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 TO THAT OF THE IMPORTS IN QUESTION AND CANNOT , THEREFORE , BE APPLICABLE TO THOSE IMPORTS AS IT WOULD THUS HAVE RETROACTIVE EFFECT .
4IN ORDER TO RESOLVE THAT DISPUTE THE FINANZGERICHT MUNSTER RAISED THE FOLLOWING QUESTIONS : ' ' 1 . IS 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 , P . 23 ) INVALID BECAUSE IT DOES NOT SPECIFY THE CONTENT OF TARIFF SUBHEADINGS 02.02 B I AND 02.02 C BUT AMENDS THEM AND THEREFORE GOES BEYOND THE POWERS CONFERRED BY 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)? 2 . IF QUESTION 1 IS ANSWERED IN THE NEGATIVE : DOES REGULATION ( EEC ) NO 1669/77 HAVE RETROACTIVE EFFECT IN THE SENSE THAT COURTS AND AUTHORITIES IN THE MEMBER STATES ARE TO APPLY IT TO IMPORTS CARRIED OUT BEFORE ITS ENTRY INTO FORCE? 3 . IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE OR IF QUESTION 2 IS ANSWERED IN THE NEGATIVE : ACCORDING TO WHAT CRITERIA WAS THE DISTINCTION TO BE DRAWN BETWEEN TARIFF SUBHEADING 02.02 B I - ' ' POULTRY CUTS ( EXCLUDING OFFALS ) BONED OR BONELESS ' ' - AND SUBHEADING 02.02 C - ' ' OFFALS ' ' - BEFORE THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 1669/77? WERE THE SHAPE , SIZE , WEIGHT AND QUALITY OF THE GOODS , THE WAY IN WHICH THEY WERE PRODUCED , THE USE TO WHICH THEY WERE TO BE PUT AND/OR THEIR COMMERCIAL VALUE THE DECISIVE FACTORS? IN THIS PARTICULAR CASE : IN THE PERIOD FROM 2 MARCH TO 13 APRIL 1977 DID PIECES OF TURKEY MEAT WITHOUT BONES , OF IRREGULAR SHAPE , INDIVIDUALLY WEIGHING APPROXIMATELY 20 GRAMS , WITH CERTAIN PIECES HOWEVER WEIGHING UP TO 60 GRAMS , 10 TO 15% OF WHICH CONSIST OF FAT , SKIN AND FIBROUS TISSUE AND THE REMAINDER OF WHICH IS MUSCLE WITH A SMALL PROPORTION OF VEINS AND GLANDS , OBTAINED BY SCRAPING POULTRY BONES FROM WHICH THE PRIME CUTS HAVE BEEN REMOVED AND WHICH ARE ONLY SUITABLE FOR THE PRODUCTION OF SAUSAGE AND PIES WITH THE ADDITION OF OTHER TYPES OF MEAT AND THE MARKET PRICE OF WHICH IN THE FIRST HALF OF 1977 WAS DM 4.40 TO 4.80 PER KILOGRAM FALL WITHIN TARIFF SUBHEADING 02.02 B I OF 02.02 C OF THE COMMON CUSTOMS TARIFF? 4 . WHAT ANSWER IS TO BE GIVEN TO QUESTIONS 1 TO 3 WITH REGARD TO THE TARIFF CLASSIFICATION FOR THE PURPOSES OF THE IMPOSITION OF LEVIES AND MONETARY COMPENSATION? ' ' FIRST QUESTION
5AS REGARDS THE FIRST QUESTION , ARTICLE 3 OF REGULATION NO 97/69 OF THE COUNCIL , PURSUANT TO WHICH REGULATION NO 1669/77 WAS ADOPTED , CONFERS ON THE COMMISSION THE POWER TO ADOPT THE PROVISIONS REQUIRED FOR THE APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF AS REGARDS CLASSIFICATION OF GOODS . THE SECOND RECITAL IN THE PREAMBLE TO THAT REGULATION EXPLAINS THAT THOSE PROVISIONS SHOULD SPECIFY THE CONTENT OF THE HEADINGS OR SUBHEADINGS OF THE COMMON CUSTOMS TARIFF WITHOUT AMENDING THE TEXT THEREOF . FROM THE THIRD RECITAL IN THE PREAMBLE AND ARTICLE 4 IT APPEARS THAT THE PROVISIONS THUS ADOPTED BY THE COMMISSION CONCERN THE MEASURES WHICH MAY BE NECESSARY FOR CLASSIFYING CERTAIN GOODS IN THE TARIFF AND SIMILARLY THEIR INCLUSION UNDER A GIVEN HEADING OR SUBHEADING . TO THAT END THE REGULATION SET UP A COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE AND STATED , IN THE THIRD RECITAL , THAT THE PROVISIONS CONCERNING THOSE MEASURES RELATE TO A PARTICULARLY TECHNICAL FIELD AND CLOSE CO-OPERATION IS REQUIRED BETWEEN THE MEMBER STATES AND THE COMMISSION WHEN DRAWING THEM UP .
6IT IS CLEAR FROM THOSE RULES THAT IN THIS FIELD THE COUNCIL HAS CONFERRED ON THE COMMISSION , ACTING IN CO-OPERATION WITH THE CUSTOMS EXPERTS OF THE MEMBER STATES , A WIDE DISCRETION AS TO THE CHOICE BETWEEN TWO OR MORE TARIFF HEADINGS IN WHICH A GIVEN PRODUCT MIGHT BE CLASSIFIED .
7ARTICLE 1 OF REGULATION NO 1669/77 DOES NOT AMEND THE TEXT OF THE COMMON CUSTOMS TARIFF BUT SPECIFIES THE CONTENT OF A TARIFF SUBHEADING WITH REGARD TO A GIVEN PRODUCT . IT IS NECESSARY TO EXAMINE WHETHER , ALTHOUGH IT REPEATS WITHOUT AMENDMENT THE TEXT OF SUBHEADING 02.02 B I , REGULATION NO 1669/77 HAS NEVERTHELESS NOT HAD THE EFFECT OF MAKING A SUBSTANTIVE AMENDMENT TO THE TARIFF .
8IT APPEARS FROM THE THIRD RECITAL THAT ARTICLE 1 OF REGULATION NO 1669/77 SPECIFIES THE TARIFF CLASSIFICATION OF THE PRODUCTS REFERRED TO THEREIN HAVING REGARD TO THE TARIFF SUBHEADINGS OF CHAPTER 2 , SECTION I , RELATING ON THE ONE HAND TO ' ' POULTRY CUTS ( EXCLUDING OFFALS ): BONED OR BONELESS ' ' AND , ON THE OTHER , TO ' ' OFFALS ' ' . THE COMMON CUSTOMS TARIFF DOES NOT CONTAIN A LEGAL DEFINITION OF EITHER OF THOSE PRODUCTS . IT IS RECOGNIZED THAT AS SUCH A DEFINITION IS LACKING THE TARIFF CLASSIFICATION OF THE PRODUCTS IN QUESTION HAS NOT ALWAYS BEEN FREE OF UNCERTAINTY FOR THE NATIONAL AUTHORITIES IN THE MEMBER STATES AND IT WAS IN ORDER TO REMOVE SUCH UNCERTAINTY THAT THE COMMISSION DECIDED THAT IT WAS NECESSARY TO REFER THE MATTER FOR EXAMINATION BY THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE IN THE CONTEXT OF THE PROCEDURE LAID DOWN IN ARTICLE 3 OF REGULATION NO 97/69 OF THE COUNCIL . FOLLOWING SUCH A PROCEDURE AND IN ACCORDANCE WITH THE OPINION EXPRESSED BY THAT COMMITTEE ARTICLE 1 OF COMMISSION REGULATION NO 1669/77 WAS ADOPTED . ADMINISTRATIVE PRACTICE WITH REGARD TO TARIFF CLASSIFICATION OR COMMERCIAL PRACTICE CURRENT IN A MEMBER STATE CANNOT MAKE UP FOR THE ABSENCE OF SUCH A REGULATION AS THE COMMON CUSTOMS TARIFF NOMENCLATURE MUST BE APPLIED ON THE BASIS OF OBJECTIVE CRITERIA WHICH ARE UNIFORM THROUGHOUT THE COMMUNITY .
9IT IS PRECISELY IN CASES SUCH AS THE PRESENT ONE WHERE THE TARIFF DOES NOT LAY DOWN AN EXHAUSTIVE LIST OF PRODUCTS FALLING WITHIN ONE OR OTHER SUBHEADING BUT MERELY GIVES EXAMPLES OF GENERIC DEFINITIONS THAT THE COMMISSION , IN CO-OPERATION WITH THE NATIONAL EXPERTS , HAS THE POWER TO ADOPT A REGULATION DETERMINING THE TYPES OF PRODUCTS COVERED BY IT . FURTHERMORE , NOTHING PUT FORWARD BY THE PLAINTIFF IN THE MAIN ACTION SERVES TO SHOW THAT THE COMMISSION HAS GONE BEYOND THE LIMITS OF THE DISCRETION CONFERRED ON IT IN THE CONTEXT OF REGULATION NO 97/69 OF THE COUNCIL .
