JUDGMENT OF 7. 11. 1973 — CASE 49/73 FLEISCHER v HAUPTZOLLAMT FLENSBURG

In Case 49/73

THE COURT composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, and C. Ó Dálaigh, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Statute

Grounds of judgment

On the first question

On the second and third questions

Costs

I —. Facts and procedure

D. Other:

F. Other:

1. Is the milkfat content in goods within tariff heading 17.04-D-II subject to any, and if so what, limitation?

2. Can half-finished products, in the finishing of which sugar must be added, be included in the sugar confectionery in this tariff heading?

3. If Question 2 is answered in the affirmative: in this case does it depend upon the general opinion obtaining in the confectionery trade, or on something else, and if so, what?

II —. Observations submitted under Article 20 of the Statute

1. a considerable sugar content;

2. a solid or semi-solid consistency;

3. they are generally suitable for immediate consumption;

4. they are commonly referred to as sweetmeats or confectionery.

1. The examples mentioned, which include sweetened chewing-gum containing a maximum of 10 % sugar, but which is still listed as a sweetmeat, show that the sugar content of the goods listed under tariff heading 17.04 is not fixed at a certain minimum percentage of the finished product when suitable for consumption. This being the case for the abovementioned finished products, intended directly for consumption, it should also be so in particular for those goods known as pastes for the manufacture of sweetmeats. It follows that sugar content is not a sufficient determining criterion. In this respect the only decisive factor is the fact that the goods do indeed contain sugar.

2. The requirement that the goods have a solid or semi-solid conistency presents no problem here.

3. The requirement that the product be suitable, in general, for immediate consumption cannot be interpreted strictly in the case of pastes for the manufacture of sweetmeats. For such products the suitability for immediate consumption cannot be assessed by the same criteria as those applicable to finished products. Thus the term in general no doubt refers to pastes.

4. To determine whether the product may be commonly referred to by the names sweetmeat or confectionery and classified under tariff heading 17.04 it may be necessary to examine it for taste. The product at issue here should have the taste of a caramelized sweetmeat although it may not necessarily have precisely the taste of a particular finished product, provided that the typically characteristic taste of the sweetmeat is present.

1. By order dated 22 February 1973, filed at the Court of Justice on 15 March 1973, the Hamburg Finanzgericht referred, under Article 177 of the EEC Treaty, three questions on the interpretation of subheading 17.04-D-II of the Common Customs Tariff.

2. It is asked whether the milkfat content in goods within subheading 17.04-D-II is subject to any, and if so, what, limitation.

3. Whereas subheading 17.04-D-I lays down an upper limit (containing no milkfats or containing less than 1.5 % by weight of such fats), subheading 17.04-D-II does not.

4. It is asked whether semi-finished products, in the finishing of which sugar must be added, can be included in sugar confectionery within the meaning of subheading 17.04-D-II and, if so, whether such classification depends upon the general opinion obtaining in the confectionery trade.

5. The Explanatory Notes to the Brussels Nomenclature state with regard to heading 17.04 that the heading also covers pastes used for making fondants, marzipan, nougat etc.

6. Whilst the product in its bulk form, not having attained its final composition in respect of its principal ingredients and requiring, for example, the addition of sugar, may, in some cases, show the characteristics of sugar confectionery within the meaning of heading 17.04, its composition must specifically and definitely designate it for use in the making of a certain category of sugar confectionery.

7. Accordingly, products in bulk form intended for use in making sugar confectionery, even if their sugar content must be increased during processing into the finished product, are to be deemed to be covered by subheading 17.04-D-II provided that their composition specifically and definitely designates them for use in the making of a certain category of sugar confectionery.

8. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these written proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 950/68 EEC of the Council of 28 June 1968 establishing the Common Customs Tariff; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Hamburg Finanzgericht, by order of that Court dated 22 February 1973, hereby rules:

1 The milkfat content of goods covered by subheading 17.04-D-II of the Common Customs Tariff must not be such as to affect the character of those products as sugar confectionery;

2 Products in bulk form intended for use in the making of sugar confectionery, even if their sugar content must be increased during processing into the finished product, are covered by subheading 17.04-D-II, provided that their composition specifically and definitely designates them for use in the making of a certain category of sugar confectionery.

1 17.04 Sugar confectionery, not containing cocoa. D. Other: I — Containing no milkfats or containing less than 1.5 % by weight of such fats: … II — Other: Containing by weight of sucrose (including invert sugar expressed as sucrose): (a) Less than 50 %, (b) 50 % or more but less than 70 %, (c) 70 % or more.

2 21.07 Food preparations not elsewhere specified or included: F. Other: … VII — Containing 45 % or more but less than 65 % by weight of milkfats. (a) … (b) , (1). Containing no starch or containing less than 5 % by weight of starch.

3 This heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption and commonly referred to as sweetmeats or confectionery. It includes, inter alia: boiled sweets (including those containing malt extract); caramels, cachous, candies, nougat, fondants, sugared almonds, Turkish delight; gums (including sweetened chewing-gum and the like); This heading also covers pastes containing sugar used for making fondants, marzipan, nougat etc. … The heading does not cover: … Sweetened food preparations such as fruit, fruit peel etc., preserved by sugar, and jams, fruit jellies, etc