C-53/75
ECLI:EU:C:1975:173
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JUDGMENT OF THE COURT OF 10 DECEMBER 1975 1
Belgian State v Jean Nicolas Vandertaelen and Dirk Leopold Maes (preliminary ruling requested by the Cour de cassation of Belgium)
Case 53/75
Summary
1. Common Customs Tariff — Classification of goods — Decisive criterion
2. Common Customs Tariff — Description of goods — Ice-cream — Concept — Subheadings 18.06 B and 21.07 C — Application
1. The decisive criterion for the customs concept of 'ice-cream' refers to classification of goods must generally products having as their essential be looked for in their objective characteristic that they melt at a characteristics and properties. temperature of approximately 0° C. 2. For the purposes of the application of That concept cannot be applied to subheadings 18.06 B and 21.07 C of products with a fat content exceeding the Common Customs Tariff, the 15 %.
In Case 53/75
Reference to the Court under Article 177 of the EEC Treaty by the Cour de cassation of Belgium for a preliminary ruling in the action pending before that court between
BELGIAN STATE
and
1. JEAN NICOLAS VANDERTAELEN 2. DIRK LEOPOLD MAES
on the interpretation of Regulation (EEC) No 495/69 of the Commission of 18 March 1969, on the classification of goods under subheadings Nos 18.06 D II c) and 21.07 F VII of the Common Customs Tariff (OJ L 67 of 19. 3. 1969,
1 — Language of the Case: Dutch.
JUDGMENT OF 10. 12. 1975 — CASE 53/75
p. 6) and of tariff headings 18.06 B and 21.07 C of the Common Customs Tariff, Regulation (EEC) No 950/68 of the Council of 28 June 1968 (OJ L 172 of 22. 7. 1968, p. 1),
THE COURT
composed of: R. Lecourt, President, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges,
Advocate-General: G. Reischl
Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts of the case, the procedure and been produced, since the goods in the observations submitted under Article question not only cannot be regarded as 20 of the Protocol on the Statute of the ice-cream but according to the analyses Court of Justice of the EEC may be made by the national laboratory of the summarized as follows: Administration of Customs and Excise, they contained no cocoa. According to that analysis the product was composed I — Facts and procedure of approximately 14 % water, 66 % fats and 20 % sucrose together with Between 6 December 1968 and 5 March colouring matter; that mixture at a 1969, a product, originating from a third temperature of 20° C and after 24 hours country, was declared on importation to showed no sign of melting. one of the customs offices in Antwerp under the description 'chocolate- It appears from the findings of the court flavoured consumable ice' in Dutch trying the matter — which found the 'cacaohoudend consumptie-ijs' under defendants guilty — that the goods were cover of an import licence issued in processed and sold as butter oil to respect of ice-cream containing cocoa foreign purchasers. under tariff subheading 18.06 B II b of the Common Customs Tariff. The Cour d'Appel of Brussels, Antwerp Division, although accepting the The importers were prosecuted for correctness of the findings laboratory, importing under this description and it considered that the infringements of the was held that an import licence valid for customs legislation have not been subheading 21.07 F VII b, 1, should have established for the following reasons: at
BELGIUM v VANDERTAELEN
the time of the events in question, there 1969 and more particularly whether was no legal definition of the term 0 this term can refer to products with a 'ice-cream' and it is proper to decide relatively high content in fats, of whether it is obvious to one and all that which milkfats amount to 45 % or the product clearly in no way deserves more but less than 65 % by weight of the description 'ice-cream' so that the total weight of these products, the defendants in their declaration which contain in particular sucrose intentionally put it under a more and water, which do not melt in an favourable heading. According to the ambient temperature of approximately judgment, neither the fat content nor the 0° C and which even in an ambient melting point is a conclusive factor in temperature of 20° C show after 24 this respect and it has not been shown hours no sign of melting, even if that the product either in its original aerated and offered chilled or frozen. form or aerated could not be consumed as a frozen food product having a high In accordance with Article 20 of the fat content, which might pass for Protocol on the Statute of the Court of 'ice-cream'. Justice of the EEC, written observations were submitted by Mr Vandertaelen, The Cour de cassation considers that the represented by Armand d'Hondt, legality of the judgment of the Cour advocate at Brussels, by Mr Maes, by the d'Appel depends on an interpretation of Government of the Kingdom of Community law, since the concept of Belgium, represented by the Minister for 'ice-cream' appearing under subheadings Finance and by the Commission of the 18.06 B and 21.07 C of the Common European Communities, represented by Customs Tariff, is not defined by that its Legal Advisers, J. Bourgeois and A. tariff. Abate, acting as Agents.
