Judgment — ECLI:EU:T:2026:166
Date: 2026-03-04
Language of the case: Romanian
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation T-691/24 – 1 
Case T-691/24 
Request for a preliminary ruling 
Date lodged: 
19 December 2024 
Referring court: 
Înalta Curte de Casație și Justiție (Romania) 
Date of the decision to refer: 
1 October 2024 
Defendants at first instance and appellants in cassation: 
Agenția Națională de Administrare Fiscală (ANAF) 
Direcția Generală de Administrare a Marilor Contribuabili 
Applicant at first instance and respondent in cassation: 
Heineken România SA 
  
ROMÂNIA 
ÎNALTA CURTE DE CASAȚIE ȘI JUSTIȚIE 
SECȚIA DE CONTENCIOS ADMINISTRATIV ȘI FISCAL (HIGH 
COURT OF CASSATION AND JUSTICE, DIVISION FOR 
ADMINISTRATIVE AND TAX MATTERS, ROMANIA) 
[…] 
Conclusion 
Public hearing of 1 October 2024 
[…]: 
The present case examines the request for a reference for a preliminary ruling to 
be made to the Court of Justice of the European Union (‘the Court of Justice’), 
raised by the court of its own motion, in a case concerning the appeals brought by 
the defendants at first instance – and now the appellants in cassation – the Direcția 
Generală de Administrare a Marilor Contribuabili (Directorate–General for the 
Administration of Large-scale Taxpayers) and the Agenția Națională de 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2024 – CASE T-691/24 
 
2  
Administrare Fiscală (National Tax Administration Office), against the civil 
judgment […] of 2 November 2021 of the Curtea de Apel București – Secția a IX-
a de contencios administrativ și fiscal (Court of Appeal, Bucharest – Ninth 
Division for Administrative and Tax Matters, Romania). 
[…] 
THE HIGH COURT OF CASSATION AND JUSTICE 
On the request to make a reference for a preliminary ruling to the Court of Justice, 
pursuant to Article 267 of the Treaty on the Functioning of the European Union 
and the Recommendations of the Court of Justice to national courts and tribunals, 
in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 300, 
p. 1), published in the Official Journal of the European Union No C 380/01 of 
8 November 2019, hereby rules as follows: 
I. The subject matter of the case and the relevant facts 
1 By application registered with the Court of Appeal Bucharest (Ninth Division for 
Administrative and Tax Matters), the applicant at first instance – now the 
respondent in cassation – HEINEKEN ROMÂNIA SA, brought an action 
requesting that court to order (i) the partial annulment of tax assessment decisions 
No F-MC 448 of 23 November 2018 and No 23069 of 27 November 2019, as well 
as the tax inspection report on which those tax assessment decisions are based 
(acts issued by the National Tax Administration Office – Directorate-General for 
the Administration of Large-scale Taxpayers), [and] (ii) the annulment of decision 
No 307 of 25 July 2019, issued by the Agenția Națională de Administrare 
Fiscală – Direcția Generală de Soluționare a Contestațiilor (National Tax 
Administration Office – Directorate–General for the Settlement of Complaints, 
Romania), rejecting the administrative and tax complaint brought against decision 
No F-MC 448 of 23 November 2018. 
2 In fact, the applicant company stated that, during the period from 2015 to 2016, it 
had acquired within the Community the total quantity of 155 486.48 hl of 
alcoholic beverage bearing the trade mark ‘Strongbow’, bottled in cans and 
bottles, which it then sold on the internal market to various of its customers. 
3 At the time of the introduction of the alcoholic beverage in Romania, the applicant 
had classified that product under Combined Nomenclature (‘CN’) code 2206 00 
51 ‘Cider and perry’, using the tariff classification provided by the Bulgarian 
producer from which those products were acquired (the company Zagorka SA), 
namely the tariff classification provided by the Slovak producer (Heineken 
Slovensko). 
4 No excise duty had been paid on the ‘Cider and perry’ products introduced in 
Romania by the applicant company, given that under heading 2206 00 51, the 
excise duty rate in Romania is zero, in accordance with point 3.1.1 of criterion 
HEINEKEN ROMANIA 
 
3 
No 3 of Annex 1 to Title VII of Legea nr. 571/2003 privind Codul fiscal (Law 
No 571/2003 establishing the Tax Code), in force until 31 December 2015, and 
point 3.1.1 of criterion No 3 of Annex 1 to Title VIII of Legea nr. 227/2015 
privind Codul fiscal (Law No 227/2015 establishing the Tax Code), in force from 
1 January 2016. 
5 On 29 September 2015, the Direcția Regională Vamală Craiova – Biroul Vamal 
Dolj (Regional Customs Directorate, Craiova – Dolj Customs Office, Romania; 
‘the Regional Customs Directorate, Craiova’) took samples from six consignments 
of excise goods dispatched by the approved warehouse in Bulgaria of Zagorka 
SA, [more precisely from goods falling under] excise duty heading W200 (Still 
fermented beverages), namely the following types of beverages: (i) ‘Strongbow 
Gold’, bottled in 33 cl bottles and in 40 cl cans, (ii) ‘Strongbow Red Berries’, 
bottled in 33 cl bottles and in 40 cl cans and (iii) ‘Strongbow Elderflower’, bottled 
in 33 cl bottles and in 40 cl cans. 
6 On 17 March 2016, the Regional Customs Directorate, Craiova sent the applicant 
copy No 2 of Certificates of Analysis Nos 456, 457, 458, 459, 460 and 461 of 
23 February 2016, issued by the Central Customs Laboratory of the Directorate–
General of Customs. 
7 Following the tripartite discussion between the company, the tax inspection 
authorities and the representatives of the Directorate-General of Customs, by 
communication No 1647 of 8 March 2018, that directorate-general stated [that] 
‘The proposed tariff classification of the analysed products was under one of 
following CN codes: 22 06 00 39 or 22 06 00 59, [depending] on the measured 
overpressure’. The following considerations were taken into account in 
formulating the tariff classification proposal: ‘according to the information on the 
packaging of the products bearing the trade mark ‘Strongbow’, they contain: Cider 
(composed 25% of fermented apple juice and glucose), water, glucose-fructose 
syrup, malic acid, carbon dioxide, potassium metabisulphite and various 
flavourings. According to that information, the products are mixtures of an 
ingredient called cider and other substances (water, syrup, preservatives, 
flavourings and carbon dioxide), and the cider ingredient is in turn a product 
obtained from a mixture of raw materials subject to fermentation, namely 25% 
apple juice and glucose. The certificates of analysis show that the alcohol 
extracted from the samples originates from both apples and C4 plants (other than 
apples), and that the alcohol derived from plants other than apples has a 
significant proportion in comparison with the alcohol obtained from the 
fermentation of apples. With that in mind, those products cannot be considered as 
beverages obtained from the fermentation of apple juice, given that fermented 
apple juice is only a component of one of the ingredients, and that those products 
contain alcohol derived from plants other than apples in a significant proportion’. 
8 Furthermore, the Directorate-General of Customs communicated with the 
Bulgarian customs authorities, receiving the reply registered with the Directorate-
General of Customs under [Letter] No 19873 of 2 August 2018, to the effect that 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2024 – CASE T-691/24 
 
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the Bulgarian authorities had taken the same view on the tariff classification of the 
product ‘Strongbow apple cider’, agreeing with the proposal to reclassify the 
product under one of the following subheadings: 22 06 00 39 or 22 06 00 59. 
9 As a result of the tariff reclassification, the tax inspection authorities, by taxation 
decision [No 448/23 of 23 November 2018] imposed additional tax liabilities on 
the applicant, namely the obligation to pay excise duty in the amount of 
22 473 840 Romanian lei (RON) and VAT in the amount [of] RON 5 213 296. 
10 Likewise, Decision No 23069 of 27 November 2018 was consequently issued, 
which established additional tax liabilities to those mentioned in taxation decision 
No [448 of 23 November 2018], that is to say, liabilities due by way of penalties 
and default interest. 
