C-377/92

My Lords, 2. The version of the combined nomencla- ture, established for the purposes of the Common Customs Tariff of the Community, which is currently in force is contained in Annex I of Commission Regulation (EEC) No 2505/92 of 14 July 1992. 1 It appears that, as far as the tariff headings at issue in the 1. The present case is a reference for a pre- present proceedings are concerned, there is liminary ruling from the Bundesfinanzhof no difference between the current version of (Federal Finance Court, Germany). The ref- the Common Customs Tariff and the version erence is made in the context of a dispute in force in 1990 which is specified in the between Felix Koch Offenbach Couleur und order for reference. Karamel GmbH (hereafter 'Felix Koch') and the Oberfinanzdirektion München (Principal Revenue Office, Munich). The dispute con- cerns the classification, for the purposes of the Common Customs Tariff, of a powder made from the flesh of coconuts which is used in the manufacture of food products. 3. The coconut powder at issue (hereafter The question referred is the following: 'the product') is obtained from a pasteurized mixture of ground and pressed coconut mass to which 8% maltose and 5% sodium casein- ate are added before drying. The result is a powder with a 6.9% sucrose content by weight which is suitable for use in the man- ufacture of foodstuffs. The material from 'Is the Common Customs Tariff (combined which the powder is made has a fibre con- nomenclature 1990) to be interpreted as tent of only 0.15%, whereas the edible pulp meaning that "coconut powder" consisting of a coconut consists of approximately 3.3% of a pasteurized, homogenized and subse- raw vegetable fibre; the product itself con- quently spray-dried mixture of ground and tains virtually no fibre. pressed coconut mass to which maltose and sodium caseinate are added before it is dried in order to obtain the form of a powder, as more particularly described in the grounds [of the order for reference], to be classified under subheading 2106 90 99 as a "food 4. Subheading 2106 90 of the combined preparation not elsewhere specified or nomenclature ('Food preparations not else- included (other)"?' where specified or included: ...-Other: ... —

5. Felix Koch maintains that the product should be classified under subheading 2106 90 99 — Other'. 1106 30 of the combined nomenclature, since it is a powder of a product falling within subheading 0801 10, namely coconut pulp. In the view of the Commission, on the other hand, the product cannot be regarded as a pulverized form of a product falling within heading 0801, since the original fruit has been subject to processing operations which It is clear that heading 2106 ('Food prepara- arc not envisaged by that heading. tions not elsewhere specified or included') is a residual category which is of an extremely general character and which applies only to products which cannot be classified under any other heading applicable to food prepa- rations. It is common ground that in the 6. In my view that submission of the Com- present case there are at most two possible mission is correct. Heading 0801 covers alternative classifications: under subheading dried as well as fresh nuts, and includes those 1106 30 ('Flour, meal and powder of the which have been shelled or peeled or subject products of Chapter 8'), and under subhead- to similar operations, but it is clear that it ing 2008 19 ('Fruits, nuts and other edible does not cover products which have been parts of plants, otherwise prepared or pre- subject to more substantial forms of process- served ... not elsewhere specified or included: ing, other than certain treatments designed to Nuts ... — Other ...'). For the purposes of preserve the product or maintain its appear- applying subheading 1106 30, the relevant ance. Thus, Note 3 to Chapter 8 of the com- entries in Chapter 8 arc the following: bined nomenclature states that:

(b) to improve or maintain their appearance (e. g., by the addition of vegetable oil or small quantities of glucose syrup), None of those terms is apt to include an operation whereby the pulp of the fruit or nut is pressed in order to obtain an extract from which most of the vegetable fibre has provided that they retain the character of been removed. Nor, moreover, can such an dried fruit or dried nuts.' operation be regarded as a process akin to milling so as to bring the resulting powder within Chapter 11 of the combined nomen- clature. As the General Note to Chapter 11 of the Harmonized System makes clear, 7. It will be recalled that, in the present case, that Chapter includes: the product is obtained by pressing coconut mass in order to remove the bulk of the fibre content of the original fruit. The product is pasteurized, and maltose and sodium casein- ate are added, before it is finally dried and '(1) Products from the milling of the cereals reduced to the form of a powder. It seems to of Chapter 10 and of sweet corn of me therefore that the original fruit, even Chapter 7 ... . before it has been dried and pulverized, has been processed in a manner which takes it outside the scope of Chapter 8.

(2) Products also obtained from the cereals of Chapter 10 by submitting them to the processes provided for in the vari- 8. That conclusion is confirmed by an exam- ous headings of the Chapter, such as ination of the Explanatory Notes to the Har- malting or the extraction of starch or monized System published by the Customs wheat gluten. Cooperation Council 2 which, as the Court

'Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweet- ening matter or spirit, not elsewhere speci- fied or included.' T h e Commission suggests that such a sub- stance is accurately described as a prepara- tion of 'fruit' because the entire fruit, with the exception of the shell, is prepared in the manner described. In the present case, in contrast, the bulk of the fibre content of the fruit is removed before any further process- 10. The Commission submits that heading ing takes place. In that respect, therefore, the 2008 is inapplicable in the present instance product presently at issue is similar to the for essentially the same reason that head- product ('coconut milk') recently classified ing 1106 is inapplicable. T h u s the C o m m i s - sion argues that the product cannot be regarded as a preparation of 'fruit', because the coconut pulp from which it is made is 4 Commission Regulation (EEC) No 3 1 6 / 9 1 of 7 February 1991 concerning the classification of certain goods in the pressed in order to remove the bulk of the combined nomenclature (OJ 1991 I. 37, p 25.)

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O P I N I O N O F MR JACOBS — CASE C-377/92

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KOCH

Conclusion

14. I am accordingly of the opinion that the question referred by the Bundesfinan- zhof should be answered as follows:

A substance consisting of a pasteurized, homogenized and subsequently spray-dried mixture of ground and pressed coconut mass to which maltose and sodium casein- ate are added before it is dried in order to obtain a powder with a negligible fibre content and a sucrose content of at least 5% must be classified under subheading 2106 90 99 of the Common Customs Tariff.

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