Judgment;Summary — ECLI:EU:C:2020:194
Date: 2020-03-11
Language of the case: Dutch
Court formation: Seventh Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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: 
27 February 2019 
Referring court: 
Gerechtshof Amsterdam (Netherlands) 
Date of the decision to refer: 
12 February 2019 
Appellant: 
Rensen Shipbuilding BV 
Respondent: 
Inspecteur van de Belastingdienst/Douane 
 
Subject matter of the action in the main proceedings 
Appeal to the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) 
(Netherlands) following referral back by the Hoge Raad der Nederlanden 
(Supreme Court of the Netherlands) of a dispute concerning import duties on ship 
hulls from the People’s Republic of China. Following the referral, the only matter 
still in dispute is whether the hulls should be classified as sea-going vessels 
(8901 20 10 or 8901 90 10 of the CN; free of import duties) or as non-sea-going 
vessels (8901 20 90, 8901 90 91 or 8901 90 99 of the CN; rate of 1.7%).  
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling under Article 267 TFEU on the interpretation of 
the term ‘seagoing’ in Additional note 1 to Chapter 89 of the Combined 
Nomenclature.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-192/19 
 
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Question referred  
Additional note 1 to Chapter 89 of the Combined Nomenclature provides that 
(inter alia) the CN subheadings 8901 20 10 and 8901 90 10, entitled ‘Seagoing’, 
are to be taken to apply only to vessels that are designed as seagoing. What should 
be understood by the term ‘seagoing’ in this context?  
Provisions of EU law cited  
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff (Combined Nomenclature): 
Additional note 1 to Chapter 89, general classification rules 1, 2(a) and 6  
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the 
Community Customs Code (‘Community Customs Code’): Article 5(2)  
Commission Regulation (EC) No 652/2007 of 8 June 2007 concerning the 
classification of certain goods in the Combined Nomenclature: Annex, point 3 
Explanatory notes to the Combined Nomenclature of the European Union (OJ 
2015 C 76, p. 1): explanatory note to Additional note 1 to Chapter 89 
Provisions of national law cited 
Koninklijk besluit van 8 maart 2007 betreffende binnenschepen die ook voor niet-
internationale zeereizen worden gebruikt (België) (Royal Decree of 8 March 2007 
on inland vessels that are also used for non-international sea voyages (Belgium)) 
Brief summary of the facts and the procedure in the main proceedings 
1 In May and September 2009, the customs agent Cross Ocean C.V., as a direct 
representative within the meaning of Article 5(2) of the Community Customs 
Code, in the name and on behalf of Rensen Shipbuilding BV, shipbuilder, made 
declarations for the release of 27 hulls (‘hulls’) for free circulation. The hulls 
come from the People’s Republic of China.  
2 Cross Ocean specified subheading 8901 90 10 of the Combined Nomenclature 
(‘CN’) on each declaration form. The declarations cite ‘hull’ as the goods 
description. Heading 8901 of the CN refers to vessels for the transport of persons 
and/or goods. Subheading 8901 90 10 relates in particular to seagoing vessels for 
the transport of goods (not being tankers). The rate of customs duty associated 
with that subheading is 0%. The hulls were released for free circulation subject to 
that rate.  
3 Following a customs inspection of the declarations referred to in paragraph 1 at 
Rensen Shipbuilding in March 2012, the Inspector took the position that the hulls 
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should be regarded as hulls intended for the construction of inland vessels. The 
classification societies Bureau Veritas or Lloyd’s Register issued a ‘Certificate of 
Conformity’ or a ‘Certificate of Hull Construction’ (‘certificates’) for 18 hulls. 
The certificates state that the hulls were built in accordance with shipbuilding 
standards for inland navigation. In addition, for 25 of the 27 hulls, an ‘application 
for certification of inland vessels’ was submitted to the Inspectie voor Verkeer en 
Waterstaat (Transport and Water Management Inspectorate), and in the Rensen 
Shipbuilding records a Rensen Shipbuilding contract was found for each hull with 
a buyer commissioning the construction and delivery of a vessel intended for use 
on European inland waterways. 
4 The Inspector took the position that eight hulls had to be regarded as hulls 
intended for the construction of a tanker for inland navigation. According to the 
Inspector, such hulls had to be classified under subheading 8901 20 90 of the CN. 
The Inspector took the view that, of the remaining 19 hulls intended for the 
construction of a different type of cargo ship for inland navigation than a tanker, 
13 should be classified under subheading 8901 90 99 of the CN as ‘other vessels 
for the transport of goods, mechanically propelled’, and six under subheading 
8901 90 91 of the CN as ‘other vessels for the transport of goods, not 
mechanically propelled’.  
5 The rate of customs duty for the subheadings cited in paragraph 4 is 1.7%. By 
payment notification of 27 April 2012, the Inspector levied customs duties on 
Rensen Shipping in accordance with that rate.  
6 By decision of 2 July 2013, the rechtbank Noord-Holland (District Court, Noord-
Holland) (Netherlands) declared the action brought by Rensen Shipbuilding 
against the payment notification to be unfounded. The gerechtshof Amsterdam 
(Netherlands) confirmed that decision. In its judgment of 11 June 2015, the 
gerechtshof took as its starting point that, by the application of general 
classification rule 2(a) of the CN (‘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’), the hulls should be classified as ships in 
Chapter 89 of the CN. It ruled that it follows from the commercial documents and 
certifications found in the Rensen Shipbuilding records that the (hulls) in question 
were designed and built (for) inland vessels for navigation on inland waterways. 
According to the gerechtshof, there is no question of seagoing vessels and the 
hulls must be classified in accordance with their nature under subheading 
8901 20 90, 8901 90 91 or 8901 90 99 of the CN. 
7 In its judgment of 30 June 2017, the Hoge Raad set aside the judgment of the 
gerechtshof Amsterdam and referred the case back to that gerechtshof, the 
referring court in this case. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-192/19 
 
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Main submissions of the parties to the main proceedings  
8 Rensen Shipbuilding relies on CN Additional note 1 to Chapter 89 of the CN, read 
in conjunction with the (last sentence of the) explanatory note of the European 
Union to that additional note. That explanatory note, in so far as is relevant here, 
reads as follows: 
‘The expression “vessels, designed as seagoing” means vessels which, by reason 
of their construction and equipment, are capable of operating at sea even in bad 
weather (winds of about force 7 on the Beaufort scale).  
[...] 
The expression “seagoing vessels” means ships [...] which satisfy the above 
conditions, whether or not they are actually used mainly in coastal waters, in 
estuaries or on lakes, etc.’ 
9 According to Rensen Shipbuilding, the [additional] note, in combination with that 
explanatory note, should be interpreted as meaning that, for the purpose of 
classification as a seagoing vessel, the decisive factor is whether the hull is 
seaworthy, that is to say, suitable for navigating the sea, and not whether the fully 
completed ship is seagoing. In its assessment, the gerechtshof Amsterdam ought 
to have taken into account only the objective characteristics and properties of the 
hulls in the state in which they were at the time of importation, and not also the 
objective characteristics and properties of the ships which, on the basis of those 
hulls, were eventually delivered by Rensen Shipbuilding.  
10 Rensen Shipbuilding claims that the hulls in question are suitable to be used as the 
hulls of seagoing vessels, because the hulls can indeed navigate the sea after being 
built into a ship. It has submitted expert statements to substantiate its claim. Two 
of the statements state that ships with dimensions such as those of the ships at 
issue in the present case should be capable of sailing up to about 21 miles from the 
coast under the aforementioned weather conditions.  
Brief summary of the grounds for the referral 
11 The Hoge Raad is of the opinion that, although the term hull [...] does not appear 
in the wording of the relevant headings of Chapter 89 of the CN, it follows from 
the World Customs Organization’s HS explanatory notes on Chapter 89 that, by 
the application of general classification rules 1 and 6, a ship’s hull must be 
classified under a subheading of 8901 20 or 8901 90 of the CN. 
12 It follows from that view of the Hoge Raad that, for the purposes of the CN, a hull 
must be regarded as a ‘vessel’ and not as ‘an unfinished or incomplete vessel’ 
within the meaning of general classification rule 2(a). Consequently, for the 
purpose of determining the further CN subdivision under 8901 20 and 8901 90 
respectively, namely ‘seagoing vessels’ or ‘other’, it is not significant that at the 
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time of importation there was an intention to build the hulls as inland vessels and 
that they have actually been built and used as inland vessels.  
13 A finding that the hulls were not designed and built for navigating the high seas 
requires that it be established that, at the time of importation, the hulls did not 
have the objective characteristics and properties which would enable them to be 
used as the hull of a ship that would be able to transport cargo on the high seas in 
the severe weather conditions referred to in the CN explanatory note (‘winds of 
about force 7 on the Beaufort scale’). It does not in itself follow from the 
certificates that the hulls cannot be classified as seagoing vessels under 
subheading 8901 20 10 or 8901 90 10. Although the certificates confirm that the 
hulls are suitable for inland navigation, the Hoge Raad does not understand why 
that justifies the conclusion that the hulls are not designed or built to be used as 
hulls of seagoing vessels.  
14 It is common ground that the hulls are capable of being classified in the category 
‘other’ (CN subheadings 8901 20 90, 8901 90 91 or 8901 90 99) because they are 
suitable for use as hulls for inland vessels (non-seagoing vessels). If it is 
established that the hulls are also suitable for use as hulls of seagoing vessels (CN 
subheadings 8901 20 10 or 8901 90 10), they should be classified under ‘seagoing 
vessel’.  
