Joined Cases C‑532/14 and C‑533/14

Toorank Productions BV

Staatssecretaris van Financiën

(Requests for a preliminary ruling from the Hoge Raad der Nederlanden)

‛References for a preliminary ruling — Common Customs Tariff — Classification for customs purposes — Combined Nomenclature — Tariff heading 2206 — Tariff heading 2208 — Alcoholic beverages obtained through fermentation followed by purification — Addition of additives to alcoholic beverages obtained through fermentation followed by purification — Beverages which have lost the properties of beverages falling under tariff heading 2206’

Summary — Judgment of the Court (First Chamber), 12 May 2016

Customs union — Common Customs Tariff — Tariff headings — Classification of goods — Criteria

(Council Regulation No 2658/87, Annex I)
Customs union — Common Customs Tariff — Tariff headings — Alcoholic beverage obtained through fermentation of an apple concentrate followed by purification — Classification under heading 2208 of the Combined Nomenclature

(Council Regulation No 2658/87, Annex I; Commission Regulations No 1719/2005 and No 1214/2007)
Customs union — Common Customs Tariff — Tariff headings — Alcoholic beverages manufactured by adding certain additives, such as sugar and aromatic substances, to a beverage base falling under heading 2208 of the Combined Nomenclature — Classification under heading 2208 of the Combined Nomenclature

(Council Regulation No 2658/87, Annex I; Commission Regulations No 1719/2005 and No 1214/2007)
Customs union — Common Customs Tariff — Tariff headings — Alcoholic beverage manufactured by adding certain additives, such as distilled alcohol and other substances, to a beverage base falling under heading 2208 of the Combined Nomenclature — Classification under heading 2208 of the Combined Nomenclature — Criteria

(Council Regulation No 2658/87, Annex I; Commission Regulations No 1719/2005 and No 1214/2007)

First of all, in the interests of legal certainty and ease of verification, 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 Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and in the section or chapter notes.

Next, the intended use of products may constitute an objective criterion for classification if it is inherent to those products, having regard to the objective characteristics and properties of those products. Nevertheless, the intended use of a product is a relevant criterion only where the classification can be made on the sole basis of the objective characteristics and properties of that product.

Lastly, the explanatory notes drawn up by the Commission as regards the Combined Nomenclature and by the World Customs Organisation as regards the Harmonised Commodity Description and Coding System are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force.

(see paras 34-36)
On a proper construction of the Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting from Regulation No 1719/2005 and from Regulation No 1214/2007, a beverage which is obtained through fermentation of an apple concentrate and is designed to be consumed either undiluted or as a base in other beverages, being neutral in terms of colour, smell and taste as a result of purification (including ultrafiltration) and having an alcoholic strength by volume, without the addition of distilled alcohol, of 16% falls under heading 2208 of that nomenclature.

A product obtained as a result of fermentation followed by a process of purification falls under heading 2208 of the Combined Nomenclature in so far as it has lost the properties of the fermented beverages falling under heading 2206 of the Combined Nomenclature and acquired those of the ethyl alcohol covered by heading 2208 of that nomenclature.

(see paras 43, 45, operative part 1)
On a proper construction of the Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting from Regulation No 1719/2005 and from Regulation No 1214/2007, beverages with an alcoholic strength by volume of 14% which are manufactured by adding sugar, aromatic substances, colouring and flavouring agents, thickening agents and preservatives and, for one of those beverages, cream, to a beverage base obtained through fermentation of an apple concentrate, being neutral in terms of colour, smell and taste as a result of purification (including ultrafiltration) and having an alcoholic strength by volume of 16%, and which do not contain distilled alcohol, fall under heading 2208 of that nomenclature.

Those beverages have the objective characteristics of a liqueur and, consequently, fall under heading 2208 of the Combined Nomenclature.

(see paras 49, 50, operative part 2)
On a proper construction of the Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting from Regulation No 1719/2005 and from Regulation No 1214/2007, a beverage with an alcoholic strength by volume of 13.4% which is manufactured by adding sugar, aromatic substances, colouring and flavouring agents, thickening agents, preservatives and distilled alcohol to a beverage base obtained through fermentation of an apple concentrate, being neutral in terms of colour, smell and taste as a result of purification (including ultrafiltration) and having an alcoholic strength by volume of 16%, where that distilled alcohol does not exceed, either in volume or percentage, 49% of the alcohol present in that beverage, with the remaining 51% resulting from a process of fermentation, falls under heading 2208 of that nomenclature.

The fact that the proportion of one type of alcohol may be larger than that of another type of alcohol is only one of several criteria to be taken into account when determining, in accordance with rule 3(b) of the Combined Nomenclature, which substance gives the product under consideration its essential characteristics. However, rule 3(b) of the Combined Nomenclature does not govern the classification of that beverage, which is based on the criterion relating to the organoleptic properties and characteristics of that beverage. Consequently, since such a beverage does not have the organoleptic properties and characteristics of beverages falling under heading 2206 of the Combined Nomenclature, but has those of products falling under heading 2208 of the Combined Nomenclature, it falls under that second heading.

(see paras 57-60, operative part 3)