1BY AN ORDER OF 22 AUGUST 1978 WHICH WAS RECEIVED AT THE COURT ON 11 SEPTEMBER 1978 THE BUNDESFINANZHOF , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , REFERRED TO THE COURT TWO QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF CONCERNING THE CLASSIFICATION FOR TARIFF PURPOSES OF FRESH MEAT WHICH HAS BEEN FROZEN .
2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF AN ACTION BETWEEN THE CUSTOMS AUTHORITIES AND A GERMAN EXPORTER CONCERNING THE CLASSIFICATION FOR TARIFF PURPOSES OF UNBONED ( BONE-IN ) HAMS AND LOINS OF PIGMEAT WHICH HAD BEEN ' ' SLIGHTLY DRIED ' ' AND THEN ' ' FROZEN ' ' WITH A VIEW TO EXPORT .
3THE EXPORTER MAINTAINS THAT THESE GOODS MUST BE CLASSIFIED UNDER TARIFF SUBHEADINGS 02.06 B I ( B ) 3 ( AA ) AND 02.06 B I ( B ) 5 ( AA ), WHEREAS THE CUSTOMS AUTHORITIES CONSIDER THAT THEY COME WITHIN TARIFF SUBHEADINGS 02.01 A III ( A ) 2 AND 02.01 A III ( A ) 4 .
4IN ORDER TO BE APPRISED OF THE CRITERIA TO BE APPLIED WHEN CLASSIFYING THESE GOODS FOR TARIFF PURPOSES THE BUNDESFINANZHOF HAS REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING : 1 . DOES THE TERM ' ' FROZEN ' ' IN TARIFF HEADING 02.01 COVER NOT ONLY MEAT WHICH HAS BEEN FROZEN WHEN FRESH BUT ALSO MEAT WHICH HAS FIRST BEEN ' ' SLIGHTLY DRIED ' ' WITHIN THE MEANING OF TARIFF SUBHEADING 02.06 B I ( B ) 3 ( AA ) AND B I ( B ) 5 ( AA ) AND ONLY THEN FROZEN? IF THE ANSWER TO THIS QUESTION IS IN THE NEGATIVE : 2 . HOW IS THE TERM ' ' FRESH ' ' IN TARIFF HEADING 02.01 TO BE DISTINGUISHED FROM THE TERM ' ' SLIGHTLY DRIED ' ' IN TARIFF SUBHEADINGS 02.06 B I ( B ) 3 ( AA ) AND B I ( B ) 5 ( AA)?
5THE BUNDESFINANZHOF BY THESE QUESTIONS HAS ASKED THE COURT IN SUBSTANCE WHETHER AND TO WHAT EXTENT HEADING 02.01 OF THE COMMON CUSTOMS TARIFF COVERS PRODUCTS SUCH AS THOSE MENTIONED BY SUBHEADINGS 02.06 B I ( B ) 3 ( AA ) AND 5 ( AA ) WHICH HAVE BEEN FIRST ' ' SLIGHTLY DRIED ' ' AND SUBSEQUENTLY ' ' FROZEN ' ' .
6HEADING 02.01 OF THE COMMON CUSTOMS TARIFF APPLIES TO ' ' MEAT AND EDIBLE OFFALS . . . FRESH , CHILLED OR FROZEN ' ' INCLUDING HAMS AND LOINS , UNBONED ( BONE-IN ), OF SUBHEADINGS 02.01 A III ( A)2 AND 02.01 A III ( A ) 4 .
7AS FAR AS HEADING 02.06 IS CONCERNED IT APPLIES TO SALTED MEAT AND TO DRIED OR SMOKED MEAT AND IN MOST OF ITS SUBHEADINGS DRAWS A DISTINCTION BETWEEN MEAT WHICH HAS BEEN DRIED OR SMOKED IN THE NORMAL WAY AND MEAT WHICH HAS BEEN ONLY ' ' SLIGHTLY ' ' DRIED OR SMOKED .
8IN PARTICULAR ' ' SLIGHTLY DRIED ' ' OR ' ' SLIGHTLY SMOKED ' ' HAMS AND LOINS ARE MENTIONED IN TARIFF SUBHEADINGS 02.06 B I ( B ) 3 ( AA ) AND 02.06 B I ( B ) 5 ( AA )
9ADDITIONAL NOTE 3 TO CHAPTER 2 OF THE COMMON CUSTOMS TARIFF PROVIDES THAT ' ' FOR THE PURPOSES OF SUBHEADINGS 02.06 B I ( B ) 3 ( AA ), . . ., 5 ( AA ) . . ., PRODUCTS WHOSE WATER/PROTEIN RATIO IN THE MEAT ( NITROGEN CONTENT MULTIPLIED BY 6.25 ) IS MORE THAN 2.8 SHALL BE CONSIDERED AS SLIGHTLY DRIED AND SLIGHTLY SMOKED ' ' .
