Judgment — ECLI:EU:T:2026:151
Date: 2026-02-25
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation T-69/25 – 1 
Case T-69/25 
Request for a preliminary ruling 
Date lodged: 
15 January 2025 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
12 November 2024 
Applicant and appellant in the appeal on a point of law: 
A GmbH 
Defendant and respondent in the appeal on a point of law: 
Hauptzollamt C 
  
VII R 27/22 
BUNDESFINANZHOF 
(FEDERAL FINANCE COURT) 
Order 
In the case of 
A GmbH 
Applicant and appellant in the appeal on a point of law 
[…] v 
Hauptzollamt (Principal Customs Office) C 
Defendant and respondent in the appeal on a point of law 
concerning tariff classification […] 
EN 
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the Seventh Chamber made, 
following the hearing on 12 November 2024, the following order: 
1. The following question shall be referred to the Court of Justice of the 
European Union for a preliminary ruling: 
Does the term ‘set’ within the meaning of Note 3 to Section VI of the 
Combined Nomenclature cover capsule systems in which two 
components – alloy powder and liquid mercury – for mixing silver 
amalgam dental fillings are contained in separate chambers which 
cannot be separated in a non-destructive manner? 
2. Proceedings in the appeal on a point of law shall be stayed pending a 
decision on the question referred for a preliminary ruling. 
Grounds 
I. 
1 At issue is the tariff classification of a product used as a dental filling. It is a small 
capsule system in which two components – namely an alloy powder (…) and 
liquid mercury (…) – are placed in separate chambers. Those components cannot 
be separated in a non-destructive manner. The capsules are packaged together 
with instructions for use in quantities intended for retail sale (put up for retail 
sale). In accordance with their intended use, the capsules can be used in dental 
practices, with the aid of small machines, in a simple step to mix ready-to-use 
silver amalgam in the amount required for a dental filling. 
2 In September 2015, the applicant and appellant (applicant) applied to the 
defendant and respondent (the Principal Customs Office – HZA) for binding tariff 
information (BTI) stating that the goods are to be classified under subheading 
3006 40 00 of the Combined Nomenclature (CN): ‘Dental cements and other 
dental fillings; bone reconstruction cements’. The Principal Customs Office, 
however, classified the goods in the disputed BTI of November 2015 as 
‘amalgams’ under CN subheading 2843 90 10. 
3 The applicant’s objection and action seeking the BTI were unsuccessful. In the 
view of the Finanzgericht (Finance Court), the product constituted a set within the 
meaning of Note 3 to Section VI of the CN, which fulfilled the requirements set 
out in Note 3(a) to (c) to Section VI of the CN. On that basis, the Finanzgericht 
concluded that the correct heading for the product resulting from the mixing of the 
two components was CN heading 2843 (‘Colloidal precious metals; inorganic or 
organic compounds of precious metals, whether or not chemically defined; 
amalgams of precious metals’), and not CN heading 3006 (‘Pharmaceutical goods 
specified in note 4 to this chapter’). The applicant contests the judgment by its 
appeal on a point of law. 
II. 
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4 The Chamber suspends the proceedings in the appeal on a point of law brought by 
the applicant, which are pending before it […] [reference to provisions of national 
law] and refers the following question to the Court of Justice of the European 
Union (Court of Justice) for a preliminary ruling, pursuant to Article 267 of the 
Treaty on the Functioning of the European Union: 
5 […] [repetition of the question referred] 
III. 
6 In the view of the Chamber, the following provisions of EU law, the interpretation 
of which is relevant to the dispute, are decisive for the resolution of the dispute. 
7 The Combined Nomenclature, as amended by Commission Implementing 
Regulation (EU) No 1101/2014 of 16 October 2014, amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the 
Common Customs Tariff (Official Journal of the European Union – OJ 2014 L 
312, p. 1), which entered into force on 1 January 2015, is decisive as regards the 
BTI of 5 November 2015 at issue. 
8 Applicable European Union law: 
9 CN heading 2805: 
Alkali or alkaline-earth metals; rare-earth metals, scandium and yttrium, whether 
or not intermixed or interalloyed; mercury 
10 CN heading 2843: 
Colloidal precious metals; inorganic or organic compounds of precious metals, 
whether or not chemically defined; amalgams of precious metals 
11 CN subheading 2843 90 10: 
Amalgams 
12 CN heading 3006: 
Pharmaceutical goods specified in note 4 to this chapter 
13 CN subheading 3006 40 00: 
Dental cements and other dental fillings; bone reconstruction cements 
14 CN heading 7106: 
Silver (including silver plated with gold or platinum), unwrought or in semi-
manufactured forms, or in powder form 
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15 Notes on Section VI (Products of the Chemical or Allied Industries, Chapter – 
Chapter – 28 to 38) of the CN: 
16 1. 
(A) Goods (other than radioactive ores) answering to a description in heading 
2844 or 2845 are to be classified in those headings and in no other heading of the 
nomenclature. 
(B) Subject to paragraph (A) above, goods answering to a description in heading 
2843, 2846 or 2852 are to be classified in those headings and in no other heading 
of this section. 
17 2. 
Subject to note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 
3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in 
measured doses or for retail sale are to be classified in those headings and in no 
other heading of the nomenclature. 
18 3. 
Goods put up in sets consisting of two or more separate constituents, some or all 
of which fall in this section and are intended to be mixed together to obtain a 
product of Section VI or VII, are to be classified in the heading appropriate to that 
product, provided that the constituents are: 
(a) having regard to the manner in which they are put up, clearly identifiable as 
being intended to be used together without first being repacked, 
(b) presented together; and 
(c) identifiable, whether by their nature or by the relative proportions in which 
they are present, as being complementary one to another. 
19 Note 1 on Chapter 28 of the CN: 
Except where the context otherwise requires, the headings of this chapter apply 
only to: 
(a) separate chemical elements and separate chemically defined compounds, 
whether or not containing impurities; 
(b) the products mentioned in (a) above dissolved in water; 
(c) the products mentioned in (a) above dissolved in other solvents provided 
that the solution constitutes a normal and necessary method of putting up these 
products adopted solely for reasons of safety or for transport and that the solvent 
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does not render the product particularly suitable for specific use rather than for 
general use; 
(d) the products mentioned in (a), (b) or (c) above with an added stabiliser 
(including an anti-caking agent) necessary for their preservation or transport; 
(e) the products mentioned in (a), (b), (c) or (d) above with an added anti-
dusting agent or a colouring substance added to facilitate their identification or for 
safety reasons, provided that the additions do not render the product particularly 
suitable for specific use rather than for general use. 
20 Note 4(f) to Chapter 30 of the CN: 
Heading 3006 applies only to the following, which are to be classified in that 
heading and in no other heading of the nomenclature: 
(…) 
(f) dental cements and other dental fillings; bone reconstruction cements; 
(…) 
21 Note 3 to Chapter 71 of the CN: 
This chapter does not cover: 
(a) amalgams of precious metal, or colloidal precious metal (heading 2843); 
(b) sterile surgical suture materials, dental fillings or other goods of Chapter 30; 
(…) 
22 General Rule for the interpretation of the Combined Nomenclature (GIR) 3(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. 
23 Harmonised System Explanatory Note (HSEN) 09.0 on Note 3 to Section VI: 
This Note deals with the classification of goods put up in sets consisting of two or 
more separate constituents, some or all of which fall in Section VI. The Note is, 
however, limited to sets of which the constituents are intended to be mixed 
together to obtain a product of Section VI or VII. Such sets are to be classified in 
the heading appropriate to that product provided that the constituents meet 
conditions (a) to (c) of the Note. 
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24 HSEN 10.0 on Note 3 to Section VI: 
Examples of goods in such sets are dental cements and other dental fillings of 
heading 30.06 and certain varnishes and paints of headings 32.08 to 32.10 and 
mastics, etc., of heading 32.14. As regards the classification of goods put up 
without a necessary hardener, see, in particular, General Explanatory Note to 
Chapter 32 and Explanatory Note to heading 32.14. 
25 HSEN 01.0 to heading 3006: 
This heading covers only the following goods: 
(…) 
26 HSEN 40.1 to heading 3006: 
Dental cements and other dental fillings; bone reconstruction cements. 
27 HSEN 41.0 to heading 3006: 
Dental cements and fillings are generally based on metallic salts (zinc chloride, 
zinc phosphate, etc.), metallic oxides, gutta-percha or plastic materials. They may 
also consist of metallic alloys (including precious metal alloys) specially prepared 
for dental fillings. Such alloys are sometimes called ‘amalgams’ even though they 
do not contain mercury. The heading covers both temporary and permanent 
fillings and includes cements and fillings containing added medicinal substances 
and having prophylactic properties. 
28 HSEN 42.0 to heading 3006: 
They are usually in the form of powders or tablets, sometimes accompanied by the 
liquid required for their preparation, and the packings normally indicate dental 
use. 
29 Guidelines of the European Commission of 11 April 2013 on the classification in 
the Combined Nomenclature of goods put up in sets for retail sale (OJ 2013 
C 105, p. 1): 
General Interpretative Rule (GIR) 3(b) also provides for the classification of 
‘goods put up in sets for retail sale’. 
For the purposes of this Rule, the term ‘goods put up in sets for retail sale’ shall be 
taken to mean goods which 
(a) consist of at least two different articles which are, prima facie, classifiable in 
different headings; 
(b) consist of products or articles put up together to meet a particular need or 
carry out a specific activity; and 
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(c) are put up in a manner suitable for sale directly to users without repacking 
(e.g., in boxes or cases or on boards). 
(…) 
All the above conditions should be met. 
The above rules do not apply to ‘sets’ which are to be classified by virtue of 
GIR 1 and 6 when the term ‘set’ is in the wording of a CN code, for example: 
(…) or due to specific provisions, for example: 
- Note 3 to Section VI; 
(…). 
IV. 
30 The assessment of the dispute in the light of EU law is unclear. The following 
principles apply to the assessment of the dispute: 
31 1. According to the settled case-law of the Court of Justice, in the interests of legal 
certainty and ease of verification, the decisive criterion for the tariff classification 
of goods is – save where a classification regulation applies – in general to be 
sought in their objective characteristics and properties as defined in the wording of 
the relevant heading of that nomenclature and in the section or chapter notes. On 
the other hand, although the explanatory notes to the Harmonised System and to 
the Combined Nomenclature do not have binding force, they are an important 
means of ensuring the uniform application of the Common Customs Tariff. They 
may be regarded as useful aids to its interpretation (judgment of the Court of 
Justice of 28 April 2022, PRODEX, C-72/21, EU:C:2022:312, paragraph 28 et 
seq., with further references). That applies, even more strongly, as regards the 
Commission guidelines, which also may be an important aid to the interpretation 
of the issues addressed by them, but must not alter the scope of the provisions of 
the CN (judgment of the Court of Justice of 10 March 2016, VAD and van Aert, 
C-499/14, EU:C:2016:155, paragraph 34). 
32 2. There are doubts as to the interpretation of the term ‘set’ within the meaning of 
Note 3 to Section VI of the CN, which is decisive for the classification of the 
goods at issue. 
33 (a) The goods (a capsule system containing both mercury and silver alloy powder) 
cannot be classified under General Rule 1 on the basis of the wording of a 
heading. 
34 The capsule system does not constitute mercury within the meaning of CN 
heading 2805 since only isolated chemical elements are classified in this chapter 
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according to legally binding Note 1(a) to Chapter 28. The exceptions in Note 1(b) 
to (e) are not applicable in this case. 
35 Nor can the goods be classified as silver under CN heading 7106. According to 
legally binding Note 3(a) and 3(b) to Chapter 71, neither amalgams of precious 
metal nor dental fillings are covered by Chapter 71. However, the goods at issue 
are used for mixing precious metal amalgam, which is used as a dental filling. 
36 (b) That leads to consideration of whether or not the EU legislature laid down the 
relevant requirements for the classification of the goods at issue in Note 3 to 
Section VI of the CN. According to Rule 1 of the GIR, that note is to take 
precedence over Rule 2 et seq. 
37 It therefore depends on how the term ‘set’ within the meaning of Note 3 to Section 
VI of the CN is to be construed and whether the capsule system to be classified in 
the dispute constitutes a set within that meaning, which is to be classified under 
the heading which is correct for the product to be mixed. 
38 (aa) If there is a set within the meaning of Note 3 to Section VI of the CN, the 
capsule system at issue would have to be classified under the correct heading for 
the product to be obtained from it. The correct heading for the product resulting 
from the mixing of the two components would then be CN heading 2843 for 
amalgams of precious metal and not heading CN 3006 for dental fillings, even 
though the description of the goods could apparently fit both headings. However, 
CN heading 3006 only includes products which are to be classified in no other 
heading of the nomenclature (Note 4 to Chapter 30). In so far as the goods can be 
classified under CN heading 2843, CN heading 3006 is therefore excluded. 
Furthermore, according to the order of precedence established in Note 1(B) and 
Note 2 to Section VI of the CN by the reservation contained therein – ‘Subject to 
paragraph (A)’ and ‘Subject to note 1’) – classification under CN heading 2843 
takes precedence over classification under CN heading 3006. The product 
description of dental fillings in HSEN 41.0 to heading 3006 confirms that 
conclusion because, according to that description, dental fillings – unlike the 
goods to be assessed in the present dispute – are generally preparations based on 
metallic salts and generally do not contain mercury. 
39 (bb) If there is no set within the meaning of Note 3 to Section VI of the CN, the 
product to be obtained would not be decisive for the classification. In that case, 
Note 2 to Section VI of the CN would apply, according to which goods 
classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 
3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale 
are to be classified in those headings, irrespective of the possible relevance of 
other headings of the nomenclature. In the case in dispute, that would be CN 
heading 3006, subheading 3006 40 00 for dental fillings since the method of 
putting up the capsules for retail sale corresponds to that intended use. However, 
application of Note 1(B) to Section VI of the CN – which must take precedence 
over Note 2 to Section VI of the CN – and classification of the capsule system 
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under CN heading 2843 would not be possible because the alloy powder and the 
mercury have not yet been mixed and therefore there is as yet no amalgam. 
40 (c) Specifically, the question of interpretation arises as to whether the term ‘set’ in 
Note 3 to Section VI of the CN must interpreted differently from the relevant 
definition of a set provided in the Guidelines of the European Commission of 
11 April 2013 on the classification in the Combined Nomenclature of goods put 
up in sets for retail sale (OJ 2013 C 105, p. 1) or in Rule 3(b). The latter definition 
assumes that a set must consist of two or more separate or separable articles (see 
also point (a) of the second paragraph of the abovementioned guidelines, 
according to which a set consists of at least two different articles). If that 
requirement were also applied to sets of goods within the meaning of Note 3 to 
Section VI of the CN, the capsule system at issue would not fall thereunder by 
virtue of the fact that its components cannot be separated in a non-destructive 
manner. It is not entirely clear whether two components which, as in the case in 
dispute, are spatially separated in two compartments, but nevertheless inseparably 
connected to one other, can constitute a set within the meaning of Note 3 to 
Section VI of the CN. 
41 In this context, the condition laid down Note 3(b) to Section VI of the CN also 
raises questions. Since the requirement of ‘presentation together’ is established 
therein, that implies the possibility of separate presentation of the individual 
components. However, that is ruled out in the case in dispute since two 
compartments of the capsule system are linked inseparably and therefore it is quite 
conceivable that the two compartments of the goods to be classified are not 
separate components. 
42 The wording of the German version of Note 3 to Section VI CN also contains a 
further inaccuracy. In the case of two separate components, the possibility of 
‘some’ of them falling under Section VI of the CN cannot exist. That is because 
‘some’ is plural and therefore if there are two components, all components are 
automatically covered. It is possible that what is meant here is that some (that is to 
say at least one) or all of the components must fall under Section VI of the CN. 
That is also in line with the French version of the note (‘en totalité ou en partie’). 
In contrast, the English version (‘some or all of which’) is also ambiguous in that 
respect as ‘some’ can mean ‘any’, but also ‘a few’ or ‘several’. 
43 (d) The question referred has not yet been resolved by the Court of Justice and 
cannot be answered satisfactorily on the basis of the existing case-law of the 
Court, although the Court has already dealt with the term ‘set’ in the law on 
customs tariffs. In so far as it states that the term a ‘set’ of goods refers to a 
combination of articles that are normally offered, in particular in retail shops, as a 
unit and in a single package, in order to meet a particular need or in order for a 
specific activity to be performed, it refers to Rule 3(b) of the GIR (judgment of the 
Court of Justice of 10 March 2016, VAD and van Aert, C-499/14, EU:C:2016:155, 
paragraph 37). The question whether and, if so, to what extent the term ‘set’ used 
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in Note 3 to Section VI of the CN deviates therefrom has not yet been addressed 
in the case-law of the Court. 
44 (e) The referring Chamber inclines to the view that the criteria relating to sets laid 
down in Rule 3(b) of the GIR and Note 3 to Section VI of the CN do not coincide. 
