C-219/89

WESERGOLD

OPINION OF MR ADVOCATE GENERAL DARMON :: delivered on 15 January 1991 "

Mr President, 3. The Commission considers that the Members of the Court, 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 1. The Bundesfinanzhof (Federal Finance specified or included . . . '. I do not share Court) has referred to the Court for a that analysis for the following reasons. preliminary ruling a question on the inter­ pretation of the nomenclature of the Common Customs Tariff in order to ascertain whether a product composed of 39.4% orange juice and 60.6% sugar should be classified as 'fruit juices . . . containing 4. It may no doubt be thought that, added sugar' under heading No 2009 of the although no upper limit for sugar is said nomenclature. The product's high sugar expressly stated in the wording of the content led the national court to doubt that heading, there can be a limit beyond which it is possible to classify it under that the original character of the orange juice heading. 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.

9. In addition the Commission's reference to General Rule of Interpretation No 3 of the Common Customs Tariff scarcely seems 6. However, the Commission considers that to support its argument. No doubt beyond the quantity of sugar contained in the 50% the sugar represents arithmetically the product in question prevents it from being product's major constituent. Even so, must consumed in that state, that is to say, it be classified according to the 'material or without dilution, even by a consumer having component which gives (it) (its) essential a very sweet tooth, and deduces therefrom character'? If so, is it the sugar which that it is therefore not fruit juice within the confers its essential character on the meaning of heading No 2009. product? And even supposing that it is possible to reply positively to that question, which is, all the same, a highly dubious conclusion, would it not therefore be necessary to classify the product under the 7. That analysis is not convincing. First, as heading in Chapter 17, entitled 'sugars and the appellant in the main proceedings sugar confectionery'? If one follows the correctly states in its observations, 'the Commission's own reasoning in that decisive criterion for the classification of connection, the consequences to be drawn goods for customs purposes is in general to from its analysis are inappropriate and, be sought in their characteristics and moreover, very different from what it objective properties as defined in the suggests. wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters'. > 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 8. None of those provisions contain, in the orange juice 'very excessively present case, the least reference to the sweetened' — that is to say to more than requirement that the products under 43 % — constitutes a 'fruit juice ... heading No 2009 should be suitable for containing added sugar' within the meaning direct consumption. On the contrary, the of the customs classification, on what Customs Cooperation Council's Notes ground would 50% constitute a threshold expressly envisage the classification under level? That limit would be purely arbitrary heading No 2009 of fruit juices in the form since it would introduce a difference of of crystals or powder soluble in water. In tariff classification between two products both equally 'too sweet' compared with the 1 — Case 62/77 Carhen-Verlag GmbH[l977] ECR 2343. product's normal taste, whereas the clear

wording of the heading does not contain expressly states: 'According to the nomen­ any upper limit concerning the quantity of clature in Annex B to Regulation (EEC) No sugar. By allowing fruit juices containing 455/69 of the Council of 11 March 1969 more than 43 % added sugar to be classified (Official Journal, English Special Edition 5 under heading No 2009 the authors of the 1969 (I), p. 103) repeated in the Common Nomenclature exercised a choice, ques­ Customs Tariff, in respect of the tariff classi- 6 tionable perhaps in view of the current fication for concentrated orange juice . . . ' . A concept of fruit juice or of definitions certain importance has to be given to that adopted in other fields than customs law, indication, because, apparently, at the time but in any case free from ambiguity as it was taken for granted that a fruit juice regards the type of product covered by the containing a very high sugar concentration heading. 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 11. In that connection it is not without 2009. It is that solution which, at all events, interest to note that in Haitptzollamt I suggest that the Court adopt in the present 2 Hamburg-Ericus the Court had to consider case. a product practically identical to the one whose classification is today under discussion. It was a case of an orange juice 12. Without doubt, and I am conscious of which had been declared as having a sugar this, the interpretation which I suggest to content of 63 %, according to the details the Court limits the scope of the 3 provided by Mr Advocate General Warner. requirement that the original character of At no time did the Commission in its obser­ the product be maintained. In fact, in my vations, the Advocate General or, opinion that requirement must concern only apparently, the national administration in situations where the quantity of sugar would the main proceedings question the be such that the orange juice merely confers correctness of classifying the product in on the sugar a colour and scent. I am question under the former heading No thinking here for example of cases where 2007, 'fruit juices. . . whether or not the product is composed of 90% or more 4 containing added sugar', which became sugar. But the Court does not have to give a heading No 2009. What is more, the part of ruling on that point and, in any case, it is the judgment headed 'Facts and procedure' not the situation arising in the present case.