By a judgment of 20 May 1975, filed in The Court, after hearing the report of the the Court Registry on 12 June 1975, the Judge-Rapporteur and the views of the Belgian Cour de cassation stayed the Advocate-General decided to open the proceedings and made a reference to the oral procedure without any preparatory Court of Justice of the European inquiry. Communities in accordance with Article 177 of the EEC Treaty in respect of the following questions: II — Written observations sub
1. Whether Regulation No 495/69 of 18 mitted to the Court March 1969 of the Commission of the European Economic Community is On the first question, Mr Vandertaelen applicable to the classification of refers to Article 3 of Regulation No goods imported before it came into 495/69 of 18 March 1969, fixing its entry force, in particular as regards the into force on the third day following that classification of goods imported of its publication. during the period from 6 December 1968 up to and including 5 March In the present case the regulation cannot 1969; even be held applicable because of the 2. What is the definition of the term fact that it regulates the future and 'ice-cream' for the purpose of permanent effects of a previous situation, applying headings 18.06 B and 21.07 the legal situation arising from the C of the Common Customs Tariff disputed imports no longer having any prior to the entry into force of the consequences after 5 March 1969. Regulation No 495/69, in particular during the period from 6 December The question referred for a preliminary 1968 up to and including 5 March ruling is intended therefore to inquire
JUDGMENT OF 10. 12. 1975 — CASE 53/75
whether the regulation in question could content, could be described as 'ice be declared applicable retroactively. cream'.
Generally speaking, the retroactivity of It must be mentioned lastly that despite laws in European law as in the law of the Regulation No 495/69, the customs Member States is very much the administration continues to authorize the exception. As regards, especially, export of a product absolutely identical Regulation No 495/69, retroactivity is with the product in question under the even formally excluded (Article 3) and description 'ice-cream' and under cannot be justified by any other wording heading 18.06 B II b of the Common in this regulation.
Lastly, the nature of Customs Tariff. It is not permissible to this regulation is opposed to retroactive give to the concept of 'ice-cream' a application, since in customs law legal different description according to certainty assumes very special whether it is a matter of an export or an importance. On this point, Mr Van- import. dertaelen relies on the judgment of the Court of Justice of 24 November 1971 in Mr Maes agrees entirely with the Case 30/71, Siemers v Hauptzoll- observations of Mr Vandertaelen. amt Bad Reichenhall [1971] ECR.
The Government of the Kingdom of As to the second question, the principle Belgium considers that given its of legal certainty requires reference to be composition, the disputed product could made only to the state of the law in force never have been regarded as 'ice-cream' at the time the regulation, of which an within the meaning of tariff headings interpretation is requested, was applied. 18.06 B II b and 21.07 C of the At the time of the contested importation, Common Customs Tariff even at the the concept of 'ice-cream' could not be time of the import. defined because of the absence of an
objective criterion. In fact, a proposal for The Commission mentions first of all a directive concerning the approximation that Regulation (EEC) No 495/69 of the of the laws concerning ice-cream and Commission, based on Regulation (EEC) similar edible products, published more No 97/69 of the Council of 16 January than six months after the last 1969, on measures to be taken for the importation, shows clearly that the uniform application of the nomenclature current concept of ice-cream and similar of the Common Customs Tariff (OJ L 14 edible products varies noticeably from of 21. 1. 1969, p. 1 (English Special one Member State to another, without a Edition, 1969 (I), p. 12) was intended to maximum content by weight of fat being define products coming under decisive in the present case. It is possible subheadings 18.06 D II c, and 21.07 F only to refer to the attributes and to the VII and not to define ice-cream. methods of manufacture of the product to be classified and it is the national The definition of the latter products, court, the only one competent in the however, may be deduced from the third present case, which must consider solely recital to the said regulation, according to whether the content by weight of fat is or which: is not such as to cause the product to lose its edible nature. '.
