C-130/82

In Case 130 / 82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Rechtbank van Eerste Aanleg [ Court of First Instance ], Antwerp , for a preliminary ruling in the proceedings pending before that court between

NAAMLOZE VENNOOTSCHAP FARR COMPANY , Brasschaat , Belgium ,

and

BELGIAN STATE , represented by the Minister of Finance ,

! — Language of the Case: Dutch.

JUDGMENT

Facts and Issues

The facts of the case, the course of forth. Until 1976, the filters were the procedure and the observations imported under tariff subheading 84.18 submitted under Article 20 of the C II as machinery and apparatus (other Protocol on the Statute of the Court of than centrifuges) for filtering and Justice of the EEC may be summarized purifying liquids or gases, at a rate of as follows: duty of 6%. However, by two decisions of 3 February and 12 August 1976, the Belgian customs authority classified some of the filters under tariff subheading · 70.20 A (non-textile fibre and articles I — Facts and national procedure made therefrom, rate of duty: 11%) and others under subheading 59.17 D (textile fabrics and textile articles, of a kind commonly used in machinery or plant, Since 1973 Farr Company NV, the rate of duty: 9.5%). plaintiff in the main proceedings (here­ inafter referred to as "the plaintiff"), has imported air filters intended principally for use in air-purifying and air- The customs authority based its decisions conditioning installations, motors and so on Note 1 (e) to Section XVI of the

FARR v BELGIUM

Proportion Proportion Proportion Type cost price/ cost price/ cost price/ cotton fibre wire frame

12x20x2 16 % I40/0 500/0

20 x 25 x 1 170/0 140/0 3 1

(ii) Weight

Components orams per % square foot

Polyvinyl acetate (PVA) 6,0 147 Tricresyl phosphate (TCP) 0.07 0.002 Cotton covering 2.0 4 7 Filtering material (cotton) 4.O 94 Di-ammonium phosphate (DAP) 0.01 0.0002 Wire 6.0 14.2 Frame r-,

Grams per Components square foot %

Filtering material Adhesive (cresyl diphenyl phosphate) 4.5 8.5 Bonding agent (urea formaldehyde) 5.7 10.7 Covering on reserve side ("Lenoweave"/paste) 4.0 7.5 Fibreglass 9.6 18.2

Other materials . 55

FARR v BELGIUM

3. ECO filter (Decision No D.T. in a cardboard frame between two thin 42.857) perforated metal sheets. (a) Description Filter for purifying air consisting of a square membrane of fibreglass mounted (b) Composition

Grams per Components square foot %

JUDGMENT OF 10. 2. 1983 — CASE 130/82

The Notes to Section XVI of the joints, taps, etc., clamping or tightening Common Customs Tariff, which contains bands or collars or other fixing or sup­ Chapter 84, are worded as follows: porting devices (stands, tripods, etc.).

" 1 . This section does not cover: On the other hand, the following are, as a rule, to be taken to have lost the character of ceramic articles, laboratory glassware, or machinery or appliances (e) ... articles of textile material of and parts thereof, of ceramic material or a kind commonly used in of glass : machinery or plant (heading No 59.17); (1) combinations of ceramic or glass components with a high proportion of components of other materials (e.g. of metal); also articles 2. Subject to Note 1 to this section, consisting of a high proportion of Note 1 to Chapter 84 and Note 1 to ceramic or glass components incor­ Chapter 85, parts of machines . , . porated or permanently mounted in are to be classified according to the frames, cases and the like, of other following rules: . . ." materials.

Note 1 (c) to Chapter 84 excludes from j .

FARR v BELGIUM

gases or smoke fumes, removal of oil of a kind commonly used in paper- from steam engine vapours). making or other machinery, tubular or endless with single or multiple They include: warp and / or weft, or flat woven with multiple warp and/or weft;

(1) Filters and purifiers acting solely by (v) Textile fabrics, reinforced with mechanical or physical means; these metal, of a kind commonly used in are of two types. In the first type, as machinery or plant; in liquid filters, the separating element consists of a porous surface or mass (felt, cloth, metallic sponge, glass wool, etc.) ; (b) Textile articles (other than those of headings Nos 59.14 to 59.16) of a kind commonly used in machinery or plant (for example, gaskets, Parts washers, polishing discs and other machinery parts)."

III — Procedure before the The individual components of the filter Court have their own function in the filtering process. Thus the frame, the wire, the bonding agent, the adhesive and the Pursuant to Article 20 of the Protocol on covering are all equally as important in the Statute of the Court of Justice of the the construction of the filters as the EEC, written observations were lodged textile material and glass fibre. by the plaintiff, Farr Company NV, represented by I. Onkelinx, of the Brussels Bar, by the Belgian The plaintiff submits that Note 1 (e) to Government, represented by W. Collins, Section XVI should be interpreted to Director of Administration at the mean that articles of a kind commonly Ministry of Foreign Affairs, Foreign used in machinery or plant which Trade and Cooperation with Developing contain components of materials other Countries, and by the Commission, than textile material are still classified represented by T. Van Rijn, a member of under heading No 59.17, provided that its Legal Department. those components are merely accessories which do not cause the articles as a whole to lose their character of being Upon hearing the report of the Judge- articles of a textile material. Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any Goods which correspond to a description preparatory inquiry. However, it decided relating to a tariff heading in Section to ask the plaintiff to bring to the XVI may, therefore, be classified under hearing models of all the filters tariff heading No 59.17 only if the concerned and to state the use to which principal component is of textile those filters were normally put, in material. particular the extent to which they were intended to be a part of a more complex The description of the composition of appliance and the extent to which they the air filters (as reproduced above) might be used independently. shows that the textile material used constitutes only a small part of the By order of 17 November 1982, the appliance and is certainly neither the Court decided, under Article 95 (1) and principal nor the dominant component. (2) of the Rules of Procedure, to assign Moreover, the Explanatory Notes do not the case to the Second Chamber. include air filters among the articles which are not covered by Section XVI ; they do, however, state that such filters may consist of "felt, cloth or glass IV — Written observations wool". On the basis of the Notes, it may be concluded that it is intended that filters made from textile materials or 1. The plaintiff maintains, in the first glass wool should in principle be place, that the filters concerned classified under tariff heading No 84.18 correspond fully to the wording of tariff unless the dominant material or the subheading 84.18 C II. principal component is a textile material, and the plaintiff submits that in this case In the second place, it points out that the it is not. exceptions provided for in Note 1 (e) to Section XVI and in Note 1 (c) to Chapter 84 of the Common Customs As regards Note 1 (c) to Chapter 84, the Tariff do not apply. plaintiff points out that, according to the

