JUDGMENT OF 14. 1. 1982 — CASE 64/81 CORMAN v HAUPTZOLLKMT GRONAU

In Case 64/81 REFERENCE to the Court under Article 177 of the EEC Treaty by the Fourth Chamber of the Finanzgericht [Finance Court] Münster for a preliminary ruling in the action pending before that Court between

THE COURT (Third Chamber) composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges, Advocate General: G. Reischl Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted under Article 20 or the Protocol on the Statute of the Court of Justice of the EEC

A — Observations of the plaintiff in the main action

B — Observations of the Commission

Ill — Oral procedure

Decision

Costs

I —. Facts and procedure

1. What properties must be possessed by edible ices ... suitable for consumption within the meaning of the third indent of Article 6 (1) (c) of Regulation (EEC) No 1259/72 of the Commission of 16 June 1972 on the disposal of butter at a reduced price to certain Community processing undertakings (Official Journal, English Special Edition 1972 (II), p. 559) as amended by Regulation (EEC) No 2815/72 of the Commission of 22 December 1972 (Official Journal. English Special Edition 1972 (30-31 December), p. 5) and as last amended by Regulation (EEC) No 2819/74 of the Commission of 8 November 1974 (Official Journal L 301, p. 21)? Is it sufficient for the frozen product to be consumable, not inedible, or not unsuitable for human consumption or not harmful to health? Or must it in addition meet consumer expectations or trade conceptions, in other words, must it be accepted by the consumer as ordinary edible ice which is customarily bought and sold?

2. If consumer expectations or trade conceptions are the test is it sufficient for the product to meet consumer expectations or trade conceptions in the State where it is processed, in any EEC Member Sute, or even in a nonmember country; or must it meet consumer expectations or trade conceptions prevailing in all Member States?

3. Does the answer depend on whether the product is marketable in one of those States or in all EEC Member States under the respective food regulations applying there?

II —. Written observations submitted under Article 20 or the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations of the plaintiff in the main action

B —. Observations of the Commission

1. Powders falling within subheading ex 18.06 B or ex 21.07 F (old version) of the Common Customs Tariff intended for the preparation of edible ices within the meaning of Regulation (EEC) No 1259/72 of the Commission comprise only products which, after the mere addition of water and refrigeration, may be considered as edible ices falling within subheadings ex 18.06 B or ex 21.07 C of the Common Customs Tariff and which as such are suitable for consumption.

2. The suitability of the product for consumption is determined by the minimum requirements which a Community consumer sets for an edible ice. A significant guide in this regard is the marketability of a product as an edible ice under the national legal system of a Member State. On the other hand a product is not suitable for consumption if it is not marketable under that name in another Member State.

3. A product which has no distinct sugary or flavoured taste, or which on melting separates into two parts, one liquid, one solid, does not meet the minimum conditions for an edible ice suitable for consumption within the meaning of Regulation No 1259/72.

Ill —. Oral procedure

1. By an order of 16 January 1981, which was received at the Court on 23 March 1981 the Finanzgericht [Finance Court] Münster referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning in particular the interpretation of the words edible ices ... suitable for consumption within the meaning of the third indent of Article 6 (1) (c) of Regulation No 1259/72 of the Commission of 16 June 1972 (Official Journal, English Special Edition 1972 (II), p. 559) on the disposal of butter at a reduced price to certain Community processing undertakings, as amended by Regulation No 2815/72 of the Commission of 22 December 1972 (Official Journal, English Special Edition [1972] (30-31 December, p. 5) and as last amended by Regulation No 2819/74 of the Commission of 8 November 1974 (Official Journal L 301, p. 21) (hereinafter referred to as Regulation No 1259/72 as amended).

2. Those questions were submitted in the course of proceedings between a Belgian undertaking, which exported re-solidified butter for use by a German undertaking for the manufacture of a powder for the preparation of edible ices by the addition of water and refrigeration, and the Hauptzollamt (Principal Customs Office) Gronau (Federal Republic of Germany), which charged monetary compensatory amounts not at the reduced rate of 50% fixed by Article 20 of Regulation No 1259/72 as amended but at the full rate on the ground that the re-solidified butter in question had not been processed in accordance with its declared destination into a powder capable of being made into edible ices suitable for consumption and accordingly could not be classified in subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff.

