Vogel Import Export NV Vs Belgische Staat (Tenth Chamber Court- European Union)
In a case involving interpretation of Tariff Headings 4407 and 4409 of the European Union’s Combined Nomenclature, the Court of the Justice of the European Union has held that planed wooden boards, the four corners of which have been rounded over the entire length of the board, are not to be regarded as ‘continuously shaped’ and are accordingly classified under Heading 4407 and not under Heading 4409. The Court was of the view that the light rounding of the sides of the wooden boards results from planing; that the boards had not undergone any continuous shaping process facilitating their assembly or making it possible to obtain mouldings or beadings and hence are not to be classified under Heading 4409.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
1. This request for a preliminary ruling concerns the interpretation of tariff headings 4407 and 4409 of the Combined Nomenclature set out in 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 Implementing Regulation (EU) No 2016/1821 of 6 October 2016 (OJ 2016 L 294, p. 1) (‘the CN’).
2. The request has been made in proceedings between Vogel Import Export NV (‘Vogel’) and the Belgische Staat (Belgian State) concerning the tariff classification of planed wooden boards the four corners of which have been rounded over the entire length of the board.
Legal context
International law
3. The Customs Cooperation Council, now the World Customs Organisation (WCO), was established by the convention establishing that body, concluded in Brussels on 15 December 1950. The Harmonised Commodity Description and Coding System (‘the HS’) was drawn up by the WCO and established by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983 and approved, with its amending protocol 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) (‘the HS Convention’).
4. Under Article 3(1) of the HS Convention, each Contracting Party undertakes, inter alia, to ensure that its customs tariff and statistical nomenclatures are 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. The same provision obliges each Contracting Party 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 approves, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee.
6. The Explanatory Notes to the HS relating to the relevant subheadings of heading 4407, which is entitled ‘Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-jointed, of a thickness exceeding 6 mm’, provide:
‘With a few exceptions, this heading covers all wood and timber, of any length but of a thickness exceeding 6 mm, sawn or chipped along the general direction of the grain or cut by slicing or peeling. Such wood and timber includes sawn beams, planks, flitches, boards, laths, etc., and products regarded as the equivalent of sawn wood or timber, which are obtained by the use of chipping machines and which have been chipped to extremely accurate dimensions, a process which results in a surface better than that obtained by sawing and which thereby renders subsequent planing unnecessary. It also includes sheets of sliced or peeled (rotary cut) wood, and wooden blocks, strips and friezes for flooring, other than those which have been continuously shaped along any of their edges, ends or faces (heading 4409).
It is to be noted that the wood of this heading need not necessarily be of rectangular (including square) section nor of uniform section along the length.
The products of this heading may be planed (whether or not the angle formed by two adjacent sides is slightly rounded during the planing process), sanded or end-jointed, e.g. finger-jointed …
The heading also excludes:
…
(d) Wood continuously shaped along any of its edges, ends or faces, of heading 4409.…’
7. The Explanatory Notes to the HS relating to the relevant subheadings of heading 4409, entitled ‘Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V‑jointed, beaded, moulded, rounded or the like) along any of its edges, ends or faces, whether or not planed, sanded or end-jointed’, are worded as follows:
‘This heading covers timber particularly in the form of boards, planks etc., which, after sawing or squaring, has been continuously shaped along any of its edges, ends or faces either to facilitate subsequent assembly or to obtain the mouldings or beadings described in Item (4) below, whether or not planed, sanded or end-jointed, e.g. finger-jointed ……
Other common forms of timber covered by the heading include:
(1) Boards with rounded edges or ends.
(2) V-jointed wood (i.e., wood tongued and grooved with chamfered edges or ends), including centre-V-jointed wood (i.e., with a V-shaped channel in the centre of the board and also usually tongued and grooved and sometimes chamfered at the edges or ends).
(3) Beaded wood (i.e., wood tongued and grooved with a simple bead between the edge or end and the tongue), including centrebeaded wood (i.e., wood tongued and grooved with a simple bead along the centre of the face).
(4) Moulded wood (also known as mouldings or beadings), i.e., strips of wood shaped to various contours (obtained mechanically or by hand), such as are used in the manufacture of picture frames, decoration of walls, furniture, doors and other carpentry or joinery.
(5) Rounded woods such as drawn woods, which are very thin rods, generally of round section, of a kind used in the manufacture of certain types of match splints, pegs for footwear, certain types of wooden sun‑blinds (pinoleum blinds), toothpicks, cheese‑making screens, etc. Dowelling in the length, being round wooden rods or poles of a uniform cross‑section, generally ranging in diameter from 2 mm to 75 mm and in length from 45 cm to 250 cm, of a kind used, e.g., for joining parts of wooden furniture, is also classified in this heading.
The heading also covers strips and friezes for flooring consisting of narrow pieces of boards, provided they have been continuously shaped, e.g., tongued and grooved. If they have not been worked beyond planing, sanding or end-jointing, e.g. Finger-jointing, they fall in heading 4407.
Strips of plywood or veneered wood for parquet flooring are also excluded (heading 4412).…’
EU law
8. The customs classification of goods imported into the European Union is governed by the CN, which is based on the HS.
9. Under Article 12(1) of Regulation No 2658/87, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16), the European Commission is to adopt each year a regulation reproducing the complete version of the CN, together with the rates of duty, as resulting from measures adopted by the Council of the European Union or the Commission. That regulation is to apply from 1 January of the following year.
10. The version of the CN applicable to the facts in the main proceedings is, given that the request for binding tariff information was made on 30 October 2017, the 2017 version, resulting from Implementing Regulation 2016/1821, amending Annex I to Regulation No 2658/87.
11. Part One of the CN, containing a series of preliminary provisions, includes a Section I on general rules, of which Subsection A, entitled ‘General rules for the interpretation of the [CN]’ (‘the general rules’), provides as follows:
‘Classification of goods in the [CN] shall be governed by the following principles.
1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.
(a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.
(b) 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.
2. When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;
(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;
(c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
…
3. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’
12. Part Two of the CN, entitled ‘Schedule of Customs Duties’, includes, inter alia, Section IX, entitled ‘Wood and articles of wood; wood charcoal; cork and articles of cork; manufactures of straw, of esparto or of other plaiting materials; basketware and wickerwork’.
13. Section IX includes Chapter 44, entitled ‘Wood and articles of wood; wood charcoal’.
14. Chapter 44 of the CN includes heading 4407, which covers, inter alia, subheadings 4407 29 and 4407 29 83:
