Provisional text
JUDGMENT OF THE GENERAL COURT (Second Chamber, sitting with five Judges)
4 March 2026 (*)
( Reference for a preliminary ruling – Customs union – Common Customs Tariff – Combined Nomenclature – Tariff classification – Heading 2206 – Subheadings 2206 00 31, 2206 00 51, 2206 00 81 and 2206 00 39, 2206 00 59 – Beverages composed of fermented apple juice, in which the proportion of alcohol derived from plants other than apples is, depending on the type of beverage, equal at least to 48%, 50%, 51%, 52% or 53% in comparison with the alcohol obtained from the fermentation of apples and which have the organoleptic characteristics of cider )
In Case T‑691/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), made by decision of 1 October 2024, received at the Court on 19 December 2024, in the proceedings
Agenţia Naţională de Administrare Fiscală (ANAF),
Direcţia Generală de Administrare a Marilor Contribuabili
v
Heineken România S.A.,
THE GENERAL COURT (Second Chamber, sitting with five Judges),
composed of N. Półtorak, President, G. Hesse, G. Steinfatt, D. Petrlík and I. Dimitrakopoulos (Rapporteur), Judges,
Advocate General: M. Brkan,
Registrar: V. Di Bucci,
having regard to the transfer of the request for a preliminary ruling to the General Court by the Court of Justice on 17 January 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,
having regard to the fact that the case concerns the area referred to in point (d) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,
having regard to the written part of the procedure,
after considering the observations submitted on behalf of:
–        Heineken România, by V. Bogrea, A.-M. Iordache and V. Peligrad, avocaţi,
–        the Romanian Government, by R. Antonie, M. Chicu and E. Gane, acting as Agents,
–        Ireland, by M. Browne, Chief State Solicitor, T. Breen, T. Donnelly and A. Joyce, acting as Agents,
–        the Spanish Government, by A. Pérez-Zurita Gutiérrez, acting as Agent,
–        the European Commission, by M. Björkland, A. Demeneix and T. Isacu de Groot, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of tariff subheadings 2206 00 31, 2206 00 51, 2206 00 81, 2206 00 39 and 2206 00 59 of the Combined Nomenclature (‘the CN’) contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014 (OJ 2014 L 312, p. 1), and Commission Implementing Regulation (EU) 2015/1754 of 6 October 2015 (OJ 2015 L 285, p. 1).
2        The request has been made in proceedings between, on the one hand, Heineken România S.A. and, on the other, the Agenția Națională de Administrare Fiscală (ANAF) (National Tax Administration Office, Romania) and the Direcția Generală de Administrare a Marilor Contribuabili (Directorate–General for the Administration of Large-scale Taxpayers, Romania) concerning the tariff classification of Strongbow alcoholic beverages imported by Heineken România S.A.
into Romania.
Legal framework
The HS
3        The Harmonized Commodity Description and Coding System (‘the HS’) was drawn up by the Customs Cooperation Council – now the World Customs Organization (WCO) – which was created by the Convention establishing a Customs Cooperation Council, signed in Brussels on 15 December 1950. The HS was established by the International Convention on the Harmonized Commodity Description and Coding System, concluded in Brussels on 14 June 1983 (United Nations Treaty Series, Vol. 1503, p. 4, No 25910 (1988)) and approved, with its Protocol of Amendment of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).
4        Under Article 3(1)(a)(ii) of that convention, each contracting party undertakes to apply the general rules for the interpretation of the HS and all the section, chapter and subheading notes of the HS, and not to modify the scope of the sections, chapters, headings or subheadings.
5        The Explanatory Notes to the HS are drawn up within the WCO in accordance with the provisions of that convention.
6        The 2012 version of the HS, which applies to the facts in the main proceedings, includes heading 2206, entitled ‘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’.
7        The Explanatory Notes to the HS for heading 2206, which corresponds to tariff heading 2206 of the CN, define cider as an ‘alcoholic beverage obtained by fermenting the juice of apples’.
8        Those Explanatory Notes also state the following:
‘All these beverages may be either naturally sparkling or artificially charged with carbon dioxide. They remain classified in the heading when fortified with added alcohol or when the alcohol content has been increased by further fermentation, provided that they retain the character of products falling in the heading.’
9        Heading 2208 of the HS, which corresponds to tariff heading 2208 of the CN, is entitled ‘Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80% vol.; spirits, liqueurs and other spirituous beverages’.
10      The Explanatory Notes to the HS for heading 2208 state the following:
‘This heading covers, whatever their alcoholic strength:
…
(B)      Liqueurs and cordials, being spirituous beverages to which sugar, honey or other natural sweeteners and extracts or essences have been added (e.g., spirituous beverages produced by distilling, or by mixing, ethyl alcohol or distilled spirits, with one or more of the following: fruits, flowers or other parts of plants, extracts, essences, essential oils or juices, whether or not concentrated). These products also include liqueurs and cordials containing sugar crystals, fruit juice liqueurs, egg liqueurs, herb liqueurs, berry liqueurs, spice liqueurs, tea liqueurs, chocolate liqueurs, milk liqueurs and honey liqueurs.
…’
11      The Explanatory Notes to the HS for heading 2208 also state that
fermented beverages under
headings 2203 to 2206 are excluded from the scope of heading 2208.
12      Paragraph VIII of the Explanatory Note to the HS relating to general rule 3(b) of the HS, which corresponds to general rule 3(b) of the CN, states that the factor which determines essential character may, as between different kinds of goods, be determined, for example, by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
The CN
13      As is apparent from Article 1(1) of Regulation No 2658/87, the CN, established by the European Commission, governs the tariff classification of goods imported into the European Union. According to Article 3(1) of that regulation, that nomenclature reproduces the six-digit headings and subheadings of the HS, with only the seventh and eighth digits creating further subheadings that are specific to the CN.
14      The version of the CN which applies to the facts in the main proceedings arises from Implementing Regulation No 1101/2014 and Implementing Regulation 2015/1754.
15      Headings 2206 and 2208 of the CN reproduce the wording of headings 2206 and 2208 of the HS.
16      Heading 2206 of the CN includes, inter alia, subheadings 2206 00 31 (cider and perry, sparkling), 2206 00 51 (cider and perry, still, in containers holding 2 litres or less) and 2206 00 81 (cider and perry, still, in containers holding more than 2 litres), all of which
are applicable to cider and perry, as well as subheadings 2206 00 39 (mead and other fermented beverages, sparkling; mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, sparkling (except for beer, wine of fresh grapes, grape must, piquette and cider and perry)) and 2206 00 59 (mead and other fermented beverages, still, in containers holding 2 litres or less; mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, still, in containers holding 2 litres or less (except for wine of fresh grapes, grape must, vermouth and other wine of fresh grapes flavoured with plants or aromatic substances, piquette and cider and perry)), which are applicable to fermented alcoholic beverages other than cider and perry.
17      The classification of products in the CN is based on the General rules for the interpretation of the Combined Nomenclature set out in Section I, paragraph A of part one of the CN, entitled ‘Preliminary provisions’.
18      General rule 1 of the CN provides as follows:
‘The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.’
19      General rule 2(b) of the CN is worded as follows:
‘Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.’
20      General rule 3 of the CN is worded as follows:
‘When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(a)      the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;
(b)      mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to [rule] 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;
…’
21      General rule 6 of the CN is worded as follows:
‘For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’
Romanian Law
22      As regards excise duty, the provisions of Article 20612 of Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 establishing the Tax Code) of 22 December 2003 (Monitorul Oficial al României, part I, No 927 of 23 December 2003; ‘Law No 571/2003’) are applicable with respect to 2015, while the provisions of Article 351(b) of Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code) of 8 September 2015 (Monitorul Oficial al României, part I, No 688 of 10 September 2015; ‘Law No 227/2015’) are applicable with respect to 2016. Under those provisions of Law No 571/2003 and of Law No 227/2015, 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 (with respect to 2016) or 10% by volume (with respect to 2015), and 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 (with respect
to 2016) or 10% by volume (with respect to 2015).
23      According to point 3.1 of Annex 1 to Title VII, entitled ‘Excise Duty’, of Law No 571/2003, the excise duty rate on purchases of products falling under CN code 2206 00 39 is 213.21 Romanian lei per hectolitre of product (RON/hl) (approximately EUR 41.88/hl), while the excise duty rate on purchases of products falling under CN code 2206 00 59 is RON 47.38/hl of product (approximately EUR 9.31/hl).
24      According to point 3.1 of Annex 1 to Title VIII, entitled ‘Excise Duty and other Special Duties’ of Law No 227/2015, the excise duty rate on purchases of products falling under CN code 2206 00 39 is RON 47.38/hl of product, while the excise duty rate on purchases of products falling under CN code 2206 00 59 is RON 396.84/hl of product (approximately EUR 77.97/hl).
25      In Romania, the excise duty rate for ‘cider and perry’ falling under CN code 2206 00 51 is zero, in accordance with point 3.1.1 of Annex 1 to Title VII of Law No 571/2003, in force until 31 December 2015, and point 3.1.1 of Annex 1 to Title VIII of Law No 227/2015, in force from 1 January 2016.
The dispute in the main proceedings and the question referred for a preliminary ruling
26      Between 2015 and 2016, Heineken România made intra-Community acquisitions totalling 155 486.48 hl of Strongbow alcoholic beverages, packaged in cans and bottles, which it then sold on the internal market to various customers.
27      At the time those alcoholic beverages were introduced into Romania, Heineken România classified those products under CN tariff subheading 2206 00 51, corresponding to the description ‘Cider and perry’, using the tariff classification provided both by the Bulgarian producer from which those products were acquired and by the Slovak producer Heineken Slovensko. As a consequence, no excise duty was paid, since in Romania the excise rate in respect of tariff subheading 2206 00 51 was zero.
28      Following an inspection by the Direcția Regională Vamală Craiova – Biroul Vamal Dolj (Regional Customs Directorate, Craiova, Dolj Customs Office, Romania) on 29 September 2015 consisting in the taking of product samples from excise goods dispatched by the approved warehouse in Bulgaria, namely Strongbow beverages packaged in cans and bottles, as well as a tripartite discussion between Heineken România, the tax inspection authorities and the representatives of the Direcția Generală a Vămilor (Directorate-General of Customs, Romania), that directorate-general stated, in a letter of 8 March 2018, that ‘the proposed tariff classification of the analysed products was under either CN code 22 06 00 39 or 22 06 00 59, depending on the measured overpressure’. The tariff classification proposal was based on the finding that those products were mixtures containing cider and other substances, the cider, in turn, being a product obtained from a mixture of raw material undergoing fermentation, namely 25% of apple juice and glucose. The certificates of analysis also revealed the presence of a significant proportion of alcohol from plants other than apples. Those products could therefore not be qualified, according to that proposal, as beverages obtained from the fermentation of apple juice.
29      In addition, the Romanian Directorate-General of Customs contacted the Bulgarian Customs Authority concerning the tariff classification of ‘Strongbow cider’. The Bulgarian Customs Authority agreed with the proposed tariff reclassification under either subheading 2206 00 39 or subheading 2206 00 59.
30      As a result of the tariff reclassification, the tax inspection authorities, by a tax assessment decision of 23 November 2018, imposed additional tax liabilities on Heineken România, namely the obligation to pay excise duty in the amount of RON 22 473 840 (approximately EUR 4 422 591) and value added taxes (VAT) in the amount of RON 5 213 296 (approximately EUR 1 025 916). Those tax inspection authorities, by a further tax assessment decision of 27 November 2018, also imposed on Heineken România penalties and default interest, in addition to the obligations already imposed.
31      Heineken România lodged an administrative tax complaint with the competent Romanian tax authority, challenging the assessment decisions of 23 and 27 November 2018 and the tax inspection report of 23 November 2018 on which those tax assessment decisions were based. By a decision of 25 July 2019, that authority upheld those tax assessment decisions, finding that the additional tax liability for ‘Strongbow cider’ acquired from the approved warehouse in Bulgaria had been rightly imposed.
