Opinion of the Advocate General — ECLI:EU:C:2016:23
Date: 2016-01-19
Language of the case: Dutch
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the parties’ submissions 41. With the exception of the Commission, the parties replied first to the question, in Case C‑533/14, concerning the classification of the beverage Ferm Fruit and then to the question concerning the other beverages, before moving on to the question concerning Petrikov Creamy Green in Case C‑532/14. For the purposes of both summarising the parties’ submissions and examining the questions referred, I shall follow the same structure, which I consider to be more coherent. A – The first question in Case C‑533/14 42. Toorank Productions submits that Ferm Fruit must be classified under CN heading 2206. It states that it is a product obtained by fermentation and that there are other fermented alcoholic beverages subjected to purification (filtration) processes, such as sake, which are classified under CN heading 2206. It also considers that that product has not lost the objective characteristics or properties of fermented beverages within the meaning of heading 2206 and that the explanatory notes of the CN and the HS preclude Ferm Fruit from being associated with liqueurs or other distilled beverages, since both sets of notes exclude fermented beverages from the scope of heading 2208. 43. The Netherlands Government argues that Ferm Fruit should be classified under heading 2208, in the light of its organoleptic characteristics and its intended use. It explains that the numerous filtrations to which the product is subjected make it a neutral beverage, without smell or taste, that is devoid of the properties typical of goods under heading 2206. It submits that a low alcoholic strength by volume is irrelevant from the point of view of classification under heading 2208. So far as concerns the intended use of Ferm Fruit, it states that it serves principally as a base for the manufacture of other alcoholic beverages and that, although, at the time of the material facts, it was sold for human consumption, this has not happened for some time. 44. The Greek Government relies on the same arguments as the Netherlands Government in order to support Ferm Fruit’s classification under heading 2208. It emphasises the fact that the fermented beverage is obtained to a large extent from sugar and to a much lesser extent from the juice of apple concentrate, which fact, combined with the filtration techniques used to obtain it, gives it the neutral characteristics to which the Netherlands Government refers. 45. Like the previous two governments, the Polish Government also advocates Ferm Fruit’s classification under CN heading 2208. It considers that, in accordance with the HS explanatory notes to heading 2207, the method by which the beverage is manufactured converts it into ethyl alcohol. Nonetheless, given its alcoholic strength by volume, it should be included under CN subheading 2208 90 91 or 2208 90 99. It further contends that, in accordance with the judgment in Cramer, (12) a liquid such as the beverage base at issue, which has lost its organoleptic characteristics as a result of a filtration process and has a low alcoholic strength, must be classified under heading 2208, even if it has been obtained by fermentation. The Polish Government goes on to say that the WCO corroborated that position in the classification decisions adopted at the 46th Session of the Harmonised System Committee. 46. The Commission too refers to the amendments made by the HS Committee to the HS explanatory notes to headings 2207 and 2208, and submits that these support the same conclusion as the judgment in Cramer, (13) which is to say that fermented beverages subsequently subjected to filtration processes should be classified under heading 2208. Moreover, it considers that the fact that apple juice concentrate accounts for 1% of the total volume of the beverage in question is not a sufficient or convincing characteristic on the basis of which to treat it as a fruit wine under CN heading 2206. Given the properties of Ferm Fruit, the Commission classifies it under subheading 2208 90 (‘other beverages’). B – The second question in Case C‑533/14 (classification of the other beverages) 47. As regards the other beverages referred to in the second question in Case C‑533/14, Toorank Productions states that these are aromatised apple wines the classification of which is not dictated by added ingredients such as sugar, aromatic substances, colouring and flavouring agents, thickening agents and/or preservatives. It rejects the proposition that these beverages should be included in heading 2208 on the ground that they do not contain distilled alcohol, which fact, combined with their low alcoholic strength, precludes their treatment as liqueurs. It goes on to say that the other beverages are marketed as apple wine, are intended for human consumption and, for that reason, must, like the Ferm Fruit beverage base, be classified under heading 2206, in accordance with general rules of interpretation 1, 4 and 6. 48. The Netherlands Government states that the aforementioned additives give these other beverages the organoleptic characteristics of products falling within heading 2208, in particular liqueurs. In its opinion, that view is endorsed by the HS explanatory notes to heading 2206 and the examples which they give of liqueurs generally low in alcohol. Finally, so far as concerns their intended use, the Netherlands Government draws attention to the appellant’s marketing of the other beverages as products falling within heading 2208, in particular by associating them with vodka. 49. The Greek Government takes the view that, because of the neutral character of Ferm Fruit, the characteristics of the other beverages are attributable only to the substances added to them (sugars, aromatic substances and so on, and, in one case, a cream base), which preclude their classification under heading 2206. Furthermore, unlike the explanatory notes relating to heading 2208, those relating to heading 2206 do not provide for the possibility of adding these types of substance or additives to the products covered by the latter heading. 50. The Polish Government shares the view of the other two governments that the other beverages should be included in heading 2208. It does so on the ground that any mixture of ethyl alcohol and beverages or substances such as those mentioned in the explanatory notes (of both the HS and the CN) relating to heading 2208 necessarily causes the beverages so obtained to be classified under that heading. It has doubts, however, about which subheading represents a suitable classification for the other beverages based on Ferm Fruit, given the insufficient information on the method by which these are manufactured. 51. The Commission puts forward a number of arguments common to this question and that relating to Petrikov Creamy Green. In particular, it refers to the three criteria set out in the judgment in Siebrand (14) for the purposes of classifying a final product obtained from the beverage base, which must be assessed together, and emphasises the importance of analysing the product’s organoleptic characteristics. If a beverage manufactured from a particular fruit (heading 2206) loses those characteristics, it must be classified under heading 2208. As regards the intended use of the product, the Commission considers this to be just one objective classification criterion that must be assessed by reference to the product’s objective properties. However, it does not express a clear view on the classification of the other beverages. C – The question referred for a preliminary ruling in Case C‑532/14 (Petrikov Creamy Green) 52. Toorank Productions considers that, since the added distilled alcohol is the only feature of Petrikov Creamy Green that distinguishes it from the beverages referred to in the second question in Case C‑533/14, the safest legal test is to compare only the proportion of alcohol present in the product. In its view, any requirement to verify the product’s organoleptic characteristics, as would follow from paragraph 36 of the judgment in Siebrand, (15) would pave the way for subjective assessments that would inevitably lead to differing opinions, thus compromising the uniform application of the CN. If beverages with a distilled alcohol content of more than 51% must be classified under heading 2208, Petrikov Creamy Green, the distilled alcohol content of which is no more than 49%, should be classified under CN subheading 2206 00 93 or 2206 00 99. 53. The Netherlands Government inclines to the view that the beverage Petrikov Creamy Green should be included under heading 2208, and, more specifically, as a liqueur under subheading 2208 70, on the ground that the judgment in Siebrand (16) did not establish alcoholic strength by volume as the only criterion for classifying alcoholic beverages under one or other heading. Since it has lost the organoleptic characteristics typical of fermented beverages, Petrikov Creamy Green cannot be classified under heading 2206, but must come under the heading covering the products to which it is similar. Finally, it submits that the beverage in question has the organoleptic characteristics and essential character of a liqueur. 54. As in the case of the other beverages, the Greek Government considers that most of the alcohol in Petrikov Creamy Green comes from the fermented sugar used in Ferm Fruit. This fact having persuaded the Greek Government that the beverage base should be classified under heading 2208, it cannot but support the inclusion of Petrikov Creamy Green under that heading. It further submits that, in the case of Petrikov Creamy Green too, the added substances give the product the organoleptic characteristics of the beverages under heading 2208. 55. The Polish Government contends that the description of the method by which the beverage is produced, in particular the addition of distilled alcohol, dictates its classification under CN subheading 2208 70 10. 56. Following on from its explanations as set out in point 51 of this Opinion, the Commission argues that, in so far as it based the criterion established in the judgment in Siebrand (17) on the proportion of distilled alcohol in relation to the alcoholic strength by volume, the Court did not lay down any rule to the effect that the presence in either type of alcohol, whether distilled or fermented, of an alcoholic strength by volume in excess of 50% necessarily triggers the classification of a beverage under a particular heading, namely 2206 or 2208. Consequently, since Petrikov Creamy Green has acquired the objective characteristics of a liqueur, it considers that that product must be classified under heading 2208 70. VI – Assessment A – Preliminary observation and proposed approach 57. When the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, it is now customary to make the point that its task is to provide the national court with guidance on the criteria which will enable that court to classify the products at issue in the main proceedings correctly in the CN, rather than to effect that classification itself. (18) 58. The rationale for that distribution of tasks is that the national courts are in the best situation to make the classification. Nonetheless, in a spirit of cooperation with national courts, the Court of Justice has repeatedly reserved the right to provide them with all the guidance it deems necessary in order to give them a useful answer. (19) In most cases, this has had the precise effect of prompting the Court to go as far as to indicate the CN subheading appropriate to the goods at issue in each dispute. I nonetheless consider it appropriate to adhere to the aforementioned distribution of tasks and for that reason I shall confine my submissions to proposing only those criteria that may help the Hoge Raad to identify the suitable heading in each case. B – The first question in Case C‑533/14 59. The referring court needs to know whether a beverage such as Ferm Fruit, which is obtained by fermenting apple concentrate, has an alcoholic strength by volume of 16% and is neutral from the point of view of smell, colour and taste as a result of its purification by various filtration methods, is to be classified under CN heading 2206 or 2208. 60. In order to answer that question, it is important first of all to recall the settled case-law to the effect 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 of the notes to the sections or chapters. (20) Moreover, as the security and rapidity of business logically require, those objective characteristics and properties must be capable of being ascertained at the time when customs clearance is obtained. (21) 61. Secondly, the Court of Justice has repeatedly held that the notes preceding the chapters of the Common Customs Tariff and the explanatory notes (drawn up by the European Commission as regards the CN and by the WCO as regards the HS) are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force. (22) In any event, given that they are directly linked to the body that draws them up, those notes must be recognised as having significant interpretative value, (23) inasmuch as they embody the voluntas legislatoris of the Contracting Parties to the HS Convention. 62. Thirdly, unlike the facts that gave rise to the judgment in Siebrand, (24) the present case does not concern mixed products to which a particular CN heading is devoted. Consequently, the applicable rule of interpretation is not subsidiary rule 3(b), which is concerned with mixed products, but rule 1, according to which the goods in the CN must be classified according to the terms of the headings and section or chapter notes as well as those of the explanatory notes. 63. Those premisses having been established, it is certain that Ferm Fruit acquires its alcoholic strength by volume, at least at the outset, from the fermentation of the sugar and apple concentrate that occurs following the addition of yeast (see point 14 of this Opinion). Consequently, in order to establish the heading appropriate to that product, recourse must be had to the HS explanatory note relating to heading 2206, concerning fermented beverages. The third paragraph of that note states that the beverages included in heading 2206 remain classified in that heading even when fortified with added alcohol, provided that they retain the character of products falling in that heading, that is to say fermented beverages. 64. Although, in principle, the question of whether the product at issue has lost the organoleptic characteristics of fermented beverages is a point of fact to be assessed by the referring court and a matter not open to debate in the context of preliminary ruling proceedings, there are various indications that can be used as a basis for producing guidance that will be of assistance to the Hoge Raad in its decision as to whether there was an error in the appeal court’s interpretation of the CN headings. 