CELEX: 62008CJ0150
Language: en
Date: 2009-05-07 00:00:00
Title: Judgment of the Court (Third Chamber) of 7 May 2009.#Siebrand BV v Staatssecretaris van Financiën.#Reference for a preliminary ruling: Hoge Raad der Nederlanden - Netherlands.#Combined Nomenclature - Tariff headings 2206 and 2208 - Fermented beverage containing distilled alcohol - Beverage produced from fruit or from a natural product - Addition of substances - Effects - Loss of the taste, smell and appearance of the original beverage.#Case C-150/08.

Case C-150/08
      Siebrand BV
      v
      Staatssecretaris van Financiën
      (Reference for a preliminary ruling from the Hoge Raad der Nederlanden)
      (Combined Nomenclature – Tariff headings 2206 and 2208 – Fermented beverage containing distilled alcohol – Beverage produced from fruit or from a natural product – Addition of substances – Effects – Loss of the taste, smell and appearance of the original beverage)
      Summary of the Judgment
      Common Customs Tariff – Tariff headings – Fermented beverages containing distilled alcohol, produced from fruit or from a
            natural product, to which various substances have been added
      (Council Regulation No 2658/87, Annex I, headings 2206 and 2208; Commission Regulation No 2587/91)
      Fermented alcohol-based beverages corresponding originally to heading 2206 of the Combined Nomenclature in Annex I to Regulation
         No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 2587/91,
         to which a certain proportion of distilled alcohol, water, sugar syrup, aromas, colourings and, in some cases, a cream base
         have been added, resulting in the loss of the taste, smell and/or appearance of a beverage produced from a particular fruit
         or natural product, do not come under heading 2206 of the Combined Nomenclature but rather under heading 2208 thereof, given,
         first of all, their essential objective characteristics and properties, in particular their distilled alcohol content; second,
         their organoleptic characteristics; and, lastly, their intended use as spirituous beverages.
      
      (see paras 35-40, operative part)
JUDGMENT OF THE COURT (Third Chamber)
      7 May 2009 (*)
      
      (Combined Nomenclature – Tariff headings 2206 and 2208 – Fermented beverage containing distilled alcohol – Beverage produced from fruit or from a natural product – Addition of substances – Effects – Loss of the taste, smell and appearance of the original beverage)
      In Case C‑150/08,
      REFERENCE for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision
         of 21 March 2008, received at the Court on 14 April 2008, in the proceedings
      
      Siebrand BV
      v
      Staatssecretaris van Financiën,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, A. Ó Caoimh, J.N. Cunha Rodrigues, J. Klučka (Rapporteur) and A. Arabadjiev,
         Judges,
      
      Advocate General: J. Kokott,
      Registrar: R. Şereş, Administrator,
      having regard to the written procedure and further to the hearing on 4 March 2009,
      after considering the observations submitted on behalf of:
      –        Siebrand BV, by G.J. Slooten, advocaat,
      –        the Netherlands Government, by C.M. Wissels and M. Noort, acting as Agents,
      –        the Greek Government, by I. Bakopoulos, O. Patsopoulou and M. Tassopoulou, acting as Agents,
      –        the United Kingdom Government, by V. Jackson, acting as Agent, assisted by K. Beal, Barrister,
      –        the Commission of the European Communities, by A. Sipos and W. Roels, acting as Agents, 
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of the Combined Nomenclature (‘CN’) in Annex I to Council
         Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ
         1987 L 256, p. 1), as amended by Commission Regulation (EEC) No 2587/91 of 26 July 1991 (OJ 1991 L 259, p. 1; ‘Regulation
         No 2658/87’).
      
      2        The reference has been made in the course of proceedings between Siebrand B.V., a company established in Kampen (Netherlands)
         (‘Siebrand’) and the Staatssecretaris van Financiën (State Secretary for Finance) relating to eight notices of additional
         assessment to excise duty on three alcoholic beverages produced by Siebrand, in respect of the period between July 2003 and
         February 2004.
      
       Legal context
      3        The notices of additional assessment at issue in the main proceedings were issued in accordance with the Netherlands Law on
         excise duties (Wet op de accijns), which transposed Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of
         the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21). 
      
