Reports of Cases. ORDER OF THE COURT (Sixth Chamber) 22 October 2014 *

Reports of Cases ORDER OF THE COURT (Sixth Chamber) 22 October 2014 * (Reference for a preliminary ruling Common Customs Tariff Tariff classification Combined Nomenclature Classification of goods Tariff heading 2202 10 00 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured Tariff heading 2202 9010 11 Fruit or vegetable juice diluted with water or aerated) In Case C-139/14, Request for a preliminary ruling under Article 267 TFEU from the Finanzgericht Baden-Württemberg (Germany), made by decision of 25 February 2014, received at the Court on 24 March 2014, in the proceedings Mineralquelle Zurzach AG v Hauptzollamt Singen, THE COURT (Sixth Chamber), composed of A. Borg Barthet, acting President of Chamber (Rapporteur), S. Rodin and F. Biltgen, Judges, Advocate General: M. Szpunar, Registrar: A. Calot Escobar, having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice, makes the following Order 1 This request for a preliminary ruling concerns the interpretation of heading 2202 10 00 of the Combined Nomenclature listed 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), as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1, the CN ), and of the interpretation of the integrated tariff of the European Communities established by Article 2 of Regulation No 2658/87 ( the TARIC ). EN * Language of the case: German. ECLI:EU:C:2014:2313 1

2 That request was submitted in proceedings between Mineralquelle Zurzach AG ( Mineralquelle Zurzach ), a drinks manufacturer established in Switzerland and the Hauptzollamt Singen (principal customs office, Singen (Germany)) in relation to the ex post recovery of customs debts relating to certain imports made by Mineralquelle Zurzach during 2006. Legal context The CN and the TARIC 3 Article 1 of Regulation No 2658/87 provides: 1. A [CN] which meets at one and the same time the requirements of the Common Customs Tariff, the external trade statistics of the Community and other Community policies concerning the importation or exportation of goods, shall be established by the [European] Commission. 2. The [CN] shall comprise: (a) the harmonised system nomenclature [drawn up by the World Customs Organisation (WCO) and established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983 and approved together with the Protocol of Amendment thereto 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 HS )]; (b) Community subdivisions to that nomenclature, referred to as CN subheadings in those cases where a corresponding rate of duty is specified; (c) preliminary provisions, additional section or chapter notes and footnotes relating to CN subheadings. 3. The combined nomenclature is reproduced in Annex I 4 Article 2 of the regulation provides: [A Taric] which meets the requirements of the Common Customs Tariff, external trade statistics, the commercial, agricultural and other Community policies concerning the importation or exportation of goods, shall be established by the Commission. The tariff shall be based on the [CN] and include: (a) the measures contained in this Regulation; (b) the additional Community subdivisions, referred to as Taric subheadings, which are needed for the implementation of specific Community measures listed in Annex II; (c) any other information necessary for the implementation or management of the Taric codes and additional codes as defined in Article 3(2) and (3); (d) the rates of customs duty and other import and export charges, including duty exemptions and preferential tariff rates applicable to specific goods on importation or exportation; 2 ECLI:EU:C:2014:2313

(e) measures shown in Annex II applicable on the importation and exportation of specific goods. 5 According to Article 3(1) and (2) of that regulation: 1. Each CN subheading shall have an eight digit code number: (a) the first six digits shall be the code numbers relating to the headings and subheadings of the [HS] nomenclature; (b) the seventh and eighth digits shall identify the CN subheadings.... 2. The Taric subheadings shall be identified by the 9th and 10th digits which, together with the code numbers referred to in paragraph 1, form the Taric code numbers. 6 Article 6 of that regulation provides that the Taric is to be established, updated, managed and disseminated by the Commission. 7 Part One of the CN consists of a number of preliminary provisions. In Section I of Part One, which contains general rules, subsection A, entitled General rules for the interpretation of the [CN], provides: Classification of goods in the [CN] shall be governed by the following principles: 1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. 3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: (a) the heading which provides the most specific description shall be preferred to headings providing a more general description. 6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise. 8 The second part of the CN contains a Section IV, entitled Prepared foodstuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes. That section contains, inter alia, a Chapter 22, entitled Beverages, spirits and vinegar. ECLI:EU:C:2014:2313 3

9 CN Heading 2202 is subdivided as follows: 2202 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009: 2202 10 00 - Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured 2202 90 - Other: 2202 90 10 - - Not containing products of headings 0401 to 0404 or fat obtained from products of headings 0401 to 0404 2202 90 91 - - - Less than 0,2% - - Other, containing by weight of fat obtained from the products of headings 0401 to 0404 2202 90 95 - - - 0,2% or more but less than 2% 2202 90 99 - - - 2% or more. 10 According to the first additional note in Chapter 22 of the CN: Subheading 2202 10 00 covers waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, providing they are for direct consumption as a beverage. 11 The explanatory notes to the CN drawn up by the Commission, in their version applicable at the material time in the main proceedings (OJ 2006, C 50, p. 1), are worded as follows as regards heading 2202: 2202 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009 The expression non-alcoholic beverages is defined in Note 3 to this chapter. 2202 10 00 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured The soft drinks referred to in the HS Explanatory Notes to heading 2202, paragraph (A), are covered by this subheading. The presence of anti-oxidants, vitamins, stabilisers or quinine do not affect the classification of soft drinks. This subheading includes liquid products, composed of water, sugar and flavourings, put up in a plastic bag and intended to be made in the home into ice-lollies by freezing in the refrigerator See also Additional Note 1 to this chapter 12 In 2006, with regard to subheading CN 2202 90 10, the TARIC contained the following subheadings: 2202 90 - Other 2202 90 10 - - Not containing products of headings 0401 to 0404 or fat obtained from products of headings 0401 to 0404 - - - containing sugar (sucrose or invert sugar) 2202 90 10 11 - - - - Fruit or vegetable juices, diluted with water or aerated 2202 90 10 19 - - - - Other. 4 ECLI:EU:C:2014:2313

The HS explanatory notes 13 The WCO approves, under the conditions laid down in Article 8 of the International Convention on the Harmonised Commodity Description and Coding System, the explanatory notes and the classification decisions adopted by the HS committee. 14 The Explanatory Notes concerning heading 2202 of the HS state as follows: (A) Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured. This group includes, inter alia: (1) Sweetened or flavoured mineral waters (natural or artificial); (2) Beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavoured with fruit juices or essences, or compound extracts, to which citric acid or tartaric acid are sometimes added. They are often aerated with carbon dioxide gas, and are generally presented in bottles or other airtight containers. The dispute in the main proceedings and the questions referred for a preliminary ruling 15 In 2006 Mineralquelle Zurzach imported into the European Union the drink Quelly Vita 10. This was a so-called ACE soft drink (that is to say, it contains vitamins A, C and E), composed of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent such as citric acid, vitamin mixture (vitamin C, vitamin B3, vitamin E, pantothenic acid, beta-carotene (provitamin A), vitamin B6, vitamin B1, folic acid, biotin, vitamin B12), preservatives (E 242 and E 202), stabilisers (E 440 and E 410), flavouring consisting of flavouring extracts, natural flavouring agents and artificial flavouring. The total fruit content was 12% and the vitamin content of 100 ml accounted for 15%, while vitamin A was 30% of the recommended daily dose. 16 Mineralquelle Zurzach applied for the release for consumption of the beverage as goods of Swiss origin under TARIC code number 2202 1000 00, being waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured. The goods of Swiss origin classified under that tariff heading were to benefit from a preferential zero-rating regime. 17 The Hauptzollamt Singen, on the basis of a report dated 29 December 2008 from the Zolltechnische Prüfungs und Lehranstalt München bei der Bundesfinanzdirektion Südost (Customs Technical Examination and Training Institute Munich, attached to the Federal Finance Directorate South-East), carried out a customs inspection as a result of which it considered that the beverage Quelly Vita 10 fell within TARIC code 2202 90 10 11 concerning fruit or vegetable juices, diluted with water or aerated. 18 On 2 February 2009, the Hauptzollamt Singen issued Mineralquelle Zurzach with an ex-post recovery notice concerning imports of that beverage, made between 6 and 28 February 2006, in the amount of EUR 8 964.91 on the basis of classification of that beverage under TARIC code 2202 90 10 11. After its complaint was unsuccessful, Mineralquelle Zurzach brought an action against that decision before the Finanzgericht (Finance Court) Baden-Württemberg. 19 The national court has doubts as to whether a beverage such as Quelly Vita 10 may be classified under a subheading other than CN 2202 10 00. ECLI:EU:C:2014:2313 5

20 It considers that, since that drink consists mainly of water and sugar and the proportion of added fruit juices is only 12%, that would appear to suggest classification under subheading 2202 1000 of the CN as waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic drinks. According to the national court, the explanatory notes to the CN with regard to subheading 2202 10 00 of the CN are also to that effect. 21 The national court none the less observes that that beverage might also come under tariff heading 2202 90 10 11 of the TARIC, which covers fruit or vegetable juices diluted with water. 22 The national court considers that it follows from the Court s case-law that the classification of goods for customs purposes must be sought in their objective characteristics and properties. Thus, the explanatory notes to the HS and the CN, although not binding in nature, are none the less an important aid in interpreting the tariff headings. 23 It also takes the view that, should the beverage Quelly Vita 10 not come under subheading 2202 10 00 of the CN, the question would arise as to whether it is to be classified under TARIC code 2202 90 10 11 or under TARIC code 2202 90 10 19. 24 It was in those circumstances that the Finanzgericht Baden-Württemberg decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling: (1) Is a non-alcoholic beverage that consists mainly of water but also has 12% fruit juices and contains, in addition to sugar, a vitamin mixture which clearly exceeds the vitamin content, in relation to the proportion of juice, of natural fruit juices, to be classified under subheading 2202 1000 of the [CN]? If the answer to Question 1 is in the negative: (2) Is such a beverage a fruit juice, diluted with water, under code number 2202 90 10 11 of the TARIC? If the answer to Question 1 is in the negative: (3) Is such a product to be classified as goods under code number 2202 90 10 19 of the TARIC? The questions referred for a preliminary ruling 25 Pursuant to Article 99 of the Rules of Procedure, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, give its decision by reasoned order. 26 That provision should be applied in the present case. 27 By its three questions, which should be examined together, the national court is essentially asking whether the CN must be interpreted as meaning that a beverage such as the one at issue in the main proceedings, which is essentially made up of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent, a vitamin mixture, natural and artificial flavouring agents, and with a total fruit content of only 12%, must be classified under subheading 2202 10 00 of that nomenclature or, if not, whether the TARIC must be interpreted as meaning that such a commodity comes under either code 2202 90 10 11 or code 2202 90 10 19 of that tariff. 6 ECLI:EU:C:2014:2313

28 As regards the question whether the characteristics of the commodity imported by Mineralquelle Zurzach, as described in the order for reference, correspond to the totality of the characteristics of subheading 2202 10 00 of the NC, where the Court has before it a request for a preliminary ruling on a matter of tariff classification, 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, in particular since the Court does not necessarily have available to it all of the information which is essential in that regard. In any event, the national court is in a better position to do so (see judgments in Proxxon, C-500/04, EU:C:2006:111, paragraph 23, and Digitalnet and Others, C-320/11, C-330/11, C-382/11 and C-383/11, EU:C:2012:745, paragraph 61). 29 However, in order to give the national court a useful answer which will enable it to effect the tariff classification on which it is asked to adjudicate, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see, to that effect, judgments in Lohmann and Medi Bayreuth, C-260/00 to C-263/00, EU:C:2002:637, paragraph 28, and Pärlitigu, C-56/08, EU:C:2009:467, paragraph 23). 30 In order to answer the questions referred it must be stated, first, that the general rules for the interpretation of the CN provide that the classification of goods is to be determined according to the terms of the headings and any section or chapter notes, the titles of sections, chapters and sub-chapters being provided for ease of reference only (see judgment in Lukoyl Neftohim Burgas, C-330/13, EU:C:2014:1754, paragraph 33). 31 Secondly it should be recalled that it is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the 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 NC and of the notes to the sections or chapters (see, in particular, judgments in Proxxon, EU:C:2006:111, paragraph 21; Rakvere Lihakombinaat, C-140/08, EU:C:2009:667, paragraph 42; and Digitalnet and Others, EU:C:2012:745, paragraph 27 and the case-law cited). 32 As regards the Explanatory Notes to the HS, it should be added that, although they do not have legally binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation, (see, to that effect, judgments in Kloosterboer Services, C-173/08, EU:C:2009:382, paragraph 25, and Agroferm, C-568/11, EU:C:2013:407, paragraph 28). The same is true of the Explanatory Notes of the CN (see, to that effect, judgment in Develop Dr. Eisbein, C-35/93, EU:C:1994:252, paragraph 21, and British Sky Broadcasting Group and Pace, C-288/09 and C-289/09, EU:C:2011:248, paragraph 92). 33 In this case, the wording of heading 2202 of the CN states that it includes waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009. 34 In addition, additional note 1 of Chapter 22 of the CN, referred to by the explanatory notes of the CN relating to subheading 2202 10 00, states that that subheading covers waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, providing they are for direct consumption as a beverage. 35 Moreover, the abovementioned explanatory notes to the CN state that the soft drinks referred to in the explanatory notes to the HS, no 2202, paragraph A, come under subheading 2202 10 00 of the CN. Those explanatory notes to the HS set out a non-exhaustive list of beverages to be classified under that subheading, that is to say, beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavoured with fruit juices or compound extracts, to which citric acid or tartaric acid are sometimes added. According to the explanatory notes to the CN relating to subheading 2202 10 00 the presence of anti-oxidants, vitamins, stabilisers or quinine does not affect classification as a soft drink. ECLI:EU:C:2014:2313 7

36 In the present case, a beverage with a fruit juice content of 12% complies with the definition of the HS explanatory note referring to heading 2202, paragraph A, given that the fruit juice content does not predominate in the beverage, which acquires its taste specifically by the addition of natural and artificial flavourings and from sugar. 37 Conversely, a fruit juice content of 12% cannot justify classification of a beverage under heading 2202 90 10 11 of the TARIC, entitled fruit or vegetable juices diluted with water or aerated. 38 Accordingly, the reply to the questions referred must be that the CN must be interpreted as meaning that a beverage, such as that at issue in the main proceedings, which is essentially made up of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent, a vitamin mixture, natural and artificial flavouring agents and with a total fruit content of 12%, must be classified under subheading 2202 10 00 of that nomenclature. Costs 39 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. On those grounds, the Court (Sixth Chamber) hereby rules: The Combined nomenclature appearing at Annex I of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that a beverage such as that at issue in the main proceedings, which is essentially made up, of water, sugar, concentrated orange, lemon, grape, pineapple, mandarin, nectarine and passion fruit juice, apricot and guava pulp, acidification agent, a vitamin mixture, natural and artificial flavouring agents and with a total fruit content of 12%, comes under subheading 2202 10 00 of that nomenclature. [Signatures] 8 ECLI:EU:C:2014:2313