Explanatory Notes to Chapter 84, "the Customs Tariff suggest that the filters following are . .. to be taken to have lost must be classified under heading No the character of ... machinery or 84.18, as that heading provides a more appliances and parts thereof, ... of glass: specific description than headings Nos 59.17 and 70.20. (i) combinations of . .. glass components with a high proportion of Accordingly, the plaintiff proposes that components of other materials (e.g. the questions raised by the national court of metal); also articles consisting of a should be answered as follows: high proportion of ... glass components incorporated or " 1 . The air filter of the type 30/30 permanently mounted in frames, (Decision No D.T. 42.856, Model cases and the like, of other 1), consisting of a sheet of textile materials." material of unwoven, reinforced cotton, pleated in rows, supported The plaintiff maintains that three and reinforced by metal wire and conclusions may be drawn from the incorporated in a stiff, resistant and above: water-proof cardboard frame, with (1) The articles which correspond to the diagonal supporting strips attached description relating to a tariff to the frame, is an apparatus for heading in Chapter 84 may be filtering air and other gases covered classified under tariff heading No by subheading 84.18 C II b of the 70.20 only if the principal Common Customs Tariff. component of the article is made of glass wool. 2. The air filter of the type HP , consisting of a pleated membrane or (2) Even if the article consists "largely" reinforced unwoven cotton, fitted of glass wool or glass fibre, it may above and below with a cardboard not be classified under tariff heading sheet, is an apparatus for filtering ail­ No 70.20 if the glass components or other gases covered by sub­ are incorporated or permanently heading 84.18 C II b of the Common mounted in frames, cases and so Customs Tariff. forth. 3. The air filter of the type HP , (3) Even if the dominant material is consisting of a pleated sheet of glass glass fibre and the article is not wool reinforced with a membrane of incorporated in frames and so forth, synthetic nylon and fitted above and it may be classified under tariff below with a cardboard sheet or an heading No 70.20 only if that tariff asbestos plate and the glassfibre heading provides the most specific content of which represents only description. 10% of its total weight, is an apparatus for filtering air or other It may be seen from the information gases covered by subheading 84.18 C given on the filters in the judgment II b of the Common Customs Tariff. making the reference that the glass fibre is not the principal component of the 4. The air filter of the type 83 Media filters in terms either of value or of Roll-Kleen, consisting of fibreglass weight and that it is incorporated in matting reinforced on one side by a frames. weave with gauze binding of synthetic fibre, on reels, and of Finally, the Rules for the Interpretation which the fibreglass content of the Nomenclature of the Common represents less than 20 % of its total

weight, is an apparatus for filtering include articles composed wholly or air or other gases covered by sub­ partially of that material or substance. heading 84.18 C II b of the Common The classification of articles consisting of Customs Tariff. more than one material or substance is to be according to the principles of Rule 3. 5. The air filter of the type ECO , consisting of a square membrane of The essential character of filtering fibreglass mounted in a cardboard components is determined by the frame between two thin perforated material which enables them to fulfil metal sheets and of which the their function; in this case it is the textile fibreglass content represents not material or glass fibre from which the more than 40 % of its total weight, is article derives its filtering properties; the an apparatus for filtering air or other function of the containers and the gases covered by subheading 84.18 C reinforcing materials is merely to II b of the Common Customs strengthen the components and to enable Tariff." or to facilitate their installation in the appliances for which they are intended; they are merely accessories in relation to 2. The Belgian Government agrees that the filtering material. the filters are clearly designed to be used as filtering components in air filters. The Belgian Government therefore proposes the following answers : It submits that, pursuant to Rule 1 of the Rules for the Interpretation of the "A. The filters of the types 30/30 and Nomenclature of the Common Customs HP2A are filtering components of a Tariff, air filters should be classified textile material and must be under tariff subheading 84.18 C IIb in regarded as articles of textile so far as that classification is not material of a kind commonly used contrary to the Notes to Section XVI in machinery or plant which must be and to Chapter 84. ž classified under heading No 59.17 D of the Common Customs Tariff. It points out that Note 1 to Section XVI excludes inter alia articles of textile B. The filters of the types HP , 83 and material of a kind commonly used in ECO must be regarded as articles of machinery or plant, whilst Note 1 (c) to non-textile glass fibre and must be Chapter 84 excludes machinery and classified under subheading 70.20 A appliances and parts thereof, of glass. of the Common Customs Tariff."

fulfils the function of purifying the air. regarded as articles of textile material of The filter becomes unusable after a a kind commonly used in machinery or certain time and has to be replaced. It is plant (heading No 59.17) or as articles of therefore the filtering material, consisting glass wool or glass fibre (heading No of textile materials or glass fibre which 70.20), according to which substance the actually fulfils the function of extracting filtering material is made of. the impurities from the air. The other materials of which the filter for purifying air consists have a secondary function. The Commission proposes that the Thus the wire is intended to strengthen following answer be given to the the filtering material and to enlarge the questions raised by the Rechtbank van total surface. In the same way, the Eerste Aanleg, Antwerp: cardboard frame (filter 30/30 and the ECO filter) or the cardboard sheets ( HP "The air filters as described in the filters), the cardboard supporting strips question raised by the national court (filter 30/30) and the perforated metal must be classified under the Common sheets placed on both sides (the ECO Customs Tariff as articles of textile filter) are designed to strengthen the material of a kind commonly used in appliance. Finally, an important machinery or plant (tariff subheading component of the filters for purifying air 59.17 D) or as articles of glass wool or is the bonding agent (polyvinyl acetate glass fibre (tariff subheading 70.20 A), or urea formaldehyde), which is used to according to whether the filtering reinforce the filtering material. However, material is made of cotton or glass the bonding agent does not determine fibre." the essential function of the filters, namely the filtering of air.

