3. Obsewations of the Government of the Federal Republic of Germany
With regard to the first question, the Government of the Federal Republic of Germany first emphasizes that the question relates not to the interpretation of the Common Customs Tariff heading mentioned, but to the interpretation of the corresponding heading in the annex to Commission Regulation No 2787/81 of 25 September 1981. In its view, and in conformity with a decision of the Federal Minister of Finance of 18 November 1982, “Knochendiinnung” [thin flank with bone] is a piece which is cut out between the eighth and the ninth ribs towards the hindquartcr and which includes the part situated around the next five ribs; “Fleischdiinnung” [boneless thin flank] includes the abdominal muscles, marked off by the thigh, by the “thin flank” with bone and, at the top, by the part of the sirloin known in Germany as “Roastbeef”.With regard to the second question the Government of the Federal Republic of Germany is of the view that an export refund should be granted for a boned or boneless cut including a piece of “thin flank” if the proportion of “thin flank” does not determine the essential nature of the cut.The regulation leaves in doubt the question of how the cuts of beef which include “thin flank”, “shin” or “shank” should be treated. A cut consisting of shin or shank and of other meat would not be shin or shank, and in the same way a cut consisting af another meat and of “thin flank”. For such cuts three solutions may be put forward:— A boned or boneless cut including “thin flank” may not be eligible for any export refund;— A boned or boneless cut including “thin flank” may be eligible for an export refund only for that part which is not “thin flank”;— A boned or boneless cut including “thin flank” may be eligible for an export refund for the whole cut, if the “thin flank” does not give the cut its essential character.The first solution was adopted in Commission Regulation (EEC) No 2773/82 of 13 October 1982 fixing the export refunds on beef and veal (Official Journal, L 292, p. 20) which, in Note 7 to the annex thereto, states that only boned cuts which do not consist, “entirely or partially, of thin flanks” are to be eligible for an export refund. That regulation, which entered into force on 1 November 1982, is not applicable in the present case. Before that regulation, the legal situation was different, or at least unclear, as the Commission itself has admitted in a telex message of 3 August 1982 to the Federal Minister of Food.The second solution mentioned above could only be based upon an express provision.Therefore, according to the German Government, the third solution must be adopted, the criterion being whether the part comprised of “thin flank” gives the cut its essential nature. In the present case reference must be made to the first part of Article 20 (1) of Council Regulation No 805/68 of 27 June 1968 which provides that the general rules for the interpretation of the Common Customs Tariff and the special rules for its application are to apply to the tariff classification of products covered by the regulation, as decided by the Court in a similar case in a judgment of 1 July 1982 (Case 145/81 Hauptzollamt Hamburg-Jonas v Ludwig Wünsche & Co [1982] ECR 2493). According to General Rule of Interpretation 3 (b) of Section I, Part A of the Common Customs Tariff, composite goods must be classified as if they consisted of the material or component which gives them their essential character. Boned or boneless cuts including “thin flank” must therefore be considered eligible for refunds where that part of the meat which is not “thin flank” gives the product its essential character. The whole of the product whose classification depends on the element which gives it its essential character must be treated as if it were composed entirely of that element.
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