—

Humeau Beaupréau SAS, by F. Puel, avocat,

—

the French Government, by D. Colas and C. Candat, acting as Agents,

—

the European Commission, by L. Keppenne and B.-R. Killmann, acting as Agents,

1

This reference for a preliminary ruling concerns the interpretation of General Rule 2(a) for the interpretation 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), in the version in force at the material time (‘the CN’).

2

The reference has been made in proceedings between the Directeur général des douanes et droits indirects (the Director General of Customs and Excise) and the Chef de l’agence de la direction nationale du renseignement et des enquêtes douanière (the Head of the Agency of the National Customs Intelligence and Investigations Directorate) and Humeau Beaupréau SAS (‘Humeau’), an undertaking governed by French law, concerning the classification in the CN of the components required for the manufacture of sports footwear and imported, between May 1998 and November 2000, from China.

3

The CN, established by Regulation (EEC) No 2658/87, is based on the Harmonised Commodity Description and Coding System (‘the HS’) drawn up by the Customs Cooperation Council, now the World Customs Organisation (WCO), adopted by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983 and approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1). The CN reproduces the headings and subheadings of the HS to six digits, with only the seventh and eighth figures creating further subheadings which are specific to it.

4

Part One of the CN consists of a number of preliminary provisions. In Section I of Part One, which contains general rules, subsection A, entitled ‘General rules for the interpretation of the [CN]’, provides:

‘Classification of goods in the [CN] shall be governed by the following principles:

…

5

Part Two of the CN includes Section XII, which in turn includes, in particular, Chapter 64, entitled ‘Footwear, gaiters and the like; parts of such articles’.

6

Heading 6404 of the CN, entitled ‘Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile materials’, includes sub-heading 6404 11 00, worded as follows:

‘Sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like.’

7

Heading 6406 of the CN is entitled ‘Parts of footwear (including uppers whether or not attached to soles other than outer soles); removable insoles, heel cushions and similar articles; gaiters, leggings and similar articles, and parts thereof’.

8

Sub-heading 6406 10 covers ‘Uppers and parts thereof, other than stiffeners’.

9

Sub-heading 6406 20 corresponds to ‘Outer soles and heels, of rubber or plastics’.

10

Article 249 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17), (‘the Customs Code’) provides:

‘The [Customs Code] Committee may examine any question concerning customs legislation which is raised by its chairman, either on his own initiative or at the request of a Member State’s representative.’

11

The WCO approves, under the conditions laid down in Article 8 of the International Convention on the Harmonised Commodity Description and Coding System, the Explanatory Notes and Classification Opinions adopted by the HS Committee.

12

The Explanatory Note relating to General Rule 2(a) for the interpretation of the HS (‘the HSEN to General Rule 2(a)’), which rule is identical to General Rule 2(a) for the interpretation of the CN, reads as follows:

…

Articles presented unassembled or disassembled

13

Under Article 443(1) of the French Code des douanes (Customs Code), as amended by loi no 77-1453 du 29 décembre 1977, accordant des garanties de procédure aux contribuables en matière fiscale et douanière (Law No 77-1453 of 29 December 1977 granting procedural guarantees to taxable persons in tax and customs matters; JORF, 30 December 1977, p. 6279; ‘the Customs Code’):

‘The Commission de conciliation et d’expertise douanière (Customs Arbitration and Advisory Commission) shall consist of:

In the event of a tie, the vote of the Chairman shall be decisive.’

14

Article 450 of the Customs Code, as amended by loi no 96-314, du 12 avril 1996, portant diverses dispositions d’ordre économique et financier (Law No 96-314 of 12 April 1996 laying down various economic and financial provisions; JORF du 13 avril 1996, p. 5707), provides:

‘1.   Where there are challenges as to the type, origin or value made after customs clearance of goods on inspections or inquiries carried out in the circumstances provided for in, particularly, Articles 63b, 65 and 334 above:

…

2.   In every case where proceedings are brought before the courts, whether or not there has been prior consultation of the Commission de conciliation et d’expertise douanière, the preparation of the expert legal report, if ordered by the court having jurisdiction to rule on customs disputes, shall be carried out by that Commission.’

