1 By order of 27 November 1990, which was received at the Court on 16 January 1991, the Bundesfinanzhof (Federal Finance Court) referred to the Court for a preliminary ruling under article 177 of the EEC Treaty a question on the interpretation of the Common Customs Tariff in relation to the classification of emulsifiers intended for pastry dough and consisting essentially of sorbitol syrup (70% by dry weight) and mono- and diglycerides.
2 That question was raised in proceedings between SuCrest GmbH, the plaintiff in the main proceedings, and Oberfinanzdirektion Muenchen (Principal Customs Office, Munich), the defendant in the main proceedings, concerning the tariff classification of the abovementioned substances.
3 The Oberfinanzdirektion issued to SuCrest tariff notices classifying the products in question under subheading 2106 of the Common Customs Tariff. SuCrest commenced legal proceedings against that decision.
4 The Bundesfinanzhof, before which the case was brought, considered it necessary for the Court to give a ruling on the interpretation of the tariff provisions governing classification of the products in question. It therefore submitted the following question for a preliminary ruling:
"Must the Common Customs Tariff, Combined Nomenclature, be interpreted as meaning that emulsifiers intended for pastry dough and consisting essentially of sorbitol syrup (70% by dry weight) and monoglycerides and diglycerides are, as 'mixtures' within the meaning of note 1(b) to Chapter 38, excluded from that chapter and fall under heading 2106?"
5 Reference is made to the Report for the Hearing for a fuller account of the facts, 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.
6 It should be observed that note 1(b) to Chapter 38 of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (Official Journal 1987 L 256, p. 1) indicates that Chapter 38 does not cover mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs.
7 It is apparent from the documents before the Court that the emulsifiers in question are made up of carotene oil and proplylene glycol together with sorbitol syrup and monoglycerides and diglycerides.
8 At the hearing it emerged that the latter components have a nutritive value since they are used in the preparation of foodstuffs for human consumption, namely the production of dough for baking, and are metabolized in the same or a similar manner as the components of foodstuffs, thus contributing energy to sustain human life. It is also undisputed that those components are chemicals.
9 The question therefore arises whether the latter fact prevents sorbitol syrup and mono- and diglycerides from being covered by the term "foodstuffs or other substances with nutritive value".
10 It should be observed that the 1950 Brussels Nomenclature only excluded from Chapter 38 "mixtures of chemicals and foodstuffs". The Nomenclature Committee of the Customs Cooperation Council stated, in an explanatory note, that the term "foodstuffs" did not cover certain substances, such as sorbitol, which have nutritive value but may also be regarded as chemicals, and therefore the wording of note 1(b) was amended so as to extend the exclusion from Chapter 38 to "substances with nutritive value". That term must therefore be interpreted in the light of the circumstances which led to its adoption and, in particular, in the light of the abovementioned explanatory note, which, as the Court has held (see its judgment in Case C-265/89 Vismans Nederlands v Inspecteur der Invoerrechten en Accijnzen [ECR] I-3411), must be taken into account in interpreting the Common Customs Tariff. In those circumstances, it must be concluded that the term "substances with nutritive value" may apply to chemicals.
11 It must also be observed that the opinion of the Scientific Subcommittee of the Customs Cooperation Council confirms that the term "mixtures", within the meaning of note 1(b), covers preparations whose components display the two types of characteristics mentioned in that provision, namely those of chemicals and those of substances with nutritive value.
12 It follows from the foregoing considerations that it must be stated in reply to the question from the national court that the Common Customs Tariff must be interpreted as meaning that emulsifiers intended for pastry dough and consisting essentially of sorbitol syrup (70% by dry weight) and mono- and diglycerides are, as "mixtures" within the meaning of note 1(b) to Chapter 38, excluded from that chapter and fall under tariff heading 2106.
Costs
13 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fourth Chamber),
in answer to the question submitted to it by the Bundesfinanzhof, by order of 27 November 1990, hereby rules:
The Common Customs Tariff must be interpreted as meaning that emulsifiers intended for pastry dough and consisting essentially of sorbitol syrup (70% by dry weight) and mono- and diglycerides are, as 'mixtures' within the meaning of note 1(b) to Chapter 38, excluded from that chapter and fall within tariff heading 2106.