65. It thus follows from the order for reference that, after the beverage had been purified (filtration process), the liquid became neutral from the point of view of smell, taste and colour. The neutral character of what are the essential qualities of a beverage makes Ferm Fruit akin to low-strength ethyl alcohol, and in particular to the liqueurs under CN heading 2208, as the Court has held in its case-law (25) and as the governments which have participated in these proceedings have essentially argued. 66. Moreover, as the Court has also held, the various filtration (purification) processes to which Ferm Fruit is subjected exclude it from classification as a fermented beverage under heading 2206, as it is not manufactured only by fermentation. (26) 67. Although some of the parties have sought to classify the product at issue by recourse also to the criterion of its intended use, I do not consider this to be relevant in the present case. After all, the Court has already established in its case-law that that criterion is relevant only where the classification can be made solely on the basis of the objective characteristics and properties of the product. (27) 68. The case-law cited in the preceding points indicates that the organoleptic characteristics of beverages such as Ferm Fruit, which are neutral from the point of view of taste, smell and colour and have been subjected to purification processes, are those of distilled alcohol under heading 2208 and, more specifically, that the beverage is similar to a liqueur. In those circumstances, there is no need to pursue the examination any further, given that the product can be classified on the basis of those characteristics. 69. In the light of the foregoing explanations, I propose that the answer to the first question referred by the Hoge Raad in Case C‑533/14 should be that a beverage such as Ferm Fruit, which has been obtained by fermenting apple concentrate, has an alcoholic strength by volume of 16% and is neutral from the point of view of smell, colour and taste as a result of having been purified by various filtration methods, must be classified under heading 2208, which relates, inter alia, to liqueurs. C – The second question in Case C‑533/14 70. The referring court wishes to ascertain whether beverages obtained by adding to Ferm Fruit various substances such as sugar, aromatic substances, colouring and flavouring agents, thickening agents and preservatives, but not distilled alcohol, are to be classified under heading 2206 or heading 2208. 71. The answer to that question calls for a number of preliminary observations. First, I consider that, although the question itself is written in the singular (that is to say that it refers to a single beverage), it is clear from the order for reference that the Hoge Raad seeks an answer in respect of various beverages. 72. Secondly, I agree with the Polish Government that, since the information supplied is incomplete, any interpretative guidelines that may be given here will necessarily be of a general nature and will not provide a basis on which to identify the appropriate subheading for the products in question. 73. Thirdly and finally, although the addition of substances to Ferm Fruit raises an issue similar to that in Case C‑532/14, the difference in the distilled alcohol content in that case justifies a separate examination of those questions. 74. That said, I am of the opinion that the solution can be inferred from the classification of the beverage base, as explained in the previous question. I share the Greek Government’s view that, because of the high proportion of alcohol resulting from the fermentation of the other beverages, and the neutrality of their organoleptic qualities, the characteristics of the beverages obtained by adding substances to Ferm Fruit can only come from those substances. 75. Consequently, the added substances could be regarded as also being classifiable under heading 2206 only if they gave to the other beverages the essential characteristics of fermented beverages. In theory, that result could be achieved by, for example, adding to Ferm Fruit a beverage which has only been fermented, but not purified. That, however, is not the situation described by the referring court. It is clear from the documents submitted by the Hoge Raad that the substances added to the other beverages are, in particular, aromatic substances and sugar. 