v PÄRLITIGU 
JUDGMENT OF THE COURT (Fourth Chamber) 
16 July 2009 * 
In Case C-56/08, 
REFERENCE for a preliminary ruling under Article 234 EC, from the Tallinna 
Halduskohus (Estonia), made by decision of 16 January 2008, received at the Court on
13 February 2008, in the proceedings 
Pärlitigu OÜ 
Maksu- ja Tolliameti Põhja maksu- ja tollikeskus, 
THE COURT (Fourth Chamber), 
composed of K. Lenaerts, President of Chamber, R. Silva de Lapuerta, E. Juhász, 
G. Arestis (Rapporteur) and J. Malenovský, Judges, 
* Language of the case: Estonian. 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
Advocate General: V. Trstenjak,
Registrar: C. Strömholm, Administrator, 
after considering the observations submitted on behalf of: 
—Pärlitigu OÜ, by M. Maksing, advokaat, 
—the Estonian Government, by L. Uibo, acting as Agent, 
—the Council of the European Union, by T. Tobreluts and J.-P. Hix, acting as Agents,
assisted by G. Berrisch, Rechtsanwalt, 
—the Commission of the European Communities, by K. Saaremäel-Stoilov, H. van
Vliet and A. Sipos, acting as Agents, 
having regard to the written procedure and further to the hearing on 12 February 2009, 
having decided, after hearing the Advocate General, to proceed to judgment without an
Opinion, 
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PÄRLITIGU 
gives the following 
Judgment 
1 This reference for a preliminary ruling concerns the interpretation of subheadings
0511 91 10 and 0303 22 00 of the Combined Nomenclature which constitutes Annex I 
to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by
Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1,
‘the CN ’), and the validity of Article 1(5) of Council Regulation (EC) No 85/2006 of
17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the
provisional duty imposed on imports of farmed salmon originating in Norway (OJ 2006
L 15, p. 1). 
2 The reference has been made in the course of proceedings between Maksu- ja 
Tolliameti Põhja maksu- ja tollikeskus ( ‘the PMTK ’), the Estonian tax and customs 
office, and Pärlitigu OÜ ( ‘Pärlitigu ’), a company incorporated under Estonian law,
concerning a tax notice issued to the latter. 
Legal context 
3 Section I A of Part One of the CN, which contains the general rules for the 
interpretation of the CN, provides as follows: 
‘Classification of goods in the [CN] shall be governed by the following principles: 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
1.The titles of sections, chapters and sub-chapters are provided for ease of reference
only; for legal purposes, classification shall be determined according to the terms of
the headings and any relative section or chapter notes and, provided such headings
or notes do not otherwise require, according to the following provisions. 
2.(a) Any reference in a heading to an article shall be taken to include a reference to
that article incomplete or unfinished, provided that, as presented, the 
incomplete or unfinished article has the essential character of the complete
or finished article. It shall also be taken to include a reference to that article 
complete or finished (or falling to be classified as complete or finished by virtue
of this rule), presented unassembled or disassembled. 
…
6.For legal purposes, the classification of goods in the subheadings of a heading shall
be determined according to the terms of those subheadings and any related
subheading notes and, mutatis mutandis , to the above rules, on the understanding
that only subheadings at the same level are comparable. For the purposes of this
rule, the relative section and chapter notes also apply, unless the context requires
otherwise. ’
4 Section I of Part Two of the NC, entitled ‘Live animals; animal products ’, contains five 
chapters. 
5 Among them, Chapter 3, entitled ‘Fish and crustaceans, molluscs and other aquatic 
invertebrates ’, contains heading 0303, entitled ‘Fish, frozen, excluding fish fillets and 
other fish meat of heading 0304 ’, is divided as follows: 
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6 PÄRLITIGU 
‘Pacific salmon (Oncorhynchus nerka, Oncorhynchus gorbuscha, Oncorhynchus keta,
Oncorhynchus tschawytscha, Oncorhynchus kisutch, Oncorhynchus masou and 
Oncorhynchus rhodurus), excluding livers and roes: 
…
0303 22 00 ——Atlantic salmon ( Salmo salar ) and Danube salmon ( Hucho 
hucho ) 
…’. 