      4        For the purposes of defining the categories of products subject to excise duty at the rate laid down in Council Directive
         92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (OJ 1992
         L 316, p. 29), Article 26 of Directive 92/83 refers to the CN in force when Directive 92/83 was adopted.
      
       The CN
      5        The CN is based on the international Harmonised Commodity Description and Coding System (‘the HS’) drawn up by the Customs
         Cooperation Council, now the World Customs Organisation, established by the International Convention concluded at Brussels
         on 14 June 1983 and approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 concerning
         the conclusion of the International Convention on the Harmonised Commodity Description and Coding System and of the Protocol
         of Amendment thereto (OJ 1987 L 198, p. 1).
      
      6        According to Article 3(1)(a) of Regulation No 2658/87, the CN is identical to the HS as regards the first six digits of the
         headings and subheadings.
      
      7        The general rules for the interpretation of the CN (‘the general rules’), which appear in Part One, Section I A, of the CN,
         provide inter alia:
      
      ‘Classification of goods in the [CN] shall be governed by the following principles:
      1.      The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification
         shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings
         or notes do not otherwise require, according to the following provisions.
      
      2.      …
      (b)      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. … The classification of goods consisting of more than one material
         … shall be according to the principles of rule 3.
      
      3.      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 … goods …, 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 … which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material … which
         gives them their essential character in so far as this criterion is applicable.
      
      …’
      8        As regards the goods at issue in the main proceedings, the CN includes Section IV entitled ‘Prepared foodstuffs; beverages,
         spirits and vinegar; tobacco and manufactured tobacco substitutes’. That section includes, in particular, chapter 22 headed
         ‘Beverages, spirits and vinegar’. Chapter 22, in turn, contains heading 2206: ‘Other fermented beverages (for example, cider,
         perry, mead); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere
         specified or included’, and heading 2208: ‘Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80% vol;
         spirits, liqueurs and other spirituous beverages …’
      
      9        In accordance with Article 9(1)(a), second indent, and Article 10 of Regulation No 2658/87, the Commission of the European
         Communities produces explanatory notes to the CN (‘explanatory notes to the CN’). 
      
      10      The explanatory note to the CN relating to heading 2206 states in regard to the ‘other’ products falling in subheadings 2206 00 31
         to 2206 00 89:
      
      ‘These subheadings include the products described in the HS Explanatory Notes to heading 2206, second paragraph, (1) to (10).’
      11      The concept of beverages which are ‘still, in containers holding’, referred to in subheadings 2206 00 51 to 2206 00 89, is
         clarified in the explanatory note to the CN relating to heading 2206 as follows:
      
      ‘These subheadings include beverages which are not the product of the natural fermentation of the must of fresh grapes but
         are produced from concentrated grape must. This must is stable and can be stored for use as required.
      
      The fermentation process is usually started with yeast. Sugar may also be added to the must before or during fermentation.
         The product obtained by this process may finally be sweetened, fortified or blended.’
      
      12      The explanatory note to the CN relating to heading 2208 is worded as follows:
      
      ‘Spirits, liqueurs and other spirituous beverages of heading 2208 are alcoholic liquids generally intended for human consumption
         and are prepared:
      
      –        either directly by distilling (with or without added flavouring) natural fermented liquids such as wine or cider, or previously
         fermented fruit, marc, grain or other vegetable products, or
      
      –        by simply adding various aromatic substances, and sometimes sugar, to alcohol produced by distillation.
      The various spirituous beverages are described in the HS Explanatory Notes to heading 2208, third paragraph, (1) to ([17]).
      As regards undenatured spirits, it should be noted that they remain classified in this heading even if they have an alcoholic
         strength of 80% vol or higher, whether or not the product is ready for consumption as a drink.
      
      This heading does not cover alcoholic beverages obtained by fermentation (headings 2203 00 to 2206 00).’
       The HS
      13      Under Article 3(1) of the international HS Convention of 14 June 1983, each contracting party undertakes to ensure that its
         customs tariff and statistical nomenclatures will be in conformity with the HS. The contracting parties must therefore use
         all of the headings and subheadings of the HS without addition or modification, together with their related codes, and follow
         the numerical sequence of that system. Article 3(1) states that the contracting parties also undertake to apply the general
         rules for the interpretation of the HS and all the section, chapter and subheading notes of the HS, and not to modify their
         scope.
      
