1 BY AN ORDER DATED 6 MAY 1970, THE FINANZGERICHT HAMBURG PURSUANT TO ARTICLE 177 OF THE EEC TREATY REFERRED TO THE COURT OF JUSTICE THE QUESTION WHETHER REARED POULTRY DESCRIBED AS " ROCK CORNISH GAME HENS " MUST BE CONSIDERED AS POULTRY WITHIN THE MEANING OF ARTICLE 1 OF REGULATION NO 22 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN POULTRYMEAT .
2 WITHIN THE SCOPE OF ITS POWERS UNDER ARTICLE 177 OF THE EEC TREATY THE COURT HAS JURISDICTION TO GIVE A RULING ON THE INTERPRETATION OF THE TREATY AND ON ACTS OF THE INSTITUTIONS BUT MAY NOT APPLY THE TREATY TO A SPECIFIC CASE . THE COURT MUST CONFINE ITSELF TO EXTRACTING FROM THE WORDING OF THE QUESTION FORMULATED BY THE FINANZGERICHT HAMBURG THOSE MATTERS ONLY WHICH PERTAIN TO THE INTERPRETATION OF THE TREATY AND TO REGULATION NO 22, TAKING INTO ACCOUNT THE FACTS COMMUNICATED BY THAT COURT . ACCORDINGLY THE QUESTION PUT BY THE FINANZGERICHT MUST BE REGARDED AS DESIGNED TO ASCERTAIN WHAT CRITERIA GOVERN CLASSIFICATION UNDER THE CATEGORY OF " POULTRY " WITHIN THE MEANING OF ARTICLE 1 OF REGULATION NO 22 .
3 ARTICLE 1 OF REGULATION NO 22 REFERS TO TARIFF HEADINGS 01.05 AND 02.02 OF THE COMMON CUSTOMS TARIFF . THESE HEADINGS DEAL RESPECTIVELY WITH " LIVE POULTRY " AND " DEAD POULTRY AND EDIBLE OFFALS THEREOF ( EXCEPT LIVER ), FRESH, CHILLED OR FROZEN ". ALTHOUGH TARIFF HEADING 02.02 DOES NOT CONTAIN THE ENUMERATION SET OUT IN HEADING 01.05 BOTH HEADINGS MUST UNDOUBTEDLY BE INTERPRETED SO THAT THEY APPLY TO THE SAME POULTRY IN A LIVE OR DEAD STATE AS THE CASE MAY BE . THIS IS CONFIRMED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE ISSUED BY THE CUSTOMS COOPERATION COUNCIL WHICH EXPRESSLY INDICATE, WITH REGARD TO TARIFF HEADING 02.02, THAT THE POULTRY UNDER THIS HEADING IS THAT COVERED BY TARIFF HEADING 01.05 . IT IS THEREFORE SUFFICIENT TO EXAMINE THE QUESTION IN RELATION TO TARIFF HEADING 01.05 .
4 THIS HEADING LISTS A NUMBER OF SPECIES : FOWLS, DUCKS, GEESE, TURKEYS AND GUINEA FOWLS . THE QUESTION SUBMITTED COMES DOWN TO WHETHER THE CATEGORY " POULTRY " MORE SPECIFICALLY DEFINED BY THE TERM " FOWLS ", CAN INCLUDE A PRODUCT OF BREEDING WHICH HAS ORIGINATED FROM A CROSS BETWEEN A PHASIANIDA OF THE SPECIES " GALLUS GALLUS " AND A TETRAONIDA .
5 THE DESCRIPTION " LIVE POULTRY " CAN ONLY COVER THOSE SPECIES RAISED IN AGRICULTURAL OR INDUSTRIAL CONCERNS FOR USE OR SLAUGHTER, IN PARTICULAR FOR THE PRODUCTION OF FOODSTUFFS . THUS THIS DESCRIPTION COVERS TYPES OF POULTRY WHICH ARE NOT THE RESULT OF EVOLUTION OR NATURAL SELECTION BUT ARE THE PRODUCT OF A PROCESS OF BREEDING OR ARTIFICIAL SELECTION WHICH IS INTENDED TO COMBINE OR IMPROVE CERTAIN ECONOMICALLY EXPLOITABLE QUALITIES OF VARIOUS SPECIES . EVEN POULTRY DERIVED FROM THE CROSSING OF WILD SPECIES MUST BE REGARDED AS " POULTRY " IF IT IS PRODUCED BY MEANS OF ARTIFICIAL SELECTION FOR THE PURPOSES OF SLAUGHTER AND OFFERED FOR SALE IN A WAY WHICH MAY BE SUITED TO A MARKET FOR COMPETING OR SUBSTITUTE PRODUCTS .
6 CONSIDERATIONS DEPENDING ON THE QUALITIES OF TASTE, THE SELLING PRICE OR THE ZOOLOGICAL CHARACTERISTICS OF THE BIRDS DO NOT IN THEMSELVES PLAY ANY DECISIVE ROLE IN THIS CLASSIFICATION .
7 THE DESCRIPTION " POULTRY " IN TARIFF HEADINGS 01.05 AND 02.02 OF THE COMMON CUSTOMS TARIFF WHICH ARE INCORPORATED IN ARTICLE 1 OF REGULATION NO 22 OF THE COUNCIL OF 4 APRIL 1962 APPLIES TO THOSE SPECIES OF POULTRY WHICH ARE REARED FOR USE OR SLAUGHTER, IN PARTICULAR FOR THE PRODUCTION OF FOODSTUFFS .