Judgment of the Court of 15 February 1977. - Rolf H. Dittmeyer v Hauptzollamt Hamburg-Waltershof. - References for a preliminary ruling: Bundesfinanzhof - Germany. - Orange skin and pith. - Joined cases 69 and 70-76.



European Court reports 1977 Page 00231

Greek special edition Page 00075

Portuguese special edition Page 00083



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . COMMON CUSTOMS TARIFF - CLASSIFICATION OF GOODS - INTERPRETATION - COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE - OPINION - AUTHORITY - LIMITS

2 . COMMON CUSTOMS TARIFF - CLASSIFICATION OF GOODS - PIECES OF FRUIT - ABSENCE OF ESSENTIAL CONSTITUENTS OF THE NATURAL PRODUCT - CLASSIFICATION UNDER TARIFF HEADING 23.06

Summary

1 . THE OPINIONS OF THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMEN- CLATURE CONSTITUTE AN IMPORTANT MEANS OF ENSURING THE UNIFORM APPLICATION OF THE COMMON CUSTOMS TARIFF BY THE CUSTOMS AUTHORITIES OF THE MEMBER STATES AND AS SUCH THEY MAY BE CONSIDERED AS A VALID AID TO THE INTERPRETATION OF THE TARIFF . NEVERTHELESS SUCH OPINIONS DO NOT HAVE LEGALLY BINDING FORCE SO THAT , WHERE APPROPRIATE , IT IS NECESSARY TO CONSIDER WHETHER THEIR CONTENT IS IN ACCORDANCE WITH THE ACTUAL PROVISIONS OF THE COMMON CUSTOMS TARIFF AND WHETHER THEY ALTER THE MEANING OF SUCH PROVISIONS .

2 . HEADING 23.06 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT IT MAY INCLUDE PRODUCTS CONSISTING OF PARTS OF FRUIT , WHICH HOWEVER ARE ALMOST ENTIRELY LACKING IN ANY OF THOSE FEATURES WHICH DETERMINE THE NATURE OF FRUIT , IN PARTICULAR PRODUCTS CONSISTING OF ORANGES WHICH INITIALLY ENTERED THE JUICE IN THE COURSE OF PRESSING THE ORANGES AND WHICH HAVE SUBSEQUENTLY BEEN STRAINED OFF EVEN IF THEY CONTAIN SCARCELY ANY CONSTITUENT PARTS OF THE FLESH OF THE FRUIT OR FRUIT JUICE AND INSTEAD CONSTITUTE PRINCIPALLY CELL MEMBRANE AND ALBEDO .

Parties

IN JOINED CASES 69 AND 70/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN :

FIRMA ROLF H . DITTMEYER , HAMBURG

AND

HAUPTZOLLAMT HAMBURG-WALTERSHOF

Subject of the case

ON THE INTERPRETATION OF TARIFF HEADINGS 08.10 , 20.06 AND 23.06 OF THE COMMON CUSTOMS TARIFF , REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ( OJ L 172 OF 22 . 7 . 1968 , P . 1 ) AS LAST AMENDED BY REGULATION NO 2723/76 OF THE COUNCIL OF 8 NOVEMBER 1976 ( OJ L 314 OF 15 . 11 . 1976 , P . 1 ),

Grounds

1 BY TWO ORDERS OF 1 JUNE 1976 RECEIVED AT THE COURT REGISTRY ON 19 JULY 1976 THE BUNDESFINANZHOF SUBMITTED TO THE COURT OF JUSTICE PURSUANT TO ARTICLE 177 TWO SERIES OF THREE PARALLEL QUESTIONS RELATING TO THE CUSTOMS CLASSIFICATION OF A PRODUCT , IN ONE CASE PASTEURIZED AND IN THE OTHER FROZEN , WHICH IS ' OBTAINED IN THE COURSE OF MANUFACTURING FRUIT JUICE AND CONSISTS OF PIECES OF FRUIT WHICH FALL INTO THE JUICE DURING PRESSING AND ARE SUBSEQUENTLY STRAINED OFF ' .

2 THE FIRST QUESTIONS ASK WHETHER HEADING 08.10 OF THE COMMON CUSTOMS TARIFF , ' FRUIT ( WHETHER OR NOT COOKED ), PRESERVED BY FREEZING , NOT CONTAINING ADDED SUGAR ' OR HEADING 20.06 OF THIS TARIFF , ' FRUIT OTHERWISE PREPARED OR PRESERVED , WHETHER OR NOT CONTAINING ADDED SUGAR OR SPIRIT ' MUST BE INTERPRETED TO MEAN THAT PRODUCTS CONSISTING OF PARTS OF FRUIT WHICH HOWEVER ARE ALMOST ENTIRELY LACKING IN ANY OF THOSE FEATURES WHICH DETERMINE THE NATURE OF FRUIT CAN BE CONSIDERED AS COMING UNDER THE HEADING ' FRUIT ' ; IN PARTICULAR , WHETHER IT IS POSSIBLE TO CLASSIFY UNDER HEADING 20.06 OR 08.10 PRODUCTS CONSISTING OF PARTS OF ORANGES WHICH HAVE INITIALLY ENTERED THE JUICE IN THE COURSE OF PRESSING THE ORANGES AND WHICH HAVE SUBSEQUENTLY BEEN STRAINED OFF , EVEN IF THEY CONTAIN SCARCELY ANY CONSTITUENT PARTS OF THE FLESH OF THE FRUIT OR FRUIT JUICE AND INSTEAD CONSIST PRINCIPALLY OF CELL MEMBRANE AND ALBEDO . IF THE FIRST QUESTIONS ARE ANSWERED IN THE NEGATIVE , THE SECOND QUESTIONS ASK WHETHER HEADING 23.06 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT THE ABOVE-DESCRIBED PRODUCT CAN BE INCLUDED UNDER THIS HEADING EVEN IF IN BOTH GENERAL AND PARTICULAR CASES IT IS NOT USED FOR ANIMAL FOOD . IF THE FIRST AND SECOND QUESTIONS ARE ANSWERED IN THE NEGATIVE , THE THIRD QUESTIONS ASK WHETHER THE PRODUCT CAN BE BROUGHT UNDER ONE OF THE SAID HEADINGS THROUGH THE APPLICATION OF NO 5 ( NOW NO 4 ) OF THE GENERAL RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF .

3 THE FILE INDICATES THAT PRODUCTS SUCH AS THOSE REFERRED TO BY THE QUESTIONS FORM THE SUBJECT-MATTER OF AN OPINION OF THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE ESTABLISHED BY REGULATION ( EEC ) NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ON MEASURES TO BE TAKEN FOR UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ( OJ ENGLISH SPECIAL EDITION 1969 ( I ), P . 12 ). THIS OPINION , CALLED A ' CLASSIFICATION SLIP ' , RELATES TO PRODUCTS DESCRIBED AS ' PRODUCTS TERMED ' ORANGE CELLS ' , IN THE FORM OF A THICK FRUIT PUREE , UNCOOKED , YELLOWISH , WITH A NEUTRAL OR VERY SLIGHTLY BITTER TASTE SIMILAR TO THAT OF AN ORANGE , NOT CONTAINING ADDED SUGAR ; THE PRODUCTS ARE OBTAINED AFTER FILTERING ORANGE JUICE CONTAINING FLESH OF THE FRUIT AND INCLUDE A CERTAIN AMOUNT OF MORE OR LESS FINELY CRUSHED PEEL , MAINLY FROM THE INNER WHITE PART . THEY ARE INTENDED TO BE ADDED TO DILUTED CONCENTRATES OF ORANGE JUICE AND TO SOFT DRINKS ' . THE OPINION , WHICH STATES THAT ' THESE PRODUCTS FALL UNDER SUBHEADING 20.06 B II WHEN PASTEURIZED AND UNDER SUBHEADING 08.10 B WHEN FROZEN ' , IS BASED UPON THE FACT ' THAT THE PRODUCTS IN QUESTION CONSIST IN FACT SOLELY IN PARTS OF THE FRUIT PROPERLY SO-CALLED , THAT IS THE FLESH OF THE FRUIT , THE CELL MEMBRANE AND A CERTAIN QUANTITY OF THE PEEL , MAINLY FROM THE INNER WHITE PART ' . ACCORDING TO THE OPINION , ' THESE PRODUCTS CANNOT BE CLASSIFIED UNDER HEADING 23.06 MAINLY BECAUSE , HAVING REGARD TO THE METHOD BY WHICH THEY ARE PRODUCED AND THE WAY IN WHICH THEY ARE PRESERVED , THEY DO NOT CONSTITUTE A RESIDUE WITHIN THE MEANING OF THAT HEADING ' .

