Kreyenhop & Kluge GmbH & Co. KG v Hauptzollamt Hannover.
Date: 2018-09-06
8


Heading 1902 of Chapter 19 includes the following subheadings:






 


‘– Uncooked pasta, not stuffed or otherwise prepared:




1902 11 00


– – Containing eggs




1902 19


– – Other




…


…




1902 20


– Stuffed pasta, whether or not cooked or otherwise prepared




…


…




1902 30


– Other pasta




1902 30 10


– – Dried




1902 30 90


– – Other




…’
30


First, as regards Regulation No 635/2005, it is settled law that a classification regulation is of general application in so far as it does not apply to an individual trader but, in general, to products which are the same as that examined by the Customs Code Committee. In the interpretation of a classification regulation, in order to determine its scope, account must be taken, inter alia, of its statement of reasons (judgment of 22 March 2017, GROFA and Others, C‑435/15 and C‑666/15, EU:C:2017:232, paragraph 35 and the case-law cited).
32


Admittedly, according to the case-law of the Court, if a classification regulation is not directly applicable to products which are not identical, but only similar to the product covered by that regulation, the latter is applicable by analogy to such products (judgment of 22 March 2017, GROFA and Others, C‑435/15 and C‑666/15, EU:C:2017:232, paragraph 37 and the case-law cited).
33


However, in order for a classification regulation to be applied by analogy, the products to be classified and those covered by that regulation must be sufficiently similar. In that regard, it is also necessary to take into account the reasons given for that regulation (judgment of 22 March 2017, GROFA and Others, C‑435/15 and C‑666/15, EU:C:2017:232, paragraph 38 and the case-law cited).
35


On the other hand, as regards Implementing Regulation No 767/2014, it is sufficient to point out, without it being necessary to examine its applicability ratione materiae, that it was adopted only after the importation of the goods at issue in the main proceedings. However, a classification regulation cannot produce retroactive effects (judgment of 17 July 2014, Panasonic Italia and Others, C‑472/12, EU:C:2014:2082, paragraph 58 and the case-law cited).
36


Those clarifications having been made, it should be borne in mind that, following the Court’s settled case-law, 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 of the notes to the section or chapter (judgment of 22 February 2018, SAKSA, C‑185/17, EU:C:2018:108, paragraph 31 and the case-law cited).
38


In that regard, it should be noted that the term ‘dried’, as used in CN subheading 19023010, is not defined. Admittedly, the Explanatory Note to that subheading, as it appears from the CN Explanatory Notes published by the Commission on 4 March 2015, refers to frying as an example of ‘industrial drying’. Yet that note was not applicable at the time of the facts in the main proceedings (see judgment of 22 May 2008, Ecco Sko, C‑165/07, EU:C:2008:302, paragraph 40). On the other hand, and in any event, it is settled case-law that the CN Explanatory Notes, while being an important aid to the interpretation of the scope of the various tariff headings, do not have legally binding force (see judgment of 15 December 2016, LEK, C‑700/15, EU:C:2016:959, paragraph 41 and the case-law cited).
39


According to settled case-law, the meaning and scope of terms for which EU law provides no definition must be determined according to their meaning in everyday language whilst considering the context in which they occur and the purposes of the rules of which they form part (see judgment of 2 March 2017, J. D., C‑4/16, EU:C:2017:153, paragraph 25 and the case-law cited).
45


Next, as regards the scheme of the CN, it should be noted that, under CN heading 1902, a distinction is made between ‘uncooked pasta, not stuffed or otherwise prepared’ (subheadings 190211 and 190219), ‘stuffed pasta, whether or not cooked or otherwise prepared’ (subheading 190220) and ‘other pasta’ (subheading 190230). It follows that the latter subheading, within which subheading 19023010 (‘dried’ pasta) falls, necessarily covers cooked pasta or pasta, otherwise prepared, which is not stuffed. That is precisely the case for the noodles at issue in the main proceedings, which have been (pre-) cooked and fried.
46


Finally, as the Commission points out, it is also important, in the interest of legal certainty and ease of verification (see, to that effect, judgment of 19 October 2017, Lutz, C‑556/16, EU:C:2017:777, paragraph 37 and the case-law cited) that the scope of CN subheading 19023010 should not be limited to pasta whose dry state has been obtained by processes which are used solely for their preservation and which remove only water from the treated products, without changing them in any other way.