61981J0234

COMMON CUSTOMS TARIFF - TARIFF HEADINGS - ' ' POLYMERS ' ' AND ' ' COPOLYMERS ' ' WITHIN THE MEANING OF SUBHEADINGS 39.02 C . XII AND 39.07 B.V . ( D ) - CONCEPT - ' ' CORIAN ' ' - INCLUSION

THE PROVISIONS OF THE COMMON CUSTOMS TARIFF ARE TO BE CONSTRUED AS MEANING THAT THE PRODUCT KNOW AS CORIAN , WHICH CONSISTS BY WEIGHT OF APPROXIMATELY 66 % ALUMINIUM HYDROXIDE , APPROXIMATELY 33 % POLYMETHYL METHACRYLATE AND A VERY SMALL PERCENTAGE OF CATALYTIC AND OTHER CURING AGENTS , FALLS UNDER SUBHEADING 39.02 C XII OF THE COMMON CUSTOMS TARIFF WHEN IT IS IMPORTED IN THE FORM OF SLABS , AND UNDER SUBHEADING 39.07 B V ( D ) WHEN IT IS IMPORTED IN THE FORM OF ARTICLES MADE OF THAT MATERIAL , AND IS NOT CLASSIFIABLE UNDER ANY OTHER HEADING OF THE COMMON CUSTOMS TARIFF .

IN CASE 234/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COMMERCIAL COURT OF THE QUEEN ' S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

E . I . DU PONT DE NEMOURS INC .

AND

DEWFIELD ( AN UNLIMITED COMPANY TRADING AS C.D . ( UK )), ON THE ONE HAND ,

AND

COMMISSIONERS OF CUSTOMS AND EXCISE , ON THE OTHER HAND ,

ON THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF , IN PARTICULAR HEADING 68.11 AND SUBHEADINGS 39.02 C XII AND 39.07 B IV ( D ) THEREOF ,

1 BY AN ORDER OF 22 JULY 1981 , WHICH WAS RECEIVED AT THE COURT ON 21 AUGUST 1981 , THE COMMERCIAL COURT OF THE QUEEN ' S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS CONCERNING THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF , IN PARTICULAR HEADING 68.11 AND SUBHEADINGS 39.02 C XII AND 39.07 B V ( D ) THEREOF .

2 THE QUESTIONS AROSE IN THE COURSE OF AN ACTION IN THAT COURT BETWEEN THE COMPANIES E . I . DU PONT DE NEMOURS INC . ( HEREINAFTER REFERRED TO AS ' ' DU PONT ' ' ) AND DEWFIELD , ON THE ONE HAND , AND THE COMMISSIONERS OF CUSTOMS AND EXCISE OF THE UNITED KINGDOM , ON THE OTHER , CONCERNING THE TARIFF CLASSIFICATION OF A PRODUCT KNOWN AS ' ' CORIAN ' ' , WHICH IS MADE TO LOOK LIKE MARBLE AND CONSISTS BY WEIGHT OF ABOUT 66% ALUMINIUM HYDROXIDE , OBTAINED FROM BAUXITE ORE , AND ABOUT 33% OF POLYMETHYL METHACRYLATE , AN ARTIFICIAL PLASTIC MATERIAL , TOGETHER WITH A VERY SMALL PERCENTAGE OF CATALYTIC AND OTHER CURING AGENTS .

3 DU PONT AND DEWFIELD MAINTAIN THAT THE PRODUCT SHOULD BE CLASSIFIED UNDER HEADING 68.11 OF THE COMMON CUSTOMS TARIFF AS AN ARTICLE OF ' ' ARTIFICIAL STONE ' ' . THE COMMISSIONERS OF CUSTOMS AND EXCISE , ON THE OTHER HAND , ARE OF THE OPINION THAT IT SHOULD BE CLASSIFIED UNDER SUBHEADING 39.02 C XII ( METHACRYLIC POLYMERS ), IF IT IS IMPORTED IN THE FORM OF SLABS OR SHEETS , OR UNDER SUBHEADING 39.07 B V ( D ) ( ARTICLES OF MATERIALS COVERED BY HEADINGS 39.01 TO 39.06 INCLUSIVE ), IF IT IS IMPORTED ALREADY WORKED .

