1 BY ORDER OF 18 JUNE 1973, REGISTERED AT THE COURT ON 11 JULY 1973, THE HAMBURG FINANZGERICHT REFERRED TWO QUESTIONS, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, ON THE INTERPRETATION OF THE EXPRESSION " GAME " AS IT APPEARS AT SUBHEADING 02.04-B OF THE COMMON CUSTOMS TARIFF 1970 .
IT APPEARS FROM THE ORDER MAKING THE REFERENCE THAT THESE QUESTIONS WERE RAISED IN CONNEXION WITH THE IMPORT INTO THE COMMUNITY OF FROZEN MEAT OF ANIMALS WHICH HAD LIVED IN THE WILD STATE AND HAD BEEN KILLED BY HUNTING .
THE NATIONAL CUSTOMS AUTHORITIES, BEING OF THE OPINION THAT THIS WAS REINDEER MEAT, CLASSIFIED IT, NOT UNDER SUBHEADING 02.04-B ( MEAT OF GAME ) OF THE COMMON CUSTOMS TARIFF OF THE EEC IN FORCE AT THAT TIME, BUT UNDER SUBHEADING 02.04-C-III ( OTHER MEATS, OTHER ).
IN THIS MATTER THE CUSTOMS AUTHORITIES REFERRED TO THE EXPLANATORY NOTES TO THE COMMON CUSTOMS TARIFF, PUBLISHED BY THE COMMISSION, ACCORDING TO WHICH REINDEER ARE HELD TO BE DOMESTIC ANIMALS, WITH THE RESULT THAT THEIR MEAT IS NOT CLASSIFIED UNDER SUBHEADING 02.04-B AND MUST BE CLASSIFIED UNDER SUBHEADING 02.04-C-III .
2 THE ARGUMENTS PUT FORWARD BY THE COMMISSION TO JUSTIFY THE CLASSIFICATION OF ALL REINDEER MEAT UNDER THE SAME SUBHEADING IN THIS WAY, LEAVING NO POSSIBILITY FOR A DIFFERENT TREATMENT OF THE MEAT OF WILD REINDEER AS COMPARED WITH THAT OF DOMESTIC REINDEER, CONSIST IN THE ABSENCE AS BETWEEN THE TWO PRODUCTS OF OBJECTIVE CHARACTERISTICS AND PROPERTIES WHICH WOULD ALLOW ONE TO BE DISTINGUISHED FROM THE OTHER WHEN SUBMITTED FOR CUSTOMS CLEARANCE .
HOWEVER, THIS SIMILARITY BETWEEN THE PRODUCTS IS NOT SUCH AS TO EXCLUDE TREATMENT DIFFERENTIATED ON THE BASIS OF OTHER OBJECTIVE FACTORS, OF WHICH EVIDENCE CAN BE GIVEN WHEN THE PRODUCTS ARE SUBMITTED FOR CUSTOMS CLEARANCE, FOR EXAMPLE BY MEANS OF CERTIFICATES OF ORIGIN .
3 THE EXPLANATORY NOTES TO THE COMMON CUSTOMS TARIFF, ALTHOUGH AN IMPORTANT FACTOR AS REGARDS INTERPRETATION IN ALL CASES WHERE THE PROVISIONS OF THE TARIFF PROVOKE UNCERTAINTY, CANNOT AMEND THOSE PROVISIONS, THE MEANING AND SCOPE OF WHICH ARE SUFFICIENTLY CLEAR .
THE EXPRESSION " GAME " IN ITS ORDINARY MEANING DESIGNATES THOSE CATEGORIES OF ANIMAL LIVING IN THE WILD STATE WHICH ARE HUNTED .
ALTHOUGH THE CUSTOMS AUTHORITIES CAN LEGITIMATELY REQUIRE CONCLUSIVE EVIDENCE THAT THE ANIMALS WHOSE MEAT IS DECLARED BY THE IMPORTER AS BEING COVERED BY SUBHEADING 02.04-B ARE GAME ANIMALS, THE EXPLANATORY NOTES CANNOT, IN CONTRADICTION TO THE TEXT OF THE COMMON CUSTOMS TARIFF, ELIMINATE ALL DIFFERENCES OF CLASSIFICATION AS BETWEEN THE MEAT OF WILD AND DOMESTIC ANIMALS OF THE SAME SPECIES .
4 ACCORDINGLY, THE ANSWER TO THE QUESTIONS REFERRED IS THAT THE EXPRESSION " GAME " AS IT APPEARS AT SUBHEADING 02.04-B OF THE COMMON CUSTOMS TARIFF 1970 IS TO BE INTERPRETED AS APPLYING TO ANIMALS LIVING IN THE WILD STATE WHICH ARE HUNTED .
5 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HAMBURG FINANZGERICHT BY ORDER OF THAT COURT DATED 18 JUNE 1973, HEREBY RULES :
THE EXPRESSION " GAME " AS IT APPEARS AT SUBHEADING 02.04-B OF THE COMMON CUSTOMS TARIFF 1970 IS TO BE INTERPRETED AS APPLYING TO ANIMALS LIVING IN THE WILD STATE WHICH ARE HUNTED .
