Case C-568/11

Agroferm A/S

v

Ministeriet for Fødevarer, Landbrug og Fiskeri

(Request for a preliminary ruling from the Vestre Landsret)

‛Tariff classification — Combined Nomenclature — Sugar-based product consisting of 65% lysine sulphate and 35% impurities resulting from the manufacturing process — Regulation (EC) No 1719/2005 — Regulation (EC) No 1265/2001 — Production refund on certain products used in the chemical industry — Community aid wrongly paid — Repayment — Principle of the protection of legitimate expectations’

Summary — Judgment of the Court (Second Chamber), 20 June 2013

1. Customs union — Common Customs Tariff — Tariff headings — Classification of goods — Criteria — Characteristics and objective properties

2. Customs union — Common Customs Tariff — Classification of goods — Criteria — Objective characteristics — Scope — Intended use of a product — Included

3. Customs union — Common Customs Tariff — Tariff headings — Product consisting of lysine sulphate and impurities resulting from the manufacturing process — Classification under heading 2309 of the Combined Nomenclature

   (Council Regulation No 2658/87, Annex I, position 2309)

4. Agriculture — Common organisation of the markets — Sugar — Grant of the production refund on certain products used in the chemical industry — Manufactured product not coming under the tariff heading indicated in the refund certificate — Repayment sought by the national customs authorities of a wrongly paid amount of production refunds already received — Refusal by those authorities to pay production refunds envisaged — Breach of principle of the protection of legitimate expectations — None

   (Commission Regulation No 1265/2001)

1.  See the text of the decision.

   (see para. 27)

2.  See the text of the decision.

   (see para. 41)

3.  The Combined Nomenclature listed in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that a product composed of lysine sulphate and impurities resulting from the manufacturing process must be classified under heading 2309 as a preparation of a kind used in animal feeding.

   (see para. 45, operative part 1)

4.  The principle of the protection of legitimate expectations must be interpreted as meaning that it does not preclude the national customs authorities from, first, seeking repayment of a wrongly paid amount of lysine sulphate production refunds that the producer has already received and, second, refusing to pay production refunds on that product which those authorities had given undertakings to that producer to pay.

   The principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law; nor can the conduct of a national authority responsible for applying EU law, which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary to EU law.

   A trader may rely on a legitimate expectation of payment of a production refund only if the product manufactured by him is to be classified under the heading or in the chapter of the Combined Nomenclature indicated in the refund certificate.

   (see paras 52, 54, 57, operative part 2)