10THE ANSWER TO THE NATIONAL COURT MUST THEREFORE BE THAT CONSIDERATION OF THE QUESTION RAISED HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT THE VALIDITY OF COMMISSION REGULATION NO 1669/77 OF 25 JULY 1977 . SECOND QUESTION
11WITH REGARD TO THE SECOND QUESTION , AS HAS BEEN STATED ABOVE , REGULATION NO 1669/77 WAS ADOPTED BY THE COMMISSION IN THE EXERCISE OF THE POWER , CONFERRED ON IT BY REGULATION NO 97/69 , TO SPECIFY THE CONTENT OF THE HEADINGS OR SUBHEADINGS OF THE COMMON CUSTOMS TARIFF BY MEANS OF MEASURES EFFECTING , SUBJECT TO THE CONDITIONS LAID DOWN IN ARTICLE 4 OF THE LATTER REGULATION , ' ' THE INCLUSION OF GOODS UNDER A PARTICULAR HEADING OR SUBHEADING ' ' . A REGULATION SPECIFYING THE CONDITIONS FOR CLASSIFICATION IN A TARIFF HEADING OR SUBHEADING IS OF A LEGISLATIVE NATURE AND CANNOT HAVE RETROACTIVE EFFECT . CONSEQUENTLY , COMMISSION REGULATION NO 1669/77 OF 25 JULY 1977 IS NOT BINDING ON NATIONAL COURTS WHICH HAVE TO DEFINE THE TARIFF CLASSIFICATION OF GOODS IMPORTED BEFORE ITS ENTRY INTO FORCE . THIRD QUESTION
12AS REGARDS THE THIRD QUESTION , SUBHEADING 02.02 C , CONSIDERED IN THE CONTEXT OF HEADING 02.02 , CONSTITUTES A RESIDUARY SUBHEADING WITH REGARD TO THE WHOLE OF SUBHEADING 02.02 B . BOTH THE EXPLANATORY NOTES TO THE CUSTOMS CO-OPERATION COUNCIL NOMENCLATURE CONCERNING THE WHOLE OF CHAPTER 2 OF SECTION I OF THE TARIFF AND THE EXPLANATORY NOTES TO THE NOMENCLATURE OF THE CUSTOMS TARIFF OF THE EUROPEAN COMMUNITIES CONCERNING MORE PARTICULARLY THE PRODUCTS WITHIN SUBHEADING 02.02 C LIST UNDER THE TERM ' ' OFFALS ' ' UNBONED ( BONE-IN ) PARTS OF THE ANIMAL OR , AMONGST THE BONED OR BONELESS PARTS , THOSE FROM CERTAIN INTERNAL ORGANS OF THE ANIMAL . ON THE OTHER HAND TARIFF SUBHEADING 02.02 B I REFERS TO ' ' POULTRY CUTS ( EXCLUDING OFFALS ): BONED OR BONELESS ' ' WITHOUT PROVIDING ANY RESTRICTION AS TO THE PRODUCTS WHICH MAY BE COVERED .
13BY STATING THAT THAT TARIFF SUBHEADING ' ' COVERS POULTRY MEAT WITHOUT BONES REGARDLESS OF THE PART OF THE CARCASS FROM WHICH IT COMES ' ' THE EXPLANATORY NOTES TO THE CUSTOMS TARIFF RELATING TO IT SHOW THAT THE SUBHEADING HAS A GENERAL SCOPE AND COVERS ALL CUT POULTRY MEAT RESULTING FROM BONING , IRRESPECTIVE OF THE MANNER IN WHICH IT WAS OBTAINED OR ITS COMMERCIAL VALUE . THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL WHICH STATE THAT ' ' FAT ADHERING TO ( CUT ) MEAT IS TREATED AS FORMING PART OF THE MEAT ' ' MEAN THAT THE PRESENCE IN THE BONED OR BONELESS PIECES OF A CERTAIN PERCENTAGE OF FAT DOES NOT AFFECT THEIR CLASSIFICATION AS ' ' BONED OR BONELESS MEAT ' ' .
14HAVING REGARD TO THE WIDE SCOPE WHICH THE INTERPRETATIVE RULES SET OUT ABOVE ATTRIBUTE TO THE CONCEPT OF BONED OR BONELESS MEAT WITHIN SUBHEADING 02.02 B I , THE MANNER IN WHICH THE PRODUCT IS PRESENTED , THE WAY IN WHICH IT WAS PRODUCED , THE USE TO WHICH IT IS TO BE PUT AND ITS COMMERCIAL VALUE CANNOT BE DECISIVE CRITERIA FOR ITS TARIFF CLASSIFICATION . SIMILARLY , NEITHER THE SIZE NOR THE WEIGHT OF THE PIECES WHICH MAKE UP THE PRODUCT ARE DECISIVE FOR THAT CLASSIFICATION AS THE NOTES OF THE CUSTOMS CO-OPERATION COUNCIL DO NOT EXCLUDE THE POSSIBILITY OF ' ' MEAT ' ' BEING PRESENTED IN THE FORM OF ' ' MINCED ' ' MEAT .
