Siebrand BV v Staatssecretaris van Financiën.
Date: 2009-05-07
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.
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).
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.