Opinion of Mr Advocate General Tesauro delivered on 12 November 1991. - SuCrest GmbH v Oberfinanzdirektion München. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Combined Nomenclature - Emulsifiers intended for pastry dough. - Case C-14/91.



European Court reports 1992 Page I-00441



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The present proceedings relate to the interpretation of note 1(b) to Chapter 38 of the Combined Nomenclature. According to that note, Chapter 38 does not cover "mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs".

The products at issue in this case are emulsifiers for use in bakery made up essentially of sorbitol syrup (70% by dry weight) and monoglycerides and diglycerides. For the purposes of the tariff classification of those products, it is necessary to establish whether or not they come within the definition of "mixtures" in note 1(b).

In that respect, it should be noted that both sorbitol (of a 70% concentration) and mono- and diglycerides, although products of synthetic origin, must nevertheless be regarded as substances having nutritive value. That is confirmed above all, from the technical point of view, by the exhaustive observations of the defendant administration, which described in detail the function of those substances, which are extracted respectively from fruit and damaged seeds, within the human and animal metabolism.

It should also be emphasized that those considerations themselves prompted the present wording of note 1(b) to Chapter 38. As pointed out by the Commission, the 1950 Brussels Nomenclature merely excluded from Chapter 38 "mixtures of chemicals and foodstuffs". Subsequently, the Nomenclature Committee of the Customs Cooperation Council found, in the course of preparatory work for the Harmonized System, that the term "foodstuffs" was too limited, in so far as it did not extend to certain substances with nutritive value, such as, in particular, the products at issue here. The text of the note under review was therefore amended to make it possible to exclude from classification in Chapter 38 mixtures whose components, although not ranking as "foodstuffs", nevertheless were "substances with nutritive value".

Finally, it should also be observed that the classification of sorbitol, and that of mono-, di- and triglycerides, as a substance with nutritive value is confirmed both by the Customs Cooperation Council explanatory notes and by a very recent opinion of the Scientific Subcommittee of that Council; the Court has consistently held that those documents, although not binding, are an important factor in interpreting tariff nomenclature (see the judgment in Case 167/84 Hauptzollamt Bremen Freihafen v Druenert 1985 [ECR] 2235).

In the light of the foregoing objective factors and methods of interpretation, I therefore propose that the following answer be given to the question submitted:

"Emulsifiers for bakery made up essentially of sorbitol syrup (70% by dry weight) and mono- and diglycerides constitute 'mixtures' within the meaning of note 1(b) to Chapter 38. They must therefore be excluded from Chapter 38 of the Combined Nomenclature and be classified under residual heading 2106."

(*) Original language: Italian.