4 THE OPINIONS OF THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE CONSTITUTE AN IMPORTANT MEANS OF ENSURING THE UNIFORM APPLICATION OF THE COMMON CUSTOMS TARIFF BY THE CUSTOMS AUTHORITIES OF THE MEMBER STATES AND AS SUCH THEY MAY BE CONSIDERED AS A VALID AID TO THE INTERPRETATION OF THE TARIFF . NEVERTHELESS SUCH OPINIONS DO NOT HAVE LEGALLY BINDING FORCE SO THAT , WHERE APPROPRIATE , IT IS NECESSARY TO CONSIDER WHETHER THEIR CONTENT IS IN ACCORDANCE WITH THE ACTUAL PROVISIONS OF THE COMMON CUSTOMS TARIFF AND WHETHER THEY ALTER THE MEANING OF SUCH PROVISIONS . THE QUESTIONS WHICH HAVE BEEN ASKED BY THE NATIONAL COURT WERE EVIDENTLY PROMPTED BY GRAVE DOUBTS AS TO WHETHER THE OPINION WAS IN ACCORDANCE WITH THE SAID TARIFF HEADINGS .

5 THE ACTUAL WORDING OF CHAPTERS 8 AND 20 OF THE TARIFF COVERS NOT ONLY WHOLE PRODUCTS BUT ALSO FRUIT WHICH IS SLICED , CHOPPED , STONED , PULPED , GRATED , PEELED OR SHELLED . CHAPTER 8 ALSO REFERS TO THE PEEL OF CITRUS FRUIT AND OF MELONS WHILST SEVERAL SUBHEADINGS OF CHAPTER 20 REFER EXPRESSLY OR BY IMPLICATION TO PEEL . NEVERTHELESS IN ALL THOSE CASES THE PRODUCTS REFERRED TO MAY STILL BE IDENTIFIED BY THEIR CHARACTERISTICS AND THEIR FORM AS COMING UNDER FRUIT AND THEY CONSTITUTE PARTS OF FRUIT IN DEMAND AS FRESH OR PREPARED FRUIT . THE CONCEPT OF FRUIT CANNOT BE EXTENDED SO AS TO DESCRIBE AS FRUIT PRODUCTS LACKING THE ESSENTIAL CONSTITUENTS OF THE NATURAL PRODUCT . ACCORDINGLY , PRODUCTS SUCH AS THOSE DESCRIBED BY THE NATIONAL COURT WHICH ARE RESIDUES FROM PRESSING AND CONSIST ONLY IN THE CELL MEMBRANE OF THE FLESH OF THE FRUIT AND PART OF THE WHITE INNER SKIN , THAT IS TO SAY , IN PARTS OF THE FRUIT GENERALLY ACCEPTED AS NON-ESSENTIAL , CANNOT BE CLASSIFIED AS FRUIT WITHIN THE MEANING OF CHAPTERS 8 AND 20 SINCE EVERY FRUIT CONSISTS AT LEAST IN THE OUTER SKIN AND THE FLESH .

