Judgment;Summary — ECLI:EU:C:2024:1053
Date: 2024-12-19
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

Translation C-591/23 – 1 
Case C-591/23 
Request for a preliminary ruling 
Date lodged: 
25 September 2023 
Referring court: 
Finanzgericht Düsseldorf (Germany) 
Date of the decision to refer: 
23 August 2023 
Applicant: 
ZCC Europe GmbH 
Defendant: 
Hauptzollamt Düsseldorf 
  
[…] 
FINANZGERICHT DÜSSELDORF (DÜSSELDORF FINANCE COURT) 
O R D E R 
In the case of 
ZCC Europe GmbH, […] Düsseldorf, 
– Applicant – 
[…]  
v Hauptzollamt (Principal Customs Office) 
Düsseldorf, […] Düsseldorf, […] 
 – Defendant – 
concerning customs duty and VAT on imports 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 8. 2023 – CASE C-591/23 
 
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the Fourth Chamber […] 
[…] 
made the following order on the basis of the hearing of 23 August 2023: 
The proceedings are stayed. 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to the second paragraph of Article 267 of the 
Treaty on the Functioning of the European Union: 
Is Commission Implementing Regulation (EU) 2021/910 of 31 May 2021 
concerning the classification of certain goods in the Combined Nomenclature (OJ 
2021 L 199, p. 4) valid? 
This order is not open to appeal. 
ZCC EUROPE 
 
3 
 
G r o u n d s 
I. 
1 In 2008, the applicant declared metal carbide sticks of cermets imported from the 
People’s Republic of China (‘the PRC’) for release for free circulation. It declared 
the goods, described in the commercial invoices as ‘cemented Carbide rods’, 
under Combined Nomenclature (CN) subheading 8209 00 80. 
2 The metal carbide sticks consisted of a mixture of tungsten carbide with a 
proportion of cobalt as the binding substance. They were sintered and then 
mechanically polished. They were of varying lengths, mostly between 100 and 
300 mm, and of varying diameters between 2 and 40 mm. They had a uniform 
round cross-section and flush ends. Some of them moreover had one to three 
cooling channels. The applicant sold the metal carbide sticks to tool manufacturers 
which, in further processing steps, transformed the sticks into tools for the 
machining of metals. 
3 Following an on-the-spot inspection, the defendant principal customs office took 
the view that the metal carbide sticks of cermets should be classified not under the 
subheading given by the applicant but under CN subheading 8113 00 90. 
Accordingly, the defendant principal customs office sought post-clearance 
recovery of customs duty. The present Chamber rejected the applicant’s 
subsequent action against the post-clearance recovery of customs duty by its 
judgment of 19 April 2017. Upon the appeal on a point of law brought by the 
applicant, the German Bundesfinanzhof (Federal Finance Court, ‘the BFH’) set 
aside the judgment of the present Chamber and referred the case back to the 
Finanzgericht Düsseldorf (Düsseldorf Finance Court) […]. As grounds, the BFH 
held that, although the metal carbide sticks had the characteristics of CN heading 
8113, which was designed as a residual heading, since they were articles of 
cermets, it was nonetheless for the finance court to ascertain whether the 
characteristics of the more specialised CN heading 8209 were present. 
4 After the case was referred back, the present Chamber sought a report from the 
expert. In his report of 4 December 2019, the expert came to the conclusion that 
the metal carbide sticks in question were usually transformed into tools possessing 
geometrically defined cutting edges. He wrote that the types of metal carbide from 
which the sticks were made were tool materials specially developed for 
demanding metal-machining processes. The sticks with cooling channels were, in 
his view, an unequivocal indication of their use for drills or shank type milling 
cutters. He found that the other sticks, because of their geometry and the choice of 
materials, had clear characteristics of shank tools such as drills, shank type milling 
cutters and thread cutters. 
5 On the basis of that report, the present Chamber by its judgment of 18 March 2020 
(4 K 3162/18 Z) set aside the notice of assessment challenged by the applicant. 
REQUEST FOR A PRELIMINARY RULING OF 23. 8. 2023 – CASE C-591/23 
 
