Summary;Judgment — ECLI:EU:C:2023:876
Date: 2023-11-16
Language of the case: Hungarian
Court formation: Sixth Chamber
Subject matter: Free movement of goods;Internal market - Principles;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-366/22 – 1 
Case C-366/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 June 2022 
Referring court: 
Pécsi Törvényszék (Hungary) 
Date of the decision to refer: 
29 April 2022 
Applicant: 
Viterra Hungary Kft. 
Defendant: 
Nemzeti Adó- y Vámhivatal Fellebbviteli Igazgatósága 
  
Subject matter of the main proceedings 
Correct customs classification of a product not originating from the European 
Union known as ‘soya meal’. 
Subject matter and legal basis of the request 
Interpretation of EU law, in particular Commission Implementing Regulation 
(EU) 2016/1821: 
– first, in particular, in order to determine whether the aforesaid EU legislation 
precludes the practice of a Member State whereby a toasting process which is 
required in order to remove hexane, used in the extraction of soya-bean oil, 
from the residue that remains after the oil has been extracted, is deemed to 
constitute final processing which provides grounds for classifying the product 
under heading 2309 of the nomenclature and prevents it from being classified 
under heading 2304 of the nomenclature; 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-366/22 
 
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– second, in particular, in order to clarify the concept of ‘unfit for human 
consumption’ in connection with a product, and specifically to determine 
whether the concept should be interpreted as meaning: (i) that the product 
cannot be used in the food industry – that is to say, that it cannot be used to 
manufacture a product that is fit for human consumption; or (ii) that, while the 
product is unfit for human consumption when it is imported into the Member 
State, once it has been processed it can be used to manufacture a product that is 
fit for human consumption; 
– third, in particular, in order to analyse the concept of animal feeding, 
specifically, whether goods imported in the form of pellets or granules are 
considered to be animal feed if they require further processing in order to make 
them suitable for use in animal feeding; 
– fourth, in particular, in order to determine whether the aforesaid EU legislation 
precludes the practice of a Member State whereby the fact that the product has 
been genetically modified precludes it from being fit for human consumption; 
– fifth, in particular, in order to determine whether, when classifying a product 
under heading 2304 or heading 2309 of the nomenclature, regard must be had 
to the actual use made of the product after it has been imported, or to the 
product’s characteristics at the time of importation, in order to determine 
whether the product can be used for human consumption and/or animal 
feeding; 
– sixth, in particular, in order to examine whether the fact that soya meal is unfit 
for human consumption does not prevent it from being classified under heading 
2304 of the nomenclature; 
– seventh, in particular, in order to examine whether a product which has 
undergone the toasting process required in order to remove hexane, used in the 
extraction of soya-bean oil, from the residue that remains after the oil has been 
extracted must be classified under heading 2304 or under heading 2309 of the 
nomenclature. 
Legal basis: Article 267 TFEU. 
Questions referred for a preliminary ruling 
(1) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as precluding the practice of a Member State whereby a toasting 
process, which is required in order to remove hexane (used in oil extraction and 
harmful to animal and human health) from the residue that remains after soya-
bean oil has been extracted using the solvent hexane, is deemed to constitute final 
processing which provides grounds for classifying the product under heading 2309 
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of the nomenclature and prevents it from being classified under heading 2304 of 
the nomenclature? 
(2) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as meaning that a product is to be considered ‘unfit for human 
consumption’ when: 
(a) the use of that product in the food industry is entirely ruled out or 
impossible, that is to say, that product cannot be used or processed in the 
food industry or serve as the basis for manufacturing a product which can be 
consumed by humans; or 
(b) that product cannot be consumed by humans in its imported state but, once 
that product has been used or processed in the food industry, it may serve as 
the basis for manufacturing a product which can be consumed by humans? 
(3) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as meaning that a product may also be considered a valuable animal 
food where the product imported in the form of pellets or granules must be 
physically ground and mixed with a compound feed before it can be consumed by 
animals? 
(4) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as precluding the practice of a Member State whereby the fact that the 
product has been genetically modified precludes it from being fit for human 
consumption, that is to say, that genetically modified soya meal cannot be used in 
the food industry? 
