(Reference for a preliminary ruling from the Nejvyšší správní soud)

(Common Customs Tariff – Tariff classification – Combined Nomenclature – Headings 2204 and 2206 – Beverage fermented on the basis of fresh grapes – Alcohol content of 15.8% to 16.1% by volume – Addition of corn alcohol and beet sugar during the course of production)

Summary of the Judgment

Common Customs Tariff – Tariff headings – Beverage fermented on the basis of grapes with the addition of corn alcohol and beet sugar during the course of production – Classification under heading 2206 of the combined nomenclature

(Council Regulation No 2658/87, Annex I, position 2206; Commission Regulation No 1719/2005)

Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1719/2005, must be interpreted as meaning that a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles, with an alcohol content of 15.8% to 16.1% by volume, to which beet sugar and corn alcohol have been added during the course of its production, must be classified under heading 2206 of the Combined Nomenclature in Annex I to that regulation.

It is true that the intended use of a product may 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. However, 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.

(see paras 47-48, operative part)

16 December 2010 (*)

(Common Customs Tariff – Tariff classification – Combined Nomenclature – Headings 2204 and 2206 – Beverage fermented on the basis of fresh grapes – Alcohol content of 15.8% to 16.1% by volume – Addition of corn alcohol and beet sugar during the course of production)

In Case C‑339/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Nejvyšší správní soud (Czech Republic), made by decision of 2 July 2009, received at the Court on 24 August 2009, in the proceedings

Celní ředitelství Olomouc,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, J.J. Kasel, A. Borg Barthet, E. Levits and M. Safjan (Rapporteur), Judges,

Advocate General: V. Trstenjak,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 9 September 2010,

after considering the observations submitted on behalf of:

– Skoma-Lux s. r. o., by M. Filouš, advokát,

– the Celní ředitelství Olomouc, by M. Brázda, acting as Agent,

– the Czech Government, by M. Smolek, acting as Agent,

– the Greek Government, by G. Kanellopoulos, Z. Chatzipavlou and V. Karra, acting as Agents,

– the European Commission, by L. Bouyon, L. Jelínek and M. Šimerdová, 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 headings 2204 and 2206 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), as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2003 L 286, p. 1) (‘the CN’).

The reference has been made in proceedings between Skoma-Lux s. r. o. (‘Skoma‑Lux’) and Celní ředitelství Olomouc (Customs Directorate, Olomouc) concerning the CN classification of goods labelled as ‘red dessert wine Kagor VK’, imported into the Czech Republic.

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.

(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’.

Irish law

–by freezing, or

–by the addition during or after fermentation:

–of a product derived from the distillation of wine, or

–of concentrated grape must or, in the case of certain quality liqueur wines appearing on a list to be adopted of wines for which such practice is traditional, of grape must concentrated by direct heat, which, apart from this operation, corresponds to the definition of concentrated grape must, or

–of a mixture of these products.

…’

The dispute in the main proceedings and the question referred for a preliminary ruling

13On 18 January 2006, Skoma-Lux submitted to the Celní úřad Olomouc (Olomouc Customs Office) a declaration for free circulation of goods labelled as ‘red dessert wine Kagor VK’. Those goods, from Moldavia, were declared under heading 2204 of the CN.

14During an audit of that customs declaration, the Celní úřad Olomouc took a sample of those goods in order to identify the origin of the alcohol, sugar and water contained in them. It is apparent from the analyses carried out that that sample contained at least 25% of sugar of an origin other than grape juice, probably from a mixture of grape juice, beet sugar and sugar resulting from the hydrolysis of corn starch. According to those analyses, those goods were produced from sweetened grape juice, to which corn alcohol was added, which arrested the fermentation process.

15By decision of 28 November 2006, in the light of those analyses, the Celní úřad Olomouc considered that the goods at issue in the main proceedings should be classified under heading 2206 of the CN, on the ground that they were not liqueur wine since, in the course of their manufacture, they had been fortified, not with products obtained by the distillation of wine, but by alcohol of another origin.

16On 5 April 2007, the Celní ředitelství Olomouc dismissed the action brought by Skoma-Lux against that decision of the Celní úřad Olomouc.

17On 4 December 2007, following an action brought by Skoma-Lux, the Krajský soud v Ostravě (Regional Court, Ostrava) set aside that decision of the Celní ředitelství Olomouc and referred the case back to it for further consideration. The Krajský soud v Ostravě held that the goods at issue should be classified under heading 2204 of the CN, noting in particular that the addition of sugar or alcohol, whatever their origin, did not result in a change in the fundamental features of those goods, namely that they were produced from fresh grapes.

18The Celní ředitelství Olomouc appealed on a point of law against the decision of the Krajský soud v Ostravě before the Nejvyšší správní soud (Supreme Administrative Court), which held that the goods at issue in the main proceedings should be classified under heading 2206 of the CN. As it was established that those goods contained corn alcohol, they were not exclusively of grape origin.

19Taking the view, however, that the outcome of the dispute before it required an interpretation of the relevant European Union legislation, the Nejvyšší správní soud decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must goods labelled as “red dessert wine Kagor VK”, contained in 0.75 litre bottles with an alcohol content of 15.8% – 16.1% by volume, to which beet sugar and corn alcohol have been added during their manufacture, those substances not originating from fresh grapes, be classified under heading 2204 or heading 2206 of the [CN]?’

The question referred for a preliminary ruling

Admissibility

20In its observations, Skoma-Lux claims, in essence, that the features of red dessert wine Kagor VK do not correspond to those of the goods described in the question referred for a preliminary ruling. According to Skoma-Lux, that wine is obtained by the fermentation of grape must, which is arrested by the addition of wine alcohol or distillate of wine in order to achieve the necessary alcohol content.

21In that regard, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; and Joined Cases C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07 Stoß and Others [2010] ECR I‑0000, paragraph 51).

22According to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see, inter alia, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22 and case-law cited).

23Furthermore, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria the implementation of 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. However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see, inter alia, Case C‑56/08 Pärlitigu [2009] ECR I‑6719, paragraph 23 and case-law cited).

24Consequently, as the Commission contends, it is for the Court to reformulate the question which is referred to it so that it relates to resolving the question whether a beverage fermented on the basis of fresh grapes, sold in 0.75 litre bottles, with an alcoholic content of 15.8% to 16.1% by volume, to which are added in the course of its production beet sugar and corn alcohol (‘the beverage at issue’), must be classified under heading 2204 or heading 2206 of the CN.

The application of Regulation (EC) No 600/2006

25In its order for reference, the Nejvyšší správní soud refers to Commission Regulation (EC) No 600/2006 of 18 April 2006 concerning the classification of certain goods in the combined nomenclature (OJ 1999 L 106, p. 5). That regulation, adopted on the basis of Article 9(1)(a) of Regulation No 2658/87, which empowers the Commission to clarify the contents of a tariff heading, classifies a product with the features of the beverage at issue under heading 2206 of the CN.

26In that regard, the Commission states in its observations that that regulation was adopted following different tariff classifications carried out by the customs authorities of the Member States with regard to red dessert wine Kagor VK.

27However, it follows from settled case-law that a regulation specifying the conditions for classification in a tariff heading or subheading is of a legislative nature and cannot have retroactive effect (see, inter alia, Case C-479/99 CBA Computer [2001] ECR I‑4391, paragraph 31, and Case C-403/07 Metherma [2008] ECR I‑8921, paragraph 39).

28According to the first recital in the preamble to Regulation No 600/2006, that regulation was adopted in order to ensure uniform application of the CN. It is, nevertheless, not disputed that that regulation entered into force on 9 May 2006, that is to say after the declaration for free circulation of the goods at issue in the main proceedings was submitted, and that it was not given any retrospective effect.

29In those circumstances, Regulation No 600/2006 is not applicable to the dispute in the main proceedings. The question referred for a preliminary ruling must therefore be examined in the light of Regulation No 2658/87, as amended by Regulation No 1719/2005.

Substance

Observations submitted to the Court

30Skoma-Lux claims that the particular organoleptic characteristics of the beverage at issue, as well as its intended use, correspond to those of goods classified under heading 2204 of the CN. In support of that, the customs authorities of several Member States issued binding tariff information relating to the classification of red dessert wine Kagor VK under that heading.

31The Celní ředitelství Olomouc considers that, in accordance with the HSEN, that beverage must be classified under heading 2206 of the CN since it contains added alcohol with an origin other than the distillation of wine.

32The Czech Government states that the alcohol contained in the beverages classified under heading 2204 of the CN must derive exclusively from the fermentation of grapes. Since the beverage at issue contains to some extent alcohol of an origin other than wine, it comes under heading 2206 of the CN, which includes all fermented beverages which cannot be classified under other headings of Chapter 22 of the CN.

33The Greek Government considers that the beverage at issue comes under heading 2206 of the CN. First, with regard to additional note 5 to Chapter 22 of the CN, it could not be classified under heading 2204 to the extent that the ethyl alcohol used for its production does not derive from the distillation of wine. Secondly, heading 2206 of the CN includes beverages for which the addition of corn ethyl alcohol is permitted, on condition that the essential character of the basic product is maintained, which would be the case for that beverage.

34The Commission is of the opinion that the HSEN does not preclude the addition of alcohol not derived from grapes to wine. Therefore, the beverage at issue should, in principle, be classified under heading 2204 of the CN. However, although, by the addition, during the course of the production, of beet sugar and corn alcohol, the character of the beverage fermented on the basis of fresh grapes was altered to the extent that the features of the product diverge clearly from the organoleptic and chemical properties defined by the international or national norms for products typical of heading 2204 of the CN, and in particular where at least half of the actual alcoholic strength by volume of the beverage does not derive from fresh grapes, it is necessary, according to the Commission, to classify the beverage at issue under heading 2206 of the CN. It is for the competent authorities of the Member State concerned to assess the extent of that divergence.

The Court’s reply

35It is settled case-law that, 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 Case C‑370/08 Data I/O [2010] ECR I‑0000, paragraph 29).

36It should also be recalled that both the notes which precede the chapters of the Common Customs Tariff and the HSEN are important means of ensuring the uniform application of that tariff and as such may be regarded as useful aids to its interpretation (see, inter alia, Case C‑338/95 Wiener SI [1997] ECR I‑6495, paragraph 11, and Case C‑123/09 Roeckl Sporthandschuhe [2010] ECR I‑0000, paragraph 29).

37In the present case, the wording of heading 2204 of the HS mentions ‘wine of fresh grapes, including fortified wines’. The HSEN relating to that heading state that, for the wines of fresh grapes, the wine classified under that heading is exclusively the final product of the alcoholic fermentation of the must of fresh grapes.

38Among those wines of fresh grapes, heading 2204 includes liqueur wines, also called dessert wines, in relation to which it is not disputed that the alcoholic strength by volume, stated in additional note 5(c) to Chapter 22 of the CN, corresponds to that of the beverage at issue. It is also not disputed that that beverage does not fulfil the conditions imposed by additional notes 5(a) and (b), which concern respectively grape must with fermentation arrested by the addition of alcohol and wine fortified for distillation.

39Furthermore, additional note 5(c) to Chapter 22 of the CN authorises, for liqueur wines, during or after fermentation, the addition solely of a product derived from the distillation of wine, or from concentrated grape must, or from a mixture of those products.