Opinion of Mr Advocate General Jacobs delivered on 16 March 1995. - Ministre des Finances v Société Pardo & Fils and Camicas SARL. - References for a preliminary ruling: Cour d'appel de Pau - France. - Common Customs Tariff - Tariff headings - Beverages - Preparations of wines of fresh grapes - Sangria. - Joined cases C-59/94 and C-64/94.



European Court reports 1995 Page I-03159



Opinion of the Advocate-General

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1. The plaintiffs in the main proceedings, Société Pardo & Fils and Camicas S.à r.l. (hereafter "Pardo" and "Camicas" respectively), are French customs brokers. In 1988 and 1989 they imported quantities of "sangria" into France on behalf of their respective Spanish clients. It should be noted that during this period the customs relations between Spain and the other Member States were governed by transitional provisions arising from Spain' s accession to the European Communities. As a result customs duties were still payable on certain goods in trade between Spain and the rest of the Community.

2. The plaintiffs declared the goods to the French customs authority as coming within the heading 2205 of the Combined Nomenclature, which applies to "vermouth and other wine of fresh grapes flavoured with plants or aromatic substances". The French customs authority contested that classification. It maintained that the correct classification for "sangria" was heading 2206, which applies to "other fermented beverages (for example, cider, perry, mead) ...", and which attracts a higher customs duty. That difference of opinion led to litigation before the French courts and eventually to a reference for a preliminary ruling from the Cour d' Appel, Pau. The question referred is worded as follows:

"Should the beverage described as sangria, made with more than 50% wine of fresh grapes (heading 2204), be classified under heading 2205 or heading 2206 of the Common Customs Tariff?"

3. The Combined Nomenclature for the Common Customs Tariff was laid down in Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff. (1) Under Article 12 of that regulation the Commission adopts each year by means of a regulation "a complete version of the Combined Nomenclature together with the corresponding autonomous and conventional rates of duty of the Common Customs Tariff, as it results from measures adopted by the Council or by the Commission". In the period in which the disputed importations took place the applicable versions of the Combined Nomenclature were contained in the original Regulation No 2658/87 and in Annex 1 to Commission Regulation (EEC) No 3174/88 of 21 September 1988. (2) The wording of the relevant headings was identical in the two regulations.

4. The Court has consistently held that the decisive criterion for the tariff classification of goods must be sought in their objective characteristics and properties, as defined in the headings and subheadings of the Combined Nomenclature, and in the notes to the sections or chapters. (3)

5. As regards the objective characteristics and properties of the goods in issue, the orders for reference do not contain a great deal of information other than that the goods are a beverage of a type known as "sangria" containing more than 50% wine of fresh grapes. Further information is contained in the observations of the French Government, which state that none of the parties seems to contest the analysis carried out by a body called the Commission de Conciliation et d' Expertise Douanière, according to which the product imported under the designation "sangria" was a mixture of wine, water, sugar and fruit extracts. The French Government also states that the product contained 30 to 36% of water and had an alcohol content of 6.97% volume.

6. The dictionary of the Real Academia Española defines sangria as a refreshing beverage composed of water and wine with sugar and lemon and other additions. A broadly similar, though slightly more elaborate, definition of sangria is to be found in Article 2(3)(a) of Council Regulation (EEC) No 1601/91 of 10 June 1991 laying down general rules on the definition, description and presentation of aromatized wines, aromatized wine-based drinks and aromatized wine-product cocktails. (4) According to that provision, sangria is "a drink obtained from wine, aromatized with the addition of natural citrus-fruit extracts or essences, with or without the juice of such fruit and with the possible addition of spices, sweetened and with CO2 added, having an acquired alcoholic strength by volume of less than 12% vol". Article 4(2) of the regulation makes it clear that water may be added, provided that it does not change the nature of the drink. Although that regulation was not in force at the time when the goods in issue were imported, there is one respect in which it may be indirectly relevant. I shall return to the point later (see paragraph below).

7. There cannot be any doubt that if the sangria in question did not contain water and sugar it would be classified under heading 2205 of the Combined Nomenclature. It would fall squarely within the description "vermouth and other wine of fresh grapes flavoured with plants or aromatic substances". The question that arises is whether the addition of water and sugar affects that classification. On that point the general rules for the interpretation of the Combined Nomenclature, which are set forth in Section I.A of Part I of the annex containing the Combined Nomenclature, are helpful. General Rule 2(b) provides:

"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."

8. General Rule 3 provides:

"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 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.

(c) When goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration."

9. It follows from General Rule 3(b) that the classification of sangria depends on the material or component which gives it its essential character. In my view, the materials which are responsible for the essential character of sangria containing over 50% wine of fresh grapes must in principle be that wine itself and the fruit extract with which it is flavoured. Water and sugar cannot, unless added in very large quantities, change the essential character of the beverage. Water is unlikely, because of its neutral character, to produce such an effect. A whisky does not, for example, cease to be a whisky simply because it is diluted with water. The same may be said of sugar. The addition, in reasonable quantities, of sugar, or of any other sweetening agent, is not likely to alter the essential character of a beverage, at least not in such a way as to effect its transfer from one heading of the Combined Nomenclature to another. Vermouth does not, for example, become cider or perry simply because sugar is added to it; it becomes sweetened vermouth.

10. It follows from the above that sangria of the type described belongs to heading 2205. The classification of sangria under heading 2205 is confirmed by the Explanatory Notes to the Combined Nomenclature issued by the Commission, which state that heading 2205 includes "wine-based beverages known as 'sangria' , flavoured with lemon or orange, for example". Further confirmation is found in the Explanatory Notes issued by the Customs Cooperation Council, which may be used as an aid to the interpretation of the Combined Nomenclature. (5) The notes on heading 2204 exclude from that heading "beverages with a basis of wine of heading 2205". The expression "basis of wine" implies that beverages covered by heading 2205 may contain certain amounts of liquids other than wine, in particular water. Similarly, the Explanatory Notes on heading 2208 exclude "vermouths and other aperitives with a basis of wine of fresh grapes (heading 2205)".

11. Further support for the view reached above may be found in two regulations adopted after the importation of the goods in issue, namely Regulation No 1601/91, which I have already referred to, and Commission Regulation (EEC) No 2593/93 of 21 September 1993 amending Annex 1 to Regulation No 2658/87. (6) The definition of sangria given in the former (see paragraph above) is not directly relevant because ° quite apart from the inapplicability of the regulation ratione temporis ° the purpose of the definition is not to determine what is meant by any of the terms used in the Combined Nomenclature but simply to determine what may lawfully be described as sangria. That is clear from Article 6, which restricts the use of the descriptions referred to in Article 2 to the drinks defined therein. It is however interesting to note that Article 4(2) states that water may be added to any of the drinks referred to in the regulation ° including therefore vermouth, which is defined in Article 2(2)(a) ° provided that the water added does not change the nature of the drink. Thus it is clear that the Community legislature took the view, at least in 1991, that the addition of water does not in itself transform vermouth into a different type of beverage. In that respect the authors of the regulation were simply expressing a logical view that was equally valid at the time of the importations in issue.

12. As regards Regulation No 2593/93, Article 1 thereof inserts a further "Additional note" in Chapter 22 of the Combined Nomenclature, stating that:

"Only vermouth and other wine of fresh grapes flavoured with plants or aromatic substances having an actual alcoholic strength by volume of not less than 7% vol shall be regarded as products falling within CN code 2205."

It seems then that, if Regulation No 2593/93 had been in force at the material time, the goods in question could not have been classified under heading 2205 because, according to the analysis referred to by the French Government, their alcohol content was slightly less than 7% volume. Fortunately for the plaintiffs in the main proceedings, that regulation cannot have retroactive effect, as is clear from the judgment in Biegi v Hauptzollamt Bochum, (7) where the Court stated that "a regulation specifying the conditions for classification in a tariff heading or subheading is of a legislative nature and cannot have retroactive effect". (8) It is however interesting to note that the second recital in the preamble to Regulation No 2593/93 states that:

"... to ensure the uniform application of the combined nomenclature rules must be laid down regarding the classification of vermouth and other wine of fresh grapes flavoured with plants or aromatic substances falling within CN code 2205; ... flavoured wines may, inter alia, contain significant added quantities of liquids such as fruit juices, syrups and water and ... it may therefore be difficult to distinguish them from mixtures of fermented beverages and non-alcoholic beverages falling within CN code 2206 ... ."

That provides further support for the view that the addition of water does not by itself remove a flavoured wine from heading 2205. In that respect the statement in the preamble may be regarded as purely declaratory and therefore relevant to matters that occurred before the regulation was adopted. The same cannot of course be said as regards the fixing of a minimum alcohol content.

13. The French Government refers in its observations to a classification decision approved by the Committee on Common Customs Tariff Nomenclature, according to which a carbonated beverage containing wine (approximately 40%), sugar syrup (approximately 10%), natural flavourings (approximately 2%), small quantities of potassium sorbate and citric acid solution, and water should be classified under heading 2207 (which in the old version of the Combined Nomenclature corresponded to the present heading 2206). (9) Irrespective of the status to be accorded to that decision, it cannot in my view affect the classification of the goods at issue in this case. It is sufficient to note that the sangria imported by Pardo and Camicas contains a considerably higher percentage of wine.

Conclusion

14. Accordingly, I am of the opinion that the question referred to the Court by the Cour d' Appel, Pau, should be answered as follows:

The expression "vermouth and other wine of fresh grapes flavoured with plants or aromatic substances" in heading 2205 of the Combined Nomenclature for the Common Customs Tariff, in the versions laid down in Annex 1 to Council Regulation (EEC) No 2658/87 and in Annex 1 to Commission Regulation (EEC) No 3174/88, must be interpreted as including a beverage described as sangria consisting of more than 50% wine of fresh grapes together with water, sugar and fruit extracts.

(*) Original language: English.

(1) ° OJ 1987 L 256, p. 1.

(2) ° OJ 1988 L 298, p. 1.

(3) ° See, for example, Case C-120/90 Ludwig Post v Oberfinanzdirektion Muenchen [1991] ECR I-2391, paragraph 11 of the judgment.

(4) ° OJ 1991 L 149, p. 1.

(5) ° See, for example, Case C-265/89 Vismans Nederland [1990] ECR I-3411, paragraph 18 of the judgment.

(6) ° OJ 1993 L 238, p. 18.

(7) ° Case 158/78 [1979] ECR 1103.

(8) ° Ibid., paragraph 11 of the judgment.

(9) ° OJ 1987 C 222, p. 2.