In terms of content, there are considerable differences between Rule 3(b) of the 
GIR and Note 3 to Section VI of the CN. In particular, when Note 3 to Section VI 
of the CN is applied, classification is not based on the basic constituents, but on 
the product which results from mixing the components. The detailed definition of 
a set in Note 3 to Section VI of the CN contains specific criteria which differ from 
those of a set under Rule 3(b) and apply exclusively to Sections VI and VII of the 
Combined Nomenclature. In that context, it should be noted that the second 
sentence of Rule 1 (‘general rule for all classifications’) also lends legal force to 
the notes to the sections and chapters. The reference in Rule 1 to the application of 
the ‘following provisions’ (Rules 2 to 6) is also subject to a reservation: ‘… 
provided such headings or notes do not otherwise require …’. In the present case, 
that reservation probably also justifies the subsidiarity of Rules 2 to 5, including 
Rule 3(b), in relation to more specific requirements mentioned in the notes. 
45 In contrast, the European Commission’s criteria in the Guidelines of 11 April 
2013 on the classification in the Combined Nomenclature of goods put up in sets 
for retail sale (OJ 2013 C 105, p. 1) are not legally binding. Moreover, those 
guidelines only concern sets within the meaning of Rule 3(b). Lastly, the 
guidelines also expressly exclude the requirements for sets referred to therein ‘due 
to specific provisions’, as is the case, for example, ‘in Note 3 to Section VI’ of the 
CN. In view of the more specific understanding of the term in Note 3 to Section 
VI of the CN, a set in that specific sense does not, in the view of the referring 
court, have to consist of two or more separate or separable goods. At least two 
components, even if they cannot be separated from one another in a non-
destructive manner, are sufficient. The concern that all goods consisting of two or 
more components which are not separable and form a physical unit could then 
generally be regarded as sets within the meaning of Section VI of the CN is 
unfounded. That is due to the additional requirements placed on such a set in Note 
3 to Section VI of the CN. 
46 (aa) The three conditions first mentioned in Note 3 to Section VI of the CN are, in 
the view of the referring Chamber, fulfilled in the case of capsule systems in 
which two components – alloy powder and liquid mercury – for mixing silver 
amalgam dental fillings are contained in separate chambers which cannot be 
separated in a non-destructive manner. Such an article consists of several separate 
components in view of the capsule design consisting of two chambers. It is also 
clear that it is intended to produce an article falling within Section VI of the CN 
by mixing. Section VI covers Chapters 28 to 38 of the Combined Nomenclature. 
‘Amalgams’ fall under CN subheading 2843 90 10 (Chapter 28) and ‘dental 
fillings’ under subheading CN 3006 40 00 (Chapter 30). 
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47 Moreover, mercury, as a component of the goods to be classified, is clearly 
covered by Section VI (Chapter 28, item 2805 of the CN). In the view of the 
referring Chamber, it is sufficient that only one of two components falls under 
Section VI of the CN, even though the criterion in the German-language version is 
‘some or all’. The unofficial German-language translation appears somewhat 
misleading at that juncture – the applicant is correct in that respect – since – as the 
Principal Customs Office correctly points out – the wording ‘some or all’ does not 
fully correspond to the official versions in French and English. According to the 
official French version of Note 3 to Section VI of the CN (‘en totalité ou en 
partie’), it is sufficient for a component to be covered by that section (translation: 
‘in whole or in part’). The official English version (‘some or all’) can also be 
interpreted similarly since ‘some’ can also have the meaning of ‘any’ and thus 
corresponds to the meaning of the French. 
48 (bb) The further conditions set out in Note 3(a) to (c) to Section VI of the CN, 
namely that the constituents are 
- having regard to the manner in which they are put up, clearly identifiable as 
being intended to be used together without first being repacked, 
- presented together; and 
- identifiable, whether by their nature or by the relative proportions in which 
they are present, as being complementary one to another, 
are satisfied in the view of the referring Chamber. In particular, the Chamber is 
not convinced by the applicant’s view that the requirement relating to presentation 
together implies a condition concerning the ability to be presented separately. 
Such an interpretation would neither be covered by the wording of Note 3(b) to 
Section VI of the CN, nor would it be necessary for the objective thereof – to 
ensure that all components of a set are duly covered and valued on importation. 
49 3. In the view of the referring court, the answer to the question referred must 
therefore be, for the reasons set out above, that the term ‘set’ within the meaning 
of Note 3 to Section VI of the CN covers capsule systems in which two 
components – alloy powder and liquid mercury – for mixing silver amalgam 
dental fillings are contained in separate chambers which cannot be separated in a 
non-destructive manner. Consequently, such capsule systems containing an alloy 
powder (…) and liquid mercury (…) for mixing silver amalgam dental fillings 
must be classified as ‘amalgams’ under CN subheading 2843 90 10.