15

Humeau’s business activity is the manufacture of footwear. Between May 1998 and November 2000, it imported components required for the manufacture of sports footwear from China.

16

As is apparent from the file submitted to the Court of Justice, the following components were imported in identical quantities:

17

The soles, outer and inner, and the uppers were subject to import duties of 3.3% in 1998 then of 3% from 1999, while the laces were taxed at 6.3%.

18

Following a customs control in Humeau’s premises, the French customs authorities took the view, applying General Rule 2(a) for the interpretation of the CN, that those goods had to be classified under tariff heading 6404 11 00 as footwear presented unassembled. Those authorities thus took the view that, after import, those goods did not need working but merely assembly, so that the relevant customs duty was that applicable to the finished product for which those components were intended, namely 17.6% in 1998 and 17% from 1999. In consequence, on 5 June 2001, they issued an official statement of infringement.

19

On 24 July 2001, Humeau brought the matter before the Commission de conciliation et d’expertise douanière. By opinion of 2 July 2002, that Commission stated that the components imported by Humeau were to be classified as parts of footwear. It took the view, ‘after examination of the samples and presentation of the manufacturing process, the Commission takes the view that two of the four components imported, the upper and the outer sole, have undergone working operations, in this case shaping of the counter with humidification as regards the upper and roughing of both the upper and the sole, “for completion into the finished state”, which, by application of the [HSEN to General Rule 2(a)], prevents the article at issue “the different components of which are – as in the present case – to be assembled” from being regarded as presented unassembled or disassembled within the meaning of that rule’.

20

On 8 July 2004, the customs authorities nevertheless took the view that the goods in question in the main proceedings came under tariff heading 6404 11 00 and, consequently, issued a recovery notice for the sum of EUR 349 517.

21

By letter of 30 July 2004, Humeau brought an administrative appeal before those authorities, by which it challenged the merits of that opinion.

22

In parallel, those authorities asked the Customs Code Committee for a ruling on the question of the tariff classification of the goods at issue in the main proceedings. Following the meeting of 6 and 7 March 2008, that committee took the view that ‘the assembly of the non-assembled components is carried out by assembly operations only (see the first paragraph and the first sentence of the second paragraph of (VII) of the HSEN to General Rule 2(a)) and that the unfinished article has the essential character of the finished article within the meaning of the first part of Rule 2(a) for the interpretation of the CN’.

23

On 11 June 2008, the customs authorities dismissed the administrative appeal.

24

On 29 July 2008, Humeau then brought an action before the Tribunal d’instance du 11ème arrondissement de Paris (District Court of the 11th District of Paris), seeking the annulment of that notice of recovery. By a judgment delivered on 16 March 2010, that court gave judgment in favour of Humeau, ruling in particular that ‘the finding of the infringement was based on an incorrect assessment of the operations required to go from the state of separate parts to the finished product’.

25

Ruling on the appeal brought by the customs authorities, the Cour d’appel de Paris (Court of Appeal, Paris) also held that the description by the customs administration of the operations required to go from the state of separate parts to the finished product, according to which, ‘technically, gluing suffices to put the footwear together’, did not reflect reality.

26

Taking the view that some parts had to undergo processing, such as the roughing of the sole and of the lower part of the upper, as well as finishing operations on the edge of the soles, and also that certain operations, such as the setting up on and stretching over a last and the shaping of the counter, did not fall within the scope of mere assembly, even complex assembly, the Cour d’appel de Paris inferred from this that the customs infringement imputed to Humeau is based on an incorrect assessment of the operations required to complete the finished product and, in consequence, annulled the recovery notice dated 8 July 2004.

