61975J0053

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1 . COMMON CUSTOMS TARIFF - CLASSIFICATION OF GOODS - DECISIVE CRITERION

2 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - ICE-CREAM - CONCEPT - SUBHEADINGS 18.06 B AND 21.07 C - APPLICATION

1 . THE DECISIVE CRITERION FOR THE CUSTOMS CLASSIFICATION OF GOODS MUST GENERALLY BE LOOKED FOR IN THEIR OBJECTIVE CHARACTERISTICS AND PROPERTIES .

2 . FOR THE PURPOSES OF THE APPLICATION OF SUBHEADINGS 18.06 B AND 21.07 C OF THE COMMON CUSTOMS TARIFF, THE CONCEPT OF 'ICE-CREAM' REFERS TO PRODUCTS HAVING AS THEIR ESSENTIAL CHARACTERISTIC THAT THEY MELT AT A TEMPERATURE OF APPROXIMATELY 0* CENTIGRADE .

THAT CONCEPT CANNOT BE APPLIED TO PRODUCTS WITH A FAT CONTENT EXCEEDING 15 PER CENT .

IN CASE 53/75

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION OF BELGIUM FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BELGIAN STATE

AND

1 . JEAN NICOLAS VANDERTAELEN

2 . DIRK LEOPOLD MAES

ON THE INTERPRETATION OF REGULATION ( EEC ) NO 495/69 OF THE COMMISSION OF 18 MARCH 1969, ON THE CLASSIFICATION OF GOODS UNDER SUBHEADINGS NOS 18.06 D II C ) AND 21.07 F VII OF THE COMMON CUSTOMS TARIFF ( OJ L 67 OF 19 . 3 . 1969, P . 6 ) AND OF TARIFF HEADINGS 18.06 B AND 21.07 C OF THE COMMON CUSTOMS TARIFF, REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 ( OJ L 172 OF 22 . 7 . 1968, P . 1 ),

1 BY A JUDGMENT OF 20 MAY 1975, RECEIVED AT THE COURT REGISTRY ON 12 JUNE FOLLOWING, THE BELGIAN COUR DE CASSATION, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, REFERRED TWO QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS CONCERNING THE CLASSIFICATION OF GOODS WITHIN THE COMMON CUSTOMS TARIFF .

2 THE FIRST QUESTION ASKS WHETHER REGULATION NO 495/69 OF 18 MARCH 1969 OF THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY IS APPLICABLE FOR THE CLASSIFICATION OF GOODS IMPORTED BEFORE IT CAME INTO FORCE, IN PARTICULAR AS REGARDS THE CLASSIFICATION OF GOODS IMPORTED DURING THE PERIOD FROM 6 DECEMBER 1968 UP TO AND INCLUDING 5 MARCH 1969 .

3 THE SECOND QUESTION ASKS WHAT IS THE DEFINITION OF THE TERM 'ICE-CREAM' FOR THE PURPOSE OF APPLYING HEADINGS 18.06 B AND 21.07 C OF THE COMMON CUSTOMS TARIFF PRIOR TO THE ENTRY INTO FORCE OF THE REGULATION NO 495/69, IN PARTICULAR DURING THE PERIOD FROM 6 DECEMBER 1968 UP TO AND INCLUDING 5 MARCH 1969 AND MORE PARTICULARLY WHETHER THIS TERM CAN REFER TO PRODUCTS WITH A RELATIVELY HIGH CONTENT IN FATS, OF WHICH MILKFATS AMOUNT TO 45 PER CENT OR MORE BUT LESS THAN 65 PER CENT BY WEIGHT OF THE TOTAL WEIGHT OF THESE PRODUCTS, WHICH CONTAIN IN PARTICULAR SUCROSE AND WATER, WHICH DO NOT MELT IN AN AMBIENT TEMPERATURE OF APPROXIMATELY 0* CENTIGRADE AND WHICH EVEN IN AN AMBIENT TEMPERATURE OF 20* CENTIGRADE SHOW AFTER 24 HOURS NO SIGN OF MELTING, EVEN IF AERATED AND OFFERED CHILLED OR FROZEN .

4 IT APPEARS FROM THE LAST PART OF THIS SECOND QUESTION THAT THE POSSIBLE APPLICABILITY OF REGULATION NO 495/69 ARISES ONLY IF THE CONCEPT OF 'ICE-CREAM' APPEARING IN THE COMMON CUSTOMS TARIFF DOES NOT INCLUDE THE PRODUCTS SPECIFIED BY THIS QUESTION AND ONLY IF THE CLASSIFICATION OF THESE PRODUCTS COULD NOT BE MADE IN ACCORDANCE WITH THE PROVISIONS IN FORCE AT THE TIME OF THE IMPORT .

5 IT IS APPROPRIATE THEREFORE TO CONSIDER FIRST THE WORDING OF THE SUBHEADINGS IN QUESTION .

6 SUBHEADING 18.06 B CONCERNS :

ICE-CREAM :

I . NOT CONTAINING OR CONTAINING LESS THAN 3 PER CENT BY WEIGHT OF MILKFAT

II . WITH A MILKFAT CONTENT BY WEIGHT :

( A ) EQUAL TO OR GREATER THAN 3 PER CENT AND LESS THAN 7 PER CENT;

( B ) EQUAL TO OR GREATER THAN 7 PER CENT .

7 SUBHEADING 24.07 C, REFERRING TO ICE-CREAM NOT CONTAINING COCOA, IS DRAFTER IN IDENTICAL LANGUAGE .

8 THE FACT THAT THE CONCEPT OF ICE-CREAM IS NOT DEFINED BY THE COMMON CUSTOMS TARIFF, LEADS TO THE SUPPOSITION THAT THIS PRODUCT IS REGARDED AS SUFFICIENTLY CHARACTERIZED BY ITS VERY DESCRIPTION .

