Opinion of Mr Advocate General Darmon delivered on 15 January 1991. - Nordgetränke GmbH & Co. KG v Hauptzollamt Hamburg-Ericus. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Apricot purée. - Case C-324/89.



European Court reports 1991 Page I-01927



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The Bundesfinanzhof (Federal Finance Court) of the Federal Republic of Germany has referred to the Court three questions for a preliminary ruling for the purpose of establishing the tariff classification of an apricot compote.

2. The facts are extremely simple. In January 1984, Nordgetraenke, a Hamburg firm, imported apricot purée coming from Argentina. The Hauptzollamt (Principal Customs Office) initially classified the product under tariff subheading 20.06 B II a) 7 aa) of the Common Customs Tariff as "fruit otherwise prepared or preserved, whether or not containing added sugar or spirit", which gives rise to a customs duty of 22% and additional duty on the sugar fixed at a standard rate of 2%. (1) By a rectification decision of 20 March 1983 it classified the goods under subheading 20.05 C I b) as "jams, fruit jellies, marmalades, fruit purée and fruit pastes, being cooked preparations, whether or not containing added sugar", which led to duty at 30% and additional duty on the sugar being applied. (2) Nordgetraenke contested the reclassification and brought an action before the Finanzgericht (Finance Court).

3. That court upheld the Hauptzollamt' s tariff classification. Nordgetraenke appealed on a point of law to the Bundesfinanzhof which has referred the matter to the Court.

4. The first question concerns classification under subheading 20.05 C I b). Nordgetraenke states that the apricot compote which it imports is not fruit purée obtained by cooking but is in fact prepared by pressing apricots through a sieve. It is then briefly heated but that leads not to a change in substance but simply to dehydration so as to reduce the volume to save space and weight for shipping.

5. According to the actual wording of the first question, the compote in question is "made by pressing fruit pulp through a sieve and then bringing it to the boil for no more than 30 seconds in a vacuum concentrator".

6. The essential question seems to be whether or not the goods at issue are a "cooked preparation". In this respect the findings of the expert appointed by the Finanzgericht are important. He states that "In the field of food technology 'a cooking process' is understood as being a thermal process which leads to a deliberate modification in a product' s properties", those modifications "are often accompanied by a certain reduction in the water content ..."; "however it is not the reduction in water content, but the deliberate modification of the product through lengthy thermal action which is the essential element in the 'cooking process' ". (3)

7. That expert differentiates cooking from a "concentration" process which is intended to reduce the water content of the product without changing it. Reducing the water content is done under vacuum at temperatures ranging between 40 C and 70 C for a very short period of 10 to 30 seconds. The concentrated products obtained by this means are substantively identical to the initial products.

8. According to the expert's findings, the apricot purée imported by Nordgetraenke, is "concentrated apricot pulp". "It is not possible", he states, "to discern any modifications in the product compared with fresh apricot pulp, whether organoleptic changes or chemical changes. Accordingly there is no doubt that the product was prepared by a 'concentration' process similar to that for fruit juice concentrates. On the other hand, if the product had been prepared by a cooking process, one would find substantial organoleptic changes (colour: dark to brown; odour: like caramel or honey; taste: taste of cooking or oxidation with a trace of caramelization, possibly a burnt taste) and chemical changes (higher content of HMF - hydroxymethylfurfurol, inversion of sucrose, etc.). In addition the consistency would be different".

9. Consequently there is nothing in the findings of the experts to show that the apricot compote in question has undergone a cooking process.

10. In its written observations, the Commission (4) considers that the concept of cooking in tariff heading No 20.05 must be taken as having its ordinary meaning, namely thermal treatment leading to boiling, whereas at the hearing it envisaged reference to the scientific definition of cooking, without, however, making clear whether it had changed its mind on the point. Furthermore, according to the Commission, the wording of tariff heading No 20.05 gives no indication whether the boiling process must correspond to a deliberate modification of the product's properties and lengthy thermal action. The Commission concludes that the apricot purée at issue must be classified under tariff subheading 20.05 C I b).