27

The customs authorities appealed in cassation before the referring court, submitting in particular that, by holding that the roughing of that upper and of the imported outer sole and the shaping of the counter inserted into the imported upper constituted working operations for completion of the imported uppers and outer soles into the finished state, when these were only assembly operations of preformed components for the purposes of constructing footwear, the Cour d’appel de Paris infringed General Rule 2(a) for the interpretation of the HS and point VII of the HSEN to that rule.

28

Accordingly, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘In the process of manufacturing footwear, must the operations of shaping the counter of an upper and of roughing of that upper and an outer sole, prior to their assembly, be classified as “assembly operations” or “working operations for completion into the finished state”, within the meaning of point VII of the [HSEN to General Rule 2(a)]?’

29

By its question, the referring court asks whether, in the process of manufacture of a shoe, the operations of shaping the counter of an upper and of roughing that upper and an outer sole, prior to their assembly, are to be classified as ‘assembly operations’ or ‘working operations for completion into the finished state’, within the meaning of point VII of the HSEN to General Rule 2(a).

30

It must first of all be borne in mind that, under the first sentence of Article 2(a) of the General Rules for the Interpretation of the CN, any reference to an article in a particular heading covers that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article. Under the second sentence of Article 2(a), complete or finished articles, or those to be treated as such by virtue of the first sentence, presented unassembled or disassembled, are also to be classified in that heading.

31

Point VII of the HSEN to General Rule 2(a) states, in that regard, that articles presented unassembled or disassembled are articles the components of which are to be assembled, provided, however, only assembly operations are involved and that the components are not subjected to any working operation for completion into the finished state.

32

Although the Explanatory Notes drawn up by the WCO 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 (see, in particular, Case C-568/11 Agroferm [2013] ECR, paragraph 28 and the case-law cited), they do not have legally binding force (see, in particular, Case 798/79 Chem-Tec [1980] ECR 2639, paragraph 11; Case C-35/93 Develop Dr. Eisbein [1994] ECR I-2655, paragraph 21; and Case C‑558/11 Kurcums Metal [2012] ECR, paragraph 30).

33

Accordingly, the question referred must be reformulated so as to mean that the referring court thereby asks, in essence, whether General Rule 2(a) for the interpretation of the CN is to be interpreted as meaning that an upper, an outer sole and an inner sole, as an article presented unassembled having the essential character of footwear, come under heading 6404 of the CN where, following their import, the upper and the outer sole must be roughed prior to their assembly and a counter, inserted into the upper, must be shaped by humidification.

34

The character of a shoe lies in essence in the combinations of an upper and an outer sole. Those components represent the greater part of the complete article for which they are intended and give that article the appearance of a shoe. In addition, they surround and protect the wearer’s foot, thus enabling the shoe to fulfil its primary function.

35

It is also significant in that regard that, in order to determine the tariff heading under which footwear is to be classified, its uppers and outer soles must be examined, in accordance with the terms of headings 6401 to 6405 of the CN.

36

Finally, according to the wording of heading 6406 of the CN, uppers constitute ‘parts of footwear’, even when they are attached to soles other than outer soles. It follows therefore, a contrario, that an article made up of a shoe upper attached to an outer sole cannot be classified under heading 6406 of the CN and, accordingly, comes under one of headings 6401 to 6405 of the CN which correspond to completed footwear.

37

Accordingly, an article consisting of an upper, an outer sole and an inner sole must, pursuant to the first sentence of General Rule 2(a) of the CN, be regarded as having the essential character of a shoe.

38

Next, with regard to the point, which is decisive for the referring court, whether the goods imported by Humeau must be regarded as being ‘unassembled’ footwear within the meaning of that rule, it must be noted that the CN does not contain any definition of the concept of an ‘unassembled’ article within the meaning of General Rule 2(a) to that CN.

