C-74/87
ECLI:EU:C:1988:145
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GOERRIG v HAUPTZOLLAMT GELDERN
O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 9 March 1988
My Lords, (a) Separate chemical elements and separate chemically defined compounds, whether or not containing impurities;
On 24 November 1969 a German company Dr D. Goerrig GmbH ('Goerrig') imported into the Federal Republic of Germany 30 (b) Products mentioned in (a) above drums of a product which it declared as dissolved in water; 'sodium boronate solution, other hydrides' under Common Customs Tariff (CCT) subheading 28.57 A, under which the rate of duty was 6.4%. The goods were initially given customs clearance as requested, but on 17 March 1970 the Hauptzollamt (c) Products mentioned in (a) above (Principal Customs Office) Geldern ('the dissolved in other solvents provided that Hauptzollamt') issued a notice of reas- the solution constitutes a normal and sessment classifying the product as a prepa- necessary method of putting up these ration (sodium boronate in a solution of products adopted solely for reasons of sodium hydroxide) under CCT subheading safety or for transport and that the 38.19 T, under which the rate of duty solvent does not render the product was 14.4%, and demanding payment of particularly suitable for some types of additional import duty. use rather than for general use;
Goerrig challenged that reassessment. Its (d) The products mentioned in (a), (b) or case was, in essence, that the product (c) above with an added stabilizer imported was the sodium boronate and that necessary for their preservation or the sodium hydroxide solution with it was a transport.' stabilizer. It pointed to Note 1 to Chapter 28 of the CCT. The version in force at the time of the importation (Journal Officiel 1968, L 72, p. 126) read: Subsequently a paragraph (e) was added to Note 1, in the following terms: 'The products mentioned in (a), (b), (c) or (d) above with an added anti-dusting agent or a 'Except where their context otherwise colouring substance added to facilitate their requires, the headings of this Chapter are to identification or for safety reasons, provided be taken to apply only to: that the additions do not render the product
OPINION OF SIR GORDON SLYNN — CASE 74/87
particularly suitable for some types of use chemical imported by Goerrig consisted of rather than for general use'. an aqueous solution containing 12% by weight of NaBH 4 (sodium borohydride, or sodium boronate) and about 40% by weight of N a O H (sodium hydroxide solution). The imported aqueous sodium boronate solution, leaving aside the sodium hydroxide solution, constituted a separate chemical Goerrig's action against the Hauptzollamt compound. Sodium boronate is a dangerous was dismissed by judgment of the Finanz- product which can decompose rapidly, gericht (Finance Court) Düsseldorf of 13 giving off explosive and poisonous gases. A April 1978 on the grounds that the product sodium hydroxide solution reduces the could not be classified under Chapter 28 of speed of decomposition of the aqueous the Common Customs Tariff since the sodium boronate solution. It was therefore stabilizer was not added later but was right in this case to ascribe to the sodium already produced at the time of manu- hydroxide solution the function of a facture and was left in the solution. On stabilizer. What concentration of sodium appeal by Goerrig, the Bundesfinanzhof hydroxide solution sufficiently stabilizes a (Federal Finance Court) quashed the solution for the purposes of storage and Finanzgericht's decision by judgment of 2 transport can be determined only if the December 1980 and referred the case back conditions of storage and transport are to the Finanzgericht. The Bundesfinanzhof known. He estimates that a sodium held that: Note 1 (d) to Chapter 28 of the hydroxide solution of at least 3 0 % by C C T had been wrongly applied. The word weight is required if it is desired to store or 'added' did not mean that the stabilizer had transport aqueous sodium boronate to be added subsequently. It was necessary solutions for a period of a few weeks, but to establish whether the imported product, that for a longer period of preservation a without taking into account the aqueous further increase in the sodium hydroxide sodium hydroxide contained therein, could concentration is to be preferred. Given that be regarded as dissolved in water within the the saturation limit of the solution is to be meaning of Note 1 (b) to Chapter 28 of the found at a concentration of 12.9% by C C T and whether the aqueous sodium weight of sodium boronate to 46.9% by hydroxide contained in the product was weight of sodium hydroxide solution, he necessary merely as a stabilizer for the pres- concludes that the concentration of sodium ervation or transport of the product hydroxide solution selected (40%) was dissolved in water or whether it was left in therefore appropriate for the storage and the product for other reasons, for example transport of sodium boronate solutions. of an economic nature, or whether it was intended to serve other purposes.
