1.

The decisive factor for classification of the goods in question seems to me to be the presence of tips in the imported consignments, regardless of whether the tips are still attached to the grains or have been broken off. In fact, if the grains had had their tips removed as a result of hulling, they would probably have been removed from the consignments in question, since it would be pointless to transport residues or waste of such low value at great cost over a great distance. In the present case, it may be inferred from the presence of tips still mixed with the grains that the tips were not removed deliberately, that their removal is not the result of hulling or other processing and that it was unintentional and incidental. This reasoning is confirmed by the fact that the consignments include, in addition to broken-off tips, grains which still bear their tips. Normally therefore a further operation would have to be carried out (albeit a relatively simple one, since it is similar to winnowing) in order to remove the tips from the grains. The Commission explains that the oats in question probably lost a large proportion of their tips during harvesting by means of advanced combine harvesters, allowing an operation to be carried out which was not contemplated by the Common Customs Tariff at the time of importation. But that does not mean that the grains have undergone any processing other than threshing or winnowing, the only consideration which, in the circumstances, must be regarded as relevant. The Commission further states that the Explanatory Notes to the Common Customs Tariff relating to subheading 11.02 B I (a) 2 (aa) were amended in November 1980 so as to include “oat grains which have only been threshed after harvesting and, although retaining their husks or bract, have had their tips broken off”. The Explanatory Notes to the Common Customs Tariff of the European Communities — which should not be confused with the “Notes” or “ Additional Notes” to the table of duties (second part of the Annex to the regulation on the Common Customs Tariff) — are, according to the case-law of the Court (paragraph 13 of the decision of 4 October 1979 in Cleton [1979] ECR 3069, at p. 3080), merely a means of interpretation of an administrative nature; they are not intended to replace the Explanatory Notes of the Customs Cooperation Council but only to supplement them, as is expressly stated in the notice preceding them. And the Explanatory Notes to the Customs Cooperation Council Nomenclature contain no clarification of the kind contained in those drawn up by the Committee on Common Customs Tariff Nomenclature. On consulting the latest updating supplement to those Notes, for subheading B I (a) 2 (aa) I found only the following comment: “Clipped oats are grains which retain their husks or bract but have had their tips removed. As a result of the treatment effected, the husks can be removed from about 10% by weight of the grains.” I did not find there the new paragraph referred to by the Commission as having being approved on 27 October 1980 by the Committee on Common Customs Tariff Nomenclature. It seems to me therefore that that amendment, which was in any case effected after the events with which the national court is concerned, has not yet been published. Consequently, the table of duties now in force and the Explanatory Notes drawn up by the Customs Cooperation Council, which are an authentic source for interpretation in the absence of specific provisions of Community law (paragraph 12 of the judgment cited above), do not undermine the view that the subheading in question cannot include oats whose tips have been unintentionally and incidentally broken off, in particular where the tips are still mixed with the grains. Nor does that view conflict with the principle laid down by the Court in other cases, according to which, to ensure legal certainty and to facilitate the work of the administration, the classification of goods must be based on their objective characteristics and properties.