Judgment of the Court (Ninth Chamber) of 10 September 2026.#Skatteministeriet v FF Skagen A/S.#Request for a preliminary ruling from the Vestre Landsret.#Reference for a preliminary ruling – Customs union – Regulation (EEC) No 2658/87 – Common Customs Tariff – Tariff classification – Combined Nomenclature – Headings 0302 and 0511 – Concept of ‘fish unfit for human consumption by reason of either their species or condition’ – Scope – Fish and fish offcuts.#Case C-406/25.

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

10 September 2026 (*)

( Reference for a preliminary ruling – Customs union – Regulation (EEC) No 2658/87 – Common Customs Tariff – Tariff classification – Combined Nomenclature – Headings 0302 and 0511 – Concept of ‘fish unfit for human consumption by reason of either their species or condition’ – Scope – Fish and fish offcuts )

In Case C‑406/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Vestre Landsret (High Court of Western Denmark), made by decision of 11 April 2025, received at the Court on 16 May 2025, in the proceedings

Skatteministeriet

v

FF Skagen A/S,

THE COURT (Ninth Chamber),

composed of M. Condinanzi, President of the Chamber, N. Jääskinen and A. Kornezov (Rapporteur), Judges,

Advocate General: A. Biondi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        FF Skagen A/S, by S. Andersen and L. Kjær, advokater,

–        the Danish Government, by C. A.-S. Maertens, acting as Agent, and by B. Søes Petersen, advokat,

–        the European Commission, by A. Demeneix and M.-L. Ehlers Defontaine, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of note 1(c) to Chapter 3 of Part Two of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), in the version applicable to the facts in the main proceedings (‘the CN’).

2        The request has been made in proceedings between the Skatteministeriet (Ministry of Taxation, Denmark) and FF Skagen A/S, a company incorporated under Danish law, concerning the tariff classification of fish and fish offcuts which that company imports.

 Legal context

 International law

3        The Harmonized Commodity Description and Coding System (‘the HS’) was drawn up by the Customs Co-operation Council, now the World Customs Organization (WCO), established by the Convention establishing a Customs Co-operation Council, concluded in Brussels on 15 December 1950. The HS was established by the International Convention on the Harmonized Commodity Description and Coding System, concluded in Brussels on 14 June 1983 (United Nations Treaty Series, Vol. 1503, p. 4, No 25910 (1988)), and approved, with its protocol of amendment of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1) (‘the HS Convention’).

4        The WCO approves, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee established by Article 6 of that convention.

5        Under Article 3(1)(a) of the HS Convention, each Contracting Party undertakes that its customs tariff and statistical nomenclatures will be in conformity with the HS, first, by using all the headings and subheadings of the HS without addition or modification, together with their related numerical codes, second, by applying the General Rules for the interpretation of the HS and all the Section, Chapter and Subheading Notes without modifying their scope, and, third, by following the numerical sequence of the HS.

 European Union law

 The CN

6        As is apparent from Article 1(1) and (3) of Regulation No 2658/87, the CN governs the tariff classification of goods imported into the European Union. Under Article 3(1) of that regulation, the CN reproduces the six-digit headings and subheadings of the HS, with only the seventh and eighth digits creating subdivisions which are specific to the CN.

7        The general rules for the interpretation of the CN, which are set out in Part One, Section I(A) of the CN, provide:

‘Classification of goods in the [CN] shall be governed by the following principles:

1.      The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

…

6.      For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’

8        Part Two of the CN, entitled ‘Schedule of Customs Duties’, contains Section I, entitled ‘Live animals; animal products’, which contains Chapter 3, entitled ‘Fish and crustaceans, molluscs and other aquatic invertebrates’, and Chapter 5, entitled ‘Products of animal origin, not elsewhere specified or included’.

9        Chapter 3 contains note 1, which provides:

‘This chapter does not cover:

…

(c)      fish (including livers, roes and milt thereof) or crustaceans, molluscs or other aquatic invertebrates, dead and unfit or unsuitable for human consumption by reason of either their species or their condition (Chapter 5); flours, meals or pellets of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption (heading 2301); …

…’

10      The schedule of customs duties in Chapter 3 of Part Two of the CN contains the following headings:

11      Chapter 5 of Part Two of the CN contains note 1, which states:

‘This chapter does not cover:

(a)      edible products (other than guts, bladders and stomachs of animals, whole and pieces thereof, and animal blood, liquid or dried);

…’

12      The schedule of customs duties in Chapter 5 contains the following headings:

 Regulation (EC) No 178/2002

13      Article 14 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1) provides:

‘1.      Food shall not be placed on the market if it is unsafe.

2.      Food shall be deemed to be unsafe if it is considered to be:

(a)      injurious to health;

(b)      unfit for human consumption.

…

5.      In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.’

 Regulation (EC) No 852/2004

14      Article 1(1) of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (OJ 2004 L 139, p. 1, and corrigendum OJ 2004 L 226, p. 3) provides:

‘This Regulation lays down general rules for food business operators on the hygiene of foodstuffs …’

15      Article 2(1) of that regulation is worded as follows:

‘For the purposes of this Regulation:

(a)      “food hygiene”, hereinafter called “hygiene”, means the measures and conditions necessary to control hazards and to ensure fitness for human consumption of a foodstuff taking into account its intended use;

…

(f)      “contamination” means the presence or introduction of a hazard;

…’

16      Under Article 3 of that regulation:

‘Food business operators shall ensure that all stages of production, processing and distribution of food under their control satisfy the relevant hygiene requirements laid down in this Regulation.’

 Regulation (EC) No 853/2004

17      Article 1(1) of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139, p. 55) provides:

‘This Regulation lays down specific rules on the hygiene of food of animal origin for food business operators. These rules supplement those laid down by [Regulation No 852/2004]. They shall apply to unprocessed and processed products of animal origin.’

18      Under Article 3(1) of Regulation No 853/2004:

‘Food business operators shall comply with the relevant provisions of Annexes II and III.’

19      Annex III to that regulation includes Section VIII, entitled ‘Fishery products’, which includes, inter alia, requirements applicable to vessels, requirements to be complied with during and after landing of fishery products, requirements applicable to establishments, including vessels, in which those products are handled, health standards applicable to those products, and requirements relating to the storage of thawed unprocessed fishery products and fresh fishery products to which food additives have been added in accordance with EU legislation.

20      That section contains several requirements relating to the temperature of fishery products. Among those requirements, point 1 of Part I.B of Chapter I of that section, read in conjunction with point 1 of Chapter VII thereof, provides that vessels designed and equipped to preserve fresh fishery products for more than 24 hours must be equipped with equipment for the storage of fishery products at a temperature approaching that of melting ice. Point 3 of Part I.B of Chapter I provides, inter alia, that, where fishery products are chilled in cooled clean seawater, the vessels, holds or containers must ensure a uniform temperature and must achieve a chilling rate that ensures that the mix of fish and clean seawater does not reach more than 3 °C 6 hours after loading or 0 °C after 16 hours. Under point 1(b)(ii) of Chapter II of that section, read in conjunction with point 1 of Chapter VII thereof, food business operators responsible for unloading and landing, inter alia, fresh fishery products and thawed unprocessed fishery products must avoid contamination of those products during unloading and landing by placing them without delay in a protected environment at a temperature approaching that of melting ice. It follows from point 1 of Chapter VII and point 1(a) of Chapter VIII of that section that, when those products are stored and transported, food business operators carrying out those operations must ensure that those products are maintained at a temperature approaching that of melting ice.

21      Point C of Chapter V of Section VIII of Annex III to Regulation No 853/2004 provides, inter alia, that unprocessed fishery products are not to be placed on the market if chemical tests reveal that the limits with regard to total volatile basic nitrogen (TVB-N) have been exceeded.

 Regulation (EC) No 854/2004

22      Under Article 7 of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ 2004 L 139, p. 206), Member States are to ensure that official controls with respect to fishery products take place in accordance with Annex III to that regulation, entitled ‘Fishery products’.

23      Point 4 of Chapter III of that annex provided that fishery products are to be declared unfit for human consumption if the competent authority considers that they may constitute a risk to public or animal health or are for any other reason not suitable for human consumption.

 Regulation No 2074/2005

24      Point 1 of Chapter I of Section II of Annex II to Commission Regulation (EC) No 2074/2005 of 5 December 2005 laying down implementing measures for certain products under Regulation No 853/2004 and for the organisation of official controls under Regulation No 854/2004 and Regulation (EC) No 882/2004 of the European Parliament and of the Council, derogating from Regulation No 852/2004 and amending Regulations No 853/2004 and No 854/2004 (OJ 2005 L 338, p. 27), as amended by Commission Regulation (EC) No 1022/2008 of 17 October 2008 (OJ 2008 L 277, p. 18) (‘Regulation No 2074/2005’), provides:

‘Unprocessed fishery products shall be regarded as unfit for human consumption where organoleptic assessment has raised doubts as to their freshness and chemical checks reveal that the following TVB-N limits are exceeded:

(a)      25 mg of nitrogen/100 g of flesh for the species referred to in point 1 of Chapter II;

(b)      30 mg of nitrogen/100 g of flesh for the species referred to in point 2 of Chapter II

(c)      35 mg of nitrogen/100 g of flesh for the species referred to in point 3 of Chapter II;

…’

25      Chapter II of Section II of Annex II to that regulation is worded as follows:

‘1.      Sebastes spp., Helicolenus dactylopterus, Sebastichthys capensis.

2.      Species belonging to the Pleuronectidae family (with the exception of halibut: Hippoglossus spp.).

3.      Salmo salar,  species belonging to the Merlucciidae family, species belonging to the Gadidae family.’

 Regulation No 1333/2008

26      Having regard to the date of the facts in the main proceedings, Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (OJ 2008 L 354, p. 16) is applicable both in the version resulting from the amendments made by Commission Regulation (EU) 2015/647 of 24 April 2015 (OJ 2015 L 107, p. 1) (‘Regulation No 1333/2008’) and in its earlier version. However, the provisions relevant to that dispute have not been substantially amended, with the result that it is appropriate to refer to the provisions resulting from those amendments.

27      Article 5 of Regulation No 1333/2008 states:

‘No person shall place on the market a food additive or any food in which such a food additive is present if the use of the food additive does not comply with this Regulation.’

28      Under Article 15 of that regulation:

‘Food additives shall not be used in unprocessed foods, except where such use is specifically provided for in Annex II.’

29      Point 2 of Part A of Annex II to that regulation, entitled ‘General provisions on listed food additives and conditions of use’, is worded as follows:

‘1.      Only the substances listed in Part B, …, may be used as additives in foods, unless more specifically provided for in Part E.

2.      Additives may only be used in the foods and under the conditions set out in Part E of this Annex.

3.      In Part E of this Annex, foods are listed on the basis of food categories set out in Part D of this Annex and additives are grouped on the basis of definitions set out in Part C of this Annex.

…’

30      Acetic acid is listed in Part B of that annex. Unprocessed fish and fishery products and processed fish and fishery products, including molluscs and crustaceans, are listed in Part D of that annex. In Part E of that annex, acetic acid is not one of the additives referred to for those categories of foodstuffs.

 Regulation (EC) No 1069/2009

31      Article 3 of Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1) provides:

‘For the purposes of this Regulation, the following definitions shall apply:

1.      “animal by-products” means entire bodies or parts of animals, products of animal origin or other products obtained from animals, which are not intended for human consumption, including oocytes, embryos and semen;

…’

32      Under Article 7(1) of that regulation:

‘Animal by-products shall be categorised into specific categories which reflect the level of risk to public and animal health arising from those animal by-products, in accordance with the lists laid down in Articles 8, 9 and 10.’

33      Article 10 of that regulation states:

‘Category 3 material shall comprise the following animal by-products:

(a)      carcases and parts of animals slaughtered or, in the case of game, bodies or parts of animals killed, and which are fit for human consumption in accordance with Community legislation, but are not intended for human consumption for commercial reasons;

…’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

34      FF Skagen imported, primarily from Norway, fish and fish offcuts which it used to produce fish meal, fish oil and other animal feed products.

35      On 10 November 2016, the Toldstyrelsen (Customs Agency, Denmark) carried out an inspection of imports of whole fish of the species blue whiting, capelin, sand eel, argentine, silvery pout and horse mackerel, declared by FF Skagen as falling within Chapter 5 of Part Two of the CN.

36      In the course of that inspection, the Customs Agency asked the testing institute Force Technology (Denmark) to analyse samples of some of those fish and to indicate whether or not they were fit for human consumption, in order to verify their tariff classification.

37      On the basis of a visual and sensory evaluation of those samples, that institute took the view that the catches in three of the four samples analysed were fit for human consumption, whereas those in the fourth sample were not fit for human consumption, in particular because of a very unpleasant odour.

38      That institute described the samples which it regarded as fit for consumption as whole, without intestines or heads removed. In addition, it classified some of those samples as heterogeneous, stating, inter alia, that some fish appeared to be in good condition, while others had been flattened or had the skin scraped off, and that they were missing eyes, heads or tails.

39      It is apparent from the purchase agreements concluded by FF Skagen relating to the catches analysed and considered to be fit for human consumption that the fish were preserved on board vessels for a period of up to eight days, calculated between the first catch and landing, that preservation having been carried out by adding acetic acid or ‘acid’, without further specification. In addition, the average TVB-N value of those catches, obtained from multiple sampling of individual catches, was between 14 and 30 mg/100 g. One of the 10 samples used to determine the average TVB-N value of the catches had a value of 40 mg/100 g, while the other 9 samples taken from the same catch had values between 27 and 33 mg/100 g.

40      In addition to the catches in the three samples considered fit for human consumption by the testing institute, FF Skagen had, during the inspection period, imported other catches, the average TVB-N value of which, measured by that institute, was less than 35 or 60 mg/100 g, depending on the species of fish concerned. However, that value varied, with one sample measuring as high as 82 mg/100 g. Those latter catches were preserved on board vessels for a period of up to 12 days, calculated between the first catch and landing, by means of a mixture of chilled freshwater or seawater and acetic acid or an unspecified type of acid. The temperature of the water in which those catches had been preserved varied from one consignment to another and reached 8.6 °C at the time of landing. In response to a request from FF Skagen, the Danish food authorities stated that, in their view, the use of acetic acid as a preservative for the catches at issue in the main proceedings had rendered them unfit for human consumption, irrespective of their TVB‑N value.

41      The Danish customs authorities decided on 19 February 2018 that the whole fish and fish offcuts imported by FF Skagen during the inspection period from 1 January 2015 to 30 November 2017 should be classified in Chapter 3 of Part Two of the CN if the average TVB-N value of each consignment, as measured by that company, was less than 35 mg/100 g for species belonging to the Gadidae family, including fish offcuts, and less than 60 mg/100 g for all other species.

42      That company brought an action against the decision of those authorities before the Landsskatteretten (National Tax Tribunal, Denmark).

43      On 6 August 2020, that authority took the view that, because of their storage in water with added acetic acid prior to their customs clearance, the imported whole fish and fish offcuts were unfit for human consumption due to their condition during the customs clearance. For that reason, it excluded them from classification in Chapter 3 of Part Two of the CN in accordance with note 1(c) to that chapter. According to that authority, the fish should have then been classified under Chapter 5 of Part Two of the CN, under subheading 0511 91 90, in accordance with general rules 1 and 6 for the interpretation of the CN, which appear in Part One, Section I(A), of the CN.

44      The Ministry of Taxation brought an action before the Vestre Landsret (High Court of Western Denmark), which is the referring court, against the decision of the National Tax Tribunal, arguing that the fish and fish offcuts at issue in the main proceedings should be classified under heading 0302 of the CN.

45      That court considers that there is doubt as to whether those goods fall within Chapter 3 of Part Two of the CN or Chapter 5 of Part Two thereof.

46      In that regard, the referring court notes that all the catches at issue in the dispute before it were purchased under contracts concluded with a view to the use of those catches in the industrial production of fish meal and fish oil and not for human consumption. By signing such contracts, FF Skagen undertook to use the fish for the purposes for which they had been purchased.

47      According to the referring court, the addition of acid is intended to reduce the development of TVB-N in fish. TVB-N is an indicator of fish spoilage; the higher the TVB-N value, the greater the degree of spoilage in the fish. The limits for TVB-N values are set out in point 1 of Chapter I of Section II of Annex II to Regulation No 2074/2005. That court also observes that Regulation No 178/2002 does not authorise the marketing of unprocessed fishery products intended for human consumption if acetic acid or another acid has been added to them. In addition, Regulation No 853/2004 provides that fish must be refrigerated immediately after landing at a temperature approaching that of melting ice.

48      As regards the frozen fish offcuts imported by FF Skagen, the referring court states that one of the consignments concerned is accompanied by a model commercial document for the transport of animal by-products and processed products not intended for human consumption, drawn up pursuant to Regulation No 1069/2009. That document stated that the offcuts at issue were certified for animal feed and that they were by-products falling under subheading 0511 91 10, entitled ‘Fish waste’, of the CN. In that document, those offcuts were listed as ‘Category 3a’ material, which includes ‘carcasses and parts of animals slaughtered … which are fit for human consumption under Community legislation but which, for commercial reasons, are not intended for such consumption’, within the meaning of Article 10(a) of that regulation. After the fish had been caught and during transport, those offcuts were treated in accordance with the rules laid down in that regulation and not those laid down in Regulation No 852/2004.

49      In those circumstances the Vestre Landsret (High Court of Western Denmark) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must note 1(c) to Chapter 3 [of Part Two of the CN] be interpreted as meaning that Chapter 3 does not cover goods such as those at issue in the main proceedings?

(2)      The Court is requested to clarify whether any of the following have a bearing on the answer to the question referred:

(a)      the addition of acetic acid or any other acid to the goods, including whether it is relevant that acetic acid, which according to the manufacturer’s information is not approved for human consumption, has been added to the goods;

(b)      the average TVB-N value of the goods exceeds [the limit values of] 25 to 35 [laid down in Regulation No 2074/2005];

(c)      the goods are stored in bulk, where parts of the fish have a TVB-N level exceeding the level authorised pursuant to [Regulation No 2074/2005];

(d)      the goods have not been handled in accordance with the legislation on food hygiene, including:

(i)      [Regulation No 178/2002,]

(ii)      [Regulation No 852/2004,]

(iii)      [Regulation No 853/2004,]

(iv)      [Regulation No 854/2004,]

(v)      [Regulation No 1333/2008,]

(vi)      [Regulation No 1069/2009];

(e)      according to the commercial documents, the goods were taken by the catching vessel, offered for sale and sold exclusively for the industrial production of animal feed and not for human consumption[;]

(f)      according to the Danish food authorities, as a result of the addition of acetic acid, the goods are not fit for human consumption, irrespective of their TVB-N value[;]

(g)      the goods are imported into the European Union as by-products under [Regulation No 1069/2009]. The Court is requested in that connection to clarify which documentation is required for goods to be deemed a by-product under [Regulation No 1069/2009].’

50      On a proposal from the President, after hearing the Vice-President and the First Advocate General, the Court decided to enter in its register the present request for a preliminary ruling. This request does not relate exclusively to a specific matter referred to in point (d) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union.

 Consideration of the questions referred

51      By those questions, which it is appropriate to examine together, the referring court asks, in essence, whether the CN must be interpreted as meaning that heading 0302, entitled ‘Fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304’, or heading 0511, entitled ‘Animal products not elsewhere specified or included; dead animals of Chapter 1 or 3, unfit for human consumption’, covers:

–        whole fish, which have been preserved on board catching vessels for a long period through the addition of acetic acid or another acid at a variable temperature which may exceed the limits laid down by EU legislation on the hygiene of foodstuffs, which have varying TVB-N values, some of which exceed the limits laid down by that legislation, which have been stored in bulk, which have not been handled in accordance with the rules set out in that legislation, and the accompanying commercial documents of which indicate that they have been caught and sold for the production of animal feed; and

–        fish offcuts which have not been handled in accordance with the rules set out in that legislation and the accompanying commercial documents of which indicate that they are animal by-products fit for human consumption but which, for commercial reasons, are not intended for such consumption, and that they have been produced and sold for the production of animal feed.

52      As a preliminary point, it should be noted that, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national courts with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself. The description, for classification purposes, of the goods at issue is the result of a purely factual finding which it is not for the Court to make in the context of a reference for a preliminary ruling (judgment of 1 August 2025, Keesing Deutschland, C‑375/24, EU:C:2025:624, paragraph 37 and the case-law cited).

53      That being said, it must be pointed out that, in accordance with general rule 1 for the interpretation of the CN, classification of goods is to be determined according to the terms of the headings and any relative section or chapter notes to that nomenclature (judgment of 1 August 2025, Keesing Deutschland, C‑375/24, EU:C:2025:624, paragraph 38).

54      In the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is, in general, to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the section or chapter notes (judgment of 1 August 2025, Keesing Deutschland, C‑375/24, EU:C:2025:624, paragraph 39 and the case-law cited).

55      The intended use of a product may constitute an objective criterion for classification if it is inherent in the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (judgment of 22 June 2023, PR Pet, C‑24/22, EU:C:2023:507, paragraph 53 and the case-law cited). However, the intended use of a product is a relevant criterion only where the classification cannot be made on the sole basis of the objective characteristics and properties of the product (judgment of 16 February 2017, Aramex Nederland, C‑145/16, EU:C:2017:130, paragraph 23 and the case-law cited).

56      In the present case, it is common ground that the goods at issue come under Section I of Part Two of the CN, entitled ‘Live animals; animal products’.

57      That section is divided into five chapters, including Chapter 3, entitled ‘Fish and crustaceans, molluscs and other aquatic invertebrates’, which contains heading 0302, entitled ‘Fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304’, and Chapter 5, entitled ‘Products of animal origin, not elsewhere specified or included’, contains heading 0511, entitled ‘Animal products not elsewhere specified or included; dead animals of Chapter 1 or 3, unfit for human consumption’. It is clear from the wording of that Chapter 5 that it concerns products which correspond to none of the descriptions in the other four chapters of that section. In addition, note 1(a) to that Chapter 5 states that it does not cover edible products, other than guts, bladders and stomachs of animals, and animal blood (see, by analogy, judgment of 16 July 2009, Pärlitigu, C‑56/08, EU:C:2009:467, paragraph 25).

58      Note 1(c) to Chapter 3 of Part Two, Section I, of the CN states that that chapter does not cover fish unfit for human consumption by reason of either their species or their condition. It is therefore clear from the wording of that note that the decisive criterion for determining whether fish come under Chapter 3 lies in whether or not they are fit for human consumption. Under those circumstances, the determinant question is whether, at the time that they were cleared through customs, the goods at issue in the main proceedings were fit for human consumption (see, to that effect, judgment of 16 July 2009, Pärlitigu, C‑56/08, EU:C:2009:467, paragraph 27 and the case-law cited).

59      In order to establish whether a product is fit or unfit for human consumption, within the meaning of that note, all the factors that relate to the objective characteristics and properties inherent in that product must be taken into account (see, to that effect, judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraphs 42 and 57 and the case-law cited).

60      It should be noted, in the first place, that, in the present case, the referring court refers to various factors relating to the way in which the goods at issue in the main proceedings were treated prior to their customs clearance, such as the addition of acetic acid or another acid, their storage in bulk and handling which did not comply with the food hygiene rules, a high TVB-N value, a high temperature and a long period of preservation, questioning, in essence, whether there is a risk to human health resulting from the possible contamination or decomposition of those goods, thus rendering them unfit for human consumption.

61      In that regard, it should be noted that such factors relate to the objective characteristics and properties inherent in the goods at issue in the main proceedings and are therefore capable of determining whether they are fit or unfit for human consumption.

62      The Court has already held that the fact that, by reason of the characteristics of the process for its production, the presence, in a product, of substances which are harmful to human health cannot be excluded is a relevant factor which is capable of justifying the classification of such a product as ‘inedible’, in the light of its objective characteristics and properties (see, to that effect, judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraphs 43 and 48).

63      In addition, it must be borne in mind that the information provided by the producer of the product at issue is, in principle, capable of establishing the objective characteristics and properties of that product (see, to that effect, judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraphs 44, 47 and 50).

64      Similarly, the Court has noted that the decomposition or spoilage of animal materials gives rise to toxins which, as a rule, render those materials unfit for human consumption and also create a risk, inter alia, to human health (see, to that effect, judgment of 2 September 2021, Toropet, C‑836/19, EU:C:2021:668, paragraph 60).

65      In the second place, the referring court questions whether, in order to determine whether the catches at issue in the main proceedings are ‘unfit for human consumption’, it is permissible to take account of EU legislation on foodstuffs and food hygiene.

66      In that regard, it should be noted that, as noted in paragraph 54 above, the decisive criterion for the classification of goods for customs purposes is, in general, to be found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes. The Court has thus specified – with regard to the relevance, for the purposes of the tariff classification of goods, of EU food law and, in particular, of the prohibition on the placing on the market of ‘food which is unsafe’, set out in Article 14 of Regulation No 178/2002 – that the tariff classification of goods on the date of their customs clearance is a matter for the national customs authorities, which apply, in that regard, inter alia, the provisions of the CN (see, to that effect, judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraph 52).

67      It follows that the EU legislation on foodstuffs and food hygiene cannot, by itself, be decisive for the classification of goods under a given heading of the CN, but nevertheless constitutes one factor among others to be taken into consideration for that purpose (see, to that effect, judgments of 4 March 2015, Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 53; of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraph 56; and of 15 December 2016, LEK, C‑700/15, EU:C:2016:959, paragraph 36).

68      Thus, in the present case, first, account may be taken of the fact, mentioned in the order for reference, inter alia, in points (a) and (f) of the second question, that acetic acid or another acid, which according to the manufacturer’s information is not approved for human consumption, has been added to the catches at issue in the main proceedings, which are unprocessed fish, and whereas it is apparent from a combined reading of Articles 5 and 15 of Regulation No 1333/2008 and Annex II thereto that that regulation does not permit the marketing, as foodstuffs, of unprocessed fish and fishery products containing such additives.

69      The same is true of the fact, mentioned by the referring court, inter alia, in the context of point (f) of the second question, that the Danish food authorities considered that the addition of acetic acid to the catches at issue in the main proceedings had made them ‘unfit for human consumption’. It follows from point 4 of Chapter III of Annex III to Regulation No 854/2004 that fishery products are to be declared unfit for human consumption if the competent authority considers that they may constitute a risk to public or animal health or are for any other reason unfit for human consumption.

70      Second, account may also be taken of the fact, referred to in point (b) of the second question, that the average TVB-N value of some of the catches at issue in the main proceedings exceeded the limit values laid down in point 1 of Chapter I of Section II of Annex II to Regulation No 2074/2005.

71      In that regard, that provision provides that unprocessed fishery products are to be regarded as unfit for human consumption, within the meaning of Regulation No 853/2004, where organoleptic assessment has raised doubts as to their freshness and chemical checks reveal that the TVB-N limits have been exceeded. Point 1(a) to (c) of Chapter I of Section II of Annex II to Regulation No 2074/2005 lays down TVB-N limits of 25, 30 and 35 mg of nitrogen/100 g of flesh, respectively, depending on the species of fish referred to in Chapter II of Section II of Annex II to that regulation.

72      It is apparent from the information provided by the referring court that it was established that the products at issue in the main proceedings included fish with TVB-N values that exceeded those limits, which suggests an advanced state of decomposition and therefore a risk to human health in the event of consumption.

73      Third, the fact, mentioned in point (c) of the second question, that the fish at issue in the main proceedings, including individual fish with a TVB-N value that exceeded the limits laid down in point 1 of Chapter I of Section II of Annex II to Regulation No 2074/2005, had been stored in bulk is also a relevant factor capable of indicating the existence of a risk to human health, namely that of microbiological or other contamination of all the fish, inter alia by the fish in an advanced state of decomposition.

74      Fourth, the fact, mentioned inter alia in point (d) of the second question, that the treatment of fish and fish offcuts at issue in the main proceedings did not comply with the EU legislation on food hygiene is also relevant, since that legislation relates specifically to the dangers that foodstuffs may pose to health.

75      In particular, it follows from a combined reading of Article 1(1), Article 2(1)(a) and Article 3 of Regulation No 852/2004 that that regulation lays down the general rules on the ‘hygiene’ of foodstuffs, namely the measures and conditions necessary to control hazards and to ensure fitness for human consumption of a foodstuff taking into account its intended use, which food business operators must comply with at all stages of production, processing and distribution of food under their control. In addition, it is apparent from Article 2(1)(f) and several provisions of the annexes to that regulation that it concerns, inter alia, protection against the ‘contamination’ of foodstuffs, namely the presence or introduction of a hazard.

76      In addition, it is apparent from Article 1(1) of Regulation No 853/2004 that that regulation lays down specific rules on the hygiene of food of animal origin for food business operators which supplement those laid down in Regulation No 852/2004 and are to apply to processed or unprocessed products of animal origin. Under Article 3(1) of Regulation No 853/2004, food business operators are to comply, inter alia, with the relevant provisions of Annex III to that regulation.

77      Section VIII, entitled ‘Fishery products’, of that Annex III contains, inter alia, requirements for vessels, requirements during and after landing of those products, requirements for establishments, including vessels, handling those products, health standards for those products and requirements for their storage. Section VIII also contains several requirements relating to the temperature of fishery products, including those laid down in points 1 and 3 of Part I.B of Chapter I, point 1(b)(ii) of Chapter II, point 1 of Chapter VII and point 1(a) of Chapter VIII thereof, which are intended, in essence, to ensure, inter alia, that fresh fishery products and thawed unprocessed fishery products are maintained, during storage and transport, including unloading and landing, at a temperature approaching that of melting ice.

