22 October 2014 (*1)
‛Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — Classification of goods — Tariff heading 22021000 — Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured — Tariff heading 2202 9010 11 — Fruit or vegetable juice diluted with water or aerated’
In Case C‑139/14,
Request for a preliminary ruling under Article 267 TFEU from the Finanzgericht Baden-Württemberg (Germany), made by decision of 25 February 2014, received at the Court on 24 March 2014, in the proceedings
Mineralquelle Zurzach AG
v
Hauptzollamt Singen,
THE COURT (Sixth Chamber),
composed of A. Borg Barthet, acting President of Chamber (Rapporteur), S. Rodin and F. Biltgen, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
1This request for a preliminary ruling concerns the interpretation of heading 2202 10 00 of the Combined Nomenclature listed 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 ), as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005 ( OJ 2005 L 286, p. 1 , ‘the CN’), and of the interpretation of the integrated tariff of the European Communities established by Article 2 of Regulation No 2658/87 (‘the TARIC’).
2That request was submitted in proceedings between Mineralquelle Zurzach AG (‘Mineralquelle Zurzach’), a drinks manufacturer established in Switzerland and the Hauptzollamt Singen (principal customs office, Singen (Germany)) in relation to the ex post recovery of customs debts relating to certain imports made by Mineralquelle Zurzach during 2006.
3Article 1 of Regulation No 2658/87 provides:
‘1. A [CN] which meets at one and the same time the requirements of the Common Customs Tariff, the external trade statistics of the Community and other Community policies concerning the importation or exportation of goods, shall be established by the [European] Commission.
2The [CN] shall comprise:
3The combined nomenclature is reproduced in Annex I …
…’
4Article 2 of the regulation provides:
‘[A Taric] which meets the requirements of the Common Customs Tariff, external trade statistics, the commercial, agricultural and other Community policies concerning the importation or exportation of goods, shall be established by the Commission.
The tariff shall be based on the [CN] and include:
5According to Article 3(1) and (2) of that regulation:
‘1. Each CN subheading shall have an eight digit code number:
2The Taric subheadings shall be identified by the 9th and 10th digits which, together with the code numbers referred to in paragraph 1, form the Taric code numbers.’
6Article 6 of that regulation provides that the Taric is to be established, updated, managed and disseminated by the Commission.
7Part One of the CN consists of a number of preliminary provisions. In Section I of Part One, which contains general rules, subsection A, entitled ‘General rules for the interpretation of the [CN]’, provides:
‘Classification of goods in the [CN] shall be governed by the following principles:
…
…
8The second part of the CN contains a Section IV, entitled ‘Prepared foodstuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes’. That section contains, inter alia, a Chapter 22, entitled ‘Beverages, spirits and vinegar’.
9CN Heading 2202 is subdivided as follows:
‘2202
Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009:
2202 10 00
‐ Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured
2202 90
‐ Other:
2202 90 10
‐ ‐ Not containing products of headings 0401 to 0404 or fat obtained from products of headings 0401 to 0404
‐ ‐ Other, containing by weight of fat obtained from the products of headings 0401 to 0404
2202 90 91
‐ ‐ ‐ Less than 0,2%
2202 90 95
‐ ‐ ‐ 0,2% or more but less than 2%
2202 90 99
‐ ‐ ‐ 2% or more’.
10According to the first additional note in Chapter 22 of the CN:
‘Subheading 2202 10 00 covers waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, providing they are for direct consumption as a beverage.’
11The explanatory notes to the CN drawn up by the Commission, in their version applicable at the material time in the main proceedings ( OJ 2006, C 50, p. 1 ), are worded as follows as regards heading 2202:
‘2202
Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009
The expression “non-alcoholic beverages” is defined in Note 3 to this chapter.
2202 10 00
Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured
The soft drinks referred to in the HS Explanatory Notes to heading 2202, paragraph (A), are covered by this subheading.
The presence of anti-oxidants, vitamins, stabilisers or quinine do not affect the classification of soft drinks.
This subheading includes liquid products, composed of water, sugar and flavourings, put up in a plastic bag and intended to be made in the home into ice-lollies by freezing in the refrigerator
See also Additional Note 1 to this chapter’
12In 2006, with regard to subheading CN 2202 90 10, the TARIC contained the following subheadings:
‘2202 90
‐ Other
2202 90 10
‐ ‐ Not containing products of headings 0401 to 0404 or fat obtained from products of headings 0401 to 0404
‐ ‐ ‐ containing sugar (sucrose or invert sugar)
2202 90 10 11
‐ ‐ ‐ ‐ Fruit or vegetable juices, diluted with water or aerated
2202 90 10 19
‐ ‐ ‐ ‐ Other’.