3. In fact, according to the Hauptzollamt, the analysis of the powder carried out at the request of the customs authorities by specialized establishments indicated that the powder was not suitable for consumption without any treatment other than the addition of water and refrigeration. That analysis showed that, on the basis of the flavouring and sweetenings the content in binding and emulsifying agents and the degree of stability of the final product obtained, it could not be considered as an edible ice suitable for consumption. Having regard to the outcome of these analyses the national court put three questions to the Court of Justice which were worded as follows :

4. The three questions put are intended in essence to establish the meaning for Community purposes of the words suitable for consumption appearing in the third indent of Article 6 (1) (c) of Regulation No 1259/72 as amended which provides that butter sold in accordance with that regulation and in accordance with its objectives may only be processed into:

5. That provision implies that the powder produced from butter must meet all the conditions authorizing classification of the product in one of the two stated subheadings of the Common Customs Tariff, that is to say, that the powder must be capable of being processed solely by the addition of water and refrigeration into a final product which constitutes an edible ice suitable for consumption.

6. If regard is had first of all for the Explanatory Notes to the Common Customs Tariff the words suitable for consumption imply that only the limited requirements as to the quality of an edible ice within the meaning of the said tariff subheadings may be prescribed. In fact classification in tariff headings 18.06 Chocolate and other food preparations containing cocoa and 21.07 Food preparations not elsewhere specified or included shows that the final product in question must be consumable, which means that it must not be unsuitable for human consumption or harmful to health.

7. In the second place, within the framework of Regulation No 1259/72 it is stated that the product obtained simply by the addition of water to the powder made from re-solidified butter which is then frozen constitutes edible ices ... suitable for consumption without any treatment other than that described. The foregoing means that it must be possible to consume the product as an edible ice, that is to say that it must have a perceptible taste of sugar or flavouring and have a composition whose consistency and freshness is sufficiently lasting. For these purposes a product which is tasteless or loses its consistency too rapidly by melting or whose components break up almost immediately on melting does not constitute an edible ice suitable for human consumption within the meaning of Regulation No 1259/72 as amended. This was furthermore confirmed by the subsequent Regulation No 232/75 of the Commission of 30 January 1975 on the sale of butter at reduced prices for use in the manufacture of pastry products and ice cream (Official Journal L 24, p. 45) which requires that such ice cream must contain one or more flavourings and emulsifying or stabilizing agents.

8. These minimum requirements are based on the provisions of the Common Customs Tariff read in conjunction with Regulation No 1259/72. that is to say, on provisions of Community law which do not refer to legal systems of the Member States in determining their meaning and scope; the Community legal order does not in fact aim in principle to define its concepts on the basis of one or more national legal systems without express provision to that effect. In this case all national variations from such Community requirements as to quality tend to distort the uniform effect of Regulation No 1259/72 as amended and to use it for purposes other than that for which it was intended, which is the disposal of butter stocks by sale at a reduced price to certain processing undertakings by permitting a reduction in the monetary compensatory amounts pertaining to the marketing of products whose destination is not necessarily that for which a favourable rate is provided by that regulation.

9. The reply to the Finanzgericht Münster should accordingly be that powder falling within subheadings Nos ex 18.06 D or ex 21.07 F of the Common Customs Tariff and intended for the preparation of edible ices within the meaning of the third indent of Article 6 (1) (c) of Regulation No 1259/72 as amended by Regulation No 2815/72 of the Commission and as last amended by Regulation No 2819/74 of the Commission of 8 November 1974 must contain only products which can be processed into edible ices suitable for consumption without any treatment other than the addition of water and refrigeration. Suitability for consumption as an edible ice within the meaning of the said regulation requires for the purposes of Community law treatment of the basic product such that its sole possible application is the production of edible ices, that is to say, of a product which is perceptibly sugared or flavoured and whose consistency, after the addition of water and refrigeration, is such that it does not break up too rapidly at ambient temperatures and which retains its freshness for a sufficiently long period.

On those grounds, THE COURT (Third Chamber) in answer to the questions referred to it by the Finanzgericht Münster by order of 16 January 1981, hereby rules: