CELEX: 62009CJ0339
Common Customs Tariff
Tariff classification
Combined Nomenclature
Headings 2204 and 2206
Beverage fermented on the basis of fresh grapes
Alcohol content of 15.8% to 16.1% by volume
Addition of corn alcohol and beet sugar during the course of production

This reference for a preliminary ruling concerns the interpretation of headings 2204 and 2206 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), as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2003 L 286,
p. 1) (‘the CN’).
The reference has been made in proceedings between Skoma-Lux s. r. o. (‘Skoma‑Lux’) and Celní ředitelství Olomouc (Customs
Directorate, Olomouc) concerning the CN classification of goods labelled as ‘red dessert wine Kagor VK’, imported into the
Czech Republic.

Legal context
The CN, established by Regulation No 2658/87, is based on the international Harmonised Commodity Description and Coding System
(‘the HS’) drawn up by the Customs Cooperation Council, now the World Customs Organisation, adopted by the International Convention
concluded in Brussels on 14 June 1983 and approved on behalf of the European Community by Council Decision 87/369/EEC of 7
April 1987 (OJ 1987 L 198, p. 1). The CN reproduces the headings and subheadings of the HS to six digits, with only the seventh
and eighth figures creating subheadings which are unique to it.
In order to provide further explanations as to the application of the Harmonised System, the World Customs Organisation regularly
publishes Harmonised System Explanatory Notes (‘the HSEN’). Likewise, pursuant to the second indent of Article 9(1)(a) of
Regulation No 2658/87, in order to ensure application of the CN, the European Commission draws up Explanatory Notes. Those
notes, which are published regularly in the
Official Journal of the European Union
, do not replace the HSEN, but should be viewed as complementary to those notes and consulted together with them.
In the 2002 version of the HS, applicable to the facts of the dispute in the main proceedings, heading 2204 is entitled ‘wine
of fresh grapes, including fortified wines; grape must other than that of heading 2009’.
The HSEN with regard to heading 2204 state:
‘2204.10 – Sparkling wine
– Other wine; grape must with fermentation prevented or arrested by the addition of alcohol:
2204.21 – – In containers holding two litres or less
2204.29 – – Other
2204.30 – Other grape marc
(I)      Wine of fresh grapes
The wine classified in this heading is the final product of the alcoholic fermentation of the must of fresh grapes.
This heading covers:
…
4.      Liqueur wines (also called dessert wines, etc.) which are rich in alcohol and are generally obtained from must with a high
sugar content, only part of which is converted to alcohol by fermentation; in some cases they are fortified by the addition
of alcohol, or of concentrated must with added alcohol. Liqueur wines include Canary, Cyprus, Lacryma Christi, Madeira, Malaga,
Marsala, Port, Malmsey, Samos, Sherry, etc.
…’
The 2002 version of the HS includes also heading 2206, entitled ‘Other fermented beverages (for example, cider, perry, mead);
mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or
included’.
According to the HSEN relating to heading 2206:
‘This heading covers all fermented beverages other than those in headings 2203 to 2205.
It includes inter alia:
…
(10)      Ginger beer and herb beer, which are sparkling beverages prepared from sugar, water, ginger or certain herbs and fermented
with yeast.
All these beverages may be either naturally sparkling or artificially charged with carbon dioxide. They remain classified
in the heading when fortified with added alcohol or when the alcohol content has been increased by further fermentation, provided
that they retain the character of products falling in the heading.
…’
The version of the CN applicable to the facts at issue in the main proceedings arises from Regulation No 1719/2005, which
entered into force on 1 January 2006.
Part One of the CN contains a series of preliminary provisions. In that part, under Section I, which contains the 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:
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.
