Report for the Hearing in Case C-120/90
I — Facts and procedure
1. In 1988, Ludwig Post GmbH (Post), the plaintiff in the main proceedings, applied to the Oberfinanzdirektion (Regional Finance Directorate) Munich (the Oberfinanzdirektion), the defendant in the main proceedings, for a binding customs tariff advisory notice for a product defined as 75% whey protein concentrate. The product is a powder obtained by ultrafiltration of whey and is intended for use in food products; it contains 76.6% protein, 5% lactose, 2.1% milk fat, and no detectable sugar.
2. On 14 June 1988, the Oberfinanzdirektion issued to Post a notice classifying the product under subheading 04049033, products consisting of natural milk constituents, ... not elsewhere specified or included, not containing added sugar or other sweetening matter, of a protein content exceeding 42% and a milk-fat content exceeding 1.5% but not exceeding 27%, of the combined nomenclature of the Common Customs Tariff (CCT).
3. However, Post considered that the product should be classified either under subheading 04041011 whey, whether or not concentrated ... not containing added sugar or other sweetening matter or under subheading 35029059 milk albumin (lactalbumin) of the CCT.
4. Following dismissal of its objection against the binding customs tariff notice issued by the Oberfinanzdirektion, Post appealed to the Bundesfinanzhof (Federal Finance Court).
5. In support of its appeal, Post contended that it was apparent from the Explanatory Notes on the harmonized commodity description and coding system (the Explanatory Notes) concerning heading 0404 that the removal of part of the lactose or some minerals from the product in question did not alter its character of whey within the meaning of tariff subheading 04041011. In that regard, Post relied on scientific practice in respect of foodstuffs and on the terminology used in trade circles.
6. In the grounds of its order for reference, the Bundesfinanzhof first stated that in any event the product in question could not be classified under heading 3502 of the CCT and that doubts remained only as regards classification of the product within heading 0404.
7. Considering that the dispute thus raised a problem of interpretation of the relevant Community provisions, the Bundesfinanzhof, by order of 13 March 1990, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:
8. The order from the Bundesfinanzhof was received at the Court Registry on 26 April 1990.
9. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 19 July 1990 by the Commission of the European Communities, represented by Jorn Sack, Legal Adviser, acting as Agent, on 30 July 1990 by Post, represented by Barbara Festge, Rechtsanwalt, Hamburg, and on 1 August 1990 by the French Government, represented by Philippe Pouzoulet, Sous-Directeur des Affaires Juridiques, Ministry of Foreign Affairs, and Hélène Duchene, Secrétaire des Affaires Etrangères, in the same Ministry.
10. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
11. Pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court, by decision of 16 January 1991, assigned the case to the Second Chamber.
II — Written observations submitted to the Court
1. Post first states that the 75% whey protein concentrate at issue in the proceedings before the National Court is whey in the form of powder. In the manufacturing process, liquid whey is concentrated by ultrafiltration, an operation which eliminates not only the water but also some salt and a little lactose, with the result that the protein content by weight is increased. The liquid whey concentrate is then dehydrated. Post emphasizes that nothing is added to the product and that it is made up exclusively of the natural constituents of whey.
2. The French Government first states that 75% whey protein concentrate is a product recently put on to the market, obtained by ultrafiltration of whey and characterized by a very low lactose content (5%), whereas whey which has not been processed in any way contains 70 to 75% lactose. In order to answer the question submitted by the Bundesfinanzhof, it is therefore necessary to compare the proportion of lactose contained in whey with that contained in the product at issue and to decide whether the latter may be regarded as a whey from which part of the lactose has been removed. The importance of the question is that modified whey is included in the composition of dietetic foodstuffs which are enjoying growing commercial success.
3. The Commission first points out that subheadings 04041011 and 04049033 are within heading 0404 of the CCT, which comprises two groups of products, described on the one hand as whey, whether or not concentrated or containing added sugar or other sweetening matter (040410), and on the other, as products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included (040490).
1 Language of che case: German.