—

X BV, by G. van Slooten, belastingadviseur,

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the Netherlands Government, by C. Wissels and M. Noort, acting as Agents,

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the European Commission, by W. Roels and L. Keppenne, acting as Agents,

1

This reference for a preliminary ruling concerns the interpretation of the Combined Nomenclature (‘the CN’) constituting 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).

2

The request has been made in proceedings between X BV (‘X’) and the Staatssecretaris van Financiën (Secretary of State for Finance) concerning the CN tariff classification of batches of decolourising earth, a type of clay used for purifying and decolourising edible oils.

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:

...

...’

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:

...

The heading also excludes:

...’

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:

...

2.   The provisions adopted under paragraph 1 shall not amend:

...’

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.’

15

The relevant facts of the main proceedings, as set out in the order for reference, may be summarised as follows.

16

On 2 and 12 February 2007, X, which has its registered office at Z, in the Netherlands, submitted a declaration for release for free circulation of batches of decolourising earth under the trade names A and B. Those products are mainly used for purifying and decolourising edible oils.

17

According to the referring court, decolourising earth is a type of clay which has a natural adsorption capacity which makes it suitable, inter alia, for purifying and decolourising edible oils. That type of clay consists of crystals with a triple-layered lamellar structure. An octahedral layer of aluminium with oxygen atoms is sandwiched between two tetrahedral layers of silicon with oxygen atoms. Between those layers there are exchangeable ions. That structure is negatively charged and attracts cations to become neutral. In the clay in its natural state those cations consist of hydrogen ions. In that form the clay can be used to purify and decolourise.

18

In nature, certain changes occur through acid rain, resulting in clay being released from rocks. That clay accumulates in basins where the hydrogen ions are washed out of the clay and are replaced by calcium ions. In such a scenario, there is extraction of such a natural product: clay with calcium ions. After extraction, that clay is treated with sulphuric acid and then washed with water. Through that treatment the calcium ions in the crystals are once again removed. In their place, hydrogen ions attach themselves to the clay structure. As a result of the exchange of ions, the superficial structure of the layers is changed in the sense that the space between the layers is enlarged. That enlargement means that the adsorption capacity of the clay is increased.

19

The order for reference also indicates that there is a natural form of decolourising earth which, without acid treatment, has a greater adsorption capacity than the products at issue in the main proceedings.

20

During an inspection, the customs authorities took samples of products A and B and submitted them to the customs laboratory for further investigation. Based on the results of that investigation, the customs authorities took the view that A and B did not come under CN tariff subheading 2508 40 00 (‘other clays’) cited in the declarations, but rather CN subheading 3802 90 00 (‘other’), with an accompanying higher tariff of 5.7% in customs duties. The customs authorities accordingly charged higher customs duties by two notices of assessment dated 10 April 2007 and 15 June 2007.

21

X launched successive challenges against those notices of assessment before the customs authorities, the Rechtbank te Haarlem (District Court, Haarlem) and the Gerechtshof te Amsterdam (Court of Appeal, Amsterdam).

22

In a judgment delivered on 23 December 2010, the Gerechtshof te Amsterdam ruled that, by the application of general classification rule 1 of the CN, the products at issue should be classified as ‘activated natural mineral products’ under subheading 3802 90 00.

23

The Gerechtshof te Amsterdam took the view that classification as ‘other clays’ under CN subheading 2508 40 00 was not possible, as the acid treatment which the products had undergone could not be equated with ‘washing’ within the meaning of Note 1 to Chapter 25 of the CN, because it entailed not only the elimination of elements from the clay, but also the addition of new ones.

24

The Gerechtshof te Amsterdam further held that the products in question could be regarded as ‘activated’ within the meaning of CN heading 3802. The Gerechtshof te Amsterdam observed in that regard that the HS Explanatory Notes to heading 3802 provided that that heading excluded naturally active mineral products (for example, fuller’s earth), in so far as they had not undergone any treatment modifying their superficial structure. In its view, it follows from that passage that naturally active mineral products can be ‘activated’ within the meaning of CN heading 3802. Consequently, the Gerechtshof te Amsterdam held that there was ‘activation’ because – notwithstanding the fact that the clay was already naturally active – through the washing with sulphuric acid and water, the superficial structure of the layers within the crystal structure of the clay was changed.

25

X appealed against the judgment of the Gerechtshof te Amsterdam before the referring court and the Staatssecretaris van Financiën cross-appealed.

