Judgment;Summary — ECLI:EU:C:2021:892
Date: 2021-10-28
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-197/20 — 1 
Case C-197/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 May 2020 
Referring court: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
14 April 2020 
Applicant: 
KAHL GmbH & Co. KG 
Defendant: 
Hauptzollamt Hannover 
  
Subject matter of the main proceedings 
(Common Customs Tariff — Tariff classification — Combined Nomenclature — 
Subheadings 1521 9091 and 1521 9099 — Melted beeswax — Divergence 
between language versions in Union legislation) 
Subject matter and legal basis of the reference 
Interpretation and validity of EU law; first sentence of Article 267(b) TFEU 
Questions referred 
1. Are the Explanatory Notes to subheading 1521 9099 of the Combined 
Nomenclature applicable in so far as the word ‘geschmolzen’ [melted] is used? 
2. If the first question referred is answered in the negative, is the term ‘raw’ 
within the meaning of subheading 1521 9091 of the Combined Nomenclature to 
be interpreted as meaning that beeswax which has been melted down in the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING  CASE C-197/20 
 
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exporting country and from which foreign bodies have been mechanically 
separated during the process of melting it down, whereby some foreign bodies still 
remain in beeswax, must be classified under that subheading? 
Provisions of EU law cited 
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), in particular subheadings 
1521 9091 and 1521 9099 
Explanatory Notes to the Combined Nomenclature of the European Union (most 
recently in OJ 2019, C 119, p. 1) 
Commission Decision 2007/275/EC of 17 April 2007 concerning lists of animals 
and products to be subject to controls at border inspection posts under Council 
Directives 91/496/EEC and 97/78/EC (notified under document number C(2007) 
1547) (OJ 2007 L 116, p. 9), in particular Annex I 
Commission Regulation (EU) No 142/2011 of 25 February 2011 implementing 
Regulation (EC) No 1069/2009 of the European Parliament and of the Council 
laying down health rules as regards animal by-products and derived products not 
intended for human consumption and implementing Council Directive 97/78/EC 
as regards certain samples and items exempt from veterinary checks at the border 
under that Directive Text with EEA relevance (OJ 2001 L 54, p. 1), in particular 
Article 25(1)(c) and point (a)(ii) of point 10 of Section 1 of Chapter II of 
Annex XIV and Chapter III of Annex IV, processing methods 1 to 5 or 7 
Provisions of national law cited 
none 
Brief summary of the facts and procedure 
1 The product in question has the following properties: it is a beeswax that has been 
melted down in the exporting country and exported after solidification (‘melted 
wax’). The product is not presented in a form suitable for the end user and consists 
of melted, honey-yellow, cut-resistant pieces (approx. 15 x 5 cm) and fragments 
(approx. 7 x 4 cm), which smell like beeswax, with cracks and structures that are 
created when melted wax solidifies. It has a small number of dark impurities that 
adhere to the exterior. When the customs administration melted down part of the 
product sample, it turned into a slightly cloudy, orange-yellow melt. The foreign 
matter that had sunk to the bottom during the period in which the beeswax was in 
liquid form consists primarily of sand and part of an insect leg. 
KAHL 
 
3 
2 The product in question undergoes the following treatment in the exporting 
country: after the honey has been extracted from the combs, the combs are melted 
down, usually by the beekeepers or by intermediaries, in order to make the wax 
easier to transport by reducing its volume compared with the comb structure and 
to remove foreign bodies. The process of melting the wax causes foreign bodies 
trapped in the wax, which have a greater density than the wax, to sink to the 
bottom. Depending on the melting process used, the foreign matter is separated off 
to varying degrees, but never completely. The wax cools down to form blocks or 
slabs. This wax, which has already been melted once, is melted down again by the 
applicant’s suppliers. To that end, it is heated at a temperature of up to 120 °C in 
order to meet the veterinary requirements laid down in point (a)(ii) of point 10 of 
Section 1 of Chapter II of Annex XIV in conjunction with Chapter III of 
Annex IV to Regulation (EU) No 142/2011, processing methods 1 to 5 or 7. 
Without this thermal treatment, importation of the product into the EU would not 
be permitted. When this treatment is carried out, the liquid wax is passed through 
sieves, simple cotton cloths or mosquito nets, or it flows straight through them. No 
auxiliary agents are used for this and the wax does not undergo any further 
processing. Depending on the degree of original contamination of the comb and 
the coarse filter tools used, impurities will always remain in the wax, which 
remains unchanged in terms of colour, cloudiness, odour and taste. The wax cools 
down in the form of blocks or slabs. 
3 Following importation, the applicant carries out extensive work to prepare the 
product in question for its customers in the cosmetic, pharmaceutical and food 
industries. Without this preparation, the wax could not be used in those industries. 
Aside from candle production, there are various other possible uses for beeswax. 
At the applicant’s premises, the wax is melted down again and finely filtered by 
means of special presses and using filtering agents. Depending on the intended 
use, it is coloured or bleached. It is then filtered again so that the wax no longer 
contains any foreign matter. Wax of this quality is referred to as double-refined 
wax. Finally, the wax is shaped into the form desired by the end customer (e.g. 
pellets). 
4 By letter of 11 December 2015, the applicant, which trades and processes waxes, 
applied for binding tariff information (BTI) for a product referred to by it as 
‘beeswax, raw’ (‘the product’ or ‘the product in question’). 
5 Contrary to the applicant’s proposal for the product to be classified as raw 
beeswax under CN subheading 1521 9091, the defendant, by BTI of 10 February 
2016, classified it as ‘other’ beeswax under CN subheading 1521 9099. 
6 The applicant’s objection of 22 February 2016 was rejected by objection decision 
of 28 July 2017. 
7 By the action brought on 30 August 2017, the applicant is pursuing the form of 
order sought by it. It requests that a new BTI classifying the product under CN 
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subheading 1521 9091 be issued, and emphasised that the tax effects of the 
classification decision amounted to approximately EUR 800 000. 
Principal arguments of the parties to the main proceedings 
8 The applicant submits that the product in question should be classified as raw 
beeswax under CN subheading 1521 9091, since it was imported in its natural 
state. Otherwise, the subheading would be devoid of purpose, because the 
importation of wax in the form of honeycomb was prohibited pursuant to 
Article 25(1)(c) of Regulation (EU) No 142/2011. It was clear from the 
Explanatory Notes to HS subheading 1521 that raw waxes other than those in the 
form of honeycomb existed. Annex I to Commission Decision 2007/275 even 
mentioned, in relation to CN code 1521 9091, refining as a permitted form of 
treatment (‘Raw beeswax and other insect waxes whether refined or not’). The 
distinction between raw and melted beeswax had to be made on the basis of the 
quality of the product. Although the German language version of the Explanatory 
Notes to CN subheading 1521 9099 also referred to melted wax (‘geschmolzen’), 
this should be understood as a further manufacturing process involving the 
removal of undesirable constituents from the wax. This was not the primary 
purpose served by the process of heating the wax prior to export; it was mainly 
carried out to make the product suitable for importation. It also served to form 
larger batches. Except for its external appearance, the product in question was 
identical to beeswax in honeycomb form. It was clear from additional notes 1(a) 
and 1(b) to Chapter 15 of the CN that simple processing steps (decantation and 
centrifugation) were permitted. It was not compatible with the wording of CN 
subheading 1521 9091 for the defendant to make the property ‘raw’ dependent on 
the degree to which impurities were present in the product. Beeswax was a natural 
product obtained directly from the comb and always contained impurities, and the 
degree to which they were present varied greatly according to the age and origin 
of the combs. The product in question still contained parts of the original 
impurities. It constituted nothing other than the wax from the comb in a different 
form. Heating and cooling did not change the composition of the wax itself. Only 
some of the foreign matter had been removed. The removal of impurities had no 
influence on the properties of the beeswax.  
9 In response, the defendant states that the product in question was not raw 
beeswax, but other beeswax under CN subheading 1521 9099. The term ‘raw’ was 
not defined in the Combined Nomenclature. According to the Explanatory Notes 
to CN subheading 1521 9091, beeswax in natural combs was regarded as raw 
wax. If the product in question, which was not in the form of natural combs (and 
this was not disputed), should likewise be classified as raw beeswax, it must have 
properties similar to those of wax in natural combs. This similarity could relate to 
the degree of purity, for example. However, the product in question simply did not 
contain the impurities typical of beeswax in natural combs. Beeswax that had 
merely been thermally treated pursuant to Regulation (EU) No 142/2011 could be 
classified as raw wax. It still contained all the impurities of wax in natural combs. 
KAHL 
 
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This was certainly not the case with the product in question. It contained very few 
impurities. In addition, it had shaped edges like those of a melt mould. This 
allowed the conclusion that purification and remelting had already taken place. 
