1 This request for a preliminary ruling concerns the interpretation of tariff headings 2106 and 2202 of the Combined Nomenclature set out 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), in the version resulting from Commission Implementing Regulation (EU) 2022/1998 of 20 September 2022 (OJ 2022 L 282, p. 1) (‘the CN’).
2 The request was submitted in the course of proceedings between Prisum Healthcare SRL and the Autoritatea Vamală Română (Romanian Customs Authority) concerning the tariff classification of a food supplement called ‘Feroglobin liquid plus’.
3 The Harmonised Commodity Description and Coding System (‘the HS’) was established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983 (United Nations Treaty Series, Vol. 1503, p. 4, No 25910 (1988)) within the framework of the World Customs Organization (WCO) and approved, with its protocol of amendment of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).
4 The WCO approves, under the conditions laid down in Article 8 of that convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee established by Article 6 of that convention.
5 Chapter 21 of the HS, entitled ‘Miscellaneous edible preparations’, includes heading 2106 of the HS, entitled ‘Food preparations not elsewhere specified or included’.
6 Chapter 22 of the HS, entitled ‘Beverages, spirits and vinegar’, includes heading 2202 thereof, entitled ‘Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit, nut or vegetable juices of heading 20.09’.
7 The explanatory notes concerning heading 2106 of the HS are worded as follows:
8 The HS Explanatory Notes concerning heading 2202 of the HS state: …
9 As is apparent from Article 1(1) of Regulation No 2658/87, the CN governs the tariff classification of goods imported into the European Union. Pursuant to Article 3(1) of that regulation, that nomenclature reproduces the six-digit headings and subheadings of the HS, with only the seventh and eighth digits creating further subheadings that are specific to the CN.
10 Part One of the CN contains a series of preliminary provisions. In this part, under Section I, entitled ‘General rules’, point A of this section, concerning general rules for the interpretation of the CN, provides: ‘Classification of goods in the [CN] shall be governed by the following principles: …
11 Part Two of the CN, entitled ‘Schedule of customs duties’, includes a Section IV concerning ‘prepared foodstuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes; products, whether or not containing nicotine, intended for inhalation without combustion; other nicotine containing products intended for the intake of nicotine into the human body’. This section includes Chapters 21 and 22 of the CN, entitled, respectively, ‘Miscellaneous edible preparations’ and ‘Beverages, spirits and vinegar’.
12 Additional note 5 to Chapter 21 of the CN states: ‘Other food preparations presented in measured doses, such as capsules, tablets, pastilles and pills, and which are intended for use as food supplements are to be classified under heading 2106, unless elsewhere specified or included.’
13 Chapter 21 includes the following heading and subheadings:
14 Chapter 22 of the CN includes heading 2202 of that nomenclature and its subheadings, as follows:
15 The CN explanatory notes drawn up by the European Commission pursuant to the second indent of Article 9(1)(a) of Regulation No 2658/87 and published in the Official Journal of the European Union on 29 March 2019 (OJ 2019 C 119, p. 1; ‘the CN explanatory notes’) are relevant for the purposes of the dispute in the main proceedings.
16 The introductory part of the CN explanatory notes to Chapter 21 of that nomenclature is entitled ‘General’ and is worded as follows: ‘Classification of “food supplements” (as referred to in point (16) of the HS Explanatory Note to heading 2106), in particular other food preparations presented in measured doses, such as capsules, tablets, pastilles and pills, and which are intended for use as food supplements, is also to be seen in the light of the criteria set out in the [judgment of 17 December 2009, Swiss Caps (C‑410/08 to C‑412/08, EU:C:2009:794)]’.
17 According to the general considerations set out in the introductory part of the CN explanatory notes to Chapter 22 of the CN: ‘… This chapter covers - in so far as they are not medicaments - tonic preparations which, even though they are taken in small quantities, for example, by the spoonful, are suitable for direct consumption as beverages. Non-alcoholic tonic preparations which require dilution before consumption do not fall in Chapter 22 (generally, heading 2106).’