26

The referring court states that, in its grounds of appeal, X is arguing that the Gerechtshof te Amsterdam erred in law in holding that the products at issue come under CN heading 3802, as the sulphuric acid treatment has not changed the objective characteristics and properties of the products in question as active mineral products, so that they can remain classified under CN heading 2508.

27

The referring court considers that, according to Note 1 to Chapter 25 of the CN, the washing of products does not preclude their inclusion under CN heading 2508, even if such washing occurs ‘with chemical substances eliminating the impurities without changing the structure of the product’. Nevertheless, the referring court is unsure as to whether the expression ‘eliminating the impurities’ also covers the elimination of certain chemical components found in a mineral product in a crude state through natural circumstances. It observes that it is not clear whether the Note 1 to Chapter 25 of the CN also refers to washing in order to strip a mineral product in a crude state of such a ‘natural pollutant’, which essentially has become part of the mineral product itself.

28

The referring court adds that if the calcium ions present at the time of extraction of the present mineral products are to be regarded as ‘impurities’ within the meaning of Note 1 to Chapter 25 of the CN, it must be determined whether the expression ‘without changing the structure of the product’ may apply to washing with sulphuric acid and water. The referring court takes the view that two interpretations are possible.

29

According to a first interpretation of Note 1 to Chapter 25 of the CN, in order to be classified under CN heading 2508, the products in question must have retained, after washing, the relevant objective characteristics and properties of the product ‘other clays’ within the meaning of heading 2508. According to this interpretation, it does not appear from the wording of CN heading 2508, the Explanatory Notes to the HS or the CN that the strength of the adsorption capacity of the clay or the number of calcium ions or hydrogen ions present in the crystal structure or the precise space between the layers is of any significance for the classification as decolourising earth under CN heading 2508.

30

The referring court also observes that it is undisputed that the products in question, when extracted, already display the required objective characteristics and properties to be considered ‘other clays’ as referred to in CN heading 2508 and that, even after the treatment with sulphuric acid and water, the products display the objective characteristics and properties required for classification under that tariff heading. It is also undisputed that the products in question have not acquired any additional objective characteristics and properties as a result of the acid treatment through which they have become suitable to be used for purposes other than those for which decolourising earth is generally used. The referring court adds that the mere fact that, as a result of that chemical treatment, the required property for classification as ‘other clays’ within the meaning of CN heading 2508, namely, adsorption capacity, is increased, does not prevent the products from continuing to be classified under that heading, since the level of that capacity does not exceed the adsorption capacity of decolourising earth in general.

31

According to a second interpretation of Note 1 to Chapter 25 of the CN, it is not sufficient that the products in question continue to have the objective characteristics and properties required for classification as ‘other clays’ under CN heading 2508. What could be intended by the provision is that heading 2508 excludes mineral products which, after extraction, have undergone chemical treatments which changed their structure and composition. According to this interpretation, the presence of the hydrogen ions after the treatment, despite the fact that they are by nature not unknown in a product such as decolourising earth, means that they must be regarded as a ‘chemical product’ as referred to in Chapter 38 of the CN.

32

In the light of the foregoing considerations, the referring court takes the view that the tariff classification of the products in question depends on the interpretation of provisions of European Union law, in particular CN tariff heading 2508 and Note 1 to Chapter 25 of the CN. In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

33

As a preliminary point, it should be noted that the questions referred, despite referring formally to Note 1 of the Explanatory Notes to Chapter 25 of the HS, are aimed at elucidating the scope of the term ‘wash’ within the meaning of Note 1 to Chapter 25 of the CN, under which the headings of Chapter 25 of the CN include products which have been ‘washed’, ‘even with chemical substances eliminating the impurities without changing the structure of the product’.

34

As a preliminary point, it should be borne in mind that, when the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (Joined Cases C-260/00 to C-263/00 Lohmann and Medi Bayreuth [2002] ECR I-10045, paragraph 26; Case C-12/10 Lecson Elektromobile [2012] ECR I-14173, paragraph 15; and Joined Cases C-320/11, C-330/11, C-382/11 and C-383/11 Digitalnet and Others [2012] ECR, paragraph 61).

35

It will thus be for the referring court to classify the products at issue in the main proceedings in the light of the answers provided by the Court to the questions it has referred.

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.

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.

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 (Tenth Chamber) hereby rules: