OPINION OF ADVOCATE GENERAL

delivered on 20 June 1995 (*1)

Is Regulation No 482/74 still applicable?

6. As point 30 of the Opinion points out, Article 15(1) must be interpreted as the Community legislature's implied decision to maintain in force the legal measures enacted pursuant to the earlier legal basis. The use of the word ‘amended’ in Article 15(1) must necessarily presuppose that some rules have been maintained in force to amend, and does not appear to be open to a construction that those rules have been repealed before amendment. If it had been intended that those rules should only be applicable once the adjustment had been made, the provision should have been formulated so as to enable the Commission to adopt new, adjusted regulations without setting in motion the procedure laid down in Articles 9 and 10.

7. It should also be pointed out that under Article 17 of the regulation, Article 15 was to be applied from 1 January 1988, the same day as the combined nomenclature entered into force. If it was intended that the adjustment for which provision is made in Article 15(1) was to be a condition of validity, it would have been natural to allow the Commission a period of time before the combined nomenclature entered into force to make such adjustment.

8. It must therefore be concluded that Regulation No 482/74 remained valid under the combined nomenclature in so far as the Commission did not amend it.

10. It might have been desirable for Article 15(1) of Council Regulation No 2658/87 to have stated more clearly that the previous implementing regulations continued in force. However, since it is possible to achieve the same result with a general interpretation, I do not see any difficulty pertaining to legal certainty which might preclude a finding that Regulation No 482/74 continued in force after the implementation of the combined nomenclature.

Was Article 1 of Regulation No 482/74 invalid at the point in time material to this case?

11. Under Article 9(l)(a) of Regulation No 2658/87 the Commission is authorized to adopt measures relating to the application of the combined nomenclature and the explanatory notes thereto in accordance with the committee procedure prescribed in Article 10. This is partly to ensure uniform application in the Member States and partly to facilitate administration.

12. In assessing whether the Commission exceeded its powers in laying down a requirement of a starch content of under 45% as a condition for the classification of residues resulting from the extraction of maize germ oil in subheading 23069091 of the combined nomenclature, Advocate General Gulmann based himself in his Opinion on the Vismans judgment. (*5) In that judgment the Court held, following its settled case-law, that the Commission is authorized to define the subject-matter of tariff headings, provided only that the provisions adopted do not amend the text of the Tariff, since the interests of legal certainty and ease of verification require that the decisive criterion for the customs classification of goods must generally be their objective characteristics and properties, as defined by the wording of the headings. (*6)

13. This case can be distinguished from Vismans inasmuch as the Commission did not use its discretion wrongly when it adopted the measure. Rather, subsequent developments overtook, as it were, the Commission's regulation, and the problem consists in the fact that the regulation was not adjusted to take those developments into account. To set aside the regulation would therefore in fact mean holding that the Commission is obliged to adjust such rules on a permanent basis. That difference cannot, however, in my view be decisive, since the same considerations of legal certainty operate.

15. The nature of the measure and the abovementioned principle of legal certainty therefore indicate, in my opinion, that the requirement as to the starch content in Article 1 of Regulation No 482/74 should be set aside, regardless of the fact that the situation which arose did not exist at the time when the regulation was adopted, but is a consequence of later developments. I must therefore also agree with Advocate General Gulmann's Opinion as far as the answer to Question 2 is concerned.

Conclusion

16. In view of the foregoing, I would suggest that the Court reply to the questions referred to it for a preliminary ruling in accordance with the Opinion of Advocate General Gulmann of 12 July 1994.

(*1) Original language: Danish.

(*2) Regulation (EEC) No 482/74 of the Commission on the classification of goods within subheading No 23.04 B of the Common Customs Tariff, OJ 1974 L 57, p. 23.

(2) Case C-315/88 [1990] ECR I-1323.

(3) Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L 256, p. 1.

(4) See, for example, the Parliament's ‘Rapport sur un accord interinstitutionnel en matière de codification officielle de la législation communautaire’, 1995: the Parliament's ‘Résolution sur la transparence du droit communautaire et la nécessité de sa codification’ and the Commission's statements in COM (93) 391 final — Codification constitutive pour le renforcement de la transparence du droit communautaire dans le domaine du marché ultérieur.

(5) Judgment in Case C-265/89, Vismans Nederland [1990] ECR I-3411.

(6) Loc. cit., at paragraphs 13 and 14. See further the judgment in Case C-401/93 GoldStar Europe [1994] ECR 5587, at paragraph 19, and Case C-111/93 Siemens Nixdorf [1994] ECR I-1945, at paragraph 11.