There is no doubt that previously this power in the case of products for which there were still no Community regulations was vested in Member States, whereas, in the case of goods subject to a market organization, the question — which is particularly relevant in the present case — whether this power was reserved to Member States or whether it was already vested exclusively in the Community remains to be settled.

This power in the matter of tariffs comprises the right to give binding explanations and interpretations of the various headings of a customs tariff. During the period under consideration the Government of the Federal Republic of Germany often exercised this right in connexion with the common organization of agricultural markets.

Therefore the question raised by the Bundesfinanzhof has an importance extending beyond this case. The decision which the Court is to make will have wide repercussions, because:

the solution found by the Court must be applied not only to the common organization of the market in poultry but also to the other common market organizations ;

Bollmann then defines its position with regard to the decision which has to be taken. It argues that once common organizations of agricultural markets were established powers relating to tariffs passed exclusively to the Community institutions.

It must be noted on this point that the regulations made in this context by the Community between 1962 and 1967 have already brought about, sector by sector, the tariff union of the Community established in a general way by Regulation No 950/68 of the Council which laid down the principle of this transfer of powers. In particular those regulations which were adopted in 1967 only anticipate, each in its own sector, the list of products of the common customs tariff in its definitive form. However it is possible in the case of all these regulations to state :

that the Council alone has the right to amend the list of products subject to the market organization, from which it may be concluded that the Community has exclusive jurisdiction and powers in tariff matters;

Further this transfer of powers meets the logical requirements of the system. To leave the powers relating to tariffs vested in Member States would in fact be tantamount to undermining the stability of the common organization of markets in agriculture, in particular because there would be no other way of avoiding abuses by Member States committed in the exercise of these powers. The Community legislature was fully aware of this. If the basic regulations do not expressly provide for such a transfer this is because such a transfer appeared to it to follow from the objective requirements of the system. Moreover this transfer is to be inferred from several legislative measures of the Council and the Commission.

On the other hand Community regulations do not anywhere contain similar provisions in favour of Member States. In particular, so far as the principle laid down in Articles 14 and 1 of Regulation No 22/62 is concerned, which is found in other regulations, it is necessary to note the following:

Article 14 simply imposes upon Member States the obligation to adapt their internal law to the provisions of the regulation and in no way authorizes them to adopt new legislative provisions. It could not be otherwise because of the very nature of the regulation which, in accordance with the second paragraph of Article 189 of the EEC Treaty are directly applicable in all Member States and are self-executing. This certainly does not preclude the possibility that in certain cases a specific regulation may require the adoption by Member States of internal measures for the purpose of its application but these measures must be restricted to the limits fixed by the regulation itself.

For the purpose of the application and operation of agricultural regulations Member States cannot be allowed to interpret and define the lists of products referred to in these regulations. This interpretation and definition are provided for by the general tariff provisions of the Common Customs Tariff and by the particular provisions laid down in each regulation.

Moreover recognition of the right of Member States to interpret and define the tariff headings of goods referred to by the rules of Community law would not only jeopardize the operation of the common organization of the market but would amount to a grant of jurisdiction incompatible with the principle laid down by the legislature in Article 177 of the Treaty. The questions of the extent of a tariff heading and whether a particular product comes within one market organization or another are questions of the interpretation of the relevant agricultural regulations and consequently of Community law. This interpretation is within the exclusive jurisdiction of the Community and more precisely of the Court of Justice.

In conclusion it follows from the foregoing that, as a result of the entry into force of Regulation No 22/62, all powers relating to the tariff applicable to the goods mentioned by this text have been transferred to the Community. The effect of this transfer is that the rules of law adopted by Member States for the purpose of explaining or interpreting the tariff headings contained in this regulation are therefore inapplicable to the extent to which they have been adopted after its entry into force.

With regard to the pre-existing national provisions Member States must, by virtue of the regulations themselves, adapt them to Community law. To the extent to which this adaptation is carried out they remain applicable. Those provisions, however, which have not been adopted and which prove to be incompatible with Community law, can no longer be applied by virtue of the principle lex posterior derogat legi priori.

Therefore the provisions adopted by the German authorities to define tariff heading 02.02, which were in force before Regulation No 22/62, are only applicable subject to this reservation. It is true that the question whether they conform to Community law falls within the exclusive jurisdiction of the national court and not within that of the Court of Justice under Article 177. Nevertheless the Court of Justice can indirectly play a part in deciding this issue by making use of its exclusive jurisdiction to interpret Community law against which these provisions must be tested.

Bollmann concludes its argument by stating that for these reasons the first two questions must be answered in the negative.

Regulation No 22/62 lays down the fundamental principles upon which the organization of the market in poultry meat is based and provides for the necessary criteria for the determination of the levies. But Member States have to apply and implement this regulation and are required by virtue not only of Article 14 of this regulation but also of Article 5 of the EEC Treaty to take all necessary measures for this purpose.

The question whether Member States can within these bounds also establish the distinction between and interpret the descriptions of the products referred to in this regulation can only be determined in accordance with its content. To the extent to which this regulation establishes these distinctions and interprets these descriptions Member States cannot do so themselves.

However Regulation No 22/62 refers in Article 1 to the Common Customs Tariff in the description of the various products subject to the levy. But this reference does not provide a sufficiently accurate classification of each product. For this purpose supplementary classification and definitions by Member States proved to be necessary.

The Commission, the Council and Member States proceeded therefore on the basis of the principle that it is in the first instance the task of the Member States to define and clarify in particular cases the description of products. Such a system moreover is in keeping with the development of the Community which for practical reasons could not exercise immediately and fully all its legislative powers.

The German Government concludes that the correct interpretation of Article 14 of Regulation No 22/62 read in conjunction with Article 1 thereof is that Member States, in the absence of any corresponding rules laid down by the Community, are entitled and are obliged to clarify and define at a later date by internal measures the descriptions of the products subject to the levy.

More specifically the entry into force of Regulation No 22/62 and of the implementing regulations made by the Community has withdrawn from the jurisdiction of Member States the possibility of determining the groups of products subject to the levy and the levy applicable to each product. This applies not only to the national provisions derogating from these regulations but also to the supplementary rules of interpretation under national law to the extent to which their object is, in the event of difficulties arising in defining the limits of the descriptions of products, to classify with one of the headings determining the applicable levy.

The descriptions of products in the said regulations are in fact independent concepts of Community law. The national legislatures could not be given the freedom to decide, in accordance with their own criteria, the tariff classification of any particular product, because if they were given such freedom, they would in practice be allowed to manipulate unilaterally the levy on the importation of that product, and in that way to frustrate the uniform application of the Community system of levies. The interpretation and the substantive definition of the limits of these concepts must be a matter for Community law and are in the final resort the responsibility of the Court of Justice.

Regulation No 22/62 as well as the other regulations made at the same time which establish the common organizations of the markets only confirm this requirement. They are based on the principle that it is the task of the Community to adopt a number of measures having general application and they leave to Member States the task and duty of taking, in conformity with Article 5 of the EEC Treaty, the principal measures necessary for the establishment of the common organizations of the markets. Article 14 of Regulation No 22/62 falls exactly within this context. Far from granting Member States powers going beyond this jurisdiction, its object was simply to acknowledge the powers which they have to exercise in conformity with Article 5 of the Treaty.

There is no doubt that the nature, content and extent of the measures taken by Member States to put into effect the common organizations of markets established by the Community regulations are determined having regard to the requirements inherent in the structure and the distribution of the tasks of the common organization which is planned and also depend upon the former structure of the market.

The need to adapt national organizations at the right time to the new system established by a common organization of the market was much more apparent in those cases where wide powers to take decisions had been granted to Member States than in cases such as that of the system established by Regulation No 22/62, where in practice there was virtually no scope for independent action to be initiated by Member States. In fact by virtue of this regulation it is the Commission which fixes for each Member State the amounts of the levy and all the rules to be applied for their calculation. On the other hand it is for the Member States to ensure that this calculation is done, that the amounts are converted into national currency and are collected.

By virtue of the above-mentioned general principle such a system of rules denies to the Member States the power to invoke independent rules for the interpretation of the Community descriptions of products employed by Regulation No 77/62 with the object of classifying them according to their own criteria under a particular heading for the purpose of applying the levies to them. Article 14 of Regulation No 22/62 can only confirm that this is so.

The question may nevertheless be asked whether Member States can adopt measures which, without calling in question the uniform interpretation of Community descriptions of goods, are limited to facilitating their application by the competent authorities.

On this point there is no doubt that Member States, in order to facilitate the application of the Community system by national authorities, could regroup under a single tariff levy all the agricultural products which the common organizations of markets in force at that time had made subject to the levy, provided that the Community had not already done so. Such a tariff like any customs tariff can only describe the numerous goods referred to in a very general way by enumerating their distinctive features according to their class and type. The need to guarantee legal certainty and to determine or to predict different import duties makes it imperative that this nomenclature be interpreted and that it be completed by the necessary clarification in the form of more detailed subdivisions or by reliable rules of tariff classification and interpretation.

