(References for a preliminary ruling from the Finanzgericht Düsseldorf)

(Common Customs Tariff – Regulation (EEC) No 2658/87 – Combined Nomenclature – Tariff classification – Validity – Additional note – Apple juice concentrate)

Summary of the Judgment

Common Customs Tariff – Tariff headings – Explanatory notes to the Combined nomenclature

(Council Regulation No 2658/87; Commission Regulations No 1776/2001, No 2031/2001 and No 1810/2004)

Additional Note 5(b) to Chapter 20 of Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulations No 1776/2001, No 2031/2001 and No 1810/2004, is invalid to the extent that it excludes natural apple juice concentrate from heading 2009.

The broad logic of subheading 2009 79 clearly suggests that natural apple juice concentrates, of a Brix value slightly below 67, have not lost their character as fruit juices, contrary to what is stated in that note. That note excludes apple juice concentrates by means of a notional calculation of the added sugar content, giving a result of over 50% by weight, whereas apple juice concentrates, which have undergone water extraction and therefore have high Brix values, retain their original character. Since there is no sugar added and the high level of added sugar, giving a result of over 50% by weight, is produced solely by the concentration brought about by the extraction of water, the Additional Note at issue definitely amends the content of the tariff headings at issue by excluding apple juice concentrates from heading 2009, thereby exceeding the powers which Article 9 of Regulation No 2658/87 confers upon the Commission.

(see paras 40-42, operative part)

29 October 2009 (*)

(Common Customs Tariff – Regulation (EEC) No 2658/87 – Combined Nomenclature – Tariff classification – Validity – Additional note – Apple juice concentrate)

In Joined Cases C‑522/07 and C‑65/08,

REFERENCES for a preliminary ruling under Article 234 EC from the Finanzgericht Düsseldorf (Germany), made by decisions of 8 November 2007 and 12 February 2008, received at the Court on 22 November 2007 and 18 February 2008, in the proceedings

Hauptzollamt Düsseldorf (C‑522/07)

Hauptzollamt Krefeld (C‑65/08),

THE COURT (Eighth Chamber),

composed of G. Arestis (Rapporteur), acting as President of the Eighth Chamber, J. Malenovský and T. von Danwitz, Judges,

Advocate General: E. Sharpston,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 14 May 2009,

after considering the observations submitted on behalf of:

– Dinter GmbH, by H. Bleier, Rechtsanwalt,

– Europol Frost-Food GmbH, by A. Erben, Rechtsanwalt,

– the Commission of the European Communities, by G. Wilms and A. Sipos, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

2009 79 93 - - - - - With an added sugar content not exceeding 30% by weight

2009 79 99 - - - - - Not containing added sugar’.

12At the times material to the main proceedings, Additional Note 5 to Chapter 20 of the CN had been amended on a number of occasions.

13In accordance with Regulation No 2388/2000, that note states:

‘The added sugar content of products classified under heading No 2009 corresponds to the “sugar content” less the figures given hereunder, according to the kind of juice concerned:

–lemon or tomato juice: 3,

–apple juice: 11,

–grape juice: 15,

–other fruit or vegetable juices, including mixtures of juices: 13.’

14Commission Regulation (EC) No 1776/2001 of 7 September 2001 amending Annex I to Regulation No 2658/87 (OJ 2001 L 240, p. 3) subsequently added, to Chapter 20 of the CN, Additional Note 5(b) which provides:

‘The fruit juices with added sugar, of a density not exceeding 1,33 g/cm³ at 20 °C and containing less than 50% by weight of fruit juices in their natural state obtained from fruits or by dilution of concentrated juice, lose their original character of fruit juices of heading No 2009.’

15Regulation No 2031/2001 amended Additional Note 5(b) to read as follows:

‘The fruit juices with added sugar, of a Brix value not exceeding 67 and containing less than 50% by weight of fruit juices in their natural state obtained from fruits or by dilution of concentrated juice, lose their original character of fruit juices of heading 2009.’