11. I agree in part with the Commission's analysis. One cannot take into consideration the time factor without running the risk, in view of modern processes of extremely rapid cooking, of creating, within tariff heading No 20.05, an inappropriate distinction based on the length of time the product has been subjected to a high temperature. On the other hand, to consider that any treatment leading to boiling is "cooking" within the meaning of the Common Customs Tariff, even if it entails no change in the taste, chemical properties, or consistency of the product, would seem to lead to an excessive generalization. Tariff heading No 20.05, by employing the expression "being cooked preparations" necessarily requires that the product resulting from the cooking should not be identical to that which existed before cooking. Accordingly a substantive change seems to be the decisive criterion.

12. That was, moreover, the opinion of the Commission's officials in the Common Customs Tariff Nomenclature Committee as regards apple purée, according to Annex 5 to the Commission's written observations. (5) There it is stated that "the products under heading No 20.05 must have been changed in consistency by cooking" and that "products which have simply been heated (even if up to a temperature of 100 C) for the purpose of sterilization should accordingly be classified under heading No 20.06". It does indeed appear that the Nomenclature Committee did not in that respect follow the Commission's opinion at that time. (6) It seems to me however that to accept that cooking may consist simply in subjecting a product to higher temperature, regardless of the duration or the temperature reached - those being factors which, in my view, must not be taken into account - particularly where the product may not undergo any change - which constitutes, I have already said, the decisive criterion - would give tariff heading No 20.05 too wide a scope. What would be the position, say, of fruit which was heated slightly in order to be crushed?

13. Finally it should be noted that in the procedure which gave rise to the Court's judgment of 30 September 1982, (7) mahaleb cherry concentrates and blackcurrant concentrates, obtained by heating the fruit juice immediately after the fruit was pressed, had been classified by the Hauptzollamt Bad Reichenhall under heading No 20.07 and not No 20.05.

14. I therefore consider that the apricot purée in question was not a cooked preparation and cannot therefore come under subheading 20.05 C I b).

15. I must now examine whether it comes under subheading 20.06 B II a) 7, as "fruit otherwise prepared or preserved".

16. The Commission supports such an approach in its alternative submissions. Nordgetraenke itself suggests heading No 20.07, "fruit juices" or, failing that, No 20.06. According to the Bundesfinanzhof, in view of the characteristics of the product, heading No 20.07 in particular is ruled out.

17. It seems to me that the Bundesfinanzhof's findings that "it is a firm, yellow purée with an apricot odour" (8) preclude classifying the product in question under heading No 20.07, "fruit juices". Accordingly it appears that the appropriate tariff heading must be subheading 20.06 B II a) 7, "fruit otherwise prepared or preserved".

18. Accordingly I suggest that the Court rule as follows:

"(1) The Common Customs Tariff (1984) must be interpreted as meaning that a compote of apricots obtained by pressing fruit pulp through a sieve and heating for 30 seconds at boiling point in a vacuum concentrator, without the product' s substance being modified, does not fall under tariff subheading 20.05 C I b);

(2) Such a product falls under tariff subheading 20.06 B II a) 7."

(*) Original language: French.

(1) See Council Regulation No 3333/83/EEC of 4 November 1983 amending Regulation No 950/68/EEC on the Common Customs Tariff (OJ L 313, p. 1; see p. 12, General Rule B 9).

(2) See Council Regulation No 3333/83/EEC, referred to above, p. 12, General Rule B 8.

(3) See Annex 2 to the Commission's written observations, p. 2.

(4) At p. 4.

(5) p. 3.

(6) See the summary record of the meeting of 28 September to 2 October 1981 in Annex 5 to the Commission's written observations.

(7) Case 295/81, IFF [1982] ECR 3239.

(8) Order for reference, p. 2 of the English translation.

Translation