The notes to Chapter 3 state: 
‘1. This chapter does not cover: 
…[…]
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7 JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
(c) fish (including livers and roes thereof) or crustaceans, molluscs or other aquatic
invertebrates, dead and unfit or unsuitable for human consumption by reason of
either their species or their condition (Chapter 5); …
…’
Chapter 5 of Section I of Part Two of the CN, entitled ‘Products of animal origin, not 
elsewhere specified or included ’, includes heading 0511, itself entitled ‘Animal products
not elsewhere specified or included; dead animals of Chapter 1 or 3, unfit for human
consumption ’, which is subdivided as follows: 
‘0511 10 00 —Bovine semen 
—Other: 
0511 91 ——Products of fish or crustaceans, molluscs or other aquatic 
invertebrates; dead animals of Chapter 3: 
0511 91 10 — — —Fish waste 
…’
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8 
9 PÄRLITIGU 
The notes to Chapter 5 provide the following information: 
‘1 This chapter does not cover: 
(a)edible products (other than guts, bladders and stomachs of animals, whole and
pieces thereof, and animal blood, liquid or dried); 
…’
The headings of the Integrated Tariff of the European Communities (TARIC) relating
to Chapter 3 of Part Two, Section I, of the CN are subdivided as follows: 
‘0303 22 00 11 — — —Atlantic salmon ( Salmo salar ) 
0303 22 00 11 — — — —Wild 
0303 22 00 12 — — — —Other 
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10 JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
0303 22 00 12 — — — — —Whole 
0303 22 00 13 — — — — —Gutted, head-on 
0303 22 00 15 — — —Other ’. 
Article 1 of Regulation No 85/2006 states: 
‘1. A definitive anti-dumping duty is hereby imposed on imports of farmed (other than
wild) salmon, whether or not filleted, fresh, chilled or frozen, falling within CN codes
ex0302 12 00, ex0303 11 00, ex0303 19 00, ex0303 22 00, ex0304 10 13 and 
ex0304 20 13 (hereinafter farmed salmon) originating in Norway. 
…
4. For all …companies [other than Nordlaks Oppdrett AS] (TARIC additional code
A999), the amount of the definitive anti-dumping duty shall be the difference between
the minimum import price fixed in paragraph 5 and the net free-at-Community -
frontier price, before duty, if the latter is lower than the former. No duty shall be 
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PÄRLITIGU 
collected where the net free-at-Community-frontier price is equal to or higher than the
corresponding minimum import price fixed in paragraph 5. 
5. For the purpose of paragraph 4, the minimum import price set out in column 2 in the
table below shall apply. Where it is found following post-importation verification that
the net free-at-Community-frontier price actually paid by the first independent 
customer in the Community (post-importation price) is below the net free-at -
Community-frontier price, before duty, as resulted from the customs declaration and
the post-importation price is lower than the minimum import price, the fixed anti -
dumping duty set out in column 3 of the table below shall apply, unless the application
of the fixed duty set out in column 3 plus the post-importation price lead to an amount
(price actually paid plus fixed duty) which remains below the minimum import price set
out in column 2 in the table below. In such a case, an amount of duty equivalent to the
difference between the minimum import price set out in column 2 in the table below
and the post-importation price shall apply. Where such fixed anti-dumping duty is
collected retrospectively, it shall be collected net of any anti-dumping duty previously
paid, calculated on the basis of the minimum import price. 
Presentation of 
farmed salmon Minimum import
price EUR/kg net
product weight Fixed duty EUR/kg
net product weight TARIC code 
Whole fish, fresh, 
chilled or frozen 2,80 0,40 0302 12 00 12 
0302 12 00 33 
0303 12 00 93 
0303 11 00 93 
0303 19 00 93 
0303 22 00 12 
0303 22 00 83 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
Gutted, head-on, 3,11 0,45 0302 12 00 13 
fresh, chilled or frozen 0302 12 00 34 
0302 12 00 94 
0303 11 00 94 
0303 19 00 94 
0303 22 00 13 
0303 22 00 84 
Other (including 3,49 0,50 0302 12 00 15 
gutted, head-off), 0302 12 00 36 
fresh, chilled or frozen 0302 12 00 96 
0303 11 00 18 
0303 11 00 96 
0303 19 00 18 
0303 19 00 96 
0303 22 00 15 
0303 22 00 86 
Whole fish fillets and 5,01 0,73 0304 10 13 13 
fillets cut in pieces, 0304 10 13 94 
weighing more than 0304 20 13 13 
300 g per fillet, fresh,
chilled or frozen, skin 
on 0304 20 13 94 
Whole fish fillets and 6,40 0,93 0304 10 13 14 
fillets cut in pieces, 0304 10 13 95 
weighing more than 0304 20 13 14 
300 g per fillet, fresh,
chilled or frozen, skin 
off 0304 20 13 95 
Other whole fish 7,73 1,12 0304 10 13 15 
fillets and fillets cut in 0304 10 13 96 
pieces, weighing 300 g 0304 20 13 15 
or less per fillet, fresh,
chilled or frozen 0304 20 13 96 
…’
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PÄRLITIGU 
11Council Regulation (EC) No 319/2009 of 16 April 2009, clarifying the scope of the
definitive anti-dumping duties imposed by Regulation No 85/2006 (OJ 2009 L 101, p. 1),
replaced Article 1(1) of Regulation No 85/2006 with the following text: 
‘A definitive anti-dumping duty is hereby imposed on imports of farmed (other than
wild) salmon, whether or not filleted, fresh, chilled or frozen, falling within CN codes
ex0302 12 00, ex0303 11 00, ex0303 19 00, ex0303 22 00, ex0304 10 13 and 
ex0304 20 13 (hereinafter farmed salmon) originating in Norway. Salmon backbones,
composed of a fishbone partly covered with flesh, being an edible by-product of the
fishing industry, and falling within CN codes ex0302 12 00, ex0303 11 00, 
ex0303 19 00, ex0303 22 00, shall not be covered by the definitive anti-dumping
duty provided that the flesh attached to the backbone represents not more than 40% of
the salmon backbone. ’
12Article 2 of Regulation No 319/2009 provides as follows: 
‘For goods not covered by Article 1(1) of Regulation (EC) No 85/2006 as amended by
this Regulation, the definitive anti-dumping duties paid or entered into the accounts
pursuant to Article 1(1) of Regulation (EC) No 85/2006 in its initial version and the
provisional anti-dumping duties definitively collected pursuant to Article 2 of that
Regulation shall be repaid or remitted. 
…’
13According to Article 3 thereof, Regulation No 319/2009 is to apply retroactively from
21 January 2006. 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
The dispute in the main proceedings and the questions referred for a preliminary
ruling 
14On 19 January 2006, Pärlitigu purchased in Norway, under an invoice from Fossen AS,
13 050 kg of frozen backbones of farmed Atlantic salmon ( Salmo salar ), obtained after
filleting the fish, at a price of EEK 6.54 per kg. It can be seen from the order for reference,
and, in particular, from the first question referred to the Court, that the products at
issue are fit for human consumption and normally marketed as foodstuffs. 
15On 23 January 2006, Pärlitigu imported those goods into Estonia under customs
declaration No I 5446, in which they were designated as fish waste under CN heading
0511 91 10, on which no customs duty is levied. On the same date, the PMTK accepted
that declaration and placed the goods in free circulation. At that time, Pärlitigu paid
value added tax of EEK 15 370. 
16On 25 January 2006, Pärlitigu sold the same goods to Alkfish OÜ at a price of EEK 8.47
per kg. 
17On 23 March 2006, a PMTK official, carrying out an inspection subsequent to
importation, took a sample of the goods in question at the warehouse of Alkfish OÜ in
order to ascertain whether the CN heading mentioned in the import declaration was
correct. The analysis of the sample showed that the goods were fit for human 
consumption. 
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18 PÄRLITIGU 
In the light of that conclusion, the PMTK allocated a new CN heading to the goods,
namely, 0303 22 00, and classified the goods under TARIC heading 0303 22 00 15. On
30 March 2007, it issued Tax Notice No 12-5/177, taking account, in particular, the anti -
dumping duty laid down in Regulation No 85/2006. 
19On 11 April 2007, Pärlitigu challenged that notice before the Tallinna Halduskohus
(Tallinn Administrative Court), seeking annulment of the notice and suspension of its
operation by way of interim measure. 
20In those circumstances, theTallinna Halduskohus decided to stay proceedings and refer
the following questions to the Court for a preliminary ruling: 
‘[1.]Must the [CN] be interpreted as meaning that frozen backbones (bones with fish
meat) of farmed Atlantic salmon ( Salmo salar ), obtained after filleting the fish, fit
for human consumption and normally marketed as a foodstuff, come under 
(a) subheading 0511 91 10, “fish waste ”, or 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
(b) subheading 0303 22 00 15, “Atlantic salmon ( Salmo salar ) —other —
other ”? 
[2.]If the answer to Question 1 is alternative (b), is the table in Article 1(5) of
[Regulation No 85/2006] void as contrary to the principle of proportionality laid
down in Article 5 [EC] in so far as, according to that table, the minimum import
price established for frozen salmon backbones is higher than the minimum
import price for whole fish and gutted head-on fish? ’
The questions referred to the Court 
The first question 
21By its first question, the referring court essentially asks whether frozen backbones of
farmed Atlantic salmon, obtained after filleting the fish, come under CN subheading
0511 91 10 as fish waste or CN subheading 0303 22 00 as Atlantic salmon ( Salmo 
salar ) and, in particular, under TARIC subheading 0303 22 00 15. 
22According to Pärlitigu, the CN must be interpreted as meaning that the goods at issue
must be classified under CN subheading NC 0511 91 00, entitled ‘fish waste ’, since that 
description corresponds to the nature of the goods and there is no other, more precise,
subheading which corresponds to them. The Estonian Government and the 
Commission of the European Communities consider, on the other hand, that since 
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PÄRLITIGU 
the goods in question are fit for human consumption, they come under CN subheading
0303 22 00 and, more particularly, under TARIC subheading 0303 22 00 15. 
23It should be recalled that, when the Court is requested to give a preliminary ruling on a
matter of tariff classification, its task is to provide the national court with guidance on
the criteria the implementation of which will enable the latter to classify the products at
issue correctly in the CN, rather than to effect that classification itself, a fortiori since 
the Court does not necessarily have available to it all the information which is essential
in that regard. In any event, the national court is in a better position to do so (Joined
Cases C-260/00 to C-263/00 Lohmann and Medi Bayreuth [2002] ECR I-10045, 
paragraph 26, and Case C-500/04 Proxxon [2006] ECR I-1545, paragraph 23). However,
in order to give the national court a useful answer, the Court may, in a spirit of
cooperation with national courts, provide it with all the guidance that it deems
necessary (see, in particular, Case C-49/07 MOTOE [2008] ECR I-4863, paragraph 30). 
24It should also be recalled that it is settled case-law that, in the interests of legal certainty
and ease of verification, the decisive criterion for the classification of goods for customs
purposes is in general to be sought in their objective characteristics and properties as
defined in the wording of the relevant heading of the CN and in the section or chapter
notes (see, in particular, Case C-396/02 DFDS [2004] ECR I-8439, paragraph 27; Case 
C-495/03 Intermodal Transports [2005] ECR I-8151, paragraph 47; and Case C-183/06 
RUMA [2007] ECR I-1559, paragraph 27). 
