C-64/81

HAUPTZOLLAMT [Principal Customs Office] GRONAU (Federal Republic of Germany),

on the interpretation of the concept of "edible ices ... suitable for consumption" appearing in the third indent of Article 6 (1) (c) of Regulation (EEC) No 1259/72 of the Commission of 16 June 1972 on the disposal of butter at a reduced price to certain Community processing undertakings (Official Journal, English Special Edition 1972 (II), p. 559), as amended by Regulation (EEC) No 2815/72 of the Commission of 22 December 1972 (Official Journal, English Special Edition 1972 (30-31 December), p. 5) and as last amended by Regulation (EEC) No 2819/74 of the Commission of 8 November 1974 (Official Journal L 301, p. 21),

THE COURT (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: G. Reischl Registrar: H . A. Rühl, Principal Administrator

gives the following

I — Facts and procedure whether it conformed with the third indent of Article 6 (1) (c) of Regulation No 1259/72 as amended by Regulation No 2815/72. On 27 January and 4, 11 and 14 Fe- bruary 1975 the plaintiff in the main action, a Belgian company, applied to Under that provision the butter may be the Zollamt [Customs Office] Aachen- processed only into Autobahn-Süd for customs clearance for 80 007.5 kilograms of re-solidified butter which it had bought under the procedure laid down by Regulation No 1259/72 "powder for the preparation of edible and exported from Belgium into the ices falling within subheadings Nos ex Federal Republic of Germany. The 18.06 D or ex 21.07 F of the Common German purchaser, Otto Suwelack Customs Tariff, of a milkfat content of Nachfolger KG, wished to use that less than 32 % and suitable for butter to make edible ices and placed it consumption without any treatment under customs control. On the basis of other than the addition of water and that declared intended use the Zollamt refrigeration". levied the German rate of monetary compensation, reduced by 50 %, making DM 37 927.09 in toul in accordance On the strength of those two institutions' with Article 20 (a) of Regulation No reports the Zollamt Coesfeld, which, 1259/72 as amended by Regulation No according to the Finanzgericht, was 1570/74 of the Commission of 21 June responsible for customs control, came to 1974 (Official Journal L 167, p. 29) the view that the re-solidified butter had amending Regulation (EEC) No not been used for the declared purpose 1259/72 and No 218/74 as regards the because edible ices suitable for monetary compensatory amounts appli- consumption could not be made from the cable to butter sold at a reduced price to powder under the required conditions certain Community processing under- and therefore by a corrective notice takings. dated 18 March 1976 it demanded an additional payment of monetary compensation amounting to DM The final product manufactured by that 37 918.80. German company, a powder for the preparation of edible ices, was analysed by the Zolltechnische Prüfungs- und The Finanzgericht states that the experts' Lehranstalt München [Customs Labora- reports found that the powder when tory and Training College, Munich] and made up did not constitute an edible the Institut für Chemie der Bundesanstalt ice which came up to consumer für Milchforschung Kiel [Chemistry expectations. According to the Chemistry Institute of the Federal Milk Research Institute, Kiel, "if their intended use had Establishment, Kiel] in order to check not been declared the powders would

" 1 . What properties must be possessed by 'edible ices ... suitable for The plaintiff in the main action lodged consumption' within the meaning of an objection against the corrective notice the third indent of Anicie 6 (1) (c) on the ground that the German auth­ of Regulation (EEC) No 1259/72 of orities were subjecting the powder to the Commission of 16 June 1972 on excessive requirements. The expression the disposal of butter at a reduced "suitable for consumption" or "ver­ price to certain Community brauchsfähig" in German means processing undertakings (Official "consumable" or "not unsuitable for Journal, English Special Edition consumption" and is not a synonym for 1972 (II), p. 559) as amended by "pleasing to the taste" ["zum Genuß Regulation (EEC) No 2815/72 of geeignet"]. That view is borne out by the Commission of 22 December practical considerations as the expression 1972 (Official Journal. English should be interpreted uniformly Special Edition 1972 (30-31 throughout the Community which means December), p. 5) and as last that a product should be considered to amended by Regulation (EEC) No be suitable for consumption as soon as it 2819/74 of the Commission of 8 may be marketed in a Member State. As November 1974 (Official Journal L it happens, the powder is suitable for 301, p. 21)? Is it sufficient for the consumption in Belgium as may be seen frozen product to be 'consumable', from a certificate dated 19 February 'not inedible', or 'not unsuitable for 1979 issued by the Institut National human consumption' or 'not harmful Belge pour le Lait et les Produits Laitiers to health'? Or must it in addition [Belgian National Institute for Milk and meet consumer expectations or trade

2. If consumer expectations or trade conceptions are the test is it A — Observations of the plaintiff in the sufficient for the product to meet main action consumer expectations or trade conceptions in the State where it is processed, in any EEC Member The plaintiff in the main action expands Sute , or even in a non-member on the same arguments which it put country; or must it meet consumer before the Finanzgericht. expectations or trade conceptions prevailing in all Member States? After first analysing the Community regulations it arrives at the conclusion 3. Does the answer depend on whether that there is no provision giving a closer the product is marketable in one of definition of or explaining the concept those States or in all EEC Member "suitable for consumption". States under the respective food regulations applying there?" It then goes on to argue that the product in question is both lawful and marketable under Belgian, Italian, Netherlands, The order making the reference was United Kingdom and Luxembourg registered at the Court Registry on regulations; however it does not meet 23 March 1981. the requirements of the German Regulation of 15 July 1933 on edible ices as amended by the Regulation of 1 July In accordance with Article 20 of the 1970 (Bürgerliches Gesetzbuch 1 1970 I Protocol on the Statute of the Court of p. 1061). Justice of the EEC written observations were submitted by Corman, the plaintiff As far as the interpretation of the in the main action, represented by Ehle, concept "suitable for consumption" is Feldmann and Partners, Rechtsanwälte concerned, the plaintiff in the main at the Oberlandesgericht Köln [Higher action takes the view that it should be Regional Court, Cologne] and by the interpreted independently in Community Commission of the European Com­ law and without regard to similar or munities, represented by J. Sack, a identical national provisions. member of its Legal Department, acting as Agent. According to the wording of Article 6 of Regulation No 1259/72, as amended by Upon hearing the report of the Judge- Regulation No 2819/74, the end product Rapporteur and the views of the should have properties making it "simply Advocate General, by an order dated 'consumable', in the neutral sense of the 15 July 1981 the Court decided to assign term", which rules out the defendant's the case to the Third Chamber pursuant interpretation that the product should to Article 95 of the Rules of Procedure be "pleasing to the taste of the and to open the oral procedure without German consumer" ["zum deutschen any preparatory inquiry. Verbrauchergenuß geeignet"].

It also emerges from the context to The balancing of interests and which Anicie 6 belongs that the essential considerations of practicability, which point about the expression "suitable for qualify the interpretation, also support consumption without any treatment the argument that "suitable for other than the addition of water and consumption" should be construed to refrigeration" is that processing may- mean "consumable" in a neutral sense. It consist in the addition of flavouring, cannot be the task of Community stabilizers and other substances which authorities to check in each Member are definitively listed "provided that the State in which that product is offered for product continues to fall within the tariff consumption whether the product, which heading for which it is intended". As the may be an intermediate product, has product is an "intermediate product been readily accepted there by which is intended for processing" the consumers as consumable and comes up Community legislature cannot have to their expectations as to palatable intended to take account of consumer edible ice. views when using the expression "suitable for consumption". The plaintiff adds, finally, that the It follows from the aims of those practicable course in each Member State regulations, as they appear in the recitals is to take the lowest common in the preamble to Regulation No denominator in the Community. That - 1259/72 and No 232/75, that the course is taken in its own country , monitoring of the use to which butter Belgium, and since the product complies sold at a reduced price is put is to with the requirements of its own national continue until the product has reached legislation the plaintiff should be entitled the final state envisaged by the to presume thai the German authorities regulations; that does not mean its will not impose more stringent consumption, but simply the last state in requirements when interpreting the which the commodity is to be found expression in question. after it has undergone the various stages of treatment and processing prescribed by the regulations. So once the product Consequently it proposes that the has reached that "final state" the last questions put by the Finanzgericht person acquiring the product may should be answered as follows: process it again in order to produce an edible ice meeting consumer require­ "The first question: ments as to pleasant taste.

(Official Journal L 301, p. 21), and ECR 2273 et seq. according to which the which has been processed in accordance monetary compensatory amounts may be with the conditions laid down by Article re-assessed if the butter has not been put 6 ( 1 ) (a), contains the products referred to the use intended. to in Article 6 (1) (b), and has been turned into powder preparations falling It goes on to examine the provisions of within tariff subheading ex 18.06 D or ex the relevant regulations and arrives at the 21.07 F of the Common Customs Tariff conclusion that the powder so made for the manufacture of edible ices, in should not only meet all the conditions accordance with the conditions for classification in one of the tariff contained in the third indent of subheadings indicated, either 18.06 D or Article 6 (1) (c) means that those inter­ 21.07 F of the Common Customs Tariff mediate products are consumable or not in force at that time, but should also be unsuitable for human consumption capable of being classified as edible ice without any treatment other than the (in subheading 18.06 D or 21.07 C) after addition of water and refrigeration the mere addition of water and notwithstanding any further processing refrigeration. It doubts whether the or treatment which is subsequently national court has fully grasped those carried out for the purpose of producing two conditions required of powder edible ices adapted to the market such as preparations because the order making for example the alteration of the taste, the reference reiterates an argument of consistency or other characteristics of the the plaintiff which is "wrong or at any ices to suit the taste of the consumer. rate simplistic" in the sense that it overlooks the most important point which is that the processing of the The second question product into edible ice falling within the tariff subheadings referred to above should be "solely by the addition of There is no need to answer this question water and refrigeration". because consumer expectations and trade conceptio: are not relevant. The Commission rules out subheading 18.06 D which it claims concerns only products which are cocoa-based. It The third question considers that it would have been desirable for the national court to require evidence at the outset that the Whether the intermediate product powder in question was indeed a product covered by the regulation is marketable falling within tariff subheadings ex under the food regulations of a 18.06 D or ex 21.07 F which by the mere particular Member State is immaterial, addition of water and refrigeration is too." transformed into an edible ice falling within tariff subheading ex 18.06 B or ex 21.07 C. B — Observations of the Commission If that were indeed the case it would be necessary to consider whether that The Commission takes the view first of product is consumable, that is to say all that this case should be considered in whether it may be supplied direct to the the light of the judgments given by the ultimate consumer as an edible ice Court on 28 June 1979 in Cases 216 & without having undergone any 217/78 Beljatzky and Corman [1979] processing or refinement. Therefore it is

not sufficient for the product to be marketed in a Member State as an edible simply "consumable", or even "not ice, that may be taken as an indication unsuitable for consumption". Rather it that it is probably a product which is should be consumable as an ice ready for suitable for consumption. So national consumption [Speiseeis]. The consumer regulations may at most serve as must therefore be able to recognize and indicators and the concept of "suitable accept it as such. for consumption" should therefore be defined according to the minimum requirements of the Community consumer as contained moreover in It is readily apparent from the provisions Regulation No 232/75. of Regulation No 1259/72 that the product must unmistakably appear as an edible ice consumable by the ultimate consumer. That view is further confirmed Since edible ice is a sweet, its sugary or by both the meaning and scope of flavoured taste is very important, as well Regulation No 1259/72 since its object as its consistency. An edible ice should implies that the end product should be not therefore melt rapidly and separate capable of being consumed as an edible into its liquid and solid components. On ice because if it were sufficient for the other hand the Commission considers the product to be simply "consumable" that other characteristics, such as the feel the aim of the provision contained in of the product on the tongue, the normal Article 6 of Regulation No 1259/72, that vanillin content or the degree of aeration is to say the prevention of the use of and the rate at which it melts, are not so butter sold at a reduced price for crucial. purposes other than the making of edible ice, would not be attained. The Commission believes that those criteria should be sufficient to enable the national court to arrive at a decision and Nevertheless the definition of concept that there is therefore no need to of "edible ices ... suitable for con­ consider other characteristics which sumption" should not be subjected to might be required of an edible ice for it excessive requirements; it is for free to be suitable for consumption since it is competition to determine whether a the task of national courts to decide in commodity is to be successful on the each individual case "whether in market. The definition of the concept applying the criteria set out above a should therefore "rest on the minimum product should be considered as an conditions which a product must fulfil edible ice". for it to continue to be classified as an edible ice". Consequently the Commission proposes that the questions put by the national It should not rest on the regulations laid court should be answered as follows: down in a national legal system or even on those which on a comparative view appear to be the least stringent. National " 1 . Powders falling within subheading regulations are significant here in two ex 18.06 B or ex 21.07 F (old ways: first, if a product cannot be version) of the Common Customs marketed as an edible ice in any Member Tariff intended for the preparation State, it is certainly not "suitable for of edible ices within the meaning of consumption"; secondly, by the same Regulation (EEC) No 1259/72 of token, if the same product can be the Commission comprise only

By an order of 16 January 1981 , which was received at the Court on 23 March 1981 the Finanzgericht [Finance Court ] Münster referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning in particular the interpretation of the words " edible ices . . . suitable for consumption " within the meaning of the third indent of Article 6 (1) (c) of Regulation No 1259 / 72 of the Commission of 16 June 1972 (Official Journal , English Special Edition 1972 (II), p. 559) on the disposal of butter at a reduced price to certain Community processing under­ takings, as amended by Regulation No 2815 / 72 of the Commission of 22 December 1972 (Official Journal , English Special Edition [1972] (30-31 December , p. 5) and as last amended by Regulation No 2819 / 74 of the Commission of 8 November 1974 (Official Journal L 301 , p. 21) (hereinafter referred to as " Regulation No 1259 / 72 as amended ").

JUDGMENT OF 14. 1. 1982 — CASE 64/81

2 Those questions were submitted in the course of proceedings between a Belgian undertaking, which exported re-solidified butter for use by a German undertaking for the manufacture of a powder for the preparation of edible ices by the addition of water and refrigeration, and the Hauptzollamt (Principal Customs Office) Gronau (Federal Republic of Germany), which charged monetary compensatory amounts not at the reduced rate of 50 % fixed by Article 20 of Regulation No 1259/72 as amended but at the full rate on the ground that the re-solidified butter in question had not been processed in accordance with its declared destination into a powder capable of being made into edible ices suitable for consumption and accordingly could not be classified in subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff.

" 1 . What properties must be possessed by 'edible ices . . . suitable for consumption' within the meaning of the third indent of Article 6 (1) (c) of Regulation (EEC) No 1259/72 of the Commission of 16 June 1972 on the disposal of butter at a reduced price to certain Community processing undertakings (Official Journal, English Special Edition 1972 (II), p. 559) as amended by Regulation (EEC) No 2815/72 of the Commission of 22 December 1972 (Official Journal, English Special Edition 1972 (30-31 December), p. 5) and as last amended by Regu­ lation (EEC) No 2819/74 of the Commission of 8 November 1974 (Official Journal L 301, p. 21)? It is sufficient for the frozen product to be 'consumable', 'not inedible', or 'not unsuitable for human consumption' or 'not harmful to health'? Or must it in addition meet consumer expectations or trade conceptions, in other words, must it be accepted by the consumer as ordinary edible ice which is customarily bought and sold?

2. If consumer expectations or trade conceptions are the test is it sufficient for the product to meet consumer expectations or trade conceptions in the State where it is processed, in any EEC Member State, or even in a

CORMAN v HAUPTZOLLAMT GRONAU

non-member country; or must it meet consumer expectations or trade conceptions prevailing in all Member States?

3. Does the answer depend on whether the product is marketable in one of those States or in all EEC Member States under the respective food regulations applying there?"

4 The three questions put are intended in essence to establish the meaning for Community purposes of the words "suitable for consumption" appearing in the third indent of Article 6 (1) (c) of Regulation No 1259/72 as amended which provides that butter sold in accordance with that regulation and in accordance with its objectives may only be processed into:

powder made from re-solidified butter which is then frozen constitutes "edible ices ... suitable for consumption" without any treatment other than that described. The foregoing means that it must be possible to consume the product as an edible ice, that is to say that it must have a perceptible taste of sugar or flavouring and have a composition whose consistency and freshness is sufficiently lasting. For these purposes a product which is tasteless or loses its consistency too rapidly by melting or whose components break up almost immediately on melting does not constitute an edible ice suitable for human consumption within the meaning of Regulation No 1259/72 as amended. This was furthermore confirmed by the subsequent Regulation No 232/75 of the Commission of 30 January 1975 on the sale of butter at reduced prices for use in the manufacture of pastry products and ice cream (Official Journal L 24, p. 45) which requires that such ice cream must contain one or more flavourings and emulsifying or stabilizing agents.

CORMAN v HAUPTZOLLAMT GRONAU

refrigeration. Suitability for consumption as an edible ice within the meaning of the said regulation requires for the purposes of Community law treatment of the basic product such that its sole possible application is the production of edible ices, that is to say, of a product which is perceptibly sugared or flavoured and whose consistency, after the addition of water and refrig­ eration, is such that it does not break up too rapidly at ambient temperatures and which retains its freshness for a sufficiently long period.

Costs

The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable. 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 national court the decision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber)

For the Registrar

H. A. Rühl A. Touffait Principal Administrator President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 19 NOVEMBER 1981 1

Mr President, to certain Community processing under- Members of the Court, takings (Official Journal, English Special Edition 1972 (II), p. 559) and had imponed from Belgium into the Federal Republic of Germany. At the same time The reference for a preliminary ruling on the purchaser of the goods, the German which I am giving my opinion today undertaking, Dr Otto Suwelack Nach- arises from the following facts: folger KG, applied for the goods to be placed under customs control since it intended to use the re-solidified butter for the manufacture of edible ices in The plaintiff in the main action, a accordance with the provisions of the Belgian undertaking, in January and said regulation. In accordance with these February 1975 applied to the Zollamt [Customs Office] Aachen—Autobahn applications the customs office charged, Süd for customs clearance into free on the basis of that destination in circulation of a number of consignments accordance with Article 20 of Regulation of re-solidified butter amounting in all to No 1259/72, as amended bv Regulation some 80 tonnes which it had bought in (EEC) No 1570/74 (Official Journal accordance with the procedure laid L 167 of 22 June 1974, p. 29) monetary down in Regulation (EEC) No 1259/72 compensatory amounts at the reduced of the Commission of 16 June 1972 on rate of 50 %, amounting in all to DM the disposal of butter at a reduced price 37 927.09.