1 BY AN ORDER OF 10 FEBRUARY 1981 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 9 MARCH 1981 , THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS ON THE INTERPRETATION OF HEADING 13.03 ( VEGETABLE EXTRACTS ) AND SUBHEADING 33.01 C ( RESINOIDS ) OF THE COMMON CUSTOMS TARIFF .
2 IN MAY 1977 THE PLAINTIFF IN THE MAIN ACTION IMPORTED FROM THE UNITED STATES OF AMERICA A PRODUCT DESCRIBED AS ' ' EXTRACT OF GINGER ' ' . THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-WALTERSHOF CLASSIFIED THE PRODUCT IN QUESTION AS VEGETABLE EXTRACT FALLING WITHIN TARIFF HEADING 13.03 OF THE COMMON CUSTOMS TARIFF . SUBSEQUENTLY , ON THE BASIS OF A REPORT OF THE ZOLLTECHNISCHE PRUFUNGS- UND LEHRANSTALT ( CUSTOMS LABORATORY AND TRAINING COLLEGE ) HAMBURG , THE HAUPTZOLLAMT CLASSIFIED THE PRODUCT AS RESINOID FALLING WITHIN TARIFF SUBHEADING 33.01 C AND MADE A RETROACTIVE LEVY OF CUSTOMS DUTY .
3 THE ADMINISTRATIVE OBJECTION TO THAT SECOND CLASSIFICATION AND THE SUBSEQUENT ACTION BEFORE THE FINANZGERICHT ( FINANCE COURT ) HAMBURG WERE UNSUCCESSFUL . BEFORE THE BUNDESFINANZHOF , THE PLAINTIFF IN THE MAIN ACTION CONTENDED THAT THE GINGER EXTRACT WAS TO BE CLASSIFIED UNDER TARIFF HEADING 13.03 , BECAUSE OF ITS COMPOSITION , CHARACTERISTICS AND PROPERTIES .
4 CONSIDERING THAT THE SOLUTION OF THE DISPUTE DEPENDED ESSENTIALLY ON THE INTERPRETATION OF THE CONCEPTS OF ' ' VEGETABLE EXTRACTS ' ' AND ' ' RESINOIDS ' ' AND ON THE DETERMINATION OF THE APPROPRIATE CRITERIA BY A COMPARISON OF THE RESPECTIVE CONCEPTS , THE BUNDESFINANZHOF REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTIONS :
' ' HOW MUST TARIFF HEADING 13.03 ( VEGETABLE EXTRACTS ) AND TARIFF SUBHEADING 33.01 C ( RESINOIDS ) BE INTERPRETED AND DELIMITED IN RELATION TO ONE ANOTHER? IS A PRODUCT DESCRIBED AS EXTRACT OF GINGER CONTAINING , IN ADDITION TO 25% ESSENTIAL OILS , ALL THE SOLUBLE CONTENTS OF THE GINGER ROOT TO BE REGARDED AS VEGETABLE EXTRACT COMING WITHIN TARIFF HEADING 13.03 OR , HAVING REGARD TO THE AMOUNTS OF ODORIFEROUS SUBSTANCES OR FRAGRANT CONSTITUENTS , AS RESINOID FALLING WITHIN TARIFF SUBHEADING 33.01 C , EVEN THOUGH AS VEGETABLE EXTRACT IT CONTAINS ALL THE TYPICAL CONTENTS AND CONSTITUENT SUBSTANCES OF THE GINGER ROOT? IN ADDITION TO THE ESSENTIAL OILS , DOES FOR EXAMPLE ' ' GINGEROL ' ' ALSO BELONG TO THE ODORIFEROUS SUBSTANCES OR FRAGRANT CONSTITUENTS?
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5 CHAPTER 13 OF THE COMMON CUSTOMS TARIFF COVERS ' ' LACS ; GUMS , RESINS AND OTHER VEGETABLE SAPS AND EXTRACTS ' ' . ACCORDING TO NOTE ( H ) ON THE CHAPTER , IT DOES NOT COVER ' ' ESSENTIAL OILS , CONCRETES , ABSOLUTES AND RESINOIDS ( HEADING NO 33.01 ) OR AQUEOUS DISTILLATES AND AQUEOUS SOLUTIONS OF ESSENTIAL OILS ' ' . SUBHEADING 13.03 A VIII COVERS ' ' VEGETABLE SAPS AND EXTRACTS . . . OTHER ' ' .
6 CHAPTER 33 COVERS ' ' ESSENTIAL OILS AND RESINOIDS ; PERFUMERY , COSMETIC OR TOILET PREPARATIONS ' ' . HEADING 33.01 , ' ' ESSENTIAL OILS ( TERPENELESS OR NOT ), CONCRETES AND ABSOLUTES ; RESINOIDS ' ' INCLUDES SUBHEADING 33.01 C , ' ' RESINOIDS ' ' .
7 THE PLAINTIFF IN THE MAIN PROCEEDINGS CLAIMS THAT THE PRODUCT IN QUESTION FALLS WITHIN SUBHEADING 13.03 A VIII BECAUSE , IN ADDITION TO THE COMMON ODORIFEROUS CONSTITUENTS ( ESSENTIAL OILS ), IT INCLUDES A FAR LARGER PROPORTION OF OTHER PLANT SUBSTANCES . IF , ON THE OTHER HAND , IT CONSISTED ESSENTIALLY OF ODORIFEROUS CONSTITUENTS ( ESSENTIAL OILS ) AND CONTAINED ONLY TRIFLING QUANTITIES OF THE PLANT , IT SHOULD BE CLASSIFIED UNDER TARIFF HEADING 33.01 AS AN ESSENTIAL OIL OR RESINOID .
8 THE COMMISSION , ON THE OTHER HAND , CONSIDERS THAT VEGETABLE EXTRACTS WHOSE CHARACTER IS DETERMINED BY THEIR FRAGRANCE FALL AS RESINOIDS WITHIN TARIFF HEADING 33.01 . THE FRAGRANCE OF RESINOIDS UNDER THAT TARIFF HEADING IS DETERMINED BY ALL OF THE EXTRACTED FRAGRANT SUBSTANCES . THE FACT THAT THERE IS OR IS NOT A PREPONDERANCE IN WEIGHT OR QUANTITY OF FRAGRANT SUBSTANCES OF AN EXTRACT IS NOT A DECISIVE FACTOR . THE COMMISSION RELIES ON THE CONSIDERATION THAT THE TASTE OF A SUBSTANCE CANNOT BE JUDGED SEPARATELY FROM ITS SMELL . THAT IS CORROBORATED BY THE FACT THAT , IN THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE , THE TITLE OF TARIFF HEADING 33.04 INCLUDES , IN THE GERMAN VERSION , THE REFERENCE TO ' ' RIECH- ODER AROMASTOFFEN ' ' ( ODORIFEROUS OR FRAGRANT SUBSTANCES ). IT INFERS FROM THIS THAT THE ESSENTIAL CHARACTERISTIC OF RESINOIDS CONSISTS BOTH IN THEIR SMELL AND IN THEIR TASTE .
9 THAT VIEW CANNOT BE ACCEPTED . IT DOES NOT TAKE INTO ACCOUNT THE FACT THAT THE OTHER LINGUISTIC VERSIONS OF THE EXPLANATORY NOTES TO THE CUSTOMS CO-OPERATION COUNCIL NOMENCLATURE DO NOT SPEAK OF ' ' ODORIFEROUS OR FRAGRANT SUBSTANCES ' ' BUT ONLY OF ' ' ODORIFEROUS SUBSTANCES ' ' . MOREOVER , IT IS INCOMPATIBLE WITH NOTE ( K ) ON HEADING 13.03 , WHICH STATES THAT ' ' AN EXTRACT DIFFERS FROM AN ESSENTIAL OIL IN THAT IT CONTAINS , APART FROM THE ODORIFEROUS CONSTITUENTS , A FAR HIGHER PROPORTION OF OTHER PLANT SUBSTANCES ( FOR EXAMPLE CHLOROPHYLL , TANNINS , BITTER PRINCIPLES , CARBOHYDRATES AND OTHER EXTRACTIVE MATTER ) ' ' . IN THE SAME NOTE IT IS STATED THAT ESSENCES AND RESINOIDS FALLING WITHIN HEADING 33.01 DIFFER FROM EXTRACTS UNDER HEADING 13.03 INASMUCH AS THEY ARE ESSENTIALLY COMPOSED OF ODORIFEROUS SUBSTANCES .
10 FROM THOSE CONSIDERATIONS IT MAY BE INFERRED THAT ' ' ESSENTIAL OILS AND RESINOIDS ' ' OF PRODUCTS WHICH CONTAIN , APART FROM ODORIFEROUS SUBSTANCES , A FAR HIGHER PROPORTION OF OTHER PLANT SUBSTANCES , SUCH AS CHLOROPHYLL , TANNINS , BITTER PRINCIPLES OR OTHER FLAVOURING SUBSTANCES , CARBOHYDRATES AND OTHER EXTRACTIVE MATTER WHICH HELP TO DETERMINE THE TYPICAL CHARACTER OF THE PRODUCT DO NOT FALL WITHIN HEADING 33.01 OF THE COMMON CUSTOMS TARIFF .
11 IN PARTICULAR , A PRODUCT SUCH AS GINGEROL IS NOT AMONG THE ODORIFEROUS SUBSTANCES WHICH FALL WITHIN THE SAID TARIFF HEADING , SINCE ITS ESSENTIAL CHARACTERISTICS ARE DETERMINED LARGELY BY TASTE AND NOT BY SMELL .
COSTS
12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN 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 , COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 10 FEBRUARY 1981 HEREBY RULES :
1 . ' ' ESSENTIAL OILS AND RESINOIDS ' ' OF PRODUCTS WHICH CONTAIN , IN ADDITION TO ODORIFEROUS SUBSTANCES , A FAR HIGHER PROPORTION OF OTHER PLANT SUBSTANCES , SUCH AS CHLOROPHYLL , TANNINS , BITTER PRINCIPLES OR OTHER FLAVOURING SUBSTANCES , CARBOHYDRATES AND OTHER EXTRACTIVE MATTER WHICH HELP TO DETERMINE THE TYPICAL CHARACTER OF THE PRODUCT , DO NOT FALL WITHIN HEADING 33.01 OF THE COMMON CUSTOMS TARIFF .
2 . A PRODUCT SUCH AS GINGEROL IS NOT AMONG THE ODORIFEROUS SUBSTANCES WHICH FALL WITHIN THE SAID TARIFF HEADING , SINCE ITS ESSENTIAL CHARACTERISTICS ARE DETERMINED LARGELY BY TASTE AND NOT BY SMELL .