32      Heineken România brought an action before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), seeking the annulment of the tax assessment decisions, the report and the decision mentioned in paragraphs 30 and 31 above.
33      In the course of the proceedings before the Curtea de Apel București (Court of Appeal, Bucharest), an expert’s report was requested.
That report established (i) that the sample analysed had the organoleptic characteristics of cider, that the gustatory and olfactory perception of apples may be enhanced by the addition of natural flavouring and that the nature of the ethyl alcohol, namely the nature of the sugars from which it was formed in the alcoholic fermentation process, did not affect the organoleptic characteristics of the alcoholic beverage cider and (ii), in respect of the physical and chemical characteristics of the sample, that the alcoholic strength, total sugar (invert sugar) and total sulphur dioxide corresponded
to the limits laid down in the quality certificate issued by the approved warehouse in Bulgaria for ‘Gold Apple cider alc. 4.5% vol.’.
34      By judgment of 2 November 2021, the Curtea de Apel București (Court of Appeal, Bucharest) upheld the action brought by Heineken România and, accordingly, ordered the partial annulment of the tax inspection report and the tax assessment decision of 23 November 2018, as well as the decision of 25 July 2019 by which the additional liability by way of excise duty and VAT had been imposed on Heineken România. By the same judgment, that court annulled the tax assessment decision of 27 November 2018 which imposed tax liabilities additional to those established by the tax assessment decision of 23 November 2018.
35      The Directorate-General for the Administration of Large-scale Taxpayers and ANAF brought an appeal on a point of law before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), which is the referring court, against the judgment of the Curtea de Apel București (Court of Appeal, Bucharest). They argued, in essence, that the Curtea de Apel București (Court of Appeal, Bucharest) had incorrectly annulled the obligations imposed by way of excise duties, VAT and related charges, since, having regard to the nature of the alcohol and the actual composition of the product at issue, as it appeared from the information presented on the label, that product could not be classified under the specific tariff subheadings of ‘cider’, but rather had to be classified under the tariff subheadings ‘Other’ falling under the same heading 2206, for which excise duty was due in Romania.
36      In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘In the interpretation of Annex I to … Regulation …
No 2658/87 …, [as amended by] … Implementing Regulation …
No 1101/2014 … and …Implementing Regulation … [2015/1754] …, must a beverage such as the one at issue in the main proceedings, composed of [fermented apple juice from concentrate] (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 [packaged] 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?’
Consideration of the question referred
37      By its question, the referring court asks, in essence, whether the CN must be interpreted as meaning that beverages composed of fermented apple juice from concentrate, in an amount of 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 between 48% and 53%, but which has the organoleptic characteristics of cider, must be classified (i) under tariff headings 2206 00 31, 2206 00 51, or 2206 00 81 of the NC or (ii) under tariff headings 2206 00 39 or 2206 00 59 thereof.
38      In order to answer the question referred, it must be noted, as a preliminary point, that, when the EU judicature is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the national court to classify the products concerned correctly in the CN rather than to effect such a classification itself. That classification results from a purely factual assessment which it is not for the Court to make in the context of a reference for a preliminary ruling (see judgment of 20 October 2022, Mikrotīkls, C‑542/21, EU:C:2022:814, paragraph 21 and the case-law cited).
39      In that regard, it is clear from the case-law that, in accordance with general rule 1 for the interpretation of the CN, the tariff classification of goods is to be determined according to the terms of the headings and any relative section or chapter notes to that nomenclature. In the interests of legal certainty and ease of verification, the decisive criterion for the tariff classification of those goods 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 in the corresponding section or chapter notes. The intended use of the product concerned may constitute an objective criterion for classification if it is inherent to that product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see judgment of 20 October 2022, Mikrotīkls, C‑542/21, EU:C:2022:814, paragraph 22 and the case-law cited).
