1 BY AN ORDER OF 27 JULY 1976 , WHICH WAS RECEIVED AT THE COURT ON 13 SEPTEMBER 1976 , THE BUNDESFINANZHOF REFERRED TWO QUESTIONS UNDER ARTICLE 177 OF THE EEC TREATY , THE FIRST CONCERNING THE APPLICABILITY OF HEADING 15.13 OF THE COMMON CUSTOMS TARIFF TO CERTAIN MIXTURES OF FATS , AND THE SECOND , IN THE EVENT OF THE FIRST QUESTION ' S BEING ANSWERED IN THE AFFIRMATIVE , CONCERNING THE VALIDITY OF REGULATION NO 496/69 OF THE COMMISSION OF 18 MARCH 1969 ( OJ , ENGLISH SPECIAL EDITION 1969 ( I ), P . 109 ) ON THE CLASSIFICATION OF GOODS UNDER SUBHEADINGS 21.07 F VIII AND IX OF THE SAME TARIFF .
2 THESE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF AN ACTION CONCERNING THE TARIFF CLASSIFICATION OF A PRODUCT IMPORTED IN SEVERAL CONSIGNMENTS INTO THE FEDERAL REPUBLIC OF GERMANY FROM A NON-MEMBER COUNTRY BETWEEN 20 DECEMBER 1968 AND 22 MARCH 1969 , DESCRIBED BY THE IMPORTER AS ' IMITATION LARD ' WITHIN THE MEANING OF HEADING 15.13 OF THE COMMON CUSTOMS TARIFF .
IN THE LIGHT OF THE AFORESAID REGULATION NO 496/69 , THE CUSTOMS AUTHORITIES CLASSIFIED THESE GOODS UNDER SUBHEADING 21.07 F IX ( ' FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED . . . OTHER : CONTAINING 85 % OR MORE BY WEIGHT OF MILKFATS ' ), SINCE THEY HAD PROVED TO CONTAIN MORE THAN 85 % BY WEIGHT OF MILKFATS ( BUTYRIC FAT ).
3 THE IMPORTER OF THE GOODS CHALLENGES THIS CLASSIFICATION ON THE GROUNDS THAT REGULATION NO 496/69 ( WHICH ENTERED INTO FORCE BEFORE THE CUSTOMS FORMALITIES PERTAINING TO THE LAST CONSIGNMENT IMPORTED WERE COMPLETED ) AMENDS , MOREOVER WITH RETROACTIVE EFFECT , THE AMBIT OF TARIFF HEADINGS 15.13 AND 21.07 , IS THEREFORE CONTRARY TO THE LETTER AND THE SPIRIT OF THOSE HEADINGS , AND HENCE EXCEEDS THE AUTHORITY CONFERRED UPON THE COMMISSION BY THE BASIC REGULATION NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ( OJ , ENGLISH SPECIAL EDITION 1969 ( I ), P . 12 ).
THE COMMISSION MAINTAINS THAT REGULATION NO 496/69 MERELY INTERPRETS THE TARIFF HEADING IN QUESTION WITH BINDING EFFECT , BY CLARIFYING THE CONTENT AND SCOPE WHICH THAT HEADING HAD EVEN BEFORE THE REGULATION ENTERED INTO FORCE .
4 IN ITS FIRST QUESTION , THE NATIONAL COURT ASKS WHETHER , BEFORE THE ENTRY INTO FORCE OF REGULATION NO 496/69 , TARIFF HEADING 15.13 OF THE COMMON CUSTOMS TARIFF WAS TO BE INTERPRETED AS APPLYING TO FOOD PREPARATIONS CONSISTING OF THE FOLLOWING :
- FOR THE FIRST TWO CONSIGNMENTS :
85 % PURE BUTYRIC FAT ( 99.5 % )
10 % REFINED SUET
5 % SESAME OIL
- AND FOR THE OTHER CONSIGNMENTS :
85 % BUTYRIC FAT
5 % CURD
5 % SKIMMED MILK POWDER
5 % REFINED SUET OF BOVINE ANIMALS .
IN ITS SECOND QUESTION , THE NATIONAL COURT ASKS , IN THE EVENT OF AN AFFIRMATIVE ANSWER TO QUESTION 1 , WHETHER REGULATION NO 496/69 OF 18 MARCH 1969 IS VALID OR INVALID , IN THAT IT DOES NOT SPECIFY THE CONTENT OF TARIFF HEADINGS 15.13 AND 21.07 BUT AMENDS THEM AND CONSEQUENTLY IS NOT COVERED BY REGULATION NO 97/69 OF 16 JANUARY 1969 .
5 HEADING 15.13 OF THE COMMON CUSTOMS TARIFF APPLIES TO GOODS DESCRIBED AS ' MARGARINE , IMITATION LARD AND OTHER PREPARED EDIBLE FATS ' .
IT APPEARS FROM THE QUESTION REFERRED THAT THE PRINCIPAL FAT INGREDIENT OF THE PRODUCTS DESCRIBED BY THE NATIONAL COURT IS BUTYRIC FAT , TO WHICH SMALL PERCENTAGES OF ANIMAL AND VEGETABLE FATS ARE ADDED .
6 THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE AND THE NOTES EXPLICATIVES DU TARIF DOUANIER COMMUN CONSIDER ' BUTYRIC FAT ' TO BE ONE OF THE PRODUCTS COVERED BY THE CONCEPT OF ' BUTTER ' , WITHIN THE MEANING OF TARIFF HEADING 04.03 OF THE CHAPTER CONCERNING , INTER ALIA , ' DAIRY PRODUCE ' .
FURTHERMORE , THE TEXT OF THE NOTES EXPLICATIVES DU TARIF DOUANIER COMMUN RELATING TO THAT HEADING SPECIFIES THAT FOOD PREPARATIONS BASED ON ' BUTTERFAT ' COME UNDER HEADING 21.07 .
IN LISTING THE PRODUCTS INCLUDED IN HEADING 21.07 , THOSE NOTES CONFIRM , IN PARTICULAR UNDER LETTER D II , THAT THE FATS OF WHICH THE FOOD PREPARATIONS REFERRED TO IN THAT HEADING CONSIST ARE ' MILKFATS ' .
7 IN VIEW OF THIS INFORMATION THE PRODUCTS REFERRED TO IN THE QUESTION , HOWEVER THE IMPORTER MAY DESCRIBE THEM , CANNOT , BY VIRTUE OF THE FAT OF WHICH THEY MAINLY CONSIST , BE CONSIDERED AS FOOD PREPARATIONS COMING UNDER HEADING 15.13 , WHICH COVERS OTHER FATS , EITHER VEGETABLE OR ANIMAL , SUCH AS MARGARINE OR IMITATION LARD .
ALTHOUGH THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE DO NOT PRECLUDE THE INCLUSION OF MIXTURES OF ANIMAL FATS UNDER HEADING 15.13 , IT FOLLOWS FROM THE VERY WORDING OF THOSE NOTES THAT THIS CAN ONLY BE SO IN THE CASE OF MIXTURES OF WHICH MILKFAT , IN PARTICULAR BUTYRIC FAT , DOES NOT CONSTITUTE THE MAIN INGREDIENT .
FOOD PREPARATIONS CONTAINING 85 % OF BUTYRIC FAT MUST BE CONSIDERED AS MIXTURES CONSISTING MAINLY OF MILKFATS .
ANY ADDITION TO SUCH PREPARATIONS OF VEGETABLE OILS OR REFINED SUET , WHETHER OF BOVINE ANIMALS OR NOT , IS NOT ENOUGH TO JUSTIFY THEIR CLASSIFICATION UNDER HEADING 15.13 , SINCE THAT ADDITION OF A VERY SMALL PERCENTAGE DOES NOT HAVE THE EFFECT OF SUBSTANTIALLY ALTERING THE MILKFAT CONTENT OF THE PRODUCT .
MOREOVER , THE ADDITION OF SKIMMED MILK POWDER OR CURD IS ALL THE MORE LACKING IN SUCH AN EFFECT AS THOSE ADDITIVES ARE THEMSELVES PRODUCTS DERIVED FROM MILK .