11 The applicant brought an administrative challenge against the tax assessment 
decisions and the acts on the basis of which they were issued and, in the context of 
the contested administrative and tax acts being upheld by the body hearing that 
challenge – which considered that the additional tax liability for the products 
‘Strongbow apple cider’ acquired from Zagorka SA Bulgaria had been duly 
imposed on the applicant – the applicant instituted administrative court 
proceedings […] 
12 In the course of the proceedings on the substance of the case, an expert’s report 
was requested, and the expert’s report [of] 21 April 2021 was added to the case 
file, that report having been drawn up by the Autoritatea Națională pentru 
Protecția Consumatorilor – Direcția Laboratoare ‘Larex’ (National Authority for 
Consumer Protection – ‘Larex’ laboratory); the report noted that: 
‘Following a study of the results recorded in the report [of] 21 April 2021, it 
became apparent that the sample analysed had organoleptic characteristics of 
apple cider. It should be pointed out that the taste and olfactory perception of 
apples may also be enhanced by the addition of natural flavouring. The nature of 
the ethyl alcohol, namely the nature of the sugars from which it forms in the 
alcoholic fermentation process, does not influence the organoleptic characteristics 
of the alcoholic beverage cider; 
Physical and chemical characteristics: The alcoholic strength, total sugar (invert 
sugar) and total sulphur dioxide correspond to the limits laid down in the quality 
certificate of 6 July 2020, issued by Zagorka SA Bulgaria for ‘Gold Apple’ cider 
alc 4.5% vol.’ 
13 By civil judgment [of] 2 November 2021, the Court of Appeal Bucharest upheld 
the applicant’s complaint and, accordingly, ordered the partial annulment of the 
tax inspection report No F-MC 239 of 23 November 2018, taxation decision No F-
MC 448 of 23 November 2018 and decision No 307 of 25 July 2019 issued by the 
National Tax Office – Directorate-General for the Settlement of Complaints, by 
which the additional liability by way of excise duty and VAT relating to that 
excise duty had been charged to the applicant. 
HEINEKEN ROMANIA 
 
5 
14 By the same judgment, that court annulled Decision No 23069 of 27 November 
2018, by which additional tax liabilities had been established to those [previously] 
established by taxation decision No F-MC 448 of 23 November 2018. 
15 The Directorate-General for the Administration of Large-scale Taxpayers and the 
National Tax Administration Office (the appellants in cassation) brought an 
appeal in cassation against the civil judgment [of] 2 November 2021, contesting 
the legality of that judgment on the ground of appeal laid down in 
Article 488(l)(8) of the Codul de procedură civilă (Code of Civil Procedure) 
(infringement or misapplication of the rules of substantive law applicable to the 
case). 
16 In essence, the appellant [tax authorities] (defendants at first instance) have argued 
that the court hearing the substance incorrectly annulled the obligations imposed 
by way of excise duties, VAT and related charges, in adopting the initial tariff 
classification of the product bearing the trade mark ‘Strongbow’, acquired from 
the manufacturer Zagorka SA Bulgaria; the appellants take the view that, having 
regard to the nature of the alcohol and the actual composition, as appears from the 
information presented on the label, the product covered by Certificates of Analysis 
Nos 456, 457, 458, 459, 459, 460 and 461 of 23 February 2016, issued by the 
Central Customs Laboratory of the Directorate-General of Customs, cannot be 
classified under the specific tariff subheadings of cider, for which no excise duty 
is due in Romania, but rather under the tariff subheadings ‘Other’ falling within 
the same heading 2206. 
II. Legal provisions applicable in the case 
17 As regards excise duty, the provisions of Article 20612 of Law No 571/2003 are 
applicable for 2015, while the provisions of Article 351(b) of Law No 227/2015 
are applicable for 2016; according the provisions, fermented beverages, other than 
beer and wine, are all products falling under CN code 2206, with the exception of 
other sparkling fermented beverages, which have an alcoholic strength exceeding 
1.2% by volume but not exceeding 13% by volume (for 2016) and 10% by 
volume (for 2015), as well as sparkling fermented beverages falling under CN 
code 2206 00 39, which have an alcoholic strength exceeding 1.2% by volume but 
not exceeding 13% by volume (for 2016) and 10% by volume (for 2015). 
18 According to point No 3, sub-point 3.1 of Annex 1 to Title VII Excise Duty of 
Law No 571/2003, the excise duty rate on purchases of products falling under CN 
code 22 06 00 39 is RON 213.21/hl of product, while the excise duty rate on 
purchases of products falling under CN code 22 06 00 59 is RON 47.38/hl of 
product. 