40      Furthermore, the Court has repeatedly held that, although the Explanatory Notes to the HS and CN do not have binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see judgment of 20 October 2022, Mikrotīkls, C‑542/21, EU:C:2022:814, paragraph 23 and the case-law cited).
41      It is apparent from the order for reference and from the file before the Court that the products at issue in the main proceedings are composed of a mixture of an ingredient called ‘cider’ consisting of alcohol derived from the fermentation of apple juice and other fermented plants as well as other substances (water, syrup, preservatives, flavourings and carbon dioxide).
42      It should be noted, as a preliminary point, that it is apparent from its wording that heading 2206 of the NC covers ‘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’.
43      It is apparent from the Explanatory Notes for heading 2206 of the HS, which corresponds to tariff heading 2206 of the CN, that cider is an ‘alcoholic beverage obtained by fermenting the juice of apples’ and that the addition of alcohol to beverages under that heading does not preclude those beverages from maintaining that classification provided that they retain the characteristics of products classified under that heading, namely those of fermented beverages.
44      Furthermore, it is apparent from the order for reference that the products at issue in the main proceedings do not have the properties of distilled alcohol or of distillation proper to heading 2208 of the CN, but rather those of fermented beverages proper to heading 2206 of the CN, in view of general rule 1.
45      In order to determine which subheading of tariff heading 2206 of the CN products such as those at issue in the main proceedings must be classified under, it should be noted, as a preliminary point, that it is apparent from the terms of subheadings 206 00 31, 2206 00 51 and 2206 00 81 that those subheadings only concern cider and perry, with no other indication. By contrast, it is apparent from the terms of subheadings 2206 00 39 and 2206 00 59 that those subheadings concern other fermented beverages, with no further indication. The explanatory notes to the HS specify that heading 2206 covers all fermented beverages other than those in
headings 2203 to 2205.
46      First of all, it must be borne in mind that under general rule 6 of the CN, the classification of goods in the subheadings of a heading is to be determined according to the terms of those subheadings and their notes and, mutatis mutandis, to the general rules for the interpretation of the Combined Nomenclature, concerning the classification of goods in the tariff headings and, in particular, to general rules 2(b),
3(a) and 3(b) (see, to that effect, judgments of 17 June 1997, Eru Portuguesa, C‑164/95, EU:C:1997:302, paragraph 14, and of 27 June 2024, Prysmian Cabluri şi Sisteme, C‑168/23, EU:C:2024:557, paragraph 29).
47      Under general rule 2(b) of the CN, any reference in a heading, and therefore, by analogy, in a subheading, to a material or substance is to be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Under that rule, the classification of mixtures, such as the products at issue in the main proceedings (see paragraph 41 above), is to be carried out in accordance with the principles set out in general rule 3 of the CN.
48      General rule 3(a) of the CN states that, when by application of general rule 2(b) of the CN, goods are prima facie classifiable under two or more headings, and therefore, by analogy, under two or more subheadings, the heading which provides the most specific description is to be preferred to headings providing a more general description. Thus, by analogy, the subheading which provides the most specific description is to be preferred to subheadings providing a more general description. However, when two or more headings, and, by analogy, subheadings, each refer to part only of the materials or substances contained in mixed goods, those headings and, by analogy, subheadings, are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
49      Lastly, it is apparent from general rule 3(b) of the CN that mixtures which cannot be classified by reference to general rule 3(a) thereof are to be classified as if they consisted of the material which gives them their essential character, in so far as this criterion is applicable.
50      As is apparent from the order for reference and from the file before the Court, products such as those at issue in the main proceedings consist of a mixture of alcohol obtained from the fermentation of apple juice, and therefore of cider, with that alcohol corresponding to subheadings 2206 00 31, 2206 00 51, 2206 00 81 (relating to cider), of alcohol from the fermentation of other plants, corresponding to subheadings 2206 00 39 and 2206 00 59 (relating to other fermented beverages), and of other substances. Products such as those at issue in the main proceedings are therefore liable to be classified in different tariff subheadings.
51      Therefore, by application of general rule 2(b) of the CN, products such as those at issue in the main proceedings must be classified following the method provided for in general rule 3 of the CN.
52      In that regard, it should be noted that the first sentence of general rule 3(a) of the CN does not allow products such as those at issue in the main proceedings to be classified. Having regard to their composition, those products include, in part, cider and, in part, alcohol obtained from the fermentation of plants other than apples. Consequently, in the light of the second sentence of that general rule – which states, as mentioned in paragraph 48 above, that when two or more headings each refer to part only of the materials contained in mixed or composite goods, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods – neither the subheadings concerning cider, nor the subheadings concerning other fermented beverages can be regarded as ‘the most specific’ within the meaning of that general rule (see, by analogy, judgment of 3 June 2021, BalevBio, C‑76/20, EU:C:2021:441, paragraph 63).
53      In those circumstances, general rule 3(b) of the CN should be applied for the purposes of the tariff classification of products such as those at issue in the main proceedings (see, by analogy, judgment of 7 May 2009, Siebrand, C‑150/08, EU:C:2009:294, paragraph 30).
54      Under that general rule and in order to carry out the tariff classification of goods it is necessary to identify, from among the materials of which they are composed, the one which gives them their essential character (see judgment of 7 May 2009, Siebrand, C‑150/08, EU:C:2009:294, paragraph 31 and the case-law cited).
55      As stated in paragraph VIII of the Explanatory Note in relation to general rule 3(b) of the HS, which corresponds to general rule 3(b) of the CN, the factor which determines that essential character may, as between different kinds of goods concerned, be determined, for example, by the nature of the material or component, by its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of those goods (judgment of 7 May 2009, Siebrand, C‑150/08, EU:C:2009:294, paragraph 34).
56      In this respect, according to paragraphs 35 to 38 of the judgment of 7 May 2009, Siebrand (C‑150/08, EU:C:2009:294), a number of objective characteristics and properties may be taken into account for the purpose of determining the essential character, within the meaning of general rule 3(b) of the CN, of fermented alcohol-based beverages to which other substances have been added. Those objective characteristics and properties include, first, the types of alcohol the products at issue contain and the extent to which each of those types of alcohol contribute to the alcohol
volume and alcoholic strength of those products; second, the organoleptic characteristics of those products; and third, the intended use of those products if it is inherent to them, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties. Lastly, it is necessary to carry out a global assessment of those three criteria (see, to that effect, judgments of 7 May 2009, Siebrand, C‑150/08, EU:C:2009:294, paragraph 39, and of 12 May 2016, Toorank Productions, C‑532/14 et C‑533/14, EU:C:2016:337, paragraph 55).
57      As regards the first criterion mentioned in paragraph 56 above, first, it should be noted that the alcohol in beverages such as those at issue in the main proceedings is derived from the fermentation of apples and plants other than apples, each of those types of alcohol contributing, in a considerable manner, to the alcohol
volume and alcoholic strength of those beverages.
58      The proportion of alcohol derived from plants other than apples in beverages such as those at issue in the main proceedings is equal at least to 48%, 50%, 51%, 52% or 53%, depending on the type of beverage. The proportion of alcohol derived from the fermentation of apple juice and that derived from plants other than apples are therefore almost the same.
59      It should, however, be noted that,
as regards
the tariff subheadings concerning cider, neither the CN nor the explanatory notes to the HS set out a minimum percentage of alcohol obtained from the fermentation of apple juice, an ingredient which is necessary in the production of cider, that that beverage must contain. Admittedly, subheadings 2206 00 31, 2206 00 51 and 2206 00 81 specifically concern cider, namely an alcoholic beverage obtained from the fermentation of apple juice, which presupposes that a beverage coming under those subheadings contains a certain percentage of fermented apple juice. Nevertheless, it cannot be deduced simply from the term ‘cider’ in the wording of those subheadings that a minimum percentage of fermented apple juice is required for a beverage to be classified under those subheadings (see, by analogy, judgment of 13 March 2019, B.S. (Malt in the composition of beer), C‑195/18, EU:C:2019:197, paragraph 34).
