—

the Latvian Government, by I. Kalniņš and G. Bambāne, acting as Agents,

—

the European Commission, by A. Sauka and A. Caeiros, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of subheadings 1517 90 91 and 1518 00 31 of the Combined Nomenclature 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 Regulation (EU) No 1006/2011 of 27 September 2011 (OJ 2011 L 282, p. 1) (‘the CN’).

2

The request has been made in proceedings between SIA ‘Oniors Bio’ (‘Oniors Bio’) and Valsts ieņēmumu dienests (the Latvian Tax Administration; ‘the VID’), concerning the tariff classification of a mixture of crude fixed fluid vegetable oils (88% rapeseed oil and 12% sunflower oil).

3

The customs classification of goods imported into the European Union is governed by the CN. The CN is based on the Harmonised Commodity Description and Coding System (‘the HS’), drawn up by the Customs Cooperation Council, now the World Customs Organisation (WCO), and established by the convention creating that council, concluded in Brussels on 15 December 1950. The HS is established by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983 and approved, with its amending protocol 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). The CN reproduces the headings and subheadings of the HS to six digits, with only the seventh and eighth digits creating further subheadings which are specific to it.

4

Article 12 of Regulation No 2658/87 provides that the European Commission is to adopt each year, by means of a regulation, a complete version of the CN together with the corresponding autonomous and conventional rates of duty of the Common Customs Tariff, as it results from measures adopted by the Council of the European Union or by the Commission. That regulation is to be published not later than 31 October in the Official Journal of the European Union and is to apply from 1 January of the following year.

5

The version of the CN applicable to the facts in the main proceedings is, as is apparent from the file submitted to the Court, that for the year 2012, resulting from Regulation No 1006/2011.

6

The first part of the CN consists of a number of preliminary provisions. Under Section I of that part, which contains the general rules, Subsection A, entitled ‘General rules for the interpretation of the Combined Nomenclature’, provides:

‘Classification of goods in the [CN] shall be governed by the following principles:

7

The second part of the CN includes Section III, entitled ‘Animal or vegetable fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes’. That section includes Chapter 15, which has an identical title.

8

Chapter 15 contains inter alia the following tariff headings and subheadings:

…

…

1517 90 91 — Fixed vegetable oils, fluid, mixed.’

9

CN heading 1518 is structured in the following manner:

10

Note 3 to CN Chapter 15 states:

‘Heading 1518 does not cover fats or oils or their fractions, merely denatured, which are to be classified in the heading appropriate to the corresponding undenatured fats and oils and their fractions.’

11

The Explanatory Notes to the HS are drawn up within the WCO in accordance with the provisions of the international HS convention of 14 June 1983 and are published in the two official languages of the WCO, namely French and English. The HS Explanatory Note on Chapter 15, in its English version, states inter alia as follows:

‘The expression “fats or oils or their fractions, merely denatured” mentioned in Note 3 to this Chapter refers to fats or oils or their fractions to which a denaturant, such as fish oil, phenols, petroleum oils, oil of turpentine, toluene, methyl salicylate (wintergreen oil), oil of rosemary, has been added to render them inedible. These substances are added in small quantities (generally not more than 1%) which render the fats or oils or their fractions, e.g., rancid, sour, pungent, bitter. It should be noted, however, that Note 3 to this Chapter does not apply to denatured mixtures or preparations of fats or oils or their fractions (heading 15.18).’

12

Article 13 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13) (‘the Customs Code’), provides:

‘1.   Customs authorities may, in accordance with the conditions laid down by the provisions in force, carry out all the controls they deem necessary to ensure that customs rules and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries and the presence of goods that do not have Community status are correctly applied. Customs controls for the purpose of the correct application of Community legislation may be carried out in a third country where an international agreement provides for this.

…

3.   Where controls are performed by authorities other than the customs authorities, such controls shall be performed in close coordination with the customs authorities, wherever possible at the same time and place.

…’

13

Article 62 of the Customs Code provides:

‘1.   Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.

2.   The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.’

14

Article 68 of the Customs Code provides:

‘For the verification of declarations which they have accepted, the customs authorities may:

15

Article 71 of the Customs Code provides:

‘1.   The results of verifying the declaration shall be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed.

2.   Where the declaration is not verified, the provisions referred to in paragraph 1 shall be applied on the basis of the particulars contained in the declaration.’

16

Article 1(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p.1), provides:

‘This Regulation provides the basis for the assurance of a high level of protection of human health and consumers’ interest in relation to food, taking into account in particular the diversity in the supply of food including traditional products, whilst ensuring the effective functioning of the internal market. It establishes common principles and responsibilities, the means to provide a strong science base, efficient organisational arrangements and procedures to underpin decision-making in matters of food and feed safety.’

17

The first paragraph of Article 2 of Regulation No 178/2002 provides that, for the purposes of that regulation, ‘food’ (or ‘foodstuff’) means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be, ingested by humans.

18

Article 14(1) and (2) of Regulation No 178/2002 provides as follows:

‘1.   Food shall not be placed on the market if it is unsafe.

2.   Food shall be deemed to be unsafe if it is considered to be:

19

On 16 March 2012, Bio Oniors lodged two declarations with the VID for the release into free circulation of certain quantities of a mixture of crude fixed fluid vegetable oils, composed of 88% rapeseed oil and 12% sunflower oil, produced in Belarus. In those declarations Oniors Bio classified the product in question under CN subheading 1518 00 31.

20

It appears from the order for reference that, in accordance with information provided by the producer, the goods imported by Oniors Bio were not intended to be used for food, but solely for technical purposes. Because of the technological process used in the production of the mixture of oils at issue, it could not be ruled out that the end product might contain noxious substances, in particular toluene, a denaturing agent.

21

Oniors Bio also submitted to the VID an opinion from the Latvian certification centre (Latvijas Sertifikācijas Centrs) according to which the goods in question contained 1.4% toluene, which rendered them unusable for consumption as food. The referring court also states that the use of those goods was not permitted in the production of foodstuffs. Finally, according to the referring court, no evidence had been produced before it which was capable of attributing, at least indirectly, fraudulent conduct or fraudulent intent to the producer or to Oniors Bio with a view to evading the payment of customs duties or taxes which they owed.

22

Having carried out an inspection of the imported goods and having examined samples taken, the VID found, by two opinions of 27 March 2012, that it was appropriate to classify those goods under CN subheading 1517 90 91. On the basis of those opinions, on 29 March 2012 the VID adopted two decisions by which the customs duties and value added tax claimed from Oniors Bio were increased.

23

Oniors Bio brought a complaint before the Director General of the VID against the abovementioned decisions. Following the dismissal of that complaint, Oniors Bio brought an action challenging those decisions before the Administratīvā rajona tiesa (District Administrative Court). That action was dismissed by judgment of 7 May 2013.

24

Oniors Bio appealed against that judgment to the referring court.

25

The referring court states that, in order to ensure a comprehensive examination of the case, it invited the Food and Veterinary Authority (Pārtikas un veterinārais dienests; ‘the PVD’) to attend the proceedings in order to issue, within the terms of its remit, its opinion on the questions raised in the case pending before that court. In its opinion, the PVD, relying on information provided by the producer of the product at issue and on the documents accompanying that product, concluded that it was not a product intended to be used as food or for producing food for humans and that it could not be used for such purposes.

26

The referring court takes the view that classification under CN subheading 1517 90 91 of the mixture of oils imported by Oniors Bio gives rise to reasonable doubt in the light of the information provided by the producer of the product and the opinions of the Latvian certification centre and the PVD. According to the referring court, those doubts result, first, from the absence, in the case pending before it, of targeted action, such as that envisaged in the judgment in Evroetil (C‑503/10, EU:C:2011:872), which is designed to render the product concerned irreversibly unsuitable for food use by the addition of denaturing agents or other noxious substances. Second, the fact that the VID had not found the presence of noxious substances in samples taken from the imported goods constituted an additional source of doubt as to how the goods at issue ought properly to be classified.

27

In those circumstances, the Administratīvā apgabaltiesa (Regional Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

28

As a preliminary point, it should be recalled, first, that, when the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (judgment in Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraph 27 and the case-law cited).

29

It is thus for the national court to classify the goods at issue in the main proceedings in the light of the answers given by the Court to the questions referred to it.

30

Second, it must be stated that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court may have to reformulate the questions referred to it (judgment in Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraph 29 and the case-law cited).

31

In the present case, it is apparent from the order for reference that, by its seven questions, which it is appropriate to examine together, the referring court asks, in essence, whether the CN must be interpreted as meaning that, in order to determine whether a mixture of vegetable oils such as that at issue in the main proceedings must be classified, as an edible mixture of vegetable oils, under CN subheading 1517 90 91, or as an inedible mixture of vegetable oils, under CN subheading 1518 00 31, the following factors should be taken into account:

32

It is appropriate in this regard to bear in mind the settled case-law, according to which, in the interests of legal certainty and ease of verification, the decisive criterion for the tariff classification of 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 section or chapter notes (judgment in Delphi Deutschland, C‑423/10, EU:C:2011:315, paragraph 23 and the case-law cited).

33

According to equally settled case-law, the intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see judgments in Agroferm, C‑568/11, EU:C:2013:407, paragraph 41, and in Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 47). Moreover, the intended use of the product is a relevant criterion only where the classification can be made on the sole basis of the objective characteristics and properties of the product (judgment in Skoma-Lux, C‑339/09, EU:C:2010:781, paragraph 47).

34

As is apparent from the documents before the Court, the product at issue in the main proceedings is a mixture of crude fixed fluid vegetable oils, composed of 88% rapeseed oil and 12% sunflower oil. According to the information provided by the producer, that mixture is not intended for human consumption inasmuch as, because of the technological process used for its production, the presence of noxious substances, in particular toluene, cannot be excluded.

35

As is apparent from its wording, CN heading 1517 covers, apart from ‘margarine’, ‘edible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of this chapter, other than edible fats or oils or their fractions of heading 1516’.

36

CN heading 1518 covers, according to its wording, ‘[a]nimal or vegetable fats and oils and their fractions, boiled, oxidised, dehydrated, sulphurised, blown, polymerised by heat in vacuum or in inert gas or otherwise chemically modified, excluding those of heading No 1516’ and ‘inedible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of chapter 15, not elsewhere specified or included’.

37

As the mixture of sunflower oil and rapeseed oil at issue in the main proceedings does not come under heading 1516 of the CN, since it is not composed of animal or vegetable fats and oils and their fractions, partly or wholly hydrogenated, inter-esterified, re-esterified or elaidinised, whether or not refined, but not further prepared, the necessary conclusion is that it comes under either CN heading 1517 or CN heading 1518, in so far as those two headings refer to mixtures of vegetable oils, as its classification under either heading depends on whether it is an edible mixture or an inedible mixture, as has been stated in paragraph 34 of the present judgment. Chapter 15 of the CN differentiates, by means of the distinction made in Chapter 15 of the HS, between edible mixtures of vegetable oils, which come under CN heading 1517, and inedible mixtures of vegetable oils, which come under CN heading 1518.

38

In this regard, it should be borne in mind that Note 3 to Chapter 15 of the CN, which contains the wording of Note 3 to Chapter 15 of the HS, makes it clear that CN heading 1518 ‘does not cover fats or oils or their fractions, merely denatured, which are to be classified in the heading appropriate to the corresponding undenatured fats and oils and their fractions’. However, the HS Explanatory Note concerning Chapter 15 states, first, that the expression ‘fats or oils or their fractions, merely denatured’ mentioned in Note 3 refers to ‘fats or oils or their fractions to which a denaturant’, such as, inter alia, toluene, ‘has been added to render them inedible’. The last sentence of that Explanatory Note states, second, that Note 3 to Chapter 15 of the HS does not apply to denatured mixtures or preparations of fats or oils.

39

It follows from the foregoing considerations that, in order to categorise a mixture of vegetable oils such as that at issue in the main proceedings as ‘inedible’ and to classify it under CN subheading 1518 00 31, it is not essential that it has been irreversibly rendered unfit for use in food by targeted action during its production process. It suffices that it comes within the notion of inedible mixtures by reason of its objective characteristics and properties, as well as by reason of the intended use which results therefrom.

40

In this regard, first, the judgment in Evroetil (C‑503/10, EU:C:2011:872), cited by the referring court, is not such as to alter that finding. The case giving rise to that judgment concerned the concept of ‘denaturing’ and not the distinction between edible and inedible mixtures. In that case, the Court concluded that a product that had not been denatured pursuant to a process among those laid down by the applicable provision could not benefit from the exemption from excise duty at issue in that case, even though that product contained substances making it unfit for human consumption (see, to that effect, judgment in Evroetil, C‑503/10, EU:C:2011:872, paragraph 66). In the present case, however, the wording of CN subheading 1518 00 31 covers not only mixtures of vegetable oils which have been denatured pursuant to certain processes but, generally, inedible mixtures of vegetable oils.

41

Next, as regards the distinction between an edible mixture of vegetable oils, which may be classified under CN subheading 1517 90 91, and an inedible mixture of vegetable oils, coming under CN subheading 1518 00 31, it should be recalled that, as has been stated in paragraph 37 of the present judgment, that distinction is based on the intended use of that mixture, for food use or for non-food use respectively.

42

In order to establish whether such a mixture is intended for food use or for non-food use, it is appropriate to take account of all the relevant factors relating to the objective characteristics and properties inherent in that product. It is for the importer, at the time of importation, to prove the use referred to for the product at issue in the declaration which it submits to the competent customs authorities (see, by analogy, judgment in Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 51).

43

In that regard, it should be noted that the fact that, by reason of the characteristics of the process for its production, the presence, in a mixture of vegetable oils, of substances which are harmful to human health cannot be excluded is a relevant factor which is capable of justifying the classification of such a mixture as ‘inedible’, in the light of its objective characteristics and properties and hence its classification under CN heading 1518 and, in particular, if it consists of crude vegetable oils, under subheading 1518 00 31.

44

With regard to the evidence relating to the objective characteristics and properties of a mixture of vegetable oils such as that at issue in the main proceedings, it should be noted that written information from the producer of a product constitutes, in accordance with Article 68(a) of the Customs Code, a factor which must be taken into account for the verification of the declaration of release into free circulation and the classification of the goods at issue under the appropriate CN heading.

45

The referring court is uncertain, however, as to how the information provided by the producer concerning a mixture of vegetable oils such as that at issue in the main proceedings can be reconciled with the results of the examination of the samples taken from that mixture and analysed by the customs authorities which did not indicate the presence of substances harmful to human health.

46

In that regard, it should be recalled that, under Article 68(b) of the Customs Code, for the verification of declarations which they have accepted, the customs authorities may examine the goods concerned and take samples for analysis or for detailed examination. In accordance with Article 71(1) of the Customs Code, the results of the verification of the declaration for release into free circulation are to be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed and therefore, in particular, for the classification of those goods in the CN.

47

It follows from those provisions that, if the goods concerned by a declaration for release into free circulation are presented on that declaration as being an inedible mixture of vegetable oils, but the examination of samples taken from that mixture by the competent customs authorities did not indicate the presence of any substance noxious to human health, those authorities are entitled to classify those goods under a CN heading which covers edible mixtures of vegetable oils, such as, in the present case, CN heading 1517, unless there are other factors which show that the goods in question are not, by their objective nature and properties, intended to be used for food.

48

Information such as that provided by the producer of the mixture of vegetable oils at issue in the main proceedings, according to which, due to the production process of such a mixture, the presence in it of substances harmful to human health could not be excluded, is precisely a factor which could show that the mixture in question cannot be categorised as ‘edible’. That information is not automatically called into question merely by the results of an analysis of samples which did not show the presence of noxious substances, in so far as such a presence, in the mixture of vegetable oils in question, is not certain, but only possible.

49

Admittedly, the results of an analysis of samples of a mixture of vegetable oils such as those obtained by the VID in the case in the main proceedings may cast doubt on the accuracy and reliability of the information provided by the producer in the declaration of release into free circulation relating to the possible presence, in the mixture in question, of substances harmful to human health. In such a case, the customs authorities may, under Article 68(a) of the Customs Code, carry out additional research and require the declarant to present other documentary evidence to confirm or disprove the accuracy of the producer’s information and particulars contained in that declaration and accordingly to impede any possible attempted fraud.

50

However, in the absence of such factors and additional evidence which might call into question the accuracy of the information provided by the producer of a mixture of vegetable oils such as that at issue in the main proceedings and included in the declaration of release into free circulation, the customs authority cannot rely merely on the absence of noxious substances in the samples of such a mixture of vegetable oils taken and analysed by it in order to classify that mixture under a CN heading, such as, in the present case, heading 1517 covering food products.

51

In that regard, it should be stated that there is nothing in the file submitted to the Court to suggest that there are, in the case in the main proceedings, any factors such as to call into question the accuracy of the information relating to the process for the production of the mixture of vegetable oils imported by the appellant in the main proceedings. Moreover, as has been noted in paragraph 21 of the present judgment, the referring court states that there is no evidence at all of fraudulent conduct on the part of the producer of the goods at issue or on that of the appellant in the main proceedings. In any event, it is for the referring court to determine whether such evidence exists.

