présentées dans des bouteilles

Criminal proceedings against B.S.

on those grounds alone from being ‘beer made from malt’ within CN heading 2203. 39 Nevertheless, such a product can come under that heading only on condition that its objective characteristics and properties correspond to those of beer. In this regard, account must be taken more particularly of the organoleptic characteristics of the product in question (see, to that effect, judgments of 7 May 2009, Siebrand, C‑150/08 , EU:C:2009:294 , paragraphs 36 and 37 , and of 16 December 2010, Skoma-Lux, C‑339/09 , EU:C:2010:781 , paragraph 46 ). 40 It follows that if the organoleptic characteristics of the intermediate alcoholic product, which is mixed by B. S. with non-alcoholic beverages in order to manufacture the end product sold by him, do not correspond to those of beer, which would be the case in particular if that intermediate product did not visually resemble beer or did not have its specific taste, that product could not be classified as ‘beer made from malt’ within CN heading 2203. It is for the referring court to carry out the necessary verifications in that respect. 41 In the light of the above considerations, the answer to the question referred is that Article 2 of Directive 92/83 must be interpreted as meaning that an intermediate product intended to be mixed with non-alcoholic beverages, obtained from a wort containing less malt ingredients than non-malt ingredients and to which glucose syrup is added before the fermentation process, may be classified as ‘beer made from malt’ within CN heading 2203, provided that the organoleptic characteristics of the product correspond to those of beer, which is for the referring court to ascertain. Costs 42 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (

1967/2005

Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature, and the wording of CN codes 2203 00 and 2203 00 01. The product is a beverage and can be considered as a beer made from malt of heading 2203. The product cannot be excluded from position 2203 as the alcohol added via the aromatic components results in only 0,04 % alcohol by volume. Consequently, the product cannot be classified in heading 2208. The Harmonized System Explanatory Note to heading 2203 indicates that sugar, colouring matter, carbon dioxide and other substances may be added. Consequently, beer of heading 2203 can, inter alia, be aromatised. Documented CN 2026 code: 22030001.