61978C0160
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 7 JUNE 1979 (
1
)
Mr President,
Members of the Court,
1.
The question which has been referred to the Court for a preliminary ruling in this case is one of the category of problems relating to tariff classification. Specifically it is necessary to determine whether minced meat consisting of 10 % pigmeat and 90 % beef and veal, in frozen blocks and seasoned, imported from Eastern Europe into the Community should be classified, within the Common Customs Tariff in force at the time of the facts giving rise to the case (three years ago), in tariff sub heading 16. 02 B III (a) 1 (cc) or in sub heading 16. 02 B III (a) 3.
The facts underlying the dispute are as follows.
In May 1976 Intercontinentale Fleisch- handelsgesellschaft mbH & Co. KG, the plaintiff in the main action, caused to be cleared at the Hauptzollamt München- West roughly 80 tonnes of minced meat imported from Romania and composed, according to the customs declaration and the invoice, of 10 % pigmeat and 90 % beef and veal, in frozen blocks and seasoned. On the basis of the customs inspection the goods were assigned to tariff subheading 16. 02 B III (a) 1 (cc) of the Common Customs Tariff, the rate of levy being DM 133.45 per 100 kg and the rate of the monetary compensatory amount being DM 41.24 per 100 kg.
The plaintiff in the main action first filed an administrative objection against both the charges; that objection was rejected by the Hauptzollamt and the plaintiff subsequently brought an action against that rejection before the Finanzgericht Munchen. By order of 11 July 1978 that court ruled that the solution to the dispute depended on the interpretation of a heading of the Common Customs Tariff; it stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
‘Is the term “meat” in tariff subheading 16.02 B III (a) 1, 2 and 3 of the 1976 Common Customs Tariff to be interpreted as meaning only pigmeat or also as meaning meat other than pigmeat (for example beef and veal)?’
2.
It is here appropriate to summarize briefly the tariff headings at issue in this dispute.
Heading 16.02 of the Common Customs Tariff, within the context of which the problem of classification on which the Court must rule is placed, is entitled ‘Other prepared or preserved meat or meat offal’. In the version in force at the time of the facts giving rise to the dispute it includes all prepared or preserved meat or meat offal other than those covered by tariff heading 16.01 (‘Sausages and the like, of meat, meat offal or animal blood’) and which furthermore cannot be classified in Chapter 2 (‘Meat and edible meat offals’) since the latter chapter covers only ‘Meat or meat offal, raw, minced or finely chopped but not further prepared’ as is stated in the ‘general’ notes immediately following the title of the chapter in the Explanatory Notes to the Customs Tariff of the European Communities.
Tariff heading 16.02 is in its turn divided into a number of subheadings. In particular subheading 16.02 BIII (a) which contains the possible alternative in this instance, covers ‘Other [prepared meats] … Containing meat or offal of domestic swine’. ‘Other’ prepared meat is to be read as including that which is not composed of liver (16.02 A) or of poultry-meat, game or rabbit-meat or offal (16.02 B I and II). That subheading contains three further paragraphs according to the percentage of ‘meat or offal, of any kind, including fats of any kind or origin’ in the product: thus paragraph 1 covers prepared meats containing ‘80 % or more of meat or offal …’; paragraph 2 those containing ‘40 % or more but less than 80 % of meat or offal …’; and paragraph 3 those with ‘Less than 40 % of meat or offal …’. Paragraph 1 is divided up in its turn into three further categories depending on whether the product contains ‘(aa) Hams, fillets and loins; pieces thereof, (bb) Shoulders and pieces thereof’ or ‘(cc) Other’ (‘prepared or preserved meat’ is implied).
The problem which the Court is called upon to resolve is whether the aforementioned minimum percentages on the basis of which the tariff classification within tariff subheading 16 02 B III (a) is determined, are fixed having regard only to meat of domestic swine (other than offal and fat) or having regard to meat and offal of any kind and thus also including, together with meat of domestic swine — possibly in very small quantities — other types of meat including beef and veal. Depending on which view is taken the product should, in this case, be classified in one or other of the subheadings in question: that is to say that if the first interpretation is adopted the goods will be classified in subheading 16.02 B III (a) 3 inasmuch as they contain less than 40 % of meat of domestic swine; if on the other hand the second interpretation is adopted they will have to be classified in tariff subheading 16.02 B III (a) 1 (cc) in so far as they contain more than 80 % of beef, veal and pigmeat.
3.
The plaintiff in the main action argues that the term ‘meat or offal, of any kind,’ which is contained in paragraphs 1, 2 and 3 of subheading 16.02 B III (a) of the Common Customs Tariff in force in 1976 indicates only pigmeat.
That view is supported primarily by the wording of the subheading. The words ‘of any kind’ inserted between commas immediately after the expression ‘meat or offal’ is, according to that view, intended to refer only to offal with the result that the meat to be taken into account in the percentage of the product which is relevant for the purposes of the classification should be ‘of domestic swine’ referred to in subheading (a) whilst the offal may be of various kinds (from swine, bovine animals, sheep etc.).
From a logical point of view it is certainly correct to rely primarily on the literal text of the tariff: such is moreover expressly laid down in the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff (cf. Council Regulation No 2723/76/EEC, Annex, Pan 1, Section 1, A, Rule 1. However, in the view propounded above the way in which the literal criterion is used is by no means convincing and I cannot share the conclusions drawn by the plaintiff. In this respect I observe that when the tariff seeks to refer to meat or offal of a particular kind it does so in express terms as for example in sub headings 16.02 B III (a) and 16.02 B III (b) 1; thus it appears to be arbitrary to attribute a narrow meaning to the general expression ‘meat’ used in paragraphs 1, 2 and 3 of subheading (a), making its scope dependent on the expression ‘meat or offal of domestic swine’ which is contained in subheading (a). However, there is a further point: the general term ‘meat or offal’ is immediately followed by the words ‘of any kind’, which appear to have the specific purpose of emphasizing that the tariff heading covers all kinds of meat and offal (swine, bovine animals, sheep, etc.). I further observe that the fact that the words ‘of any kind’ are separated by a comma from the preceding part of the sentence suggests that those words themselves refer both to meat and to offal. Finally I emphasize that meat and offal are considered together both in subheading (a) and in paragraphs 1, 2 and 3; thus it would be inconsistent and unjustified for the term ‘of any kind’ (in paragraphs 1, 2 and 3) to refer only to offal and for the words ‘of domestic swine’ (subheading (a)) to determine the interpretation only of ‘meat’.
It should be borne in mind that the view advocated in the submissions of the plaintiff in the main action is in contrast with the opinion of Mr Dittmar which was lodged by the plaintiff and to which the plaintiff referred on a number of occasions both in its written submissions and in the course of the oral procedure. That opinion in fact recognizes — on page 10 — that the expression ‘of any kind’ must refer both to meat and to offal; according to the opinion however those words serve to indicate not the species of animal but the parts of the animal. May I say immediately that I think that that argument too is unfounded as it disregards the fact that the word ‘kind’ is clearly used in the context of tariff heading 16.02 to indicate the kind of animal and it would therefore be extremely strange for the same expression to be used in the same context with different meanings.
Still from the point of view of the text the plaintiff in its submissions purports to find support for its arguments from the words ‘including fats of any kind or origin’. The reference to any kind and any origin which is made only in respect of fats supports, it is alleged, the argument that the words ‘meat or offal, of any kind’ relate only to meat and offal of swine. In this respect I observe that once again the plaintiff's submissions are contradictory in extending to offal the statement that the meat referred to in the tariff subheading in question should be from swine (cf. page 5 of the submissions of 13 October 1978) after arguing, as I have said, that the words ‘of any kind’ refer only to offal and mean ‘coming from animals of any species’. That apart, the argument based on the words regarding fats seems to me entirely illogical: as the Commission's representative has observed (page 11 of the submissions of 21 September 1978) those words relate to a specific question — the extension of the tariff heading to fats — which is entirely unconnected with the concept of meat and offal of any kind.
4.