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6 Commission Implementing Regulation (EU) 2021/910 of 31 May 2021 
concerning the classification of certain goods in the Combined Nomenclature (OJ 
2021 L 199, p. 4) (‘CIR 2021/910’) entered into force on 27 June 2021. It 
classified cermet sticks with a uniform round cross-section under CN subheading 
8113 00 90. Recital 5 of that regulation states that the measures provided for are in 
accordance with the opinion of the Customs Code Committee. The Committee had 
at its 215th meeting, held from 14 to 16 December 2020, expressed the view that, 
with regard to the BFH judgment of 7 August 2018 and the judgment of the 
present Chamber of 18 March 2020, a classification regulation was necessary in 
order to provide legal certainty and legal clarity as well as to ensure uniform tariff 
classification of the article in question in the EU. 
7 On 27 August and on 7 and 13 September 2021, the applicant declared metal 
carbide sticks of cermets imported from the PRC for release for free circulation 
under CN subheading 8209 00 80. The metal carbide sticks corresponded to the 
metal carbide sticks it had declared for release for free circulation in 2008, which 
were the subject of the BFH judgment of 7 August 2018 (VII R 20/17) and the 
judgment of the present Chamber of 18 March 2020 (4 K 3162/18 Z). 
8 With reference to CIR 2021/910, the defendant principal customs office classified 
the goods declared by the applicant under CN subheading 8113 00 90. 
Accordingly, it imposed customs duty and import VAT on the applicant, applying 
a duty rate of 5%. 
9 In the objection it filed against that decision, the applicant argued as follows: the 
metal carbide sticks it declared can only be used for tools and not for other 
purposes. Therefore, CIR 2021/910 does not apply to those goods. Irrespective of 
that, CIR 2021/910 is unlawful because it does not merely provide clarification 
but alters the wording of CN subheading 8209 00 80 and the BFH judgment of 
7 August 2018. Moreover, no clarification is required, since the aforementioned 
BFH judgment has already clarified the legal situation. 
10 The defendant principal customs office rejected the objection as unfounded. 
11 In the action it then brought, the applicant essentially repeats the arguments it put 
forward in the objection procedure. 
12 The defendant principal customs office has opposed the action and argues as 
follows: the metal carbide sticks are covered by CIR 2021/910. That regulation is 
binding on customs authorities. Moreover, the Polish, Dutch and Irish customs 
authorities have in the meantime issued binding tariff information classifying 
comparable metal carbide sticks under CN subheading 8113 00 90. 
II. 
13 The present Chamber stays the action pending before it […] and refers the 
question set out in the operative part of the present order to the Court of Justice of 
the European Union (‘the Court’) for a preliminary ruling pursuant to the second 
ZCC EUROPE 
 