18 With regard to CN heading 2202, the CN explanatory notes state: ‘… Non-alcoholic beverages of this heading are liquids directly suitable and intended for human consumption by drinking regardless of the quantity in which they are absorbed, or the special purposes for which various kinds of liquids may be consumed, in so far as they are not included in any other more specific heading. Purely subjective, variable factors such as the manner in which such beverages are taken or the purpose for which they are consumed, e.g. to quench thirst or to improve health, are not relevant for their classification (see [judgment of 26 March 1981, Dr Ritter (114/80, EU:C:1981:79)] …’
19 As regards CN subheading 2202 99 19 of the CN, the CN explanatory notes state: ‘This subheading includes tonic preparations as described in the explanatory note to this chapter, general, second paragraph. These non-alcoholic beverages, often referred to as food supplements, may be based on extracts from plants (including herbs) and may contain added vitamins and/or minerals. In general, these preparations should maintain general health and well-being; therefore, they differ from the flavoured or sweetened waters and other soft drinks of subheading 2202 10 00, referred to in the HS Explanatory Note to heading 2202, paragraph (A).’
20 Article 2 of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51) provides: ‘For the purposes of this Directive:
21 Prisum Healthcare distributes a liquid food supplement called ‘Feroglobin liquid plus’, marketed in 200 millilitre (ml) plastic bottles, containing iron in the form of ferrous sulphate, a vitamin complex, mineral salts, plant extracts, natural fruit extracts, other nutrients, honey, sugar and glucose syrup (‘the product in question’). Prisum Healthcare recommends taking two spoonfuls of the product in question per day and states that it is intended for the formation of haemoglobin and red blood cells, thus contributing to the maintenance of balanced health, the general well-being of the body and the normal functioning of the immune system.
22 In March 2023, Prisum Healthcare applied to the Romanian customs authority for binding tariff information for the classification of the product in question under CN heading 2106, in particular subheading 2106 90 98.
23 On 7 July 2023, that authority issued a binding tariff information decision in which it stated that, for the purposes of its tariff classification, the product in question was to be regarded as a bottled tonic under heading 2202 of the CN.
24 Prisum Healthcare lodged a complaint against that decision.
25 On 6 September 2023, the Romanian customs authority rejected that complaint and refused to classify the product in question under heading 2106 of the CN. It took the view that there were no specific headings in the CN for goods marketed as food supplements and it was not clear from the CN that food supplements had to be classified under heading 2106, irrespective of their characteristics. Referring in particular to general rule 1 for the interpretation of the CN, that authority stated that it was appropriate to classify in heading 2106 of the CN only those products which cannot be classified under other specific headings. Yet food supplements, such as the product in question, could be classified under various headings of the CN. On those grounds, the Romanian customs authority took the view that the product in question was a preparation in liquid form that was intended to be consumed in its pure form, with the result that it had to be classified under heading 2202 of the CN.
26 Prisum Healthcare brought an appeal against that decision before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), which is the referring court.
27 Before the referring court, the parties disagree, in essence, over whether products in liquid form marketed as food supplements should be classified under a tariff heading other than heading 2106, given that the CN does not include any specific headings for products marketed as food supplements, whatever their form (liquid, solid, capsules and so on).
28 Prisum Healthcare claims, in essence, that given its specific technical characteristics and despite its liquid form, the product in question is a food supplement within the meaning of Directive 2002/46 and it should therefore have been classified under heading 2106 of the CN and, specifically, under subheading 2106 90 98 thereof. Moreover, by giving reasons for its decision in relation to the liquid form of that product, the Romanian customs authority failed to have regard for the case-law arising from the judgment of 17 December 2009, Swiss Caps (C‑410/08 to C‑412/08, EU:C:2009:794).
29 However, according to the Romanian customs authority, it follows from the judgment of 26 March 1981, Dr Ritter (114/80, EU:C:1981:79), that all products presented in liquid form, as is the case with the product in question, must necessarily be classified under heading 2202 of the CN, which covers ‘non-alcoholic beverages’ and ‘tonic drinks or preparations’, irrespective of whether they are labelled as food supplements.
30 The referring court is uncertain whether the case-law arising from that judgment is applicable to the dispute before it. Indeed, that judgment was handed down before Regulation No 2658/87 entered into force and concerned a tonic drink, not a food supplement. In addition, first, the HS Committee decided to classify under heading 2106 of that system a product with characteristics comparable to those of the product in question and, second, it follows from the judgment of 17 December 2009, Swiss Caps (C‑410/08 to C‑412/08, EU:C:2009:794), that a food supplement in capsule form should be classified under heading 2106 of the CN.
