CELEX: 62014CJ0040
Reference for a preliminary ruling
Customs union and Common Customs Tariff
Importation free of customs duties
Animals specially prepared for laboratory use
Public establishment or an authorised private establishment
Importer whose customers are such establishments
Packing materials or packing containers
Cages used for transportation of animals

This request for a preliminary ruling concerns the interpretation of Article 60 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (
OJ 1983 L 105, p. 1
), as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (
OJ 2003 L 236, p. 33
) (‘Regulation No 918/83’), and of general rule 5(b) of the Combined Nomenclature contained 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 Regulation (EC) No 1789/2003 of 11 September 2003 (
OJ 2003 L 281, p. 1
) (‘the CN’).
The request has been made in proceedings between the Direction générale des douanes et droits indirects (Directorate-General of Customs and Indirect Duties), the Chef de l’Agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières (Head of the Investigation Agency of the National Directorate of Customs Information and Inquiries) and the Direction régionale des douanes et droits indirects de Lyon (Regional Directorate of Customs and Indirect Taxes, Lyon), on the one hand, and Utopia SARL (‘Utopia’), on the other hand, concerning a recovery notice contested by Utopia.
Legal context
Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty (
OJ 2009 L 324, p. 23
) repealed and replaced Regulation No 918/83, with effect from 1 January 2010. Nevertheless, in view of the dates of the facts of the dispute in the main proceedings, those proceedings are still governed by Regulation No 918/83.
Under the heading ‘Laboratory animals and biological or chemical substances for research’, Article 60 of Regulation No 918/83, which is the only article in Title XIII of that regulation, provides:
‘1.   Relief from import duties shall be granted in respect of:
(a)
animals specially prepared for laboratory use;
…
2.   The relief referred to in paragraph 1 shall be limited to animals … which are intended for:
—
either public establishments principally engaged in education or scientific research and those departments of public establishments which are principally engaged in education or scientific research,
—
or private establishments principally engaged in education or scientific research and authorised by the competent authorities of the Member States to receive such articles duty-free.
…’
Article 128 of Regulation No 918/83 provides:
‘Where relief from import duties is granted conditional upon goods being put to a particular use by the recipient, only the competent authorities of the Member State in whose territory the said goods are to be put to such a use may grant this relief.’
Article 129 of Regulation No 918/83 provides:
‘The competent authorities of the Member States shall take all appropriate measures to ensure that goods placed in free circulation, where relief from import duties is granted conditional upon goods being put to a particular use by the recipient, may not be used for other purposes without the relevant import duties being paid, unless such alternative use is in conformity with the conditions laid down by this Regulation.’
Article 131 of Regulation No 918/83 provides:
‘Where this Regulation provides that the granting of relief shall be subject to the fulfilment of certain conditions, the person concerned shall, to the satisfaction of the competent authorities, furnish proof that these conditions have been met.’
The CN is based on the international Harmonised Commodity Description and Coding System (‘the HS’), which was drawn up by the Customs Cooperation Council, now the World Customs Organisation, established by the International Convention concluded in Brussels on 14 June 1983, and approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (
OJ 1987 L 198, p. 1
).
Part One of the CN contains a series of preliminary provisions. In that part, Section I, which contains ‘General rules’, includes subsection A, entitled ‘General rules for the interpretation of the [CN]’. Those rules include general rule 5, which provides:
‘In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
…
(b)
subject to the provisions of rule 5(a), packing materials and packing containers … presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.’
Footnote 1 to general rule 5(b) of the CN, relating to the terms ‘packing materials’ and ‘packing containers’, states:
‘The terms “packing materials” and “packing containers” mean any external or internal containers, holders, wrappings or supports other than transport devices (e.g. transport containers), tarpaulins, tackle or ancillary transport equipment. The term “packing containers” does not cover the containers referred to in general rule 5(a).’
Save for that footnote, general rule 5(b) of the CN reproduces the exact wording of general rule 5(b) of the HS.
The Explanatory Note relating to general rule 5(b) of the CN, set out in the European Commission communication entitled ‘Explanatory Notes to the Combined Nomenclature of the European Communities’ (
OJ 2002, C 256, p. 1
), states:
‘Packing containers normally used for marketing beverages, jam, mustard, spices, etc., are to be classified with the goods they contain even if clearly suitable for repetitive use.’
The Explanatory Note to that rule, as it appears in the HS, provides that the rule ‘governs the classification of packing materials and packing containers of a kind normally used for packing the goods to which they relate [but] is not binding when such packing materials or packing containers are clearly suitable for repetitive use, for example, certain metal drums or containers of iron or steel for compressed or liquefied gas’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
Utopia, a company operating under the business name Marshall Bioresources, imports from the United States into France animals intended for laboratory research.
In 2006 the French customs authorities conducted an
ex post facto
check of imports of live dogs and ferrets by Utopia from March to December 2004. That check revealed that Utopia had made those imports free of customs duties on the basis of Article 60 of Regulation No 918/83.
The customs authorities considered that Utopia, which was not engaged in education or scientific research and did not have the required authorisation, could not claim relief from customs duties under Article 60 of Regulation No 918/83. As a result, they found, in a report of 7 March 2007, various customs infringements by means of which certain amounts of duties had been evaded, and on 27 March 2007 issued a recovery notice for those amounts.
On 26 July 2007, following the rejection by the customs authorities of the Utopia’s objection, that company brought an action for annulment of that report and that recovery notice. By judgment of 10 January 2011, the Tribunal d’instance de Lyon (District Court, Lyon) allowed the action and annulled the notice.
The customs authorities appealed against that judgment to the Cour d’appel de Lyon (Court of Appeal, Lyon), which, by judgment of 20 October 2011, accepted Utopia’s arguments on the application of Article 60 of Regulation No 918/83, ruling that the importation of live animals was to be allowed free of customs duties where those animals were intended for laboratory use. However, in that judgment, the Cour d’appel de Lyon upheld the disputed customs debt relating to the cages for the transportation of the live animals, finding that they did not constitute packing materials or packing containers presented with the goods therein within the meaning of general rule 5(b) of the CN. In that regard, the Cour d’appel de Lyon rejected Utopia’s argument, based on the fact that the cages at issue in the main proceedings were leased by the US supplier, to whom they were returned after the transportation of the animals, and according to which only repeated use of those cages within the European Union could be regarded as repeated use within the meaning of general rule 5(b) of the CN.
The appellants in the main proceedings brought an appeal on a point of law against that judgment of the Cour d’appel de Lyon before the Cour de cassation (Court of Cassation, France), concerning the question of the application, in the present case, of Article 60 of Regulation No 918/83. Utopia brought a cross-appeal before the Cour de cassation on the issue of the application of general rule 5(b) of the CN to cages for the transportation of the animals concerned.
In those circumstances the Cour de cassation decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1.
Is an importer of animals specially prepared for laboratory use entitled to the relief from import duties provided for in respect of goods of this type in Article 60 of [Regulation No 918/83], when it is not itself a public establishment or an authorised private establishment which is principally engaged in education or scientific research, but its customers are establishments meeting those conditions?
2.
Must general rule 5(b) … be interpreted as meaning that cages used for transportation of live animals intended for laboratory research should be categorised as packing materials or packing containers for the purposes of that rule?
If so, must the words “clearly suitable for repetitive use” in relation to such packing materials or packing containers be assessed in general or only in respect of re-use within the Union?’
The first question
By its first question, the referring court asks whether an importer of animals specially prepared for laboratory use is entitled to the relief from import duties provided for in respect of goods of that type by Article 60 of Regulation No 918/83, when it is not itself a public establishment or an authorised private establishment which is principally engaged in education or scientific research, but its customers are establishments meeting those conditions.
It should be recalled that, under Article 60, relief from import duties is granted in respect of, inter alia, ‘animals specially prepared for laboratory use’ provided that the recipient is principally engaged in education or scientific research and is either a public establishment or a department of such an establishment, or a private establishment. However, if the recipient is a private establishment, it must be authorised by the competent authority of the Member State concerned, in order to receive those animals duty-free.
It is accordingly clear from Article 60 that its application requires that two separate conditions be met. Under the first of these conditions, the imported animals must be specially prepared for laboratory use. Under the second of these conditions, the recipient of those animals must meet specific criteria relating to the type of establishment concerned, the activity carried out and, where necessary, the possession of an authorisation.
It is undisputed that the imports at issue in the main proceedings meet these two conditions, to which the animals concerned and the recipient of those animals, respectively, are subject.
However, the first question asked by the referring court concerns whether the importer of the animals referred to in Article 60 of Regulation No 918/83 must, in order to be entitled to the relief from import duties provided for goods of this type, meet the criteria allowing that importer to be classified as the recipient of those animals for the purposes of that article.
In that regard, it should be noted that the importer of the animals is not mentioned in Article 60.
However, according to the Court’s settled case‑law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, judgment in
Brain Products
, C‑219/11,
EU:C:2012:742
, paragraph 13 and the case-law cited).
As regards the context of Article 60 of Regulation No 918/83, it should be noted that that regulation provides for a number of reliefs from customs duty, entitlement to which is expressly linked to the fulfilment by the importer of certain conditions. Thus, the duty-free import provided for in Article 2 of that regulation lays down conditions in relation to the importer as well as the nature of the imported goods, according to which the goods must be imported by a natural person transferring his normal place of residence to the customs territory of the European Union (judgment in
Treimanis
, C‑487/11,
EU:C:2012:556
, paragraphs 15 and 16).
By contrast, entitlement to other reliefs from customs duty provided for by Regulation No 918/83 depends more on the use by the recipient of the imported goods than on the identity of the importer. This is the case, inter alia, in respect of the relief to which educational, scientific and cultural materials intended for certain research or educational organisations are entitled under Article 51 of Regulation No 918/83.
