Hauptzollamt Frankfurt am Main v Duval GmbH & Co. KG (C-44/15)

Contents

Judgment of the Court (Ninth Chamber)26 November 2015^note(Reference for a preliminary ruling — Customs union and Common Customs Tariff — Tariff classification — Combined Nomenclature — Position 9025 — Concept of thermometer — Indicators of exposure to a predetermined target temperature to be used on one occasion only)In Case C‑44/15,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Finance Court, Germany), made by decision of 11 November 2014, received at the Court on 5 February 2015, in the proceedingsHauptzollamt Frankfurt am MainvDuval GmbH & Co. KG,THE COURT (Ninth Chamber),composed of J. Malenovský, acting as President of the Chamber, A. Prechal (Rapporteur) and K. Jürimäe, JudgesAdvocate General: P. Mengozzi,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:— the Hauptzollamt Frankfurt am Main, by A. Vieth, acting as Agent,— Duval GmbH & Co. KG, by F.-F. Casper, Rechtsanwalt,— the European Commission, by A. Caeiros and B.-R. Killmann, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This reference for a preliminary ruling concerns the interpretation of heading 9025 of the Combined Nomenclature set out in 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 (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006 (OJ 2006 L 301, p. 1) (‘the CN’).

2The request has been made in proceedings between the Hauptzollamt Frankfurt am Main (customs authority of Frankfurt am Main) (‘the customs authority’) and Duval GmbH & Co. KG (‘Duval’) concerning the tariff classification of ambient temperature indicators.

Legal context

International law

3The International Convention on the Harmonised Commodity Description and Coding System (‘the HS’), concluded in Brussels on 14 June 1983 and the Protocol of Amendment thereto of 24 June 1986 (‘the HS Convention’) were approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4Under 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. The same provision states that each Contracting Party must also undertake 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.

5The Customs Cooperation Council, now the World Customs Organisation (WCO), established by the Convention establishing that Council concluded at Brussels on 15 December 1950, approves, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee, a body the organisation of which is governed by Article 6 thereof.

6Under the Explanatory Note relating to General Rule 3(a) for the interpretation of the HS included in the explanatory notes adopted by that committee, in the version applicable to the facts of the main proceedings (‘the HS Explanatory Notes’):‘ …(IV) It is not practicable to lay down hard and fast rules by which to determine whether one heading more specifically describes the goods than another, but in general it may be said that:(a) a description by name is more specific than a description by class : …(b) if the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete.…’

7The HS Explanatory Notes to heading 9025 of the HS include the following information:‘ …B. Thermometers and pyrometers, recording or notIncluding among the apparatus of this group are:(1) Thermometers with a liquid-filled glass tube, the main types of which are: … Certain so-called maximum or minimum liquid-filled thermometers, in so far as they are designed to record extreme temperatures to which they were exposed.(2) Metal thermometers, and in particular …(3) Expansion or pressure thermometers with metal parts, …(4) Liquid crystal thermometers …(5) Thermometers and electric pyrometers, which include: …(6) Pyrometers with a photometer cube …(7) Disappearing filament optical pyrometers …(8) Heat sensitive glasses based on rotation polarisation phenomena …(9) Pyrometers based on contraction of a solid substance (for example, clay) ……D. Hygrometers, recording or notHygrometers are used to assess the level of humidity in the air, other gases or solid substances (relative humidity). The main types are:…Novelty hygroscopes, known as hygrometers, consisting in particular of more or less decorative elements (cottages, towers, etc), with figures returning or leaving according to whether the weather is fine or bad, are also classified here. By contrast, papers impregnated with chemical substances the colour of which varies in accordance with atmospheric humidity come within No 38.22.…’

The CN

8The CN contains in Part One, Section I, A, a set of general rules for the interpretation of that nomenclature. That section provides:‘Classification of goods in the [CN] shall be governed by the following principles:1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.…3. When … goods are prima facie classifiable under two or more headings, classification shall be effected as follows:(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. ……’

9Chapter 90 of the CN is entitled ‘Optical, photographic, cinematographic, measuring, checking, precision: medical or surgical instruments and apparatus; parts and accessories thereof’. That chapter includes in particular heading 9025 which is worded and structured as follows:

10Chapter 38 of the CN is entitled ‘Miscellaneous chemical products’. That chapter includes, in particular, heading 3822, which is entitled: ‘Diagnostic or laboratory reagents on a backing, prepared diagnostic or laboratory reagents whether or not on a backing, other than those of heading 3002 or 3006; certified reference materials’. Heading 3824 of the CN is entitled ‘Prepared binders for foundry moulds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included’. Subheading 3824 90 98 of the CN is a residual sub-heading which covers the goods not specified or included elsewhere in heading 3824 of the CN.