25In the present case, it must be noted that the goods at issue in the main proceedings are
not expressly referred to either in the wording of the CN headings in question or in the
section or chapter notes thereto. It is common ground, however, that the goods in
question come under Section I of Part Two of the CN entitled ‘Live animals; animal 
products ’. That section is divided into five chapters, among which are Chapter 3, 
entitled ‘Fish and crustaceans, molluscs and other aquatic invertebrates ’, and Chapter 5 
entitled ‘Products of animal origin, not elsewhere specified or included ’. It is clear from 
the wording of the latter title that Chapter 5 concerns products which correspond to 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
none of the descriptions in the other four chapters of that section. In addition, note 1(a)
to Chapter 5 states that the chapter does not cover edible products, other than guts,
bladders and stomachs of animals, and animal blood. In that context, the criteria which 
could justify the possible classification of the goods at issue in the main proceedings
under a subheading in Chapter 3 of Part Two, Section I, of the CN must be determined. 
26It is settled case-law that both the notes which head the chapters of the Common
Customs Tariff and the Explanatory Notes to the Customs Cooperation Council
Nomenclature are important means of ensuring the uniform application of the Tariff
and as such may be regarded as useful aids to its interpretation (Case C-338/95 Wiener 
SI [1997] ECR I-6495, paragraph 11, and Case C-276/00 Turbon International 
[2002] ECR I-1389, paragraph 22). 
27In the present case, note 1(c) to Chapter 3 of Part Two, Section I, of the CN states that
that chapter does not cover fish unsuitable for human consumption by reason of either
their species or their condition. It is therefore clear from the wording of that note that
the decisive criterion for determining whether the goods at issue in the main 
proceedings come under Chapter 3 lies in the fact that they are fit for human 
consumption. Under those circumstances, the determinant question is whether, at the
time that they were cleared through customs, the frozen backbones of farmed Atlantic
salmon, obtained after filleting the fish, constituting those goods, were fit for human
consumption (see, by analogy, Case C-395/93 Neckermann Versand [1994] ECR 
I-4027, paragraph 8, and Case C-14/05 Anagram International [2006] ECR I-6763, 
paragraph 26), which it is for the national court to ascertain. 
28The applicant in the main proceedings claims that the limited value of the goods in
question indicates that, even if the product of which it is composed is fit for human
consumption under certain conditions, it cannot be regarded as a food product. The
structure of Chapter 3 of Part Two, Section I of the CN concerns fish of which parts or 
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PÄRLITIGU 
the products thereof can still be used as whole fish or the essential parts of fish. Fish
backbones do not meet those requirements because they no longer have the essential
properties and characteristics which make it possible, on an objective basis and in the
light of economic considerations, to classify them under a subheading in Chapter 3. 
29However, since, in accordance with the case-law cited in paragraph 24 of the present
judgment, the classification of the goods at issue in the main proceedings must be based
on the objective characteristics and properties of those goods, having regard to the
objective characteristics and properties defined by the wording of the subheadings and
the notes to Chapter 3 of Part Two, Section I of the CN, it is obvious that, in regard to
those goods, the decisive factor in classifying them lies in the fact that they are fit for
human consumption and not in their value or quantity. 
30Having regard to the foregoing, the answer to the first question must be that the CN
must be interpreted as meaning that frozen backbones of farmed Atlantic salmon
(Salmo salar ), obtained after filleting the fish, must be classified under CN heading
0303 22 00 if the goods are fit for human consumption at the time that they are cleared
through customs, which it is for the national court to ascertain. 
The second question 
31By its second question, the national court is asking whether Article 1(5) of Regulation
No 85/2006 is void as contrary to the principle of proportionality in so far as the
minimum import price established for frozen salmon backbones is higher than the
minimum import price for whole fish and gutted head-on fish. 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
32That regulation imposes a definitive anti-dumping duty on imports of farmed salmon,
whether or not filleted, fresh, chilled or frozen, originating in Norway in respect of
goods coming under TARIC heading 0303 22 00 15, entitled ‘Other (including gutted, 
head-off), fresh, chilled or frozen ’, in which the goods at issue in the main proceedings 
must be classified in accordance with tax notice No 12-5/177 issued by
PMTK. Article 1(4) of the said regulation provides that the amount of the definitive
anti-dumping duty is to be the difference between the minimum import price fixed in
paragraph 5 and the net free-at-Community-frontier price, before duty, if the latter is
lower than the former. For goods coming under TARIC heading 0303 22 00 15, the
table in paragraph 5 fixes a minimum import price on importation of EUR 3.49 per kg,
which is indeed higher than the prices fixed for whole fish and gutted head-on fish,
which are EUR 2.80 and EUR 3.11 per kg respectively. 
