Judgment of the Court (Tenth Chamber), 23 January 2014

The Harmonised Commodity Description and Coding System

3 The Customs Cooperation Council, now the World Customs Organisation (WCO), was established by the convention establishing that body, concluded at Brussels on 15 December 1950. The CN is based on the Harmonised Commodity Description and Coding System (‘the HS’), which was drawn up by the WCO and established by the International Convention on the Harmonised Commodity Description and Coding System (‘the HS Convention’) concluded at Brussels on 14 June 1983 and approved, together with the Protocol of Amendment thereto of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4 Under Article 3(1) of the HS Convention, each Contracting Party undertakes to ensure that its customs tariff and statistical nomenclatures will be in conformity with the HS, to use all the headings and subheadings of the HS without addition or modification, together with their related codes, and to follow the numerical sequence of that system. Each Contracting Party also undertakes to apply the General Rules for the interpretation of the HS and all the section, chapter and subheading notes of the HS, and not to modify their scope.

5 The WCO is to approve, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee.

6 On the date when the import declarations at issue in the main proceedings were filed, the HS Explanatory Notes concerning heading 2508 were worded as follows:

‘This heading covers all natural clayey substances (other than kaolin and other kaolinic clays of heading 25.07) consisting of earths or rocks of sedimentary origin with a basis of aluminium silicates. The characteristic properties of these products are plasticity, the faculty of hardening when fired and resistance to heat. Because of these properties clays are used as raw materials in the ceramic industry (bricks, building tiles, porcelain, china, earthenware, refractory bricks and other refractory goods, etc.); common clay is also used for soil improvement.

...

This heading does not cover:

...

1. Activated clay (heading 38.02).

...’

7 Under point A, entitled ‘Activated carbon; activated natural mineral products’, the HS Explanatory Notes concerning heading 3802 stated the following:

‘Carbon and mineral substances are said to be activated when their superficial structure has been modified by appropriate treatment (with heat, chemicals, etc.) in order to make them suitable for certain purposes, such as decolourising, gas or moisture adsorption, catalysis, ion-exchange or filtering.

...

The heading includes:

...

1. Other activated natural mineral products such as:

   ...

   1. Activated clays and activated earths. These consist of selected colloidal clays or clayey earths activated, according to their intended use, by means of an acid or an alkali, dried and then ground. When activated by means of an alkali, they are emulsifiers, suspension agents and agglomerating agents; these are used, in particular, in the manufacture of polishing or cleaning preparations, and, because of their swelling properties, for improving foundry sands and drilling sludge. When activated by means of an acid, they are mainly used for decolourising animal, vegetable or mineral oils, fats or waxes.

   ...

The heading also excludes:

1. Naturally active mineral products (e.g., fuller’s earth), which have not undergone any treatment modifying their superficial structure (Chapter 25).

...’

The CN

8 Customs classification of goods imported into the European Union is governed by the CN. The version of the CN in force at the time of the facts in the main proceedings is that resulting from Regulation No 1549/2006.

9 Article 9(1) and (2) of Regulation No 2658/87, as amended by Regulation No 1549/2006, is worded as follows:

‘1.

Measures relating to the matters set out below shall be adopted in accordance with the procedure defined in Article 10:

1. application of the [CN] and the [integrated tariff of the European Communities] Taric, concerning in particular:

   • the classification of goods in the nomenclatures referred to in Article 8;

   • explanatory notes;

   ...

2. amendments to the [CN] to take account of changes in requirements relating to statistics or to commercial policy;

3. amendments to Annex II;

4. amendments to the [CN] and adjustments to duties in accordance with decisions adopted by the Council or the Commission;

5. amendments to the [CN] intended to adapt it to take account of technological or commercial developments or aimed at the alignment or clarification of texts;

6. amendments to the [CN] resulting from changes to the [HS] nomenclature;

...

2.

The provisions adopted under paragraph 1 shall not amend:

• the rates of customs duties;

...’

