Judgment of the Court of 15 December 1971. - Gervais-Danone AG v Hauptzollamt München-Schwanthalerstraße. - Reference for a preliminary ruling: Finanzgericht München - Germany. - Mayonnaise. - Case 77-71.



European Court reports 1971 Page 01127

Danish special edition Page 00343

Greek special edition Page 01107

Portuguese special edition Page 00455



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - INTERPRETATION - ABSENCE OF COMMUNITY PROVISIONS - AUTHORITY OF EXPLANATORY NOTES AND CLASSIFICATION OPINIONS OF THE CONVENTION ON THE BRUSSELS NOMENCLATURE

2 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - CLASSIFICATION OF A PRODUCT UNDER TARIFF HEADING 21.07 - REGULATION NO 241/70 OF THE COMMISSION - LEGISLATIVE NATURE - NO RETROACTIVE EFFECT

3 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - CLASSIFICATION OF A PRODUCT UNDER TARIFF HEADING 21.04 - CRITERIA - DISCRETION OF THE NATIONAL COURT

( REGULATION NO 950/68 OF THE COUNCIL )

4 . COMMON CUSTOMS TARIFF - ENTRY INTO FORCE - NO EFFCT ON THE BINDING CUSTOMS TARIFF NOTICES WITHIN THE MEANING OF ARTICLE 23 OF THE GERMAN ZOLLGESETZ

( REGULATION NO 950/68 OF THE COUNCIL, ARTICLE 1 )

Summary

1 . IN THE ABSENCE OF ANY RELEVANT COMMUNITY PROVISIONS, THE EXPLANATORY NOTES AND THE CLASSIFICATION OPINIONS PROVIDED FOR BY THE CONVENTION ON NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS, ARE AN AUTHORITATIVE SOURCE FOR THE PURPOSE OF THE INTERPRETATION OF THE HEADINGS TO THE COMMON CUSTOMS TARIFF .

2 . REGULATION ( EEC ) NO 241/70 ON THE CLASSIFICATION OF GOODS UNDER SUBHEADING 21/07 IS OF A LEGISLATIVE NATURE AND CANNOT HAVE RETROACTIVE EFFECT .

3 . THE CLASSIFICATION OF A PRODUCT UNDER HEADING 21.04 OF THE COMMON CUSTOMS TARIFF IS PRECLUDED IF THE USE OF BUTTER, BUTTEROIL OR FRACTIONATED DRY BUTTERFAT IN THE MANUFACTURE OF THE PRODUCT IMPAIRS ITS DIRECT SUITABILITY FOR IMPROVING THE FLAVOUR OF CERTAIN FOODS AND IT IS FOR THE COMPETENT NATIONAL COURT TO DECIDE WHETHER THIS IS THE CASE .

4 . THE ENTRY INTO FORCE OF THE COMMON CUSTOMS TARIFF HAS NOT AFFECTED THE LEGAL EFFECTS OF THE " VERBINDLICHE ZOLLTARIFAUSKUENFTE " ( BINDING CUSTOMS TARIFF NOTICES ) WITHIN THE MEANING OF ARTICLE 23 OF THE GERMAN ZOLLGESETZ .

Parties

IN CASE 77/71

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE THIRD SENATE OF THE FINANZGERICHT MUENCHEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GERVAIS-DANONE AG, 8 MUNICH 80, SIEBERSTRASSE 4,

AND

HAUPTZOLLAMT MUENCHEN-SCHWANTHALERSTRASSE,

Subject of the case

- ON THE INTERPRETATION OF REGULATION NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ( OJ, L 172, P . 7 );

- ON THE APPLICABILITY AND, IF APPROPRIATE, INTERPRETATION OF REGULATION NO 241/70 OF THE COMMISSION OF 9 FEBRUARY 1970 ( OJ, L 32, P . 6 );

- IF APPROPRIATE, ON THE INTERPRETATION OF REGULATION NO 160/66 OF THE COUNCIL OF 27 OCTOBER 1966 ( OJ, NO 195, P . 3361 ),

