OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 14 DECEMBER 1971 (*1)

Mr President,

Members of the Court,

The request for a preliminary ruling on which I am called upon to give an opinion today concerns questions with which I have already dealt in Case 30/71. My preliminary observations may therefore be quite brief.

As you are aware, from 12 August 1968 to 8 April 1969 the plaintiff in the main action applied for customs clearance at various German customs offices for goods coming from Yugoslavia or Denmark which had been purchased for various Swiss and English firms. The products were described as ‘diet mayonnaise’, ‘I A mayonnaise’ or ‘salad mayonnaise’. Certain of them bore more information regarding their composition, that is, basically ‘83 % fats, 6.5 % egg yolk, 0.5 % salt and 5 % acetic acid’. In accordance with the application made the imported products were classified under tariff heading 21.04 B of the Common Customs Tariff, that is, they were regarded as ‘sauces, mixed condiments and mixed seasonings’ and the requisite customs duties were imposed. However samples were taken from a consignment and examined by the ‘Zolltechnische Prüfungs- und Lehranstalt’ (Customs Technology Research and Training Institute) of Munich which considered that the goods in question constituted food preparations under tariff heading 21.07. In the meantime the principal customs office at Munchen-Schwanthalerstraße requested the ‘Betriebsprüfungsstelle-Zoll’ (Customs Division of the Businesses Inspectorate) to carry out an inspection of all the imports made by the plaintiff. As a result of these inspections it came to the conclusion that in every case the principal component of the goods was milk fats. The customs office therefore assigned the products imported to tariff heading 21.07 and, because the commercial rules contained in Regulation No 160/66 (OJ L 14, p. 1) in part covered the products governed by this heading, it claimed payment of higher import duties on the basis of this fat content.

As the Gervais undertaking did not agree with the new assessment it lodged an objection to it, and, when this failed, brought an action before the Finanzgericht München. In view of the questions of Community law raised by this action the Finanzgericht München by an order of 23 July 1971 stayed the proceedings and referred the following questions to you for a preliminary ruling:

I.(a) Does it make any difference for the classification of a product described as “diet mayonnaise”, “I A mayonnaise”, or “salad mayonnaise” under heading 21.04 of the Common Customs Tariff whether the product has been manufactured by using butter, butteroil, fractionated dry butterfat or vegetable fats, and if so, what difference?

I.(b) Is trade usage (“Verkehrsauffassung”) relevant for the classification of a product under heading 21.04 or 21.07? If so, is the trade usage in all the Member States decisive or can a trade usage prevailing solely in one Member State be taken into account if it diverges from the trade usage in other Member States?

I.(c) Was Regulation No 241/70, by virtue of its content, already applicable during the period from 12 August 1968 to 8 April 1969, or not until 13 February 1970?

I.(d) In the event of an affirmative answer to question (c):

I.(1) Must the word “clearly” in Regulation No 241/70 be understood as meaning that on the basis of the properties of the product at the relevant date it must be plainly discernible that the product is not intended for consumption in the unaltered state as a sauce, mixed condiment or mixed seasoning?

I.(2) By whom (the customs office or the appropriate trade circles) must this be discernible? In this connection may reference be made to the trade usage in the importing country?

I.(3) Is it sufficient for the word “clearly”,

I.(a) that the commercial documents show that the product is not intended ab initio for consumption in the unaltered state as a sauce, mixed condiment or mixed seasoning, or

I.(b) can this be deduced from the circumstances of the further treatment of the product after the relevant date? If so, what conditions must be fulfilled for this deduction?

II.

II.(a) Since the entry into force of Regulation No 950/68 are the Oberfinanzdirektionen still empowered to issue binding customs tariff notices (“Verbindliche Zoll tarifauskünfte”) under paragraph 23 of the German Customs Law?

II.(b) If (a) is answered in the negative: was this also the case before the entry into force of Regulation No 950/68 with regard to products that were subject to EEC Commercial rules (in this case Regulation No 160/66 of the Council).’

As I have already said and as is plainly the case these questions are in part verbatim the same and in fact have the same meaning as those raised in Case 30/71. It is only necessary today to consider whether, in the present case, new arguments have been submitted on the basis of which the statements contained in the judgment in Case 30/71 require to be amended or supplemented. In this respect I must make the following observations:

In my opinion on the corresponding question in Case 30/71 I referred in particular to the Explanatory Notes to the Brussels Nomenclature and found that, according to these Notes, it is also possible to classify a product which has been manufactured from butter, butter-oil or fractionated dry butterfat under tariff heading 21.04. In the main the Court followed me on this. By repeated reference to the principle that Explanatory Notes and the classification opinions are regarded as valid means of interpreting Community tariff headings as long as no explanatory notes or other more detailed provisions drawn up by the Community authorities exist, the Court declared that the incorporation into these products of butter, butteroil or fractionated dry butterfat does not necessarily preclude the classification of these products under tariff heading 21.04. Moreover, the Court concluded from the Brussels Explanatory Notes that the products referred to under heading 21.04 are characterized by the fact that, being generally highly spiced, they are intended to improve the flavour of certain foods and that these products must, therefore, constitute preparations which are immediately suitable for the intended purpose. From this the Court concluded that the incorporation of butter, butteroil or fractionated dry butterfat is of decisive importance ‘in so far as it is capable of impairing the flavour-improving qualities of these products’. On the other hand, the Court did not go further into the question whether products of the type imported must be regarded as mayonnaise or merely—as the Federal Government maintains in particular—semi-manufactured goods. In this respect, as was expressly emphasized, the necessary decision is one for the national authorities which must take into account all the circumstances connected with the method of manufacture or the composition of the goods in question.

As in this instance no significant new arguments have been submitted, I consider that the matter may rest with these findings. Accordingly, the answer to the first question in the present case is the same as that given to the first question in Case 30/71.

2. As regards the significance of trade usage in the classification of a product under heading 21.04 or 21.07 which is, as you are aware, the subject of the second question, the Court made no special statements in relation to the corresponding question in Case 30/71. This must be understood to mean that the statements made in relation to the first question are alone conclusive for the decision in the main action and that they render superfluous the question of the significance of the trade usage. There is nothing to add to this in the present case as the parties have not submitted any additional arguments. However, consideration should also be given to the question of the incorporation of my conclusions regarding trade usage into the operative part of the preliminary ruling.

3. The third question concerns the applicability of Regulation No 241/70 of the Commission of 9 February 1970 (OJ L 32, p. 6) ‘on measures to be taken for uniform application of the Common Customs Tariff’. The question to be clarified is whether, by virtue of its content, this regulation was already applicable during the period from 12 August 1968 to 8 April 1969, that is, to the imports in question, or only as from 13 February 1970, the date of its entry into force.

The Court did not accept the assessment of the corresponding question proposed in my opinion in Case 30/71 (Siemers) which coincided with the views of the German Government and the Commission. On the contrary, it held that this Regulation was legislative in nature and could not therefore have any retroactive effect, that is, it could not apply to the classification of products which had been imported before its entry in force.

The German Government and the Commission have emphasized in this respect that Regulation No 241/70 merely confirmed the former administrative practice prevailing in the Federal Republic and followed previously by most of the customs authorities, that is, it did not bring about any change in classification or a material modification of the existing tariff law and therefore was not legislative in nature. However, since these submissions are not new — I already accepted them in Case 30/71 — it cannot be assumed that they will cause the Court to set aside the assessment made in that case. Of course, this does not necessarily mean that the conclusions drawn by the Commission must be drawn, that is, that when explanatory regulations are issued which only apply to the future it must always be assumed that the tariff classification practice must be changed. In the view of the Court it is necessary to speak of the creation of law precisely when the Community legislature adopts new provisions or adds new explanatory elements and thus modifies the legal situation.

I now bow to this view of the law although I still find it unduly strict; therefore I shall not suggest that the question of the applicability of Regulation No 241/70 should receive a different answer to the one given in Case 30/71.

It remains to de added that further observations do not appear appropriate in the present context. In particular, there is no reason to go into the question of the validity of Regulation No 241/70, various aspects of which were raised by the plaintiff in the main action. Since the main action only concerns imports made before the entry into force of this regulation its validity is irrelevant. It is therefore sufficient to hold, as in Case 30/71, that the regulation cannot be applied to the classification of products which were imported before its entry into force.

If the Court gives to the question which I have just discussed the reply as that given in Case 30/71 it is again unnecessary to go into the question of the interpretation of certain concepts contained in Regulation No 241/70, and in particular to ascertain what is meant by the word ‘clearly’. It is therefore unnecessary for me to repeat the view which I developed in my opinion in Case 30/71. The solution of this problem must rather be reserved for a case in which Regulation No 241/70 is in fact at issue.

One final question remains which concerns the admissibility of the binding customs tariff notices issued under Article 23 of the German Zollgesetz. In this respect, as the plaintiff has rightly pointed out, it is unnecessary to consider the legal situation existing before the entry into force of Regulation No 950/68 (OJ L 172, p. 1), that is, before 1 July 1968, since all the imports in question in the main action took place after that date. The second section of the final question is therefore superfluous.

As regards the admissibility or the above-mentioned customs tariff notices, the Court accepted in the Siemers case my opinion on this point. It pointed out that although Community law does not provide for tariff classification in advance, it does not prohibit it. The essential factor was that the notices ‘have no legislative effect whatsoever and form part of the normal procedures for the application of the tariff provisions to specific cases’. All the objectives now put forward by the plaintiff in the main action are either not new in that they were already the subject of the proceedings in the Siemers case or concern problems of national law which cannot be considered within the context of a request for a preliminary ruling. In my view, therefore, the statements made in the judgment in Case 30/71 must be confirmed and the admissibility of binding customs tariff notices upheld, at least under the conditions which I set out in my opinion in Case 30/71. This is all the more possible since, as the representative of the Federal Government emphasized in the oral proceedings in the present case, customs tariff notices lapse when explanatory regulations are issued, and their temporary authority could be upheld in the event of revocation to the extent that evidence was brought that transactions were concluded on this basis and cannot be annulled.

I therefore suggest that the following answers be given to the questions referred:

(a)The classification of a product under heading 21.04 of the Common Customs Tariff is precluded in so far as the use of butter, butteroil or fractionated dry butter fat in the manufacture of the product impairs its direct suitability for improving the flavour of certain foods.

(b)Trade usage is irrelevant for the purposes of the classification of a product under headings 21.04 or 21.07 of the Common Customs Tariff.

(c)Regulation No 241/70 is not retroactive in effect and therefore cannot be applied to the classification of products imported before its entry into force.

(d)The entry into force of Regulation No 950/68 of the Council has not affected the legal effects of the binding customs tariff notices issued under Article 23 of the German Zollgesetz.

Translated from the German.