JUDGMENT OF 10. 2. 1983 — CASE 130/82

Decision

1 By judgment of 1 April 1982, received at the Court on 9 April 1982, the Rechtbank van Eerste Aanleg [Court of First Instance], Antwerp, referred to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty two questions concerning the interpretation of various headings of the Common Customs Tariff.

2 Those questions were raised in the context of an action brought against the Belgian State by a public company which, from 1973 to 1976, imported into Belgium under tariff subheading 84.18 C II ("machinery and apparatus . .. for filtering or purifying liquids or gases") air filters principally intended to be used in air-purifying plants. In 1976, however, the Belgian customs authority, by two decisions, classified some of those filters under tariff sub­ heading 59.17 D (textile fabrics and textile articles, of a kind commonly used in machinery or plant — other) and others under subheading 70.20 A (glass fibre (including wool), yarns, fabrics and articles made therefrom — non- textile fibre and articles made therefrom). The customs authority based its decisions on Note 1 (e) to Section XVI and Note 1 (c) to Chapter 84 of the Common Customs Tariff.

3 The company which imported the filters brought an action against those decisions before the Rechtbank van Eerste Aanleg, claiming that the goods should be classified under subheading 84.18 C II, mentioned above.

4 The Rechtbank stayed the proceedings and referred to the Court two questions as to whether the filters should be classified under tariff sub­ heading 84.18 C II or under tariff subheadings 59.17 D and 70.20 A.

9 The plaintiff in the main proceedings points out that the filters in question have lost their character of articles of textile material or of glass fibre by the addition of other components, for example bonding agents or adhesives and covering materials such as metallic sheets or cardboard frames. Each of those components has its own function, equally as important as that of the textile material or the glass fibre. Moreover, their weight and their value are greater than those of the textile material or the glass fibre. In that regard, the applicant relies on various paragraphs of the Customs Cooperation Council's Explanatory Notes, which in fact amount to specific applications of Rule 3 (b) of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, according to which composite goods which consist of different materials or are made up of different components and which cannot be classified by reference to Rule 3 (a) are to be classified as if they consisted of the material or component which gives them their essential character.

JUDGMENT OF 10. 2. 1983 — CASE 130/82

io In that connection, it should be emphasized that the essential character of the filters derives from their filtering capacity. The description given in the questions put to the Court shows that the sheets of textile material or of glass fibre constitute, for all the filters in question, the component which is indispensable for the filtering process. The bonding agent and the adhesives are used to improve the filtering capacity and to retain the impurities. The covering materials are used, in particular, to facilitate the assembly of the filters. Although in some cases their weight and their value exceed those of the sheets of textile material or glass fibre, they are nevertheless accessories in relation to those components. Therefore, they may not be said to deprive the filters of their character of articles of textile material or of glass fibre of a kind commonly used in machinery or plant.

FARR v BELGIUM

The air filters the composition of which is described in the questions referred to the Court must be classified as articles of textile material of a kind commonly used in machinery or plant under heading No 59.17 of the Common Customs Tariff or as machinery and appliances and parts thereof, of glass, under heading No 70.20 of the Common Customs Tariff, according to whether the filtering component consists of textile material or of glass fibre.

Pescatore Due Bahlmann

Delivered in open court in Luxembourg on 10 February 1983.

For the Registrar

H. A. Rühi P. Pescatore Principal Administrator President of the Second Chamber