The Finanzgericht accepted Dr Diemert's The Finanzgericht commissioned an expert evidence. By judgment of 10 November report from Dr Klaus Diemert of the 1982 it held that, according to Note 1 (b) Institute for Inorganic and Structural to Chapter 28 of the CCT, sodium boronate Chemistry I of the University of Düsseldorf solution should as such (without the to examine these questions. In his report, aqueous sodium hydroxide) be classified dated 20 July 1982, he found that the under Chapter 28 of the C C T as a separate
GOERRIG v HAUPTZOLLAMT GELDERN
chemically defined compound dissolved in expressly provides, in the case of solvents, water. It held that aqueous sodium that the solvent may not render the product hydroxide was a stabilizer necessary for the particularly suitable for some types of use preservation or transport of sodium rather than for general use, there is no such boronate solution, within the meaning of restriction in Note 1 (d) with regard to Note 1 (d) to Chapter 28 of the CCT. stabilizers. T o apply that restriction by Accordingly it held, allowing Goerrig's analogy, by way of interpretation based on action, that the product should be classified the Explanatory Notes to the Nomenclature under C C T subheading 28.57 A. of the Customs Co-operation Council, would constitute an unlawful substantive amendment of the Common Customs Tariff.
The Hauptzollamt in its turn appealed to the Bundesfinanzhof, which quashed the Finanzgericht's second decision by a judgment of 12 June 1986 and referred the Accordingly, by that decision, it suspended case back again to the Finanzgericht. the proceedings and referred the following question to the Court for a preliminary According to the Bundesfinanzhof, the ruling: Finanzgericht had failed to recognize that a product may not be classified under Chapter 28 if the stabilizer contained therein has the effect of rendering the product suitable, within the meaning of Note 1 to Chapter 28 of the CCT, for uses for which, without the 'Is Note 1 (d) to Chapter 28 of the stabilizer, it could not be applied. The Common Customs Tariff to be interpreted Bundesfinanzhof held that, for the purposes as meaning that a stabilizer necessary for of Note 1 (d) to Chapter 28 of the CCT, the transport of a product may not make the classification of a product depends not other uses possible?' only on whether the stabilizer is necessary, by reason of the state and quantity in which it is present, for preservation and transport but also on whether it makes possible types of use other than those of preservation or transport. Although these last words do not The question itself does not specify whether appear in Note 1 (d) the Bundesfinanzhof it is 'other uses' of the stabilizer or the basic thought they were to be read in in the light product plus the stabilizer. The text of the of the Explanatory Notes to the Nomen- order for reference and the 1986 judgment clature of the Customs Cooperation of the Bundesfinanzhof seem, however, to Council. indicate that the 'other uses' referred to are other uses of the product itself with its stabilizer rather than other uses of the stabilizer alone.
The Finanzgericht took the opposite view. In its decision of 19 February 1987 it held in that regard: 'Although Note 1 (c) to The Commission and the Hauptzollamt Chapter 28 of the Common Customs Tariff initially approached the case on the basis
OPINION OF SIR GORDON SLYNN — CASE 74/87
that the sodium hydroxide solution was the transport of the sodium boronate present in quantities greater than were solution. That solution was, as the Finanz- necessary to stabilize the sodium boronate. gericht found, a separate chemically defined The Commission thought that a concen- compound dissolved in water within tration of only 0 . 1 % was necessary, as paragraph 1 (b) of the Note. The express against the 4 0 % actually present. It appears, terms of Note 1 (d) are thus satisfied. however, that that was a mistake. The lower figure would apply to sodium boronate in the crystalline state, but this case concerns sodium boronate in an aqueous solution, having different properties. Dr Diemert's finding that a 40% concentration was necessary for the purpose of stabilising an aqueous sodium boronate solution, was accepted by the Finanzgericht in its 1982 Is it necessary to read in a condition judgment. That finding was not overturned analogous to that to be found in Note 1 (c) by the Bundesfinanzhof in its 1986 that a solvent (other than water) must not judgment, and the Finanzgericht has reaf- 'render the product particularly suitable for firmed it in the order for reference ('As is some types of use rather than for general clear from the evidence furnished to the use', and in Note 1 (e) in relation to anti- court, the stabilizer in question here is dusting agents and colouring substances necessary for the transportation of the which was introduced subsequently? product'). The case before this Court should therefore be approached on the basis that a 4 0 % concentration was necessary as a stabilizer. There is, in any event, no evidence to contradict that conclusion reached by Dr Diemert.