(5) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as meaning that, when classifying a product under heading 2304 or 
heading 2309 of the nomenclature, regard must be had: 
(a) to the actual use made of the product after it has been imported; or 
(b) to the objective characteristics of the product at the time of importation, that 
is to say, whether the product can, in its imported state, be used for human 
and/or animal consumption? 
(6) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-366/22 
 
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tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as meaning that the fact that soya meal is unfit for human consumption 
does not prevent it from being classified under heading 2304 of the nomenclature? 
(7) Must EU law, in particular Commission Implementing Regulation (EU) 
2016/1821 amending Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, be 
interpreted as meaning that soya meal such as that at issue in the present 
proceedings, that is to say, soya meal which undergoes the toasting process 
required in order to remove the hexane used in oil extraction (which is harmful to 
animal and human health), is included under heading 2304 or under heading 2309 
of the nomenclature? 
Provisions of international law relied on 
Explanatory Notes to the Harmonized Commodity Description and Coding 
System (‘the HS’) concerning heading 2304, drawn up by the World Customs 
Organization (WCO)  
Provisions of European Union law and case-law relied on 
– Regulation (EU) No 952/2013 of the European Parliament and of the Council 
of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1; 
‘the Customs Code’), Articles 56(2) and 57(1). 
– Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and 
statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, 
p. 1), Part I of Annex I, text of the notes to Chapter 23, and description of 
subheading 2304 00 00 and heading 2309. 
– Commission Implementing Regulation (EU) 2016/1821 amending Annex I to 
Council Regulation (EEC) No 2658/87 on the tariff and statistical 
nomenclature and on the Common Customs Tariff (OJ 2016 L 294, p. 1; ‘the 
CN’). 
– Commission Implementing Regulation (EU) No 1271/2011 of 5 December 
2011 concerning the classification of certain goods in the Combined 
Nomenclature (OJ 2011 L 325, p. 1). 
– Commission Regulation (EU) No 68/2013 of 16 January 2013 on the Catalogue 
of feed materials (OJ 2013 L 29, p. 1). 
– Case-law of the Court of Justice of the European Union, in particular, 
judgments of 3 March 2016, Customs Support Holland (C-144/15, 
EU:C:2016:133), paragraphs 22, 36 and 38; of 11 March 1982, Fancon 
(129/81, EU:C:1982:91); of 22 September 1988, Cargill (268/87, 
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EU:C:1988:444); of 14 December 1972, van de Poll (38/72, EU:C:1972:127); 
of 6 October 2021, Consorzio Italian Management and Catania Multiservizi 
(C-561/19, EU:C:2021:799); and of 15 November 2018, Baby Dan (C-592/17, 
EU:C:2018:913). 
Provisions of national law and case-law relied on 
– Az uniós vámjog végrehajtásáról szóló 2017. évi CLII. törvény (Law CLII of 
2017 on the application of EU customs law), Article 4(1), Article 48(1), (3) and 
(5), and Article 66(2). 
– Proceedings No 14.K.27 405/2018 and No 7.K.27 073/2018 before the Pécsi 
Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Pécs, 
Hungary), and judgment No 7.K.27 073/2018/43 issued in the latter 
proceedings. 
– Proceedings No 6.K.701 803/2020 before the Pécsi Törvényszék (Pécs High 
Court, Hungary) and judgment No 101.K.700 057/2020/64 issued in the 
proceedings. 
– Judgment No 7.K.21 713/2010/5 of the Baranya Megyei Bíróság (County 
Court, Baranya, Hungary). 
– Judgment No Kfv.I.35 489/2019/7 of the Kúria (Supreme Court, Hungary) of 
14 May 2020; order No Kfv.I.35 025/2020/8, and order 
No Kfv.I.35 552/2021/6 of 20 January 2021. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant began formalities for the release for free circulation of soya meal 
from Brazil known as ‘Brazilian Soja Bean Meal 45,5%’ (‘the soya meal’ or ‘the 
product’) with TARIC code 2304 00 00 00. 
