61981CJ0049_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 49/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
PAUL KADERS GMBH, HAMBURG,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-WALTERSHOF,
Subject of the case
ON THE INTERPRETATION OF TARIFF HEADING 13.03 ( VEGETABLE EXTRACTS ) AND TARIFF SUBHEADING 33.01 C ( RESINOIDS ) OF THE COMMON CUSTOMS TARIFF LAID DOWN IN COUNCIL REGULATION NO 2723/76 OF 8 NOVEMBER 1976 ( OFFICIAL JOURNAL 1976, L 314 ),
Grounds
1 BY AN ORDER OF 10 FEBRUARY 1981, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 9 MARCH 1981, THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS ON THE INTERPRETATION OF HEADING 13.03 ( VEGETABLE EXTRACTS ) AND SUBHEADING 33.01 C ( RESINOIDS ) OF THE COMMON CUSTOMS TARIFF .
2 IN MAY 1977 THE PLAINTIFF IN THE MAIN ACTION IMPORTED FROM THE UNITED STATES OF AMERICA A PRODUCT DESCRIBED AS ' ' EXTRACT OF GINGER ' ' . THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-WALTERSHOF CLASSIFIED THE PRODUCT IN QUESTION AS VEGETABLE EXTRACT FALLING WITHIN TARIFF HEADING 13.03 OF THE COMMON CUSTOMS TARIFF . SUBSEQUENTLY, ON THE BASIS OF A REPORT OF THE ZOLLTECHNISCHE PRUFUNGS- UND LEHRANSTALT ( CUSTOMS LABORATORY AND TRAINING COLLEGE ) HAMBURG, THE HAUPTZOLLAMT CLASSIFIED THE PRODUCT AS RESINOID FALLING WITHIN TARIFF SUBHEADING 33.01 C AND MADE A RETROACTIVE LEVY OF CUSTOMS DUTY .
3 THE ADMINISTRATIVE OBJECTION TO THAT SECOND CLASSIFICATION AND THE SUBSEQUENT ACTION BEFORE THE FINANZGERICHT ( FINANCE COURT ) HAMBURG WERE UNSUCCESSFUL . BEFORE THE BUNDESFINANZHOF, THE PLAINTIFF IN THE MAIN ACTION CONTENDED THAT THE GINGER EXTRACT WAS TO BE CLASSIFIED UNDER TARIFF HEADING 13.03, BECAUSE OF ITS COMPOSITION, CHARACTERISTICS AND PROPERTIES .
4 CONSIDERING THAT THE SOLUTION OF THE DISPUTE DEPENDED ESSENTIALLY ON THE INTERPRETATION OF THE CONCEPTS OF ' ' VEGETABLE EXTRACTS ' '
AND ' ' RESINOIDS ' '
AND ON THE DETERMINATION OF THE APPROPRIATE CRITERIA BY A COMPARISON OF THE RESPECTIVE CONCEPTS, THE BUNDESFINANZHOF REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTIONS :
' ' HOW MUST TARIFF HEADING 13.03 ( VEGETABLE EXTRACTS ) AND TARIFF SUBHEADING 33.01 C ( RESINOIDS ) BE INTERPRETED AND DELIMITED IN RELATION TO ONE ANOTHER? IS A PRODUCT DESCRIBED AS EXTRACT OF GINGER CONTAINING, IN ADDITION TO 25% ESSENTIAL OILS, ALL THE SOLUBLE CONTENTS OF THE GINGER ROOT TO BE REGARDED AS VEGETABLE EXTRACT COMING WITHIN TARIFF HEADING 13.03 OR, HAVING REGARD TO THE AMOUNTS OF ODORIFEROUS SUBSTANCES OR FRAGRANT CONSTITUENTS, AS RESINOID FALLING WITHIN TARIFF SUBHEADING 33.01 C, EVEN THOUGH AS VEGETABLE EXTRACT IT CONTAINS ALL THE TYPICAL CONTENTS AND CONSTITUENT SUBSTANCES OF THE GINGER ROOT? IN ADDITION TO THE ESSENTIAL OILS, DOES FOR EXAMPLE ' ' GINGEROL ' '
ALSO BELONG TO THE ODORIFEROUS SUBSTANCES OR FRAGRANT CONSTITUENTS?
' '
5 CHAPTER 13 OF THE COMMON CUSTOMS TARIFF COVERS ' ' LACS ; GUMS, RESINS AND OTHER VEGETABLE SAPS AND EXTRACTS ' ' . ACCORDING TO NOTE ( H ) ON THE CHAPTER, IT DOES NOT COVER ' ' ESSENTIAL OILS, CONCRETES, ABSOLUTES AND RESINOIDS ( HEADING NO 33.01 ) OR AQUEOUS DISTILLATES AND AQUEOUS SOLUTIONS OF ESSENTIAL OILS ' ' . SUBHEADING 13.03 A VIII COVERS ' ' VEGETABLE SAPS AND EXTRACTS . . . OTHER ' ' .
6 CHAPTER 33 COVERS ' ' ESSENTIAL OILS AND RESINOIDS ; PERFUMERY, COSMETIC OR TOILET PREPARATIONS ' ' . HEADING 33.01, ' ' ESSENTIAL OILS ( TERPENELESS OR NOT ), CONCRETES AND ABSOLUTES ; RESINOIDS ' '
INCLUDES SUBHEADING 33.01 C, ' ' RESINOIDS ' ' .