On the date of importation of the turkey rumps in this case, apart from the Rules for the interpretation of the Customs Tariff contained in the Decision of the Council of 13 February 1960 and the explanatory notes to the Brussels Nomenclature, the only provisions which could have been used as basic Community rules for the application and interpretation of the tariff of levies were those contained in Article 8 of Regulation No 77/62.

On the other hand Regulation No 22/72 and its implementing provisions are part of the first measures which replaced national import duties by a uniform system of levies. To begin with the national authorities were not familiar with the new system and binding directions on the correct way of applying it were therefore necessary.

The Commission's conclusion is that the answer to the first two questions must be that the national legislature in each Member State was authorized to adopt provisions intended to clarify the generalized descriptions of the goods employed in Regulations No 22/62 and 72/62 to distinguish the products subject to levy. It goes without saying, however, that Community law also takes precedence over such national provisions. Their content is limited by the wording and purpose of the Community descriptions of the goods for which an interpretation is necessary and they cannot call in question the uniform and independent interpretation of Community law.

Regulation No 136/62 also divided poultry cuts into two sub-headings backs and necks and all other poultry cuts, to the first of which a lower conversion factor was applied than the one applied to the second. Finally Regulation No 79/66 (Article 2) subsequently divided the category poultry cuts into several sub-categories of which the last one includes, inter alia, rumps. The latter are therefore classified in the category poultry cuts but it is no less true that a conversion factor is applied to them which makes them correspond more nearly to the category of edible offals referred to in Article 3 of this regulation. As Regulation No 79/66 was not yet in force when the disputed question arose, it cannot be used to interpret the expressions applied by Regulations Nos 77/62 and 136/62, but it can make it easier to interpret these regulations, since it clearly indicates that in the opinion of the Commission rumps by reason of the conversion factor applicable to them must in practice be regarded as edible offals.

Therefore it must be assumed that the expression edible offals referred to in Regulation No 77/62, as amended by Regulation No 136/62, must be construed as covering by-products the value of which does not in any case exceed that of backs and necks.

However turkey rumps are in fact offals of little value, not only from the zoological and technical point of view but also having regard to their price which is much lower than that of turkey backs.

On the other hand the interpretation of the distinction between poultry cuts and offals is not that the first of these categories applies to parts of the truncus, whereas the second category is reserved for the other parts of the bird. On this basis the neck could no longer be considered as a poultry cut since zoologically it does not form part of the truncus.

If the Community legislature had intended to draw such a distinction between these two categories they would have expressly mentioned it in the regulations. In the absence of any such distinction the diffeence between the said categories must be based on their respective values. These values can in turn only be determined by ascertaining how the categories are rated in the trade which classifies turkey rumps because of their low commercial value in the category edible offals.

Bollmann's conclusion is that the expression edible offals within the meaning of Article 1 of Regulation No 22/62 and Article 3 of Regulation No 77/62 covers all the byproducts left after poultry has been cut into pieces which have a lower commercial value than backs and necks which are regarded in the trade as offals. Rumps are included in this expression.

It is impossible to find any rules based on trade customs defining what the ratio in weight must be between the rump and the back. There must be therefore cases where a larger part of the back is cut in order to form the rump properly so-called.

Moreover the fact that rumps of other animals (Nos 01.01 to 01.04 of the Common Customs Tariff) are classified in all the Member States as edible offals is not relevant in this case, since the meat and fat content of turkey rumps is not comparable to that of other rumps and cannot be regarded as the continuation of the spine of the animal.

The German Government concludes that turkey rumps are backs (or parts of backs) or Other poultry parts' within the meaning of Article 2 of Regulation No 77/62 as amended by Article 1 of Regulation No 136/62.

In order to classify the disputed goods the expressions offals and poultry cuts must be given their normal meaning. In this connexion what matters is what is meant by offals obtained in the normal course of preparing products of saleable quality and not the customary views of the average consumer.

The Commission then examines the question whether within this category, the disputed goods are to be classified as coming under backs and necks or other cuts of poultry. It submits on this point:

that it must not be forgotten that Regulation No 136/62, which was intended to avoid the difficulties arising out of the previous system, in which the amount of the levies prescribed for poultry cuts' (a heading which includes products of greatly varying quality) was fixed per unit of weight, introduced for the first time a sub-heading within this category with the object of taking into account the commercial value of each of the products in question. It therefore fixed a lower conversion factor for backs and necks and retained the original conversion factor for other poultry cuts;

The Commission concludes therefore that turkey rumps had to be classified on 12 November 1962 in the category of backs and necks within the meaning of Article 2(a) of Regulation No 77/62 as amended by Regulation No 136/62.