I AND ON THE INTERPRETATION OF CERTAIN SUBHEADINGS OF THE COMMON CUSTOMS TARIFF ,
Grounds
1BY ORDER OF 27 APRIL 1978 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 26 JULY 1978 , THE FINANZGERICHT MUNSTER REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS CONCERNING THE VALIDITY AND TEMPORAL APPLICATION OF COMMISSION REGULATION ( EEC ) NO 1669/77 OF 25 JULY 1977 ON THE CLASSIFICATION OF GOODS UNDER COMMON CUSTOMS TARIFF SUBHEADING 02.02 B I ( OFFICIAL JOURNAL L 186 OF 1977 , P . 23 ), AND CONCERNING THE INTERPRETATION OF CERTAIN SUBHEADINGS OF THE COMMON CUSTOMS TARIFF .
THESE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE BETWEEN AN IMPORTER AND THE GERMAN CUSTOMS AUTHORITIES CONCERNING THE CLASSIFICATION IN THE COMMON CUSTOMS TARIFF OF BONED OR BONELESS POULTRY MEAT .
THE IMPORTER CLASSIFIED THE GOODS IN QUESTION AS ' ' OFFALS ' ' WITHIN THE MEANING OF TARIFF SUBHEADING 02.02 C BUT THE CUSTOMS AUTHORITIES ON THE OTHER HAND TAKE THE VIEW THAT THE GOODS CONSTITUTE ' ' POULTRY CUTS ( EXCLUDING OFFALS ): BONED OR BONELESS ' ' AND MUST THEREFORE BE CLASSIFIED WITHIN SUBHEADING 02.02 B I .
2IN IMPLEMENTATION OF REGULATION ( EEC ) NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ON MEASURES TO BE TAKEN FOR UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 12 ) AND IN ORDER TO DEFINE THE RELATIVE SCOPE OF SUBHEADINGS 02.02 B I ( POULTRY CUTS ( EXCLUDING OFFAL ): BONED OR BONELESS ) AND 02.02 C ( OFFALS ) THE COMMISSION ADOPTED REGULATION NO 1669/77 , ARTICLE 1 OF WHICH DEFINES THE PRODUCTS TO BE CLASSIFIED UNDER SUBHEADING 02.02 B I AS FOLLOWS :
' ' RAW , FROZEN POULTRY-MEAT , IN PARTICULAR TURKEY MEAT , OBTAINED BY SCRAPING POULTRY BONES FROM WHICH THE PRIME CUTS HAVE BEEN REMOVED OR IN ANY OTHER WAY ( FOR EXAMPLE , IN THE REDUCTION OF LARGER CUTS TO SMALLER SIZE ) AND CONSISTING OF SMALL , IRREGULARLY SHAPED PIECES , SOMETIMES WITH FIBROUS , GRISTLY AND FATTY TISSUE ATTACHED THERETO AND INDIVIDUALLY WEIGHING FROM 5 TO 40 GRAMS APPROXIMATELY . . . ' ' .
3THE PLAINTIFF IN THE MAIN ACTION , WHILST ACCEPTING THAT THE CLASSIFICATION ADOPTED BY THE CUSTOMS AUTHORITIES IS IN CONFORMITY WITH THAT LAID DOWN BY ARTICLE 1 OF REGULATION NO 1669/77 NEVERTHELESS DENIES THAT THAT CLASSIFICATION IS WELL FOUNDED AND ARGUES THAT THE AFORESAID ARTICLE CONTAINS AN ERROR OF FACT AND THAT IT LACKS LEGAL BASIS INASMUCH AS , IN ADOPTING THAT PROVISION , THE COMMISSION MADE A SUBSTANTIVE AMENDMENT TO THE COMMON CUSTOMS TARIFF AND EXCEEDED THE POWERS CONFERRED UPON IT BY REGULATION NO 97/69 OF THE COUNCIL .
IT FURTHER ARGUES THAT THE CLASSIFICATION IN QUESTION IS ILLEGAL AS THE SAID REGULATION NO 1669/77 ENTERED INTO FORCE ON A DATE SUBSEQUENT