Case C-412/08: Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 22 September 2008 — Swiss Caps AG v Hauptzollamt Singen
Date: 2008-09-22
Institutions: Court of Justice
Subjects: Combined Nomenclature, Germany, food additive, interpretation of the law

C 313/14

EN

Official Journal of the European Union

Reference for a preliminary ruling from the Finanzgericht
Baden-Württemberg (Germany) lodged on 22 September
2008 — Swiss Caps AG v Hauptzollamt Singen

purified water
described above from that heading?

leads

to the exclusion of

6.12.2008

the capsules

(1) OJ 1987 L 256, p. 1.

(Case C-410/08)

(2008/C 313/20)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Swiss Caps AG

Defendant: Hauptzollamt Singen

Questions referred

1. Is heading 1517 of the Combined Nomenclature (Annex I to
Council Regulation (EEC) No 2658/87 of 23 July 1987 —
Combined Nomenclature (CN)) (1)
to be interpreted as
meaning that preparations of only one (concentrated) oil or
fat, to which vitamin E alone has been added and which has
not otherwise been treated, are to be classified under that
heading?

2. If the first question is to be answered in the affirmative:

Is heading 1517 of the Combined Nomenclature to be inter-
preted as meaning that the addition of concentrated vitamin E
(d-alpha-tocopherol concentrate) in a quantity of 22,8 mg to
600 mg of concentrated fish oil (Incromega EPA SR 500 TG)
leads to the exclusion of the goods from that heading?

3. If the first question is to be answered in the affirmative and

the second in the negative:

Is Rule 5 of the General Rules for the Interpretation of the
Combined Nomenclature to be interpreted as meaning that
capsule casings consisting of 212,8 mg of gelatin, 77,7 mg
of glycerol and 159,6 mg of purified water and containing
food supplement substances are to be regarded as packing
material?

4. If the third question is answered in the negative:

Reference for a preliminary ruling from the Finanzgericht
Baden-Württemberg (Germany) lodged on 22 September
2008 — Swiss Caps AG v Hauptzollamt Singen

(Case C-412/08)

(2008/C 313/21)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Swiss Caps AG

Defendant: Hauptzollamt Singen

Questions referred

1. Is heading 1517 of the Combined Nomenclature (Annex I to
Council Regulation (EEC) No 2658/87 of 23 July 1987 —
Combined Nomenclature (CN)) (1)
to be interpreted as
meaning that the addition of 10 mg of lecithin, 18,8 mg of
vitamin E, 8,2 mg of wax, 8 mg of calcium pantothenate,
0,2 mg of folic acid and 0,11 mg of biotin to a mixture
consisting of 500 mg of cold-pressed black cumin oil
(62,5 % or 83,3 %), 38,7 mg of soya oil and 16 mg of
butterfat is to be regarded as so small that it does not affect
the classification of such a preparation under that heading?

2. If the reply to the first question is in the affirmative:

Is heading 1517 of the Combined Nomenclature to be inter-
preted as meaning that a capsule casing consisting of
212,8 mg of gelatin, 77,7 mg of glycerol and 159,6 mg of

Is Rule 5 of the General Rules for the interpretation of the
Combined Nomenclature to be interpreted as meaning that
capsule casings containing the substances specified above are
to be regarded as packing material?

6.12.2008

EN

Official Journal of the European Union

C 313/15

3. If the reply to the second question is in the negative:

the claims put forward by Complejo Agrícola in the action
for annulment;

Is heading 1517 of the Combined Nomenclature to be inter-
preted as meaning that a capsule casing consisting of
313,97 mg of gelatin mass (47,3 % gelatin, 17,2 % glycerine,
35,5 % water), 4,30 mg of paste consisting of 50 % titanium
dioxide and 50 % glycerine, and 1,73 mg of paste consisting
of 25 % quinoline yellow lacquer and 75 % glycerine leads
to the exclusion of the capsules described above from that
heading?

— order

the Commission to pay the costs

incurred by

Complejo Agrícola in these proceedings.

(1) OJ 1987 L 256, p. 1.

Pleas in law and main arguments

The CFI
judgment recognises that Decision 2006/613 is a
measure which is capable of being challenged. However, in the
judgment the CFI denies that Complejo Agrícola has standing to
challenge it because, in its opinion, Decision 2006/613, which
declares as a site of Community importance (SCI) Acebuchales
de la Campiña Sur de Cádiz — cod. 6120015 (‘SCI Acebu-
chales’) that affects part of
the Finca ‘Las Lomas’, which is
owned by Complejo Agrícola, is not of direct concern to it as it
does not impose any specific obligations on Complejo Agrícola
and requires national implementing rules.

Complejo Agrícola takes the view that the order of the CFI
incorrectly interprets Article 230 of the Treaty Establishing the
European Community (‘EC Treaty’), as it has been interpreted by
the most recent case-law, Complejo Agrícola does have locus
standi to challenge Decision 2006/613 as that decision is of
direct and individual concern to it. That is why the order under
appeal must be annulled.

Complejo Agrícola is directly concerned by Decision 2006/613
if it is analysed either in accordance the formal jurisprudential
interpretation of direct concern, which is no longer current, or
in accordance with the substantive interpretation now adopted
by the Court.

The order under appeal compares Complejo Agrícola's situation
with earlier precedents with which it has nothing in common,
without analysing the specific circumstances of this case.
In
accordance with the case-law currently applicable, Complejo
Agrícola's situation must lead to the recognition of its locus
standi. The main difference between this case and those exam-
ined in the cases mentioned in the order of the CFI is that,
when it adopted Decision 2006/613, the Spanish legislation on
the protection of SCIs had already been approved and the legal
consequences of
the adoption of Decision 2006/613 for
Complejo Agrícola were already well known so that the possibi-
lity that the Spanish State would not apply Decision 2006/613
was purely theoretical. That situation is not altered, as the CFI's
order states, by the fact that in the future the Spanish state may
amend the rules.

(1) OJ L 259, p. 1.

Appeal brought on 22 September 2008 by Complejo
Agrícola against the judgment delivered on 14 July 2008 in
Case T-345/06 Complejo Agrícola SA v Commission of the
European Communities, supported by the Kingdom of
Spain

(Case C-415/08 P)

(2008/C 313/22)

Language of the case: Spanish

Parties

Appellant: Complejo Agrícola SA (represented by: A. Menéndez
Menéndez and G. Yanguas Montero, lawyers)

Other parties to the proceedings: Commission of the European
Communities and the Kingdom of Spain

Form of order sought

— allow the appeal;

in which the CFI:

— annul the judgment of the Court of First Instance of 14 July
2008, notified to the appellant on 18 July 2008 (‘the CFI
judgment’)
(a) declared the action for
annulment brought by Complejo Agrícola (‘the action for
annulment’) against Commission Decision 2006/613/EC (1)
of 19 July 2006 adopting, pursuant to Council Directive
92/43/EEC, the list of sites of Community importance for
the Mediterranean
(‘Decision
biogeographical
2006/613’), and (b) ordered Complejo Agrícola to bear its
costs and to pay those of the Commission of the European
Communities (‘the Commission’);

region

— refer the case back to the CFI in order for it to uphold the
action for annulment and give a ruling on the substance of