10ALTHOUGH THIS DETAILED EXPLANATION ENABLES PRODUCTS HAVING A WATER/PROTEIN RATIO EQUAL TO OR LESS THAN 2.8 TO BE CLASSIFIED UNDER SUBHEADING 02.06 B I ( B ) RELATING TO DRIED OR SMOKED MEAT , IT DOES NOT PROVIDE A DECISIVE CRITERION FOR THE CLASSIFICATION FOR CUSTOMS PURPOSES OF ALL PRODUCTS WHICH HAVE BEEN PARTIALLY DEHYDRATED AS A RESULT OF BEING SLIGHTLY DRIED OR SLIGHTLY SMOKED AND IN PARTICULAR OF THOSE HAVING A RATIO , AS MENTIONED ABOVE , MUCH MORE THAN 2.8 .
11IN THESE CIRCUMSTANCES THE FACT THAT A PRODUCT HAS BEEN SLIGHTLY DRIED OR SLIGHTLY SMOKED CANNOT BE REGARDED AS A CRITERION FOR CLASSIFICATION FOR CUSTOMS PURPOSES OF ALL PRODUCTS WHICH HAVE BEEN PARTIALLY DEHYDRATED .
12ON THE OTHER HAND THE LAST PARAGRAPH OF THE EXPLANATORY NOTES TO THE COMMON CUSTOMS TARIFF RELATING TO SUBHEADING 02.06 B I ( B ) STATES THAT ' ' MEAT WHICH HAS BEEN PARTIALLY DEHYDRATED , BUT THE ACTUAL PRESERVATION OF WHICH IS ENSURED BY FREEZING OR DEEP FREEZING FALLS IN HEADING 02.01 . ' '
13HAVING REGARD TO THOSE NOTES AND TAKING INTO ACCOUNT THE ABOVE-MENTIONED ADDITIONAL NOTES IT IS CLEAR THAT THE BASIS OF THE DECISIVE CRITERION FOR TARIFF CLASSIFICATION OF ' ' SLIGHTLY DRIED ' ' OR ' ' SLIGHTLY SMOKED ' ' PRODUCTS IS NOT , ACCORDING TO THE CUSTOMS TARIFF , THE WATER/PROTEIN RATIO IN THE MEAT CONSIDERED IN ISOLATION , BUT IS PRIMARILY THE CAPACITY OF SUCH SLIGHT DRYING OR SLIGHT SMOKING OF THE MEAT TO ENSURE THE ACTUAL PRESERVATION OF THE MEAT .
14PRODUCTS WHICH HAVE BEEN PARTIALLY DEHYDRATED AS A RESULT OF BEING SLIGHTLY DRIED OR SLIGHTLY SMOKED COME IN FACT WITHIN HEADING 02.01 RELATING TO FRESH FROZEN MEAT IN SO FAR AS THEIR ACTUAL KEEPING QUALITY HAS BEEN ACHIEVED NOT BY PARTIAL DEHYDRATION OF THE MEAT BUT BY FREEZING IT .
15WHEN SUCH PRODUCTS HAVE TO BE CLASSIFIED IT IS FOR THE NATIONAL COURT TO DETERMINE WHETHER , AND TO WHAT EXTENT , THE LASTING PRESERVATION OF THE MEAT , WHICH IS CAPABLE OF PROTECTING IT FROM NORMAL DETERIORATION , IS DUE TO ITS BEING SLIGHTLY DRIED OR SLIGHTLY SMOKED OR WHETHER IT HAS BEEN ACHIEVED ESSENTIALLY BY FREEZING .
16THE ANSWERS TO THE QUESTIONS SUBMITTED MUST THEREFORE BE THAT THE EXPRESSION ' ' FROZEN ' ' IN HEADING 02.01 OF THE COMMON CUSTOMS TARIFF COVERS NOT ONLY MEAT WHICH HAS BEEN FROZEN WHEN FRESH BUT ALSO MEAT WHICH HAS FIRST BEEN SLIGHTLY DRIED AND SUBSEQUENTLY FROZEN , IN SO FAR AS ITS ACUTAL AND LASTING PRESERVATION DEPENDS ESSENTIALLY UPON SUCH FREEZING .