8 FURTHERMORE , THIS CONCLUSION IS IN ACCORDANCE WITH THE STRUCTURE OF TARIFF HEADING 21.07 AND ITS FUNCTION WITHIN THE FRAMEWORK OF THE PROVISIONS OF THE COMMON AGRICULTURAL POLICY CONCERNING DAIRY PRODUCE AND ANIMAL OILS AND FATS .
INDEED , SINCE THE ADOPTION OF REGULATION NO 13/64 OF THE COUNCIL OF 5 FEBRUARY 1964 , THE DAIRY PRODUCE REFERRED TO IN CHAPTER 4 OF THE COMMON CUSTOMS TARIFF HAS BEEN COVERED BY A COMMON ORGANIZATION OF THE MARKET .
WITHIN THE FRAMEWORK OF THAT ORGANIZATION , THE ANNEX TO REGULATION NO 160/66 OF THE COUNCIL OF 27 OCTOBER 1966 ( JO 1966 , L 195/3361 ), ESTABLISHING TRADE ARRANGEMENTS FOR CERTAIN GOODS RESULTING FROM THE PROCESSING OF AGRICULTURAL PRODUCTS , INCLUDED ' FOOD PREPARATIONS . . . CONTAINING DAIRY PRODUCE ' AMONG THE GOODS COMING UNDER HEADING 21.07 OF THE COMMON CUSTOMS TARIFF .
ON THE OTHER HAND , ARTICLE 2 OF REGULATION NO 136/66 OF THE COUNCIL OF 22 SEPTEMBER 1966 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1965-1966 , P . 221 ), WHICH ESTABLISHED A COMMON ORGANIZATION OF THE MARKET IN OILS AND FATS OTHER THAN THOSE OBTAINED FROM MILK , EXTENDS THE AMBIT OF THAT ORGANIZATION TO THE PREPARED EDIBLE FATS OF TARIFF HEADING 15.13 .
THIS DELIMITATION OF THE RESPECTIVE AMBITS OF THE AFORESAID REGULATIONS NOS 136/66 AND 160/66 CONFIRMS THAT , WITHIN THE FRAMEWORK OF THE COMMON CUSTOMS TARIFF , FOOD PREPARATIONS CONSISTING MAINLY OF MILKFATS ARE COVERED BY TARIFF HEADING 21.07 AND THEREFORE CANNOT COME UNDER HEADING 15.13 .
9 FOR THESE REASONS , THE ANSWER TO THE FIRST QUESTION MUST BE THAT EVEN BEFORE THE ENTRY INTO FORCE OF REGULATION NO 496/69 OF THE COMMISSION OF 18 MARCH 1969 , TARIFF HEADING 15.13 OF THE COMMON CUSTOMS TARIFF WAS TO BE INTERPRETED AS NOT APPLYING TO MIXTURES OF FATS CONSISTING OF :
85 % PURE BUTYRIC FAT ( 99.5 % )
10 % REFINED SUET
5 % SESAME OIL
OR
85 % BUTYRIC FAT
5 % CURD
5 % SKIMMED MILK POWDER
5 % REFINED SUET OF BOVINE ANIMALS .
10 SINCE QUESTION 2 WAS TO BE CONSIDERED ONLY IF QUESTION 1 WAS ANSWERED IN THE AFFIRMATIVE , IT DOES NOT REQUIRE AN ANSER .
COSTS
11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 27 JULY 1976 , HEREBY RULES :
EVEN BEFORE THE ENTRY INTO FORCE OF REGULATION NO 496/69 OF THE COMMISSION OF 18 MARCH 1969 , TARIFF HEADING 15.13 OF THE COMMON CUSTOMS TARIFF WAS TO BE INTERPRETED AS NOT APPLYING TO MIXTURES OF FATS CONSISTING OF :
85 % PURE BUTYRIC FAT ( 99.5 % )
10 % REFINED SUET
5 % SESAME OIL
OR
85 % BUTYRIC FAT
5 % CURD
5 % SKIMMED MILK POWDER
5 % REFINED SUET OF BOVINE ANIMALS .
