Opinion of Mr Advocate General Tesauro delivered on 31 March 1993. - Gausepohl-Fleisch GmbH v Oberfinanzdirektion Hamburg. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Salted meat. - Case C-33/92.



European Court reports 1993 Page I-03047



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Bundesfinanzhof has referred to the Court for a preliminary ruling two questions relating essentially to the interpretation of the expression "salted meat" in heading 0210 of the Combined Nomenclature of the Common Customs Tariff. It asks specifically whether meat of bovine animals to which a quantity of salt has been added such that the total salt content amounts to more than three times the natural salt content is to be classified under heading 0210 and, if not, how high the salt content must be and what other conditions, if any, must be fulfilled for the product in question to be classified under that heading.

The questions were raised in proceedings between Gausepohl-Fleisch GmbH and the Oberfinanzdirektion, Hamburg, concerning the customs classification of two consignments of frozen meat of bovine animals with a total salt content of between 0.71 and 1.2%, the natural salt content of the meat in question being 0.15%.

2. It is common ground between the parties that the meat in question falls under Chapter 2 of the Combined Nomenclature, "Meat and edible meat offal", which covers meat of bovine animals, both frozen (heading 0202) and salted (heading 0210). The dispute which gave rise to the present proceedings turns specifically on the question whether it is to be classified under subheading 0202 30 90 (other meat of bovine animals, frozen) in accordance with the binding customs tariff notices issued by the Oberfinanzdirektion in connection with the consignments in question, or under subheading 0210 20 90 (meat of bovine animals, salted, boneless) as the plaintiff claims.

The national court first thought the meat in question should be classified under heading 0202, that is as frozen meat, only if it could not be regarded as sufficiently highly salted to be classified under heading 0210 and the essential aim of the questions referred to the Court is thus to establish the point at which the quantity of salt added is such that the meat of bovine animals at issue can with certainty be regarded as "salted" for the purposes of heading 0210.

3. That being said, it must first be recalled that the Court has consistently held that "having regard to the imperatives of legal certainty and ease of verification, the decisive criterion for the tariff classification of goods must be sought generally in their objective characteristics and qualities, as defined in the headings and subheadings of the CCT, and in the notes to the sections or chapters". (1) The Explanatory Notes to the Harmonized Commodity Description and Coding System may also be of some assistance in this connection. (2)

However, the term "salted" under heading 0210 is not defined in the notes to the sections or chapters or in the Explanatory Notes to the Harmonized System. Moreover, it is clear from documents submitted by the Commission that the question of the quantity of salt necessary for meat of bovine animals to be regarded as "salted" for the purposes of heading 0210 has been raised and discussed without success at meetings of the Ad hoc Working Party on Agriculture and the Committee on Common Customs Tariff Nomenclature. And, significantly, it also emerged during the procedure that the practice of the Member States varied greatly in this matter. Nevertheless, as we shall see, some useful guidance for the purposes of the present case can be derived from the general system of Chapter 2.

4. However, before considering the interpretation of heading 0210 and in particular the term "salted", it seems to me essential to say something about the criteria for deciding how meat that has been both frozen and salted should be classified in a case such as this.

Chapter 2 of the Combined Nomenclature, as the case-law of the Court confirms, (3) comprises meat which has undergone a preserving process that may consist of freezing or salting inter alia. It also appears from Chapter 2 of the Explanatory Notes to the Harmonized System that fresh meat (that is, meat in the natural state) remains classified as such even if it has been sprinkled with salt in order to ensure its preservation while being transported, so superficial salting is not enough for the meat in question to be regarded as "salted". Clearly, this argument must apply equally to frozen meat, otherwise any meat to which salt had been added would be regarded as "salted" for the purposes of heading 0210, irrespective of the amount of salt added in each case.

Whether a product is classified under one heading (frozen meat) rather than another (salted meat) therefore depends essentially on the process employed in the particular case to ensure the actual preservation of the product in question, so that when the preserving process employed is freezing the fact that salt has been added (whether before or after) is entirely irrelevant for tariff classification purposes.

However, that being said, it appears from the order for reference that the meat in the present case is intervention meat which had originally been frozen and was therefore treated with salt only after it had been defrozen. Clearly, in those circumstances, the addition of salt could be intended to preserve the meat in question and it could therefore be regarded as "salted" for the purposes of heading 0210. And this, in my view, is precisely what the national court has in mind when it says that the meat in question should be classified as frozen only if it cannot be classified as salted, in that, as it also points out, meat which was originally frozen is to be classified as frozen even when partially or totally defrozen. (4)

5. The above observations, intended to clarify the terms of the problem in hand, also suggest a number of points that are relevant to the interpretation of heading 0210: (a) it is impossible to deduce from the Combined Nomenclature how much salt must be present in meat for it to be regarded as "salted"; (b) the quantity of salt added must be such as to constitute a process for preserving the meat in question, so merely superficial salting is not sufficient; and lastly (c) salting for the purposes of transportation alone is not sufficient.

