C-324/89
ECLI:EU:C:1991:10
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NORDGETRÄNKE
OPINION OF MR ADVOCATE GENERAL DARMON :: delivered on 15 January 1991 '
Mr President, 3. That court upheld the Hauptzollamt's Members of the Court, tariff classification. Nordgetränke appealed on a point of law to the Bundesfinanzhof which has referred the matter to the Court.
1. The Bundesfinanzhof (Federal Finance Court) of the Federal Republic of Germany has referred to the Court three questions for a preliminary ruling for the purpose of establishing the tariff classification of an 4. The first question concerns classification apricot compote. under subheading 20.05 C I b). Nordgetränke states that the apricot compote which it imports is not fruit purée obtained by cooking but is in fact prepared by pressing apricots through a sieve. It is 2. The facts are extremely simple. then briefly heated but that leads not to a In January 1984, Nordgetränke, a change in substance but simply to dehy Hamburg firm, imported apricot purée dration so as to reduce the volume to save coming from Argentina. The Hauptzollamt space and weight for shipping. (Principal Customs Office) initially classified the product under tariff subheading 20.06 B II a) 7 aa) of the Common Customs Tariff as 'fruit otherwise prepared or preserved, whether or not containing added sugar or spirit', which gives rise to a customs duty of 22% and 5. According to the actual wording of the additional duty on the sugar fixed at a first question, the compote in question is standard rate of 2 %. ' By a rectification 'made by pressing fruit pulp through a sieve decision of 20 March 1983 it classified the and then bringing it to the boil for no more goods under subheading 20.05 C I b) as than 30 seconds in a vacuum concentrator'. 'jams, fruit jellies, marmalades, fruit purée and fruit pastes, being cooked preparations, whether or not containing added sugar', which led to duty at 30 % and additional 2 duty on the sugar being applied. Nordgetränke contested the reclassification and brought an action before the Finanz 6. The essential question seems to be gericht (Finance Court). whether or not the goods at issue are a 'cooked preparation'. In this respect the ° Original language French findings of the expert appointed by the 1 — Sec Council Regulation No 3333/83/EEC of 4 November 1983 amending Rcgulanon No 950/68/EFC on ihe Finanzgericht are important. He states that Common Customs Tariff (OJ L 313, p. 1. see p 12, 'In the field of food technology "a cooking General Rule B 9) process" is understood as being a thermal 2 — See Council Regulation No 3333/83/EEC. referred to above, p 12, General Rule B 8 process which leads to a deliberate modi-
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fication in a product's properties', those 9. Consequently there is nothing in the modifications 'are often accompanied by a findings of the experts to show that the certain reduction in the water content .. . '; apricot compote in question has undergone 'however it is not the reduction in water a cooking process. content, but the deliberate modification of the product through lengthy thermal action which is the essential element in the 3 "cooking process" ' . 10. In its written observations, the 4 Commission considers that the concept of cooking in tariff heading No 20.05 must be taken as having its ordinary meaning, namely thermal treatment leading to boiling, 7. That expert differentiates cooking from a whereas at the hearing it envisaged 'concentration' process which is intended to reference to the scientific definition of reduce the water content of the product cooking, without, however, making clear without changing it. Reducing the water whether it had changed its mind on the content is done under vacuum at point. Furthermore, according to the temperatures ranging between 40° C and Commission, the wording of tariff heading 70° C for a very short period of 10 to 30 No 20.05 gives no indication whether the seconds. The concentrated products boiling process must correspond to a obtained by this means are substantively deliberate modification of the product's identical to the initial products. properties and lengthy thermal action. The Commission concludes that the apricot purée at issue must be classified under tariff subheading 20.05 C I b).