78      Furthermore, Part C of Chapter V of Section VIII of Annex III to Regulation No 853/2004 prohibits the placing on the market of products exceeding the TVB-N value limits laid down in Regulation No 2074/2005.

79      In those circumstances, it must be held that non-compliance with EU legislation on the hygiene of foodstuffs may have an effect on whether a product presents a risk to human health, in particular because of possible contamination or because of its state of decomposition, and is therefore unfit for human consumption.

80      As regards, fifth, the relevance of commercial documents such as the purchase agreements for the catches at issue in the main proceedings, referred to in point (e) of the second question, which indicate that those catches were intended for the industrial production of animal feed and not for human consumption, it must be held that such documents may constitute relevant factors relating to the objective characteristics and properties inherent in the products at issue in the main proceedings which must be taken into account for the purposes of classifying those products under the appropriate heading of the CN (see, to that effect, judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraph 57).

81      As regards, sixth, the fact that the fish offcuts at issue in the main proceedings were imported into the European Union as animal by-products falling within Category 3, in accordance with point 1 of Article 3, Article 7(1) and Article 10(a) of Regulation No 1069/2009, to which reference is made in point (d)(vi) of the second question, it should be borne in mind that that category covers material which was considered by the EU legislature to be ‘low risk’ to public and animal health, in particular carcasses and parts of animals slaughtered which are ‘fit for human consumption’ but are not intended for human consumption for commercial reasons (see, to that effect, judgment of 2 September 2021, Toropet, C‑836/19, EU:C:2021:668, paragraphs 41 and 47).

82      The fact that those fish offcuts fall within that category, assuming it to be established, which it is for the referring court, which alone has jurisdiction to assess the facts of the present case, to ascertain, is therefore capable of indicating that those products are unfit for human consumption because of their condition, within the meaning of note 1(c) to Chapter 3 of Part Two, Section I, of the CN, and must also be taken into account for the purposes of classifying those products under the appropriate CN heading.

83      On the basis of all the factors concerning the objective characteristics and properties of the goods at issue in the main proceedings, it is for the referring court to assess whether those goods should be regarded as unfit for human consumption, with the result that, in accordance with note 1(c) to Chapter 3 of Part Two, Section I, of the CN, they do not fall within Chapter 3 and must therefore be classified under heading 0511 of the CN, entitled ‘Animal products not elsewhere specified or included; dead animals of Chapter 1 or 3, unfit for human consumption’.

84      In the light of all the foregoing considerations, the answer to the questions referred for a preliminary ruling is that the CN must be interpreted as meaning that heading 0511, entitled ‘Animal products not elsewhere specified or included; dead animals of Chapter 1 or 3, unfit for human consumption’, covers:

–        whole fish, which have been preserved on board catching vessels for a long period through the addition of acetic acid or another acid at a variable temperature which may exceed the limits laid down by EU legislation on the hygiene of foodstuffs, which have varying TVB-N values, some of which exceed the limits laid down by that legislation, which have been stored in bulk, which have not been handled in accordance with the rules set out in that legislation, and the accompanying commercial documents of which indicate that they have been caught and sold for the production of animal feed; and

–        fish offcuts which have not been handled in accordance with the rules set out in that legislation and the accompanying commercial documents of which indicate that they are animal by-products fit for human consumption but which, for commercial reasons, are not intended for such consumption, and that they have been produced and sold for the production of animal feed.

 Costs

85      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version applicable to the facts in the main proceedings,

must be interpreted as meaning that Heading 0511, entitled ‘Animal products not elsewhere specified or included; dead animals of Chapter 1 or 3, unfit for human consumption’, covers:

–        whole fish, which have been preserved on board catching vessels for a long period through the addition of acetic acid or another acid at a variable temperature which may exceed the limits laid down by EU legislation on the hygiene of foodstuffs, which have varying total volatile basic nitrogen values, some of which exceed the limits laid down by that legislation, which have been stored in bulk, which have not been handled in accordance with the rules set out in that legislation, and the accompanying commercial documents of which indicate that they have been caught and sold for the production of animal feed; and

–        fish offcuts which have not been handled in accordance with the rules set out in that legislation and the accompanying commercial documents of which indicate that they are animal by-products fit for human consumption but which, for commercial reasons, are not intended for such consumption, and that they have been produced and sold for the production of animal feed.

[Signatures]

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*      Language of the case: Danish.