For all those reasons I take the view that the interpretation that the word ‘meat’, which is used without any adjectival restriction in paragraphs 1, 2 and 3 of tariff subheading 16.02 B III (a), has the wider meaning of meat from any animal species is closer to the literal wording of the tariff. Of course, in order to be able to be classified in the said tariff subheading the product must always contain some quantity, however small, of pigmeat as is clear from the introductory part to subheading (a) (‘Other prepared or preserved meat or meat offal … (a) Containing meat or offal of domestic swine …’) which is common to paragraphs 1, 2 and 3.
It does not appear to me that the interpretation of the customs tariff advocated in the plaintiff's submissions can derive support from the Explanatory Notes published by the Commission relating to tariff subheading 16.02 B III (a). Those notes merely state that ‘for the purposes of determining the percentage of meat or meat offal specified in subheadings 16.02 B III (a) 2 (aa), (bb) and (cc) the total weight of fats, including pit fat, contained in the product is to be added to the weight of the meat or meat offal’ and that ‘other ingredients, such as gelatin and sauces, are not to be taken into account when determining this percentage’.
The part of the notes relating to tariff subheading 16.02 B III (b) where it is stated that ‘products which contain meat or edible offals of domestic swine in any proportion fall in subheading 16.02 B III (a)’ is significant however. The intention thus is to emphasize that the criterion adopted in the tariff in force in 1976, modified in this respect in 1977, consists in classifying in tariff sub heading 16.02 B III (a), and thus making subject to the common organization of the market in pigmeat, products produced by mixing pigmeat, even in small proportions, with meat of other species.
5.
Reference to the function of tariff subheading 16.02 B III (a), in the version in force in 1976, strengthens the conviction that the percentages referred to in subheadings 1, 2 and 3 must be held to include both pigmeat and beef and veal or other meat.
In fact the customs tariff was intended to make products containing mixed pigmeat and beef and veal subject solely to the import rules laid down for pigmeat in order to avoid the practical difficulties which would certainly have arisen if a quantitative distinction had to be made between the percentages of one or other kind within tariff subheading 16.02 B. The existence of those objective difficulties and the importance attached to them are confirmed by the preamble to Commission Regulation No 2333/77 of 25 October 1977 in which, at the end of the second recital, it is expressly stated that ‘a differentiation according to the proportion of beef and pigmeat is not practicable’. The adoption of tariff sub heading 16.02 B (a) for preparations also containing pigmeat, albeit in very small quantities, and the consequent extension to imports of those products of the rules of the common organization of the market in pigmeat (cf. Article 1 (c) of Regulation No 805/68) mean that the criteria laid down in Rule 3 of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff for such kinds of products are not applicable.
Confirmation of this interpretation of the logical basis of the system applying in 1976 is to be derived from the changes made therein by Regulation No 2333/77. The Commission observed that tariff heading 16.02 made it possible for the import restrictions on beef and veal to be evaded merely by mixing in even a small quantity of pigmeat; in such a case sub heading 16.02 B III (a) was applicable and the products became subject to the common organization of the market in pigmeat. In order to avoid the possibility that in this way restrictions on imports might be evaded and levies applied to the products which did not correspond to their real value, the Commission, by the 1977 regulation, introduced a specific subheading for products containing meat and offal of domestic swine and uncooked beef or veal and fixed for that subheading a particular high rate of levy corresponding to the actual value of the product. The division into three groups depending on the proportion of meat and offal remains only for preparations containing no beef or veal.
The development of the tariff rules in this sector has therefore been influenced on the one hand by the conclusion that it was not suitable to draw a distinction between mixed prepared products themselves on the basis of the proportions of beef and veal and pigmeat, and, on the other, by the requirement to make mixed products, containing beef or veal, subject to a system of levy rules corresponding (on the basis of standards which are necessarily undifferentiated) to the greater value of such meats.
6.
In conclusion therefore I am of the opinion that the Court should rule as follows in answer to the question referred to it for a preliminary ruling by the Finanzgericht München by order of 11 July 1978:
The word ‘meat’ as used in paragraphs 1, 2 and 3 of subheading 16.02 B III (a) of the Common Customs Tariff in force in 1976 refers to meat of any kind, including therefore beef or veal.
(
1
)	Translated from the Italian.