13The WCO approves, under the conditions laid down in Article 8 of the International Convention on the Harmonised Commodity Description and Coding System, the explanatory notes and the classification decisions adopted by the HS committee.
14The Explanatory Notes concerning heading 2202 of the HS state as follows:
‘(A)
Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured.
This group includes, inter alia:
15In 2006 Mineralquelle Zurzach imported into the European Union the drink ‘Quelly Vita 10’. This was a so-called ‘ACE’ soft drink (that is to say, it contains vitamins A, C and E), composed of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent such as citric acid, vitamin mixture (vitamin C, vitamin B3, vitamin E, pantothenic acid, beta-carotene (provitamin A), vitamin B6, vitamin B1, folic acid, biotin, vitamin B12), preservatives (E 242 and E 202), stabilisers (E 440 and E 410), flavouring consisting of flavouring extracts, natural flavouring agents and artificial flavouring. The total fruit content was 12% and the vitamin content of 100 ml accounted for 15%, while vitamin A was 30% of the recommended daily dose.
16Mineralquelle Zurzach applied for the release for consumption of the beverage as goods of Swiss origin under TARIC code number 2202 1000 00, being ‘waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured’. The goods of Swiss origin classified under that tariff heading were to benefit from a preferential zero-rating regime.
17The Hauptzollamt Singen, on the basis of a report dated 29 December 2008 from the Zolltechnische Prüfungs — und Lehranstalt München bei der Bundesfinanzdirektion Südost (Customs Technical Examination and Training Institute Munich, attached to the Federal Finance Directorate South-East), carried out a customs inspection as a result of which it considered that the beverage ‘Quelly Vita 10’ fell within TARIC code 2202 90 10 11 concerning ‘fruit or vegetable juices, diluted with water or aerated’.
18On 2 February 2009, the Hauptzollamt Singen issued Mineralquelle Zurzach with an ex-post recovery notice concerning imports of that beverage, made between 6 and 28 February 2006, in the amount of EUR 8 964.91 on the basis of classification of that beverage under TARIC code 2202 90 10 11. After its complaint was unsuccessful, Mineralquelle Zurzach brought an action against that decision before the Finanzgericht (Finance Court) Baden-Württemberg.
19The national court has doubts as to whether a beverage such as ‘Quelly Vita 10’ may be classified under a subheading other than CN 2202 10 00.
20It considers that, since that drink consists mainly of water and sugar and the proportion of added fruit juices is only 12%, that would appear to suggest classification under subheading 2202 1000 of the CN as waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic drinks. According to the national court, the explanatory notes to the CN with regard to subheading 2202 10 00 of the CN are also to that effect.
21The national court none the less observes that that beverage might also come under tariff heading 2202 90 10 11 of the TARIC, which covers fruit or vegetable juices diluted with water.
22The national court considers that it follows from the Court’s case-law that the classification of goods for customs purposes must be sought in their objective characteristics and properties. Thus, the explanatory notes to the HS and the CN, although not binding in nature, are none the less an important aid in interpreting the tariff headings.
23It also takes the view that, should the beverage ‘Quelly Vita 10’ not come under subheading 2202 10 00 of the CN, the question would arise as to whether it is to be classified under TARIC code 2202 90 10 11 or under TARIC code 2202 90 10 19.
24It was in those circumstances that the Finanzgericht Baden-Württemberg decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling:
‘(1)
Is a non-alcoholic beverage that consists mainly of water but also has 12% fruit juices and contains, in addition to sugar, a vitamin mixture which clearly exceeds the vitamin content, in relation to the proportion of juice, of natural fruit juices, to be classified under subheading 2202 1000 of the [CN]?
If the answer to Question 1 is in the negative:
If the answer to Question 1 is in the negative:
25Pursuant to Article 99 of the Rules of Procedure, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, give its decision by reasoned order.
26That provision should be applied in the present case.
27By its three questions, which should be examined together, the national court is essentially asking whether the CN must be interpreted as meaning that a beverage such as the one at issue in the main proceedings, which is essentially made up of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent, a vitamin mixture, natural and artificial flavouring agents, and with a total fruit content of only 12%, must be classified under subheading 2202 10 00 of that nomenclature or, if not, whether the TARIC must be interpreted as meaning that such a commodity comes under either code 2202 90 10 11 or code 2202 90 10 19 of that tariff.
