Avis juridique important

Judgment of the Court (Second Chamber) of 7 May 1991. - Ludwig Post GmbH v Oberfinanzdirektion München. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Tariff headings 0404 10 11 and 0404 90 33 - 75% whey protein concentrate. - Case C-120/90. European Court reports 1991 Page I-02391

Summary Parties Grounds Decision on costs Operative part

++++

Common Customs Tariff - Tariff headings - Product containing 76.6% protein, 5% lactose and 2.1% fat, without detectable sugar, obtained by ultrafiltration - Classification under subheading 0404 90 33 of the Combined Nomenclature

The Common Customs Tariff must be interpreted as meaning that a product described as "75% whey protein concentrate", consisting as to 76.6% of protein, 5% of lactose and 2.1% of milk fat, without detectable sugar, obtained by the ultrafiltration of whey, must be classified under subheading 0404 90 33 of the Common Customs Tariff as "products consisting of natural milk constituents ..." in the version of that subheading in the annex to Commission Regulation No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. Such a product, which no longer displays the essential characteristics of whey, cannot be classified under subheading 0404 10 as "whey, whether or not concentrated ... not containing added sugar or other sweetening matter".

In Case C-120/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the proceedings pending before that Court between

Ludwig Post GmbH

and

Oberfinanzdirektion Muenchen (Regional Finance Directorate, Munich),

on the interpretation of subheadings 0404 10 11, "whey, whether or not concentrated ... not containing added sugar or other sweetening matter" and 0404 90 33, "products consisting of natural milk constituents ... not elsewhere specified or included, not containing added sugar or other sweetening matter, of a protein content by weight exceeding 42% and of a fat content by weight exceeding 1.5% but not exceeding 27%", of the Common Customs Tariff in the version annexed to Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (Official Journal 1988 L 298, p. 1),

THE COURT (Second Chamber),

composed of: T.F. O' Higgins, President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,

Advocate General: G. Tesauro,

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of:

Ludwig Post GmbH, by Barbara Festge, Rechtsanwalt, Hamburg,

The French Government, by Philippe Pouzoulet, Sous-Directeur des Affaires Juridiques, Ministry for Foreign Affairs, and Hélène Duchene, Secrétaire des Affaires Etrangères, in the same Ministry,

The Commission of the European Communities, by Jorn Sack, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument presented on behalf of Ludwig Post GmbH and the Commission at the hearing on 7 March 1991,

after hearing the Opinion of the Advocate General at the sitting on the same day,

gives the following

Judgment

1 By order of 13 March 1990, which was received at the Court Registry on 26 April 1990, the Bundesfinanzhof referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of subheadings 0404 10 11, "whey, whether or not concentrated ... not containing added sugar or other sweetening matter" and 0404 90 33, "products consisting of natural milk constituents ... not elsewhere specified or included, not containing added sugar or other sweetening matter, of a protein content by weight exceeding 42% and of a fat content by weight exceeding 1.5% but not exceeding 27%", of the Common Customs Tariff in the version annexed to Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (Official Journal 1988 L 298, p. 1).

2 That question was raised in proceedings brought by Ludwig Post GmbH ("Post") against the Oberfinanzdirektion Muenchen concerning the tariff classification of a product described as "75% whey protein concentrate".

3 It is apparent from the documents in the proceedings before the national court that the product at issue is a powder obtained by ultrafiltration of whey, intended to be used in food preparations, containing 76.6% protein, 5% lactose and 2.1% fat, without detectable sugar. The proportion of lactose in the product represents only about one-fourteenth of the proportion usually contained in powdered whey.

4 In 1988, the Oberfinanzdirektion issued to Post a notice classifying the product in question under subheading 0404 90 33 of the combined nomenclature of the Common Customs Tariff (CCT). Post, on the other hand, considered that the product should be classified under subheading 0404 10 11 of the CCT.

5 In support of the claims made by it before the Bundesfinanzhof, Post maintained that it was apparent from the explanatory notes concerning heading 0404 of the CCT that the removal of part of the lactose from the product in question did not affect its character of "whey" within the meaning of subheading 0404 10 11. Post relied on scientific practice in the food industry and on trade usage.

6 In the grounds of its order for reference, the national court stated that it was inclined to share the view advocated by the Oberfinanzdirektion. In that connection, the Bundesfinanzhof referred in particular to the low lactose content of the product in question. Because of the low lactose content, the goods had lost the essential characteristics of the basic product and, as the Court held in its judgment in Case 40/88 Weber 1989 ECR 1395, could no longer qualify for the tariff classification made for that product. The product was thus not whey from which part of the lactose had been removed but modified whey with a low lactose content.

7 However, the national court considered that the interpretation of the tariff provisions in question raised certain doubts since, first, an amendment of the tariff rules was envisaged, whereby modified whey would be classified with "whey" under subheading 0404 10 of the CCT and, secondly, Post' s representative had contended that the customs authorities in certain Member States had classified powdered whey containing 75% protein and 3% lactose under subheading 0404 10 of the CCT.

