FTS International BV

(Reference for a preliminary ruling from the Gerechtshof te Amsterdam)

(Common Customs Tariff – Combined Nomenclature – Classification – Boneless chicken cuts, frozen and impregnated with salt – Validity of Regulation (EC) No 1223/2002)

Judgment of the Court (Third Chamber), 18 July 2007

Summary of the Judgment

Common Customs Tariff – Tariff headings

(Council Regulation No 2658/87, Art. 9; Commission Regulation No 1223/2002)

By classifying under sub-heading 0207 14 10, by Regulation No 1223/2002 concerning the classification of certain goods in the Combined Nomenclature, chicken meat with a salt content by weight of between 1.2% and 1.9%, the Commission restricted the scope of heading 0210, which, in accordance with Additional note 7 to chapter 2 of Section I of Part Two of the Combined Nomenclature, in the version resulting from Regulation No 1832/2002, amending Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, covers boneless chicken cuts, frozen, impregnated with salt in all parts and with a salt content of at least 1.2%. It therefore exceeded the powers conferred upon it by Article 9 of Regulation No 2658/87. Consequently, Regulation No 1223/2002 must be declared invalid.

(see paras 24-25, operative part)

18 July 2007 (*)

(Common Customs Tariff – Combined Nomenclature – Classification – Boneless chicken cuts, frozen and impregnated with salt – Validity of Regulation (EC) No 1223/2002)

In Case C‑310/06,

REFERENCE for a preliminary ruling under Article 234 EC from the Gerechtshof te Amsterdam (Netherlands), made by decision of 15 June 2006, received at the Court on 14 July 2006, in the proceedings

Belastingdienst – Douane West,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J. Klučka, J.N. Cunha Rodrigues, P. Lindh (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: P. Mengozzi,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 19 April 2007,

after considering the observations submitted on behalf of:

– F.T.S. International BV, by H.C. de Bie and M. Ouwehand, advocaten,

– the Netherlands Government, by H.G. Sevenster and P. van Ginneken, acting as Agents,

– the Italian Government, by I.M. Braguglia, acting as Agent, and by G. Albenzio, avvocato dello Stato,

– the Commission of the European Communities, by J. Hottiaux and S. Schonberg, acting as Agents, and by F. Tuytschaever and F. Wijckmans, advocaten,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

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).

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

Community legislation

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

(3)

Boneless chicken cuts, frozen and impregnated with salt in all parts. They have a salt content by weight of 1.2% to 1.9%.

The product is deep-frozen and has to be stored at a temperature of lower than –18°C to ensure a shelf-life of at least one year.

0207 14 10

Classification is determined by the provisions of General Rules 1 and 6 for the interpretation of the Combined Nomenclature and by the wording of CN codes 0207, 0207 14 and 0207 14 10.

The product is chicken meat frozen for long-term conservation. The addition of salt does not alter the character of the product as frozen meat of heading 0207.’

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.

On those grounds, the Court (Third Chamber) hereby rules:

Commission Regulation (EC) No 1223/2002 of 8 July 2002 concerning the classification of certain goods in the Combined Nomenclature is invalid.

[Signatures]

*

Language of the case: Dutch.