C-234/81

JUDGMENT OF THE COURT (FIRST CHAMBER) 7 OCTOBER 1982 1

E. I. Du Pont de Nemours Inc. and Dewfield (an unlimited company trading as CD . (UK)) v Commissioners of Customs and Excise (reference for a preliminary ruling from the Commercial Court of the Queen's Bench Division of the High Court of Justice)

(Common Customs Tariff — Corian)

Case 234/81

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 subheading 39.02 C XII of the Common Tariff are to be construed as meaning Customs Tariff when it is imported in that the product know as Corian, which the form of slabs, and under subheading consists by weight of approximately 39.07 B V (d) when it is imported in the 66 % aluminium hydroxide, approxi­ form of articles made of that material, mately 33 % polymethyl methacrylate and is not classifiable under any other and a very small percentage of catalytic heading of the Common Customs Tariff. and other curing agents, falls under

DEWFIELD (AN UNLIMITED COMPANY TRADING AS CD . (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,

THE COURT (First Chamber),

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

DU PONT DE NEMOURS v COMMISSIONERS OF CUSTOMS AND EXCISE

(2) Alternatively, whether the said product is to be classified under the II — Written observations sub­ following headings of Chapter 39 mitted pursuant to Article of the Common Customs Tariff, 20 of the Protocol on the namely 39.02 C XII or 39.07 BV Statute of the Court of (d); Justice of the EEC

(3) Alternatively, whether the said The observations submitted by the product is to be classified under any parties discuss the possibility of

JUDGMENT OF 7. 10. 1982 — CASE 234/81

classifying Corian under various V. Of other materials: headings or subheadings of the Common Customs Tariff. Having regard, inter alia, to the fact that Corian may be (d) Other." imported either in the form of slabs or sheets (which may have to be cut before use) or in the form of articles made of Du Pont, wholly supported by Dewfield, that material (washbasins, in particular), maintains that Corian should be the headings or subheadings of the classified as an article of artificial stone Common Customs Tariff which fall to be under heading 68.11 of the Common considered for the purpose of classifying Customs Tariff. in are the following:

DU PONT DE NEMOURS v COMMISSIONERS OF CUSTOMS AND EXCISE

As far as gibbsite is concerned, Du Pont (in) Corian has a mineral, crystalline explains that it is a crystalline mineral appearance and its feel is one found abundantly in nature, both which cannot be confused with the independently and in association with feel of plastic. other crystals contained in bauxite ore mined in Arkansas. The gibbsite used in the manufacture of Corian is extracted (iv) Corian is non-inflammable, from (and only from) this ore by a whereas plastic burns very easily. physical and chemical process of puri­ fication which separates out the gibbsite in the same crystalline form as it had in (v) When struck with a hammer the ore and as it has when found Corian breaks into several pieces independently in nature. The natural but does not shatter, whereas origin of gibbsite is therefore not to be plastic bends, resists or, in the case doubted, states Du Pont, and there is of certain kinds of plastic, shatters. nothing about the filler which causes its use in Corian to justify excluding the latter from the category of artificial (vi) Corian is translucent like alabaster stone. and many fine marbles but a plastic such as polymethyl methacrylate is transparent.

Methyl methacrylate is described by Du Pont as a colourless liquid which sets (vii) Corian has a homogeneous struc­ after polymerization into a firm, highly ture, whereas in a plastic such as transparent plastic used for spectacles, polymethyl methacrylate there is a car windscreens and similar applications. remarkable difference between the cut surface and the moulded surface.

