1 By order of 6 April 1987, which was received at the Court Registry on 7 September 1987, the Tariefcommissie referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of headings 23.02, 23.04, 23.06 and 23.07 of the Common Customs Tariff .
2 The question was raised in proceedings brought by Cargill BV against the Inspecteur der Invoerrechten en Accijnzen concerning the classification of milled soya-bean covers .
3 Cargill BV imported a consignment of soya-bean covers into the Netherlands, describing them on the customs declaration as goods classified under subheading 23.04 B, which qualified for an exemption from duty at that time . Following an analysis of the product, the Customs and Excise Administration classified the soya covers under subheading 23.06 B, which meant that import duty of 2% ad valorem was payable .
4 Cargill BV appealed against that decision to the Tariefcommissie . That court, considering that the product in question might be classifiable not only under the Common Customs Tariff headings mentioned by the parties but also under heading 23.02 or 23.07, stayed the proceedings and referred the following question to the Court :
"Under which heading ( subheading ) of the Common Customs Tariff must the milled soya-bean covers - described in the statement of the facts - be classified?"
5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case and the observations of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
6 In order to answer the question submitted by the national court, it must be borne in mind that the product in question was described, in the main proceedings, as milled soya-bean husks ( seed coats ) and that, in the course of the main proceedings, the parties agreed to call them "soya covers ".
7 It must first be stated that soya covers cannot be classified under heading 23.07 . That heading covers "sweetened forage" and "other preparations of a kind used in animal feeding ". Soya covers are not sweetened and they are not a preparation, since they are not derived from the processing of other products or the mixing of products .
8 At the same time it must be recognized that, since soya beans are neither cereals nor leguminous vegetables, the only products referred to in heading 23.02, soya-bean covers cannot be classified under that heading .
9 As regards subheading 23.04 B, it covers residues resulting from the extraction of vegetable oils other than olive oil . It is therefore necessary to consider whether, as claimed by the plaintiff, soya covers are to be regarded as a residue resulting from the extraction of soya oil .
10 It is apparent from the documents before the Court that soya covers may be removed, depending on the method employed, either before the physical extraction of the oil (" head-end dehulling ") or after its extraction (" tail-end dehulling "). However, since the product is the same, the method employed cannot influence its tariff classification .
11 It should be recalled that, as the Court stated in its judgment of 11 March 1982 in Case 129/81 Fancon v SIAT (( 1982 )) ECR 967, it follows from the actual wording of heading 23.04 that the term "residue" is not to be confused with that of "waste ". It follows that that heading does not cover all the products which remain after the extraction of a vegetable oil . On the contrary, in order to be covered by that heading they must be products which result directly from the operation of oil extraction and not products which were already to be found in the basic product and did not undergo any change in the course of the oil-extraction process .
12 Since soya covers, whether removed from the beans before or after the physical operation of oil extraction, do not result directly from that operation, they cannot be regarded as residues resulting from the extraction of soya oil and cannot therefore be classified under subheading 23.04 B .
13 Finally, it is necessary to consider whether soya covers may be classified under subheading 23.06 B, which refers to "Products of vegetable origin of a kind used for animal food, not elsewhere specified or included : ... B . Other ".
14 It must be borne in mind that it has been acknowledged in the course of the proceedings that the only purpose for which soya covers are used is as food for animals . Since it has been established that they do not fall under a more specific heading, it follows that soya covers must be classified under subheading 23.06 B .
15 Consequently, it must be stated in reply to the question submitted by the national court that milled soya-bean covers must be classified under subheading 23.06 B of the Common Customs Tariff .
Costs
16 The costs incurred by the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings 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 ( Fourth Chamber ),
in answer to the question referred to it by the Tariefcommissie by order of 6 April 1987, hereby rules :
Milled soya-bean covers must be classified under subheading 23.06 B of the Common Customs Tariff .