39

However, the Explanatory Notes to the HS which, in accordance with the case-law cited in paragraph 32 of this judgment, 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, state, in point VII of the HSEN to General Rule 2(a), that articles presented unassembled or disassembled means articles the components of which are to be assembled … by riveting or welding, for example, provided only assembly operations are involved. In addition, the components are not to be subjected to any further working operation for completion into the finished state.

40

First of all, as regard the roughing of the upper and the outer sole, it is apparent from the written observations lodged by the French Republic and the European Commission that, in the process of manufacture of a shoe, such an operation consists in abrading that part of the upper and that part of the outer sole which are intended to be in contact to be glued.

41

Accordingly, if, as the French Republic and the Commission argue, that operation is intended solely to improve the adhesion between the upper and the outer sole, which it is for the referring court to ascertain, it must be regarded as a stage in the gluing process and, as such, cannot be regarded as a ‘working operation for completion into the finished state’ of those components within the meaning of point VII of the HSEN to General Rule 2(a).

42

Next, with regard the shaping by humidification of the counter, it must be noted at the outset that, as is apparent from the file, unlike the uppers and the inner and outer soles, the counters were not imported but were purchased from within the European Union.

43

It follows from points VI and VII of the HSEN to General Rule 2(a) that, in the case of an incomplete article presented unassembled, the requirement that the assembly of the different components must involve only assembly operations with no working required in order to complete them into the finished state applies to the components which have been presented to the customs authorities for customs clearance.

44

However, it is not important that components which, like the counter at issue in the main proceedings, were purchased within the European Union are worked before being assembled with the imported components.

45

If the opposite were true, the tariff classification of the imported components would depend on a fact which not intrinsic to those goods, since the customs authorities are not in a position to ascertain whether components which were not presented to customs have to be worked or not before being capable of assembly with the imported components, which would undermine the objective of ease of verification by the customs and legal certainty which must govern that classification.

46

It follows that, in the context of the main proceedings, the shaping by humidification of the counter, whatever its classification in the light of point VII of the HSEN to General Rule 2(a), has no bearing on the application of General Rule 2(a) for the interpretation of the CN.

47

However, it is necessary to examine, finally, whether the addition of the counter means that there is some working operation as regards the imported components.

48

In that regard, it does not appear, subject to verification by the referring court, that the operation of inserting a counter into the upper of the shoe means more than the insertion and fixing of that component between the external part and the lining of the upper of the shoe.

49

If that is actually the case, that stage is an assembly operation and, as such, cannot be regarded as a working operation for completion into the finished state within the meaning of point VII of the HSEN to General Rule 2(a).

50

In that regard, the Customs Code Committee, following the meeting on 6 and 7 March 2008, took the view, in respect of the goods at issue in the main proceedings, that ‘the assembly of the non-assembled components is carried out by assembly operations only’.

51

The conclusions of the Customs Code Committee, although they do not have legally binding force, they constitute an important means of ensuring the uniform application of the Customs Code by the customs authorities of the Member States and as such may be considered as a valid aid to the interpretation of the Code (see, inter alia, Case C-165/07 Ecco Sko [2008] ECR I-4037, paragraph 47).

52

Having regard to all the foregoing considerations, the answer to the question referred is that General Rule 2(a) for the interpretation of the CN must be interpreted as meaning that an upper, an outer sole and an inner sole, as an article presented unassembled having the essential character of footwear, come under heading 6404 of the CN where, following their import, a counter must be inserted into the upper, and the upper and the outer sole must be roughed for the purpose of their assembly.

53

Since 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.

On those grounds, the Court (Sixth Chamber) hereby rules:

General Rule 2(a) for the interpretation 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, in the version in force at the material time, must be interpreted as meaning that an upper, an outer sole and an inner sole, as an article presented unassembled having the essential character of footwear, come under heading 6404 of the combined nomenclature where, following their import, a counter must be inserted into the upper and the outer sole and the upper must be roughed for the purpose of their assembly.