31 In view of those considerations, the Curtea de Apel Bucureşti (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must the [CN] be interpreted as meaning that: a food preparation in liquid form containing iron (in the form of ferrous sulphate), a vitamin complex, mineral salts, vegetable extracts, natural fruit extracts, other nutritive substances, honey, sugar and glucose syrup, which is consumed as such in doses of [two] teaspoons per day, is marketed in 200 ml plastic bottles, is intended for specific use in the formation of haemoglobin and red blood cells and has the function of a food supplement that contributes to the balance of health, the general well-being of the body and the normal functioning of the immune system falls within heading 2202 of the [CN] in so far as its liquid form has the effect of excluding it from … classification under heading 2106?’
32 By its question, the referring court asks, in essence, whether the CN is to be interpreted as meaning that a food preparation in liquid form containing iron in the form of ferrous sulphate, a vitamin complex, mineral salts, vegetable extracts, natural fruit extracts, other nutritive substances, honey, sugar and glucose syrup, which is consumed as such in doses of two teaspoons per day, marketed in 200 ml plastic bottles, intended for specific use in the formation of haemoglobin and red blood cells and has the function of a food supplement that contributes to the balance of health, the general well-being of the body and the normal functioning of the immune system, is covered by heading 2106 or heading 2202 of the CN.
33 In order to answer the question referred, it must be noted, as a preliminary point, that, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the national court to classify the products concerned correctly in the CN rather than to effect such a classification itself. That classification results from a purely factual assessment which it is not for the Court to make in the context of a reference for a preliminary ruling (judgment of 20 October 2022, Mikrotīkls, C‑542/21, EU:C:2022:814, paragraph 21 and the case-law cited).
34 It should also be noted that, in accordance with general rule 1 for the interpretation of the CN, the tariff classification of goods is to be determined according to the terms of the headings and any relative section or chapter notes to that nomenclature. In the interests of legal certainty and ease of verification, the decisive criterion for the tariff classification of those goods 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 corresponding section or chapter notes. The intended use of the product concerned may constitute an objective criterion for classification if it is inherent to that product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (judgment of 20 October 2022, Mikrotīkls, C‑542/21, EU:C:2022:814, paragraph 22 and the case-law cited).
35 Furthermore, the Court has repeatedly held that, although the explanatory notes to the HS and CN do not have binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (judgment of 20 October 2022, Mikrotīkls, C‑542/21, EU:C:2022:814, paragraph 23 and the case-law cited).
36 In that regard, the wording of heading 2106 of the CN refers to ‘food preparations not elsewhere specified or included’. Additional note 5 to Chapter 21 of the CN specifies that the heading in question covers, inter alia, food preparations presented in measured doses, such as capsules, tablets, pastilles and pills, and which are intended for use as food supplements, unless elsewhere specified or included.
37 Consequently, if a food preparation is covered by heading 2202 of the CN, it is, by that very fact, excluded from heading 2106 of the CN.
38 It must therefore be ascertained whether a food preparation in liquid form is covered by heading 2202 of that nomenclature.
39 According to its wording, heading 2202 covers waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, as well as other non-alcoholic beverages, not including fruit, nut or vegetable juices.
40 As regards, in the first place, the term ‘beverage’, which is not defined in the CN or in the HS, or in the explanatory notes to the CN or the HS, respectively, the Court has already held, in paragraphs 8 and 9 of its judgment of 26 March 1981, Dr Ritter (114/80, EU:C:1981:79), in essence, that that term must be understood as a generic concept, designating all liquids intended for human consumption, in so far as they are not subject to another specific classification, with the result that that term covers any liquid suitable for human consumption and intended for that use, regardless of the quantity in which it is absorbed or the special purposes for which various kinds of liquids may be consumed or the raw materials used.
41 In that regard, even though that judgment was delivered before the entry into force of Regulation No 2658/87 and concerns the interpretation of headings 2106 and 2202 of the former Common Customs Tariff, it remains fully relevant in the present case, since the relevant provisions of the tariff headings in question and the provisions governing their interpretation have not been amended.
42 In the second place, it is apparent from the general considerations set out in the introductory part of the explanatory notes to Chapter 22 of the CN that tonic preparations which may be consumed in their pure form as beverages are covered by this chapter, ‘even though they are taken in small quantities, for example, by the spoonful’. By contrast, non-alcoholic tonic preparations ‘which require dilution before consumption’ generally come under heading 2106 of the CN.
43 By referring to the judgment of 26 March 1981, Dr Ritter (114/80, EU:C:1981:79), the explanatory note of heading 2202 of the CN specifies that non-alcoholic beverages covered by this heading are liquids suitable and intended for human consumption by drinking in their pure form regardless of the quantity in which they are absorbed, or the special purposes for which various kinds of liquids may be consumed, in so far as those beverages are not included in any other more specific heading of the CN. It is also stated that their classification cannot depend on purely subjective, variable factors such as the manner in which such beverages are taken or the purpose for which they are consumed, for example to quench thirst or to improve health.
44 Moreover, as indicated in the CN explanatory notes to subheading 2202 99 19 thereof, non-alcoholic beverages that are often referred to as ‘food supplements’ and are advertised as maintaining general health and well-being, which may be based on plant extracts, including herbs, and may contain added vitamins and/or minerals, should in principle be classified in that subheading of the CN.
45 In the third place, as the Romanian and Polish Governments and the Commission have observed, it cannot be inferred from the judgment of 17 December 2009, Swiss Caps (C‑410/08 to C‑412/08, EU:C:2009:794), that any food preparation considered to be a food supplement should be classified under heading 2106 of the CN. In that judgment, the Court merely held, without ruling out the possibility that a food supplement in liquid form could be classified under heading 2202 of that nomenclature, that food supplements in capsule form should be classified under heading 2106 of the CN.
46 In the fourth place, the fact that the product in question is marketed as a ‘food supplement’ pursuant to Directive 2002/46 does not preclude classification of that product under heading 2202 of the CN, given the fundamentally different objectives of that directive and of the CN (see, by analogy, judgment of 15 December 2016, LEK, C‑700/15, EU:C:2016:959, paragraphs 34 to 37).
47 In the fifth and final place, as regards Classification Opinion 2106.90/43, adopted by the HS Committee at its seventy-first session in March 2023 and to which Prisum Healthcare refers in its written observations, which classified a product with characteristics comparable to those of the product in question under HS heading 2106, it is necessary to note, as the Romanian and Polish Governments and the Commission have done, that, in the light of the judgment of 26 March 1981, Dr Ritter (114/80, EU:C:1981:79), the European Union requested a review of that classification opinion. As the HS Committee however rejected this request, the Commission, by written communication dated 15 December 2023, informed the Secretary General of the WCO that as a result of that judgment it would not be able to apply Classification Opinion 2106.90/43.
48 In any event, the Court has already held that, although HS opinions are indications which are an important aid to the interpretation of the scope of the various headings of the CN, they do not have legally binding force and must be disregarded if their interpretation appears incompatible with the wording of the heading of the CN in question (see, to that effect, order of 19 January 2005, SmithKline Beecham, C‑206/03, EU:C:2005:31, paragraphs 24 to 28 and the case-law cited).
49 It follows that food preparations in liquid form, when that form enables them to be intended for human consumption by drinking, irrespective of the quantity in which they are absorbed or the special purpose for which they may be consumed, are classifiable under heading 2202 of the CN, in so far as they are not included in any other more specific heading of that CN. The liquid form in which such food preparations are presented must be regarded as constituting an objective characteristic excluding them from classification under heading 2106 of the CN.
50 In the light of the foregoing considerations, the answer to the question referred is that the CN must be interpreted as meaning that a food preparation in liquid form containing iron in the form of ferrous sulphate, a vitamin complex, mineral salts, vegetable extracts, natural fruit extracts, other nutritive substances, honey, sugar and glucose syrup, which is consumed as such in doses of two teaspoons per day, marketed in 200 ml plastic bottles, intended for specific use in the formation of haemoglobin and red blood cells and has the function of a food supplement that contributes to the balance of health, the general well-being of the body and the normal functioning of the immune system, comes under heading 2202 of the CN.
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.