10 Part Two of the CN, which contains the table of customs duties, includes Section V, headed ‘Mineral products’. That section contains Chapter 25, entitled ‘Salt; sulphur; earths and stone; plastering materials, lime and cement’. In Chapter 25, CN heading 2508 was amended by Regulation No 1549/2006, which entered into force on 1 January 2007 and is therefore applicable to the facts in the main proceedings.

11 Prior to that amendment, in the version thereof resulting from Commission Regulation (EC) No 1719/2005 of 27 October 2005 amending Annex I to Council Regulation No 2658/87 (OJ 2005 L 286, p. 1), CN heading 2508 included a subheading 2508 20 00 for decolourising earths and fuller’s earth. Regulation No 1549/2006 abolished that subheading, with the result that CN heading 2508 was worded as follows in the version thereof applicable to the facts in the main proceedings:

‘Other clays (not including expanded clays of heading 6806), andalusite, kyanite and sillimanite, whether or not calcined; mullite; chamotte or dinas earths:

2508 10 00 – Bentonite

2508 30 00 – Fireclay

2508 40 00 – Other clays

2508 50 00 – Andalusite, kyanite and sillimanite

2508 60 00 – Mullite

2508 70 00 – Chamotte or dinas earths.’

12 Section VI of the CN, titled ‘Products of the chemical or allied industries’, includes Chapter 38, ‘Miscellaneous chemical products’. In both the version resulting from Regulation No 1719/2005 and the one resulting from Regulation No 1549/2006, CN heading 3802 reads as follows:

‘3802 Activated carbon; activated natural mineral products; animal black, including spent animal black:

3802 10 00 – Activated carbon

3802 90 00 – Other.’

13 Chapter 25 of the CN includes a note 1, which is worded as follows:

‘Except where their context or note 4 to this chapter otherwise requires, the headings of this chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallisation), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading.

The products of this Chapter may contain an added anti-dusting agent, provided that such addition does not render the product particularly suitable for specific use rather than for general use.’

14 Note 4 to Chapter 25 of the CN, to which note 1 refers, states, inter alia:

‘Heading 2530 applies, inter alia, to: vermiculite, perlite and chlorites, unexpanded; earth colours, whether or not calcined or mixed together; natural micaceous iron oxides; meerschaum (whether or not in polished pieces); amber; agglomerated meerschaum and agglomerated amber, in plates, rods, sticks or similar forms, not worked after moulding; jet; strontianite (whether or not calcined), other than strontium oxide; broken pieces of pottery, brick or concrete.’

The first question

36 By its first question, the referring court asks, in essence, whether the concept of ‘eliminating impurities’ referred to in Note 1 to Chapter 25 of the CN must be interpreted as also covering the elimination of chemical components found in a mineral product in a crude state through natural circumstances, with a view to strengthening natural properties of that product.

37 An initial point to be made is that, contrary to the assertions of the claimant in the main proceedings, the fact that a process may occur in natural circumstances does not rule out the possibility that it may constitute treatment as referred to in Note 1 to Chapter 25 of the CN and does not mean that products which go through such a process, like the products at issue in the main proceedings, must be considered mineral products in a crude state within the meaning of that note.

38 In order to determine the scope of the concept of ‘eliminating impurities’ within the meaning of Note 1 to Chapter 25 of the CN, which is the subject-matter of the first question, it is useful to turn to the Court’s settled case-law, in which it has been held that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C-183/06 RUMA [2007] ECR I-1559, paragraph 27; Joined Cases C-208/06 and C-209/06 2007 Medion and Canon Deutschland [2007] ECR I-7963, paragraph 34; and Case C-568/11 Agroferm [2013] ECR, paragraph 27).

39 Moreover, the intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see RUMA, paragraph 36; Case C-123/09 Roeckl Sporthandschuhe [2010] ECR I-4065, paragraph 28; and Agroferm, paragraph 41).