. .subheadings Nos 18.06 B and 21.07 C worded "edible ice-cream" cover only In the present case that question was ices edible in the unaltered state; whereas decided by the Cour de cassation in its ices as commonly sold in the trade do judgment of 13 June 1973 which shows not always contain milkfats; whereas that it is not impossible that the product, when they do contain milkfats the fat in its given form and disregarding its fat content does not usually exceed 15 % by
BELGIUM v VANDERTAELEN
weight; whereas their basic characteristic sugar and milk powder, were established is that they melt when the ambient on a fixed basis (Annex II to Regulation temperature is about 0° C.' No 83/67).
As to the scope of the regulation in Regulation No 950/68 of the Council on question, the Commission claims that the Common Customs Tariff did not these provisions are legislative in nature. alter anything in the nomenclature By virtue of its legal form, the regulation introduced on that subject by Regulation binds the legal and administrative bodies No 83/67. The amendments made of the Member States as from its entry concerned only the numbering of various into force as the authentic interpretation categories of ice-cream. of the Common Customs Tariff and consequently governs the classification of In the present case it is necessary to imported goods as from 22 March 1969. accept the analysis of Regulation No 83/67, since it was a matter of the But, leaving out of account the date of its amount of the variable component.
In entry into force, the Commission fact the amount of the customs duty is considers that the said regulation should identical for the two subheadings under be accepted as a valid means of consideration (here: 18.06 B II b and interpreting the Common Customs Tariff 18.06 D II c), whilst the amount of the for the period prior to its adoption. variable component differs considerably from one subheading to the other. This In the present case, however, the reasoning applies in the same way to regulations in force during the period Chapters 18 and 21 of the Common Customs Tariff. under consideration already allow of a reply to the question of interpretation in The most delicate problem concerns the an exhaustive manner. determination of the percentage of milk fat contained in the ice-cream:
Annex I As to the second question, the to Regulation No 83/67 fixed only the Commission refers to Regulation No minimum limit of this substance 83/67/EEC of the Council, of 18 April ('. . . equal to or greater than 7 %'). 1967 (OJ No 81 of 26. 4. 1967, p. 1597). Subheading 18.06 B II b, referring to ices In fact this regulation introduced the containing the highest percentage of fat concept of 'ice-cream' into Community does not mention a higher limit to this law for the first time and includes a percentage.
sufficient number of factors to allow the correct classification of products coming Annex II to the same regulation, within this class of goods. however, shows that 35 kg of whole milk powder go into the manufacture of For the putting into effect of the system 100 kg of ice-cream coming under of trade for certain processed agricultural subheading 18.06 B II b. According to products, introduced by Regulation No scientific concepts, a quantity of 35 kg of 160/66/EEC of the Council of 27 whole milk powder per 100 kg October 1966 (OJ No 195 of 28 October corresponds to 9·1 % of milkfat.
It is 1966, p. 3361) it appeared necessary to therefore that content which is regarded create specific subheadings for ice-cream, by the legislature as normal for that is to say subheadings No 18.06 B I ice-cream. Even taking account of an and No 21.07 C (Annex I to Regulation extremely wide safety margin (by No 83/67). In order especially to doubling the percentage), it can be stated calculate the 'variable components', the that, within the meaning of the Common quantities of basic agricultural products Customs Tariff, the percentage of the regarded as being used in the said fat contained in ice-creams, does not manufactureof ice-cream, that is to say exceed the level of ± 18 % by weight.
JUDGMENT OF 10. 12. 1975 — CASE 53/75
Annex II to Regulation No 83/67 Committee on Nomenclature, and lastly specifies further, also on a fixed basis, the a proposal for a directive, submitted to quantity of sugar contained in these the Council on 10 December 1970, on ice-creams. These products, according to the approximation of the laws of the the wording of the Common Customs Member States concerning ice-cream (OJ Tariff, are thus distinguished by the C 125 of 13. 10. 1970, p. 8). presence of the two ingredients mentioned, each of them being The Commission is of the opinion that, considered within the limits of the in application of the general rules for the quantities specified. It is therefore interpretation of the nomenclature of the possible to accept, that beyond these Common Customs Tariff Nos 1 and 5, limits, the classification of a product as the products concerned in the present ice-cream is not possible. case do not conform to the criteria of classification under subheadings 18.06 B In order to distinguish these latter and 21.07 C of the Common Customs products from other food preparations Tariff but, on the contrary to the criteria having the same composition, it is relating to subheadings 18.06 D and possible to have recourse to the normal 21.07 F VII.
meaning of the concept of 'edible ice-cream'. From this point of view the This conclusion is in conformity with expression 'edible' applies clearly to the objective of the rules on the system products ready to be eaten as ice-cream, of trade for certain processed agricultural without having to be subjected to products. In fact, the fixed quantities processing or the addition of other specified serve as a basis for the substances. calculation of the variable component affecting agricultural products actually Ice-creams submitted in solid form or as used in the manufacture of an industrial paste have the property of melting at a product and thus replace the agricultural temperature of approximately 0° C levy. which is explained by the large quantity, which is certainly the greater part, of The Commission suggests that the water which they contain. By increasing preliminary questions be answered in the the weight content of fat — for example following manner: up to 65 % — the product can never 1. Regulation No 495/69 of the return to the liquid state at a temperature Commission of 18 March 1969 as an of approximately 0° C, the percentage of obligatory judicial measure is of a water being too low. legislative nature and cannot have retroactive effect. The factors set out already enable the 2. By the expression 'ice-cream for second question referred for a consumption', within the meaning of preliminary ruling to be answered, but, to subheadings 18.06 B and 20.07 C of complete the examination the the Common Customs Tariff is meant Commission next mentions rules laid food preparations of which the solid down after the period of import of the form or paste was obtained by disputed product, as a possible further freezing and which are intended for means of interpretation. consumption in that state; they are characterized by the property of In that respect, the Commission relies on returning to a liquid or semi-liquid the third recital to Regulation No 495/69 state when they are put in a of the Commission, mentioned above, temperature of approximately 0° C, and the Explanatory Notes to Chapters and by a milkfat content not 18 and 21 of the Common Customs exceeding 15 % by weight and in Tariff adopted on 20 March 1970 by the certain cases 20 %.
BELGIUM v VANDERTAELEN
III — Oral Procedure represented by its Legal Advisers, J. Bourgeois and A. Abate, acting as Agents, The Government of the Kingdom of presented oral argument at the hearing Belgium, represented by the Ministry for on 11 November 1975. Finance and assisted in the present case by Mr Henri Bocken, advocate of the The Advocate-General delivered his Ministry for Finance and the Com opinion at the hearing on 2 December mission of the European Communities, 1975.
Law
1 By a judgment of 20 May 1975, received at the Court Registry on 12 June following, the Belgian Cour de cassation, pursuant to Article 177 of the EEC Treaty, referred two questions relating to the interpretation of certain provisions concerning the classification of goods within the Common Customs Tariff.
2 The first question asks whether Regulation No 495/69 of 18 March 1969 of the Commission of the European Economic Community is applicable for the classification of goods imported before it came into force, in particular as regards the classification of goods imported during the period from 6 December 1968 up to and including 5 March 1969.
3 The second question asks what is the definition of the term 'ice-cream' for the purpose of applying headings 18.06 B and 21.07 C of the Common Customs Tariff prior to the entry into force of the Regulation No 495/69, in particular during the period from 6 December 1968 up to and including 5 March 1969 and more particularly whether this term can refer to products with a relatively high content in fats, of which milkfats amount to 45 % or more but less than 65 % by weight of the total weight of these products, which contain in particular sucrose and water, which do not melt in an ambient temperature of approximately 0° C and which even in an ambient temperature of 20° C show after 24 hours no sign of melting, even if aerated and offered chilled or frozen.
