Important legal notice

61993C0151

European Court reports 1994 Page I-04915

Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A ° Introduction

(a) Description: "B. Poultry cuts (excluding offals): II. Unboned (bone-in): e) Legs and cuts of legs: 3. Of other poultry".

Tariff heading: 02.02.B.II e) 3. Regulation: Commission Regulation (EEC) No 1151/87 of 27 April 1987 (OJ 1987 L 111, p. 21), which entered into force on 1 May 1987, and Commission Regulation (EEC) No 2800/87 of 18 September 1987 (OJ 1987 L 268, p. 47, which entered into force on 21 September 1987.

(b) Description "B. Poultry cuts (excluding offals): II. Unboned (bone-in): a) Halves or quarters: 1. Of fowls".

Tariff heading: 02.02.B.II a) 1. Regulation: (EEC) No 1151/87 and (EEC) No 2800/87.

(c) Description "B. Poultry cuts (excluding offals): II. Unboned (bone-in): g) Other".

Tariff heading: 02.02.B.II.ex g). Regulation: (EEC) No 1151/87 and (EEC) No 2800/87.

(d) Description: "Poultry cuts and offal other than livers, frozen: Of fowls of the species Gallus domesticus: Cuts: With bone in: Legs and cuts thereof".

Tariff heading: 0207.41.51.000. Regulation: Commission Regulation (EEC) No 3846/87 of 17 December 1987 (OJ 1987 L 366, p. 1), which entered into force on 1 January 1988.

(e) Description: "Poultry cuts and offal other than livers, frozen: Of fowls of the species Gallus domesticus: Cuts: With bone in: Other: Halves or quarters, without rumps".

Tariff heading: 0207.41.71.100. Regulation: (EEC) No 3846/87.

(f) Description: "Poultry cuts and offal other than livers, frozen: Of fowls of the species Gallus domesticus: Cuts: With bone in: Other: Other".

Tariff heading: 0207.41.71.900. Regulation: (EEC) No 3846/87.

(a) Description: "B. Poultry cuts (excluding offals): II. Unboned (bone-in): b) Whole wings, with or without tips".

Tariff heading: 02.02B.II. b). Regulation: Commission Regulation (EEC) No 267/87 of 28 January 1987 (OJ 1987 L 26, p. 33), which entered into force on 1 February 1987, and Commission Regulation (EEC) No 1151/87.

(b) Description: "Poultry cuts and offal other than livers, frozen: Of fowls of the species Gallus domesticus: Cuts: With bone in: Whole wings, with or without tips".

Tariff heading: 0207.41.21.000. Regulation: Commission Regulation (EEC) No 3846/87.

B ° Analysis

6. In Questions 1.2 and 2.2 of the reference, the national court seeks to know, in the case of legs with back portion, under which of the tariff headings the relevant products belonged in the periods between 1 May 1987 and 1 November 1987 and between 1 January 1988 and 1 October 1988, and, in the case of wings with back portion, under which headings the products belonged in the periods between 1 February 1987 and 1 November 1987 and between 1 January 1988 and 1 September 1988.

For the sake of clarity, I will first set out, in chronological order and with the dates of their respective entry into force, the Commission regulations which applied during the relevant periods for the fixing of export refunds in the poultrymeat sector:

° Regulation No 267/87: 1 February 1987

° Regulation No 1151/87: 1 May 1987

° Regulation No 2303/87: (1) 1 August 1987

° Regulation No 2800/87: 21 September 1987

° Regulation No 3205/87: (2) 1 November 1987

° Regulation No 3865/87: (3) 1 January 1988

° Regulation No 158/88: (4) 23 January 1988

° Regulation No 717/88: (5) 21 March 1988

° Regulation No 1792/88: (6) 1 July 1988

° Regulation No 2882/88: (7) 1 October 1988

Regulation No 2303/87 is not mentioned in the questions referred. Since, however, the tariff headings in the Annex to that regulation correspond with those in the Annexes to Regulations Nos 267/87, 1151/87 and 2800/87, in so far as they are relevant to the present case, there is no need to consider that regulation separately. The same applies, in respect of Question 2, to Regulations Nos 2303/87 and 2800/87, which are not mentioned although they come within the period to which Question 2.2 refers.

As for the regulations which were valid during the period from 1 January 1988 to 1 September (or, as the case may be, 1 October) 1988, all those provisions use the nomenclature introduced by Regulation No 3846/87. Since Regulation No 3846/87 was not amended during that period, in so far as the products in question here are concerned, there is no need to examine in detail here the individual regulations fixing export refunds for 1988.

The classification of a leg with back portion

7. On examination of the first question referred, it is clear that the national court is asking whether a leg with back portion is to be classified under one of three tariff headings, which, to simplify matters, may be summarized as: quarters, legs and others.

It is common ground that none of those tariff headings is defined by the regulations in question here, namely Regulations Nos 1151/87, 2800/87 and 3846/87.

8. In those circumstances, one naturally turns to the customs provisions. Under Article 11(1) of Council Regulation No 2777/75 of 29 October 1975 on the common organization of the market in poultrymeat, (8) on which the Commission regulations referred to above are based, the general rules for the interpretation of the Common Customs Tariff and the special rules for its application apply to the tariff classification of products covered by that regulation.

"hindquarters consisting of the drumstick, leg, rear part of the back and rump, as well as forequarters consisting essentially of one half of the breast with the wing attached".

10. According to the information given by the national court, the product in question here does not include any rump. It follows that this leg with back portion does not constitute a "quarter" and does not therefore fall within tariff heading 02.02.B.II. a) of Regulations Nos 1151/87 and 2800/87. The representative of Voogd did state at the hearing that the rump of a chicken is a very small part which is not particularly significant in relation to others. That on its own is not, however, enough to justify overlooking the requirement that a hindquarter must also include a rump. For that to be so, appropriate indications in the legal provisions would be necessary, which are lacking here. In view also of the provisions of Regulation No 3846/87, one can assume that the presence of a rump is of considerable significance for the question of export refunds.

11. Tariff heading 0207.41.71.100 of Regulation No 3846/87, on the other hand, applies to halves or quarters "without rumps". That is not by chance, as the same regulation contains a further tariff heading (0207.41.11.000) for "halves or quarters". The difference between the two tariff headings therefore lies in the fact that, in the one case, the rump (or a part of it) has to be present, while in the other case it does not. The leg with back portion in question here could therefore be classified under tariff heading 0207.41.71.100 of Regulation No 3846/87. That assumes that the product in question is a "hindquarter, consisting of the drumstick, leg" and "rear part of the back". (10)

Whether that is so is for the national court to determine. In so doing, it will, in the absence of more precise provisions in Community law, have to consider national conditions and customs on the question of how a hindquarter is to be cut. In my view, the Explanatory Notes to the Combined Customs Tariff give little further assistance in the matter. Whilst they describe how a half must be cut, they do not state that a "hindquarter" must necessarily be cut from a half that has been prepared in that manner. (11)

12. Let me now turn to the question whether a leg with back portion comes into the category of "leg" or of "Other" for the purposes of the regulations referred to above. In respect of the period after the entry into force of Regulation No 3846/87, this question does, of course, only arise if the national court considers that the product in question does not constitute a "quarter" within the meaning given above.

13. In its written observations, the Commission referred in this connection to the current regulation on the marketing of poultrymeat. If that regulation were applicable, its contents would provide an immediate answer to the question at issue here. Article 1(2) of Regulation No 1538/91 (12) gives the following definitions under the heading "Poultry cuts":

(e) Leg: the femur (thigh bone), tibia (shin bone) and fibula (calf bone) together with the surrounding musculature. The two cuts shall be made at the joints.

(f) Chicken leg with a portion of the back attached to it, the weight of the latter not to exceed 25% of that of the cut.

It may be noted that Regulation No 3846/87 has also been correspondingly amended in the meantime. It now contains a tariff heading 0207.41.71.200 with the description "Poultry cuts and offal other than livers, frozen: Of fowls: Cuts: With bone in: Other: Cuts consisting of whole leg or part of a leg and part of the back, where the weight of the part of the back does not exceed 25% of the total weight".

It appears that those provisions were, as the representative of Voogd said at the hearing, enacted precisely for the purpose of removing uncertainties of the kind that can arise in cases such as the present. It goes without saying that those provisions, which were enacted after the period in question here (1987 and 1988), cannot be allowed to influence the interpretation of the provisions which applied when the events in question took place.

14. The question therefore arises as to how the tariff heading "leg" is to be interpreted for the period in question here. At the hearing, the representative of the Commission put the essential point thus: Is a "leg" no longer to be regarded as a "leg" if it has a back portion attached?

The Commission rightly pointed out at the hearing that in the case of machine cutting, which is doubtless what happens as a rule, it is virtually inevitable that a small piece of back will remain attached to the leg. That is also confirmed by the technical literature I have consulted.

In accordance with Regulation No 1538/91, already mentioned, the cuts on a leg are to be made "at the joints". Although, as already stated, that regulation is not applicable here, it does allow certain retrospective conclusions to be drawn about the present case. At the end of Article 1(2), that regulation provides that in the case of certain products (including legs) the cuts can be made "near the joints" until 31 December 1991. It can thereby be deduced that, at the time that regulation was adopted, such a "leg", in the understanding current in Member States at the time, did not necessarily have to be restricted to the leg as such.

The opinion expressed by Voogd, in answer to a written question from the Court, to the effect that, in the Netherlands, the concept of a chicken leg was not confined to the anatomical leg but included "something more", may therefore be perfectly accurate.

16. That argument of the Commission is hard to refute. So long as Community law provides for export refunds, and so long as different amounts are laid down for the various parts of a chicken, clear distinctions must be drawn between those parts. Otherwise the door would be wide open to abuse.

Nevertheless, it seems to me that that argument cannot be used in the present case. It is not clear from the Commission's arguments how, in concrete terms, the delimitation is to be effected. The Commission does, it is true, consider first whether, in cases where a small piece of back remains attached to the leg, the latter might not still be regarded as a "leg" within the meaning of the regulations in question here. If, however, the back portion were to constitute more than 25% of the total weight, that margin of tolerance would definitely be exceeded. The Commission nevertheless concludes that a leg with back portion is to be classified under the tariff heading "Other". That is doubtless based on the view (which the Commission's representative expressed at the hearing) that the term "leg" should be understood as meaning only the anatomical leg and that the addition of a back portion will, in any event, cause that leg to fall under the tariff heading "Other".

That interpretation has the merit of clarity and may well correspond to the legal position today. It cannot, however, be applied to the period under examination here, since, for the reasons I have already given, it has to be assumed that a leg with a small back portion might well have fallen under the tariff heading "leg" in 1987/88.

17. Nor is an answer to the question at issue here to be found in the philological considerations which Voogd's representative put forward at the hearing on the question of what is meant by "leg". It is not necessary to determine in this context whether there is a distinction in Dutch between the words "poot" and "dij". Even if there were, it would not be sufficient to determine how a leg with back portion should be treated for the purpose of granting export refunds.

18. In its judgment in the Ekro case, the Court held that the principle of the uniform application of Community law and the principle of equality both require that a provision of Community law which makes no express reference to national law for the purpose of determining its meaning and scope "must normally be given an independent and uniform interpretation throughout the Community". As has been seen, however, it is not apparent from the context of the regulations and the purpose of the provisions in question exactly what the anatomical definition of a "leg" should be.

Here, as in the Ekro case, it cannot be assumed, in the absence of a provision to that effect (as contained, for instance, in Regulation No 1538/91), that the Community legislature intended when regulating export refunds to harmonize or standardize cutting methods. To that extent, the Community regulations "tacitly" refer to the methods customary in the Member States. The precise anatomical definition of the cut of poultry called "leg" must therefore be determined by the national court in the light of the customs prevailing in the Member State or region concerned.

20. In my opinion, the answer to that question should be sought in the General Rules for the interpretation of the Common Customs Tariff, as the Court has already done in Ekro. That case concerned export refunds for beef. The description under the relevant tariff heading referred to pieces of meat "excluding the thin flank [and] the shin". The question therefore arose, inter alia, whether a piece of meat that also included thin flank and shin still fell under that tariff heading. The exporter in question had taken the view that a proportion of up to 20% thin flank and shin was not significant. The Court, however, referred to General Rule A 3(b) for the interpretation of the nomenclature of the Common Customs Tariff. Under that provision, "mixtures ... shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable". The Court held that the determination of the essential character of such a cut of meat does not depend on a specific percentage, "but must be determined in accordance with the consumer habits, trade practices and normal methods of cutting and boning beef and veal in the Member State or region concerned. These are matters to be decided by the national court".

21. That principle also applies in the present case. The national court must determine whether the portion of back which remains attached to the leg is so large that it determines the essential character of the cut of poultry as a whole. Only if that is so must that cut of poultry be classified under the tariff heading "Other". Although no specific percentage can be given for that purpose, the national court is, in my opinion, perfectly entitled to take into account the fact that Voogd itself expressed the view (in its answer to a written question of the Court) that the cut in question is no longer a "leg" if the additional back portion constitutes more than 25% of the total weight.

22. It cannot escape notice that this solution enables an astute businessman to obtain export refunds (or higher export refunds) for poultry cuts which the legislature did not intend. Nevertheless, that seems to me to be acceptable for two reasons. First, it was open to the legislature to prevent that from happening by means of a clear definition of the cuts in question. Secondly, that result applies only to the past, as the legislature has since removed the uncertainty. I allow myself the additional observation (without wishing thereby to prejudice the decision of the Netherlands court) that it seems to me very doubtful in the present case, in view of the uncertainties and the lack of clarity I have described, whether Voogd can in any way be accused of culpable conduct.

The classification of wings with back portion

23. With regard to the classification of wings with back portion, the question arises whether this product is to be regarded as "whole wings, with or without tips" within the meaning of Regulations Nos 1151/87 and 3846/87, or whether it comes under the heading "Other". I shall to a large extent be able to refer here, mutatis mutandis, to my earlier exposition.

(j) Unseparated wings: both wings united by a portion of the back, where the weight of the latter does not exceed 45% of that of the whole cut." Regulation No 3846/87 now contains a tariff heading 0207.41.71.400 with the description "Poultry cuts and offal other than livers, frozen: Of fowls: Cuts: With bone in: Other: Cuts consisting of the two wings and a part of the back, where the weight of the part of the back does not exceed 45% of the total weight".

Those provisions are, however, without significance for the period in question here (1987 and 1988).

25. Here also, and for the reasons already given, it is for the court making the reference to determine the precise anatomical definition of "wings" for the period in question. The national court must also determine whether the back portion attached to the wings is so large that it determines the essential character of the poultry cut as such. In my personal opinion, there is much to be said here for classifying the product in question under the tariff heading "Other". A final judgment on that question is of course a matter for the national court alone.

C ° Conclusions

26. I therefore propose that the Court give the following answers to the questions submitted by the national court:

If the back portion does determine the essential character of the product as a whole, the product is to be classified under tariff heading 02.02.B.II.ex g) ("Other") of the table in the Annexes to the regulations referred to in point 1.1 of this answer, or, as the case may be, under tariff heading 0207.41.71.900 ("Other") of Regulation No 3846/87, in the version in force until 1 October 1988.

If the back portion does determine the essential character of the product as a whole, the product is to be classified under tariff heading 02.02.B.II. ex g) ("Other") of the table in the Annexes to the regulations referred to in point 2.1 of this answer, or, as the case may be, under tariff heading 0207.41.71.900 ("Other") of Regulation No 3846/87, in the version in force until 1 September 1988.

(*) Original language: German.

(1) ° Regulation (EEC) No 2303/87 of 30 July 1987 (OJ 1987 L 209, p. 56).

(2) ° Regulation (EEC) No 3205/87 of 27 October 1987 (OJ 1987 L 306, p. 7).

(3) ° Regulation (EEC) No 3865/87 of 22 December 1987 (OJ 1987 L 363, p. 40).

(4) ° Regulation (EEC) No 158/88 of 20 January 1988 (OJ 1988 L 18, p. 12).

(5) ° Regulation (EEC) No 717/88 of 18 March 1988 (OJ 1988 L 74, p. 37).

(6) ° Regulation (EEC) No 1792/88 of 24 June 1988 (OJ 1988 L 158, p. 24).

(7) ° Regulation (EEC) No 2882/88 of 19 September 1988 (OJ 1988 L 260, p. 37).

(8) ° OJ 1975 L 282, p. 77.

(9) ° Before 1 January 1988, the Explanatory Notes to the CCCN (Customs Cooperation Council Nomenclature) applied. Since the introduction of the Combined Nomenclature on 1 January 1988, the Explanatory Notes to the Combined Nomenclature have applied. Both texts accord with each other for the relevant period on the question at issue here.

(10) ° See the final part of paragraph 9, above.

(11) ° The problem is solved by the current regulation on the marketing of poultrymeat. Council Regulation (EEC) No 1906/90 of 26 June 1990 (OJ 1990 L 173, p. 1) laid down marketing standards for poultry. Detailed rules for implementing that regulation were laid down by Commission Regulation (EEC) No 1538/91 of 5 June 1991 (OJ 1991 L 143, p. 11). In Article 1(2)(a) a half is defined as half of the carcase, obtained by a longitudinal cut in a plane along the sternum and the backbone. A quarter is a half divided by a transversal cut (Article 1(2)(b)). Those provisions were, however, enacted only after the period in question here and cannot therefore be taken into consideration (see paragraph 13, below).

(12) ° See footnote 11, above.

(13) ° See Commission Regulation (EC) No 3567/93 of 21 December 1993 amending Regulation No 3846/87 (OJ 1993 L 327, p. 1).

(14) ° Judgment in Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 22.

(15) ° See S. Scholtyssek: Gefluegel (Poultry), Stuttgart, 1987, p. 91 (with schematic illustrations). This work was kindly made available to me by the Lycée Technique Agricole in Ettelbruck.

(16) ° I use that expression here (without any claim to technical accuracy) to denote a leg cut off at the joints.

(17) ° If necessary, the calculation can be made in accordance with the average ratio between their commercial value. Those coefficients are laid down by Commission Regulation (EEC) No 3011/79 of 20 December 1979 (OJ 1979 L 337, p. 65).

(18) ° Second paragraph of Article 2 of Council Regulation (EEC) No 2779/75 of 29 October 1975 laying down general rules for granting export refunds on poultrymeat and criteria for fixing the amount of such refunds (OJ 1975 L 282, p. 90).

(19) ° It may be pointed out here that the Commission' s representative took the view at the hearing that the products exported by Voogd were intentionally cut so as to include a back portion.

(20) ° See paragraph 14, above.

(21) ° Ekro (cited in footnote 14, above) paragraph 11.

(22) ° Ekro (cited in footnote 14, above) paragraph 13.

(23) ° Ekro (cited in footnote 14, above) paragraph 15.

(24) ° See footnote 14.

(25) ° Ekro (cited in footnote 14, above) paragraph 20.

(26) ° The words quoted are taken from the 1987 version of the Common Customs Tariff, as set out in Council Regulation (EEC) No 3618/86 of 24 November 1986 (OJ 1986 L 345, p. 1).

(27) ° Ekro (cited in footnote 14, above) paragraph 24.

(28) ° It should be reiterated here that the determination of the exact anatomical boundaries of a leg for this purpose is a matter for the national court (see paragraph 18, above).

(29) ° Reference should also be made to General Rule for the interpretation of the Combined Nomenclature A 3c: When goods cannot be classified by reference to...3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

(30) ° In respect of the last-mentioned tariff heading, questions 2.2 and 2.3 of the reference merely allude to point 1.1(c) of the questions referred and thereby, by implication, to Regulations Nos 1151/87 and 2800/87. One may, nevertheless, assume that the national court also had the corresponding tariff heading used by Regulation No 3846/87 in mind. Since it may well have been an oversight, which is in no way surprising in view of the scope of the questions referred, I will refer in my exposition to the last-mentioned regulation where appropriate. In any event, there is no distinction in the subject-matter.

(31) ° See footnote 11, above.

(32) ° See footnote 13, above.

(33) ° See paragraph 18, above.