This is all confirmed by the fact that the other processes listed under heading 0210, namely pickling in brine, drying and smoking, are intended to ensure preservation for a longer period and also by the judgment in Dinter, cited above, in which it is stated that Chapter 2 comprises meat which has undergone a preserving process and, in particular, that meat merely "seasoned" with salt falls within heading 16.02 and not within Chapter 2. (5)

All that remains to be decided, therefore, is when salting is such as to constitute a preserving process and/or when it can be stated that it has not been carried out merely for the purpose of preserving the product during transportation. It has already been established that meat which has been merely sprinkled with salt is not to be classified as salted for the purposes of heading 0210. This is borne out by the Explanatory Note to subheadings 0210 11 11 and 0210 11 19 on meat of swine and there has been much discussion in the present case as to whether it might be applicable to salted meat of bovine animals as well.

I should like to say at once that this point does not seem to me to be crucial: first, because most of the information contained in that note, namely the requirement with respect to deep salting and the fact that the percentage salt content may vary considerably between different types and cuts of meat, does not touch on the problem and can in any case ° as we have seen ° be deduced from the system of Chapter 2, if only by a process of elimination. Second, it appears on closer examination that even the condition expressly mentioned in the note, that the period of preservation must considerably exceed the time required for transportation, is not new and in any case follows logically from the fact that salting for the purposes of heading 0210 must be intended to ensure preservation for purposes other than transportation.

6. In fact, the difficulties arise precisely from the absence of any criterion for distinguishing between salting merely for the purpose of preserving meat during transportation and salting as a method of ensuring its actual (if temporary) preservation. It has been claimed in the course of the procedure that, from a scientific point of view, a salt content of 4 to 5% is necessary for salting to be regarded as sufficient actually to "preserve" the product. (6) On the other hand, it has rightly been pointed out that preservation ° or to be precise, the period of preservation ° depends not only on the salt content but also on other factors such as the type and cut of the meat in question, the environmental conditions and the level of hygiene in packaging. It is consequently impossible to define what "deep salting" means in the abstract.

Nor is it possible to determine how far ("considerably") the period of preservation must exceed the time required for transportation for meat to be regarded as "salted". In the present case, for example, the time required for transporting the meat in question was only one hour but it was preserved for up to two days, a period that could certainly be regarded as considerably exceeding the time required for transportation. But the time required for transportation in each case would then become crucial and that would lead to discrimination between consignments of meat of the same type, with the same salt content.

7. It is quite clear from the above considerations that the criteria I have mentioned for describing meat of bovine animals as "salted" for the purposes of heading 0210, which can in any case be deduced from the system of Chapter 2 of the Combined Nomenclature, lack the objectivity required to enable a product to be classified under a given tariff heading in a uniform way.

To avoid such a conclusion, which leaves to the national court the task of deciding ° albeit in the light of the criteria I have mentioned ° whether or not meat of bovine animals to which salt has been added should be regarded as "salted" for the purposes of heading 0210, the Commission partly altered its position in the course of the oral procedure by suggesting a minimum salt content required for meat to be classified under heading 0210, namely 1.2% of the weight. That figure may certainly constitute an important reference point for the national court inasmuch as the Commission has said it intends to propose that a criterion of this kind be inserted in the relevant Combined Nomenclature. However, in view of the present wording of the Combined Nomenclature on the subject, I think such a criterion

ought not to be regarded as decisive for the purposes of the interpretation the Court has been asked to give.

My definitive view is, first, that a salt content amounting to more than three times the natural salt content is not of itself sufficient for meat to be regarded as "salted" for the purposes of heading 0210 and, second, that meat of bovine animals, even if previously frozen, is to be classified as "salted" for the purposes of heading 0210 when it contains a quantity of salt such as to ensure its preservation for a period which considerably exceeds the time required for transportation, account also being taken of the other factors mentioned above.

8. In the light of these considerations, I therefore propose that the Court give the following answer to the questions referred to it by the Bundesfinanzhof:

(1) Meat of bovine animals which has a total salt content amounting to more than three times the natural salt content is not, of itself, such as to be classifiable under heading 0210 of the Common Customs Tariff (Combined Nomenclature).

(2) In the present state of Community law, meat of bovine animals is to be classified as 'salted' for the purposes of heading 0210 when it has undergone a process of deep salting which, account also being taken of the cut of meat in question and of the climatic and environmental conditions, is such as to ensure its preservation for a period which considerably exceeds the time required for transportation.

(*) Original language: Italian.

(1) ° See, for example, judgment in Case C-120/90 Post [1991] ECR I-2391, paragraph 11.

(2) ° It should be noted that the Court has consistently held that although the Explanatory Notes cannot modify the text of the tariff itself, they nevertheless constitute an important factor in its interpretation, enabling the scope of the various tariff headings or subheadings to be defined or clarified.

(3) ° See judgment in Case 175/82 Dinter [1983] ECR 969, paragraph 6.

(4) ° See paragraph 3 of the general notes to Chapter 2 of the Combined Nomenclature.

(5) ° See expert opinion of the Federal Office for Meat Research (Annex 1 to the Commission observations).

(6) ° See expert opinion of the Federal Office for Meat Research (Annex 1 to the Commission observations).