4 It appears from the last part of this second question that the possible applicability of Regulation No 495/69 arises only if the concept of 'ice-cream' appearing in the Common Customs Tariff does not include the products
JUDGMENT OF 10. 12. 1975 — CASE 53/75
specified by this question and only if the classification of these products could not be made in accordance with the provisions in force at the time of the import.
5 It is appropriate therefore to consider first the wording of the subheadings in question.
6 Subheading 18.06 B concerns:
Ice-cream:
I. not containing or containing less than 3 % by weight of milkfat
II. with a milkfat content by weight: (a) equal to or greater than 3 % and less than 7 %; (b) equal to or greater than 7 %.
7 Subheading 24.07 C, referring to ice-cream not containing cocoa, is drafted in identical language.
8 The fact that the concept of ice-cream is not defined by the Common Customs Tariff, leads to the supposition that this product is regarded as sufficiently characterized by its very description.
9 The decisive criterion for the customs classification of goods must generally be looked for in their objective characteristics and properties.
10 It cannot be disregarded that ice-cream has the dominant characteristic of melting at a temperature of approximately 0° C, a characteristic which is explained by the high water content in this product and which is, consequently, eliminated in case of a high fat content.
11 Consequently subheadings 18.06 B and 21.07 C show only relatively low fat percentages for ice-cream whilst products with a high fat content are mentioned under the later subheadings of these Chapters.
BELGIUM v VANDERTAELEN
12 The mere fact that these latter products are produced in a refrigerated or frozen state cannot categorize them as 'ice-cream' and justify their classification under subheadings 18.06 B and 21.07 C.
13 Although the Common Customs Tariff gives no details concerning the composition of ice-cream, useful facts in this respect may, however, be found in Regulation No 83/67/EEC of the Council of 18 April 1967 establishing tariff specifications relating to goods covered by Regulation No 160/66/EEC of the Council and prescribing the fixed components applicable to them as well as the quantities of basic products to be taken as having been incorporated in their manufacture (OJ No 81 of 26. 4. 1967, p. 1597).
14 For this purpose the regulation, in Annex II, shows 20 kg of sugar and 35 kg of milk powder per 100 kg of ice-cream for the highest milkfat content mentioned in Annex I (... equal to or greater than 7 %).
15 The nomenclature introduced by this regulation was adopted by Regulation No 950/68 of the Council on the Common Customs Tariff and consequently allows the said basic products to be accepted as possible ingredients of ice-cream within the meaning of the Common Customs Tariff only within the limits of the quantities mentioned.
16 Thus, as the Commission has shown, according to well-established scientific concepts a quantity of 35 kg of whole milk powder per 100 kg of ice-cream corresponds to 9·1 % of milkfat.
17 Even if this last quantity was specified on a fixed basis, that decision by the Community legislature excludes unequivocally only products containing more than 15 % of milkfat from being regarded as ice-cream within the meaning of the Common Customs Tariff.
18 It follows that for the purposes of the application of subheadings 18.06 B and 21.07 C of the Common Customs Tariff the concept of 'ice-cream' refers to products having as their essential characteristic that they melt at a temperature of approximately 0° C and that this concept cannot be applied to products with a milkfat content exceeding 15 %.
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19 Having regard to that conclusion, the first question has lost its purpose and does not require an answer.
Costs
20 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court are not recoverable.
21 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Belgian Cour de cassation, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Belgian Cour de cassation by judgment of 20 May 1975, hereby rules:
For the application of subheadings 18.06 B and 21.07 C of the Common Customs Tariff, the concept of 'ice-cream' refers to products having as their essential characteristic that they melt at a temperature of approximately 0° C. That concept cannot be applied to products with a fat content exceeding 15 %.
Lecourt Donner Mertens de Wilmars
Pescatore Sørensen Mackenzie Stuart O'Keeffe
Delivered in open court in Luxembourg on 10 December 1975.
A. Van Houtte R. Lecourt
Registrar President