil content which appears to fluctuate according to the process used (pressing or other methods of extraction). Furthermore (as the Commission has rightly observed) it also seems that a high proportion of germ tissue is a characteristic factor for the identification of such residues. The starch content seems to vary like the oil content of residues, apparently according to whether the germ is removed by the wet process, in which the maize germ is removed by soaking, or by the dry process in which fragments of grain are removed at the same time as the germ, which clearly affects the starch content. Once again the lack of unanimity amongst the various parties concerned renders it impossible for me to quote precise figures. In this case too the facts must be established by the national court which will have to take into consideration chiefly the methods currently used for the extraction of oil.

    I should further like to add that if the oil contained in the grain is also extracted by methods other than those I have mentioned until now, if (to adopt the plaintiff's wording) the grain in its entirety is included in the oil extraction, it is clear, in view of what I have already stated regarding the essential constituents of maize grain, particularly its low oil content, that it is impossible to regard what remains after carrying out a manufacturing process of this nature as waste within the meaning of heading 23.04. In fact the requirements of the organization of the market cause such a residue to be classified under one of the headings in the chapter on products of the milling industry since it is similar to the products comi ng under this chapter with regard to its composition, its possible used and its commercial value.

    In view of the necessarily abstract terms which one is constrained to use within the context of the procedure under Article 177, I do not think that it is possible to say anything further on the interpretation of heading 11.01 and the distinction to be drawn between that heading and the headings referring to residues.

    (c)

    Reference may also be made to the same considerations regarding the distinction to be drawn between heading 11.02 and the headings pertaining to residues from the extraction of starch and from the extraction of oil. The reason for this is that according to the Explanatory Notes to the Brussels Nomenclature the distinction between the products referred to in heading 11.01 and the products referred to in heading 11.02 relates solely to their structure (flours on the one hand and groats etc. on the other) and does not result from their composition. I have thus nothing to add regarding heading 11.02 of the Common Customs Tariff.

    (d)

    It is a little more difficult to reply to subquestion (c) in which the Finanzgericht asks the Court to what factual criteria must the composition of the forage preparations referred to in heading 23.07 conform when they contain products which fall within the field of application of Regulation No 19/62. In fact, as I have already indicated, the products covered by this heading are numerous. It is consequently impossible to supply an exhaustive description of them in this case; I can only give certain indications and clarify certain aspects which should enable the national court to reach the solution of the dispute before it.

    The first point to be borne in mind is that the word ‘preparations’ need not necessarily be understood in the sense of ‘mixtures’. The German Government (rightly it appears to me) has reached this conclusion on the basis of other tariff headings (headings 16.04 and 20.06) in which it seems clear that the word ‘preparations’ refers quite generally to a processing operation. This means that it is also possible to speak of a ‘preparation’ with regard to a processed product provided, however, that the operation to which the product is subjected goes beyond what is permissible under a specific tariff heading, in other words, on condition that the processing operation reaches a certain degree of industry. When in fact it is not only a processing procedure the general principles governing the interpretation of the nomenclature of the Common Customs Tariff provide that the processed product remains classified in the heading initially prescribed. In this respect it is of interest to note that the Explanatory Notes to the Brussels Nomenclature on heading 23.07 expressly exclude goods which have merely been subjected to pressing. Furthermore, according to the statements of the German Government, examples based on the practice followed by the Customs Co-operation Council, Brussels, show that not only mixtures are regarded as preparations within the meaning of heading 23.07 but certain processed products have also been classified under this heading (for example milled waste bread unfit for human consumption and the products known as solubles obtained by processing fish). In this respect however (particularly in view of headings 23.03 and 23.04) the residues and wastes in question cannot merely originate in a processing operation applied to products coming under one and the same tariff heading. In such a case, indeed, heading 23.07 could be applied only if another substance, such as molasses, had been added to the waste (it seems that this is a common practice in order to use such waste rationally).

    Inasmuch as heading 23.07 relates to mixtures it should further be noted that the definition of that heading by no means implies that it concerns mixtures of products coming under different tariff headings. Here too the Federal Government relies on certain classification opinions of the Customs Co-operation Council to this effect. Since, according to the case-law of this Court, the explanations given in those opinions may be taken into consideration within the framework of Community law in order to resolve problems of tariff classification, the national court ought thus to consider them in this connexion. Nevertheless I should like to observe that it would be unreasonable to include in the system of levies by the expedient of heading 23.07 a mixture of products which are not specifically referred to as such in the rules of the organization of the market. I am also of the opinion that in considering mixtures there are grounds for ignoring mere impurities in cereals and substances added in insignificant quantities unless they are used in small quantities owing to their special effectiveness (as in the case of vitamins). However, in this case also it seems impossible to quote percentages. Even as regards molasses and the fact that the Explanatory Notes to the Brussels Nomenclature merely state that sweetened forage within the meaning of heading 23.07generally contains a proportion of molasses of more than 10 % by weight, it is still possible that small percentages may constitute sufficient justification for classifying the product under heading 23.07. The sole case in which molasses must not be taken into consideration in the present context is where it is used as a simple binder‘generally not exceeding 3 % by weight’ (to adopt the wording of note (a) appearing at the end of the Explanatory Notes to the Brussels Nomenclature on heading 23.07).

    The foregoing remarks seem to me to constitute the substance of the rules which may be deduced for the purposes of the interpretation of tariff heading 23.07 in relation to the matters before the court making the reference. The only further remark which I can add is that according to the principles stated in the case-law of this Court it may also be important to determine whether a product should be given the same tariff classification as prepared animal fodder, as unusually encountered in the trade, because it is similar thereto in composition, possible uses and commercial value. These are the indications which should in my view enable the national court to resolve the problems of tariff classification raised in the dispute which it is called upon to settle.

    4. 

    The considerations which I have put forward with regard to admissibility absolve me from the necessity of dealing with the third question any further. Howver, it may be of interest to the national court to learn that the Commission considers it quite possible to classify the goods described in the third question under heading 23.07. The German Government also takes this view and in this respect refers to well-balanced mixtures and highvalue feeding stuffs. It appears that it is only as regards the products described in question 3(b) that the plaintiff expresses doubts as to their classification under heading 23.07. These doubts are essentially based on the fact that the products come under the same tariff heading and the plaintiff accordingly ignores the molasses ingredient although it may very well be relevant in making a classification under heading 23.07 unless the molasses is used purely as a binder. Within the context of this opinion I do not consider it necessary to add any further evaluation to these remarks. Since the national court is aware of them it must draw the conclusions which it considers proper.

    5. 

    To conclude my examination, my opinion on the questions referred to the Court by the Finanzgericht Hamburg is as follows :

    (a)

    The classification of a product under heading 23.07 of the Common Customs Tariff is determined first and foremost by the objective characteristics which it displays. On the other hand the method by which it is obtained or produced, especially whether it constitutes an intentional mixture or otherwise, is in general irrelevant.

    (b)

    It is impossible to summarize in a brief statement either findings reached on the factual criteria to which the composition of goods must conform in order to be classified under headings 11.01, 11.02 and 23.07 of the Common Customs Tariff or the findings on the distinguishing criteria between headings 23.03 and 23.04. In this connexion reference should be made to the considerations appearing in my opinion.

    (c)

    Question 3 is inadmissible since it seeks the application of the law to the present case. The problem of tariff classification which is raised must be resolved in accordance with the answers given to the first two questions.

    ( 1 ) Translated from the French version.

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