11Note 3(e) of Chapter 38 of the CN states inter alia:‘Heading 3824 includes the following goods which are not to be classified in any other heading of the nomenclature:…(e) ceramic firing testers, fusible (for example, Seger cones).’

12Chapter 48 of the CN is entitled ‘Paper and paperboard; articles of paper pulp, of paper or of paperboard’. Heading 4823 of the CN is entitled ‘Other paper, paperboard, cellulose wadding and webs cellulose fibres, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibres’. Subheading 4823 90 85 of the CN is a residual sub-heading which covers the goods not specified or included elsewhere in heading 4823 of the CN.

9025 | Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments| Thermometers and pyrometers, not combined with other instruments9025 11 | liquid-filled, for direct reading9025 11 20 | - — - clinical or veterinary thermometers9025 11 80 | - — - Other9025 19 | - — Other:9025 19 20 | - — - Electronic9025 19 80 | - — - Other… | … .

The dispute in the main proceedings and the questions referred for a preliminary ruling

13The two types of product at issue in the main proceedings are respectively designated by the terms ‘thermo papers’ and ‘thermo labels’. The former are paper strips which have a temperature indication printed on the white side and are coated with a black, temperature-sensitive layer on the back. When the preprinted temperature is reached, the test strip irreversibly changes colour from white to black. The latter consist of a test strip bearing five measuring elements and covered with a plastic film. The elements irreversibly change colour in accordance with the preprinted temperature indications when that temperature is reached.

14Duval imported the goods at issue in the main proceedings in 2007. The customs authority issued a tax assessment classifying those goods in subheading 3824 90 98 of the CN and applying the corresponding rate of 6.5%.

15Since it considered that the ‘thermo papers’ should have been classified in sub-heading 4823 90 85 of the CN and, therefore, exempted from customs duties, while the ‘thermo labels’ should have been classified in subheading 9025 19 80 of the CN and, therefore, subject to a tax rate of 2.1%, Duval brought an action against the above-mentioned tax assessment before the Finanzgericht (finance court).

16That court having held that the goods at issue in the main proceedings were ‘thermometers’ within the meaning of heading 9025 of the CN and having, as a result, ordered the customs authority to repay to Duval the overpaid customs duties, that authority brought an appeal on a point of law (‘Revision’) against that judgment before the Bundesfinanzhof (Federal Finance Court).

17Noting that the concept of ‘thermometer’ is not defined in the CN and that the HS Explanatory Notes include a list, not presented as illustrative, of instruments belonging to the category of thermometers and pyrometers, which includes neither the goods at issue in the main proceedings, nor similar instruments made of paper or those which indicate temperature on one occasion only, the Bundesfinanzhof (Federal Finance Court) questions whether considerations of legal certainty and ease of classification should not lead to the conclusion that that list is exhaustive and binding in nature.

18Should such an interpretation not be accepted, that court observes that the title of Chapter 90 of the CN refers to ‘measuring instruments’, that the word ‘thermometer’ is understood, both literally and conceptually, as a temperature-measuring device and that the concept of measuring is commonly understood as a quantitative comparison between an amount measured and a reference value.

19In those circumstances, the referring court questions whether it would be possible to find in the HS Explanatory Notes a narrower definition of ‘thermometer’ which would require that the device at issue satisfy additional conditions, derived from several common features, which appear to be shared by the measuring apparatus designated by those notes as belonging to heading 9025 of the HS or other headings of that chapter, such as careful manufacture and high-precision performance, reproducibility of the measurement result, continuous indication of changes in temperature, or, further, the possibility of using the device repeatedly.

20That court asks, likewise, whether the fact that Note 3(e) of Chapter 38 of the CN states that fusible ceramic firing testers for kilns belong to heading 3824 of the CN or the fact that it follows from the HS Explanatory Notes relating to hygrometers that devices which function in a manner similar to the goods at issue in the main proceedings are expressly excluded from heading 9025 of the CN, are capable of affecting the classification of those goods.

21In those circumstances the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) In the absence of an abstract definition of what constitutes a thermometer as referred to in CN heading 9025, should CN heading 9025 (‘thermometers’) be taken, exceptionally, to comprise only the devices listed in the Explanatory Notes to the Harmonised Commodity Description and Coding System concerning CN heading 9025, Section B (thermometers and pyrometers, recording or not … )?If this question is to be answered in the negative:(2) Should it be deduced from the listing of the devices in the Explanatory Notes to the HS concerning CN heading 9025 that devices which do not function in ways that are incorporated in those devices (measuring of temperature by means, for example, of the mechanical expansion of liquids or metals, physical changes or electrical impulses, etc.) cannot be classified as falling under CN heading 9025?If this question too is to be answered in the negative:(3) Do thermometers within the meaning of CN heading 9025 also include devices which indicate that the temperature of an object which is to be measured has reached a predetermined value (threshold value), even if the device does not meet such criteria as reproducibility of the measurement result, continuous indication of changes in temperature and the possibility of using the device repeatedly?’

Consideration of the questions referred for a preliminary ruling

22By its three questions, which should be considered together, the referring court seeks, in essence, to know whether heading 9025 of the CN must be interpreted as covering ambient temperature indicators made of paper, in some circumstances covered with plastic film, such as the goods at issue in the main proceedings, which, by the effect of a change in colour, indicate, irreversibly and without the possibility of subsequent reuse, whether one or more threshold temperatures have been reached.

23It is settled case-law 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, judgment in Douane Advies Bureau Rietveld, C‑541/13, EU:C:2014:2270, paragraph 21 and the case-law cited).

24The Court has also held that the explanatory notes to the CN and those to the HS are an important aid for interpreting the scope of the various tariff headings but do not have legally binding force. The wording of those notes must therefore be consistent with the provisions of the CN and cannot alter their scope. Where it is apparent that they are contrary to the wording of the headings of the CN and the section or chapter notes, the explanatory notes to the CN must be disregarded (see, inter alia, judgment in JVC France, C‑312/07, EU:C:2008:324, paragraph 34 and the case-law cited).

25It must also be noted that 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, inter alia, judgment in Douane Advies Bureau Rietveld, C‑541/13, EU:C:2014:2270, paragraph 22 and the case-law cited).

26As regards heading 9025 of the CN, it is apparent from its wording that it covers in particular ‘thermometers’.

27Although the CN does not define that concept, it must be noted that, according to the accepted meaning of the word, it refers to temperature measuring instruments, as is moreover shown, in numerous language versions of the CN, by the combination of the words of Greek origin which make it up.

28In paragraph 34 of the judgment in Raytek and Fluke Europe (C‑134/13, EU:C:2015:82), the Court thus held inter alia, concerning a regulation of the European Commission which classified infrared thermal imagers under code 9025 19 20 of the CN, that that institution was entitled to conclude that since those apparatus are capable of measuring temperature and representing the measured values in figures, they performed a function covered by heading 9025 of the CN and should be classified as thermometers within the meaning of that heading.

29In paragraph 35 of that judgment, the Court again noted that mere temperature measurement constituted the specific property covered by that heading.

30In that regard, it must be noted that goods such as those at issue in the main proceedings are, on the basis of their objective characteristics and properties, designed to be used exclusively as temperature measuring instruments. Since their sole function is to indicate, by a measurement of ambient temperature, whether a specific predetermined temperature has been reached, by indicating, in this case, by means of a change in colour, the result of that measurement, such goods must, therefore, be classified as thermometers under code 9025 of the CN.

31Contrary to the Commission’s contention, that conclusion is not liable to be affected by Note 3(e), included in Chapter 38 of the CN, according to which ‘fusible ceramic firing testers for kilns (for example Seger cones)’ are included in heading 3824 of the CN and not in another heading of the CN. Apart from the fact that that note refers only to the very specific category of goods to which it therefore relates and to which goods such as those at issue in the main proceedings clearly do not correspond, it must be noted that, unlike the latter goods and, more generally, thermometers, the function of such fusible ceramic firing testers does not consist in a specific measurement of the ambient temperature. Those fusible ceramic firing testers, also called ‘heat sensitive cones’, which are used in ceramic kilns, are designed, by melting and gradually bending under the effect of heat, to facilitate supervision of the progress of the firing of ceramic goods and to determine the point at which those ceramic goods have reached the desired state of firing.

32As regards the fact that the list of instruments belonging to the group of goods classified as thermometers and pyrometers which is included in section B of the HS Explanatory Notes relating to heading 9025 thereof, does not mention goods such as those at issue in the main proceedings, it should be noted that, as follows from the wording itself of those notes and as is apparent from the case-law referred to in paragraph 28 of the present judgment, that list is not intended in any way to be exhaustive. Moreover, as is apparent from the case-law cited in paragraph 24 of the present judgment, such explanatory notes cannot, in any event, restrict the scope of a heading of the CN as indicated by the wording thereof.

