Dinter GmbH v Hauptzollamt Düsseldorf (C-522/07) and Europol Frost-Food GmbH v Hauptzollamt Krefeld (C-65/08).

• Jurisdiction: European Union
• Date: 29 October 2009
• Court: Court of Justice (European Union)

Joined Cases C-522/07 and C-65/08

Dinter GmbH

v

Hauptzollamt Düsseldorf

and

Europol Frost-Food GmbH

v

Hauptzollamt Krefeld

(References for a preliminary ruling from the Finanzgericht Düsseldorf)

(Common Customs Tariff – Regulation (EEC) No 2658/87 – Combined Nomenclature – Tariff classification – Validity – Additional note – Apple juice concentrate)

Summary of the Judgment

Common Customs Tariff – Tariff headings – Explanatory notes to the Combined nomenclature

(Council Regulation No 2658/87; Commission Regulations No 1776/2001, No 2031/2001 and No 1810/2004)

Additional Note 5(b) to Chapter 20 of Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulations No 1776/2001, No 2031/2001 and No 1810/2004, amending Annex I to Regulation No 2658/87, is invalid to the extent that it excludes natural apple juice concentrate from heading 2009.

The broad logic of subheading 2009 79 clearly suggests that natural apple juice concentrates, of a Brix value slightly below 67, have not lost their character as fruit juices, contrary to what is stated in that note. That note excludes apple juice concentrates by means of a notional calculation of the added sugar content, giving a result of over 50% by weight, whereas apple juice concentrates, which have undergone water extraction and therefore have high Brix values, retain their original character. Since there is no sugar added and the high level of added sugar, giving a result of over 50% by weight, is produced solely by the concentration brought about by the extraction of water, the Additional Note at issue definitely amends the content of the tariff headings at issue by excluding apple juice concentrates from heading 2009, thereby exceeding the powers which Article 9 of Regulation No 2658/87 confers upon the Commission.

(see paras 40-42, operative part)

JUDGMENT OF THE COURT (Eighth Chamber)

29 October 2009 (*)

(Common Customs Tariff – Regulation (EEC) No 2658/87 – Combined Nomenclature – Tariff classification – Validity – Additional note – Apple juice concentrate)

In Joined Cases C‑522/07 and C‑65/08,

REFERENCES for a preliminary ruling under Article 234 EC from the Finanzgericht Düsseldorf (Germany), made by decisions of 8 November 2007 and 12 February 2008, received at the Court on 22 November 2007 and 18 February 2008, in the proceedings

Dinter GmbH

v

Hauptzollamt Düsseldorf (C‑522/07)

and

Europol Frost-Food GmbH

v

Hauptzollamt Krefeld (C‑65/08),

THE COURT (Eighth Chamber),

composed of G. Arestis (Rapporteur), acting as President of the Eighth Chamber, J. Malenovský and T. von Danwitz, Judges,

Advocate General: E. Sharpston,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 14 May 2009,

after considering the observations submitted on behalf of:

– Dinter GmbH, by H. Bleier, Rechtsanwalt,

– Europol Frost-Food GmbH, by A. Erben, Rechtsanwalt,

– the Commission of the European Communities, by G. Wilms and A. Sipos, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 These references for a preliminary ruling concern the validity of Additional Note 5(b) to Chapter 20 of the Combined Nomenclature (‘CN’), as 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 in force at the times material to the main proceedings (‘Regulation No 2658/87’).

2 The references were made in the course of two actions concerning the CN classification of apple juice concentrate, the first brought by Dinter GmbH (‘Dinter’) against the Hauptzollamt Düsseldorf (principal tax office in Düsseldorf) and the second brought by Europol Frost-Food GmbH (‘Europol’) against Hauptzollamt Krefeld (principal tax office in Krefeld).

Legal context

3 The International Convention on the Harmonised Commodity Description and Coding System (‘the HS’), concluded at Brussels on 14 June 1983, and its amending protocol of 24 June 1986 (‘the HS Convention’) were approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4 Under Article 3(1) of the HS Convention, each contracting party undertakes to ensure that its customs tariff and statistical nomenclatures are in conformity with the HS, to use all the headings and subheadings of the HS without addition or modification, together with their related numerical codes, and to follow the numerical sequence of that system. Each contracting party also undertakes to apply the general rules for the interpretation of the HS and all the Section, Chapter and Subheading Notes, and not to modify the scope of those Sections, Chapters, headings or subheadings.

5 Article 9 of Regulation No 2658/87 sets out the limits of the Commission’s discretion when adopting additional notes:

‘1. Measures relating to the matters set out below shall be adopted in accordance with the procedure defined in Article 10:

(a) application of the Combined Nomenclature and the Taric, concerning in particular:

– the classification of goods in the nomenclatures referred to in Article 8,

– [additional] notes;

– ... .

(b) amendments to the combined nomenclature to take account of changes in requirements relating to statistics or to commercial policy;

(c) amendments to Annex II;

(d) amendments to the combined nomenclature and adjustments to duties in accordance with decisions adopted by the Council or the Commission;

(e) amendments to the combined nomenclature intended to adapt it to take account of technological or commercial developments or aimed at the alignment or clarification of texts;

(f) amendments to the combined nomenclature resulting from changes to the harmonised system nomenclature;

(g) questions relating to the application, functioning and management of the harmonised system to be discussed within the Customs Cooperation Council, as well as their implementation by the Community.

2. The provisions adopted under paragraph 1 shall not amend:

– the rates of customs duties;

– agricultural levies, refunds or other amounts applicable within the framework of the common agricultural policy or within that of specific schemes applicable to certain goods resulting from the processing of agricultural products;

– quantitative restrictions laid down under Community provisions;

–...