The Commission argues that it should be read in and that the omission of these words in Note 1 (d) was not intentional. I do not accept that: it seems to me that the wording of Note 1 (d) should be considered to have been chosen deliberately. Moreover, the N o r is it established that the use of the Community legislator has had frequent solution of sodium hydroxide as a stabilizer opportunity to amend Note 1 (d) by adding was a devious means of importing it without such a condition (in fact every time that it paying duty. has re-enacted the CCT) but it has always refrained from doing so. Most strikingly it did not do so when it introduced Note 1 (e). Moreover, when it replaced the C C T nomenclature with the Combined Nomen- clature (CN) with effect from 1 January 1988 (see Council Regulation N o 2658/87, Official Journal 1987, L 256, p. 1), the For the purposes of Note 1 (d) to Chapter Community legislator re-enacted Note 28 it is thus clear that the sodium hydroxide 1 (d) to Chapter 28 word for word in the solution is a 'stabilizer' and that the quantity same terms as were used in the C C T in used was 'necessary' for the preservation or 1968.
GOERRIG v HAUPTZOLLAMT GELDERN
It seems to me that the express wording of might be called 'deemed stabilizers': it is, Note 1 (d) in this respect is clear and that however, to be noted that the preceding neither Note 1 read as a whole nor the paragraph dealing with 'stabilizers' (which intention of the legislator (as far as it can be the sodium hydroxide solution clearly is discerned) provide grounds for adding in here) does not contain any such qualifi- the implied condition contended for. cation.
I consider thus that the fact that the basic If these words are clear then they should product plus the stabilizer could be used for not be affected by any contrary meaning purposes other than those for which the given in the Explanatory Notes to the basic product could be used does not take Nomenclature of the Customs Cooperation the basic product outside Note 1 (d) so Council. long as it is clear that what is added to the basic product is a stabilizer necessary for the preservation or transport of the basic product. What is 'necessary' obviously has a quantitative as well as qualitative element and if the amount of stabilizer used is I am not satisfied in any event that those beyond anything reasonably necessary for Explanatory Notes do indicate a contrary the purpose of stabilising the product then it meaning for present purposes. It is true that could be said that the product is taken the eighth paragraph of the 'General' notes outside Chapter 28. Equally, different to Chapter 28 of the Nomenclature of the considerations obviously apply if it is shown Customs Cooperation Council provides: (as it is not shown in this case) that the stabilizer is used for the devious purpose of importing something essentially different from the basic product on its own.
'Products added to certain chemicals to keep them in their original physical state are also to be regarded as stabilizers, provided If I had come to the view that the question that the quantity added in no case exceeds of the national court was not so much that necessary to achieve the desired result directed to the basic product plus the and that the addition does not alter the stabilizer as to the stabilizer alone, I would character of the basic product and render it have concluded that the fact that the particularly suitable for some types of use stabilizer can have other subsequent uses rather than for general use.' does not necessarily take the basic product outside Note 1 (d) so long as the stabilizer is shown to be 'necessary' for the preser- vation or transport of the basic product. In many cases it seems likely that removing the stabilizer to get back to the basic product will destroy the stabilizer but if it can be That paragraph, by the words 'are also to used again the basic product is still in my be regarded as', seems to relate to what view within Chapter 28.
OPINION OF SIR GORDON SLYNN — CASE 74/87
In all the circumstances, in my opinion, the answer to the question referred should be on the lines that:
Note 1 (d) to Chapter 28 of the Common Customs Tariff contains no requirement to the effect that a stabilizer necessary for the transport of a product may not make other uses of the product plus the stabilizer possible.
The costs of the Commission are not recoverable. The costs of the parties to the main action are a matter for the national court.