The product in question therefore had to be classified as melted wax. CN 
subheading 1521 9091 was not devoid of purpose. There were also other insect 
waxes that could fall under this subheading. The reference to the Explanatory 
Notes to HS heading 1521 came to nothing, as they did not concern the distinction 
between CN subheadings 1521 9091 and 1521 9099. The veterinary legislation 
did not have any bearing on classification. The reference to Commission Decision 
2007/275/EC also came to nothing. In Annex I to that decision, it was expressly 
stated in the preliminary remark that the descriptions did not affect classification. 
Brief summary of the basis for the reference 
10 CN subheadings 1521 9091 and 1521 9099 read as follows: 
CN Code Description 
1521 
Vegetable waxes (other than triglycerides), beeswax, 
other insect waxes and spermaceti, whether or not 
refined or coloured: 
 – Vegetable waxes 
 – Other 
 … 
 
–  Beeswax and other insect waxes, whether or not 
refined or coloured: 
1521 90 91    Raw 
1521 90 99    Other 
 
11 The German language version of the Explanatory Notes to CN subheading 
1521 9091 reads: ‘Hierher gehören z. B. Wachse in Wabenform’ [This subheading 
includes waxes in natural combs]. These explanatory notes have the same 
meaning in all the language versions. 
12 The German language version of the Explanatory Notes to CN subheading 
1521 9099 reads (emphasis added): ‘Hierher gehören Wachse, die geschmolzen, 
gepresst oder raffiniert, auch gebleicht oder gefärbt sind’ [This subheading 
includes waxes, melted, pressed or refined, whether or not bleached or coloured]. 
This corresponds to the French, Spanish, Portuguese, Italian, Dutch and Romanian 
language versions. By contrast, there is no equivalent for the word ‘geschmolzen’ 
[melted] in the English, Danish, Swedish, Polish, Czech and Maltese language 
versions. 
13 Likewise, the French language version of the Explanatory Notes to heading 1521 
of the World Customs Organisation’s Harmonised Commodity Description and 
Coding System (HS) contains the word ‘fondues’ [melted], whereas there is no 
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equivalent in the English version. The history of the HS Explanatory Notes to 
heading 1521 shows that such an equivalent did exist in the English texts 
originally but was not incorporated into the final version. For example, the draft 
Explanatory Notes to the Brussels Nomenclature of 1951 of the Brussels Customs 
Council regarding heading 15.15 referred to ‘melted’ beeswax in both the English 
and French language versions. Although it is noted in the minutes of the meetings 
of the Explanatory Notes Sub-Committee/Sous-Comité des Notes Explicatives held 
in July 1953 that no amendments were made to the original text, the word 
‘melted’ does not appear in the final English language version of the explanatory 
notes of 1955. 
Question 1 
14 The referring court considers that, with regard to classification, the interpretation 
of the term ‘geschmolzen’ [melted] in the explanatory notes to CN subheading 
1521 9099 is relevant to the decision to be given. The Explanatory Notes to the 
CN do not have legally binding force but are nevertheless an important aid in 
interpreting the scope of the various tariff headings (CJEU, judgment of 11 April 
2019, X BV, C-288/18, EU:C:2019:319, paragraph 28; judgment of 13 September 
2018, Vision Research Europe, C-372/17, EU:C:2018:708, paragraph 23). 
Therefore, the referring court may not take a decision which is in clear 
contradiction with the Explanatory Notes to the CN. 
15 The referring court has no reason to doubt that ‘geschmolzen’ [melted] means that 
something has been converted from a solid to a liquid physical state. However, the 
physical state of the product at the time of importation does not appear to be 
significant. The referring court is convinced that the reason for melting the wax is 
irrelevant from the point of view of the law on classification. If the word 
‘geschmolzen’ in the Explanatory Notes to CN subheading 1521 9099 were to be 
applicable, the product in question would be classified as ‘other’ beeswax under 
that subheading, and not under CN subheading 1521 9091 — as requested by the 
applicant — because the product has been melted. On the other hand, if the 
Explanatory Notes to CN subheading 1521 9099 were not applicable in so far as 
they contain the word ‘geschmolzen’, the court would classify the product in 
question under CN subheading 1521 9091. This follows from the statements 
regarding the second question referred (see below). Were the Court of Justice to 
reach a different conclusion, it could answer the second question first and leave 
the first question unanswered. 
16 The courts of the Member States may not automatically base their decision on the 
language version of EU law in which the court delivers its judgments. It is settled 
case‑ law of the Court of Justice that the wording used in one language version of 
a provision of European Union law cannot be made to override the other language 
versions. Such an approach would be incompatible with the requirement for 
uniform application of European Union law. Where there is a divergence between 
the language versions, the provision in question must thus be interpreted by 
reference to the general scheme and the purpose of the rules of which it forms part 
KAHL 
 
7 
(CJEU, judgment of 15 November 2012, SIA Kurcums Metal, C-558/11, 
EU:C:2012:721, paragraph 48; judgment of 3 March 2011, Commission v the 
Netherlands, C-41/09, EU:C:2011:108, paragraph 44 and the case-law cited). 
17 The different language versions are clearly attributable to the divergence between 
the English and French versions of the Explanatory Notes to HS heading 1521. 
However, the linguistic discrepancy has clearly not had any effect under 
international law, since HS heading 1521 does not distinguish between raw 
beeswax and other beeswax and no one disputes that beeswax in its melted form 
also belongs to HS heading 1521. 
18 The discrepancy between the French and English versions of the Explanatory 
Notes to HS heading 1521 has been transferred to the English and French versions 
of the Explanatory Notes to CN subheading 1521 9099. From there, it was 
transferred to the respective language versions of the Explanatory Notes, which 
were translated from English and French. The linguistic differences have an 
impact on the EU’s customs legislation, since EU law has created subheadings for 
both raw beeswax and other beeswax. They are subject to different rates of duty. 
19 The term ‘raw’ within the meaning of CN subheading 1521 9091, for the 
interpretation of which the Explanatory Notes to CN subheading 1521 9099 can 
be used indirectly, does not allow any conclusions to be drawn as to whether or 
not the Commission intended to regard melted wax as raw beeswax. This is 
because, on the one hand, the term ‘raw’ may be understood as meaning that it 
only covers products that have not undergone any further treatment whatsoever. 
According to this understanding, melted beeswax would no longer be raw 
beeswax. On the other hand, based on the generally accepted standards in the 
trade, some products are still considered to be raw even if they have undergone 
certain treatment or processing steps. According to the investigations carried out 
by the referring court, this is the case with beeswax (see paragraph 25 below). 
20 It is not clear to the referring court why the draft text from 1951 was amended in 
1955 — omitting the term ‘melted’ — even though no amendments were 
documented in 1953 (see paragraph 13 above). The discrepancy between the 
language versions that arose in this connection indicates that this was an 
oversight. The referring Chamber takes the view that this is also supported by the 
fact that the questions of interpretation giving rise to the present dispute would not 
arise if the melting and simple pressing of wax were to be regarded as processes 
that do not preclude the classification of the product in question as raw beeswax. 
21 The principle of the rule of law requires that a provision not be applied if its 
content cannot be determined by means of interpretation. The referring court 
would therefore disapply the Explanatory Notes to CN subheading 1521 9099 in 
so far as the word ‘geschmolzen’ [melted] is used. However, as a court of a 
Member State, it does not itself have competence to declare acts of Union 
institutions, which include the Commission’s Explanatory Notes to the CN, to be 
invalid (CJEU, judgment of 22 October 1987, Foto-Frost, 314/85, 
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EU:C:1987:452, [1987] ECR 4225, 4231 [paragraph 13]; confirmed by judgment 
of 6 December 2005, Gaston Schul Douaneexpediteur BV, C-461/03, 
EU:C:2005:742, paragraph 21; judgment of 10 January 2006, International Air 
Transport Association, C-344/04, EU:C:2006:10, paragraph 30) or to disapply 
them (Opinion of Advocate General Stix-Hackl of 12 April 2005, Intermodal 
Transport, C-495/03, EU:C:2005:215, point 46). The matter must therefore be 
referred to the Court of Justice, which has sole competence to rule on the 
disapplication of EU law. 
Second question referred 
22 If the word ‘geschmolzen’ [melted] in the Explanatory Notes to CN subheading 
1521 9099 must be disapplied, the interpretation of the word ‘raw’ within the 
meaning of CN subheading 1521 9091 is of decisive importance. 
23 The term ‘raw’ within the meaning of CN subheading 1521 9091 is not defined in 
the CN. On a general linguistic understanding, according to the Duden — the 
leading German dictionary — the German word ‘roh’ [raw] means, in its meaning 
relevant here, ‘not treated, not processed’. The Chamber is inclined to concur with 
the view taken by the applicant, that the imported product — beeswax — has not 
been treated or processed in the sense referred to above. Although the 
honeycombs were melted down and foreign matter was separated off, the product 
to be classified is the beeswax, not the combs. In terms of the substance, the 
imported wax is still the same as that found in the combs. It merely has a different 
shape and has been (partially) cleansed of foreign matter. 
24 The examples of the use of the German word ‘roh’ [raw] given in the Duden 
indicate that the term has sector-specific differences in meaning. On the one hand, 
some products are only described as raw if they have not undergone any further 
treatment. On the other hand, there is a second category of products that are still 
referred to as raw even though they have undergone various processing steps. For 
the products in this category, the generally accepted standards in the trade 
determine which treatment or processing steps the product may undergo and still 
be classified as raw. 
25 According to the definitions available to the referring court, melted wax from 
which impurities have been all but entirely removed is referred to as raw wax. 
26 The fact that beeswax may be imported only in the melted state, because only 
thermally treated — and therefore, inevitably, melted — beeswax can satisfy the 
veterinary requirements of Regulation (EU) No 142/2011, is also irrelevant to the 
interpretation of CN subheading 1521 9091. This is because, in principle, the 
existence of trade restrictions does not affect tariff classification (CJEU, judgment 
of 28 April 2016, ‘SIA “Oniors Bio”’ (C-233/15, EU:C:2016:305, paragraph 52 et 
seq.). An exception to this cannot be made in the present case, for the simple 
reason that the prohibition on the importation of beeswax in the form of 
honeycomb pursuant to Article 25(1)(c) of Regulation (EU) No 142/2011 is 
KAHL 
 
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significantly more recent than CN subheading 1521 9091 or the Explanatory 
Notes to CN subheading 1521 9099. The prohibition on importation was first 
introduced by Article 1 in conjunction with point 4(e) of Annex I to Regulation 
(EC) No 829/2007 of 28 June 2007 amending Annexes I, II, VII, VIII, X and XI 
to Regulation (EC) No 1774/2002 (OJ 2007 L 191, p. 1). 
27 As an interim conclusion, it appears to be possible, based on the wording of CN 
subheading 1521 9091, that the product in question here, which has merely been 
melted and from which foreign matter has been partially removed, can still be 
regarded as raw beeswax. 
28 The Explanatory Notes to CN subheading 1521 9091 do not preclude — or 
require — a classification of the product in question as ‘raw’. It cannot necessarily 
be deduced from the reference to waxes in natural combs, which are mentioned by 
way of example, that beeswax must also occur in raw forms other than natural 
combs — such as melted, for instance. This is because the natural comb form may 
constitute the list of the only form of an insect wax listed by way of example — 
beeswax — that is recognised as a raw form. There are other insect waxes that 
occur in a raw form other than in natural combs. For example, shellac wax and 
Chinese wax are produced by insect deposits on trees without the lice that secrete 
the wax having formed combs. 
29 If the term ‘raw’ beeswax within the meaning of CN subheading 1521 9091 is 
interpreted in the light of the Explanatory Notes to CN subheading 1521 9099 
without the word ‘fondue/geschmolzen’ [melted], the product in question here 
should be classified as raw beeswax. This is because, with the exception of fondue 
[melted], the forms of treatment referred to in those Explanatory Notes bring 
about a change in the substance of beeswax due to the addition of bleaching, 
colouring or filtering agents. This is specifically not the case with the melting 
process and the mechanical separation of foreign matter carried out during that 
process. 
30 Such an understanding of the term ‘raw’ within the meaning of CN subheading 
1521 9091 would be consistent with a number of other provisions of the CN that 
contain definitions of the term ‘raw’. For instance, according to note 2 to Chapter 
5 of the CN, human hair that is ‘sorted by length (provided the root ends and tip 
ends respectively are not arranged together)’ is also deemed to be raw. Note 4 to 
Chapter 27 defines the term ‘raw’ for certain mineral waxes. Additional notes 1(a) 
to (c) to Chapter 15 of the CN lay down certain treatments that do not preclude 
classification as raw (in this case ‘crude’) products. Although these definitions are 
not transferable to the product in question here, they show that it is not out of the 
ordinary for the CN to allow a product to undergo certain treatment without losing 
its status as a raw product.