61980CJ0114_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 114/80,
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
DR RITTER GMBH & CO, WITH REGISTERED OFFICIES IN KOLN-DEUTZ,
V
OBERFINANZDIREKTION ( PRINCIPAL FINANCE OFFICE ) HAMBURG,
Subject of the case
ON THE INTERPRETATION OF HEADINGS 21.06 AND 22.02 OF THE COMMON CUSTOMS TARIFF,
Grounds
1 BY AN ORDER DATED 1 APRIL 1980 WHICH WAS RECEIVED AT THE COURT ON 2 MAY 1980 THE BUNDESFINANZHOF REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS AS TO THE INTERPRETATION OF HEADING 22.02, OR ALTERNATIVELY HEADING 21.06, OF THE COMMON CUSTOMS TARIFF .
2 IT APPEARS FROM THE FILE ON THE CASE THAT THE PLAINTIFF IN THE MAIN ACTION REQUESTED A BINDING CUSTOMS TARIFF RULING FROM THE REVENUE AUTHORITIES FOR A PRODUCT CALLED ' ' WHOLE YEAST ' '
AND DESCRIBED IN THE ORDER MAKING THE REFERENCE IN THE FOLLOWING TERMS : ' ' THE PRODUCT IS COMPOSED OF ( INACTIVE ) BREWER ' S YEAST, WATER AND 3.9% NATURAL CITRUS-FRUIT JUICE . IT IS LIQUID AND SUITABLE FOR DIRECT CONSUMPTION AS A BEVERAGE . ACCORDING TO THE WORDING ON THE WRAPPING IT SERVES AS A FOOD SUPPLEMENT, HELPS TO MAINTAIN WORKING CAPACITY AND GIVES THE SKIN A HEALTHY COMPLEXION . FROM ONE TO THREE TABLESPOONFULS MUST BE TAKEN THREE TIMES A DAY . ' '
3 THE REVENUE AUTHORITIES ARE OF THE OPINION THAT THE PRODUCT IN QUESTION SHOULD BE CLASSIFIED AS A ' ' BEVERAGE ' '
UNDER HEADING 22.02 BECAUSE IT IS A PRODUCT SUITABLE FOR DIRECT CONSUMPTION AS A BEVERAGE, REGARDLESS OF ITS COMPOSITION, MODE OF CONSUMPTION AND THE PURPOSE FOR WHICH IT IS DRUNK . THE PLAINTIFF ON THE OTHER HAND CONTENDS THAT THE PRODUCT IN QUESTION, THE MAIN INGREDIENT OF WHICH IS BREWER ' S YEAST, SHOULD BE CLASSIFIED AS A YEAST UNDER HEADING 21.06 .
4 THE BUNDESFINANZHOF CONSIDERS THAT A DECISION DEPENDS ON THE INTERPRETATION OF THE WORD ' ' BEVERAGES ' '
IN HEADING 22.02, ACCORDING TO WHETHER THAT TERM IS TO BE UNDERSTOOD AS INCLUDING ALL LIQUIDS INTENDED FOR HUMAN CONSUMPTION, OR ONLY THOSE PRODUCTS INTENDED TO QUENCH THIRST WHICH THE WORD IS COMMONLY USED TO DENOTE . IN THE LATTER CASE A LIQUID SUCH AS THAT IN QUESTION WHICH IS INTENDED TO BE TAKEN FOR HEALTH REASONS SHOULD NOT BE CLASSIFIED AS A ' ' BEVERAGE ' ' .
5 IN ORDER TO CLARIFY THE ISSUE THE BUNDESFINANZHOF HAS PUT THE FOLLOWING QUESTIONS :
1 . IS THE EXPRESSION ' ' OTHER NON-ALCOHOLIC BEVERAGES ' '
WITHIN THE MEANING OF TARIFF HEADING 22.02 OF THE COMMON CUSTOMS TARIFF TO BE INTERPRETED AS INCLUDING A PRODUCT WHICH IS COMPOSED OF BREWER ' S YEAST, WATER AND 3.9% NATURAL CITRUS-FRUIT JUICE, IS LIQUID AND SUITABLE FOR CONSUMPTION AS A BEVERAGE AND IS INTENDED TO BE TAKEN SEVERAL TIMES DAILY IN SMALL QUANTITIES FOR THE IMPROVEMENT OF HEALTH?
2 . IF QUESTION 1 IS ANSWERED IN THE NEGATIVE : IS TARIFF HEADING 21.06 TO BE INTERPRETED, IN CONJUNCTION WITH GENERAL RULE 3 ( B ) FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF, AS INCLUDING THE PRODUCT DESCRIBED ABOVE?
6 THE TARIFF HEADINGS REFERRED TO IN THE QUESTIONS FORM PART OF CHAPTER 21 OF THE TARIFF, ENTITLED ' ' MISCELLANEOUS EDIBLE PREPARATIONS ' ', AND CHAPTER 22, ENTITLED ' ' BEVERAGES, SPIRITS AND VINEGAR ' ' . IN SO FAR AS THEY ARE RELEVANT TO THE DISPUTE, THEY ARE WORDED AS FOLLOWS :
21.06 NATURAL YEASTS (. . . INACTIVE ) . . . OTHER .
22.02 LEMONADE, FLAVOURED SPA WATERS AND FLAVOURED AERATED WATERS, AND OTHER NON-ALCOHOLIC BEVERAGES, NOT INCLUDING FRUIT AND VEGETABLE JUICES FALLING WITHIN HEADING NO 20.07 .
