1. This reference for a preliminary ruling concerns the validity of Commission Regulation (EC) No 1223/2002 of 8 July 2002 concerning the classification of certain goods in the Combined Nomenclature (OJ 2002 L 179, p. 8).
2. The reference was made in the course of proceedings between F.T.S International BV (‘FTS’) and Belastingdienst - Douane West (the competent customs authority for the west of the Netherlands) concerning the tariff classification of boneless chicken cuts, frozen and salted. Legal context International law
3. The International Convention on the Harmonised Commodity Description and Coding System (‘the HS’), concluded in Brussels on 14 June 1983, and the Protocol of Amendment thereto of 24 June 1986 (‘the HS Convention’) were approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).
4. Under Article 3(1) of the HS Convention, each Contracting Party undertakes to ensure that its customs tariff and statistical nomenclatures will be in conformity with the HS, to use all of the headings and subheadings of the HS without addition or modification, together with their related codes, and to follow the numerical sequence of that system. The same provision provides that each Contracting Party also undertakes to apply the general rules for the interpretation of the HS and all the section, chapter and subheading notes of the HS, and not to modify their scope.
5. The Customs Cooperation Council, now the World Customs Organisation (WCO), established by the International Convention establishing that council, concluded at Brussels on 15 December 1950, is to approve, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes adopted by the HS Committee, a body the organisation of which is governed by Article 6 thereof.
6. The Explanatory Note to heading 0207 of the HS, entitled ‘Meat and edible offal, of the poultry of heading No 0105, fresh, chilled or frozen’, is worded as follows: ‘This heading covers only fresh, chilled or frozen meat and edible offal of domestic poultry which, when live, are classified in heading 0105 …’
7. According to the Explanatory Note to heading 0210 of the HS entitled, ‘Meat and edible meat offal, salted, in brine, dried or smoked; edible flours and meals of meat or meat offal’: ‘This heading applies to all kinds of meat and edible meat offal which have been prepared as described in the heading, other than pig fat, free of lean meat, and poultry fat, not rendered or otherwise extracted (heading 0209) …’ Community legislation
8. The version of the Combined Nomenclature (‘the CN’) in force as from 1 January 2003 was laid down by Commission Regulation (EC) No 1832/2002 of 1 August 2002, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2002 L 290, p. 1). Part Two of the CN includes Section I, entitled ‘Live animals; animal products’, chapter 2 of which is entitled ‘Meat and edible meat offal’.
9. Heading 0207 is worded as follows: ‘0207\tMeat and edible offal, of the poultry of heading 0105, fresh, chilled or frozen: - Of fowls of the species Gallus domesticus : … 0207 14\t- - Cuts and offal, frozen: - - - Cuts: 0207 14 10\t- - - - Boneless - - - - With bone in …’
10. Heading 0210 is worded as follows: ‘0210\tMeat and edible meat offal, salted, in brine, dried or smoked; edible flours and meals of meat or meat offal: - Meat of swine: … 0210 20\t- Meat of bovine animals: … - Other, including edible flours and meals of meat and meat offal: … 0210 99 \t- - Other: - - - Meat: 0210 99 10 - - - - Of horses, salted, in brine or dried - - - - Of sheep and goats: … 0210 99 31\t- - - - Of reindeer 0210 99 39\t- - - - Other …’
11. Additional note 7 to chapter 2 in the form laid down in Regulation No 1832/2002 stated: ‘For the purposes of heading 0210, the terms “meat and edible meat offal, salted, in brine” mean meat and edible meat offal deeply and homogeneously impregnated with salt in all parts, having a total salt content of not less than 1.2% by weight.’
