1 BY ORDER OF 3 MAY 1972, REGISTERED AT THE COURT OF 28 JUNE 1972, THE FINANZGERICHT RHEINLAND-PFALZ ( FINANCE COURT OF THE RHINELAND - PALATINATE ) REFERRED, IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY, A NUMBER OF QUESTIONS ON THE INTERPRETATION OF HEADING 23.07 OF THE COMMON CUSTOMS TARIFF - IN THE VERSION IN FORCE AT THE TIME WHEN THE EVENT OCCURRED - REFERRED TO IN ARTICLE 1 ( D ) OF AND THE ANNEX TO REGULATION NO 19 OF THE COUNCIL OF 4 APRIL 1962 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( JO 1962, P . 933 ) AND ARTICLE 12 OF REGULATION NO 55 OF THE COUNCIL OF 30 JUNE 1962 ON THE SYSTEM GOVERNING PROCESSED CEREAL PRODUCTS ( JO 1962, P . 1583 ). IT IS CLEAR FROM THE ORDER MAKING THE REFERENCE THAT THESE QUESTIONS WERE PUT IN THE CONTEXT OF A DISPUTE CONCERNING THE CLASSIFICATION, WITH A VIEW TO THE APPLICATION OF INTRA-COMMUNITY LEVIES, OF A PRODUCT COMPOSED MAINLY OF COMMON WHEAT, MIXED WITH BARLEY AND OATS AND CONTAINING A SMALL ADDITIONAL AMOUNT OF COD LIVER OIL .
2 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION THIS PRODUCT FALLS UNDER HEADING 23.07 ( " PREPARATIONS OF A KIND USED IN ANIMAL FEEDING " ), WHEREAS THE CUSTOMS ADMINISTRATION, THE DEFENDANT IN THE MAIN ACTION, CLAIMS THAT IT SHOULD BE CLASSIFIED UNDER HEADING 10.01 OF THE CUSTOMS TARIFF ( " WHEAT AND MESLIN " ).
3 THE ESSENTIAL PURPOSE OF THE QUESTIONS PUT TO THE COURT IS TO ASCERTAIN : - WHETHER, PROVIDED THAT THE CORRECT PROPORTIONS ARE USED, SUCH A MIXTURE OF ITSELF CONSTITUTES A PREPARATION OF A KIND USED IN ANIMAL FEEDING, WITHIN THE MEANING OF HEADING 23.07 ( QUESTIONS 1 AND 2 ); IF NOT - WHETHER SUCH A " PREPARATION " IS OBTAINED WHEN THE PRODUCT CONTAINS, IN ADDITION TO A MIXTURE OF CEREALS, OTHER INGREDIENTS WHICH MAY BE CONSIDERED AS ANIMAL FOOD MATERIALS ( QUESTIONS 3 AND 4 ); IF NOT - WHETHER A MIXTURE OF CEREALS SUCH AS THAT IN QUESTION IN THE PRESENT DISPUTE MAY BE CONSIDERED TO BE A PREPARATION OF A KIND USED IN ANIMAL FEEDING WHERE A DENATURING AGENT HAS BEEN ADDED IN SUFFICIENT QUANTITY, EITHER TO THE MIXTURE AS A WHOLE OR TO ITS PRINCIPAL INGREDIENT, AND IF COD LIVER OIL OR FISH OIL CAN BE USED FOR THIS PURPOSE ( QUESTIONS 5 AND 8 ).
4 THE TERMS OF HEADING 23.07, WITH WHICH THIS DISPUTE IS CONCERNED, READ AS FOLLOWS IN THE ANNEX TO REGULATION NO 19 : " ANIMAL FOOD PREPARATIONS INCLUDING SWEETENED FORAGE; OTHER PREPARATIONS USED IN ANIMAL FEEDING ( ADDITIVES ETC .): B . CONTAINING CEREALS OR CONTAINING PRODUCTS COVERED BY THE PRESENT REGULATION ". THIS HEADING, IN THE CONTEXT OF THE CUSTOMS TARIFF, CONSTITUTES A SPECIFIC CATEGORY, RELATING NOT TO RANDOM COMBINATIONS OF CEREALS, WITH OR WITHOUT THE ADDITION OF OTHER SUBSTANCES, BUT TO FORAGE PRODUCED FOR USE IN ANIMAL FEEDING .
5 THIS EXPLANATION IS SUPPORTED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE RELATING TO HEADING 23.07, IN WHICH IT IS STATED THAT " THIS HEADING EXCLUDES : ... ( B ) SIMPLE MIXTURES OF CEREAL GRAINS ... ( C ) PREPARATIONS WHICH, WHEN ACCOUNT IS TAKEN, IN PARTICULAR, OF THE NATURE, PURITY AND PROPORTIONS OF THE COMPONENTS, THE HYGIENE REQUIREMENTS COMPLIED WITH DURING MANUFACTURE AND, WHERE APPROPRIATE, THE INDICATIONS GIVEN ON THE PACKAGING OR ANY OTHER INFORMATION CONCERNING THEIR USE, CAN BE USED INDIFFERENTLY FOR FEEDING ANIMALS OR AS HUMAN FOOD ". THESE NOTES PERMIT TWO DISTINCT CRITERIA TO BE DEDUCED : FIRST, FROM THE PARTICULAR USE TO WHICH THE PRODUCT IS TO BE PUT AS FORAGE AND, SECONDLY, FROM THE IMPOSSIBILITY OF USING THE SAME PRODUCT FOR HUMAN CONSUMPTION .
6 IN PARTICULAR, IT APPEARS FROM THE ABOVE THAT THE ADDITION OF A DENATURING AGENT TO A MIXTURE OF CEREALS DOES NOT BRING THE PRODUCT WITHIN THE CLASSIFICATION OF HEADING 23.07 IF, ON THE OTHER HAND, THE PRODUCT IS NOT CAPABLE OF BEING USED SPECIFICALLY AS FORAGE FOR CATTLE .
7 PRACTICAL CONSIDERATIONS ARISING IN INDIVIDUAL CASES FROM THE APPLICATION OF CRITERIA LAID DOWN BY THE CUSTOMS TARIFF ARE A MATTER FOR THE NATIONAL COURTS . THAT IS TRUE, IN FACT, OF ALL MATTERS CONCERNING THE COMPOSITION OF CEREAL MIXTURES AND THE PROPORTIONS OF DIFFERENT CEREALS USED, THE NATURE AND PROPORTION OF OTHER ADDITIONAL NUTRIENTS AND THE NATURE OF AND METHOD OF APPLYING THE PRODUCTS USED TO RENDER FOODS UNFIT FOR HUMAN CONSUMPTION .
8 ACCORDINGLY, IN REPLY TO THE QUESTIONS REFERRED, HEADING 23.07 MUST BE INTERPRETED AS MEANING THAT IT IS CONCERNED EXCLUSIVELY WITH CEREAL-BASED ANIMAL FOOD PREPARATIONS WHICH ARE SPECIFICALLY INTENDED FOR USE AS FORAGE, PROVIDED THAT THEY ARE NOT, AT THE SAME TIME, FIT FOR HUMAN CONSUMPTION .