OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 28 NOVEMBER 1973 ( 1 )

Mr President,

Members of the Court,

At one time animals were divided into those which could and those which could not be the subject of lawful seizure; the former were the ‘ferae’, wild animals, as opposed to domestic animals which, even if given their freedom, ‘abire et redire solent’ and consequently become part of the property of anyone who has them under his control.

Making use of this distinction for the purpose for which it was designed, the wisdom, of the ancients applied it to concrete cases, with the result that, within the same category of domestic animals, chickens, perhaps, or ducks, ‘quorum non est fera natura’ a distinction was drawn between those which lived under the family roof in inhabited places and those which‘in naturalem libertatem se receperint’ and, as such, could be hunted. These may now appear to be dim and distant distinctions belonging to a way of life which has been superseded, but they can be valid even today as a starting point or point of reference, even though the lawyer, reared on examples from the classics, must be sensitive and responsive to the world around him; they can also apply to such unromantic subjects as the customs categories in the Brussels nomenclature or the Common Customs Tariff when used to differentiate between game and other animals whose meat is suitable for consumption.

Arising from a dispute over the customs classification of caribou meat from Greenland, the Finanzgericht of Hamburg asks what is to be understood by ‘game’ within the meaning of heading 02.04-B of the 1970 Common Customs Tariffe.

Basing myself on the literal meaning of the word ‘game’, I believe that this category comprises those animals which, taken as a species and not separately as individual members of it, are normally at large, in a wild state, in the region where they have been hunted, ‘quorum et ipsorum feram esse naturam nemo negat’ and as a rule, therefore, fall into the hands of man only after being hunted. These characteristics are identified on the basis of the ‘id quod plerumque accidit’ factor for the species of animal concerned and its place of origin, i.e., for the category to which it belongs. In essence, therefore, the distinction between game and other animals rests on a pattern of classification based on the peculiar characteristics normally possessed by the species of animal concerned in its environment.

The need to have regard to natural characteristics, a fundamental consideration in ancient law, remains of cardinal importance in any objective classification of animals for the purpose of levying a customs duty on their meat.

By nature wild or domesticated? That question provides the first guide-line for differentiating between game and other animals used as meat. In this kind of classification, which is basically into categories, nature means the nature of the category and the term ‘game’ is applied to the kind of animal which, by nature, lives wild and is commonly hunted by man. As the Roman definition seeks to identify the character of the individual animal, exceptions can arise in the case of different animals treated as subjects of a right. However, in the present case, which takes categories as the units to be classified, there is no room for individual exceptions but there can be differentiation of species within the genus, and each of these species can constitute a customs category. Thus, in customs law governing the classification of goods, we, too, in trying to divide the various types of animal into categories can take the overall genus and break it up into the various species, and, by going from the species (rangifer tarandus) to the individual sub-species (rangifer tarandus tarandus, rangifer tarandus caribou, rangifer tarandus arcticus), it is possible to establish the distinction between the various headings which have to be applied. And, though belonging to the same species, one sub-species can be differentiated from another because it consists of animals which have become domesticated while the other sub-species have remained wild. This is true even though the characteristics of the species to which they all belong are so similar that, in individual cases, it is difficult in practice to determine to which particular sub-species the imported meat of an animal in the species belongs.

Nor is this conclusion affected by the statement contained in the Community's Explanatory Notes on the headings covered by the Customs Tariff that ‘reindeer are held to be domestic animals’. This assertion may simply be a reference to reindeer properly so described (rangifer tarandus tarandus) which, as has already been stated, are in fact those of Northern Europe. This would be fully in accord with what we regard as the correct interpretation of the Customs Tariff. However, any application of the statement quoted to the whole group called ‘rangifer tarandus’, without drawing any distinction between the domestic and the wild varieties within the same species, would be unacceptable in so far as it conflicts with the letter of the law.

As is well-known, the Explanatory Notes are supplied by the technical services in order to facilitate the work of the customs authorities. Their function is purely to explain the rule and, while they can be of great assistance in a strictly technical context, they are in no way binding when the legal rule has to be interpreted.

The Finanzgericht of Hamburg asks whether the classification of animals as game may or may not depend on provisions of national law in their country of origin which treat them as legitimate objects of the hunt. The customs definition of game is only theoretically associated with the hunt, as a factor determining category. For this reason our only interest in the hunt is as an indication of a possibility as regards animals living in a natural state and envisaged as typically ‘res nullius’ in so far as they are at liberty. But, in the context of customs legislation, the question whether a given species of animal constitutes game cannot reasonably depend on the extent to which it is legitimate to hunt them because this can vary according to locality and prevailing conditions, themselves subject to seasonal changes, whereas the basic problem set out in the first question is concerned solely with the description of an animal on the basis of its essential characteristics in terms of its way of life, regardless of variations in game laws.

If, under relevant national legislation, the hunting of a particular kind of animal is forbidden, this does not, for the purposes of Community customs legislation, suffice to exclude its classification as game; on the other hand, the fact that it is lawful does not suffice to prove the opposite.

Thus, an animal belonging to a species living in a domesticated state, such as a chicken, does not become game in terms of customs law because an individual member of the species is free to live where it likes, is therefore ‘res nullius’ and as such could have been hunted. I repeat that, for the purposes of customs classification, it is not the individual animal which must be taken into account but the species to which in its day-to-day environment it belongs.

But whereas, in addressing the consul, Virgil felt that he had to raise the tone his dissertation above agricultural subjects (‘paulo majora canamus’), we have to descend from the Bucolics to the requirements of life in the customs service. And this gives rise to an immediate and very practical problem, which must have been at the root of the present dispute. It is this: how, confronted with the flesh of animals in transit to another country, can a customs officer tell whether he is dealing with the meat of a wild animal, as the caribou normally is in Greenland (and as it is also recognized as being by the Commission) or, on the other hand, with a hunk of the domestic reindeer? If there is a problem, this is the only one. But it involves the practical difficulty of establishing not the customs definition of game but the identity of the meat. In an attempt to resolve this difficulty, the Commission proposes in effect to restrict the term ‘game’ in heading 02.04-B of the Common Customs Tariff of 1970 to a meaning which excludes an animal from this category for no other reason than that, if it is imported not as a carcass but in, for example, the form of goulash, it cannot be easily distinguished from the meat of other animals coming under subheading 02.04-C-III and as such subject to a higher rate of duty.

In practice, therefore, the Commission's argument would mean that no animal, however wild, could be described as game in any case where there was practical difficulty in telling its meat from that of other animals of a similar species coming from areas where, having long been domesticated by man, they no longer live in a wild state.

To define and resolve the question in this way is to confuse the problem of interpreting the rule, which is basically one of logic, with the problem, which is no less important because it is a practical one, of establishing the identity and character of the product concerned. As regards proof, the customs authorities can in case of doubt call, with the requisite degree of strictness, for documentary evidence and relevant information; in this context it is certainly desirable that general rules and standards, uniform for all States of the Community, should be observed so as to prevent Common Tariff duties being applied in different ways by the various national customs authorities. The competent Community institutions can take appropriate measures to that end. It is certainly not the task of the Court, when called upon to interpret the general principles of the Common Customs Tariff, to obviate any difficulties of proof by amplifying or restricting, without valid justification, certain customs headings according to the degree of difficulty which may exist in identifying one product or another. This would not be the best way of making good any deficiencies in a field where there must be a uniform application of the rules, based on precise standards of classification reinforced by up-to-date customs methods.

For these reasons, I am of opinion that the Court should reply to the Finanzgericht of Hamburg on the lines I have indicated.

( 1 ) Translated from the Italian.