19 According to [point No 3, sub-point 3.1] of Annex 1 to Title VIII of Law 
No 227/201[5], the excise duty rate on purchases of products falling under CN 
code 22 06 00 39 is RON 47.38/hl of product, while the excise duty rate on 
REQUEST FOR A PRELIMINARY RULING OF 1. 10. 2024 – CASE T-691/24 
 
6  
purchases of products falling within CN code 22 06 00 59 is RON 396.84/hl of 
product. 
20 In Romania, the excise duty rate for the product ‘Cider and perry’ falling under 
tariff code 2206 00 51 is zero, in accordance with point 3.1.1 of criterion No 3 of 
Annex 1 to Title VII of Law No 571/2003 establishing the Tax Code, in force 
until 31 December 2015, and point 3.1.1 of criterion No 3 of Annex 1 to Title VIII 
of Law No 227/2015 establishing the Tax Code, in force from 1 January 2016. 
21 Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014 
amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and 
statistical nomenclature and on the Common Customs Tariff (‘Regulation 
No 1101/2014’) provides for heading 2206: ‘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’. 
22 Commission Implementing Regulation (EU) 2015/1754 of 6 October 2015 
amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and 
statistical nomenclature and on the Common Customs Tariff (‘Regulation 
No 2015/1754’) also provides for heading 2206: ‘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’. 
23 Heading 2206, laid down in Regulation No 1101/2014 and Regulation 
No 2015/1754, is further subdivided into subheadings 2206 00 31, 2206 00 51 and 
2206 00 81, all applicable to cider and perry. 
24 Subheadings 2206 00 39, 2206 00 59 and 2206 00 89 are laid down in Regulation 
No 1101/2014 as being applicable to fermented alcoholic beverages other than 
cider and perry. 
25 The Harmonised System Explanatory Notes define, at point 1 referring to heading 
2206, cider as ‘an alcoholic beverage obtained from the fermentation of apple 
juice’. 
III. Grounds for the request for a preliminary ruling 
26 As is clear from the structure of the case file, the respondent company [(applicant 
at first instance)] submits that the tariff reclassification ordered by the customs 
authority, which led to the imposition of excise duty payable by it, reflects a 
misinterpretation of the rules represented by tariff headings 2206 00 31, 2206 00 
51 and 2206 00 81, relating to the ‘Cider and perry’ product subject to excise 
duty, as provided for by Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, in the 
HEINEKEN ROMANIA 
 
7 
versions resulting from Implementing Regulation No 1101/2014 and 
Implementing Regulation No 2015/1754. 
27 [In addition], the respondent company relies, in support of its claim that the initial 
tariff classification was correct, on the case-law of the Court of Justice as deriving 
from the judgments in Cases C-532/14 and C-533/14. 
28 The High Court of Cassation and Justice considers it necessary, for the purposes 
of determining the appeals brought against the judgment handed down by the 
court ruling on the substance, concerning the additional [tax] liabilities imposed 
on the respondent company by way of excise duty and VAT relating to that excise 
duty, to refer the matter to the Court of Justice, since the conditions laid down in 
Article 267 TFEU are satisfied. 
29 Given the indisputable relevance of the rules of EU law in the present case, which 
define the content of tariff heading 2206 and the related subheadings, referred to 
in Annex I to Regulation No 2658/87, in the versions resulting from Implementing 
Regulation No 1101/2014 and Implementing Regulation No [2015/1754], the 
High Court of Cassation and Justice emphasises that the judgment to be delivered 
in the present appeal will be final, in accordance with the provisions of 
Article 634(1)(5) of the Code of Civil Procedure. 
30 As regards the case-law of the Court of Justice, the High Court of Cassation and 
Justice observes that, to date, no judgment has been delivered clarifying the 
conditions under which tariff reclassification under the same tariff heading 2206 
may be ordered, on the basis that all beverages falling under heading 2206 are 
fermented beverages, other than those expressly listed elsewhere. 
31 In Joined Cases C-532/14 and C-533/14, the Court of Justice analysed the 
conditions to be satisfied for the tariff classification of a product under heading 
2206 or heading 2208; the same may be said of Case C-195/18, where the Court 
of Justice clarified the content of tariff heading 2203. 
32 However, the High Court of Cassation and Justice emphasises that, in the present 
case, the tariff reclassification was ordered within the same tariff heading 2206, 
which is common to all the fermented beverages listed in the subheadings of 
heading 2206. 
33 Lastly, the High Court of Cassation and Justice considers it necessary to refer to 
the judgment of the Court of Justice handed down in Case C-150/0[8], in which 
the latter ruled on the tariff classification of products manufactured from cider to 
which distilled alcohol, water, sugar syrup, various aromas and colourings are 
added and, in the case of ‘Piña Colada’ and ‘Whiskey Cream’, a cream base. The 
end products have an alcoholic strength by volume of 14.5%, of which 2.5% from 
alcohol fermented from cider and 12% from added distilled alcohol. 
34 In paragraph 35 of the judgment in Case C-150/0[8], the Court of Justice held that 
a number of objective characteristics and properties may be taken into account for 
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the purpose of determining essential character within the meaning of Rule 3(b) of 
the CN. Thus, the Court of Justice found that the contribution of distilled alcohol 
contained in the products at issue to the volume and alcoholic strength of those 
products is determinative, but not exclusively so. Next, in paragraphs 36 and 37 of 
that judgment, the Court of Justice examined the organoleptic characteristics of 
those products, and in paragraph 38 their intended use, and in paragraph 39 
reached a solution brought about by an overall assessment of those three criteria; 
it concluded that the objective characteristics and properties of products such as 
those at issue in the main proceedings, including their form, colour and name 
under which they are marketed, correspond to those of a spirituous beverage. 
35 Recalling that the question at issue in the present case is the tariff classification of 
a product which undeniably belongs to the category of fermented beverages under 
heading 2206, it is imperative to determine to what extent a beverage partially 
obtained from the fermentation of apple juice, and in respect of which the 
certificates of analysis issued by the customs authorities have shown that the 
proportion of alcohol derived from plants other than apples is equal at least of 
48%, 50%, 51%, 52% or 53% (depending on the type of Strongbow beverage, 
whether bottled in 33 cl bottles or 40 cl cans), must be classified in the category of 
cider (subheading 2206 00 39) or under one of the subheadings 2206 00 59 
(other). 
36 The need to refer the matter to the Court of Justice is necessary, in the assessment 
of the High Court of Cassation and Justice, as well as in view of the fact that the 
Bulgarian customs authority agrees with the tariff reclassification established by 
the Romanian customs authority, pointing out that the origin of alcohol and 
organoleptic properties are two decisive criteria for tariff classification and, in the 
light of the information provided by the Romanian authorities, states that it ‘can 
accept’ the classification of the beverages at issue under one of the subheadings 
specific to other fermented beverages, and not cider. 
37 The respondent company, for its part, argues that the Belgian customs authorities 
have accepted the tariff classification for similar products under the specific cider 
subheadings, relying on the binding tariff information included in the case file, 
thereby giving rise to the risk of non-uniform interpretation of EU law. 
[…] 
ON THOSE GROUNDS  
IN THE NAME OF THE LAW  
ORDERS 
[…] 
The High Court of Cassation and Justice refers the [following] question to the 
Court of Justice of the European Union for a preliminary ruling: 
HEINEKEN ROMANIA 
 
9 
‘In the interpretation of Annex I to Council Regulation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff, in the 
versions resulting from Commission Implementing Regulation (EU) No 1101/2014 
of 16 October 2014 and from Commission Implementing Regulation (EU) 
[No 2015/1754] of 6 October 2015, must a beverage such as the one at issue in 
the main proceedings, composed of concentrated fermented apple juice (25%), 
water, glucose-fructose syrup, malic acid, carbon dioxide, potassium 
metabisulphite, and various flavourings – and in which the proportion of alcohol 
derived from plants other than apples is equal at least to 48%, 50%, 51%, 52% or 
53% (depending on the type of Strongbow beverage, whether bottled in 33 cl 
bottles or in 40 cl cans) in comparison with the alcohol obtained from the 
fermentation of apples – but which has the organoleptic characteristics of cider, 
be classified under tariff headings 2206 00 31, 2206 00 51, 2206 00 81 or under 
tariff headings 2206 00 39, 2206 00 59?’ 
[…]