52

Finally, with regard to the possible relevance, for the purposes of the tariff classification of goods such as those at issue in the main proceedings, of the competent national authority’s opinion for the application of the legislation on foodstuffs, including Regulation No 178/2002, to which the referring court refers, it is important to note that the tariff classification of goods on the date of their release into free circulation is a matter for the national customs authorities, which apply, in that regard, the provisions of the CN and of the Customs Code.

53

As regards Regulation No 178/2002, this seeks, as is apparent from Article 1(1) thereof, to ensure, as regards food, a high level of protection of human health and of the interests of consumers in relation to food, and, accordingly, pursues a different purpose.

54

Moreover, it is apparent from a combined reading of Article 2(1) and Article 14(1) and (2) of Regulation No 178/2002 that the concept of ‘food’ within the meaning of that regulation may also include products injurious to health or unfit for human consumption, the marketing of which is prohibited.

55

It follows that the opinion of the authority of a Member State responsible for the application of food legislation, according to which a mixture of vegetable oils such as that at issue in the main proceedings is unfit for human consumption cannot, by itself, be conclusive for the purpose of justifying the classification of that ‘inedible’ mixture and, consequently, its classification under CN heading 1518.

56

The classification alone of such a mixture as ‘edible’, for the purposes of the application of the CN and the collection of appropriate customs duties, does not, by itself, automatically mean that it is placed on the market as a product intended for human consumption. As has already been stated, Article 14 of Regulation No 178/2002 prohibits the placing on the market of ‘food’ which is dangerous, that is, injurious to health or unfit for human consumption. However, an opinion from the competent national authority for matters relating to foodstuffs, according to which a mixture of vegetable oils such as that at issue in the main proceedings is unfit for human consumption, is one factor among others to be taken into consideration by the authority or the competent national court for the purpose of classifying that mixture under the appropriate CN heading (see, by analogy, judgment in Oliver Medical, C‑547/13, EU:C:2015:139, paragraph 53).

57

Having regard to all of the foregoing considerations, the answer to the questions raised is that the CN must be interpreted as meaning that, in order to determine whether a mixture of vegetable oils such as that at issue in the main proceedings must be classified as an edible mixture of vegetable oils under CN subheading 1517 90 91 or as an inedible mixture of vegetable oils under CN subheading 1518 00 31, all the factors relevant to the case must be taken into account, in so far as they relate to the objective characteristics and properties inherent in that product. Among the relevant factors which may justify the classification of such a mixture as ‘inedible’, account should be taken of the information provided by the producer of that mixture in the context of the customs declaration, according to which, because of the characteristics of the process for its production, the presence of noxious substances in that mixture cannot be excluded. In that regard, the fact that an analysis of samples taken from such a mixture of vegetable oils has not shown that it contains any noxious substance does not suffice, by itself, to call into question the classification of the mixture in question as ‘inedible’. Such a consequence presupposes the existence of other relevant evidence capable of calling into question the accuracy of the information relating to the process for the production of the mixture in question, provided by its producer and included in that declaration, in accordance with Articles 62, 68 and 71 of the Customs Code.

58

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

On those grounds, the Court (Eighth Chamber) hereby rules:

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, in the version resulting from Commission Regulation (EU) No 1006/2011 of 27 September 2011, must be interpreted as meaning that, in order to determine whether a mixture of vegetable oils such as that at issue in the main proceedings must be classified as an edible mixture of vegetable oils under CN subheading 1517 90 91 or as an inedible mixture of vegetable oils under CN subheading 1518 00 31, all the factors relevant to the case must be taken into account, in so far as they relate to the objective characteristics and properties inherent in that product. Among the relevant factors which may justify the classification of such a mixture as ‘inedible’, account should be taken of the information provided by the producer of that mixture in the context of the customs declaration, according to which, because of the characteristics of the process for its production, the presence of noxious substances in that mixture cannot be excluded. In that regard, the fact that an analysis of samples taken from such a mixture of vegetable oils has not shown that it contains any noxious substance does not suffice, by itself, to call into question the classification of the mixture in question as ‘inedible’. Such a consequence presupposes the existence of other relevant evidence capable of calling into question the accuracy of the information relating to the process for the production of the mixture in question, provided by its producer and included in that declaration, in accordance with Articles 62, 68 and 71 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005.