Judgment of the Court of 7 November 1973. - Herbert Fleischer Import-Export v Hauptzollamt Flensburg. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Bulk caramel. - Case 49-73.



European Court reports 1973 Page 01199

Greek special edition Page 00745

Portuguese special edition Page 00461



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - SUGAR CONFECTIONERY - CLASSIFICATION OF PRODUCTS UNDER SUBHEADING 17.04-D-II - CRITERIA

Summary

THE MILKFAT CONTENT OF GOODS COVERED BY SUBHEADING 17.04-D-II OF THE COMMON CUSTOMS TARIFF MUST NOT BE SUCH AS TO EFFECT THE CHARACTER OF THOSE PRODUCTS AS SUGAR CONFECTIONERY .

PRODUCTS IN BULK FORM INTENDED FOR USE IN THE MAKING OF SUGAR CONFECTIONERY, EVEN IF THEIR SUGAR CONTENT MUST BE INCREASED DURING PROCESSING INTO THE FINISHED PRODUCT, ARE COVERED BY SUBHEADING 17.04-D-II, PROVIDED THAT THEIR COMPOSITION SPECIFICALLY AND DEFINITELY DESIGNATES THEM FOR USE IN THE MAKING OF A CERTAIN CATEGORY OF SUGAR CONFECTIONERY .

Parties

IN CASE 49/73

REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES UNDER ARTICLE 177 OF THE EEC TREATY BY THE HAMBURG FINANZGERICHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

HERBERT FLEISCHER, IMPORT-EXPORT, BERLIN, PLAINTIFF,

AND

HAUPTZOLLAMT FLENSBURG, DEFENDANT,

Subject of the case

ON THE INTERPRETATION OF HEADINGS 17.04-D-II AND 21.07-F-VII OF THE COMMON CUSTOMS TARIFF AS ESTABLISHED BY EEC REGULATION NO 950/68 OF THE COUNCIL DATED 28 JUNE 1968 ( OJ L 172, 1968 ) AND AMENDED BY EEC REGULATION NO 2451 OF THE COUNCIL DATED 8 DECEMBER 1969 ( OJ L 311/1 ),

Grounds

1 BY ORDER DATED 22 FEBRUARY 1973, FILED AT THE COURT OF JUSTICE ON 15 MARCH 1973, THE HAMBURG FINANZGERICHT REFERRED, UNDER ARTICLE 177 OF THE EEC TREATY, THREE QUESTIONS ON THE INTERPRETATION OF SUBHEADING 17.04-D-II OF THE COMMON CUSTOMS TARIFF .

IT APPEARS FROM THE ORDER THAT THE QUESTIONS REFER TO THE TARIFF CLASSIFICATION OF A PRODUCT IMPORTED INTO THE FEDERAL REPUBLIC FROM DENMARK IN FEBRUARY 1970, DESIGNATED " BULK CARAMEL " AND CONTAINING ABOUT 50 PER CENT BUTTER OR BUTTERFAT, ABOUT 20 PER CENT SUGAR, ABOUT 20 PER CENT GLUCOSE, ABOUT 5 PER CENT MILK POWDER AND AROMATIC AND FLAVOURING MATERIAL .

ON THE FIRST QUESTION

2 IT IS ASKED WHETHER THE MILKFAT CONTENT IN GOODS WITHIN SUBHEADING 17.04-D-II IS SUBJECT TO ANY, AND IF SO, WHAT, LIMITATION .

3 WHEREAS SUBHEADING 17.04-D-I LAYS DOWN AN UPPER LIMIT ( CONTAINING NO MILKFATS OR CONTAINING LESS THAN 1.5 PER CENT BY WEIGHT OF SUCH FATS ), SUBHEADING 17.04-D-II DOES NOT .

ALTHOUGH THE WORDING OF SUBHEADING 17.04-D-II DOES NOT STATE THAT THE PRODUCTS COVERED MUST BE LARGELY COMPOSED OF SUGAR, IT DOES INDICATE QUITE CLEARLY THAT INGREDIENTS OTHER THAN SUGAR MUST NOT BE PRESENT IN SUCH PROPORTION AS TO AFFECT THE CHARACTER OF THE PRODUCT AS " SUGAR CONFECTIONERY ".

THIS BEING THE CASE, IT IS NOT POSSIBLE TO FIX A GENERALLY APPLICABLE QUANTIFIED LIMIT FOR MILKFAT CONTENT FOR THE PURPOSES OF THE SUBHEADING AT ISSUE .

A MAXIMUM LIMIT OF THIS KIND MUST BE FIXED HAVING REGARD TO THE FACTS OF EACH CASE, IN PARTICULAR, DATA AS TO THE METHOD OF MANUFACTURE, COMPOSITION AND USE OF THE PRODUCT IN QUESTION .

THUS THE FIXING OF THIS LIMIT MUST BE LEFT TO THE DISCRETION OF THE COURT CHARGED WITH THE APPLICATION OF THE COMMON CUSTOMS TARIFF IN EACH CASE, HAVING REGARD TO THE FACT THAT THE MILKFAT CONTENT OF GOODS COVERED BY SUBHEADING 17.04-D-II OF THE COMMON CUSTOMS TARIFF MUST NOT BE SUCH AS TO AFFECT THE CHARACTER OF THOSE PRODUCTS AS SUGAR CONFECTIONERY .

ON THE SECOND AND THIRD QUESTIONS

4 IT IS ASKED WHETHER SEMI-FINISHED PRODUCTS, IN THE FINISHING OF WHICH SUGAR MUST BE ADDED, CAN BE INCLUDED IN " SUGAR CONFECTIONARY " WITHIN THE MEANING OF SUBHEADING 17.04-D-II AND, IF SO, WHETHER SUCH CLASSIFICATION DEPENDS UPON THE GENERAL OPINION OBTAINING IN THE CONFECTIONERY TRADE .

5 THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE STATE WITH REGARD TO HEADING 17.04 THAT THE HEADING ALSO COVERS " PASTES USED FOR MAKING FONDANTS, MARZIPAN, NOUGAT ETC ".

THEREFORE PRODUCTS IN THE FORM OF SEMI-FINISHED PRODUCTS ARE TO BE CLASSIFIED UNDER THIS HEADING IF THEY ALREADY DISPLAY THE SPECIFIC AND ESSENTIAL CHARACTERISTICS OF " SUGAR CONFECTIONERY ".

6 WHILST THE PRODUCT IN ITS BULK FORM, NOT HAVING ATTAINED ITS FINAL COMPOSITION IN RESPECT OF ITS PRINCIPAL INGREDIENTS AND REQUIRING, FOR EXAMPLE, THE ADDITION OF SUGAR, MAY, IN SOME CASES, SHOW THE CHARACTERISTICS OF SUGAR CONFECTIONERY WITHIN THE MEANING OF HEADING 17.04, ITS COMPOSITION MUST SPECIFICALLY AND DEFINITELY DESIGNATE IT FOR USE IN THE MAKING OF A CERTAIN CATEGORY OF SUGAR CONFECTIONERY .

IN ORDER TO ASCERTAIN IF THIS IS SO, ACCOUNT MUST BE TAKEN OF FACTUAL DATA WITH REGARD TO THE USUAL METHOD OF MANUFACTURE AND COMPOSITION OF THE FINISHED PRODUCT IN QUESTION .

7 ACCORDINGLY, PRODUCTS IN BULK FORM INTENDED FOR USE IN MAKING SUGAR CONFECTIONERY, EVEN IF THEIR SUGAR CONTENT MUST BE INCREASED DURING PROCESSING INTO THE FINISHED PRODUCT, ARE TO BE DEEMED TO BE COVERED BY SUBHEADING 17.04-D-II PROVIDED THAT THEIR COMPOSITION SPECIFICALLY AND DEFINITELY DESIGNATES THEM FOR USE IN THE MAKING OF A CERTAIN CATEGORY OF SUGAR CONFECTIONERY .

Decision on costs

8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE WRITTEN PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HAMBURG FINANZGERICHT, BY ORDER OF THAT COURT DATED 22 FEBRUARY 1973, HEREBY RULES :

1 . THE MILKFAT CONTENT OF GOODS COVERED BY SUBHEADING 17.04-D-II OF THE COMMON CUSTOMS TARIFF MUST NOT BE SUCH AS TO AFFECT THE CHARACTER OF THOSE PRODUCTS AS SUGAR CONFECTIONERY;

2 . PRODUCTS IN BULK FORM INTENDED FOR USE IN THE MAKING OF SUGAR CONFECTIONERY, EVEN IF THEIR SUGAR CONTENT MUST BE INCREASED DURING PROCESSING INTO THE FINISHED PRODUCT, ARE COVERED BY SUBHEADING 17.04-D-II, PROVIDED THAT THEIR COMPOSITION SPECIFICALLY AND DEFINITELY DESIGNATES THEM FOR USE IN THE MAKING OF A CERTAIN CATEGORY OF SUGAR CONFECTIONERY .