40 It is apparent from the order for reference that the treatment applied to the products at issue in the main proceedings, batches of decolourising earth, consists in effecting a structural replacement of calcium ions with hydrogen ions in order to increase their adsorption capacity, which makes them suitable for purifying and decolourising edible oils. It is, furthermore, apparent from the observations put forward by the Commission at the hearing – without being contradicted on the point – that that treatment rules out the possibility of decolourising earth for purposes other than the purification and decolouration of edible oils.

41 In such circumstances, as pointed out by the Commission, the concept of ‘eliminating impurities’ within the meaning of Note 1 to Chapter 25 of the CN must be interpreted having regard to the inherent intended use of the products at issue. Thus, the elimination of calcium ions may be considered as an elimination of impurities within the meaning of that note, in so far as that elimination enhances the ability of the products at issue to fulfil their inherent intended use, namely the decolouration and purification of edible oils, which it is for the national court to verify.

42 In the light of the foregoing, the answer to the first question is that the concept of ‘eliminating impurities’ referred to in Note 1 to Chapter 25 of the CN must be interpreted as covering the elimination of chemical components found in a mineral product in a crude state through natural circumstances, in so far as that elimination takes place with a view to enhancing the ability of the products at issue to fulfil their inherent intended use, which it is for the national court to verify.

The second question

43 By its second question, the referring court asks, in essence, whether Note 1 to Chapter 25 of the CN must be interpreted as meaning that a mineral substance such as decolourising earth, after being washed with sulphuric acid and water, can remain classified under subheading 2508 40 00 of the CN and not rather be regarded as a chemical product as referred to in Chapter 38 of the HS.

44 First of all, in the light of the order for reference and the observations submitted by the parties in the main proceedings, the scope of the second question referred is restricted to the concept of ‘washing’ within the meaning of Note 1 to Chapter 25 of the CN and does not concern the other treatments referred to therein.

45 It is clear from the very wording of Note 1 to Chapter 25 of the CN that the concept of ‘washing’ includes the elimination of impurities with the use of chemical substances without changing the structure of the product.

46 Yet, according to the order for reference and the observations submitted by the parties concerned, the treatment at issue in the main proceedings involves the use of chemical substances, more specifically sulphuric acid, which it is nevertheless for the referring court to verify. Accordingly, assuming that treatment does entail the elimination of impurities, which it is also for the national court to verify in the light of the answer to the first question referred, the decisive criterion for determining whether, under Note 1 to Chapter 25 of the CN, the products at issue must remain classified under CN tariff heading 2508, is whether their structure is changed.

47 It is clear in that regard that the wording of Note 1 to Chapter 25 of the CN does not provide any guidance on the concept of ‘structure’ of the product at issue.

48 The HS Explanatory Notes, however, despite their lack of binding force, are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (Case C-173/08 Kloosterboer Services [2009] ECR I-5347, paragraph 25, and Agroferm, paragraph 28).

49 In that regard, the HS Explanatory Notes relating to heading 3802 state that ‘[c]arbon and mineral substances are said to be activated when their superficial structure has been modified by appropriate treatment (with heat, chemicals, etc.) in order to make them suitable for certain purposes, such as decolourising, gas or moisture adsorption, catalysis, ion-exchange or filtering’. Those same notes state that heading 3802 does not cover ‘[n]aturally active mineral products (e.g., fuller’s earth), which have not undergone any treatment modifying their superficial structure (Chapter 25)’.

50 Consequently, as rightly pointed out by the Commission, Note 1 to Chapter 25 of the CN, interpreted in the light of the HS Explanatory Notes relating to heading 3802, rules out the possibility that products which have undergone treatment modifying their superficial structure may be classified under CN tariff heading 2508, with the result that they must be classified under CN tariff heading 3802.

51 It is for the referring court to determine whether the products at issue in the main proceedings have undergone any such treatment modifying their superficial structure.

52 In the light of the foregoing, the answer to the second question is that Note 1 to Chapter 25 of the CN must be interpreted as meaning that products which have undergone treatment involving the use of chemical substances and leading to the elimination of impurities may be classified under CN tariff heading 2508 only if that treatment has not modified their superficial structure, which it is for the national court to determine.