C-120/90

The Bundesfinanzhof has referred to the Court for a preliminary ruling a question on the interpretation of the combined nomen- clature,1 asking in particular whether As the relevant rules stand at the present powdered whey obtained by ultrafiltration, time, the answer is straightforward: the containing 76.6% protein, 2.1% milk fat reduction of the lactose content to 5% and 5% lactose, and no sugar, is to be cannot be regarded as removal of just part classified as a 'product consisting of natural of the lactose and therefore whey displaying milk constituents' not included under other the characteristics of the product at issue headings (tariff subheading 0404 90 33) or here cannot be classified under subheading as 'whey' (subheading 0404 10 11). 0404 10. That view is confirmed — and certainly not undermined — by the fact, which emerges from the documents before the Court, that whilst it has been decided It should be noted in the first place that within the nomenclature committee and the whey, which is derived from milk by the committee for the harmonized system that, removal of fats and casein, is classified under the rules at present in force, substan- under tariff subheading 0404 10. Its nor- tially modified whey must be classified mal composition includes a substantial under the residual subheading 0404 90, it percentage of lactose (over 60%), in has on the other hand been agreed to addition to protein and milk salts. The recommend that in future whey which has corresponding explanatory note states that been in any way modified should be whey is whey even when 'part of the classified under subheading 0404 10 and lactose has been removed. Moreover, the that the wording of the classifications Court has consistently held that the classifi- should be amended accordingly. The cation of products is not affected by the fact Customs Cooperation Council has decided that they have undergone processing which to accept that suggestion and recommended has not changed the essential composition on 5 July 1989 that the Member States of the basic product (most recently the make the necessary changes to the relevant judgement in Case 40/88 Weber [1989] provisions of the nomenclature. ECR 1395, paragraphs 19 and 20).