6 THIS CONCLUSION IS CONFIRMED BY THE FACT THAT THE COMMON CUSTOMS TARIFF CONTAINS A SEPARATE CHAPTER , CHAPTER 23 , COVERING ' RESIDUES AND WASTE FROM THE FOOD INDUSTRIES ; PREPARED ANIMAL FODDER ' . THE ' CLASSIFICATION SLIP ' MENTIONED ABOVE DID INDEED RULE OUT CLASSIFICATION UNDER THE HEADINGS OF THIS CHAPTER IN PARTICULAR BECAUSE THE PRODUCTS IT REFERS TO DO NOT CONSTITUTE A RESIDUE WITHIN THE MEANING OF THIS CHAPTER OWING TO THE WAY IN WHICH THEY WERE OBTAINED AND PRESERVED , BUT IT IS CLEAR FROM THE FILE THAT THE PRODUCTS REFERRED TO BY THE NATIONAL COURT ARE RESIDUES FROM THE MANUFACTURE OF FRUIT JUICE , THAT IS TO SAY , RESIDUES OBTAINED IN THE COURSE OF PRESSING THE SLICED FRUIT OR EXTRACTION OF THE JUICE , WHICH INITIALLY ENTER THE JUICE AND MUST BE STRAINED OFF . THE FACT THAT THOSE PRODUCTS ARE NOT INTENDED FOR CONSUMPTION BY ANIMALS DOES NOT PREVENT CLASSIFICATION UNDER CHAPTER 23 SINCE , ACCORDING TO ITS TITLE AND THE WORDING OF THE VARIOUS SUBHEADINGS , THIS CHAPTER DOES NOT RELATE ONLY TO PREPARED ANIMAL FODDER . IF THE PRODUCTS REFERRED TO WERE CLASSIFIED UNDER THE HEADINGS CONTAINED IN CHAPTERS 8 AND 20 THIS MIGHT WELL EXTEND TOO WIDELY THE CONCEPTS OF ' EDIBLE FRUIT ' OR OF ' PREPARATIONS OF FRUIT ' WHILST , ON THE OTHER HAND , IN VIEW OF THE INFORMATION SUPPLIED BY THE NATIONAL COURT , CLASSIFICATION UNDER THE HEADINGS OF CHAPTER 23 , ' RESIDUES AND WASTE ' , APPEARS REASONABLE .

7 SINCE THE THIRD QUESTIONS WERE ONLY SUBMITTED IN CASE A NEGATIVE REPLY WAS GIVEN TO THE FIRST AND SECOND QUESTIONS THEY ARE , IN THE CIRCUMSTANCES , NO LONGER RELEVANT .

8 CONSEQUENTLY THE REPLY TO THE QUESTIONS SUBMITTED MUST BE THAT HEADING 23.06 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT IT MAY INCLUDE PRODUCTS CONSISTING OF PARTS OF FRUIT , WHICH HOWEVER ARE ALMOST ENTIRELY LACKING IN ANY OF THOSE FEATURES WHICH DETERMINE THE NATURE OF FRUIT , IN PARTICULAR PRODUCTS CONSISTING OF PARTS OF ORANGES WHICH INITIALLY ENTERED THE JUICE IN THE COURSE OF PRESSING THE ORANGES AND WHICH HAVE SUBSEQUENTLY BEEN STRAINED OFF EVEN IF THEY CONTAIN SCARCELY ANY CONSTITUENT PARTS OF THE FLESH OF THE FRUIT OR FRUIT JUICE AND INSTEAD CONSIST PRINCIPALLY OF CELL MEMBRANE AND ALBEDO .

Decision on costs

COSTS

9 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE BUNDESFINANZHOF BY ORDERS OF 1 JUNE 1976 , HEREBY RULES :

HEADING 23.06 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT IT MAY INCLUDE PRODUCTS CONSISTING OF PARTS OF FRUIT , WHICH HOWEVER ARE ALMOST ENTIRELY LACKING IN ANY OF THOSE FEATURES WHICH DETERMINE THE NATURE OF FRUIT , IN PARTICULAR PRODUCTS CONSISTING OF PARTS OF ORANGES WHICH INITIALLY ENTERED THE JUICE IN THE COURSE OF PRESSING THE ORANGES AND WHICH HAVE SUBSEQUENTLY BEEN STRAINED OFF , EVEN IF THEY CONTAIN SCARCELY ANY PART OF THE FLESH OF THE FRUIT OR FRUIT JUICE AND INSTEAD CONSIST PRINCIPALLY OF CELL MEMBRANE AND ALBEDO .