2 The tax and customs authority of first instance (‘the tax authority of first 
instance’) recorded in its sampling report that the product is used as ‘feed’. The 
soya meal was transported in bulk in the load compartment of a lorry to the 
applicant’s address in Budapest. 
3 The NAV Szakértői Intézete [Committee of Experts of the National Tax and 
Customs Authority; ‘the Committee of Experts’] examined the product and 
determined that production comprised the following stages: 
1. Cleaning the soya beans. 
2. Milling, to facilitate oil extraction. 
3. Conditioning – pre-heating. 
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4. Extraction (de-oiling) using the solvent hexane. 
5. Separating the oil and the solvent by steam distillation. 
6. Toasting (desolventising the soya meal). 
4 The tax authority of first instance examined those stages from the perspective of 
their impact on the customs classification of the product. The tax authority 
determined that during the toasting process, the solvent (hexane) is removed from 
the product and the anti-nutrients are reduced to an acceptable level; (hexane is a 
danger to human health and to the environment, and the anti-nutrients render the 
goods unfit for use as feed). According to the tax authority of first instance, 
although the toasting process is not intended to alter the nutritional values [of the 
soya meal], it does nevertheless alter them, and therefore the reduction of the anti-
nutrients to an acceptable level is an important factor in terms of customs 
classification, because the reduction makes it possible to use the product as feed. 
5 The report by the Committee of Experts found that the product is the preparation 
obtained through further processing of the heat-treated vegetable residue with 
reduced oil content which is produced during the extraction of soya-bean oil using 
hexane. 
6 In the light of that expert report, the tax authority of first instance ruled that the 
customs classification selected by the applicant (2304 00 00 00) was incorrect, 
since the product fell within subheading 0309 90 of the HS and should have been 
classified under CN subheading 2309 90 31, with TARIC code 2309 90 30 80. 
The tax authority of first instance therefore changed the tariff heading under 
which the product was classified and, as a result, identified a difference in the 
amount of customs duties and VAT payable by the applicant. 
7 The applicant had relied on judgment No 7.K.27 073/2018/43 of the 
Administrative and Labour Court, Pécs, which had become final and in which that 
court had found, on the basis of an expert examination, that the product should be 
classified under CN heading 2304. The applicant had also argued that there was a 
fundamental and relevant similarity between the products examined in the two 
cases. The tax authority did not accept that argument. 
8 The tax authority of first instance stated that the product under examination met 
the three requirements established in the judgment of the Court of Justice of 
3 March 2016, Customs Support Holland (C-144/15) (namely, first, that it was 
suitable for animal feeding; second, that it had undergone final processing; and 
third, that, as a result of that processing, it had lost its original essential 
characteristics), and therefore it had to be classified under CN heading 2309. 
9 The applicant lodged an appeal against the decision at first instance with the 
Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóságához (Appeals Directorate 
of the National Tax and Customs Authority; ‘the defendant’); it argued that the 
three aforementioned requirements were not met, and continued to maintain that, 
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based on final judgment No 7.K.27 073/2018/43 of the Administrative and Labour 
Court, Pécs, the product should be classified under CN heading 2304. 
10 The defendant, which heard the administrative appeal, endorsed the decision at 
first instance and declared that the authority of first instance had correctly 
classified the product in accordance with the contents of the report by the 
Committee of Experts. It stated that the product was classed as a preparation and 
had undergone final processing, as a result of which the anti-nutrients (harmful 
substances) had been deactivated and the product could be used for animal feed. 
The product is therefore the result of a manufacturing process during which it 
loses the characteristics of vegetable materials and thus becomes suitable for use 
in animal feeding. 
11 It also noted that, while the product is not considered to be a protein concentrate 
and has not undergone processing to increase its protein content, it still satisfies 
the concept of ‘preparation’ developed in the case-law of the Court of Justice. 
12 The defendant also stated that, according to statements made by the person who 
acted as the applicant’s representative in the sampling procedure, the product was 
suitable only for animal feeding; this point was also corroborated by the 
technological process undergone by the product in order to remove the anti-
nutrients. 
13 The defendant stated that judgment No 7.K.27 073/2018/43 of the Administrative 
and Labour Court, Pécs, was not relevant to the present proceedings because the 
product under consideration in the former case was not comparable with the 
product in the present case. 
14 The applicant brought administrative-law proceedings before the referring court, 
in which its principal claim was for the annulment of the administrative decision 
and, in the alternative, in addition to the annulment of the decision it requested 
that the tax authority of first instance be ordered to carry out the procedure again 
and be ordered to pay costs. 
15 In its action, the applicant argued that the product was not suitable only for animal 
feeding and, therefore, it did not fall within heading 2309, since one of the 
requirements for classification under heading 2309 is that the product is suitable 
‘only’ for animal feeding. It considered that the defendant acted contrary to law in 
failing to analyse the term ‘only’. In its opinion, the expression ‘must … be 
suitable only for animal feeding’ must be interpreted as meaning that only goods 
which are for use only for animal feeding and are unfit for human consumption 
can be classified under heading 2309. It stated that the correct interpretation of the 
expression ‘must … be suitable only for animal feeding’ was also supported by 
the explanatory notes to the HS for CN heading 2309, which exclude products that 
can be used for both animal feeding and human consumption from that heading, 
and by the various language versions of CN heading 2309. It was also supported 
by judgment No 7.K.27 073/2018/43 of the Administrative and Labour Court, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-366/22 
 
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Pécs, issued in respect of another undertaking. In that case, the court had stated 
that, with regard to a product, namely extracted soya meal, which, both 
objectively and from a customs classification perspective, is the same in all 
significant respects as the product imported by the applicant, the fact that the end 
use of a specific product is as animal feed is not grounds for classifying it under 
heading 2309 if the product in question is suitable not only for animal feeding but 
also for human consumption. The fact that a product is suitable for human 
consumption therefore excludes it per se from inclusion under heading 2309. 
16 With regard to the second requirement for classification under heading 2309, the 
applicant drew attention to the fact that the product had not undergone any final 
processing which would cause the original material to lose the essential 
characteristics of the vegetable matter from which it was produced. It considered 
that the defendant had incorrectly defined the concept of final processing, that it 
had not assessed the specific characteristics of the product properly and, lastly, 
that it had not compared the characteristics of the product before and after 
toasting, which would have enabled the applicant to establish the extent to which 
the defendant considered the change in those characteristics to be decisive. 
17 The applicant argued that the product could not be considered a protein 
concentrate, and that no action had been performed to increase the protein 
concentration in the product. The product has the same nutrient content before and 
after toasting, meaning that this is not a case of protein concentration and, after 
that process, the product must still be classified as extracted soya meal. 
Consequently, the product does not constitute a ‘preparation’ within the meaning 
of the case-law of the Court of Justice. 
18 The applicant proposed that judgment No 7.K.27 073/2018/43 of the 
Administrative and Labour Court, Pécs, and the report submitted by a private 
expert in the proceedings which led to that judgment, should be obtained and 
taken into account as evidence, and that an expert should be appointed. 
19 The applicant had also brought an action against the defendant in another case 
concerning the same subject matter. In that case, the Supreme Court had set aside 
judgment No 14.K.27 405/2018/41, given by the Administrative and Labour 
Court, Pécs, in the administrative-law proceedings brought by the applicant, and 
had ordered the court of first instance to hear the case again and to issue a new 
decision. As part of that second trial (‘the retrial’), the Pécs High Court appointed 
a series of experts. 
According to the defendant, in the retrial the court should have ruled on whether 
the imported product should be classified under heading 2304 or under heading 
2309, having regard to the degree of processing and the chemical composition of 
the product. 
At the retrial, the defendant argued that, during the proceedings, it had proved that 
the product came under heading 2309 and had also proved that, for definition 
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purposes, the decisive factor is not whether a product is suitable for use only for 
animal feeding or for both animal and human consumption – given that, with 
appropriate processing, it can be made suitable for both purposes – but the degree 
of processing of the product at the time of importation. It also stated that the three 
requirements it had set out were met by the product in question, and therefore the 
customs classification was correct. 
The Pécs High Court dismissed the action by judgment 
No 101.K.700 057/2020/64 of 17 September 2021. It based its judgment on 
Articles 56(2) and 57(1) of the Customs Code and the relevant explanatory notes 
to the CN. 
20 In the present case, the applicant has referred on numerous occasions to the fact 
that the composition of the product examined in the judgment given in the retrial 
referred to above (soya meal from Argentina) and the product under consideration 
in the present proceedings (soya meal from Brazil) is the same, as has also been 
confirmed by the expert report supplied in the present proceedings. The applicant 
has also asked for the expert report supplied in the retrial to be completed and 
refined, and for the contradictions in the report to be resolved. 
21 In view of the fact that the products were the same, the court considered that, 
overall, judgment of the Supreme Court No Kfv.I.35 489/2019/7 was decisive; 
that judgment included the following statements: 
Extracted soya meal is classified under heading 2309 rather than heading 2304, 
because it is used only for animal feeding and undergoes further processing so that 
it can be used after extraction [of the oil]. 
The third requirement established in the judgment in Customs Support Holland 
(C-144/15) is also decisive in this case. 
In that regard, the product is suitable only for animal feeding, because it is 
manufactured from genetically modified soya beans, which means it cannot be 
used in the food industry. Moreover, the applicant did not purchase the residue 
obtained immediately after the extraction of the oil, because it was not suitable for 
animal feeding without further processing. Preparation of the product at issue 
involved adding hulls to the extracted soya meal to increase the fibre content, and 
removing the harmful substances; therefore the product purchased by the applicant 
was not the residue obtained immediately after oil extraction, but rather a product 
that had undergone an additional technological process. 
The fact that the various processes involved in product preparation were 
performed using a single machine – clearly for financial reasons – did not affect 
the customs classification of the product; what did influence the classification was 
the fact that the de-oiled soya meal undergoes further manufacturing processes to 
remove harmful substances, increase the fibre content and make it suitable for 
adding to feed. 
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22 If the court had relied on the applicant’s claims that the two products are the same, 
and the statements by the Supreme Court in the judgment cited above, in the 
absence of any other evidence it would have had to dismiss the action as 
unfounded. Instead, the court heard evidence and granted the applicant’s request 
for the appointment of an expert, appointing the same expert who had taken part 
in the proceedings in the Administrative and Labour Court, Pécs, which had led to 
judgment No Kfv.I.35 489/2019/7 of the Supreme Court. 
23 The expert’s task was to determine whether, from a customs classification 
perspective, the soya meal from Argentina examined in the proceedings before the 
Supreme Court and the soya meal from Brazil at issue in the present proceedings 
are the same product; whether the product under consideration in the present 
proceedings is suitable only for animal feeding; and whether, following extraction, 
it has undergone final processing as the result of which it must be classed as a 
preparation. 
24 The expert report made the following points: 
Soya beans are seeds with a high oil content. The compound which is the residue 
that remains after the oil has been extracted from the soya beans is a by-product 
with a high protein content. Both soya beans and extracted soya meal produced 
from them can be used as feed for farm animals. Soya beans, extracted soya meal 
and extracted soya-bean oil can also be used for human consumption after further 
processing. If they are to be used for human consumption in Hungary, it is a 
requirement that the soya has not been genetically modified. 
Neither whole soya beans nor extracted soya meal can be used as such for animal 
feed, because they are too high in proteins and amino acids; therefore they can 
only be used for feed after they have undergone further processing. 
Soya-bean oil is extracted by heating, with the aid of a solvent. 
Extraction is part of the basic processing of oilseeds, which includes cleaning, 
drying, pressing, heating and desolventising (toasting), and ends with the resulting 
by-product being dried, chilled and stored. These procedures do not cause a 
fundamental change in the characteristics of the original material, but merely 
entail fractionation [of the material] These treatment sub-processes do not 
constitute final processing. 
Additional operations which go beyond the above procedures and are primarily 
intended to improve the quality of the main product entail a higher level of 
processing; once these technological processes have been performed, the result is 
a higher quality processed product. Extracted soya meal cannot be considered a 
highly processed product (such as a protein concentrate, for example). 
Nor can the product in question be classified as a preparation which has lost the 
essential characteristics of the vegetable material. 
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Lastly, the report noted that, at the time of customs clearance, the product 
imported by the applicant should be classified as suitable both for use in animal 
feeding and for human consumption, depending on the degree of genetic 
modification. However, as the product was not certified as non-genetically 
modified, it could only be used in Hungary for animal feeding. 
25 According to the applicant, the expert report shows that the product is not a 
preparation and has not undergone processing which satisfies the requirements for 
classification under heading 2309. However, in terms of deciding whether the two 
products are the same, the expert report is only partially admissible. The 
production methods for the two products are the same as regards extraction and 
toasting, but no hulls have been added to the product imported by the applicant. 
The product from Argentina examined in the other proceedings did contain added 
hulls, and this was expressly taken into account by the Supreme Court as a ground 
for its decision. 
26 According to the applicant, the expert has confirmed that the conclusions in the 
judgment of the Supreme Court regarding toasting in connection with the question 
of processing are not consistent with EU law and the case-law of the Court of 
Justice. 
27 The applicant highlighted the statement by the expert that the product had not 
undergone final processing and was therefore considered a residue, or by-product, 
rather than a preparation. In that regard, in its view, the defendant’s stance and 
judgment No Kfv.I.35 489/2019/7 of the Supreme Court were based on an 
erroneous interpretation which left heading 2304 devoid of content and was 
contrary to the case-law of the Court of Justice. 
28 On the question of suitability for use only for animal feeding, it stated that the 
comment made by the expert concerning use of genetically modified soya 
products in the food industry was incorrect, because such use was authorised 
throughout the European Union. Moreover, the Supreme Court had subsequently 
made an order in which it corrected the erroneous statement in the judgment and 
classified the decision on a product’s fitness or otherwise for human consumption 
as a question of food safety or food quality. In that connection, the applicant 
argued that neither a product’s intended use as animal feed nor its suitability only 
for animal feeding provided a basis for classifying it under CN heading 2309. 
29 Turning to the question of whether the products were the same, the applicant 
stated that the expert report had not examined one factor, namely whether hulls 
had been added to the extracted soya meal from Argentina during processing to 
increase the fibre content. Consequently, the statement in the expert report that the 
two products are the same is contradicted by the information on the case record, 
since the product from Brazil did not contain added hulls. 
30 With regard to the expert report, the defendant stated that the two products under 
examination were the same. It considered that the expert’s comments concerning 
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the higher degree of processing were irrelevant, because the product at issue in the 
present proceedings had not undergone that type of processing. 
31 In the opinion of the defendant, while distilling and heat treatment form part of the 
manufacturing technology, they are separate processes which take place after 
extraction and affect the product’s composition and characteristics. The vegetable 
material thus loses its essential properties, thereby becoming suitable for animal 
feeding; consequently, from a customs classification perspective, the product can 
be considered to undergo final processing. 
32 The defendant cited judgment No 7.K.21 713/2010/5 of the County Court, 
Baranya, which ruled that a particular product can only be classified under 
heading 2304 if it purely involves extracting the soya-bean oil. However, in the 
present proceedings, in addition to the oil extraction, the anti-nutrients have also 
been deactivated, and therefore the resulting product should be classified as a 
preparation (heading 2309) rather than a residue (heading 2304). 
33 The court noted that on the question of whether the products are the same, the 
answer given by the expert in his report was absolutely clear: the Argentinian 
product at issue in the proceedings decided by judgment No Kfv.I.35 489/2019/7 
of the Supreme Court and the Brazilian product at issue in the present case are the 
same. 
34 The two products are therefore deemed to be the same for customs classification 
purposes. While this fact on its own was enough to decide the case, the court also 
assessed the other conclusions in the expert report. There is one difference (which 
is not significant) between the two products as regards the production technology: 
the soya-bean hulls had been added back to the Argentinian soya meal, whereas 
they had not been added to the Brazilian soya meal under consideration in the 
present proceedings. Adding in the hulls affects the fibre content of the product, 
but does not affect its value as animal feed. In the view of the court, this clearly 
means that the inclusion [of the hulls] is not relevant for customs classification 
purposes. 
35 According to the court, for the purposes of considering whether the three 
cumulative requirements have been met, the imported product must be examined 
in the state it was in when it was made available to the customs authority of first 
instance during the sampling process. On that basis, the product must be deemed 
suitable both for animal feeding and for use in the food industry, depending on 
whether, at the time of customs clearance, it was a genetically modified organism 
(GMO). In Hungary, a product that is not certified as non-genetically modified 
can only be used for animal feeding, but the technology for producing non-
genetically modified extracted soya meal is the same as the technology for 
producing the genetically modified product. 
36 The court also stated that the product was suitable only for animal feeding. On 
that point, it noted that, in principle, this did not mean that it could not also be 
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used for other purposes, including in the food industry, since a product’s 
suitability for a particular use and its actual use for a particular purpose are two 
different concepts. 
37 There is a divergence between judgment No Kfv.I.35 489/2019/7 of the Supreme 
Court and the expert report, stemming from the fact that the Supreme Court 
considered the various stages of the processing [of the product] from an animal 
feed perspective, whereas the expert considered it from a human consumption 
perspective. According to the referring court, the way in which the production 
stages of the product are structured depends on whether the end use is for animal 
or human consumption. It therefore assessed the question of final processing from 
the perspective of the restrictions on use: the applicant imported the product for 
use in animal feeding; in other words, the various stages must be grouped from 
that perspective into basic treatment and further processing. The court adopted the 
same approach towards this issue as the Supreme Court, namely that the processes 
from the initial stage up to the end of extraction constitute basic treatment, and 
anything from that point up to the toasting stage is further processing. The further 
processing is performed to make the product suitable for animal feeding. In the 
view of the expert, basic treatment continues until the end of the toasting process, 
following which there are additional operations [to make it suitable] for human 
consumption. 
38 The question of the final processing of the product must be assessed from the 
perspective of the product’s use for animal feeding; viewed in that light, it is clear 
that the soya meal underwent final processing. It can also be stated unequivocally 
that as a result of this processing the product lost its essential characteristics, 
because before the toasting process it was not suitable for animal feeding, whereas 
after that process it was suitable for that purpose. 
39 On the basis of those considerations, the court declared that, with regard to the 
third requirement, the product constituted a preparation and had undergone basic 
treatment and further processing, and therefore the defendant had classified it 
correctly. 
40 The applicant lodged an appeal against that judgment. In that appeal, the applicant 
asked for a request to be made for a preliminary ruling. By order 
No Kfv.I.35 552/2021/6 of 20 January 2021, the Supreme Court set aside the 
judgment of the Pécs High Court and ordered the court of first instance to conduct 
new proceedings and issue a new ruling. 
41 The relevant part of the grounds for the decision stipulate that the court of first 
instance must examine whether it is possible to determine the classification based 
on the relevant case-law of the Court of Justice. If the court concludes that it is not 
possible, a request for a preliminary ruling may be made. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-366/22 
 
14  
The essential arguments of the parties in the main proceedings 
42 The applicant, which had sought this request for a preliminary ruling, argues that 
the decision whether the product at issue comes under heading 2304 or heading 
2309 is a question concerning the application of the CN, which is a matter for the 
Court of Justice pursuant to Article 267 TFEU. The applicant refers to the binding 
tariff information of various countries of the European Union and also argues that 
extracted soya meal is an extremely important commodity in feed and food, and 
that a divergence within the European Union as regards the case-law on the 
questions of legal interpretation which have been raised and the customs 
classification of the product may also have undesirable consequences for the 
operation of the internal market (trade in soya meal). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
43 The applicant submits that the provisions of EU law to be applied in these 
proceedings are unclear and have not been clarified. The articles from the CN that 
have been relied on do not satisfy the requirements of the acte clair doctrine. This 
argument is supported by the fact that the Court of Justice has interpreted various 
aspects of the CN in connection with different elements of national legislation and 
practice. Since, on the basis of the judgments issued to date concerning the subject 
matter of these proceedings, it is not possible to determine whether the product in 
question should be classified under heading 2304 or under heading 2309, it is in 
any event necessary for the Court of Justice to interpret EU law, in particular the 
provisions of the CN relied on.