      14      The World Customs Organisation produces explanatory notes to the HS (the ‘HS explanatory notes’). The HS explanatory note
         relating to heading 2206 of the CN states:
      
      ‘This heading covers all fermented beverages other than those in headings 2203 to 2205.
      It includes inter alia:
      (1)      Cider, an alcoholic beverage obtained by fermenting the juice of apples.
      …
      All these beverages may be either naturally sparkling or artificially charged with carbon dioxide. They remain classified
         in the heading when fortified with added alcohol or when the alcohol content has been increased by further fermentation, provided
         that they retain the character of products falling in the heading.
      
      This heading also covers mixtures of non-alcoholic beverages and fermented beverages and mixtures of fermented beverages of
         the foregoing headings of Chapter 22, e.g., mixtures of lemonade and beer or wine, mixtures of beer and wine, having an alcoholic
         strength by volume exceeding 0.5% vol.
      
      …’
      15      The HS explanatory note relating to heading 2208 states:
      
      ‘The heading covers, whatever their alcoholic strength:
      (A)      Spirits produced by distilling wine, cider or other fermented beverages or fermented grain or other vegetable products, without
         adding flavouring; they retain, wholly or partly, the secondary constituents (esters, aldehydes, acids, higher alcohols, etc.)
         which give the spirits their peculiar individual flavours and aromas.
      
      (B)      Liqueurs and cordials, being spirituous beverages to which sugar, honey or other natural sweeteners and extracts or essences
         have been added (e.g., spirituous beverages produced by distilling, or by mixing, ethyl alcohol or distilled spirits, with
         one or more of the following: fruits, flowers or other parts of plants, extracts, essences, essential oils or juices, whether
         or not concentrated). These products also include liqueurs and cordials containing sugar crystals, fruit juice liqueurs, egg
         liqueurs, herb liqueurs, berry liqueurs, spice liqueurs, tea liqueurs, chocolate liqueurs, milk liqueurs and honey liqueurs.
      
      (C)      All other spirituous beverages not falling in any preceding heading of this Chapter.’
      16      By way of example of the products referred to, the explanatory note mentions, inter alia:
      
      ‘…
      (7)      The liqueurs known as “crèmes”, because of their consistency or colour. They are generally of relatively low alcoholic content
         and very sweet (for example, creams of cocoa, bananas, vanilla, coffee). The heading also covers spirits consisting of emulsions
         of spirit with products such as egg yolk or cream.
      
      (8)      Ratafias. These are kinds of liqueurs obtained from fruit juice; they often contain a small quantity of added aromatic substances
         (ratafias of cherries, of black currants, of raspberries, of apricots, etc.).
      
      …
      (15)      Fruit or vegetable juices containing added alcohol and of an alcoholic strength by volume exceeding 0.5% vol, other than products
         of heading 2204.
      
      …
      (17)      Beverages formulated to simulate wine by mixing distilled spirits with fruit juice and/or water, sugar, colouring, flavouring
         or other ingredients, other than products of heading 2204.’
      
      17      Paragraph VIII of the HS explanatory note relating to general rule 3(b) states that the factor which determines essential
         character may, as between different kinds of goods, be determined, for example, by the nature of the material or component,
         its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
      
       The main proceedings and the questions referred for a preliminary ruling 
      18      Siebrand is a company which produces alcoholic and non-alcoholic beverages. It produces, inter alia, three alcoholic beverages
         called ‘Pina Colada’, ‘Whiskey Cream’ and ‘Apfel Cocktail’ respectively. These are produced from a cider base to which distilled
         alcohol, water, sugar syrup, various aromas and colourings are added, and, in the case of Pina Colada and Whiskey Cream in
         particular, a cream base. The three beverages have an alcoholic strength by volume of 14.5%, of which 12% is attributable
         to the distilled alcohol and 2.5% to the alcohol obtained by the fermentation of apple concentrate.
      