It is clear that the relief provided for by Article 60 of Regulation No 918/83 falls within that second category of reliefs, the entitlement to which depends more on the use by the recipient of the imported goods than on the identity of the importer.
It should also be noted, as the Commission has argued, that it is clear from the wording of Articles 128 and 129 of Regulation No 918/83 that the EU legislature foresaw the case in which the importer could be a person other than the recipient of the imported goods, in situations such as those provided for in Article 60 of Regulation No 918/83.
In that regard, it must be held that it is clear from the wording of Articles 128 and 129 of Regulation No 918/83, read in conjunction with Article 131, first, that an importer may be entitled to the relief from import duties provided for in Article 60 of that regulation only if it can demonstrate to the satisfaction of the competent authorities that the imported goods are actually intended for the establishments provided for by that article and for the use which is a precondition for that relief from import duties, and, secondly, that only the competent authorities of the Member State in the territory of which the goods are to be assigned to that use may grant such relief. By contrast, it is by no means apparent from the provisions of that article that the importer should itself be able to ensure the use which is a precondition for the grant of the relief in question.
With regard to the objective pursued by Article 60 of Regulation No 918/83, it should be noted that the achievement of that objective, which is to facilitate research activities by allowing certain establishments located in the European Union to import, at minimal cost, animals specially prepared for laboratory use, would not be hindered by allowing those establishments to choose the most appropriate and most advantageous importation solution for them.
As a result, given the context in which Article 60 of Regulation No 918/83 occurs and the objective pursued by that provision, it is not required that the importer of the animals covered by that article, in order to be entitled to the relief from import duties provided for in respect of goods of this type, meet the criteria classifying that importer as the recipient of those animals for the purposes of that provision.
It follows from all the foregoing that the answer to the first question is that Article 60 of Regulation No 918/83 must be interpreted as meaning that, where animals specially prepared for laboratory use, which an importer brings into the European Union, are intended for a public establishment or an authorised private establishment which is principally engaged in education or scientific research, that importer, although it is not itself such an establishment, may be entitled to the relief from import duties provided for by that article for goods of this type.
The second question
By its second question, the referring court asks, in essence, whether general rule 5(b) of the CN must be interpreted as meaning that cages used for transportation of live animals intended for laboratory research should be categorised as packing materials or packing containers which are to be classified with the goods to which they relate.
It must be recalled that, under general rule 5(b), packing materials and packing containers containing goods are classified with those goods only where they are of a kind normally used for packing that type of goods.
Therefore, in order to answer the second question, it is necessary to examine whether cages used for transportation of live animals intended for laboratory research can be considered as being the kind of packaging normally used for packing those types of animals.
In this regard, it is appropriate to recall the examples in the Explanatory Notes to the CN and HS, regarding packing materials and packing containers that must be considered as being of the kind normally used for packing the type of goods to which they relate. According to those Explanatory Notes, such packing materials and packing containers include certain metal drums or containers of iron or steel for compressed or liquefied gas, as well as packing containers normally used for marketing beverages, jam, mustard, spices or others.
As noted by the French Government in its observations, it follows that the packing materials and packing containers normally used for packing the goods to which they relate are either packing materials or packing containers that are strictly necessary for the use of the goods in question, or packing materials or packing containers that are commonly used for the marketing and use of the goods to which they relate. It would be impossible to use compressed or liquefied gases independent of the steel containers holding those gases. Similarly, it would be difficult to conceive of marketing or using jam or mustard other than in containers usually provided as a receptacle for those types of products.
Having regard to the Explanatory Notes to the CN and the HS, it must be held that cages used for transportation of live animals intended for laboratory research cannot be regarded as falling within the kind of packaging normally used for packing those types of animals for the purposes of general rule 5(b). Even assuming that these cages are normally used to transport the animals by air, they are neither strictly necessary nor normally used for the marketing and use of such animals.
In that regard, it is apparent from the documents before the Court that, as a general rule, the transport cages and the animals at issue in the main proceedings are not used together by their recipients. In the present case, it is undisputed that those cages are returned to the importer after the delivery of the animals.
It follows from all of the foregoing that the answer to the second question is that general rule 5(b) of the CN must be interpreted as meaning that cages used for transportation of live animals intended for laboratory research should not be categorised as packing materials or packing containers which are to be classified with the goods to which they relate.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules that:

1.
Article 60 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, must be interpreted as meaning that, where animals specially prepared for laboratory use, which an importer brings into the European Union, are intended for a public establishment or an authorised private establishment which is principally engaged in education or scientific research, that importer, although it is not itself such an establishment, may be entitled to the relief from import duties provided for by that article for goods of this type.

2.
General rule 5(b) of the Combined Nomenclature contained 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, as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning that cages used for transportation of live animals intended for laboratory research should not be categorised as packing materials or packing containers which are to be classified with the goods to which they relate.

[Signatures]
(
*1
)	Language of the case: French.