12. 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) empowers the Commission of the European Communities to clarify the meaning of a tariff heading. In that regard, Article 9(1) of that regulation provides: ‘Measures relating to the matters set out below shall be adopted in accordance with the procedure defined in Article 10: (a) application of the combined nomenclature and the [integrated tariff of the European Communities] concerning in particular: - the classification of goods in the nomenclatures referred to in Article 8, - explanatory notes; (b) amendments to the combined nomenclature to take account of changes in requirements relating to statistics or to commercial policy; … (d) amendments to the combined nomenclature and adjustments to duties in accordance with decisions adopted by the Council or the Commission; (e) amendments to the combined nomenclature intended to adapt it to take account of technological or commercial developments or aimed at the alignment or clarification of texts; …’
13. Article 9 of Regulation No 2658/87 constitutes the basis for Regulation No 1223/2002, which provides that the following goods are to be classified under heading 0207 of the CN: >lt>1
14. Commission Regulation (EC) No 1871/2003 of 23 October 2003 amending Annex I to Regulation No 2658/87 (OJ 2003 L 275, p. 5), which entered into force on 14 November 2003, replaced additional note 7 to chapter 2 of Section I of Part Two of the CN with the following wording: ‘For the purposes of heading 0210, the terms “meat and edible meat offal, salted, in brine” mean meat and edible meat offal deeply and homogeneously impregnated with salt in all parts and having a total salt content of not less than 1.2% by weight, provided it is the salting which ensures long-term preservation.’
15. On 27 September 2005, the Dispute Settlement Body of the World Trade Organisation (WTO) found that frozen boneless chicken cuts with a salt content of 1.2 to 3% by weight should be classified under heading 0210 of the CN. In response to that recommendation, the Commission adopted Regulation (EC) No 949/2006 of 27 June 2006 amending Annex I to Regulation No 2658/87 (OJ 2006 L 174, p. 3). Regulation No 949/2006, which entered into force on that date, repealed Regulation No 1223/2002 and replaced additional note 7 to chapter 2 of Section I of Part Two of the CN with the following provisions: ‘For the purposes of subheadings 0210 11 to 0210 93, the terms “meat and edible meat offal, salted, in brine”, mean meat and edible meat offal deeply and homogeneously impregnated with salt in all parts and having a total salt content by weight of 1.2% or more, provided that it is the salting which ensures the long-term preservation. For the purposes of subheading 0210 99 the terms “meat and edible meat offal, salted, in brine” mean meat and edible meat offal deeply and homogeneously impregnated with salt in all parts and having a total salt content by weight of 1.2% or more.’ The dispute in the main proceedings and the question referred for a preliminary ruling
16. From 5 to 11 August 2003, FTS imported into the Netherlands chicken cuts, boneless, frozen and with a salt content between 1.4% and 2.9% originating from Brazil.
17. On the basis of Regulation No 1223/2002, the Netherlands customs authorities classified the goods under subheading 0207 14 10. The Belastingdienst - Douane West dismissed the objection of FTS, which maintained that those goods were covered by subheading 0210 99 39. FTS then brought an appeal against that decision before the Customs Chamber of the Gerechtshof te Amsterdam (Regional Court of Appeal, Amsterdam).
18. As it did not consider Regulation No 1223/2002, which was applicable at the time of the facts at issue in the main proceedings, to be compatible with additional note 7 to chapter 2 of Section I of Part Two of the CN in the version then in force, as laid down in Regulation No 1832/2002, the Gerechtshof te Amsterdam decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling: ‘Is … Regulation … No 1223/2002 … valid?’ The question referred for a preliminary ruling
19. FTS claims that Regulation No 1223/2002 is invalid and maintains, in particular, that it is inconsistent with additional note 7 to chapter 2 of Section I of Part Two of the CN and also with the Explanatory Notes to headings 0207 and 0210 of the HS, according to which meat which has been salted is covered by heading 0210, as was held by the Dispute Settlement Body of the WTO.
20. The Netherlands Government, the Italian Government and the Commission submit on the contrary that Regulation No 1223/2002 is valid. They maintain, in essence, that heading 0207 of the CN covers boneless chicken cuts, frozen and deeply and homogeneously impregnated with salt in all parts, which have a salt content by weight of 1.2 to 1.9%. The Commission adds that the inconsistency of Regulation No 1223/2002 with the WTO’s rules has no effect on the validity of that regulation under Community law, in so far as those rules have no direct effect, and refers, in that regard, to Case C-149/96 Portugal v Council [1999] ECR I-8395 and Case C-377/02 Van Parys [2005] ECR I-1465.
21. At the outset it must be recalled that, according to settled case-law, the Council has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures mentioned in Article 9(1)(a), (b), (d) and (e) of Regulation No 2658/87 does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS established by the Convention whose scope the Community has undertaken, under Article 3 thereof, not to modify (see Case C-267/94 France v Commission [1995] ECR I-4845, paragraphs 19 and 20, and Case C-15/05 Kawasaki Motors Europe [2006] ECR I-3657, paragraph 35).
