Court of Justice 24-11-1971 ECLI:EU:C:1971:111

I — Summary of facts and of procedure

The facts and procedure may be summarized as follows:

On 30 May and 9 July 1968 the plaintiff in the main action (hereinafter called the plaintiff) applied for customs clearance in Germany of two consignments of goods described as ‘Diet-Mayonnaise’. In both cases the customs authorities, deciding not to inspect the goods, classified them under heading 21.04 B of the Common Customs Tariff and by an informal notice of duty imposed import duty in accordance with the classification of the goods.

As regards the import or y jury, tne plaintiff stated that the product was made of wine vinegar, whole egg, salt and butter oil.

After import the plain tiff sold these goods to a company ‘Agricola AG’, Hamburg, which processed them into butter fat. On the basis of observations made on 5 September 1969 by the Betriebsprufungsstelle Zoll (AwIÜ)) (Customs Division of the Businesses Inspectorate) regarding the examination of the plaintiff's imports, the German Customs Office issued an amended duty notice on 22 October 1969 in which it claimed additional duty. Following the opinion expressed in the observations of the Betriebsprüfungsstelle, the Customs Office considered that the product in question constituted a ‘food preparation not elsewhere specified or included’ and should be classified under heading 21.07. The plaintiff brought an action against this classification before the Finanzgericht München before which it founded its argument on the fact that the imported product consisted of butter oil mayonnaise. Mayonnaise is mentioned in the explanatory notes to the German Customs Tariff, Note I (1) to heading 21.04. Since the explanatory notes make no distinction, it is irrelevant whether the base of the mayonnaise is milk fat or vegetable fat.

Regulation No 241/70 of the Commission of 9 February 1970 (OJ L 32, p. 6) shows that the goods in question must be classified under heading 21.04 of the Common Customs Tariff, because, in issuing this regulation, the legislature intended to amend the state of law. This is shown by the fact that the regulation fixes the date on which it enters into force and by the fact that the heading refers to ‘classification of goods’. Even if the regulation was only of an interpretative nature, the product in question could not be classified under heading 21.07 in the absence of the requisite conditions being fulfilled for this classification which refers to products which are not intended for use as sauce or condiment or mixed seasoning.

Finally the plain tiff maintained that in view of the fact that the national administrations were no longer entitled to issue ‘verbindliche Zolltarifauskünfte (binding customs tariff notices) the plaintiff could rely on good faith.

The Hauptzollamt (Principal Customs Office), the defendant in the main action, takes the view that the product in question, having regard to its physical attributes and in particular the flavour characteristics, constitutes neither mayonnaise nor any other mixed condiment or mixed seasoning within the meaning of heading 21.04.

This view is confirmed by Regulation No 241/70 which excludes from tariff heading 21.04: ‘food preparations based on milkfats’, which contain various ingredients (egg yoke, vinegar, salt, for example) used also in the preparation of sauces, mixed condiments or mixed seasonings and which are clearly not intended for consumption in the unaltered state as sauces, mixed condiments or mixed seasonings.

Contrary to the plain tin s argument, the sole purpose of Regulation No 241/70 is solely to ensure uniform application of the Common Customs Tariff in the Member States of the EEC.

As regards the plaintiff s statement that the German revenue authorities are no longer entitled to issue ‘verbindliche Zolltarifauskünfte’, the Hauptzollamt maintains that these notices do not constitute a generally binding interpretation of definitions of the Common Customs Tariff and therefore are still permissible after the latter had entered into force.

In view of the foregoing the German court by order dated 27 May 1971, registered at the Court of Justice on 15 June 1971, referred the following questions to the Court for a preliminary ruling:

1. 1. Does it make any difference for the classification of a product described as ‘diet-mayonnaise’ under heading 21.04 of the Common Customs Tariff whether the product has been manufactured by using butter, butter fat or fractionated butter oil, and if so, what difference?

   2. Is trade usage (‘Verkehrsauffass-ung’) relevant for the classification of a product under heading 21.04 or 21.07? If so, is the trade usage in all the Member States decisive or can a trade usage prevailing solely in one Member State be taken into account if it diverges from the trade usage in other Member States?

   3. Was Regulation No 241/70, by virtue of its content, already applicable in 27 May and 9 July 1968, or not until 13 February 1970?

   4. In the event of an affirmative answer to question (c):

      1. Must the word ‘clearly’ in Regulation No 241/70 be understood as meaning that on the basis of the properties of the product at the relevant date it must be automatically discernible that the product is not intended for consumption in the unaltered state as a sauce, mixed condiment or mixed seasoning?

      2. By whom (the Customs Office or the appropriate trade circles) must this be discernible? In this connexion may reference be made to the trade usage in the importing country?

      3. Is it sufficient for the word ‘clearly’,

         1. that the commercial documents show .that the product is not intended ab initio for consumption in the unaltered state as a sauce, mixed condiment or mixed seasoning, or

         2. can this be deduced from the circumstances of the further treatment of the product after the relevant date? If so, what conditions must be fulfilled for this deduction?

2. 1. Since the entry into force of Regulation No 950/68 are the Oberfinanzdirektionen still empowered to issue binding customs tariff notices (‘verbindliche Zoll-tarifauskünfte’) under Article 23 of the German Zollgesetz?

   2. If (a) is answered in the negative: was this also the case before the entry into force of Regulation No 950/68 with regard to products that were subject to EEC commercial rules, in this case Regulation No 160/66 of the Council?

