Report for the Hearing in Case C-377/92

I — Relevant legislation

1. The chapters, headings and subheadings of the Common Customs Tariff (hereinafter the CCT) and the general considerations and explanatory notes of the Customs Cooperation Council on the Harmonized System (hereinafter the Explanatory Notes) which concern this case are worded as follows:

II — Facts and procedure

2. By a binding customs tariff ruling the Oberfinanzdirektion München (Principal Revenue Office, Munich) classified the product in dispute (coconut powder — Santan Coconut Cream Powder) under subheading 21069099 of the CCT as a food preparation not elsewhere specified or included (other). The Principal Revenue Office excluded a different tariff classification, in particular under subheading 11063090 — powder of the products of Chapter (other) 8 —, because the product contained no vegetable fibre visible under the microscope.

3. The German company Felix Koch Offenbach Couleur und Karamel GmbH, the plaintiff in the main proceedings, claimed that the dried coconut powder, as coconut pulp powder, had to be classified under heading 1106. The fact that it contained only 0.15% recognizable proportion of raw fibre was of no significance.

4. The Principal Revenue Office contended primarily that at the previous stage of manufacture the product has a vegetable fibre content of only 0.15% coconut pulp and the product itself exhibited no vegetable fibre whatever, whereas the edible part of coconuts (the pulp) consisted of some 3.3% raw fibre. Moreover, the manufacture of the product did not correspond to that of a fruit or nut powder.

5. The Bundesfinanzhof (Federal Finance Court), which was called upon to give judgment in the main action, decided to stay proceedings and referred the following question to the Court for a preliminary ruling:

6. The order for reference was received at the Court Registry on 12 October 1992. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged by the plaintiff in the main proceedings, represented by H. Glashoff, Tax Consultant, and by the Commission of the European Communities, represented by B. Rodriguez Galindo and A. Bardenhewer, of its Legal Service, acting as Agents, assisted by Professor H.-J. Rabe, Rechtsanwalt.

7. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to assign the case to the First Chamber in accordance with Article 95 of the Rules of Procedure and to open the oral procedure without any preparatory inquiry.

III — Written observations submitted to the Court

8. The plaintiff in the main proceedings submits that the processing of the coconut pulp during the manufacture of the coconut powder does not go beyond the treatment authorized by the wording of 0801 of the CCT. In other words, the coconut pulp, even with the processing which it has undergone in this case, should still be regarded as a product referred to in Chapter 8 and therefore the product in question should be classified under subheading 11063090, that is to say as products resulting from those referred to in Chapter 8, by manufacturing processes referred to that chapter.

9. The Commission notes first of all that subheading 21069099 is a residual heading and that it should therefore be ascertained whether the product imported by the plaintiff in the main proceedings is covered by heading 0801, 1106 or 2008.

1 Language of the case: German.