22. It must therefore be considered whether the Commission, by adopting Regulation No 1223/2002, amended heading 0210 of the CN, thus exceeding the limits of the powers which are conferred on it by Article 9 of Regulation No 2658/87.
23. Additional note 7 to chapter 2 of Section I of Part Two of the CN, in the version applicable at the time of the facts in the main proceedings, restricted itself to providing that for the purposes of subheading 0210 the terms ‘meat and edible meat offal, salted’ mean ‘meat and edible meat offal deeply and homogeneously impregnated with salt in all parts and having a total salt content by weight of 1.2% or more’. Under that provision, boneless chicken cuts, frozen, impregnated with salt in all parts and with a salt content of at least 1.2% are thus covered by heading 0210.
24. By classifying goods whose salt content was between 1.2% and 1.9% under subheading 0207 14 10, Regulation No 1223/2002, in consequence, raised the threshold for the salt content of goods covered by heading 0210 beyond 1.9%, with the result that goods whose salt content was between 1.2% and 1.9%, which had until then been covered by heading 0210, were excluded from that heading and classified under subheading 0207 14 10, with a resulting increase in duty.
25. By thus classifying chicken meat with a salt content by weight of between 1.2% and 1.9% under subheading 0207 14 10, the Commission restricted the scope of heading 0210 and therefore exceeded the powers which are conferred on it under Article 9 of Regulation No 2658/87. Consequently, Regulation No 1223/2002 must be declared invalid.
26. In order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, the classification of the goods at issue in the main proceedings must be examined.
27. The Court has consistently held 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 found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the notes to the sections or chapters (Case C‑396/02 DFDS [2004] ECR I-8439, paragraph 27, and Case C-495/03 Intermodal Transports [2005] ECR I-8151, paragraph 47).
28. It is apparent from general rule No 1 for the interpretation of the CN that, for legal purposes, classification of goods is to be determined according to the wording of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the other general rules of interpretation. General rule No 3(a) for the interpretation of the CN, which concerns precisely the situation where goods are prima facie classifiable under several headings, provides that ‘the heading which provides the most specific description shall be preferred to headings providing a more general description’.
29. Heading 0207 refers to ‘meat and edible offal, of the poultry of heading 0105, fresh, chilled or frozen’. The application of that heading to salted meat is not provided for or precluded by either its wording or structure.
30. On the other hand, heading 0210 refers to ‘meat and edible meat offal, salted, in brine, dried or smoked; edible flours and meals of meat or meat offal’. In respect of those goods, additional note 7 to chapter 2 of Section I of Part Two of the CN, as amended by Regulation No 1832/2002, lays down a total salt content of not less than 1.2% by weight and, in addition, requires that they have been ‘deeply and homogeneously impregnated with salt in all parts’.
31. Thus, at the time of the facts in the main proceedings, boneless chicken cuts, frozen, impregnated with salt, which had been deeply and homogeneously impregnated with salt in all parts and having a total salt content of not less than 1.2% by weight were covered by subheading 0210 99 39 of the CN.
32. The Commission, however, maintains that heading 0210 is reserved for meat which has been salted for the purpose of preservation. By contrast, where preservation is ensured by freezing, the meat is covered by heading 0207, despite the possibility of its being salted. The Commission refers, in that regard, to Case 175/82 Dinter [1983] ECR 969, and Case C-33/92 Gausepohl-Fleisch [1993] ECR I-3047.
33. That argument cannot be upheld. It suffices to state that no provision of the CN applicable at the time of the facts in the main proceedings expressly provided that classification under heading 0210 depended on the question whether the salting was intended to ensure the long-term preservation of the meat in question. As regards the relevance of Dinter and Gausepohl-Fleisch , it must be pointed out that those decisions were given in different circumstances from those of the case in the main proceedings, in so far as no legislative provision equivalent to additional note 7 to chapter 2 of Section I of Part Two of the CN had at that time been adopted for the purpose of clarifying the scope of the word ‘salted’ within the meaning of heading 0210 (see, by analogy, Case C-233/88 van de Kolk [1990] ECR I-265, paragraphs 14 and 15).
34. It is for the national court, on the basis of the foregoing guidance, to classify the goods at issue in the main proceedings.
35. The answer given to the national court must therefore be that Regulation No 1223/2002 is invalid. Costs
36. Since 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.