28As regards the question whether the characteristics of the commodity imported by Mineralquelle Zurzach, as described in the order for reference, correspond to the totality of the characteristics of subheading 2202 10 00 of the NC, where the Court has before it a request for a preliminary ruling on a matter of tariff classification, its task is to provide the national court 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, in particular since the Court does not necessarily have available to it all of the information which is essential in that regard. In any event, the national court is in a better position to do so (see judgments in Proxxon , C‑500/04, EU:C:2006:111 , paragraph 23, and Digitalnet and Others , C‑320/11, C‑330/11, C‑382/11 and C‑383/11, EU:C:2012:745 , paragraph 61).
29However, in order to give the national court a useful answer which will enable it to effect the tariff classification on which it is asked to adjudicate, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see, to that effect, judgments in Lohmann and Medi Bayreuth , C‑260/00 to C‑263/00, EU:C:2002:637 , paragraph 28, and Pärlitigu , C‑56/08, EU:C:2009:467 , paragraph 23).
30In order to answer the questions referred it must be stated, first, that the general rules for the interpretation of the CN provide that the classification of goods is to be determined according to the terms of the headings and any section or chapter notes, the titles of sections, chapters and sub-chapters being provided for ease of reference only (see judgment in Lukoyl Neftohim Burgas , C‑330/13, EU:C:2014:1754 , paragraph 33).
31Secondly it should be recalled that it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods is in general to be sought in their objective characteristics and properties, as defined in the wording of the relevant heading of the NC and of the notes to the sections or chapters (see, in particular, judgments in Proxxon , EU:C:2006:111 , paragraph 21; Rakvere Lihakombinaat , C‑140/08, EU:C:2009:667 , paragraph 42; and Digitalnet and Others , EU:C:2012:745 , paragraph 27 and the case-law cited).
32As regards the Explanatory Notes to the HS, it should be added that, although they do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation, (see, to that effect, judgments in Kloosterboer Services , C‑173/08, EU:C:2009:382 , paragraph 25, and Agroferm , C‑568/11, EU:C:2013:407 , paragraph 28). The same is true of the Explanatory Notes of the CN (see, to that effect, judgment in Develop Dr. Eisbein , C‑35/93, EU:C:1994:252 , paragraph 21, and British Sky Broadcasting Group and Pace , C‑288/09 and C‑289/09, EU:C:2011:248 , paragraph 92).
33In this case, the wording of heading 2202 of the CN states that it includes ‘waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009’.
34In addition, additional note 1 of Chapter 22 of the CN, referred to by the explanatory notes of the CN relating to subheading 2202 10 00, states that that subheading covers ‘waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, providing they are for direct consumption as a beverage’.
35Moreover, the abovementioned explanatory notes to the CN state that the soft drinks referred to in the explanatory notes to the HS, no 2202, paragraph A, come under subheading 2202 10 00 of the CN. Those explanatory notes to the HS set out a non-exhaustive list of beverages to be classified under that subheading, that is to say, beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavoured with fruit juices or compound extracts, to which citric acid or tartaric acid are sometimes added. According to the explanatory notes to the CN relating to subheading 2202 10 00 the presence of anti-oxidants, vitamins, stabilisers or quinine does not affect classification as a soft drink.
36In the present case, a beverage with a fruit juice content of 12% complies with the definition of the HS explanatory note referring to heading 2202, paragraph A, given that the fruit juice content does not predominate in the beverage, which acquires its taste specifically by the addition of natural and artificial flavourings and from sugar.
37Conversely, a fruit juice content of 12% cannot justify classification of a beverage under heading 2202 90 10 11 of the TARIC, entitled ‘fruit or vegetable juices diluted with water or aerated’.
38Accordingly, the reply to the questions referred must be that the CN must be interpreted as meaning that a beverage, such as that at issue in the main proceedings, which is essentially made up of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent, a vitamin mixture, natural and artificial flavouring agents and with a total fruit content of 12%, must be classified under subheading 2202 10 00 of that nomenclature.
39Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber) hereby rules:
The Combined nomenclature appearing at Annex I of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that a beverage such as that at issue in the main proceedings, which is essentially made up, of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent, a vitamin mixture, natural and artificial flavouring agents and with a total fruit content of 12%, comes under subheading 2202 10 00 of that nomenclature.
[Signatures]
(*1) Language of the case: German.
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