15ON THE OTHER HAND IT IS CLEAR FROM THE EXPLANATORY NOTES AND THE AFORESAID INTERPRETATIVE RULES THAT THE DECISIVE CRITERION FOR THE TARIFF CLASSIFICATION IN SUBHEADING 02.02 B I IS THE OBJECTIVE CHARACTERISTICS OF THE PRODUCT . IN THE LIGHT OF THAT CRITERION PIECES MADE UP FOR THE MOST PART OF MUSCLE OR PARTS OF MUSCLE CONTAINING ONLY A VERY SMALL PROPORTION OF TENDONS , GRISTLY AND FATTY TISSUE AND SKIN ARE TO BE REGARDED AS ' ' POULTRY CUTS ( EXCLUDING OFFALS ): BONED OR BONELESS ' ' .
16MOREOVER COMMISSION REGULATION NO 1669/77 MERELY CONFIRMS THIS AS AN INTERPRETATIVE CRITERION SINCE , IN DESCRIBING THE COMPOSITION OF THE PRODUCTS LISTED , IT REFERS TO PIECES OF RAW FROZEN POULTRY MEAT ' ' WITH FIBROUS , GRISTLY AND FATTY TISSUE ATTACHED THERETO ' ' .
17THE THIRD QUESTION SHOULD THUS BE ANSWERED TO THE EFFECT THAT BONED OR BONELESS POULTRY CUTS COME UNDER COMMON CUSTOMS TARIFF SUBHEADING 02.02 B I , AND REGARDLESS OF THE MANNER IN WHICH THEY ARE PRESENTED , THE WAY IN WHICH THEY WERE PRODUCED , THE USE TO WHICH THEY ARE TO BE PUT AND/OR THEIR COMMERCIAL VALUE , THEY DO NOT CONSTITUTE OFFALS WITHIN THE MEANING OF SUBHEADING 02.02 C SO LONG AS THEY ESSENTIALLY CONSIST OF MUSCLE OR FRAGMENTS OF MUSCLE COMPRISING ONLY A SMALL PROPORTION OF TENDONS , FAT AND FIBROUS TISSUE . IT IS SOLELY FOR THE NATIONAL COURT TO CARRY OUT THAT ASSESSMENT IN THE LIGHT OF THE INTERPRETATIVE CRITERIA LAID DOWN BY THE COURT AND HAVING REGARD TO THE FACTS OF THE CASE . FOURTH QUESTION
18AS REGARDS THE FOURTH QUESTION , IN THE ABSENCE OF EXPRESS PROVISIONS IT WOULD BE INAPPROPRIATE FOR THE HEADINGS OF THE COMMON CUSTOMS TARIFF TO BE APPLIED DIFFERENTLY FOR ONE AND THE SAME PRODUCT DEPENDING ON WHETHER THE CLASSIFICATION IS FOR THE IMPOSITION OF CUSTOMS DUTIES , THE APPLICATION OF THE RULES OF COMMON ORGANIZATIONS OF THE MARKET OR OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS . FURTHERMORE , REGULATION ( EEC ) NO 2777/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE COMMON ORGANIZATION OF THE MARKET IN POULTRY MEAT ( OFFICIAL JOURNAL L 282 OF 1975 , P . 77 ) PROVIDES IN ARTICLE 11 ( 1 ) THAT ' ' THE GENERAL RULES FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF AND THE SPECIAL RULES FOR ITS APPLICATION SHALL APPLY TO THE TARIFF CLASSIFICATION OF PRODUCTS COVERED BY THIS REGULATION ' ' . ARTICLE 3 OF THAT REGULATION PROVIDES THAT A LEVY IS TO BE CHARGED ON IMPORTS OF PRODUCTS SUBJECT TO THAT COMMON ORGANIZATION INCLUDING THOSE FALLING WITHIN TARIFF HEADING 02.02 .
19FOR THOSE REASONS THE ANSWER SHOULD BE THAT THE CRITERIA FOR THE TARIFF CLASSIFICATION OF PRODUCTS COMING UNDER COMMON CUSTOMS TARIFF HEADING 02.02 ARE , FOR THE PURPOSES ALSO OF THE IMPOSITION OF THE LEVY AND THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS , THOSE WHICH RESULT FROM THE RULES OF INTERPRETATION AND APPLICATION OF THE TARIFF AND ITS NOMENCLATURE .