Grounds

1 BY AN ORDER DATED 23 JULY 1971, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, WHICH ARRIVED AT THE COURT ON 11 AUGUST 1971, THE FINANZGERICHT MUENCHEN HAS SUBMITTED FOR A PRELIMINARY RULING TWO QUESTIONS REGARDING THE INTERPRETATION OF REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ON THE COMMON CUSTOMS TARIFF ( OJ 1968, L 172 ). THE FIRST QUESTION CONCERNS THE INTERPRETATION OF HEADINGS 21.04 AND 21.07 OF THE COMMON CUSTOMS TARIFF AND THE EFFECT OF REGULATION NO 241/70 OF THE COMMISSION OF 9 FEBRUARY 1970 ( OJ 1970, L 32 ) ON THE APPLICATION OF THESE HEADINGS TO IMPORTS EFFECTED BEFORE THE ENTRY INTO FORCE OF THIS REGULATION AND THE SECOND RELATES TO THE COMPATIBILITY OF VERBINDLICHE ZOLLTARIFAUSKUENFTE ( BINDING CUSTOMS TARIFF NOTICES ) ISSUED UNDER ARTICLE 23 OF THE GERMAN ZOLLGESETZ ( CUSTOMS LAW ) WITH REGULATION NO 950/68 .

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, I A MAYONNAISE OR SALAD MAYONNAISE UNDER HEADING 21.04 OF THE COMMON CUSTOMS TARIFF WHETHER THE PRODUCT HAS BEEN MANUFACTURED BY USING BUTTER, BUTTEROIL OR FRACTIONATED DRY BUTTERFAT AND IF SO, WHAT DIFFERENCE ". THEN IT IS ASKED WHETHER THE TARIFF CLASSIFICATION DEPENDS ON TRADE USAGE ( VERKEHSAUFFASSUNG ) OR ON 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 .

4 IN ORDER TO ENSURE THE UNIFORM INTERPRETATION AND APPLICATION OF THE BRUSSELS NOMENCLATURE OF 1950, AS REVISED IN 1955, - 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 OPINIONS 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 OPINIONS 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, 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 COMING 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, BUTTEROIL OR FRACTIONATED DRY BUTTERFAT 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 THE LEGAL BASIS OF REGULATION NO 241/70 IS TO BE FOUND IN REGULATION ( EEC ) NO 97/69 WHICH AUTHORIZES THE COMMISSION TO ADOPT THE MEASURES NECESSARY FOR UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF AS REGARDS CLASSIFICATION OF GOODS, THE PURPOSE OF SUCH PROVISIONS BEING TO GIVE FURTHER DETAILS OF THE CONTENT OF THE HEADINGS OR SUBHEADINGS OF THE COMMON CUSTOMS TARIFF WITHOUT IN ANY WAY AMENDING THE TEXT THEREOF . A REGULATION ADOPTED UNDER REGULATION NO 97/69 IS OF A LEGISLATIVE NATURE AND CANNOT HAVE RETROACTIVE EFFECT . THEREFORE, REGULATION NO 241/70 CANNOT BE APPLIED FOR THE PURPOSE OF DETERMINING THE CLASSIFICATION OF PRODUCTS IMPORTED BEFORE ITS ENTRY INTO FORCE .

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, BUTTEROIL OR FRACTIONATED DRY BUTTERFAT 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 ZOLLTARIFAUSKUENFTE ( BINDING CUSTOMS TARIFF NOTICES ) ISSUED UNDER ARTICLE 23 OF THE GERMAN ZOLLGESETZ .

11 THIS PROVISION STIPULATES THAT THE OBERFINANZDIREKTION, 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 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 ZOLLTARIFAUSKUENFTE ISSUED UNDER ARTICLE 23 OF THE GERMAN ZOLLGESETZ .

Decision on 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, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT MUENCHEN BY ORDER OF THAT COURT DATED 27 MAY 1971, HEREBY RULES :

1 . THE CLASSIFICATION OF A PRODUCT UNDER HEADING 21.04 OF THE COMMON CUSTOMS TARIFF IS PRECLUDED IF THE USE OF BUTTER, BUTTEROIL OR FRACTIONATED DRY BUTTERFAT 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 .

2 . THE ENTRY INTO FORCE OF REGULATION NO 950/68 OF THE COUNCIL HAS NOT AFFECTED THE LEGAL EFFECTS OF VERBINDLICHE ZOLLTARIFAUSKUENFTE ISSUED UNDER ARTICLE 23 OF THE GERMAN ZOLLGESETZ .