C-59/94

MINISTRE DES FINANCES x PARDO & FILS AND CAMICAS

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 March 1995 *

1. The plaintiffs in the main proceedings, French courts and eventually to a reference Société Pardo & Fils and Cárnicas S.à r. 1. for a preliminary ruling from the Cour (hereafter 'Pardo' and 'Cárnicas' respective- d'Appel, Pau. The question referred is ly), are French customs brokers. In 1988 and worded as follows: 1989 they imported quantities of 'sangria' into France on behalf of their respective Spanish clients. It should be noted that dur- ing this period the customs relations between Spain and the other Member States were governed by transitional provisions arising 'Should the beverage described as sangria, from Spain's accession to the European made with more than 50% wine of fresh Communities. As a result customs duties grapes (heading 2204), be classified under were still payable on certain goods in trade heading 2205 or heading 2206 of the Com- between Spain and the rest of the Commu- mon Customs Tariff?' nity.

6. The dictionary of the Real Academia Española defines sangria as a refreshing bev- erage composed of water and wine with sugar and lemon and other additions. A 4. The Court has consistently held that the broadly similar, though slightly more elabo- decisive criterion for the tariff classification rate, definition of sangria is to be found in of goods must be sought in their objective Article 2(3)(a) of Council Regulation (EEC) characteristics and properties, as defined in N o 1601/91 of 10 June 1991 laying down the headings and subheadings of the Com- general rules on the definition, description bined Nomenclature, and in the notes to the and presentation of aromatized wines, arom- sections or chapters. 3 atized wine-based drinks and aromatized wine-product cocktails. * According to that provision, sangria is 'a drink obtained from wine, aromatized with the addition of natu- ral citrus-fruit extracts or essences, with or without the juice of such fruit and with the possible addition of spices, sweetened and with C 0 2 added, having an acquired alco- holic strength by volume of less than 12% vol'. Article 4(2) of the regulation makes it 5. As regards the objective characteristics clear that water may be added, provided that and properties of the goods in issue, the it does not change the nature of the drink. orders for reference do not contain a great Although that regulation was not in force at deal of information other than that the goods the time when the goods in issue were are a beverage of a type known as 'sangria' imported, there is one respect in which it containing more than 50% wine of fresh may be indirectly relevant. I shall return to grapes. Further information is contained in the point later (see paragraph 11 below). the observations of the French Government, which state that none of the parties seems to contest the analysis carried out by a body called the Commission de Conciliation et d'Expertise Douanière, according to which the product imported under the designation 'sangria' was a mixture of wine, water, sugar 7. There cannot be any doubt that if the san- and fruit extracts. The French Government gria in question did not contain water and also states that the product contained 30 to sugar it would be classified under head- ing 2205 of the Combined Nomenclature. It would fall squarely within the description 2 — O J 1988 L 298, p. 1. 3 — See, for example, Case C-120/90 Ludwig Post v Oberfinanzdirektion München [1991] ECR1-2391, para- graph 11 of the judgment. 4 — OJ 1991 L 149, p. 1.

8. General Rule 3 provides:

(c) When goods cannot be classified by refer- ence to 3(a) or (b), they shall be classified under the heading which occurs last in 'When by application of rule 2(b) or for any numerical order among those which other reason, goods are prima facie classifi- equally merit consideration.'

I-3163

OPINION OF MR JACOBS — JOINED CASES C-59/94 AND C-64/94

I - 3164

MINISTRE DES FINANCES v PARDO & HLS AND CAMICAS

drinks defined therein. It is however interest- according to the analysis referred to by the ing to note that Article 4(2) states that water French Government, their alcohol content may be added to any of the drinks referred was slightly less than 7% volume. Fortu- to in the regulation — including therefore nately for the plaintiffs in the main proceed- vermouth, which is defined in Article 2(2)(a) ings, that regulation cannot have retroactive — provided that the water added does not effect, as is clear from the judgment in change the nature of the drink. Thus it is Biegi v Hauptzollamt Bochum, 7 where the clear that the Community legislature took Court stated that 'a regulation specifying the the view, at least in 1991, that the addition of conditions for classification in a tariff head- water does not in itself transform vermouth ing or subheading is of a legislative nature into a different type of beverage. In that and cannot have retroactive effect'. 8 It is respect the authors of the regulation were however interesting to note that the second simply expressing a logical view that was recital in the preamble to Regulation equally valid at the time of the importations N o 2593/93 states that: in issue.

'... to ensure the uniform application of the 12. As regards Regulation N o 2593/93, Arti- combined nomenclature rules must be laid cle 1 thereof inserts a further 'Additional down regarding the classification of ver- note' in Chapter 22 of the Combined mouth and other wine of fresh grapes fla- Nomenclature, stating that: voured with plants or aromatic substances falling within C N code 2205; ... flavoured wines may, inter alia, contain significant added quantities of liquids such as fruit juices, syrups and water and ... it may there- fore be difficult to distinguish them from mixtures of fermented beverages and non- alcoholic beverages falling within C N O n l y vermouth and other wine of fresh code 2206 ... .' grapes flavoured with plants or aromatic substances having an actual alcoholic strength by volume of not less than 7% vol shall be regarded as products falling within C N code 2205.'

therefore relevant to matters that occurred (approximately 10%), natural flavourings before the regulation was adopted. The same (approximately 2%), small quantities of cannot of course be said as regards the fixing potassium sorbate and citric acid solution, of a minimum alcohol content. and water should be classified under head- ing 2207 (which in the old version of the Combined Nomenclature corresponded to the present heading 2206). 9 Irrespective of the status to be accorded to that decision, it 13. The French Government refers in its cannot in my view affect the classification of observations to a classification decision the goods at issue in this case. It is sufficient approved by the Committee on Common Customs Tariff Nomenclature, according to to note that the sangria imported by Pardo which a carbonated beverage containing and Cárnicas contains a considerably higher wine (approximately 40%), sugar syrup percentage of wine.

Conclusion

14. Accordingly, I am of t h e opinion t h a t the question referred to the C o u r t b y the C o u r d ' A p p e l , P a u , s h o u l d be answered as follows:

T h e expression ' v e r m o u t h a n d other w i n e of fresh grapes flavoured w i t h plants o r a r o m a t i c s u b s t a n c e s ' in h e a d i n g 2205 of t h e C o m b i n e d N o m e n c l a t u r e for the C o m m o n C u s t o m s Tariff, in t h e versions laid d o w n in A n n e x 1 t o C o u n c i l R e g u - l a t i o n ( E E C ) N o 2 6 5 8 / 8 7 a n d in A n n e x 1 to C o m m i s s i o n R e g u l a t i o n ( E E C ) N o 3 1 7 4 / 8 8 , m u s t b e i n t e r p r e t e d as including a beverage described as sangria c o n - sisting of m o r e t h a n 5 0 % w i n e of fresh grapes t o g e t h e r w i t h water, sugar and fruit extracts.