9 THE DECISIVE CRITERION FOR THE CUSTOMS CLASSIFICATION OF GOODS MUST GENERALLY BE LOOKED FOR IN THEIR OBJECTIVE CHARACTERISTICS AND PROPERTIES .

10 IT CANNOT BE DISREGARDED THAT ICE-CREAM HAS THE DOMINANT CHARACTERISTIC OF MELTING AT A TEMPERATURE OF APPROXIMATELY 0* CENTIGRADE, A CHARACTERISTIC WHICH IS EXPLAINED BY THE HIGH WATER CONTENT IN THIS PRODUCT AND WHICH IS, CONSEQUENTLY, ELIMINATED IN CASE OF A HIGH FAT CONTENT .

11 CONSEQUENTLY SUBHEADINGS 18.06 B AND 21.07 C SHOW ONLY RELATIVELY LOW FAT PERCENTAGES FOR ICE-CREAM WHILST PRODUCTS WITH A HIGH FAT CONTENT ARE MENTIONED UNDER THE LATER SUBHEADINGS OF THESE CHAPTERS .

12 THE MERE FACT THAT THESE LATTER PRODUCTS ARE PRODUCED IN A REFRIGERATED OR FROZEN STATE CANNOT CATEGORIZE THEM AS 'ICE-CREAM' AND JUSTIFY THEIR CLASSIFICATION UNDER SUBHEADINGS 18.06 B AND 21.07 C .

13 ALTHOUGH THE COMMON CUSTOMS TARIFF GIVES NO DETAILS CONCERNING THE COMPOSITION OF ICE-CREAM, USEFUL FACTS IN THIS RESPECT MAY, HOWEVER, BE FOUND IN REGULATION NO 83/67/EEC OF THE COUNCIL OF 18 APRIL 1967 ESTABLISHING TARIFF SPECIFICATIONS RELATING TO GOODS COVERED BY REGULATION NO 160/66/EEC OF THE COUNCIL AND PRESCRIBING THE FIXED COMPONENTS APPLICABLE TO THEM AS WELL AS THE QUANTITIES OF BASIC PRODUCTS TO BE TAKEN AS HAVING BEEN INCORPORATED IN THEIR MANUFACTURE ( OJ NO 81 OF 26 . 4 . 1967, P . 1597 ).

14 FOR THIS PURPOSE THE REGULATION, IN ANNEX II, SHOWS 20 KG OF SUGAR AND 35 KG OF MILK POWDER PER 100 KG OF ICE-CREAM FOR THE HIGHEST MILKFAT CONTENT MENTIONED IN ANNEX I (... EQUAL TO OR GREATER THAN 7 PER CENT ).

15 THE NOMENCLATURE INTRODUCED BY THIS REGULATION WAS ADOPTED BY REGULATION NO 950/68 OF THE COUNCIL ON THE COMMON CUSTOMS TARIFF AND CONSEQUENTLY ALLOWS THE SAID BASIC PRODUCTS TO BE ACCEPTED AS POSSIBLE INGREDIENTS OF ICE-CREAM WITHIN THE MEANING OF THE COMMON CUSTOMS TARIFF ONLY WITHIN THE LIMITS OF THE QUANTITIES MENTIONED .

16 THUS, AS THE COMMISSION HAS SHOWN, ACCORDING TO WELL-ESTABLISHED SCIENTIFIC CONCEPTS A QUANTITY OF 35 KG OF WHOLE MILK POWDER PER 100 KG OF ICE-CREAM CORRESPONDS TO 9.1 PER CENT OF MILKFAT .

17 EVEN IF THIS LAST QUANTITY WAS SPECIFIED ON A FIXED BASIS, THAT DECISION BY THE COMMUNITY LEGISLATURE EXCLUDES UNEQUIVOCALLY ONLY PRODUCTS CONTAINING MORE THAN 15 PER CENT OF MILKFAT FROM BEING REGARDED AS ICE-CREAM WITHIN THE MEANING OF THE COMMON CUSTOMS TARIFF .

18 IT FOLLOWS THAT FOR THE PURPOSES OF THE APPLICATION OF SUBHEADINGS 18.06 B AND 21.07 C OF THE COMMON CUSTOMS TARIFF THE CONCEPT OF 'ICE-CREAM' REFERS TO PRODUCTS HAVING AS THEIR ESSENTIAL CHARACTERISTIC THAT THEY MELT AT A TEMPERATURE OF APPROXIMATELY 0* CENTIGRADE AND THAT THIS CONCEPT CANNOT BE APPLIED TO PRODUCTS WITH A MILKFAT CONTENT EXCEEDING 15 PER CENT .

19 HAVING REGARD TO THAT CONCLUSION, THE FIRST QUESTION HAS LOST ITS PURPOSE AND DOES NOT REQUIRE AN ANSWER .

20 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

21 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BELGIAN COUR DE CASSATION, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BELGIAN COUR DE CASSATION BY JUDGMENT OF 20 MAY 1975, HEREBY RULES :

FOR THE APPLICATION OF SUBHEADINGS 18.06 B AND 21.07 C OF THE COMMON CUSTOMS TARIFF, THE CONCEPT OF 'ICE-CREAM' REFERS TO PRODUCTS HAVING AS THEIR ESSENTIAL CHARACTERISTIC THAT THEY MELT AT A TEMPERATURE OF APPROXIMATELY 0* CENTIGRADE . THAT CONCEPT CANNOT BE APPLIED TO PRODUCTS WITH A FAT CONTENT EXCEEDING 15 PER CENT .