8 In those circumstances, the Bundesfinanzhof stayed the proceedings and referred the following question to the Court for a preliminary ruling:

"Must the combined nomenclature (1988) be interpreted as meaning that a powder containing 76.6% milk protein, 2.1% milk fat and 5% lactose, without detectable sugar, obtained from the ultrafiltration of whey must be classified under subheading 0404 90 33 as a 'product consisting of natural milk constituents ...' or, if not, under subheading 0404 10 11 as 'whey ...' "?

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

10 In its question, the national court seeks essentially to determine whether the CCT must be interpreted as meaning that a product called "75% whey protein concentrate", which has been obtained by ultrafiltration of whey and contains 76.6% protein, 5% lactose and 2.1% fat, without detectable sugar must be classified under subheading 0404 90 33 of the CCT, "products consisting of natural milk constituents ..." or, being whey, should be classified under subheading 0404 10 11 of the CCT.

12 In that connection, it must be stated in the first place that subheadings 0404 10 and 0404 90, which come under heading 0404 of the CCT, cover two groups of products described respectively as "whey, whether or not concentrated or containing added sugar or other sweetening matter" (subheading 0404 10) and "products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included" (subheading 0404 90).

13 Secondly, the explanatory notes on the harmonized commodity description and coding system concerning heading 0404 of the CCT make it clear that whey is made up of the natural constituents of milk which remain after the fat and casein have been removed. Furthermore, according to those explanatory notes, part of the lactose or some minerals may be removed from the whey and it may be concentrated.

14 It is therefore necessary to compare the proportion of lactose contained in whey and in a product such as the one at issue in this case in order to determine whether the latter product can be regarded as whey from which part of the lactose has been removed, within the meaning of the explanatory notes.

15 As the national court indicated in its order for reference, the product obtained from milk, after the removal of fat and casein, normally contains 70% lactose as against 10 to 14% albumin, and that view was also confirmed by the Commission. However, it is apparent from the order for reference that the lactose content of the product in question in this case is only 5%.

17 That requirement is not fulfilled in the case of a 75% whey protein concentrate of the type at issue in this case since, first, the proportion of lactose in that product is no more than about one-fourteenth of the proportion usually contained in powdered whey and, secondly, as a result of the removal of almost all the lactose the respective proportions of the other constituents of the whey have also changed substantially.

18 In those circumstances, such a product no longer displays the essential characteristics of the basic product "whey" and, in view of the low lactose content by comparison with the normal proportion which that constituent accounts for, the product cannot be regarded as whey from which part of the lactose has been removed, within the meaning of the explanatory notes. Accordingly, a product of that kind cannot be classified under subheading 0404 10 of the CCT.

19 On the other hand, it must be stated that, having regard to the composition of the product as described in the order for reference, a 75% whey protein concentrate of the type at issue in this case displays the objective characteristics defined in the wording of tariff subheading 0404 90 33.

20 It is a product consisting of natural constituents of milk, containing 76.6% protein, that is to say more than 42% as required by the wording of the subheading in question, whose fat content of 2.1% is within the prescribed range (between 1.5 and 27%) and for which the requirement of no added sugar or other sweeteners is satisfied by the absence of detectable sugar.

21 Accordingly, a 75% whey protein concentrate of the type at issue in this case is, for the purposes of tariff classification, a product consisting of natural constituents of milk, within the meaning of subheading 0404 90 33 of the CCT.

22 That conclusion is confirmed by the fact that the Nomenclature Committee of the Customs Cooperation Council decided, having regard to the rules as they stand at present, to classify modified whey under subheading 0404 90 of the CCT.

23 As the Commission has correctly pointed out, the fact that on that occasion the Nomenclature Committee stated that it considered that it would be desirable in the future to amend the nomenclature so as to bring natural whey and modified whey both under subheading 0404 10 of the CCT and that that view was adopted on 5 July 1989 by the Customs Cooperation Council in the form of a recommendation addressed to the Member States, which will be implemented in Community legislation with effect from 1 January 1992, is not relevant to the interpretation of the present version of the CCT.

25 It follows from the foregoing considerations that it must be stated in reply to the question submitted by the national court that the CCT must be interpreted as meaning that a product described as "75% whey protein concentrate", consisting as to 76.6% of protein, 5% of lactose and 2.1% of milk fat, without detectable sugar, obtained by ultrafiltration of whey, must be classified under subheading 0404 90 33 of the CCT as "products consisting of natural milk constituents ..." in the version of that subheading in the Annex to Regulation No 3174/88.

Costs

26 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in reply to the question submitted to it by the Bundesfinanzhof by order of 13 March 1990, hereby rules:

The Common Customs Tariff must be interpreted as meaning that a product described as "75% whey protein concentrate", consisting as to 76.6% of protein, 5% of lactose and 2.1% of milk fat, without detectable sugar, obtained by the ultrafiltration of whey, must be classified under subheading 0404 90 33 of the Common Customs Tariff as "products consisting of natural milk constituents ..." in the version of that subheading contained in the annex to Commission Regulation No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff.