Important legal notice

61989C0219

European Court reports 1991 Page I-01895

Opinion of the Advocate-General

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Mr President,

Members of the Court,

3. The Commission considers that the product in question cannot be classified under heading No 2009 having regard to the fact that it contains more than 50% sugar. It considers that the contested product should be classified under heading No 2106 "food preparations not elsewhere specified or included ...". I do not share that analysis for the following reasons.

4. It may no doubt be thought that, although no upper limit for sugar is expressly stated in the wording of the heading, there can be a limit beyond which the original character of the orange juice may not be considered as being maintained. I shall return to that. Even so, the 50% limitation suggested by the Commission is far from being convincing.

6. However, the Commission considers that the quantity of sugar contained in the product in question prevents it from being consumed in that state, that is to say, without dilution, even by a consumer having a very sweet tooth, and deduces therefrom that it is therefore not fruit juice within the meaning of heading No 2009.

7. That analysis is not convincing. First, as the appellant in the main proceedings correctly states in its observations, "the decisive criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters". (1)

10. On every assumption, the 50% limit proposed by the Commission, on which it expressed, but only at the oral hearing, some hesitations, appears illogical. If an orange juice "very excessively sweetened" - that is to say to more than 43% - constitutes a "fruit juice ... containing added sugar" within the meaning of the customs classification, on what ground would 50% constitute a threshold level? That limit would be purely arbitrary since it would introduce a difference of tariff classification between two products both equally "too sweet" compared with the product' s normal taste, whereas the clear wording of the heading does not contain any upper limit concerning the quantity of sugar. By allowing fruit juices containing more than 43% added sugar to be classified under heading No 2009 the authors of the Nomenclature exercised a choice, questionable perhaps in view of the current concept of fruit juice or of definitions adopted in other fields than customs law, but in any case free from ambiguity as regards the type of product covered by the heading.

11. In that connection it is not without interest to note that in Hauptzollamt Hamburg-Ericus (2) the Court had to consider a product practically identical to the one whose classification is today under discussion. It was a case of an orange juice which had been declared as having a sugar content of 63%, according to the details provided by Mr Advocate General Warner. (3) At no time did the Commission in its observations, the Advocate General or, apparently, the national administration in the main proceedings question the correctness of classifying the product in question under the former heading No 2007, "fruit juices ... whether or not containing added sugar", (4) which became heading No 2009. What is more, the part of the judgment headed "Facts and procedure" expressly states: "According to the nomenclature in Annex B to Regulation (EEC) No 455/69 of the Council of 11 March 1969 (Official Journal, English Special Edition 1969 (I), p. 103) (5) repeated in the Common Customs Tariff, in respect of the tariff classification for concentrated orange juice ...". (6) A certain importance has to be given to that indication, because, apparently, at the time it was taken for granted that a fruit juice containing a very high sugar concentration certainly constituted an orange syrup, but still, as such, fell under the heading "fruit juices ... whether or not containing added sugar" that is to say the current heading No 2009. It is that solution which, at all events, I suggest that the Court adopt in the present case.

12. Without doubt, and I am conscious of this, the interpretation which I suggest to the Court limits the scope of the requirement that the original character of the product be maintained. In fact, in my opinion that requirement must concern only situations where the quantity of sugar would be such that the orange juice merely confers on the sugar a colour and scent. I am thinking here for example of cases where the product is composed of 90% or more sugar. But the Court does not have to give a ruling on that point and, in any case, it is not the situation arising in the present case.

13. Accordingly I suggest that the question referred by the Bundesfinanzhof for a preliminary ruling should be answered as follows:

"Heading No 2009 of the Common Customs Tariff must be interpreted as meaning that a product composed of 39.6% orange juice and 60.4% sugar falls under the said heading."

(*) Original language: French.

(1) Case 62/77 Carlsen-Verlag GmbH [1977] ECR 2343.

(2) Case 91/74 [1975] ECR 643.

(3) Ibid, p. 653.

(4) See Regulation (EEC) No 950/68 of the Council of 28 June 1968 on the common customs tariff (OJ, English Special Edition 1968 (I), p. 275).

(5) This regulation amended heading 20.07.

(6) Case 91/74, cited above, p. 644.

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