JUDGMENT OF 10. 12. 1975 — CASE 53/75 BELGIUM v VANDERTAELEN

In Case 53/75 Reference to the Court under Article 177 of the EEC Treaty by the Cour de cassation of Belgium for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations submitted to the Court

III — Oral Procedure

Law

Costs

I —. Facts and procedure

1. Whether Regulation No 495/69 of 18 March 1969 of the Commission of the European Economic Community is applicable to the classification of goods imported before it came into force, in particular as regards the classification of goods imported during the period from 6 December 1968 up to and including 5 March 1969;

2. What is the definition of the term ice-cream for the purpose of applying headings 18.06 B and 21.07 C of the Common Customs Tariff prior to the entry into force of the Regulation No 495/69, in particular during the period from 6 December 1968 up to and including 5 March 1969 and more particularly whether 0 this term can refer to products with a relatively high content in fats, of which milkfats amount to 45 % or more but less than 65 % by weight of the total weight of these products, which contain in particular sucrose and water, which do not melt in an ambient temperature of approximately 0o C and which even in an ambient temperature of 20o C show after 24 hours no sign of melting, even if aerated and offered chilled or frozen.

II —. Written observations submitted to the Court

1. Regulation No 495/69 of the Commission of 18 March 1969 as an obligatory judicial measure is of a legislative nature and cannot have retroactive effect.

2. By the expression ice-cream for consumption, within the meaning of subheadings 18.06 B and 20.07 C of the Common Customs Tariff is meant food preparations of which the solid form or paste was obtained by freezing and which are intended for consumption in that state; they are characterized by the property of returning to a liquid or semi-liquid state when they are put in a temperature of approximately 0o C, and by a milkfat content not exceeding 15 % by weight and in certain cases 20 %.

III —. Oral Procedure

1. By a judgment of 20 May 1975, received at the Court Registry on 12 June following, the Belgian Cour de cassation, pursuant to Article 177 of the EEC Treaty, referred two questions relating to the interpretation of certain provisions concerning the classification of goods within the Common Customs Tariff.

2. The first question asks whether Regulation No 495/69 of 18 March 1969 of the Commission of the European Economic Community is applicable for the classification of goods imported before it came into force, in particular as regards the classification of goods imported during the period from 6 December 1968 up to and including 5 March 1969.

3. The second question asks what is the definition of the term ice-cream for the purpose of applying headings 18.06 B and 21.07 C of the Common Customs Tariff prior to the entry into force of the Regulation No 495/69, in particular during the period from 6 December 1968 up to and including 5 March 1969 and more particularly whether this term can refer to products with a relatively high content in fats, of which milkfats amount to 45 % or more but less than 65 % by weight of the total weight of these products, which contain in particular sucrose and water, which do not melt in an ambient temperature of approximately 0o C and which even in an ambient temperature of 20o C show after 24 hours no sign of melting, even if aerated and offered chilled or frozen.

4. It appears from the last part of this second question that the possible applicability of Regulation No 495/69 arises only if the concept of ice-cream appearing in the Common Customs Tariff does not include the products specified by this question and only if the classification of these products could not be made in accordance with the provisions in force at the time of the import.

5. It is appropriate therefore to consider first the wording of the subheadings in question.

6. Subheading 18.06 B concerns:

7. Subheading 24.07 C, referring to ice-cream not containing cocoa, is drafted in identical language.

8. The fact that the concept of ice-cream is not defined by the Common Customs Tariff, leads to the supposition that this product is regarded as sufficiently characterized by its very description.

9. The decisive criterion for the customs classification of goods must generally be looked for in their objective characteristics and properties.

10. It cannot be disregarded that ice-cream has the dominant characteristic of melting at a temperature of approximately 0o C, a characteristic which is explained by the high water content in this product and which is, consequently, eliminated in case of a high fat content.

11. Consequently subheadings 18.06 B and 21.07 C show only relatively low fat percentages for ice-cream whilst products with a high fat content are mentioned under the later subheadings of these Chapters.

12. The mere fact that these latter products are produced in a refrigerated or frozen state cannot categorize them as ice-cream and justify their classification under subheadings 18.06 B and 21.07 C.

13. Although the Common Customs Tariff gives no details concerning the composition of ice-cream, useful facts in this respect may, however, be found in Regulation No 83/67/EEC of the Council of 18 April 1967 establishing tariff specifications relating to goods covered by Regulation No 160/66/EEC of the Council and prescribing the fixed components applicable to them as well as the quantities of basic products to be taken as having been incorporated in their manufacture (OJ No 81 of 26. 4. 1967, p. 1597).

14. For this purpose the regulation, in Annex II, shows 20 kg of sugar and 35 kg of milk powder per 100 kg of ice-cream for the highest milkfat content mentioned in Annex I (… equal to or greater than 7 %).

15. The nomenclature introduced by this regulation was adopted by Regulation No 950/68 of the Council on the Common Customs Tariff and consequently allows the said basic products to be accepted as possible ingredients of ice-cream within the meaning of the Common Customs Tariff only within the limits of the quantities mentioned.

16. Thus, as the Commission has shown, according to well-established scientific concepts a quantity of 35 kg of whole milk powder per 100 kg of ice-cream corresponds to 9·1 % of milkfat.

17. Even if this last quantity was specified on a fixed basis, that decision by the Community legislature excludes unequivocally only products containing more than 15 % of milkfat from being regarded as ice-cream within the meaning of the Common Customs Tariff.

18. It follows that for the purposes of the application of subheadings 18.06 B and 21.07 C of the Common Customs Tariff the concept of ice-cream refers to products having as their essential characteristic that they melt at a temperature of approximately 0o C and that this concept cannot be applied to products with a milkfat content exceeding 15 %.

19. Having regard to that conclusion, the first question has lost its purpose and does not require an answer.

20. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court are not recoverable.

21. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Belgian Cour de cassation, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the questions referred to it by the Belgian Cour de cassation by judgment of 20 May 1975, hereby rules: