Opinion of Mr Advocate General Darmon delivered on 15 January 1991. - Wesergold GmbH & Co. KG v Oberfinanzdirektion München. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Sweetened orange juice. - Case C-219/89.



European Court reports 1991 Page I-01895



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Bundesfinanzhof (Federal Finance Court) has referred to the Court for a preliminary ruling a question on the interpretation of the nomenclature of the Common Customs Tariff in order to ascertain whether a product composed of 39.4% orange juice and 60.6% sugar should be classified as "fruit juices ... containing added sugar" under heading No 2009 of the said nomenclature. The product' s high sugar content led the national court to doubt that it is possible to classify it under that heading.

2. It may be observed first of all that it follows from the combination of Additional Note No 5 of Chapter 20 of the Combined Nomenclature (which in substance provides that the orange juice may have a natural sugar content of up to 13%) and subheadings 2009 11 91 and 2009 19 91 (which expressly refer to orange juice containing an added sugar content exceeding 30% by weight) that an orange juice containing sugar in excess of 43% falls under heading No 2009. Further, the Customs Cooperation Council' s Explanatory Notes on Chapter 20 expressly state that fruit juices to which sugar has been added cannot be classified as "fruit juices ... with added sugar" unless they have retained their original character.

3. The Commission considers that the product in question cannot be classified under heading No 2009 having regard to the fact that it contains more than 50% sugar. It considers that the contested product should be classified under heading No 2106 "food preparations not elsewhere specified or included ...". I do not share that analysis for the following reasons.

4. It may no doubt be thought that, although no upper limit for sugar is expressly stated in the wording of the heading, there can be a limit beyond which the original character of the orange juice may not be considered as being maintained. I shall return to that. Even so, the 50% limitation suggested by the Commission is far from being convincing.

5. Let me say in the first place that, whilst the Explanatory Notes expressly limit the quantity of sweeteners other than sugar to what is necessary to give fruit juices their normal sweetness, no such condition is imposed for sugar. The absence of any limit is all the more significant in so far as, by the express terms of the Nomenclature, a fruit juice composed of more than 43% of sugar must be classified under the heading "orange juices ...". In other words, it is clear that even where the quantity of sugar present considerably exceeds that which is necessary to give the fruit juice a normal taste, the product in question falls under the heading "fruit juices ... containing added sugar". The Nomenclature therefore attributes different consequences, on the one hand, to adding sugar and, on the other hand, to adding other sweetening matters. A fruit juice can be "too" sweet - compared with its normal flavour - while still being classified under heading No 2009, whereas an "excessive" presence of sweetening matters precludes a classification under that heading.

6. However, the Commission considers that the quantity of sugar contained in the product in question prevents it from being consumed in that state, that is to say, without dilution, even by a consumer having a very sweet tooth, and deduces therefrom that it is therefore not fruit juice within the meaning of heading No 2009.

7. That analysis is not convincing. First, as the appellant in the main proceedings correctly states in its observations, "the decisive criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters". (1)

8. None of those provisions contain, in the present case, the least reference to the requirement that the products under heading No 2009 should be suitable for direct consumption. On the contrary, the Customs Cooperation Council' s Notes expressly envisage the classification under heading No 2009 of fruit juices in the form of crystals or powder soluble in water. In addition and more especially, the fact that fruit juices containing more than 43% sugar unquestionably come under the heading clearly establishes that products which are too sweet, according to normal taste, to be consumed undiluted must be classified as "fruit juices ... containing added sugar".

9. In addition the Commission' s reference to General Rule of Interpretation No 3 of the Common Customs Tariff scarcely seems to support its argument. No doubt beyond 50% the sugar represents arithmetically the product' s major constituent. Even so, must it be classified according to the "material or component which gives (it) (its) essential character"? If so, is it the sugar which confers its essential character on the product? And even supposing that it is possible to reply positively to that question, which is, all the same, a highly dubious conclusion, would it not therefore be necessary to classify the product under the heading in Chapter 17, entitled "sugars and sugar confectionery"? If one follows the Commission' s own reasoning in that connection, the consequences to be drawn from its analysis are inappropriate and, moreover, very different from what it suggests.

10. On every assumption, the 50% limit proposed by the Commission, on which it expressed, but only at the oral hearing, some hesitations, appears illogical. If an orange juice "very excessively sweetened" - that is to say to more than 43% - constitutes a "fruit juice ... containing added sugar" within the meaning of the customs classification, on what ground would 50% constitute a threshold level? That limit would be purely arbitrary since it would introduce a difference of tariff classification between two products both equally "too sweet" compared with the product' s normal taste, whereas the clear wording of the heading does not contain any upper limit concerning the quantity of sugar. By allowing fruit juices containing more than 43% added sugar to be classified under heading No 2009 the authors of the Nomenclature exercised a choice, questionable perhaps in view of the current concept of fruit juice or of definitions adopted in other fields than customs law, but in any case free from ambiguity as regards the type of product covered by the heading.

11. In that connection it is not without interest to note that in Hauptzollamt Hamburg-Ericus (2) the Court had to consider a product practically identical to the one whose classification is today under discussion. It was a case of an orange juice which had been declared as having a sugar content of 63%, according to the details provided by Mr Advocate General Warner. (3) At no time did the Commission in its observations, the Advocate General or, apparently, the national administration in the main proceedings question the correctness of classifying the product in question under the former heading No 2007, "fruit juices ... whether or not containing added sugar", (4) which became heading No 2009. What is more, the part of the judgment headed "Facts and procedure" expressly states: "According to the nomenclature in Annex B to Regulation (EEC) No 455/69 of the Council of 11 March 1969 (Official Journal, English Special Edition 1969 (I), p. 103) (5) repeated in the Common Customs Tariff, in respect of the tariff classification for concentrated orange juice ...". (6) A certain importance has to be given to that indication, because, apparently, at the time it was taken for granted that a fruit juice containing a very high sugar concentration certainly constituted an orange syrup, but still, as such, fell under the heading "fruit juices ... whether or not containing added sugar" that is to say the current heading No 2009. It is that solution which, at all events, I suggest that the Court adopt in the present case.

12. Without doubt, and I am conscious of this, the interpretation which I suggest to the Court limits the scope of the requirement that the original character of the product be maintained. In fact, in my opinion that requirement must concern only situations where the quantity of sugar would be such that the orange juice merely confers on the sugar a colour and scent. I am thinking here for example of cases where the product is composed of 90% or more sugar. But the Court does not have to give a ruling on that point and, in any case, it is not the situation arising in the present case.

13. Accordingly I suggest that the question referred by the Bundesfinanzhof for a preliminary ruling should be answered as follows:

"Heading No 2009 of the Common Customs Tariff must be interpreted as meaning that a product composed of 39.6% orange juice and 60.4% sugar falls under the said heading."

(*) Original language: French.

(1) Case 62/77 Carlsen-Verlag GmbH [1977] ECR 2343.

(2) Case 91/74 [1975] ECR 643.

(3) Ibid, p. 653.

(4) See Regulation (EEC) No 950/68 of the Council of 28 June 1968 on the common customs tariff (OJ, English Special Edition 1968 (I), p. 275).

(5) This regulation amended heading 20.07.

(6) Case 91/74, cited above, p. 644.

Translation