15 It is not in dispute between the parties that the hulls in question are unsuitable for 
use as hulls for vessels capable of crossing the oceans, laden, in the 
aforementioned weather conditions. The parties disagree on the question of how 
far from the coast it should be possible for a vessel to sail at sea in order for it to 
be ‘seagoing’ within the meaning of Additional note 1 of the CN to Chapter 89 of 
the CN. 
16 One of the experts engaged by Rensen Shipbuilding mentions in his statement the 
use of inland vessels for sea voyages between the (non-coastal) port of Antwerp, 
on the one hand, and the Belgian coastal ports of Zeebrugge, Ostend and 
Nieuwpoort, on the other, via the Westerschelde and the North Sea. Constraints in 
terms of depth and wave conditions apply here. Article 3 of the [Belgian] 
koninklijk besluit betreffende binnenschepen die ook voor niet-internationale 
zeereizen worden gebruikt van 8 maart 2007 provides that an ‘inland vessel’ may 
operate in that limited navigation area between the Westerschelde and the ports of 
the Belgian coast, on condition that it sails no further than five nautical miles from 
the coast. The expert makes the assumption in his statement that the route along 
the Dutch and Belgian coasts between the mouth of the Westerschelde (to the west 
of the Breskens-Vlissingen line) and the aforementioned Belgian coastal ports 
qualifies as ‘the high seas’.  
17 The classification society Lloyd’s Register initially stated that it is clear from the 
‘Certificate of Hull Construction’ and from the class notation awarded by it that 
the hulls at issue here are the hulls of an inland vessel. The hull of such a ship is 
not strong enough to withstand the impact of waves at sea. According to Lloyd's 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-192/19 
 
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Register, the Hoge Raad’s assessment is theoretically correct, but in practice it is 
highly unlikely that a ship built according to the requirements for inland 
navigation will be strong enough to survive at sea with wind force 7 and the 
accompanying waves.  
18 In a second statement, however, Lloyd’s Register pointed out that the definition of 
seagoing vessels in legislative provisions differs from what is understood by 
seagoing vessels in the classification society sector. Lloyd’s Register takes a 
seagoing vessel to refer only to a ship that can cross the oceans without problems, 
whereas it follows from the customs provisions that the definition of a seagoing 
vessel would also include a vessel that can navigate coastal waters, estuaries and 
lakes. The dimensions of the hulls that the Inspector has submitted are the 
dimensions of vessels that — according to Lloyd’s Register — are referred to in 
common parlance as inland vessels, but are also suitable for navigating estuaries, 
large lakes and coastal waters.  
19 In the light of the foregoing, the question arises as to what should be understood 
by the term ‘seagoing’. From the wording of the explanatory note to Additional 
note 1 to Chapter 89 of the CN (see paragraph 8) it can be deduced that ‘coastal 
waters, estuaries and lakes’ do not form part of the high seas. However, in the 
absence of a definition of the term ‘coastal waters’, it is not yet clear how far a 
ship has to go out to sea in order to be on the ‘high seas’. On the basis of that CN 
explanatory note, it could be argued that it is not the distance between the ship and 
the coast that is important, but only the possibility of operating the ship on the sea 
under the difficult weather conditions mentioned therein.  
20 In its ruling of 14 December 1994, the Tariefcommissie (Tariff Commission) 
(formerly, the highest Netherlands court in customs matters) ruled that a hull that, 
upon completion, was allowed to sail up to 21 nautical miles from the coast — 
thus 9 miles beyond the international 12-mile boundary — and was awarded the 
class notation ‘sea and river waters’, should be classified as a seagoing vessel. 
According to the Tariefcommissie, the high seas therefore start 12 miles from the 
coast.  
21 In Commission Regulation (EC) No 652/2007 of 8 June 2007 concerning the 
classification of certain goods in the Combined Nomenclature, the European 
Commission relies on a different interpretation of the term ‘seagoing’. It can be 
inferred from point 3 of the annex to that regulation (at 8901 10 90) that the 
Commission takes the view that one can refer to ‘a seagoing vessel’ only if all 
parts of the sea can be navigated, without limiting the distance that may be sailed 
from the coast.  
22 In the light of the foregoing, the gerechtshof Amsterdam has doubts regarding the 
question as to over which part of the sea a vessel should be able to transport cargo 
under the aforementioned severe weather conditions in order to qualify as a 
‘seagoing vessel’ within the meaning of Chapter 89 of the CN. If the high seas 
only start more than 21 miles from the coast, there is no dispute between the 
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parties that the hulls in question do not have the objective characteristics and 
properties to be used as hulls for ships capable of carrying cargo on the high seas 
at wind force 7. If the high seas start less than 21 miles from the coast, then that 
matter is indeed in dispute between the parties and the Inspector must provide 
evidence of his claim that the hulls in question do not have the objective 
characteristics and properties to be used as hulls for ships that can transport cargo 
at wind force 7 over the part of the sea concerned.