1 BY AN ORDER OF 3 JUNE 1971 WHICH WAS RECEIVED AT THE COURT ON 30 JUNE 1971 THE FINANZGERICHT HAMBURG HAS REFERRED TO THE COURT OF JUSTICE, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, THREE QUESTIONS ON THE INTERPRETATION OF CERTAIN HEADINGS OF THE COMMON CUSTOMS TARIFF .
2 FIRST, THE COURT IS ASKED TO RULE WHETHER A PRODUCT MAY BE CLASSIFIED UNDER HEADING 23.07 OF THE COMMON CUSTOMS TARIFF AND THEREFORE MADE SUBJECT TO THE LEVY IN APPLICATION OF REGULATION ( EEC ) NO 19/62 OF THE COUNCIL OF 4 APRIL 1962 ON THE SOLE BASIS OF OBJECTIVE CHARACTERISTICS, THAT IS, WITHOUT REGARD TO THE MANNER IN WHICH IT IS PRODUCED OR OBTAINED AND IN PARTICULAR IRRESPECTIVE OF WHETHER OR NOT IT IS AN INTENTIONAL MIXTURE .
3 WITH REFERENCE TO TARIFF HEADING 23.07 THE ANNEX TO REGULATION NO 19/62 DEFINES THE PRODUCTS IN QUESTION IN THE FOLLOWING TERMS : " ANIMAL FOOD PREPARATIONS INCLUDING SWEETENED FORAGE; OTHER PREPARATIONS USED IN ANIMAL FEEDING ( ADDITIVES, ETC .); EX B . CONTAINING CEREALS OR CONTAINING PRODUCTS COVERED BY THE PRESENT REGULATION ".
4 IN THE INTERESTS OF LEGAL CERTAINTY AND OF ADMINISTRATION THE CLASSIFICATION OF GOODS IN THE COMMON CUSTOMS TARIFF IS IN PRINCIPLE CARRIED OUT ON THE BASIS OF THEIR OBJECTIVE CHARACTERISTICS . THE WORDING OF HEADING 23.07 TO WHICH REGULATION NO 19/62 REFERS ATTRIBUTES DECISIVE IMPORTANCE TO THE FACT THAT THE RELEVANT PRODUCTS MUST BE A " PREPARATION " AND THAT IT MUST BE INTENDED FOR FEEDING ANIMALS . " PREPARATION " MUST MEAN EITHER THE PROCESSING OF A PRODUCT OR A MIXTURE WITH OTHER PRODUCTS . THE FACT THAT THE PREPARATION IS USED FOR FEEDING ANIMALS CONSTITUTES AN OBJECTIVE FACTOR ENABLING IT TO BE ASCERTAINED WHETHER IT IS SUITABLE ONLY FOR FEEDING ANIMALS . ACCORDINGLY, THE OBJECTIVE CHARACTERISTICS AND PROPERTIES OF THE PRODUCTS WHICH SUPPLY THE DECISIVE CRITERION FOR THEIR CLASSIFICATION UNDER THE SAID TARIFF HEADING .
5 THIS INTERPRETATION IS CONFIRMED BY NOTE ( C ) RELATING TO HEADING 23.07 WHICH APPEARS AT THE END OF THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE; THE NOTE EXCLUDES FROM THAT HEADING " PREPARATIONS WHICH, WHEN ACCOUNT IS TAKEN, IN PARTICULAR, OF THE NATURE, PURITY AND PROPORTIONS OF THE INGREDIENTS ... CAN BE USED INDIFFERENTLY FOR FEEDING ANIMALS OR AS HUMAN FOOD ".
6 THE SECOND QUESTION SEEKS TO ASCERTAIN " TO WHAT FACTUAL CRITERIA MUST THE COMPOSITION OF THE PRODUCT CONFORM AND IN PARTICULAR WHAT MUST BE ITS CONTENT IN CONSTITUENTS SUCH AS, FOR EXAMPLE, STARCH, PROTEINS, FATS ETC . IN ORDER THAT IT MAY BE CLASSIFIED : ( A ) UNDER HEADING 11.01 OF THE COMMON CUSTOMS TARIFF, ( B ) UNDER HEADING 11.02 OF THE COMMON CUSTOMS TARIFF, ( C ) UNDER HEADING 23.07 OF THE COMMON CUSTOMS TARIFF ".
7 THE THIRD QUESTION SEEKS TO ASCERTAIN WHETHER " A MIXTURE INTENTIONALLY PRODUCED COMES UNDER HEADING 23.07 OF THE COMMON CUSTOMS TARIFF IF IT IS COMPOSED EITHER : ( A ) OF 78 PER CENT SORGHUM, 9 PER CENT SORGHUM GLUTEN AND THE REMAINDER OF MOLASSES, MAIZE HUSKS AND BRAN, OR ( B ) OF 4.9 PER CENT MAIZE GLUTEN, 80.08 PER CENT SORGHUM GLUTEN AND THE REMAINDER OF MOLASSES, MAIZE HUSKS AND BRAN ".
8 IT IS DESIRABLE TO ANSWER BOTH QUESTIONS TOGETHER .
9 TAKING ACCOUNT OF THE PROBLEMS BROUGHT BEFORE THE GERMAN COURT THOSE QUESTIONS RELATE TO PROCESSED MAIZE AND SORGHUM PRODUCTS AND ARE DESIGNED TO ASCERTAIN THE DISTINCTION BETWEEN THOSE PRODUCTS AND THE RESIDUES REFERRED TO IN HEADINGS 23.03 AND 23.04 OF THE COMMON CUSTOMS TARIFF . HEADING 11.01 IS ACCORDINGLY WORDED " CEREAL FLOURS " AND HEADING 11.02 " CEREAL GROATS, CEREAL MEAL; WORKED CEREAL GRAINS, PEARLED, CRUSHED, FLATTENED ( INCLUDING FLAKES ) EXCEPT HUSKED, GLAZED, POLISHED OR BROKEN RICE; GERM OF CEREALS, INCLUDING FLOURS THEREOF ".
10 THE CLASSIFICATION OF A PRODUCT UNDER ONE OF THOSE TWO HEADINGS CANNOT BE AFFECTED BY THE FACT THAT IT HAS UNDERGONE PROCESSING IF THE PROCESSED PRODUCT THEREAFTER CONTAINS THE ESSENTIAL CONSTITUENTS OF THE BASIC PRODUCT IN PROPORTIONS WHICH DO NOT SUBSTANTIALLY DIFFER FROM THE CONTENT IN THOSE CONSTITUENTS WHICH THE RELEVANT PRODUCT EXHIBITS IN ITS NATURAL STATE .
11 WITH REGARD PARTICULARLY TO THE DISTINCTION BETWEEN HEADINGS 23.03 AND 23.04 IT MUST BE NOTED THAT IN ORDER TO CONSTITUTE " RESIDUES " WITHIN THE MEANING OF THOSE HEADINGS EITHER STARCH OR OIL MUST HAVE BEEN EXTRACTED FROM THE BASIC PRODUCT IN PROPORTIONS EQUAL TO THOSE WHICH MAY BE ACHIVED BY AN ECONOMICALLY RATIONAL APPLICATION OF MODERN PROCEDURES .
12 HEADING 23.07 REFERS TO PRODUCTS WHICH HAVE BEEN FINALLY PROCESSED OR ARE THE RESULT OF A MIXTURE OF DIFFERENT SUBSTANCES AND WHICH ARE ONLY SUITABLE FOR FEEDING ANIMALS . THIS GENERAL CRITERION MUST BE SUPPLEMENTED IN THE LIGHT OF THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE, HEADING II C OF WHICH EXCLUDES FROM THE CATEGORY OF FORAGE PREPARATIONS " PELLETS MADE FROM A SINGLE MATERIAL, OR FROM A MIXTURE OF SEVERAL MATERIALS WHICH IS CLASSIFIED AS SUCH IN ONE SPECIFIC HEADING, EVEN WITH AN ADDED BINDER ( MOLASSES, STARCHY SUBSTANCES, ETC .) IN A PROPORTION GENERALLY NOT EXCEEDING 3 PER CENT BY WEIGHT ( HEADING 07.06, 12.10, 23.01, ETC .) ". FURTHERMORE, THE REFERENCE MADE IN REGULATION NO 19/62 TO TARIFF HEADING 23.07 DOES NOT ENCOMPASS FORAGE PREPARATIONS WHICH, WHILST COMING UNDER THIS HEADING, DO NOT CONTAIN PRODUCTS REFERRED TO AS SUCH BY THE PROVISIONS OF THE COMMON ORGANIZATION OF THE MARKETS LAID DOWN BY THE SAID REGULATION . WITH REGARD TO THE PERCENTAGES, IT IS FOR THE NATIONAL COURTS TO APPLY THE LAW TO THE PRESENT CASE .
13 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG ( FIFTH CHAMBER ) IN ACCORDANCE WITH THE ORDER OF THAT COURT OF 3 JUNE 1971, HEREBY RULES :
1 . FOR THE PURPOSES OF THE CLASSIFICATION OF A PRODUCT UNDER HEADING 23.07 OF THE COMMON CUSTOMS TARIFF, ACCOUNT MUST BE TAKEN OF ITS OBJECTIVE CHARACTERISTICS WITHOUT ITS BEING NECESSARY TO CONSIDER WHETHER THE PRODUCTS REFERRED TO BY THAT HEADING WERE PREPARED INTENTIONALLY OR NOT .
2 . ( A ) PRODUCTS PROCESSED FROM MAIZE AND SORGHUM MAY BE CLASSIFIED UNDER TARIFF HEADINGS 11.01 AND 11.02 IF AFTER PROCESSING THEY STILL CONTAIN THE ESSENTIAL CONSTITUENTS OF THE BASIC PRODUCT IN PROPORTIONS WHICH DO NOT DIFFER SUBSTANTIALLY FROM THE CONTENT IN THOSE CONSTITUENTS WHICH THE RELEVANT PRODUCT EXHIBITS IN ITS NATURAL STATE .
( B ) HEADING 23.07 REFERS TO PRODUCTS WHICH HAVE BEEN FINALLY PROCESSED OR ARE THE RESULT OF A MIXTURE OF DIFFERENT SUBSTANCES AND WHICH ARE ONLY SUITABLE FOR FEEDING ANIMALS, AND NOT TO AGGLOMERATED PRODUCTS THE BASIC MATERIAL OR MATERIALS OF WHICH COME AS SUCH UNDER A SPECIFIC HEADING, EVEN IF THEY CONTAIN A BINDER NOT GENERALLY EXCEEDING 3 PER CENT BY WEIGHT .