5 
paragraph of Article 267 of the Treaty on the Functioning of the European Union. 
The outcome of the dispute depends on whether CIR 2021/910 is valid. 
14 The present Chamber has no doubt that the metal carbide sticks at issue, which 
correspond to the metal carbide sticks the applicant declared for release for free 
circulation in 2008, which were the subject of the BFH judgment of 7 August 
2018 (VII R 20/17) and the judgment of the present Chamber of 18 March 2020 (4 
K 3162/18 Z), should be classified under CN subheading 8209 00 80. In the 
present case, the CN is applicable in the version resulting from Commission 
Implementing Regulation (EU) 2020/1577 of 21 September 2020 (OJ 2020 L 361, 
p. 1). 
15 The decisive criterion for the classification of goods for customs purposes is in 
general to be found in their objective characteristics and properties as defined in 
the wording of the relevant heading of the CN and of the section or chapter notes 
(Court judgments of 12 July 2012, C-291/11, ECLI:EU:C:2012:459, 
paragraph 30, and of 28 October 2021, C-197/20 and C-216/20, 
ECLI:EU:C:2021:892, paragraph 31). The intended use of a product may also 
constitute an objective criterion for classification if it is inherent to the product, 
and that inherent character must be capable of being assessed on the basis of the 
product’s objective characteristics and properties (Court judgments of 
22 September 2016, C-91/15, ECLI:EU:C:2016:716, paragraph 56, and of 
28 October 2021, C-197/20 and C-216/20, ECLI:EU:C:2021:892, paragraph 31). 
16 The intended use of the metal carbide sticks for tools within the meaning of CN 
subheading 8209 00 (‘baguettes […] pour outils’ and ‘Stäbchen […] für 
Werkzeuge’ in the French and German versions of the subheading) is inherent to 
the goods in the view of the present Chamber. Classification under CN 
subheading 8113 00 90 as simply articles of cermets is therefore ruled out. This is 
because heading 8113 does not include sticks for tools of cermets, which should 
be classified under heading 8209 (see Explanatory Notes on the Harmonized 
System, heading 8113, last paragraph, point (b)). 
17 It is apparent from the expert report of 4 December 2019 sought by the present 
Chamber in proceedings 4 K 3162/18 Z that the metal carbide sticks in question, 
because of their geometry, the choice of materials and the presence of cooling 
channels in some of them, are intended for tools possessing geometrically defined 
cutting edges. For classification under CN subheading 8209 00, it suffices that the 
main intended use of the metal carbide stick is for tools (Court judgment of 
5 September 2019, C-559/18, ECLI:EU:C:2019:667, paragraph 28). 
18 At the same time, CIR 2021/910 may preclude the classification of the metal 
carbide sticks at issue under CN subheading 8209 00 80. By that regulation, the 
Commission classified cermet sticks with a uniform round cross-section under CN 
subheading 8113 00 90. The present Chamber has no doubt that the classification 
regulation is intended in particular to cover the metal carbide sticks which the 
applicant declared for release for free circulation in 2008, which were the subject 
REQUEST FOR A PRELIMINARY RULING OF 23. 8. 2023 – CASE C-591/23 
 
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of the BFH judgment of 7 August 2018 (VII R 20/17) and the judgment of the 
present Chamber of 18 March 2020 (4 K 3162/18 Z). That is evident in particular 
from the minutes of the 215th meeting of the Customs Code Committee, held 
from 14 to 16 December 2020. According to the minutes, the adoption of 
CIR 2021/910 was necessary in the light of ‘a legally binding national judgment’ 
in order to provide legal certainty and legal clarity as well as to ensure uniform 
tariff classification of the article in question in the EU. 
19 The present Chamber questions the validity of CIR 2021/910. The Court has 
repeatedly held that the European Parliament and the Council of the European 
Union have conferred upon the Commission broad discretion to define the subject 
matter of tariff headings falling to be considered for the classification of particular 
goods. However, the Commission’s power to adopt the measures referred to in 
Article 57(4) of Regulation (EU) No 952/2013 of 9 October 2013 laying down the 
Union Customs Code (OJ 2013 L 269, p. 1) does not authorise it to alter the 
subject matter and the scope of the tariff headings (Court judgments of 
22 February 2018, C-545/16, ECLI:EU:C:2018:101, paragraph 23 and of 
19 December 2019, C-677/18, ECLI:EU:C:2019:1142, paragraph 37). 
20 The Commission may with CIR 2021/910 have altered the subject matter or scope 
of CN subheading 8209 00 80. According to the case-law of the BFH (judgment 
of 7 August 2018, VII R 20/17), classification under that subheading is not 
precluded by the fact that the sticks of cermets still require further processing 
before they can be used for tools. Moreover, the Commission acknowledged in the 
Description of the goods and Reasons to CIR 2021/910 that the articles in 
question may be used for tools if further processed. It appears likely, in the light 
of the expert report of 4 December 2019 sought by the present Chamber in 
proceedings 4 K 3162/18 Z, that the Commission’s assertion in the Description of 
the goods and Reasons to CIR 2021/910 that, based on their degree of processing 
and simple form and shape, the cermets sticks could be used for a wide range of 
uses is incorrect. 
[…] 
[Signatures]