8. According to the expert's findings, the apricot purée imported by Nordgetränke, is 'concentrated apricot pulp'. 'It is not possible', he states, 'to discern any modifica 11. I agree in part with the Commission's tions in the product compared with fresh analysis. One cannot take into consideration apricot pulp, whether organoleptic changes the time factor without running the risk, in or chemical changes. Accordingly there is view of modern processes of extremely no doubt that the product was prepared by rapid cooking, of creating, within tariff a "concentration" process similar to that for heading No 20.05, an inappropriate fruit juice concentrates. On the other hand, distinction based on the length of time the if the product had been prepared by a product has been subjected to a high cooking process, one would find substantial temperature. On the other hand, to consider organoleptic changes (colour: dark to that any treatment leading to boiling is brown; odour: like caramel or honey; taste: 'cooking' within the meaning of the taste of cooking or oxidation with a trace of Common Customs Tariff, even if it entails caramelization, possibly a burnt taste) and no change in the taste, chemical properties, chemical changes (higher content of or consistency of the product, would seem HMF — hydroxymethylfurfurol, inversion to lead to an excessive generalization. Tariff of sucrose, etc.). In addition the consistency heading No 20.05, by employing the would be different'. expression 'being cooked preparations' neces sarily requires that the product resulting 3 — See Annex 2 to the Commission's written observations, p. 2. 4 — At p. 4.
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NORDGETRANKE
from the cooking should not be identical to cherry concentrates and blackcurrant that which existed before cooking. concentrates, obtained by heating the fruit Accordingly a substantive change seems to juice immediately after the fruit was be the decisive criterion. pressed, had been classified by the Haupt- zollamt Bad Reichenhall under heading No 20.07 and not No 20.05.
12. That was, moreover, the opinion of the Commission's officials in the Common Customs Tariff Nomenclature Committee as 14. I therefore consider that the apricot regards apple purée, according to Annex 5 purée in question was not a cooked prepara- to the Commission's written observations. i tion and cannot therefore come under There it is stated that 'the products under subheading 20.05 C I b). heading No 20.05 must have been changed in consistency by cooking' and that 'products which have simply been heated (even if up to a temperature of 100°C) for the purpose of sterilization should accordingly be classified under heading No 15. I must now examine whether it comes 20.06'. It does indeed appear that the under subheading 20.06 B II a) 7, as 'fruit Nomenclature Committee did not in that otherwise prepared or preserved'. respect follow the Commission's opinion at 6 that time. It seems to me however that to accept that cooking may consist simply in subjecting a product to higher temperature, regardless of the duration or the temperature reached — those being factors 16. The Commission supports such an which, in my view, must not be taken into approach in its alternative submissions. account — particularly where the product Nordgetränke itself suggests heading No may not undergo any change — which 20.07, 'fruit juices' or, failing that, No constitutes, I have already said, the decisive 20.06. According to the Bundesfinanzhof, in criterion — would give tariff heading No view of the characteristics of the product, 20.05 too wide a scope. What would be the heading No 20.07 in particular is ruled out. position, say, of fruit which was heated slightly in order to be crushed?
17. It seems to me that the Bundesfi nanzhofs findings that 'it is a firm, yellow 8 13. Finally it should be noted that in the purée with an apricot odour' preclude procedure which gave rise to the Court's classifying the product in question under 7 judgment of 30 September 1982, mahaleb heading No 20.07, 'fruit juices'. Accordingly it appears that the appropriate tariff heading 5 — P 3 must be subheading 20.06 B II a) 7, 'fruit 6 — Sec the summan record or the meeting of 28 September to otherwise prepared or preserved'. 2 October 1981 in Annex 5 to the Commission's written observations 7 — Case 295/81 W [ 1982 ] FCR 323« 8 — Order for reference, p 2 of the English translation
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18. Accordingly I suggest that the Court rule as follows:
'(1) The Common Customs Tariff (1984) must be interpreted as meaning that a compote of apricots obtained by pressing fruit pulp through a sieve and heating for 30 seconds at boiling point in a vacuum concentrator, without the product's substance being modified, does not fall under tariff subheading 20.05 C lb );
(2) Such a product falls under tariff subheading 20.06 B II a) 7.'
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