1.

First, on the question whether heading No 23.02 of the Common Customs Tariff quoted in Annex A to Regulation No 120 (OJ, English Special Edition 1967, p. 33) is to be interpreted as meaning that it covers products corresponding to ‘hominy chop’ according to their preparation, composition and qualities. In this connexion, the court has given a more precise definition of the goods in question having regard to the uncontested description given by the parties. According to this, what is involved, in the view of the Produktschap, is ‘South African maize germ flour, unsuitable for oil extraction, with or without an admixture of coarse bran and with not more than 50 % by weight of starch calculated on the dry product’. With regard to composition, the plaintiff has supplied the information that the goods contain at least 19 % albumin and fats, at most 8 % raw fibres and at most 35 % starch. The plaintiff has described the method of preparation as follows: ‘The maize germ is separated from grains of maize pre-treated with steam by means of a germ separating installation. In this process, the husks (bran) and a part of the soft endosperm are also inevitably separated from the grain. One thus obtains, on the one hand: (a) germless, husked whole grains of maize, (b) maize rice, (c) maize meal and (d) straw and on the other hand: (a) flour of maize germ and (b) bran. The maize germ flour is intended and used for the extraction of oil; the end products are oil and maize germ flour from which the oil has been removed. That part of the maize germ flour which is unsuitable for the extraction of oil is compressed — with or without an admixture of bran — in Dellets into “hominy chop soecified”.’ If we attempt to answer the first question in the light of these statements, it is, of course, certain that it cannot be the task of this Court directly to undertake a tariff classification, for this in itself would amount to application of the law. At present it is only a question of interpreting the relevant tariff headings and laying down criteria for definition with the help of which the national court may undertake the classification. The question submitted is to be understood in this way. It is thus at the same time clear that in spite of its very specific wording, it is not to be regarded as inadmissible. As in other cases (12/71, 14/71), it must be assumed that the said precise definitions were rightly given because they serve to define the precise legal limits for which alone an interpretation can be given which may be of use in the main action. With this reservation, I can now examine the problems submitted to us. As you know the plaintiff says with regard to the interpretation of heading No 23.02 (bran, sharps and other residues derived from the sifting, milling or working of the cereals) that it obviously covers only residues from particular production processes such as sifting and milling and similar processes and is thus limited to the products of dry milling. Since, however, a wet process is used for the production of ‘hominy chop specified’, as indicated, there can be no classification of it under 23.02. On the other hand, heading No 23.04 (oilcake and other residues … resulting from the extraction of vegetable oils) comes into consideration, because ‘hominy chop specified’ is obtained by oil extraction and because it must depend on the total context of the production process. If in this question of definition heading No 23.04 is first considered, then considerable doubts as to the correctness of the interpretation given by the plaintiff quickly appear. In the first place the wording of the tariff heading is against it and in answering questions of classification this above all must be the basis. It is true that the wording ‘residues … resulting from the extraction of vegetable oils’ on an unsophisticated interpretation would appear to refer to what remains from the basic material used after oil has been extracted, while it is difficult to reconcile the idea with this that it covers everything, apart from oil, which is obtained from the whole production process. Further reference may be made to the Explanatory Notes to the Brussels Nomenclature and the words solid residues remaining after the extraction of oil from oil seeds, oleaginous fruits and germ of cereals by solvents or in a press or rotary expeller (residus solides de l'extraction par pressage, par solvant ou par centrifugation de l'huile contenue dan les graines) which point in the same direction citing oilcakes as products typically coming under heading 23.04. What the Court said in Case 36/71 [1972] ECR at paragraph 11 is also significant. In order to constitute residues within the meaning of those headings ‘either starch or oil must have been extracted from the basic product in proportions equal to those which may be achieved by an economically rational application of modern procedures’. It appears to me that the applicant's inter pretation can scarcely be reconciled with this. Finally, it is necessary to bear in mind the general principle that production processes ordinarily have no relevance in tariff classification, but that rather the qualities of the goods in question and their composition are what matters. From this it may be concluded that, in interpreting tariff headings which are, exceptionally, based on the production process and thus necessitate its being taken into account, a restrictive interpretation is called for. In relation to heading No 23.04 this means that only the actual process of the extraction of oil can be considered or, in other words, only a product in which the production process is directly to be recognized. A wide interpretation in the manner advocated by the plaintiff would, on the other hand, obviously lead to considerable difficulties for the customs authorities and to uncertainty in classification. Accordingly, only residues from oil extraction can be classified under heading No 23.04. This clearly means that the ‘hominy chop specified’ imported by the plaintiff does not come within the heading, for the plaintiff says itself that it is produced from maize germ flour which from the beginning is unsuitable for oil extraction. On the other hand, the following should be said with regard to heading No 23.02. Its wording alone, ‘bran, sharps and other residues derived from the sifting, milling or working of cereals’, that is, the use of the collective term ‘working of cereals’, scarcely allows the assumption that only products which are obtained from a dry milling process are covered. The words used seem rather to refer generally to all possible methods of processing cereals. It is true that, on the other hand, in the general considerations to Chapter 11 in the Explanatory Notes to the Brussels Nomenclature reference is made to heading No 23.02 in respect of residues from the milling of cereal grains (‘residus de mouture’) and that this could favour the plaintiff's view. In this respect it is of interest that Article 3 of Regulation No 302/69 of the Council of 18 February 1969 (OJ, English Special Edition 1969 [I], p. 47) expressly provides ‘Cereal germ, whether milled or not, shall in all cases fall within tariff heading No 11.02’. Such products are thus assigned to the chapter dealing with products of milling, and this apparently regardless of the manner (dry or wet) in which a separation of the germ came about. Also of interest is what is said in Regulation No 1052/68 of the Council of 23 July 1968 (OJ, English Special Edition 1968 (II), p. 323) in relation to the distinction between heading No 11.01 and 11.02, on the one hand (which are obviously not relevant here), and heading No 23.02, on the other. We read there in a footnote to heading No 11.01 (cereal flours): ‘Inclusion under this heading is subject to the condition that the product in question has a starch content exceeding 45 % and an ash content not exceeding … 2 % for products based on maize … If either of the two conditions mentioned above is not fulfilled, the product in question shall be classified under tariff subheading 23.02 A on the basis of its starch content’. It may be concluded from this that reference to heading No 23.02 is important from the point of view of principle, that is, it may be assumed that the said heading No 23.02 is the general heading number in this connexion Accordingly, the view may be taken, as the Commission has done, that classification under heading No 23.02 is to be considered for a product if it is branlike and a residue in the working of cereals, including maize, and if furthermore, because it cannot be said to be a residue from oil extraction, the special heading (23.04) on such residues is excluded. Contrary to the view of the plaintiff, the first question must be answered to this effect and perhaps, as the Commission has proposed, it should be added that this also applies if the relevant product arises from a production stage prior to the actual oil extraction.