Summary;Judgment — ECLI:EU:C:2021:444
Date: 2021-06-03
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-822/19 — 1 
Case C-822/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 November 2019 
Referring court: 
Curtea de Apel Alba Iulia (Romania) 
Date of decision to refer: 
9 October 2019 
Appellants, defendants at first instance: 
Direcția Generală Regională a Finanțelor Publice Brașov 
Agenția Națională de Administrare Fiscală — Direcția Generală a 
Vămilor — Direcția Regională Vamală Brașov — Biroul Vamal de 
Interior Sibiu 
Respondent, applicant at first instance: 
Flavourstream SRL 
  
Subject matter of the main proceedings 
Appeal lodged by the defendants at first instance, the Direcția Generală Regională 
a Finanțelor Publice Brașov (Regional Directorate of Public Finances, Brașov) 
and the Agenția Națională de Administrare Fiscală — Direcția Generală a 
Vămilor — Direcția Regională Vamală Brașov — Biroul Vamal de Interior Sibiu 
(National Tax Administration Office — Directorate-General for Customs — 
Regional Directorate for Customs, Brașov — Customs Office of the Interior, 
Sibiu) against the judgment of the Tribunalul Sibiu (Regional Court, Sibiu) 
ordering the annulment of the decisions which imposed supplementary tax charges 
on the applicant at first instance, Flavourstream SRL, following the 
reclassification of certain imported products under another tariff subheading of the 
Combined Nomenclature. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-822/19 
 
2  
Subject and legal basis of the request for a preliminary ruling 
An interpretation of tariff subheadings 1702 90 95 and 2912 49 00 of Council 
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff is requested pursuant to 
Article 267 TFEU. 
Question referred 
Must the nomenclature in Annex I to Regulation No 2658/87, as amended by 
Implementing Regulation 2016/1821, be interpreted as meaning that the product 
‘AURIC GMO FREE’, which is at issue in the present case, is to be classified 
under tariff subheading 1702 90 95 or subheading 2912 49 00 of that 
nomenclature? 
Provisions of European Union law relied on 
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 
Implementing Regulation (EU) 2016/1821 of 6 October 2016 amending Annex I 
to Council Regulation (EEC) No 2658/87 — Annex I, tariff subheadings 1702 90 
95 and 2912 49 00 
Provisions of national law relied on 
Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 establishing the Tax 
Code) — Article 140, which lays down a reduced rate of VAT for the supply of 
foodstuffs. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 5 June 2015, the respondent, applicant at first instance, submitted to the Biroul 
Vamal de Interior Sibiu a customs declaration concerning the importation of 3 300 
kg of aqueous solution obtained by the thermal decomposition of dextrose, used in 
the food industry, and called ‘AURIC GMO FREE’. 
2 The goods were imported from Canada under declared TARIC code 1702 90 95 
00, a heading which includes ‘Sugar, syrups and other sugar products/other’. 
Customs duties amounted to RON 1 938 and VAT, at the rate of 9%, amounted to 
RON 19 025. 
3 Subsequently, the respondent, applicant at first instance, was subject to an 
inspection by the Biroul Vamal de Interior Sibiu, which resulted in the issue of a 
rectification decision imposing additional tax charges (customs duties and VAT) 
FLAVOURSTREAM 
 
3 
totalling RON 102 079 as a consequence of the finding that the product ‘AURIC 
GMO FREE’ had been wrongly classified under tariff subheading 1702 90 95 00. 
4 At the time of the inspection laboratory analyses were carried out and, on the basis 
of the certificates of analysis, the customs inspection body established that that 
product actually falls under TARIC code 2912 49 00 90 relating to ‘Aldehydes, 
whether or not with other oxygen function; cyclic polymers of aldehydes; 
paraformaldehyde/other’, and that a higher tariff for customs duties and rate of 
VAT apply to the respondent, applicant at first instance. 
5 The respondent, applicant at first instance, brought an action in tax proceedings 
against the decision of the inspection body, seeking annulment of the decisions 
imposing additional tax charges and an exemption from payment of the additional 
charges, interest and penalties for late payment due on account of the 
classification of the product under a different tariff subheading. 
6 At first instance, the Tribunalul Sibiu — Secția a II-a civilă și de contencios 
administrativ (Regional Court, Sibiu — Chamber for Civil and Administrative 
Proceedings) upheld the action, annulled the contested decisions and exempted the 
applicant at first instance from payment of the additional tax charges laid down in 
those decisions. 
7 In the judgment under appeal, the court of first instance ruled that the applicant 
had correctly classified the product ‘AURIC GMO FREE’ under tariff subheading 
1702 90 95 00 and that the classification made by the appellants, defendants at 
first instance, under tariff subheading 2912 49 00 90 — aldehydes, was not 
correct. The court of first instance held that the data sheet drawn up by the 
producer showed that the product ‘AURIC GMO FREE’ is made from heat-
treated sugar and used in the food industry to flavour food: it constitutes a ‘food or 
foodstuff’ within the meaning of the national law. 
8 The court of first instance also based its decision on the definition of the term 
‘food’ set out in Regulation (EC) No 178/2002 and the definitions of 
‘flavourings’, ‘flavouring substances’ and ‘food additives’ provided by 
Regulations (EC) No 1334/2008 and No 1333/2008. 
9 Consequently, the court found that the chemical expert’s conclusions were correct, 
namely that the product ‘AURIC GMO FREE’ is an aqueous mix of chemical 
products: water-soluble aldehydes and ketones, obtained from enzymatic 
oxidation or thermal reactions of monosaccharides (natural food sweeteners) and 
used in the food industry as a colouring additive or smoke flavouring, as provided 
for in Lists B and C of Regulation (EC) No 1333/2008, under the designation E 
150a plain caramel. 
10 Therefore, that product in Annex I to 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, must be classified under Section IV, ‘Prepared foodstuffs; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-822/19 
 
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beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes’, 
TARIC code 1702 90 95 00. 
11 The appellants, defendants at first instance, lodged an appeal against the judgment 
at first instance before the referring court, the Curtea de Apel Alba Iulia — Secția 
de contencios administrativ și fiscal (Court of Appeal, Alba Iulia — Chamber for 
Administrative and Tax Proceedings). 
12 In their appeal, the appellants, defendants at first instance, criticised, inter alia, the 
fact that the court of first instance infringed the provisions of Regulation 
No 2658/87 on the tariff nomenclature, as well as the explanatory notes to the 
harmonised system relating to the general rules for the interpretation of the 
harmonised system, by classifying the product ‘AURIC GMO FREE’ under tariff 
subheading 1702 90 95 00, rather than tariff heading 2912 49 00 90. 
The essential arguments of the parties to the main proceedings 
13 According to the respondent, applicant at first instance, the product ‘AURIC 
GMO FREE’ is obtained from a sugar solution for food use (dextrose), which by 
means of controlled heating is broken down into simpler fragments, such as 
hydroxy-acetaldehyde, methylglyoxal and furfural. Although in conventional 
chemistry hydroxy-acetaldehyde is an aldehyde, in food chemistry it is used as a 
lower sugar which affects the aroma and consistency of foodstuffs following 
heating, and falls within the scope of Regulation (EC) No 1334/2008 of the 
European Parliament and of the Council of 16 December 2008. Hydroxy-
acetaldehyde is in practice a lower sugar and essential key component in giving a 
foodstuff the aroma and consistency of browning and a brown colour. It is also a 
component which is found in high concentrations in smoke flavourings where 
these are produced from wood cellulose used to manufacture liquid smoke 
flavourings. 
14 In its view, the product ‘AURIC GMO FREE’ is applied to foodstuffs such as 
meat, chicken or bread using an atomisation or pulverisation process and, after 
heating in the oven, it reacts with the food proteins, giving the products an aroma 
and consistency similar to that obtained from a browning process. The foodstuff 
will look as if it had been treated with sugar before being prepared. If dextrose or 
sugar had been added directly to a foodstuff, and it had been heated in the oven, 
the dextrose/sugar would have broken down into simpler fractions, such as 
hydroxy-acetaldehyde, reacting with the meat proteins. Use of the product 
‘AURIC GMO FREE’, in which the sugar has already been broken down, is 
intended merely to reduce the processing time of the foodstuffs. 
15 The respondent, applicant at first instance, also stated that the product ‘AURIC 
GMO FREE’ is considered to be a foodstuff since it is obtained from dextrose 
and, following a controlled heating process, used in the food processing industry. 
Since the product ‘AURIC GMO FREE’ is a sugar derivative and is reused in the 
food industry as a lower sugar solution, it must be classified under TARIC code 
FLAVOURSTREAM 
 
5 
1702 90 95. The goods classification in Annex I to Implementing Regulation (EU) 
2015/1754, includes in Section IV, ‘Prepared foodstuffs; beverages, spirits and 
vinegar; tobacco and manufactured tobacco substitutes’, at point 17, ‘Other, 
including invert sugar and other sugar and sugar syrup blends containing in the 
dry state 50% by weight of fructose’ and it is therefore clear that the product 
‘AURIC GMO FREE’ falls within that category. 
16 According to the appellants, defendants at first instance, the chemical process 
for obtaining the product ‘AURIC GMO FREE’ involves the processing of the 
glucose solution (dextrose) into ethanol through yeast action and subsequently, by 
means of slight oxidation, the processing of the ethanol into acetaldehyde, which 
cannot lead to the classification of the final product — acetaldehyde — under 
tariff heading 1702 90 95 00 since that is the code under which the raw material, 
namely glucose, is classified. Given the fact that the two stages of processing to 
which the raw material has been subjected are irreversible, it is impossible for the 
final product to be classified under the tariff heading of the raw material, since the 
raw material and the finished product are two completely different products. 
17 Moreover, while the product ‘AURIC GMO FREE’ — an aqueous solution of 
hydroxy-acetaldehyde — contains no sugar at all, as mentioned in the analysis 
reports, it is clear that it cannot be classified under the heading ‘Other, including 
invert sugar and other sugar and sugar syrup blends containing in the dry state 
50% by weight of fructose’. Therefore, the product ‘AURIC GMO FREE’ must be 
classified under TARIC code 2912 49 00 90 relating to ‘Aldehydes, whether or 
not with other oxygen function; cyclic polymers of aldehydes; 
paraformaldehyde/other’. 
18 In their view, the logic of grouping products in the Combined Nomenclature 
depends also, inter alia, on the material used to make the goods, the way in which 
they are used, that is to say the intended purpose or function of the product, and 
the degree to which the product is processed. Products with a low degree of 
processing, essentially natural products, are normally included in the initial part of 
the Combined Nomenclature, in the initial sections, while those with a greater, 
more complex, degree of processing, such as industrial products, are included in 
the final part. The same logic applies within the sections: the initial part describes 
the original product, followed by its derivatives. 
19 In the light of such a method for establishing the tariff classification, the product 
‘AURIC GMO FREE’ is derived from glucose (Chapter 17), as a result of yeast 
action it transforms into the intermediate product ethanol (Chapter 22) and by 
slight oxidation becomes the finished product — acetaldehyde (Chapter 29). It is 
clear that, as the degree of processing of the product increases, the TARIC chapter 
relating to each of stage of evolution of the product also implicitly changes in 
ascending order. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-822/19 
 
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Succinct presentation of the reasons for the reference 
20 The referring court states that the outcome of the dispute before it depends on the 
interpretation of the Combined Nomenclature, and more specifically the 
classification of the product ‘AURIC GMO FREE’ under tariff subheading 1702 
90 95 or tariff subheading 2912 49 00.