16In Regulation No 1810/2004, Additional Note 5 provides:

‘(a) The added sugar content of products of heading 2009 corresponds to the “sugar content” less the figures given hereunder, according to the kind of juice concerned:

–lemon or tomato juice: 3,

–grape juice: 15,

–other fruit or vegetable juices, including mixtures of juices: 13.

(b) The fruit juices with added sugar, of a Brix value not exceeding 67 and containing less than 50% by weight of fruit juices in their natural state obtained from fruits or by dilution of concentrated juice, lose their original character of fruit juices of heading 2009.’

17Additional Note 5(b) to Chapter 20 of the CN was amended recently by Commission Regulation (EC) No 360/2008 of 18 April 2008 (OJ 2008 L 111, p. 9) as follows:

‘5. The following shall be applied to the products as they are presented:

…

(b) the fruit juices with added sugar, of a Brix value not exceeding 67 and containing less than 50% by weight of fruit juices in their natural state obtained from fruits or by dilution of concentrated juice, lose their original character of fruit juices of heading 2009.

Point (b) shall not apply to concentrated natural fruit juices. Consequently, concentrated natural fruit juices are not excluded from heading 2009.’

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C-522/07

18On 27 October 2005, the competent customs office accepted that apple juice concentrate imported by Dinter, which did not contain additional sugar and was of a Brix value of 66,8, was to be classified under subheading 2009 79 99 of the CN. The apple juice had merely undergone water extraction.

19By decision of 15 March 2006, the Hauptzollamt Düsseldorf claimed post‑clearance recovery of customs duties relating to the apple juice imported by Dinter on the ground that, pursuant to Additional Notes 2(a), 5(a) and 5(b) in Chapter 20 of the CN, imported apple juice which has lost its original character of fruit juice did not come under heading 2009, but under subheading 2106 90 98 of the CN.

20Dinter contested that decision before the Finanzgericht Düsseldorf (Dusseldorf Finance Court), without prior administrative proceedings. The Hauptzollamt Düsseldorf consented to that form of action.

21In those circumstances, the Finanzgericht Düsseldorf decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

‘1. Is Additional Note 5(b) to Chapter 20 of the [CN] to be interpreted as meaning that the term “fruit juices with added sugar” also refers to fruit juices to which no sugar has actually been added, but whose added sugar content is calculated mathematically in accordance with Additional Note 5(a) to Chapter 20 of the [CN]?

3. If both the preceding questions are answered in the affirmative, is Additional Note 5(b) to Chapter 20 of the [CN] valid?’

Case C-65/08

22Between 13 November 2001 and 11 October 2002, Europol imported apple juice concentrate of a Brix value of 65, declaring the goods under subheading 2009 70 30 of the CN in 2001 and under subheading 2009 79 19 of the CN in 2002.

23By notice of 14 August 2003, the Hauptzollamt Krefeld, taking the view that pursuant to Additional Note 5 to Chapter 20 of the CN the imported apple juice concentrate had lost its character of fruit juice under heading 2009 and had to be assigned to subheading 2106 90 98 of the CN, claimed post‑clearance recovery of the related customs duties.

24On 15 March 2005, Europol’s administrative appeal against that notice was dismissed as unfounded.

25The applicant applied to the Finanzgericht Düsseldorf for annulment of the decision dismissing its administrative appeal.

26The Finanzgericht Düsseldorf decided, on 12 February 2008, to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘Is Additional Note 5(b) to Chapter 20 of the [CN], as amended by Regulations (EC) Nos 2388/2000 and 2031/2001, valid?’

27By order of the President of the Court of 27 June 2008, Case C‑522/07 and Case C‑65/08 were joined for the purposes of the oral procedure and the judgment.

The questions referred for a preliminary ruling

28By its questions, which it is appropriate to deal with together, the referring court asks, in essence, whether Additional Note 5(b) to Chapter 20 of the CN, as amended by Regulations Nos 1776/2001, 2031/2001 and 1810/2004, is valid. Specifically, it asks whether that note must be interpreted as meaning that the concept of fruit juice containing added sugar also covers fruit juice concentrates not containing added sugar, and whether the expression ‘obtained from fruits or by dilution of concentrated juice’ refers to all fruit juices in their natural state, however they may be presented.

29It should be borne in mind from the outset that according to settled case‑law, 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 CN and in the section or chapter notes (see, inter alia, Case C‑142/06 Olicom [2007] ECR I‑6675, paragraph 16 and the case‑law cited, and Case C‑362/07 Kip Europe and Others [2008] ECR I‑0000, paragraph 26).

30In that regard, both the notes to the chapters of the CN and the explanatory notes to the HS are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (see Case C‑11/93 Siemens Nixdorf [1994] ECR I‑1945, paragraph 12; Case C‑382/95 Techex [1997] ECR I‑7363, paragraph 12; Case C‑339/98 Peacock [2000] ECR I‑8947, paragraph 10; and Olicom, paragraph 17).

31The content of those notes must therefore be in conformity with the provisions of the CN and may not alter the meaning of those provisions (see, inter alia, Case C‑280/97 ROSE Elektrotechnik [1999] ECR I‑689, paragraph 23; Case C‑42/99 Eru Portuguesa [2000] ECR I‑7691, paragraph 20; and Case C‑495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 48).

32It is appropriate to note in that regard that, according to settled case‑law, the Council has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures mentioned in Article 9(1)(a), (b), (d) and (e) of Regulation No 2658/87, such as additional notes, does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS – established by the Convention on the HS – whose scope the Community has undertaken, under Article 3 thereof, not to modify (Case C‑267/94 France v Commission [1995] ECR I‑4845, paragraphs 19 and 20, and Case C‑15/05 Kawasaki Motors Europe [2006] ECR I‑3657, paragraph 35).

33In the present cases, it is therefore necessary to determine whether, by adopting Additional Note 5(b) in Regulations Nos 1776/2001, 2031/2001 and 1810/2004, the Commission amended heading 2009 7 of the NC, thereby exceeding the limits of the powers conferred upon it under Article 9 of Regulation No 2658/87.

34Additional Note 5(b) to Chapter 20 of the CN, in the version applicable at the times material to the main proceedings, provides that fruit juices with added sugar, of a Brix value not exceeding 67, containing less than 50% by weight of fruit juices in their natural state obtained from fruits or by dilution of concentrated juice, lose their original character of fruit juices under heading 2009. It should be noted that a density exceeding 1,33 g/cm³ at 20 °C corresponds to the Brix value 67 and, accordingly, the substantive content of Additional Note 5(b) consequent upon Regulations Nos 1776/2001, 2031/2001 and 1810/2004 respectively is the same. In that regard, it is not in dispute that, pursuant to that note, fruit juice concentrates with a Brix value slightly below 67 are excluded from heading 2009.

35The applicants in the main proceedings have claimed that, according to the wording of the tariff lines for heading 2009, the fruits’ own sugar content is not limited. They argue that in the present cases, the national authorities, by applying Additional Note 5(b) to Chapter 20 of the CN, made a notional calculation of the added sugar content. The imported apple juice concentrate contained 100% by weight of fruit juices and had undergone no processing other than water extraction, which had no effect on the original character of fruit juice. Thus they claim that that note is not applicable to apple juice concentrate containing no additional sugar. Furthermore, the HS does not provide that apple juice concentrates, of a Brix value slightly below 67, are to be excluded from heading 2009.

36The Commission argues in Case C‑522/07 that the purpose of Additional Note 5(b) to Chapter 20 of the CN is to exclude goods which, because of their higher sugar content, have lost their original character of fruit juices. In accordance with recitals 1 and 5 in the preamble to Regulation No 1776/2001, the aim of that regulation – which is to exclude goods with a natural fruit juice content of less than 50% by weight – suggests, according to the Commission, that that note should be interpreted as meaning that the method for calculating the additional sugar is to be strictly mathematical.

According to the Commission, Additional Note 5(b) to Chapter 20 of the CN is applicable to all types of fruit juice, however they may be presented, and therefore to apple juice concentrates. However, the way in which heading 2009 is structured, as well as the settled case‑law according to which a fruit juice retains its original character of fruit juice by reason of its smell and its taste, render that note inapplicable in cases such as the disputes before the referring court, where the goods in question retain their character of apple juice by reason of their smell and their taste.

38Furthermore, in Case C‑65/08, the Commission admits that, by adopting Additional Note 5(b) to Chapter 20 of the CN, it exceeded the powers conferred upon it under Article 9 of Regulation No 2658/87. For that reason, the Commission has amended that note by adopting Regulation No 360/2008 and by adding a new provision which states that point (b) of that note does not apply to natural fruit juice concentrates.

39It should be noted at the outset that heading 2009, as amended by Regulations Nos 2388/2000, 2031/2001 and 1810/2004, covers apple juice concentrate in both the HS and the CN. Regulations Nos 2031/2001 and 1810/2004 lay down identical tariff lines for the subheadings which come within the subheading ‘Apple juice’, and include the provision in question, Additional Note 5(b) to Chapter 20 of the CN. Regulation No 2388/2000 does not contain that note and uses the criterion of a ‘density exceeding 1,33 g/cm³ at 20 °C’, which corresponds to the Brix value 67. Thus the distinctions made in the tariff headings laid down in Regulation No 2388/2000 are analogous to those made in Regulations Nos 2031/2001 and 1810/2004.

40In the descriptions of the various types of apple juice coming under heading 2009, a distinction is made between goods classified under subheading 2009 71, of a Brix value not exceeding 20, and goods coming under sub‑heading 2009 79 ‘Other’. Subheading 2009 79 covers both categories of apple juice: those of a Brix value exceeding 67, and those of a Brix value exceeding 20 but not exceeding 67. The two subheadings 2009 71 and 2009 79 contain subcategories with the description ‘not containing added sugar’. Neither the wording of heading 2009 nor the way in which it is structured precludes it from applying to apple juice concentrates with specific Brix values.

41Consequently, the broad logic of subheading 2009 79 clearly suggests that natural apple juice concentrates, of a Brix value slightly below 67, have not lost their character as fruit juices, contrary to what is stated in the versions at issue of Additional Note 5(b) to Chapter 20 of the CN, which excludes those juices from that subheading. That note excludes apple juice concentrate by means of a notional calculation of the added sugar content, giving a result of over 50% by weight. The apple juice concentrates in question, which have undergone water extraction and therefore have high Brix values, retain their original character. In these circumstances, there is no sugar added. The high level of added sugar, giving a result of over 50% by weight, is produced solely by the concentration brought about by the extraction of water. In consequence, by excluding apple juice concentrates from heading 2009, Additional Note 5(b) to Chapter 20 of the CN definitely amends the content of the tariff headings at issue, thereby exceeding the powers which Article 9 of Regulation No 2658/87 confers upon the Commission.

42In the light of the foregoing considerations, it must be held that Additional Note 5 to Chapter 20 of the CN, as amended by Regulations Nos 1776/2001, 2031/2001 and 1810/2004, is invalid to the extent that it excludes natural apple juice concentrate from heading 2009.

Costs

43Since 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:

Additional Note 5(b) to Chapter 20 of 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, as amended by Commission Regulations (EC) No 1776/2001 of 7 September 2001, (EC) No 2031/2001 of 6 August 2001 and (EC) No 1810/2004 of 7 September 2004, amending Annex I to Regulation No 2658/87, is invalid to the extent that it excludes natural apple juice concentrate from heading 2009.

[Signatures]

* * *

(*1) Language of the case: German.