60      It should also be noted that the Explanatory Note to the HS for heading 2206 expressly recognises the possibility of adding alcohol to beverages coming under that heading provided that they retain the character of products falling within that heading. The same applies, by analogy, to subheadings 2206 00 31, 2206 00 51 and 2206 00 81.
61      Furthermore, the fact that one type of alcohol may be present in larger proportions than another type is only one of several criteria to be taken into account when determining which substance gives the product under consideration its essential character (see, to that effect, judgment of 12 May 2016, Toorank Productions, C‑532/14 and C‑533/14, EU:C:2016:337, paragraph 57).
62      It follows that the fact that products such as those at issue in the main proceedings contain not only a significant proportion of alcohol obtained from the fermentation of apple juice, an ingredient which is necessary in the production of cider, but also alcohol obtained from the fermentation of plants other than apples is not sufficient, in itself, to preclude them from coming under CN subheadings relating to cider (see, by analogy, judgment of 13 March 2019, B.S. (Malt in the composition of beer), C‑195/18, EU:C:2019:197, paragraph 38).
63      As regards, next, the second criterion referred to in paragraph 56 above, it must be ascertained whether the organoleptic characteristics of products such as those at issue in the main proceedings correspond to those of products classified under subheadings 2206 00 31, 2206 00 51 and 2206 00 81, relating to cider, or to those of products classified under subheadings 2206 00 39 and 2206 00 59, relating to other fermented beverages. For that purpose, taste and smell can constitute an objective characteristic or property of a product (see, by analogy, judgment of 7 May 2009, Siebrand, C‑150/08, EU:C:2009:294, paragraph 36).
64      It is apparent from the information in the order for reference that products such as those at issue in the main proceedings have the organoleptic characteristics of cider, particularly with regard to their taste and smell, since the addition of natural flavouring or sugar either has no impact in that respect or it enhances the perception of those organoleptic properties.
65      Accordingly – despite the considerable proportion of alcohol derived from the fermentation of plants other than apples and the addition of other substances – in view of the elements which are specific to products such as those at issue in the main proceedings, those products
retain the organoleptic characteristics of cider, which define its essential character and correspond to the characteristics of products classified in the subheadings relating to cider (see, by analogy, judgment of 7 May 2009, Siebrand, C‑150/08, EU:C:2009:294, paragraph 37).
66      Lastly, in respect of the third criterion referred to in paragraph 56 above, it appears to follow from the file before the Court that the objective characteristics and properties of the beverages at issue in the main proceedings, including their colour and the name under which they are marketed, linking the Strongbow brand
with the description ‘apple cider’,
correspond to those of beverages intended to be consumed as cider, which is, however, for the referring court to verify.
67      Subject to such verification on the part of the referring court, it must be held that products such as those at issue in the main proceedings have the essential character of products classified under tariff subheadings 2206 00 31, 2206 00 51 or 2206 00 81 of the CN, relating to cider.
68      In the light of all of the foregoing, the answer to the question referred is that the CN must be interpreted as meaning that beverages composed of fermented apple juice from concentrate, in an amount of 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 between 48% and 53%, but which have the organoleptic characteristics and intended use of cider, must be classified under tariff subheadings 2206 00 31, 2206 00 51, or 2206 00 81 of the NC.
Costs
69      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds,
THE GENERAL COURT (Second Chamber, sitting with five Judges)
hereby rules:
The Combined Nomenclature contained in Annex I to 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) No 1101/2014 of 16 October 2014, and Commission Implementing Regulation (EU) 2015/1754 of 6 October 2015,
must be interpreted as meaning that beverages composed of fermented apple juice from concentrate, in an amount of 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 between 48% and 53%, but which have the organoleptic characteristics and intended use of cider, must be classified under tariff subheadings 2206 00 31, 2206 00 51, or 2206 00 81 of that nomenclature.
Półtorak
Hesse
Steinfatt
Petrlík
Dimitrakopoulos
Delivered in open court in Luxembourg on 4 March 2026.
[Signatures]
*      Language of the case: Romanian.