33The scope of Regulation No 85/2006 was later clarified by Regulation No 319/2009,
which entered into force on 16 April 2009. 
34It is clear from the fifth to seventh recitals in that regulation, that, in the light of the
second question raised in the present reference for a preliminary ruling, the 
Commission initiated a partial interim review of the anti-dumping measures applicable
to farmed salmon originating in Norway, limited to the examination of the product
scope. It was considered appropriate to examine whether frozen backbones of salmon
fall within the definition of the products concerned by Regulation No 85/2006, and in
particular those referred to under the heading ‘Other (including gutted, head off), fresh, 
chilled or frozen ’, which correspond, inter alia, to TARIC heading 0303 22 00 15. 
That examination led to the conclusion that salmon backbones and farmed salmon, as 
defined in Article 1(1) of Regulation No 85/2006, are two different products because
they are not interchangeable and do not compete with each other on the Community
market. Consequently, Article 1(1) of that regulation, as amended by Regulation 
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PÄRLITIGU 
No 319/2009, now provides that salmon backbones, composed of a fishbone partly
covered with flesh, being an edible by-product of the fishing industry, and falling within
CN codes ex0302 12 00, ex0303 11 00, ex0303 19 00, ex0303 22 00, are not covered 
by the definitive anti-dumping duty imposed by Regulation No 85/2006 provided that
the flesh attached to the backbone represents no more than 40% of the salmon
backbone weight. 
36In addition, Article 3 of Regulation No 319/2009 provides that the latter is to apply
retroactively from 21 January 2006. Consequently, Article 2 of the regulation provides
for repayment or remission of the definitive anti-dumping duties paid or entered into
the accounts pursuant to Article 1(1) of Regulation No 85/2006 in its initial version and
of the provisional anti-dumping duties definitively levied in respect of goods not
covered by Article 1(1) of Regulation No 85/2006, as amended by Regulation 
No 319/2009. 
37It must be said that the retroactive amendment of Regulation No 85/2006 by Regulation
No 319/2006 has deprived the Court ’s answer to the national court ’s second question of
any interest for the resolution of the dispute in the main proceedings. 
38It is apparent from the order for reference that the national court has evidence,
provided by the applicant, which shows that, in the goods at issue in the main
proceedings, the flesh attached to the backbone does not exceed 24% of the weight
thereof, which is precisely what led that court to raise the question whether the anti -
dumping duties applied to those goods under Regulation No 85/2006 complied with the
principle of proportionality. 
39Having regard to that established fact, it is clear that, by virtue of Regulation
No 319/2009, those goods are deemed never to have come within the scope of the
antidumping duty introduced by Regulation No 85/2006. 
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JUDGMENT OF 16. 7. 2009 —CASE C-56/08 
40Under those circumstances, it is not necessary to answer the second question. 
Costs 
41Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is a matter for that court. Costs
incurred in submitting observations to the Court, other than the costs of those parties,
are not recoverable. 
On those grounds, the Court (Fourth Chamber) hereby rules: 
The Combined Nomenclature, which constitutes Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff, as amended by Commission Regulation (EC)
No 1719/2005 of 27 October 2005, must be interpreted as meaning that frozen
backbones of farmed Atlantic salmon ( Salmo salar), obtained after filleting the
fish, must be classified under CN heading 0303 22 00 if the goods are fit for
human consumption at the time that they are cleared through customs, which it is
for the national court to ascertain. 
[Signatures] 
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