than half the weight of the finished according to Du Pont, requires any product (in the case of Corian it is mixture or combination of materials to approximately 66%), that proportion be classified under the heading relevant results, in general, in products having for the material which gives it its properties quite different from those of essential character, applies to Corian. pure plastic. That is because Corian is a finished product and has, moreover, as Du Pont considers it has already demonstrated, The classification of a product solely on the character of neither of its the basis of the weight of the plastic components. incorporated in it, even though the filler significantly alters the characteristics of the product so that they are no longer It is necessary to have recourse to Rule those of plastic (an alteration which 3, which is applicable when several occurs in particular when the filler is an headings compete for the classification of unusual one), would lead, according to a given product. It comprises three Du Pont, to wholly incorrect results. In separate rules. certain cases, for example, such an approach would require concrete and terrazzo to be regarded as plastic owing The rule laid down in subparagraph (a) to the percentage by weight of plastic is that the more specific heading takes which they contain, yet they are precedence over the more general one. expressly referred to in the Explanatory In this regard, Du Pont considers that Notes of the Customs Cooperation heading 68.11 ("Articles of . . . artificial Council as falling under heading 68.11. stone") gives an exact description of Corian, which is an imitation of a natural stone, namely marble. Headings Du Pont contends that in the present 39.02 and 39.07 are, by contrast, far less case the plain meaning of the words specific. "artificial stone" (in heading 68.11 of the Common Customs Tariff) virtually compels the inclusion of Corian and The rule contained in subparagraph (b), a plain reading of the words "polym­ which states that mixtures or composite erization products" (which are used in goods are to be classified on the basis of heading 39.02 of the Common Customs the material or component which gives Tariff and which include for the them their essential character cannot purposes of these proceedings products apply, for neither the plastic nor the of heading 39.07, "articles of materials gibbsite gives Corian its essential charac­ of the kinds described in headings Nos teristics and properties. 39.01 to 39.06") virtually compels its exclusion. The rule contained in subparagraph (c), which looks to the later heading, That interpretation, moreover, corre­ obviously favours heading 68.11 over sponds to the criteria laid down in the headings in Chapter 39. Rules for the interpretation of the Common Customs Tariff. Lastly, if the rule to be applied is Rule 4, whereby goods are to be classified in the Neither Rule 2 (a), which concerns same way as goods which are akin to the unfinished articles, nor Rule (b) which, product in question, Du Pont submits

that there are no products akin to Corian plastic component is greater, pound for which are made only of plastic or which pound, than the value of the mineral have even the properties of plastic. component. Yet the Court's decisions offer no support for any reference to the value of the product as a criterion (judgment of 28 March 1979 in Case Du Pont cites in support of its opinion a 158/78, Biegi). number of decisions of the Court of Justice which attribute decisive influence for the purposes of tariff classification to the criterion based on the essential In conclusion, Du Pont submits that the characteristics and properties of the reply to the questions raised in these product. proceedings should be that Corian must be classified under heading 68.11 of the Common Customs Tariff, regardless of the form in which it is presented, It considers that the Court's decisions whether as slabs or sheets, or as articles confirm Du Pont's point of view both as made of that material. to the interpretation of the word "usually" (judgment of 14 July 1981 in Case 205/80, Elba) and as to the entirely relative importance of the percentage of a particular material present in the The United Kingdom observes that the product to be classified (Elba, cited product known as Corian is made up, above; and judgment of 26 March 1981 apart from the small quantities of in Case 114/80, Ritter). colouring agents which may be present, of two main ingredients: polymethyl methacrylate, which is a plastic material, and aluminium hydroxide, which is a Du Pont points out that if the customs substance obtained from bauxite by a authorities' inclination to classify Corian chemical process known as the Bayer as a plastic simply because it contains a process. certain proportion of plastic reflects a wish to keep abreast of technological developments in building materials, where plastic is being used more and The United Kingdom does not accept more, that approach has been clearly the submission of the plaintiffs in the rejected by the Court, which stated in its main action that aluminium hydroxide judgment of 19 November 1981 in Case obtained by the Bayer process is simply 122/80, Analog Devices, that where pure gibbsite because it is in the same technical developments appear to justify crystalline form as the aluminium the adoption of a new customs classifi­ hydroxide contained in the ore. The cation any amendment of the Common United Kingdom contends, on the Customs Tariff to take account of the contrary, that it is a chemical obtained fact is purely a matter for the from bauxite ore by means of two Community institutions concerned. separate chemical reactions and the mineralogical term "gibbsite" is not an appropriate designation for such a substance. It states, however, that its Du Pont suggests that one of the factors view on the tariff classification of Corian influencing the customs authorities in in no way depends upon the answer to their decision to classify Corian as a the question whether the aluminium plastic might be that the value of its hydroxide employed in the manufacture