4 IN ORDER TO DETERMINE THE CORRECT TARIFF CLASSIFICATION OF CORIAN REGARD MUST BE HAD , FIRST , TO RULE 2 ( B ) OF THE RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF , WHICH PROVIDES THAT : ' ' ANY REFERENCE IN A HEADING TO A MATERIAL OR SUBSTANCE SHALL BE TAKEN TO INCLUDE A REFERENCE TO MIXTURES OR COMBINATIONS OF THAT MATERIAL OR SUBSTANCE WITH OTHER MATERIALS OR SUBSTANCES . ANY REFERENCE TO GOODS OF A GIVEN MATERIAL OR SUBSTANCE SHALL BE TAKEN TO INCLUDE A REFERENCE TO GOODS CONSISTING WHOLLY OR PARTLY OF SUCH MATERIAL OR SUBSTANCE . THE CLASSIFICATION OF GOODS CONSISTING OF MORE THAN ONE MATERIAL OR SUBSTANCE SHALL BE ACCORDING TO THE PRINCIPLES OF RULE 3 . ' '

5 INASMUCH AS CORIAN CONTAINS A MATERIAL , NAMELY POLYMETHYL METHACRYLATE , WHICH COMES UNDER SUBHEADINGS 39.02 C XII AND 39.07 B V ( D ), IT IS PRIMA FACIE CLASSIFIABLE UNDER THOSE SUBHEADINGS PURSUANT TO RULE 2 ( B ).

6 BY CONTRAST , THE PRESENCE OF THE OTHER COMPONENT , ALUMINIUM HYDROXIDE , IS NOT A REASON FOR CONSIDERING HEADING 26.01 , WHICH COVERS METALLIC ORES , EVEN IF THAT SUBSTANCE IS REGARDED AS GIBBSITE , AND THEREFORE AN ORE . THAT IS BECAUSE , ACCORDING TO NOTE 2 TO CHAPTER 26 , THAT HEADING INCLUDES ONLY METALLIC ORES WHICH HAVE NOT BEEN ' ' SUBMITTED TO PROCESSES NOT NORMAL TO THE METALLURGICAL INDUSTRY ' ' , WHICH IS MANIFESTLY NOT TRUE OF THE GIBBSITE PRESENT IN CORIAN SINCE IT IS IN FACT OBTAINED BY MEANS OF A CHEMICAL PROCESS . HEADING 28.20 , WHICH COVERS INTER ALIA ALUMINIUM OXIDE AND ALUMINIUM HYDROXIDE , MUST LIKEWISE BE REJECTED ON THE BASIS OF NOTE 1 TO CHAPTER 28 , ACCORDING TO WHICH THE CHAPTER COVERS ONLY ' ' SEPARATE CHEMICAL ELEMENTS AND SEPARATE CHEMICALLY DEFINED COMPOUNDS ' ' , A DESCRIPTION NOT SATISFIED BY THE ALUMINIUM HYDROXIDE PRESENT IN CORIAN .

7 THE OTHER TARIFF HEADING WHICH MIGHT BE CONSIDERED FOR THE CLASSIFICATION OF CORIAN IS HEADING 68.11 , PROVIDED , HOWEVER , THAT THAT PRODUCT MAY BE REGARDED , AS DU PONT AND DEWFIELD MAINTAIN , AS ' ' ARTIFICIAL STONE ' ' .

8 THERE IS NO UNIVERSALLY ACCEPTED INTERPRETATION OF THAT CONCEPT IN EITHER TRADE OR SCIENTIFIC CIRCLES , ALTHOUGH THE PREVAILING VIEW IS THAT ' ' ARTIFICIAL STONE CONTAINS NATURAL STONE ' ' .

THAT APPROACH WAS ADOPTED IN THE EXPLANATORY NOTES OF THE CUSTOMS COOPERATION COUNCIL , TO WHICH REFERENCE MAY BE MADE IN ORDER TO INTERPRET HEADINGS IN THE COMMON CUSTOMS TARIFF . ACCORDING TO THOSE NOTES , ' ' ARTIFICIAL STONE IS AN IMITATION OF NATURAL STONE USUALLY OBTAINED BY AGGLOMERATING PIECES OF NATURAL STONE , CRUSHED OR POWDERED NATURAL STONE ( LIMESTONE , MARBLE , GRANITE , PORPHYRY , SERPENTINE , ETC .) WITH LIME OR CEMENT OR OTHER BINDERS ( E.G ., ARTIFICIAL PLASTIC MATERIAL ) ' ' .

9 IT WAS SUBMITTED BY DU PONT AND DEWFIELD THAT THE WORD ' ' USUALLY ' ' ( ' ' EN PARTICULIER ' ' IN THE FRENCH VERSION ), WHICH WAS USED IN THE NOTES , IMPLIES THAT THERE MAY BE EXCEPTIONS AND THUS ALLOWS EVEN PRODUCTS WHICH DO NOT CONTAIN NATURAL STONE TO BE REGARDED AS ' ' ARTIFICIAL STONE ' ' . THAT ARGUMENT CANNOT BE ACCEPTED , HOWEVER , FOR THE POSITION OF THE WORD ' ' USUALLY ' ' , WHICH PRECEDES THE WORDS ' ' BY AGGLOMERATING ' ' AND NOT THE WORDS ' ' POWDERED NATURAL STONE ' ' , INDICATES IN FACT THAN AN EXCEPTION MIGHT BE MADE AT MOST TO ALLOW FOR THE POSSIBILITY OF USING A MANUFACTURING PROCESS OTHER THAN THE AGGLOMERATION OF BINDERS WITH POWDERED NATURAL STONE , BUT NOT FOR THE CASE WHERE NO NATURAL STONE IS USED .

10 IT FOLLOWS THAT THE ONLY HEADINGS OF THE COMMON CUSTOMS TARIFF WHICH MAY BE CONSIDERED FOR THE CLASSIFICATION OF CORIAN ARE SUBHEADINGS 39.02 C XII AND 39.07 B V ( D ).

11 THE RESULT WOULD IN ANY CASE BE THE SAME , EVEN IF IT WERE ACCEPTED , FOR THE SAKE OF ARGUMENT , THAT CORIAN MAY ALSO BE CLASSIFIED , PRIMA FACIE , UNDER HEADING 68.11 OF THE COMMON CUSTOMS TARIFF .

12 IF THAT WERE SO RULE 3 OF THE GENERAL RULES WOULD APPLY , PARAGRAPH ( A ) OF WHICH STATES THAT ' ' THE HEADING WHICH PROVIDES THE MOST SPECIFIC DESCRIPTION SHALL BE PREFERRED TO HEADINGS PROVIDING A MORE GENERAL DESCRIPTION ' ' . BUT HEADING 68.11 , WHICH , ACCORDING TO DU PONT AND DEWFIELD , INCLUDES ' ' ANY MATERIAL WITH THE CHARACTERISTICS OF AN IMITATION OF NATURAL STONE ' ' , IS PLAINLY FAR MORE GENERAL IN SCOPE , IF THUS CONSTRUED , THAN SUBHEADINGS 39.02 C XII AND 39.07 B V ( D ).

13 THE REPLY TO BE GIVEN TO THE NATIONAL COURT MUST THEREFORE BE THAT THE PROVISIONS OF THE COMMON CUSTOMS TARIFF ARE TO BE CONSTRUED AS MEANING THAT THE PRODUCT KNOWN AS CORIAN , WHICH CONSISTS BY WEIGHT OF APPROXIMATELY 66% ALUMINIUM HYDROXIDE , APPROXIMATELY 33% POLYMETHYL METHACRYLATE AND A VERY SMALL PERCENTAGE OF CATALYTIC AND OTHER CURING AGENTS , FALLS UNDER SUBHEADING 39.02 C XII OF THE COMMON CUSTOMS TARIFF WHEN IT IS IMPORTED IN THE FORM OF SLABS , AND UNDER SUBHEADING 39.07 B V ( D ) WHEN IT IS IMPORTED IN THE FORM OF ARTICLES MADE OF THAT MATERIAL , AND IS NOT CLASSIFIABLE UNDER ANY OTHER HEADING OF THE COMMON CUSTOMS TARIFF .

COSTS

14 THE COSTS INCURRED BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COMMERCIAL COURT OF THE QUEEN ' S BENCH DIVISION OF THE HIGH COURT OF JUSTICE OF ENGLAND AND WALES BY AN ORDER OF 22 JULY 1981 , HEREBY RULES :

THE PROVISIONS OF THE COMMON CUSTOMS TARIFF ARE TO BE CONSTRUED AS MEANING THAT THE PRODUCT KNOWN AS CORIAN , WHICH CONSISTS BY WEIGHT OF APPROXIMATELY 66% ALUMINIUM HYDROXIDE , APPROXIMATELY 33% POLYMETHYL METHACRYLATE AND A VERY SMALL PERCENTAGE OF CATALYTIC AND OTHER CURING AGENTS , FALLS UNDER SUBHEADING 39.02 C XII OF THE COMMON CUSTOMS TARIFF WHEN IT IS IMPORTED IN THE FORM OF SLABS , AND UNDER SUBHEADING 39.07 B V ( D ) WHEN IT IS IMPORTED IN THE FORM OF ARTICLES MADE OF THAT MATERIAL , AND IS NOT CLASSIFIABLE UNDER ANY OTHER HEADING OF THE COMMON CUSTOMS TARIFF .