76. Moreover, the addition of sugar and aromatic substances is specifically, and expressly, provided for, as a means of obtaining spirits, liqueurs and other spirituous beverages, in the CN explanatory note relating to heading 2208, but not in that relating to heading 2206, as the Greek Government points out. Although it is true that that document refers to the addition of sugar and aromatic substances to distilled alcohol, it may be extended to the case of beverages using Ferm Fruit as their base by recourse to the legal fiction of treating that product as a spirituous beverage, probably a liqueur, because of its organoleptic characteristics. 77. I therefore propose, in answer to the second question referred for a preliminary ruling in Case C‑533/14, that the beverages obtained by adding to Ferm Fruit a number of substances such as sugar, aromatic substances, colouring and flavouring agents, thickening agents and preservatives, but not distilled alcohol, must be classified under heading 2208. D – The question referred in Case C‑532/14 (Petrikov Creamy Green) 78. The Hoge Raad asks the Court to determine which of the two headings, 2206 or 2208, is to be regarded as the appropriate classification for a beverage with an alcoholic strength by volume of 13.4% which is obtained by mixing the purified alcoholic beverage (base) (that is to say, Ferm Fruit) with sugar, aromatic substances, colouring and flavouring agents, thickening agents, preservatives and distilled alcohol, bearing in mind that distilled alcohol does not represent, by volume or as a percentage, more than 49% of the alcohol contained in the beverage, the remaining 51% consisting of alcohol obtained by fermentation. 79. As I indicated earlier, the particular feature of this question lies in the fact that the composition of Petrikov Creamy Green includes distilled alcohol in addition to the originally fermented alcohol derived from the beverage Ferm Fruit. It is therefore appropriate to address it separately given the need to interpret the judgment in Siebrand (in particular, paragraphs 35 to 38 thereof), (28) in the light of the Hoge Raad’s view as to the relevance of that judgment. 80. In Siebrand, (29) the Court had to decide which of the two substances under headings 2206 and 2208 respectively, fermented or distilled alcohol, gave to beverages containing both alcohols their essential character. In paragraph 35 of that judgment, the Court states that a number of objective characteristics and properties may be taken into account and that distilled alcohol accounted for not only more of the total volume of the beverages, but also more of their alcohol content than fermented alcohol. The Court then went on to examine the organoleptic characteristics (paragraphs 36 and 37 of the judgment) and intended use of the product (paragraph 38), although there is no need to reproduce that analysis here. 81. The doubt raised by the Hoge Raad in Case C‑532/14 has to do with the scope of paragraph 35 of the judgment in Siebrand. (30) It asks whether, as Toorank Productions suggests, that paragraph establishes an absolute criterion to the effect that, where the proportion of one of the alcohols is higher than that of the other type, there is no need to examine the criteria relating to the organoleptic characteristics and intended use of the product. 82. I share the Commission’s view that, in paragraph 35 of the judgment in Siebrand, (31) the Court did not seek to establish a criterion whereby the fact that one of the types of alcohol, fermented or distilled, accounts for more than 50% of the alcoholic strength by volume necessarily means that a beverage must be classified under heading 2206 or 2208, depending on which of the two types of alcohol predominates. 83. I consider that an understanding of the judgment in Siebrand (32) as proposed by Toorank Productions can only result from a biased or incomplete reading of it. 84. After all, in that case, the Court had applied to situations involving mixed products CN rule of interpretation 3(b), which required it to identify the material that gave the products in question their essential character. (33) In paragraph 35, it clearly stated that it would take into account a number of objective characteristics and properties, citing in particular, by way of a first example only, the greater proportion of distilled alcohol. This is understandable given that the products in question had an alcoholic strength by volume of 14.5%, of which distilled alcohol accounted for 12% and fermented alcohol only 2.5%. (34) In this situation, it seems obvious that the proportion of distilled alcohol, being considerably greater than that of fermented alcohol, should stand out as a characteristic of the beverages. 85. Moreover, in paragraphs 36 and 37 of that judgment, the Court analysed the products’ organoleptic characteristics and, in paragraph 38, their intended uses, arriving at a conclusion, in paragraph 39, based on an overall assessment of the aforementioned three criteria. 86. The foregoing supports the inference that the existence, if any, of a greater proportion of one type of alcohol than another is only one of a number of criteria applicable when it comes to deciding, in accordance with CN rule of interpretation 3(b), which material gives the products their essential character. 87. I therefore incline to the view that, in the case of Petrikov Creamy Green, the criterion laid down in paragraph 35 of the judgment in Siebrand (35) is not applicable. After all, the ratio of 51% fermented alcohol to 49% distilled alcohol does not provide sufficient clarity as to which substance defines the product’s essential character. 88. Consequently, the assessment falls once again to be carried out by reference to the criterion of the product’s organoleptic properties or characteristics. Since the proportion criterion is the only real difference between this question and the second question in Case C‑533/14, the response to the doubts concerning the classification of Petrikov Creamy Green is based on the same assumptions, to which I refer. 89. In short, I consider that the answer to the question referred for a preliminary ruling by the Hoge Raad in Case C‑532/14 must be that a beverage with an alcoholic strength by volume of 13.4% which is obtained by mixing a purified alcoholic beverage known as ‘Ferm Fruit’, itself obtained by fermentation from apple concentrate, with sugar, aromatic substances, colouring and flavouring agents, thickening agents, preservatives and distilled alcohol must be classified under CN heading 2208, even though that alcohol does not represent, either by volume or as a percentage, more than 49% of the alcohol contained in the beverage and the remaining 51% is made up of alcohol resulting from fermentation. VII – Conclusion 90. In the light of the arguments set out above, I propose that the Court’s answers to the questions referred should be as follows: In Case C‑533/14: (1) A beverage such as Ferm Fruit, which has been obtained by fermenting apple concentrate, has an alcoholic strength by volume of 16% and is neutral from the point of view of smell, colour and taste as a result of having been purified by various filtration methods, must be classified under CN heading 2208, which relates, inter alia, to liqueurs. (2) The beverages obtained by adding to ‘Ferm Fruit’ a number of substances such as sugar, aromatic substances, colouring and flavouring agents, thickening agents and preservatives, but not distilled alcohol, must be classified under CN heading 2208. In Case C‑532/14: (3) A beverage with an alcoholic strength by volume of 13.4% which is obtained by mixing a purified, alcoholic beverage known as ‘Ferm Fruit’, itself obtained by fermentation from apple concentrate, with sugar, aromatic substances, colouring and flavouring agents, thickening agents, preservatives and distilled alcohol must be classified under CN heading 2208, even though that alcohol does not represent, either by volume or as a percentage, more than 49% of the alcohol contained in the beverage and the remaining 51% is made up of alcohol resulting from fermentation. 1 Original language: Spanish. 2 Decision of 7 April 1987 (OJ 1987 L 198, p. 1). 3 Established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983 (‘the HS Convention’). 4 OJ 1987 L 256, p. 1. 5 Only the notes published in the two languages of the WCO, French and English, are official. 6 Case C‑150/08, EU:C:2009:294. 7 Case C‑150/08, EU:C:2009:294. 8 Case C‑150/08, EU:C:2009:294. 9 Case C‑339/09, EU:C:2010:781. 10 Paderborner Brauerei Haus Cramer (C‑196/10, EU:C:2011:487), ‘judgment in Cramer’. 11 Case C‑150/08, EU:C:2009:294. 12 Case C‑196/10, EU:C:2011:487. 13 Case C‑196/10, EU:C:2011:487. 14 Case C‑150/08, EU:C:2009:294. 15 Idem. 16 Idem. 17 Case C‑150/08, EU:C:2009:294. 18 See, by way of only two very recent examples, the judgments in Amazon EU (C‑58/14, EU:C:2015:385, paragraph 17); and Rohm Semiconductor (C‑666/13, EU:C:2014:2388, paragraph 23). 19 See in particular the judgments in Rohm Semiconductor (C‑666/13, EU:C:2014:2388, paragraph 23); Data I/O (C‑370/08, EU:C:2010:284, paragraph 24); and Data I/O (C‑297/13, EU:C:2014:331, paragraph 36 and the case-law cited). 20 Judgment in Cramer (C‑196/10, EU:C:2011:487, paragraph 31 and the case-law cited there). 21 Judgment in Pacific Worl Limited (C‑215/10, EU:C:2011:528, paragraph 40 and the case-law cited). 22 Judgments in Oliver Medical (C‑547/13, EU:C:2015:139); and Delphi Deutschland (C‑423/10, EU:C:2011:315, paragraph 24 and the case-law cited). 23 See to similar effect the judgment in Nederlandse Spoorwegen (38/75, EU:C:1975:154, paragraph 10). 24 Case C‑150/08, EU:C:2009:294. 25 Judgment in Skoma-Lux (C‑339/09, EU:C:2010:781, paragraph 46 and the case-law cited). 26 Judgment in Cramer (C‑196/10, EU:C:2011:487, paragraph 37). 27 Judgment in Skoma-Lux (C‑339/09, EU:C:2010:781, paragraph 47 and the case-law cited). 28 Case C‑150/08, EU:C:2009:294. 29 Idem. 30 Idem. 31 Idem. 32 Idem. 33 Judgment in Siebrand (C‑150/08, EU:C:2009:294, paragraphs 31 and 32). 34 Idem, paragraph 33. 35 Case C‑150/08, EU:C:2009:294.