of that product is or is not of natural classification of mixtures or combi­ origin. nations of materials, aluminium hydroxide might be considered an appro­ priate classification for Corian, of which it is a component. However, in view of the fact that aluminium hydroxide comes Considering next the difficulty of under heading 28.20 of the Common classifying Corian, the United Kingdom Customs Tariff it must be remembered first draws attention to the German that according to Note 1 (a) to Chapter version of heading 68.11 of the Common 28, that chapter covers only "separate Customs Tariff in which there appears chemical elements". That excludes the the word "Betonwerksteine", which need to take into consideration the means "cast stone", and not "artificial aluminium hydroxide content of Corian stone". In any case, it considers that and thus reference must be made solely Corian may be described neither as "arti­ to the other main element of Corian: ficial stone" nor as "cast stone". Both, polymethyl methacrylate. according to the Explanatory Notes to the Customs Cooperation Council Nomenclature on heading 68.11, must contain "natural stone". That must refer in this context to natural stone which In the opinion of the United Kingdom, is a recognized or traditional building there is no reason why Corian should stone and it cannot reasonably be held to not be regarded as polymethyl meth­ refer to minerals in general, nor even to acrylate. Corian is a filled plastic, that is bauxite, which, although a natural to say a plastic substance to which an mineral, is a metal-bearing ore not used inert material has been added to modify as a building stone More particularly, its properties or to reduce its costs, or the description "natural stone" cannot be both. In the case of Corian the effect of held to include aluminium hydroxide using aluminium hydroxide as a filler is obtained by the Bayer process, which is to make the plastic opaque, more fire- a chemical product. Furthermore, a resistent, denser, harder and more reasonable construction of heading 68.11 abrasive to the working edges of tools. must include under that heading Neither the fact that the filler is products which not only contain natural aluminium hydroxide nor the proportion stone but which also derive their by weight of that ingredient is sufficient character from their natural stone to prevent Corian from being described component. as a filled plastic.

relevant heading is heading 39.02. also expressed in the Explanatory Note Therefore it is no longer necessary to to heading 68.11 drawn up by the apply Rule 3. Customs Cooperation Council. Although the Explanatory Notes of the Customs Cooperation Council, to which the Explanatory Notes to the Common The United Kingdom notes also that the Customs Tariff refer, are not legally Committee on Common Customs Tariff binding, they are an aid for the interpret­ Nomenclature decided in July 1980 that ation of the original and present meaning Corian in sheet form should be classified and scope of the various tariff headings. under subheading 39.02 C XII; further, as the plaintiffs in the main action themselves have stated, the German customs authorities classified Corian After having thus defined the term "arti­ under Chapter 39 of the Common ficial stone" the Commission states that Customs Tariff in March 1980. The such a definition cannot apply to a different classification adopted in May product such as Corian which contains 1978 by the Belgian customs authorities, no element of natural stone. The who placed Corian under heading 68.11, aluminium hydroxide cannot be regarded may be attributed to the fact that, in the as such because it does not exist as such letter requesting a classification opinion, in nature and is obtained by means of a it was stated (erroneously) that chemical process from bauxite. aluminium hydroxide is a mineral

JUDGMENT OF 7. 10. 1982 — CASE 234/81

In view of the description of the product "The heading 39.02 C XII has to be known as Corian, the Commission interpreted in such a way as to include a considers that it is the polymethyl meth- product composed of 66 % aluminium acrylate which gives that product its hydroxide, 33 % polymethyl methacry- main characteristics of consistency, late, a small percentage of short copper- beauty, brilliance, transparency and coloured fibres and a trace of colouring resistence to impact and weathering, pigment." whereas the aluminium hydroxide is merely a filler. The Customs Cooperation Council Ill — Oral procedure reached a similar conclusion in two classification opinions concerning tiles which, like Corian, contained a relatively At the sitting on 17 June 1982 oral small percentage of plastic and a high argument was presented by the percentage of minerals. following: Ian S. Forrester, Advocate of The Commission adds that Corian was the Scots Bar, for Du Pont and classified under heading 39.02 by the Dewfield; Frank Benyon, a member of Committee on Common Customs Tariff the Legal Department of the Com­ Nomenclature. mission of the European Communities, On the basis of the foregoing acting as Agent, for that institution. considerations the Commission suggests that the reply to the questions submitted The Advocate General delivered his should be as follows: opinion at the sitting on 8 July 1982.

Decision

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 pre­ liminary 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.

5 Inasmuch as Corian contains a material, namely polymethyl methacrylaie, which comes under subheadings 39.02 C XII and 39.07 BV ( 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, ever if that substance is regarded as gibbsite, and therefore an ore. Tnat 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.

JUDGMENT OF 7. 10. 1982 — CASE 234/81

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, "arti­ ficial 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)".

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 approxi­ mately 66 % aluminium hydroxide, approximately 33 % polymethyl meth- acrylate 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 class­ ifiable 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:

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 8 JULY 1982

My Lords, under headings 39.02 C XII and 39.07 B V (d), which cover certain polymers and plastics, or under any other heading. The Commercial Court of the Queen's Bench Division of the High Court in The question is referred in an action England asks for a preliminary ruling, before the Commercial Court in which pursuant to Article 177 of the EEC the first Plaintiffs are E. I. Du Pont de Treaty, as to whether a product called Nemours and Company, hereinafter "Corian" falls under heading 68.11 of called "Du Pont", a corporation the Common Customs Tariff which established and resident in Delaware, covers, inter alia, artificial stone, or with a very substantial business in the