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

(Common Customs Tariff – Tariff classification – Combined Nomenclature – Dried vegetables (garlic bulbs) from which not all moisture has been removed)

Summary of the Judgment

Common Customs Tariff – Tariff headings – Dried garlic bulbs from which not all moisture has been removed

(Council Regulation No 2658/87, Annex I; Commission Regulation No 1810/2004)

The Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1810/2004, must be interpreted as meaning that garlic which has undergone an intensive drying process in accordance with a specific treatment as a result of which all, or almost all, of the moisture in the product is removed comes under tariff subheading 0712 90 90 of the Combined Nomenclature, but that partially dried garlic which retains the properties and characteristics of fresh garlic comes under tariff subheading 0703 20 00 of the Combined Nomenclature.

In order to classify garlic bulbs under heading 0712, the process of drying the garlic must give rise to substantial and irreversible changes, with the result that the product is no longer in the natural state.

Therefore, the removal of water must substantially change the properties and objective characteristics of the product in such a way that that change results in classification under a tariff heading other than heading 0703, which covers fresh or chilled vegetables.

(see paras 25-26, 35, operative part)

28 October 2010 (*)

(Common Customs Tariff – Tariff classification – Combined Nomenclature – Dried vegetables (garlic bulbs) from which not all moisture has been removed)

In Case C‑423/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 2 October 2009, received at the Court on 29 October 2009, in the proceedings

X BV,

THE COURT (Fifth Chamber),

composed of E. Levits (Rapporteur), acting as President of the Chamber, M. Safjan and M. Berger, Judges,

Advocate General: J. Mazák,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 September 2010,

after considering the observations submitted on behalf of:

– X BV, by N.J. Helder, M. Chin-Oldenziel and G. Danilović, advocaten,

– the Netherlands Government, by C. Wissels and M. de Ree, acting as Agents,

– the United Kingdom Government, by S. Hathaway, acting as Agent, and by K. Beal, Barrister,

– the European Commission, by L. Bouyon and W. Roels, acting as Agents,

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

gives the following

This reference 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’).

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 legislation

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.

(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.

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’.

Following that process, the amount of residual moisture in the vegetables must be insignificant, for example, as the Commission suggested at the hearing, not exceeding 10%.

22X cites Case 120/75 Riemer [1976] ECR 1003 in support of its line of argument which seeks to establish that, when garlic bulbs are dried to a certain degree, they cannot be classified as ‘fresh’ garlic or ‘chilled’ garlic under subheading 0703 20 00, and that even partially dried garlic comes under subheading 0712 90 90.

23However, in Riemer, the Court examined the difference between ‘fresh’ berries and ‘frozen’ berries. That judgment therefore relates to goods which come under a different chapter and which have undergone treatment other than drying.

24Furthermore, in that judgment, the Court held that the characteristics of the berries which had been subjected to the freezing process underwent certain irreversible changes as a result of that very process, in particular changes to the structure of the flesh, with the result that they were no longer in the natural state, even after they had started to thaw or had thawed out (see Riemer, paragraph 4).

25By analogy, in order to classify garlic bulbs under heading 0712, the process of drying the garlic must give rise to substantial and irreversible changes, with the result that the product is no longer in the natural state.

26Therefore, the removal of water must substantially change the properties and objective characteristics of the product in such a way that that change results in classification under a tariff heading other than heading 0703, which covers fresh or chilled vegetables.

27Consequently, partially dried garlic which retains the properties and characteristics of fresh garlic must be classified under tariff heading 0703 and not under heading 0712.

28Moreover, the fact that the partially dried garlic was imported in a chilled state indicates that the drying did not remove all, or almost all, of the moisture in the product, since dehydration is a method of preservation which obviates the need to preserve the dehydrated products at temperatures below 0° C, as the Commission points out in its observations.

29The United Kingdom Government states in its observations that garlic in the form of whole bulbs or cloves cannot be sufficiently dried, in contrast to broken or powdered garlic.

30In that regard, it should be borne in mind that the explanatory note to the HS concerning heading 0712 states that ‘[t]he heading also covers dried vegetables, broken or powdered, such as … garlic …, generally used either as flavouring materials or in the preparation of soups’.

31It follows that garlic classified under heading 0712 is generally in broken or powdered form. However, the wording of heading 0712 of the CN – ‘Dried vegetables, whole, cut, sliced, broken or in powder, but not further prepared’ – does not expressly preclude whole garlic bulbs or cloves from also coming under that heading if they are sufficiently dried, even if such a product is not widely marketed.

32In its observations, the Commission suggested that the length of time for which they are preserved should be an additional criterion for the classification of garlic bulbs, since only garlic which has been completely dried can be preserved for a long period, whereas fresh or chilled garlic necessarily can be preserved only for a shorter period.

33In that regard, it is, admittedly, true that preservation over a long period may constitute an additional indicator as to the degree to which moisture has been removed from the garlic for its classification under heading 0712 as a dried vegetable, in contrast to fresh or chilled garlic.

34However, it must also be held that headings 0703 and 0712 of the CN do not include any reference to preservation as a classification criterion, from which it must be concluded that the length of time for which a product is preserved has itself no effect on its classification for customs purposes (see, by analogy, Case 40/88 Weber [1989] ECR 1395, paragraph 16).

35In the light of the foregoing, the answer to the question referred is that the CN in Annex I to Regulation No 2658/87 must be interpreted as meaning that garlic which has undergone an intensive drying process in accordance with a specific treatment as a result of which all, or almost all, of the moisture in the product is removed comes under tariff subheading 0712 90 90 of the CN, but that partially dried garlic which retains the properties and characteristics of fresh garlic comes under tariff subheading 0703 20 00 of the CN.

Costs

36Since 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 (Fifth Chamber) hereby rules:

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, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004, must be interpreted as meaning that garlic which has undergone an intensive drying process in accordance with a specific treatment as a result of which all, or almost all, of the moisture in the product is removed comes under tariff subheading 0712 90 90 of the Combined Nomenclature, but that partially dried garlic which retains the properties and characteristics of fresh garlic comes under tariff subheading 0703 20 00 of the Combined Nomenclature.

[Signatures]

*

Language of the case: Dutch.