Tariff Classification at the intersection of Customs and Food Law: When Is Fish ‘Unfit for Human Consumption’?

Background of the case

The Danish company FF Skagen A/S imported large quantities of fish from Norway, including blue whiting, capelin, sand eel, silvery pout and horse mackerel. The fish was processed into products for the animal feed industry, such as fishmeal, fish oil and mink feed. During an inspection by the Danish Customs Authority (Toldstyrelsen), it was found that the company had classified the catches under Chapter 5 of the CN.

A crucial factor was the use of preservatives. Invoices revealed that acetic acid or another acid had been added at sea to prevent spoilage. According to the Danish food authorities, fish treated with acetic acid may not be marketed for human consumption. Moreover, storage and refrigeration on board often failed to comply with the strict requirements of food law.

Force Technology, an analysis institute, concluded after visual and sensory inspection that three out of four consignments were suitable for human consumption and one was not. However, the assessment was not accredited, which cast doubt on its reliability.

Course of the proceedings

In 2018, Danish customs decided that the imported fish should be classified under Chapter 3 of the CN (fish fit for human consumption) when the TVB-N values (an indicator for spoilage) were below 35 or 60, depending on the species.

The company challenged this decision before the Landsskatteret, which ruled in 2020 that the fish should be classified under Chapter 5 of the CN, because the addition of acid made the catch unfit for human consumption upon import.

The Ministry of Taxation appealed to the Vestre Landsret. The central question there is: does food law also determine whether a product is, in a customs law sense, fit for human consumption?

Relevant legal framework

Customs Law

The dispute revolves around the tariff classification of imported fish. Classification is governed by Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and the Common Customs Tariff. The CN is set out in Annex I to this Regulation.

Both Chapter 3 and Chapter 5 concern fish products. Chapter 3 covers fish suitable for human consumption, whereas Chapter 5 concerns fish and by-products which, by their nature or condition, are unfit for human consumption. According to the General Rules for the Interpretation of the Nomenclature, classification is determined primarily by the wording of the headings (and subheadings) and the notes to the Sections and Chapters. Note 1(c) to Chapter 3 excludes fish unsuitable for human consumption:

“This chapter does not cover:

[...]

(c) fish (including livers and roes 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); [...]”

Note 1(a) to Chapter 5 is the counterpart to this:

“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);”

Food

The reference order reviews a range of EU food law regulations, including:  

• Regulation 178/2002 (General principles and requirements of food law);
• Regulations 852/2004 and 853/2004 (food hygiene and specific hygiene rules for food of animal origin);
• Regulation 2074/2005;
• Regulation 1333/2008 (food additives);
• Regulation 1069/2009 (animal by-products).

This dual set of rules gives rise to the core question: can the classification term “unfit or unsuitable for human consumption” in the CN be interpreted independently of food law, or must the hygiene and additive rules under food law play a role in tariff classification?

Arguments of the parties

To support its position that the fish was correctly classified under Chapter 5 of the CN, FF Skagen A/S argued, among other things, that: 

• Classification must be based on objective characteristics and properties (Digitalnet judgment);
• According to settled case-law (Kawasaki judgment), intended use may also be relevant, provided it is objectively discernible from the product itself;
• The words “unfit or unsuitable for human consumption” are not defined in the CN and should therefore be interpreted according to their ordinary meaning, which, in FF Skagen’s view, must be drawn from food law standards;
• The addition of acid and exceeding TVB-N thresholds are objective features that make the fish de facto unsuitable for human consumption. This view was supported by the Danish food authorities, which stated that catches treated with acetic acid are unsuitable for human consumption regardless of their TVB-N value.

The Ministry of Taxation, on the other hand, argued that all the imported species fall under the headings of Chapter 3 CN and that the only relevant question was whether the condition of the fish excludes human consumption. In its view, the CN concept of “unfit or unsuitable for human consumption” should be interpreted autonomously, independently of food law. Only if consumption posed a risk to human health would classification under Chapter 5 be justified.

Preliminary questions

In light of the parties’ arguments, the Vestre Landsret is in doubt about the correct tariff classification. Therefore, it has referred two preliminary questions to the CJEU. In essence, the first question is the main one. The Danish court asks the CJEU to clarify how the concept of “unfit or unsuitable for human consumption” in the relevant note to Chapter 3 CN should be interpreted.

The second question is cleverly chosen. It asks the CJEU to elaborate on its answer to the first question. The referring Danish court lists seven circumstances ((a) to (g)) and wants to know whether these circumstances are relevant to the CJEU's answer to the first question. For practitioners, this method of questioning is important because it provides insight into the factors that must be considered in a specific case. In summary, the question is whether the following aspects are relevant:

(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 25 to 35 pursuant to Commission Regulation (EC) 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 Commission Regulation (EC) No 2074/2005.

(d) the goods have not been handled in accordance with the legislation on food hygiene, including: (i) Regulation No 178/2002 of the European Parliament and of the Council, (ii) Regulation No 852/2004 of the European Parliament and of the Council, (iii) Regulation No 853/2004 of the European Parliament and of the Council, (iv) Regulation No 854/2004 of the European Parliament and of the Council, (v) Regulation No 1333/2008 of the European Parliament and of the Council, (vi) Regulation No 1069/2009 of the European Parliament and of the Council;

(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 unfit for human consumption, irrespective of their TVB-N value.

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

In short: should food law be taken into account in the tariff classification of goods?

The tension between customs and food law

The case touches upon a fundamental question in Union law: to what extent are separate legislative frameworks strictly distinct, and to what extent do they influence each other? In this context, it can be noted that:

• In the context of customs tariff classification, objective product characteristics and properties are decisive. It must also not be forgotten that the CN is based on the globally harmonized Harmonized System. This is a ‘larger’ framework than the EU. However, the CN contains open concepts such as “unfit or unsuitable for human consumption,” which are not further defined.
• Food law contains very detailed standards regarding hygiene, additives, TVB-N values, and determines whether products may or may not be placed on the market.

The crux is whether the CJEU will rule that the latter standards "permeate" into customs law, thereby making food law effectively a co-determinant for customs classification.

Potential impact of the case

The forthcoming judgment could have far-reaching consequences for companies in the fish processing industry: classification under Chapter 3 could result in different customs duties than under Chapter 5.

It is also interesting for customs practice. Depending on the answers provided by the Court of Justice, food law standards may in certain cases need to be taken into account when interpreting CN headings and subheadings. This could then apply in a broader sense to the classification of products falling under headings and subheadings with terms that are not specified in the CN but are specified in product regulations. This is likely to set an interesting precedent for the EU legal order, providing guidance on the question of whether, and if so to what extent, separate legislative frameworks (customs, food, environmental and pharmaceutical law, etc.) can influence each other.

Will the Court of Justice opt for an autonomous, separate interpretation of the EU's regulatory frameworks or for a more integrated, connecting approach? Strictly speaking, the classification of goods should be done autonomously, based on the objective characteristics and properties of a product, as described in the wording of the CN headings, subheadings and the notes to the Sections and Chapters.

At the same time, in practice no framework can function in complete isolation. After all, it is all EU law, and practice is not served by incomprehensible, contradictory outcomes under the different legislative frameworks with which companies importing, exporting or placing goods on the market have to work in parallel. Where systems intersect, tension and the need for coordination and connection inevitably arise.

Conclusion

The Danish reference in Case C-406/25 vividly illustrates the intersection between customs law and food law. Whereas the CN employs the undefined term “unfit or unsuitable for human consumption”, food law provides a detailed normative framework. The key question is whether customs authorities must incorporate that framework into tariff classification.

The choice between a strict separation with autonomous interpretation of the CN, or an interaction whereby food law standards determine whether a product is suitable for human consumption in customs terms, lies with the Court of Justice. Whichever approach the CJEU adopts, the judgment will be of precedential value in defining the relationship between EU frameworks, each with its own internal logic but which, in practice, cannot function in isolation.

The case demonstrates that tariff classification is not merely a technical exercise, but also touches upon fundamental questions of European legal integration.

Fascinating – to be continued.

Ploum – Customs, Trade & Logistics

Ploum's Customs Trade & Logistics team specializes in both EU customs legislation and food law and product regulations. Complex issues at the intersection of these legal areas are regularly addressed. If you have questions in either area, please contact Jikke Biermasz or Marijn van Tuijl.