7 IN CONFORMITY WITH THE STRUCTURE OF THE COMMON CUSTOMS TARIFF THE EXPRESSION ' ' OTHER . . . BEVERAGES ' '
IN HEADING 22.02 IS TO BE UNDERSTOOD AS A GENERIC CONCEPT EMBRACING ALL LIQUIDS INTENDED FOR HUMAN CONSUMPTION, IN SO FAR AS THEY ARE NOT INCLUDED IN ANY OTHER SPECIFIC CLASSIFICATION .
8 THE SCOPE OF THAT CONCEPT MUST BE DETERMINED ON THE BASIS OF CRITERIA WHICH ARE BOTH OBJECTIVE AND VERIFIABLE . IT IS NOT PERMISSIBLE, THEREFORE, TO MAKE ITS SCOPE DEPENDENT ON PURELY SUBJECTIVE, VARIABLE FACTORS SUCH AS THE MANNER IN WHICH THE PRODUCT IS TAKEN OR THE PURPOSE FOR WHICH IT IS CONSUMED, TO QUENCH THIRST, FOR EXAMPLE, TO IMPROVE HEALTH, OR FOR SOME OTHER PURPOSE . WITHIN THE MEANING OF THAT HEADING THEREFORE, ' ' BEVERAGES ' '
MUST BE UNDERSTOOD TO SIGNIFY ANY LIQUID SUITABLE AND INTENDED FOR HUMAN CONSUMPTION REGARDLESS OF THE QUANTITY IN WHICH IT IS ABSORBED, OR THE SPECIAL PURPOSES FOR WHICH VARIOUS KINDS OF LIQUIDS MAY BE CONSUMED .
9 THE CLASSIFICATION OF A PRODUCT AS A BEVERAGE WITHIN THE MEANING OF HEADING 22.02 CANNOT, MOREOVER, DEPEND ON THE BASIC INGREDIENTS USED . THE DISTINGUISHING CHARACTERISTIC IN THE TARIFF HEADING IN QUESTION IS THE FACT THAT THE PRODUCTS IN QUESTION ARE LIQUIDS AND ARE INTENDED FOR HUMAN CONSUMPTION . ALTHOUGH THE PRODUCT IN QUESTION IS MADE BASICALLY FROM YEAST, WHICH FALLS UNDER HEADING 21.06, THE DECISIVE CHARACTERISTIC AS FAR AS CLASSIFICATION IN THE TARIFF IS CONCERNED IS ITS LIQUID STATE, CHIEFLY OBTAINED BY ADDING WATER, AND NOT THE BASIC INGREDIENT EMPLOYED .
10 THAT REASONING IS SUPPORTED BY THE ACTUAL WORDING OF THE HEADING IN QUESTION WHICH, AFTER REFERRING TO ' ' BEVERAGES ' '
IN GENERAL, EXPRESSLY EXCLUDES FRUIT AND VEGETABLE JUICES WHICH ARE INCLUDED IN HEADING 20.07 IN CHAPTER 20, COVERING ' ' PREPARATIONS OF VEGETABLES, FRUIT OR OTHER PARTS OF PLANTS ' ' . THAT INDICATES THAT WITHOUT THAT EXPRESS EXCEPTION THE JUICES IN QUESTION WOULD BE CLASSIFIED IN THE CHAPTER ON BEVERAGES, AND NOT IN THAT COVERING THE RELEVANT BASIC INGREDIENTS .
11 A SIMILAR INDICATION IS TO BE FOUND IN THE EXPLANATORY NOTES TO THE COMMON CUSTOMS TARIFF WHICH EXCLUDE ' ' TONIC PREPARATIONS ' '
FROM HEADING 21.07 ( WHICH, TOGETHER WITH YEASTS, IS INCLUDED IN THE CHAPTER ON EDIBLE PREPARATIONS ) WHEN THEY ARE PUT UP AS LIQUIDS SUITABLE FOR DIRECT CONSUMPTION AS BEVERAGES . THE UNDERLYING PRINCIPLE OF THAT NOTE MAY BE EXTENDED BY ANALOGY TO THE AQUEOUS DILUTION OF YEAST LIKE THAT UNDER CONSIDERATION IN THE PRESENT CASE .
12 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT THE CONCEPT OF ' ' OTHER NON-ALCOHOLIC BEVERAGES ' '
IN HEADING 22.02 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS INCLUDING A PRODUCT COMPOSED OF BREWER ' S YEAST, WATER AND 3.9% NATURAL CITRUS FRUIT JUICE, PUT UP IN LIQUID FORM AND POTABLE, AND INTENDED TO BE TAKEN SEVERAL TIMES DAILY IN SMALL QUANTITIES FOR THE IMPROVEMENT OF HEALTH .
13 IT IS THEREFORE UNNECESSARY TO REPLY TO THE SECOND QUESTION .
Decision on costs
14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER DATED 1 APRIL 1980, HEREBY RULES :
THE CONCEPT OF ' ' OTHER NON-ALCOHOLIC BEVERAGES ' '
IN HEADING 22.02 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS INCLUDING A PRODUCT COMPOSED OF BREWER ' S YEAST, WATER AND 3.9 % NATURAL CITRUS-FRUIT JUICE,
PUT UP IN LIQUID FORM AND POTABLE, AND INTENDED TO BE TAKEN SEVERAL TIMES DAILY IN SMALL QUANTITIES FOR THE IMPROVEMENT OF HEALTH .