II —

In the second group of questions (third, fourth, fifth, sixth) the German court next asks what additional conditions must be fulfilled for a product of the kind mentioned in the first two questions to be classified as an animal food preparation. But these questions introduce (as from the fifth) a new idea by raising as an issue the effect of the denaturing of the wheat. Where the mere presence of different cereals in a product, even in certain specified proportions, is not enough to make that product a forage preparation intended as feed for animals, it is necessary that one or more denaturing agents should be added to the mixture in question. It is also necessary that the added quantity of that or those agents should reach a certain minimum. However, since at the time in question the common organization of the market in cereals was still incomplete, a distinction must here be made. If the product was to remain in the Member State where it was produced it would suffice, for the product to be considered as an ‘animal food preparation’ within the meaning of the domestic regulations, that it had itself been denatured or that its wheat content had been denatured. On the other hand, if the product was exported to another Member State such denaturing might not suffice, under the rules of that State, for it to be considered in terms of the tariff as an ‘animal food preparation’. It was necessary that the denaturing agent should be present in a proportion greater than that required for denaturing in the exporting State, in other words that the substance thereby added should itself constitute a typical forage material. This requirement does not appear expressly in the Explanatory Notes to the customs tariff, but it does correspond to their spirit. Cod liver oil or fish oil are substances generally used for denaturing wheat, in consideration of which denaturing gives the right to payment of a Community premium. On the other hand, the addition of cod liver oil leads to a valued forage product, to the extent at least that a certain minimum percentage of that oil is included in animal food preparations and subject to the condition that such preparations are normally intended only for certain categories of animals. Too high a percentage of cod liver oil would give the flesh of poultry undesirable characteristics (odour, colour, etc.). It can therefore be said, in reply to the court seised of the main action, that the substance thus added to the basic cereals could be cod liver oil or fish oil, but that although this product is ordinarily used to denature wheat within the meaning of Regulation No 178/64, when present in a mixture in a sufficient amount it constitutes a forage material for the feeding of only certain animals, its presence being inadmissable for the feeding of certain other animals. The distinction implied by the sixth question put by the national court does not therefore exist. Denaturing is effected by the addition of fish oil (according to a minimum percentage) and, by reason of this very fact, the product is rendered unfit for human consumption since the object of denaturing is specifically to prevent the denatured cereal from being put back on the market for human consumption, provided, of course, that the method of denaturing is sufficiently effective. In reality, the problem which is causing concern to the German court is the apparent contradiction in the statement that, on the one hand, there can be no denaturing without the addition of a minimum percentage of cod liver oil, but that, on the other hand, there can be no animal food preparation without the addition of a greater percentage of cod liver oil than that present in the previous case. But of what use is a product which has been denatured if not for animal feeding? The reply to that is that denaturing—correctly carried out—is intended above all to support the market in products which cannot find their natural outlets, in other words, in the case of cereals of breadmaking quality (common wheat, rye), food for human consumption. It is therefore necessary that cereals of bread-making quality (common wheat, for example) should have been denatured under the supervision of the intervention agency, or, better still, that they should have been used, after denaturing, in feed for cattle. But, for wheat denatured by the addition of cod liver oil to be considered as such, it is necessary that this latter substance should have been added in a certain minimum proportion, which, moreover, varied at the time in question according to the national laws and according to whether the wheat to which it was added was itself mixed with other cereals. It is sufficient here to refer to the preamble to and to the operative part of Regulation No 172/67 of the Council of 27 June 1967 on general rules governing the denaturing of wheat and rye of bread-making quality: ‘Whereas methods of denaturing should be effective enough…’ Article 2: ‘The methods employed … must ensure that denatured wheat or rye can no longer be used for human consumption.’ to perceive that denaturing is not synonymous with unsuitability for human consumption, still less with specific and exclusive suitability as animal feed, particularly for poultry. In other words, having regard to the differences still existing at that time between national rules, it is possible that the percentage of fish oil added to one of the cereals making up the mixture is sufficient for that cereal to be considered unfit for human consumption in the exporting Member State and thereby gives rise to the right to the denaturing premium without the product necessarily being considered as a typical animal food preparation in the importing Member State. Thus the addition of 0.4 % of fish oil to 100 kgs of whole wheat grains or the addition of 0.3 % of fish oil to a mixture of 90 kgs of whole wheat grains and 10 kgs of whole barley or rye grains, although at the time it had the effect of denaturing wheat within the meaning of the French rules, was not sufficient to make that product an animal food preparation for the purposes of Community tariffication of imports. At the time, moreover, there was no difference in the import charge, whether the product had been denatured or not, just as there is no difference depending on whether the product has been damaged or not, as the Court ruled in its judgment of 15 December 1970 in Case 31/70. The tariff classification of a product must be effected according to tariff criteria and not according to other criteria relating to hygiene or nutritive value. It is therefore of little importance that the German cereal importation and warehousing office, which had issued the import certificates fixing the levy in advance, considered, after an expert report by the Federal research office in Berlin concerned with the use of the cereals, the result of which had been communicated to it on 24 June 1965, that the product consisted of a ‘mixture of grains’ intended for use in animal feeding within the meaning of the German law on forage. Furthermore, the percentages obtained by that laboratory on examination of the samples sent by the importer: — 7.7 % of unrolled barley (and not 10 %) and — 0.3 % to 0.4 % of fish oil, are even less favourable to the importer and the fact that the laboratory nevertheless considered that the product was a ‘mixture of grain for use in animal feeding’ within the meaning of the German rules does not exclude the fact that it could have been a ‘simple mixture’. Finally, there is no need to consider the additional complication raised in the seventh question of the German court. It seems that this question was put because in the invoices of the German supplier the product was described as including denatured wheat, to which 3 % of cod liver oil had been added. Itimatters little whether the ingredient ‘cod liver oil’ was added to the common wheat itself, for the purpose of denaturing, or only to the whole, following admixture of the different cereal products, provided that it was added in a quantity sufficient to cause the final product to be classified as an animal food preparation. It may be added that if, according to the French provisions in force at the time, it was sufficient that the common wheat alone had been denatured with 1 % of cod liver oil for it to be exported as an animal food preparation, the mixture imported by the applicant, if it contained a maximum of 90 % of denatured wheat, should have contained in total 0.9 % of fish oil. It is clear from the expert's report from Frankfurt that this product contained, in the case of two samples, more than 90 % of wheat but that the quantity of fish oil contained in it was at most 0.87 %.