…’
The second part of the CN contains the schedule of duties. Section IV of that part, entitled ‘Prepared foodstuffs; beverages,
spirits and vinegar; tobacco and manufactured tobacco substitutes’ contains a Chapter 22, entitled ‘Beverages, spirits and
vinegar’, which includes in particular headings 2203 to 2206, worded as follows:
‘2203 00 Beer made from malt:
…
‘2204          Wine of fresh grapes, including fortified wines; grape must other than that of heading No 2009:
…
2205               Vermouth and other wine of fresh grapes flavoured with plants or aromatic substances:
…
2206 00 Other fermented beverages (for example, cider, perry, mead); mixtures of fermented beverages and mixtures of fermented beverages
and non‑alcoholic beverages, not elsewhere specified or included:
…’
Chapter 22 of the schedule of customs duties contains also additional notes, worded as follows:
‘…
5.      Subheadings 2204 21 11 to 2204 21 99 and 2204 29 12 to 2204 29 99 shall be taken to include:
(a)      grape must with fermentation arrested by the addition of alcohol, that is to say, a product:
–        having an actual alcoholic strength by volume of not less than 12% vol but less than 15% vol, and
–        obtained by the addition to unfermented grape must having a natural alcoholic strength by volume of not less than 8,5% vol
of a product derived from the distillation of wine;
(b)       wine fortified for distillation, that is to say, a product:
–        having an actual alcoholic strength by volume of not less than 18% vol but not more than 24% vol,
–        obtained exclusively by the addition to wine containing no residual sugar of an unrectified product derived from the distillation
of wine and having a maximum actual alcoholic strength by volume of 86% vol, and
–        having a maximum volatile acidity of 1,5 g/l, expressed as acetic acid;
(c)      liqueur wine, that is to say, a product:
–        having a total alcoholic strength by volume of not less than 17,5% vol and an actual alcoholic strength by volume of not less
than 15% vol but not more than 22% vol, and
–        obtained from grape must or wine, which must come from vine varieties approved in the third country of origin for the production
of liqueur wine and have a minimum natural alcoholic strength by volume of 12% vol,
–        by freezing, or
–        by the addition during or after fermentation:
–        of a product derived from the distillation of wine, or
–        of concentrated grape must or, in the case of certain quality liqueur wines appearing on a list to be adopted of wines for
which such practice is traditional, of grape must concentrated by direct heat, which, apart from this operation, corresponds
to the definition of concentrated grape must, or
–        of a mixture of these products.
…’

The dispute in the main proceedings and the question referred for a preliminary ruling
On 18 January 2006, Skoma-Lux submitted to the Celní úřad Olomouc (Olomouc Customs Office) a declaration for free circulation
of goods labelled as ‘red dessert wine Kagor VK’. Those goods, from Moldavia, were declared under heading 2204 of the CN.
During an audit of that customs declaration, the Celní úřad Olomouc took a sample of those goods in order to identify the
origin of the alcohol, sugar and water contained in them. It is apparent from the analyses carried out that that sample contained
at least 25% of sugar of an origin other than grape juice, probably from a mixture of grape juice, beet sugar and sugar resulting
from the hydrolysis of corn starch. According to those analyses, those goods were produced from sweetened grape juice, to
which corn alcohol was added, which arrested the fermentation process.
By decision of 28 November 2006, in the light of those analyses, the Celní úřad Olomouc considered that the goods at issue
in the main proceedings should be classified under heading 2206 of the CN, on the ground that they were not liqueur wine since,
in the course of their manufacture, they had been fortified, not with products obtained by the distillation of wine, but by
alcohol of another origin.
On 5 April 2007, the Celní ředitelství Olomouc dismissed the action brought by Skoma-Lux against that decision of the Celní
úřad Olomouc.
On 4 December 2007, following an action brought by Skoma-Lux, the Krajský soud v Ostravě (Regional Court, Ostrava) set aside
that decision of the Celní ředitelství Olomouc and referred the case back to it for further consideration. The Krajský soud
v Ostravě held that the goods at issue should be classified under heading 2204 of the CN, noting in particular that the addition
of sugar or alcohol, whatever their origin, did not result in a change in the fundamental features of those goods, namely
that they were produced from fresh grapes.
The Celní ředitelství Olomouc appealed on a point of law against the decision of the Krajský soud v Ostravě before the Nejvyšší
správní soud (Supreme Administrative Court), which held that the goods at issue in the main proceedings should be classified
under heading 2206 of the CN. As it was established that those goods contained corn alcohol, they were not exclusively of
grape origin.
Taking the view, however, that the outcome of the dispute before it required an interpretation of the relevant European Union
legislation, the Nejvyšší správní soud decided to stay the proceedings and to refer the following question to the Court of
Justice for a preliminary ruling:
‘Must goods labelled as “red dessert wine Kagor VK”, contained in 0.75 litre bottles with an alcohol content of 15.8% – 16.1%
by volume, to which beet sugar and corn alcohol have been added during their manufacture, those substances not originating
from fresh grapes, be classified under heading 2204 or heading 2206 of the [CN]?’

The question referred for a preliminary ruling

Admissibility
In its observations, Skoma-Lux claims, in essence, that the features of red dessert wine Kagor VK do not correspond to those
of the goods described in the question referred for a preliminary ruling. According to Skoma-Lux, that wine is obtained by
the fermentation of grape must, which is arrested by the addition of wine alcohol or distillate of wine in order to achieve
the necessary alcohol content.
In that regard, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been
brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular
circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance
of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of
EU law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑379/98
PreussenElektra
[2001] ECR I‑2099, paragraph 38; and Joined Cases C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07
Stoß and Others
[2010] ECR I‑0000, paragraph 51).
According to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual
and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court
to determine, enjoy a presumption of relevance (see, inter alia, Joined Cases C‑222/05 to C‑225/05
van der Weerd and Others
[2007] ECR I‑4233, paragraph 22 and case-law cited).
Furthermore, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to
provide the national court with guidance on the criteria the implementation of which will enable the latter to classify the
products at issue correctly in the CN, rather than to effect that classification itself,
a fortiori
since the Court does not necessarily have available to it all the information which is essential in that regard. In any event,
the national court is in a better position to do so. However, in order to give the national court a useful answer, the Court
may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see, inter
alia, Case C‑56/08
Pärlitigu
[2009] ECR I‑6719, paragraph 23 and case-law cited).
Consequently, as the Commission contends, it is for the Court to reformulate the question which is referred to it so that
it relates to resolving the question whether a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles,
with an alcoholic content of 15.8% to 16.1% by volume, to which are added in the course of its production beet sugar and corn
alcohol (‘the beverage at issue’), must be classified under heading 2204 or heading 2206 of the CN.

The application of Regulation (EC) No 600/2006
In its order for reference, the Nejvyšší správní soud refers to Commission Regulation (EC) No 600/2006 of 18 April 2006 concerning
the classification of certain goods in the combined nomenclature (OJ 1999 L 106, p. 5). That regulation, adopted on the basis
of Article 9(1)(a) of Regulation No 2658/87, which empowers the Commission to clarify the contents of a tariff heading, classifies
a product with the features of the beverage at issue under heading 2206 of the CN.
In that regard, the Commission states in its observations that that regulation was adopted following different tariff classifications
carried out by the customs authorities of the Member States with regard to red dessert wine Kagor VK.
However, it follows from settled case-law that a regulation specifying the conditions for classification in a tariff heading
or subheading is of a legislative nature and cannot have retroactive effect (see, inter alia, Case C-479/99
CBA Computer
[2001] ECR I‑4391, paragraph 31, and Case C-403/07
Metherma
[2008] ECR I‑8921, paragraph 39).
According to the first recital in the preamble to Regulation No 600/2006, that regulation was adopted in order to ensure uniform
application of the CN. It is, nevertheless, not disputed that that regulation entered into force on 9 May 2006, that is to
say after the declaration for free circulation of the goods at issue in the main proceedings was submitted, and that it was
not given any restrospective effect.
