Toorank Productions BV v Staatssecretaris van Financiën.
Date: 2016-05-12
19


The referring court is unsure how the judgment of 7 May 2009 in Siebrand (C‑150/08, EU:C:2009:294) should be interpreted. In particular, it questions whether that judgment, particularly paragraph 35 thereof, should be interpreted as meaning that the quantity of distilled alcohol added, assessed in terms of both volume and alcohol content, is the element which determines the classification under heading 2208 of the CN, whatever the other characteristics and properties of the product under consideration might be, or whether it is necessary, in all cases, to verify whether the organoleptic characteristics and the intended use of that product correspond to those of beverages which are classified under heading 2208 of the CN.
34


First of all, in accordance with the settled case-law of the Court, 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 judgment of 11 June 2015 in Amazon EU, C‑58/14, EU:C:2015:385, paragraph 20 and the case-law cited).
35


Next, it is common ground that the intended use of products may constitute an objective criterion for classification if it is inherent to those products, having regard to the objective characteristics and properties of those products (see judgment of 30 April 2014 in Nutricia, C‑267/13, EU:C:2014:277, paragraph 21 and the case-law cited). Nevertheless, the intended use of a product is a relevant criterion only where the classification can be made on the sole basis of the objective characteristics and properties of that product (see judgment of 16 December 2010 in Skoma-Lux, C‑339/09, EU:C:2010:781, paragraph 47 and the case-law cited).
36


Lastly, the explanatory notes drawn up by the Commission as regards the CN and by the WCO as regards the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see judgment of 4 March 2015 in Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 46 and the case-law cited).
38


On the one hand, it should be borne in mind that it is apparent from the HS explanatory note relating to heading 22.06 of the HS, which is identical to heading 2206 of the CN, that products obtained through fermentation remain classified under that heading provided that they retain the character of products classified under that heading, namely that of fermented beverages (see, to that effect, judgments of 7 May 2009 in Siebrand, C‑150/08, EU:C:2009:294, paragraph 26, and 16 December 2010 in Skoma-Lux, C‑339/09, EU:C:2010:781, paragraph 46 and the case-law cited).
39


On the other hand, it should be noted that products which are obtained not exclusively through fermentation but also through a process of purification which leads to those products losing the properties and characteristics of fermented beverages and acquiring those of ethyl alcohol, which is classified under heading 2208 of the CN, fall under that second heading (see, to that effect, judgment of 14 July 2011 in Paderborner Brauerei Haus Cramer, C‑196/10, EU:C:2011:487, paragraph 37).
55


In that regard, it should be noted that the Court clearly stated, in paragraph 35 of the judgment of 7 May 2009 in Siebrand (C‑150/08, EU:C:2009:294), that, in determining the essential character of a product for the purposes of rule 3(b) of the CN, a number of objective characteristics and properties may be taken into account. Thus, it assessed the contribution of the distilled alcohol contained in the products in question to the volume and alcohol content of those products. Then, in paragraphs 36 and 37 of that judgment, the Court examined the organoleptic characteristics of those products as well as, in paragraph 38, their intended use, arriving, in paragraph 39, at a solution based on a global assessment of those three criteria.
56


As was noted by the Advocate General in point 84 of his Opinion, the Court’s focus, in paragraph 35 of the judgment of 7 May 2009 in Siebrand (C‑150/08, EU:C:2009:294), on the fact that the proportion of distilled alcohol was greater than the proportion of fermented alcohol, was a result of the fact that, in the case giving rise to that judgment, the alcoholic strength by volume of the products in question was much more a result of the distilled alcohol than of the fermented alcohol that those products contained.