The plaintiff, the Government of the Federal Republic of Germany and the Commission of the European Communities submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without hold-ins a preparatory inquiry.

Kurt Siemers & Co., represented by Peter Wendt, the Government of the Federal Republic of Germany, represented by Horst Laubereau and Harry Schäpe and the Commission of the European Communities, represented by Peter Kalbe, presented oral argument at the hearing on 5 October 1971.

The Aavocate-General delivered his opinion at the hearing on 27 October 1971.

II — Written observations submitted to the Court

The observations submitted under Article 20 of the Statute of the Court of Justice may be summarized as follows:

The first question

2 The first question seeks in the first place to ascertain whether it makes ‘any difference for the classification of a product described as “diet-mayonnaise” under heading 21.04 of the Common Customs Tariff whether the product has been manufactured by using butter, butter fat or fractionated butter oil, and if so, what difference’. Then it is asked whether the tariff classification depends on trade usage (Verkehrsauffassung) or on the provisions of Regulation No 241/70 which did not come into force until after the imports in question.

3 It appears from the documents in the case that the dispute is whether the product in question should be classified under heading 21.04 (sauces; mixed condiments and mixed seasonings) or heading 21.07 (food preparations not elsewhere specified or included) of the Common Customs Tariff. The imports were made on 30 May and 9 July 1968, the first, therefore, before 1 July 1968, the date of the entry into force of the Common Customs Tariff. Nevertheless, at the date of this import the products of heading 21.07 of the Brussels Nomenclature were subject to the provisions of Regulations No 160/66/EEC of the Council of 27 October 1966 establishing a marketing system for certain goods derived from the processing of agricultural products. Thus the question put may in this respect be interpreted as relating to the distinction between heading 21.07, incorporated in this regulation, and heading 21.04.

4 In order to ensure the uniform interpretation and application of the Brussels Nomenclature of 1950, which the Common Customs Tariff has adopted, Articles III and IV of the Brussels Convention provide that a Nomenclature Committee shall prepare explanatory notes and classification notices under the supervision of the Customs Cooperation Council.

5 Since the Community authorities had not issued any explanatory provisions or other more detailed provisions regarding heading 21.04 at the time of the imports in question, the abovementioned explanatory notes and classification notices must be regarded as an authoritative source of information for the interpretation of this tariff heading. The relevant Brussels Explanatory Notes have the following wording: ‘Under this heading come preparations, generally strongly seasoned, which are intended to improve the flavour of certain foods (in particular, meat and fish) and are manufactured from various substances (eggs, vegetables, fruits, flour, starches, oil, vinegar, sugar, spices, mustard, flavouring, etc.). Such preparations may be more or less liquid — this applies especially to sauces — or in powder form and packaged in any way whatsoever (in bottles, glasses, jars, etc., and also hermetically sealed)’. The fourth paragraph of the notes to heading 21.04 mentions examples of products corning under this heading and in the first place mentions mayonnaise.

6 According to these Explanatory Notes the products covered by heading 21.04 are characterized by the fact that they are generally spiced and intended to improve the flavour of food. Thus such products must be preparations which are directly suitable for the purpose specified.

7 Consequently, the addition of butter, butter fat or fractionated butter oil to these products, which does not necessarily per se preclude the classification of a product under heading 21.04, is of decisive importance in so far as it is capable of impairing the flavour-improving qualities of these products. Whether this is the case the appropriate national authorities must decide on the basis of all the factual data connected with the method of manufacture or the composition of the product in question.

8 Regulation No 241 /70 cannot be applied for the purpose of determining the classification of products imported before its entry into force. This regulation, which makes detailed provision for the conditions for classification under heading 21.07, is of a legislative nature and cannot have retroactive effect.

9 It must therefore be answered that the classification of a product under heading 21.04 of the Common Customs Tariff is precluded if the use of butter, butter fat or fractionated butter oil in the manufacture of the product impairs its direct suitability for improving the flavour of certain foods. It is for the competent national court to decide whether this is the case.

The second question

10 The Court is asked to decide whether the entry into force of the Common Customs Tariff can impair the legal effects of verbindliche Zolltarifauskünfte (binding customs tariff notices) issued under Article 23 of the German Zollgesetz.

11 This provision stipulates that the Oberfmanzdirektionen, on application, shall issue binding customs tariff notices regarding the tariff heading of the customs tariff to which a product belongs. On the one hand, it is provided that in the event of the amendment or annulment of the notice, for three months thereafter the applicant may still demand tariff classification in accordance with the notice, in so far as the notice is not based on incorrect information supplied by the applicant. On the other hand, it is provided that the notice shall cease to have binding effect if the legal provisions applied in it are amended.

12 Although such a tariff classification in advance is not found in Community law, it is not prohibited by that law. The security which it provides for importers and the facilitation of work which it involves for the national authorities may induce these authorities to use such a procedure governed by their national law. This is all the more so where the notices in no way lay down legal rules of general application and fit into the framework of the normal procedures for the application of the tariff classification provisions to individual cases.

13 Accordingly, the entry into force of Regulation No 950/68 of the Council has not affected the legal effects of verbindliche Zoutarifauskünfte issued under Article 23 of the German Zollgesetz.

Costs

14 The costs incurred by the Government of the Federal Republic of Germany and the Commission of the European Communities which submitted observations to the Court are not recoverable and 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, the decision on costs is a matter for that court.