In those circumstances, Regulation No 600/2006 is not applicable to the dispute in the main proceedings. The question referred
for a preliminary ruling must therefore be examined in the light of Regulation No 2658/87, as amended by Regulation No 1719/2005.

Substance
Observations submitted to the Court
Skoma-Lux claims that the particular organoleptic characteristics of the beverage at issue, as well as its intended use, correspond
to those of goods classified under heading 2204 of the CN. In support of that, the customs authorities of several Member States
issued binding tariff information relating to the classification of red dessert wine Kagor VK under that heading.
The Celní ředitelství Olomouc considers that, in accordance with the HSEN, that beverage must be classified under heading
2206 of the CN since it contains added alcohol with an origin other than the distillation of wine.
The Czech Government states that the alcohol contained in the beverages classified under heading 2204 of the CN must derive
exclusively from the fermentation of grapes. Since the beverage at issue contains to some extent alcohol of an origin other
than wine, it comes under heading 2206 of the CN, which includes all fermented beverages which cannot be classified under
other headings of Chapter 22 of the CN.
The Greek Government considers that the beverage at issue comes under heading 2206 of the CN. First, with regard to additional
note 5 to Chapter 22 of the CN, it could not be classified under heading 2204 to the extent that the ethyl alcohol used for
its production does not derive from the distillation of wine. Secondly, heading 2206 of the CN includes beverages for which
the addition of corn ethyl alcohol is permitted, on condition that the essential character of the basic product is maintained,
which would be the case for that beverage.
The Commission is of the opinion that the HSEN does not preclude the addition of alcohol not derived from grapes to wine.
Therefore, the beverage at issue should, in principle, be classified under heading 2204 of the CN. However, although, by the
addition, during the course of the production, of beet sugar and corn alcohol, the character of the beverage fermented on
the basis of fresh grapes was altered to the extent that the features of the product diverge clearly from the organoleptic
and chemical properties defined by the international or national norms for products typical of heading 2204 of the CN, and
in particular where at least half of the actual alcoholic strength by volume of the beverage does not derive from fresh grapes,
it is necessary, according to the Commission, to classify the beverage at issue under heading 2206 of the CN. It is for the
competent authorities of the Member State concerned to assess the extent of that divergence.
The Court’s reply
It is settled case-law that, 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 sought 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 (see, inter alia, Case C‑142/06
Olicom
[2007] ECR I‑6675, paragraph 16, and Case C‑370/08
Data I/O
[2010] ECR I‑0000, paragraph 29).
It should also be recalled that both the notes which precede the chapters of the Common Customs Tariff and the HSEN are important
means of ensuring the uniform application of that tariff and as such may be regarded as useful aids to its interpretation
(see, inter alia, Case C‑338/95
Wiener SI
[1997] ECR I‑6495, paragraph 11, and Case C‑123/09
Roeckl Sporthandschuhe
[2010] ECR I‑0000, paragraph 29).
In the present case, the wording of heading 2204 of the HS mentions ‘wine of fresh grapes, including fortified wines’. The
HSEN relating to that heading state that, for the wines of fresh grapes, the wine classified under that heading is exclusively
the final product of the alcoholic fermentation of the must of fresh grapes.
Among those wines of fresh grapes, heading 2204 includes liqueur wines, also called dessert wines, in relation to which it
is not disputed that the alcoholic strength by volume, stated in additional note 5(c) to Chapter 22 of the CN, corresponds
to that of the beverage at issue. It is also not disputed that that beverage does not fulfil the conditions imposed by additional
notes 5(a) and (b), which concern respectively grape must with fermentation arrested by the addition of alcohol and wine fortified
for distillation.
Furthermore, additional note 5(c) to Chapter 22 of the CN authorises, for liqueur wines, during or after fermentation, the
addition solely of a product derived from the distillation of wine, or from concentrated grape must, or from a mixture of
those products.
Therefore, contrary to what the Commission claims, it is clearly and unambiguously apparent from the HSEN relating to heading
2204, read in conjunction with additional note 5(c) to Chapter 22 of the CN, that the alcohol contained in liqueur wine, whether
it results from alcoholic fermentation or is added, must derive exclusively from grapes.
It follows that the beverage at issue, which was fortified by the addition of corn alcohol during the course of its production,
cannot be classified under heading 2204 of the CN, and that is so without there being any need to examine whether liqueur
wine, within the meaning of that heading, can contain beet sugar.
That having been determined, it must be held that, in the light of its objective characteristics and properties, the beverage
at issue fulfils the conditions to be classified under heading 2206 of the CN.
That heading covers ‘other fermented beverages (for example, cider, perry, mead); mixtures of fermented beverages and mixtures
of fermented beverages and non-alcoholic beverages, not elsewhere specified or included’. The HSEN states that that heading
covers all fermented beverages other than those in headings 2203 to 2205.
First, it follows from the foregoing that the beverage at issue cannot be included under heading 2204 of the CN. In view of
its ingredients, nor can it be classified under heading 2203 00 of the CN, relating to ‘beer made from malt’, or under heading
2205, which concerns ‘vermouth and other wine of fresh grapes flavoured with plants or aromatic substances’.
Secondly, with regard to the addition of alcohol and sugar to the beverage at issue, it should be noted that the HSEN relating
to heading 2206 state that beverages remain classified under that heading even when they have been fortified with added alcohol.
Furthermore, a beverage to which sugar was added during the course of its production can be classified under heading 2206.
In that regard, explanatory note 10 of the HS relating to heading 2206 states that ginger and herb beer, prepared from sugar,
water and ginger or certain herbs, are listed under that heading.
Thirdly, also according to the HSEN relating to heading 2206, the addition of alcohol to beverages coming under that heading
does not preclude such beverages from retaining that classification provided that they retain the character of products coming
under the heading, namely that of fermented beverages. It is apparent from the order for reference that the beverage in question
has the taste, colour and smell of a beverage made from grapes. Consequently, it has not lost the particular organoleptic
characteristics of a fermented beverage (see, to that effect, Case C‑150/08
Siebrand
[2009] ECR I‑3941, paragraph 37).
Fourthly, with regard to Skoma-Lux’s argument that since the red dessert wine Kagor VK is intended to be drunk as wine, it
should be classified under heading 2204 of the CN, it should be noted that, whilst, the intended use of a product may constitute
an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of
being assessed on the basis of the product’s objective characteristics and properties (see Case C‑183/06
RUMA
[2007] ECR I‑1559, paragraph 36, and
Roeckl Sporthandschuhe
, paragraph 28), the intended use of the product is a relevant criterion only where the classification can be made on the
sole basis of the objective characteristics and properties of the product (see, to that effect, Case 38/76
Industriemetall LUMA
[1976] ECR 2027, paragraph 7). In this case, it follows from all of the foregoing that, in the light of its objective characteristics
and properties, the beverage in question clearly comes exclusively under heading 2206 of the CN.
In view of those considerations, the answer to the question referred is that Regulation No 2658/87, as amended by Regulation
No 1719/2005, must be interpreted as meaning that a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles,
with an alcohol content of 15.8% to 16.1% by volume, to which beet sugar and corn alcohol have been added during the course
of its production, must be classified under heading 2206 of the CN.

Costs
Since 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. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
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 fermented
on the basis of fresh grapes, sold in 0.75 litre bottles, with an alcohol content of 15.8% to 16.1% by volume, to which beet
sugar and corn alcohol have been added during the course of its production, must be classified under heading 2206 of the Combined
Nomenclature in Annex I to that regulation.
[Signatures]
*
Language of the case: Czech.