33Therefore, the fact, noted by the referring court, that all the goods listed in that section of the HS Explanatory Notes have, in addition to the specific common property referred to in paragraphs 27 to 29 of the present judgment of measuring temperature, other common characteristics relating inter alia to their technical mode of operation, to the fact that they can be used repeatedly or to the fact that they allow continuous indication of changes in temperature, cannot lead to a narrow interpretation of the concept of thermometer included in heading 9025 of the CN by establishing such additional characteristics as being amongst the constituent elements of that concept.

34As regards the criterion relating to the possibility of a continuous indication of changes in temperature, it must, moreover, also be noted that, as the Commission stated, the HS Explanatory Notes relating to heading 9025 thereof specify expressly in Section B(1) thereof that so-called ‘maximum or minimum’ liquid-filled thermometers designed to record extreme temperatures to which they are exposed come within that heading.

35As regards, finally, the statement in Section D of the HS Explanatory Notes according to which papers impregnated with chemical substances the colour of which varies in accordance with atmospheric humidity come within heading 3822 of the CN, it should be noted, first, that that statement relates to the group of goods classified as hygrometers and not to that of thermometers and that that group does not contain an equivalent statement as regards goods such as those at issue in the main proceedings. Secondly, it should be noted that, in the judgment in Douane Advies Bureau Rietveld (C‑541/13, EU:C:2014:2270), which concerned goods similar to those at issue in the main proceedings, the Court held that heading 3822 of the CN had to be interpreted as meaning that such goods do not come within that heading.

36It follows from all the foregoing that the fact that the goods at issue in the main proceedings are made of paper, possibly covered with plastic film and that they function more simply than certain other measuring instruments which make use of more sophisticated mechanisms, or the fact that they allow only measurement of certain predetermined threshold temperatures, or, further, the fact that they cannot be used on more than one occasion in the light of the irreversibility of the marking which takes place where such threshold temperatures are reached, do not preclude those goods from being classified under heading 9025 of the CN.

37Moreover, and as regards subheading 3824 90 98 of the CN adopted by the customs authority in the tax assessment at issue in the main proceedings, it should be noted that, according to its wording, heading 3824 of the CN concerns in particular ‘chemicals and chemical preparations and products or allied industries, not elsewhere specified or included’ and that subheading 90 98 is, within heading 3824, a residual heading covering chemicals not specified or reproduced elsewhere in that heading.

38In those circumstances, it suffices to note that, assuming goods such as those at issue in the main proceedings are in principle also capable of coming also within heading 3824 of the CN, the fact remains that, under general rule 3(a) of the CN, the most specific heading must be given priority over more general headings. As has been stated in paragraphs 28 to 30 of the present judgment, temperature measurement constitutes the specific characteristic of the goods designated as thermometers in heading 9025 of the CN and the goods at issue in the main proceedings have that specific characteristic. By contrast, heading 3824 of the CN, which relates to chemicals and chemical preparations and products not specified or included elsewhere, has a much more general scope.

39The same considerations apply to subheading 4823 90 85 of the CN on which Duval relied in particular as regards the ‘thermo labels’, in support of its action against the tax assessment at issue in the main proceedings. It should be noted that, according to its wording, heading 4823 concerns ‘other paper, paperboard, cellulose wadding and webs of cellulose fibres, cut to size or shape; other articles of paper pulp, paper, paperboard, cellulose wadding or webs of cellulose fibres’ and that subheading 90 85 is, within heading 4823, itself a residual heading covering goods not specified or reproduced elsewhere in that heading.

40In the light of all of the foregoing, the answer to the questions referred is that heading 9025 of the CN must be interpreted as covering ambient temperature indicators made of paper, in some circumstances covered with plastic film, such as the goods at issue in the main proceedings, which, by the effect of a change in colour, indicate, irreversibly and without the possibility of subsequent reuse, whether one or more threshold temperatures have been reached.

Costs

41Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

Operative part

On those grounds, the Court (Ninth Chamber) hereby rules: Heading 9025 of the Combined Nomenclature set out in 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, as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006 must be interpreted as covering ambient temperature indicators made of paper, in some circumstances covered with plastic film, such as the goods at issue in the main proceedings, which, by the effect of a change in colour, indicate, irreversibly and without the possibility of subsequent reuse, whether one or more threshold temperatures have been reached.