7 THE PLAINTIFF IN THE MAIN PROCEEDINGS CLAIMS THAT THE PRODUCT IN QUESTION FALLS WITHIN SUBHEADING 13.03 A VIII BECAUSE, IN ADDITION TO THE COMMON ODORIFEROUS CONSTITUENTS ( ESSENTIAL OILS ), IT INCLUDES A FAR LARGER PROPORTION OF OTHER PLANT SUBSTANCES . IF, ON THE OTHER HAND, IT CONSISTED ESSENTIALLY OF ODORIFEROUS CONSTITUENTS ( ESSENTIAL OILS ) AND CONTAINED ONLY TRIFLING QUANTITIES OF THE PLANT, IT SHOULD BE CLASSIFIED UNDER TARIFF HEADING 33.01 AS AN ESSENTIAL OIL OR RESINOID .
8 THE COMMISSION, ON THE OTHER HAND, CONSIDERS THAT VEGETABLE EXTRACTS WHOSE CHARACTER IS DETERMINED BY THEIR FRAGRANCE FALL AS RESINOIDS WITHIN TARIFF HEADING 33.01 . THE FRAGRANCE OF RESINOIDS UNDER THAT TARIFF HEADING IS DETERMINED BY ALL OF THE EXTRACTED FRAGRANT SUBSTANCES . THE FACT THAT THERE IS OR IS NOT A PREPONDERANCE IN WEIGHT OR QUANTITY OF FRAGRANT SUBSTANCES OF AN EXTRACT IS NOT A DECISIVE FACTOR . THE COMMISSION RELIES ON THE CONSIDERATION THAT THE TASTE OF A SUBSTANCE CANNOT BE JUDGED SEPARATELY FROM ITS SMELL . THAT IS CORROBORATED BY THE FACT THAT, IN THE EXPLANATORY NOTES TO THE CUSTOMS
COOPERATION COUNCIL NOMENCLATURE, THE TITLE OF TARIFF HEADING 33.04 INCLUDES, IN THE GERMAN VERSION, THE REFERENCE TO ' ' RIECH- ODER AROMASTOFFEN ' '
( ODORIFEROUS OR FRAGRANT SUBSTANCES ). IT INFERS FROM THIS THAT THE ESSENTIAL CHARACTERISTIC OF RESINOIDS CONSISTS BOTH IN THEIR SMELL AND IN THEIR TASTE .
9 THAT VIEW CANNOT BE ACCEPTED . IT DOES NOT TAKE INTO ACCOUNT THE FACT THAT THE OTHER LINGUISTIC VERSIONS OF THE EXPLANATORY NOTES TO THE CUSTOMS CO-OPERATION COUNCIL NOMENCLATURE DO NOT SPEAK OF ' ' ODORIFEROUS OR FRAGRANT SUBSTANCES ' '
BUT ONLY OF ' ' ODORIFEROUS SUBSTANCES ' ' . MOREOVER, IT IS INCOMPATIBLE WITH NOTE ( K ) ON HEADING 13.03, WHICH STATES THAT ' ' AN EXTRACT DIFFERS FROM AN ESSENTIAL OIL IN THAT IT CONTAINS, APART FROM THE ODORIFEROUS CONSTITUENTS, A FAR HIGHER PROPORTION OF OTHER PLANT SUBSTANCES ( FOR EXAMPLE CHLOROPHYLL, TANNINS, BITTER PRINCIPLES, CARBOHYDRATES AND OTHER EXTRACTIVE MATTER ) ' ' . IN THE SAME NOTE IT IS STATED THAT ESSENCES AND RESINOIDS FALLING WITHIN HEADING 33.01 DIFFER FROM EXTRACTS UNDER HEADING 13.03 INASMUCH AS THEY ARE ESSENTIALLY COMPOSED OF ODORIFEROUS SUBSTANCES .
10 FROM THOSE CONSIDERATIONS IT MAY BE INFERRED THAT ' ' ESSENTIAL OILS AND RESINOIDS ' '
OF PRODUCTS WHICH CONTAIN, APART FROM ODORIFEROUS SUBSTANCES, A FAR HIGHER PROPORTION OF OTHER PLANT SUBSTANCES, SUCH AS CHLOROPHYLL, TANNINS, BITTER PRINCIPLES OR OTHER FLAVOURING SUBSTANCES, CARBOHYDRATES AND OTHER EXTRACTIVE MATTER WHICH HELP TO DETERMINE THE TYPICAL CHARACTER OF THE PRODUCT DO NOT FALL WITHIN HEADING 33.01 OF THE COMMON CUSTOMS TARIFF .
11 IN PARTICULAR, A PRODUCT SUCH AS GINGEROL IS NOT AMONG THE ODORIFEROUS SUBSTANCES WHICH FALL WITHIN THE SAID TARIFF HEADING, SINCE ITS ESSENTIAL CHARACTERISTICS ARE DETERMINED LARGELY BY TASTE AND NOT BY SMELL .
Decision on costs
COSTS
12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 10 FEBRUARY 1981 HEREBY RULES :
1 . ' ' ESSENTIAL OILS AND RESINOIDS ' '
OF PRODUCTS WHICH CONTAIN, IN ADDITION TO ODORIFEROUS SUBSTANCES, A FAR HIGHER PROPORTION OF OTHER PLANT SUBSTANCES, SUCH AS CHLOROPHYLL, TANNINS, BITTER PRINCIPLES OR OTHER FLAVOURING SUBSTANCES, CARBOHYDRATES AND OTHER EXTRACTIVE MATTER WHICH HELP TO DETERMINE THE TYPICAL CHARACTER OF THE PRODUCT, DO NOT FALL WITHIN HEADING 33.01 OF THE COMMON CUSTOMS TARIFF .
2 . A PRODUCT SUCH AS GINGEROL IS NOT AMONG THE ODORIFEROUS SUBSTANCES WHICH FALL WITHIN THE SAID TARIFF HEADING, SINCE ITS ESSENTIAL CHARACTERISTICS ARE DETERMINED LARGELY BY TASTE AND NOT BY SMELL .