      19      Until 1 January 2003, the products in question were classified by the inspector of taxes (‘the Inspector’) under heading 2206
         of the CN, which also determined the rate of excise duty applicable to them. However, in accordance with the decision of the
         Staatssecretaris van Financiën of 15 January 2003, the Inspector adopted the stance that, in view of the alcoholic strength
         by volume and the nature of the products in question, these beverages should be classified with effect from 1 January 2003
         under heading 2208 of the CN. This resulted in a higher rate of excise duty.
      
      20      Although the Inspector deferred the application of the new rate until 1 July 2003, he issued Siebrand with eight notices of
         additional assessment for the period between July 2003 and February 2004. Siebrand objected to those notices of assessment,
         but the Inspector maintained his stance in his decision on the objection.
      
      21      Siebrand then brought an action before the Gerechtshof te Arnhem (Regional Court of Appeal, Arnhem), which held that the products
         in question should be classified under heading 2208 of the CN.
      
      22      Hearing the case on Siebrand’s appeal against that judgment, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands)
         decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
      
      ‘1.       Can a beverage which contains a certain amount of distilled alcohol but which otherwise corresponds to the definition of heading
         2206 of the [CN] be classified under that heading if the beverage in question is a fermented beverage which, as a result of
         the addition of water and particular ingredients, has lost the taste, smell and/or appearance of a beverage produced from
         a particular fruit or natural product?
      
      2.       In the event of a positive answer to Question 1, what criterion should govern the determination as to whether the beverage
         is nevertheless to be classified under heading 2208 of the CN on the ground that it contains distilled alcohol?’
      
       The questions referred for a preliminary ruling
      23      By its questions, which it is appropriate to consider together, the national court asks, in essence, whether fermented alcohol-based
         beverages corresponding originally to heading 2206 of the CN, to which a certain proportion of distilled alcohol, water, sugar
         syrup, aromas, colourings and, in some cases, a cream base have been added, resulting in the loss of the taste, smell and/or
         appearance of a beverage produced from a particular fruit or natural product, come under heading 2206 of the CN as fermented
         beverages or under heading 2208 of the CN as distillates.
      
      24      In that regard, it is appropriate to bear in mind settled case-law, in accordance with which, in the interests of legal certainty
         and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be
         sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in
         the section or chapter notes (see, inter alia, Case C‑142/06 Olicom [2007] ECR I‑6675, paragraph 16, and Joined Cases C‑362/07 and C‑363/07 Kip Europe and Others [2008] ECR I‑0000, paragraph 26).
      
      25      The notes preceding the chapters of the Common Customs Tariff, in common, moreover, with the explanatory notes drawn up, as
         regards the CN, by the Commission and, as regards the HS, by the World Customs Organisation, may be an important aid to the
         interpretation of the scope of the various headings but do not have legally binding force (Olicom, paragraph 17; Case C‑486/06 Van Landeghem [2007] ECR I‑10661, paragraph 25; and Case C‑403/07 Metherma [2008] ECR I‑0000, paragraph 48).
      
      26      It must be pointed out that, according to the HS explanatory note relating to heading 2206 of the CN, the addition of alcohol
         to beverages coming under that heading does not preclude such beverages from retaining that classification provided that they
         retain the character of products coming under the heading, namely that of fermented beverages. 
      
      27      However, it is apparent from the order for reference that the beverages at issue in the main proceedings have lost the taste,
         smell and appearance of a beverage produced from a particular fruit or natural product, that is to say a fermented beverage.
         Such products cannot be classified in heading 2206 of the CN.
      
      28      As regards the classification of such products, it should be borne in mind that, according to general rule 2(b), any reference
         in a heading to a material or substance is to be taken to include a reference to mixtures or combinations of that material
         or substance with other materials or substances. That is the case in regard to products such as those at issue in the main
         proceedings, which contain fermented alcohol and also distilled alcohol. Those substances come under different tariff headings.
         
      
      29      General rule 3(a) states that when by application of rule 2(b) goods are prima facie classifiable under two or more headings,
         the heading which provides the most specific description is to be preferred to headings providing a more general description.
      
      30      Where products such as those at issue in the main proceedings are composed of different materials and neither of the two headings
         mentioned above is more specific than the other, the sole provision to which recourse may be had for the purpose of classifying
         the goods at issue in the main proceedings is general rule 3(b) (see Case 253/87 Sportex [1988] ECR 3351, paragraph 7, and Case C‑250/05 Turbon International [2006] ECR I‑10531, paragraph 20).
      
      31      Under general rule 3(b), in carrying out the tariff classification of goods it is necessary to identify, from among the materials
         of which they are composed, the one which gives them their essential character (see Case C‑288/99 VauDe Sport [2001] ECR I-3683, paragraph 25; Case C‑276/00 Turbon International [2002] ECR I‑1389, paragraph 26; and Case C‑250/05 Turbon International, paragraph 21).
      
      32      Consequently, it is necessary to identify, from among the materials of which products such as those at issue in the main proceedings
         are composed, the one which gives them their essential character.
      
      33      It is apparent from the order for reference that these products are made from cider, to which are added distilled alcohol,
         water, sugar in the form of syrup, various aromas and colourings and, in the case of Pina Colada and Whiskey Cream, a cream
         base. The end products have an alcoholic strength by volume of 14.5%, 2.5% from alcohol fermented from cider and 12% from
         added distillate.
      
      34      As stated in paragraph VIII of the HS explanatory note in relation to general rule 3(b), the factor which determines essential
         character may, as between different kinds of goods, be determined, for example, by the nature of the material or component,
         by its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
      
      35      So far as products such as those at issue in the main proceedings are concerned, a number of objective characteristics and
         properties may be taken into account in determining their essential character. Thus, first of all, it must be established
         that distilled alcohol accounts for not only more of their total volume but also more of their alcohol content than fermented
         alcohol.
      
      36      Second, it is necessary to ascertain whether the particular organoleptic characteristics of those products correspond to those
         of the products classified in heading 2208 of the CN. The Court has consistently held that taste can constitute an objective
         characteristic or property of a product (see, to that effect, Case C‑124/03 Artrada and Others [2004] ECR I‑10297, paragraph 41, and Case C‑196/05 Sachsenmilch [2006] ECR I‑5161, paragraph 37). 
      
      37      In that regard, as has already been stated, products such as those at issue in the main proceedings have, as a result of the
         addition of water and other substances, lost the taste, smell and appearance of a beverage produced from a particular fruit
         or natural product, that is to say a fermented beverage. The particular organoleptic characteristics of those products, which
         define their essential character, therefore correspond to those of products classified in heading 2208 of the CN.
      
      38      Finally, it is important to note that the intended use of a product may constitute an objective criterion for classification
         if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s
         objective characteristics and properties (see Case C‑459/93 Thyssen Haniel Logistic [1995] ECR I‑1381, paragraph 13; Case C‑396/02 DFDS [2004] ECR I‑8439, paragraph 29; and Case C‑183/06 RUMA [2007] ECR I‑1559, paragraph 36). It is common ground that the objective characteristics and properties of products such
         as those at issue in the main proceedings, including the form, colour and name under which they are marketed, correspond to
         those of a spirituous beverage.
      
      39      It follows from this that the essential characteristics of beverages such as those at issue in the main proceedings correspond
         overall to those of a product coming under heading 2208 of the CN.
      
      40      Taking the foregoing considerations into account, the answer to be given to the questions referred is that fermented alcohol-based
         beverages corresponding originally to heading 2206 of the CN, to which a certain proportion of distilled alcohol, water, sugar
         syrup, aromas, colourings and, in some cases, a cream base have been added, resulting in the loss of the taste, smell and/or
         appearance of a beverage produced from a particular fruit or natural product, do not come under heading 2206 of the CN but
         rather under heading 2208 thereof.
      
       Costs
      41      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Third Chamber) hereby rules:
      Fermented alcohol-based beverages corresponding originally to heading 2206 of the Combined Nomenclature in Annex I to Council
            Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as
            amended by Commission Regulation (EEC) No 2587/91 of 26 July 1991, to which a certain proportion of distilled alcohol, water,
            sugar syrup, aromas, colourings and, in some cases, a cream base have been added, resulting in the loss of the taste, smell
            and/or appearance of a beverage produced from a particular fruit or natural product, do not come under heading 2206 of the
            Combined Nomenclature but rather under heading 2208 thereof.
      [Signatures]
      * Language of the case: Dutch.