Judgment;Summary — ECLI:EU:C:2021:441
Date: 2021-06-03
Language of the case: Bulgarian
Court formation: Eighth Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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:  
12 February 2020 
Referring court:  
Administrativen sad Varna (Bulgaria) 
Date of the decision to refer:  
5 February 2020 
Appellant:  
Balev Bio EOOD 
Respondent:  
Agentsia ‘Mitnitsi’, Teritorialna Direktsia Severna Morska  
  
Subject matter of the main proceedings 
Appeal against the judgment of the Rayonen sad Devnya (District Court, Devnya) 
of 14 October 2019 upholding the administrative order imposing a fine issued by 
the respondent on 23 August 2018 imposing a financial penalty on the appellant 
on the grounds of infringement of the Zakon za mitnitsite (Customs Code). 
Subject matter and legal basis of the reference 
Request for a preliminary ruling pursuant to Article 267 TFEU on the 
interpretation of Rules 3(а) and 3(b) of the General Rules for the interpretation of 
the Combined Nomenclature contained in Annex I to Commission Implementing 
Regulation (EU) 2015/1754 and of headings 4410 and 4419 and subheading 
3924100011 thereof. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-76/20 
 
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Questions referred 
1. Is Rule 3(а) of the General Rules for the interpretation of the Combined 
Nomenclature in Commission Implementing Regulation (EU) 2015/1754 of 
6 October 2015 amending Annex I to Council Regulation (EEC) No 2658/87 
on the tariff and statistical nomenclature and on the Common Customs 
Tariff to be interpreted as meaning that, for the purposes of the classification 
of products such as those at issue in the main proceedings, which are made 
up of different materials, the heading covering the material that outweighs 
the other materials by quantity (bulk) is the ‘heading which provides the 
most specific description’ or is that interpretation only possible if the 
heading itself provides for quantity (bulk) as a criterion that provides the 
most specific, precise and complete description? 
2. Depending on the answer to the first question and in light of the 
[Harmonised System, (‘HS’)] Explanatory Notes on headings 4410 and 
4419: Is Commission Implementing Regulation (EU) 2015/1754 to be 
interpreted as meaning that heading 4419 does not include products of 
particle board (fibre) in which the weight of the binding substance 
(thermosetting resin) exceeds 15% of the weight of the board? 
3. Is Commission Implementing Regulation (EU) 2015/1754 to be interpreted 
as meaning that goods such as those at issue in the main proceedings, that is 
beakers manufactured from a composite material made up of plant 
lignocellulosic fibres in a proportion of 72.33% and a melamine resin 
binding substance in a proportion of 25.2%, are to be categorised under 
subheading 3924 10 00 of Annex I? 
Cited legislation and case-law of the European Union 
Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the 
International Convention on the Harmonised Commodity Description and Coding 
System and of the Protocol of Amendment thereto, Annexes thereto. 
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, Articles 1 and 12. 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 
9 October 2013 laying down the Union Customs Code, Article 56(1) and (2)(a) 
and Article 57. 
Commission Implementing Regulation (EU) 2015/1754 of 6 October 2015 
amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and 
statistical nomenclature and on the Common Customs Tariff, Rules 1, 2(b), 3(a), 
3(b) and 6 of the General Rules for the interpretation of the Combined 
Nomenclature (‘the CN’) in Annex I and headings 3909, 3924, 4410 and 4419 
thereof. 
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Judgment of 26 October 2006, Turbon International, С-250/05, EU:C:2006:681, 
paragraph 21. 
Judgment of 18 June 2009, Kloosterboer Services, С-173/08, EU:C:2009:382, 
paragraph 31. 
Judgment of 18 May 2011, Delphi Deutschland, С-423/10, EU:C:2011:315, 
paragraph 23. 
Judgment of 28 July 2011, Pacific World Limited, С-215/10, EU:C:2011:528, 
paragraph 29. 
Judgment of 10 March 2016, VAD BVBA, С-499/14, EU:C:2016:155, 
paragraph 30. 
Judgment of 17 March 2016, Sonos Europe, С-84/15, EU:C:2016:184, 
paragraph 33. 
Judgment of 26 May 2016, Latvijas propāna gāze, С-286/15, EU:C:2016:363, 
paragraphs 30 and 34. 
Judgment of 19 October 2017, Lutz, С-556/16, EU:C:2017:777, paragraph 40. 
Judgment of 5 September 2019, TDK-Lambda Germany, С-559/18, 
EU:C:2019:667, paragraph 33. 
Provisions of national law cited 
Zakon za mitnitsite (Customs Code), Article 234(1) and (2) point 1. 
Zakon za administrativnite narushenia i nakazania (Law on administrative 
offences and administrative penalties), Article 59(1) and Article 63(1). 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure), 
Article 217(1) and Article 223. 
Brief summary of the facts and procedure 
1 During the period from 9 December 2016 to 11 October 2017, Balev Bio 
submitted a total of 18 customs declarations for release into free circulation of 
goods described as ‘bamboo beakers’ under TARIC codes 4419009000 and 
4419190000. The goods originated from China and the rate of import duty 
applicable to them was 0%. 
2 On 13 June 2017, the respondent performed a physical check of the goods 
described as ‘bamboo beakers’ in the customs declarations of 12 June 2017. A 
sample of the goods was taken and sent to the Tsentralna mitnicheska laboratoria 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-76/20 
 
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(Central Customs Laboratory) for testing, in the aim of determining the type of 
goods and their classification. 
3 On 1 November 2017, a customs laboratory report was prepared on the test 
results, according to which ‘… this type of beaker (named “Eccoffee cup”) is 
made up of bamboo fibres, corn starch and melamine (melamine formaldehyde 
resin). The starch and bamboo fibres are used as filler materials. The sample 
tested contained 5.3% “inorganic filler” materials’. The report concluded that ‘… 
the sample tested of the goods described as “beakers of bamboo fibres” was a 
beaker, namely tableware of plastic containing melamine’. The ratio of plant 
fibres to melamine formaldehyde resin was not stated. 
4 Balev Bio submitted a report prepared on 20 December 2017 by the 
Lesotehnicheski universitet (University of Forestry) on the composition of the 
beaker. It stated that the product, a ‘bamboo beaker’ is made up of 72.33% 
cellulose, hemicellulose and lignin (i.e. plant lignocellulosic fibres) and 25.2% 
binding substance (namely melamine resin). Based on those values, it was 
concluded that the product at issue should be categorised as plant-based material 
(plant lignocellulosic fibres) with a matrix of synthetic binding substance 
(melamine), and that the product should not be categorised as plastic, as it 
contained substantially less than 50% synthetic materials. 
5 The respondent ultimately assumed that TARIC codes 4419009000 and 
4419190000 stated for the goods in all the customs declarations checked were 
incorrect in light of the wording of Chapter 44 of the CN (‘wood and articles of 
wood; wood charcoal’), as the imported goods were not products of wood. 
According to the results contained in the report prepared, the goods were 
‘tableware of plastic, namely a beaker made of melamine formaldehyde resin 
containing bamboo fibres and corn starch as filler materials’. The reported stated, 
based on Rules 1, 2(b), 3(b) and 6 of the General Rules for the interpretation of 
the CN, that, as it gives the goods their form, including the properties of hardness 
and rigidity, the plastic used in the product (melamine formaldehyde resin) gives 
the product its essential character, and that the goods should therefore be classed 
under tariff heading 3924, CN code 3924 10 00 and, in light of their origin 
(China), TARIC code 3924100011 with a rate of duty of 6.5%. 
6 As a first step, by decisions adopted in February and September 2018 based on 
those findings, the respondent corrected the code set out in all the declarations, 
applied TARIC code 3924100011 and assessed additional customs and VAT debts 
payable to the State. 
7 The respondent’s decisions were contested before the Administrativen sad Varna 
(Administrative Court, Varna). Various chambers of the court dismissed the 
applications as unfounded. The reason given was that, as the goods are products 
made up of a composite material of two main substances, namely wood fibres and 
approximately 25% melamine resin, neither of which fall directly under a CN 
heading, they have to be categorised in accordance with Rule 3(b) of the General 
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Rules for the interpretation of the CN, that is by the material that gives them their 
essential character; that, notwithstanding the fact that the plant fibres outweigh the 
other components in terms of bulk, the product is not an ‘article of wood’ for the 
purposes of classification, as the proportion of synthetic plastic exceeds 15%; and 
that the synthetic plastic is the other main substance that determines the nature of 
the product, which is therefore ‘tableware of plastic’. 
8 The judgements of the Administrative Court, Varna were appealed before the 
Varhoven administrativen sad (Supreme Administrative Court). By judgment of 
29 October 2019, the Supreme Administrative Court set one of the contested 
judgments aside, giving as its reason that, in that case, the relevant rule is 
contained in the first sentence of Rule 3(a) of the General Rules for the 
interpretation of the CN, which states that the heading which provides the most 
specific goods description is to be preferred to headings providing a more general 
description; that, moreover, according to General Interpretative Rule 2(b), any 
reference in a heading to a material is to be taken to include reference to the 
material alone and to the material mixed or combined with other materials; that, in 
this case, although the bamboo material is compounded with another material, 
namely the melamine formaldehyde resin, it outweighs the other materials by 
quantity and determines the heading that provides the most specific description; 
and that, for precisely that reason, it falls under Section IX Chapter 44 of the CN 
(‘wood and articles of wood; wood charcoal’), meaning that Balev Bio categorised 
the goods correctly. The Supreme Administrative Court has yet to rule on the 
other appeals. 
9 As a second step, the respondent issued administrative orders imposing fines 
against Balev Bio on the grounds of incorrect tariff classification, by which it 
found the company guilty of customs fraud within the meaning of Article 234(1) 
No 1 of the Customs Code and imposed financial penalties in the amount of its 
circumvented debts to the State. One of those administrative orders imposing a 
fine is the subject matter of these proceedings. 
10 During examination of the action against that notice, the District Court, Devnya, 
commissioned an expert opinion on the chemical aspects which, as no 
representative sample was available, had to be prepared based on the case file 
alone. According to that expert opinion, the substances in the composite material 
used in the manufacture of the product were identical in terms of content and ratio 
to the substances listed in the Chinese manufacturer’s declaration of conformity of 
12 June 2017, namely 75% plant fibres and 25% melamine resin. 
11 The expert witness concluded that each individual substance in the composite 
material contributed to the properties of the composite material. It found that the 
plant fibres were responsible for the following factors: thermal insulation 
properties, low density, biodegradability, rigidity, health and safety at work, 
environmental safety, sustainable raw material and price, and that the melamine 
resin was responsible for the following factors: environmental and mechanical 
resilience, water-tightness, shape retention, rigidity and longer product life. 
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12 By judgment of 14 October 2019, the District Court, Devnya upheld the 
administrative orders imposing a fine. It ruled that the product could not be 
categorised as an article of wood as, in this particular case, the binding substance 
(thermosetting resin) exceeded 15%; that the product is a composite material 
made up of two main substances, namely wood fibres and approximately 25% 
melamine resin by bulk, neither of which fall directly under one CN heading, 
meaning that the goods have to be categorised in accordance with Rule 3(b) of the 
General Rules for the interpretation of the CN, that is by the material that gives 
them their essential character; and that, notwithstanding the fact that the plant 
fibres outweigh the other components in terms of bulk, the product is ‘tableware 
of plastic’, not an ‘article of wood’ for the purposes of classification, as the 
proportion of synthetic plastic exceeds 15%. 
13 The appeal by Balev Bio in those proceedings is directed against that judgment. 
14 The Administrative Court, Varna has established contradictory case-law on the 
legality of the administrative orders imposing fines on Balev Bio in this dispute. 
15 On the one hand, it has held that, based on General Interpretative Rule 3(b), the 
product (‘bamboo beaker’) should be categorised under code 3942100011 as, 
according to the HS Explanatory Notes on heading 4410, that heading covers 
goods which do not contain more than 15% thermosetting resin by weight. 
16 On the other hand, it has held that, based on Rule 2(b), the goods, which are made 
up of a composite material, can be categorised under two or more headings and 
that Rule 3(a), not Rule 3(b), applies in this case as, given that the plant fibres 
outweigh the other materials by proportion and in terms of the characteristics and 
properties they give the goods, they provide the most specific description of the 
goods. 
Main arguments of the parties to the main proceedings 
17 The appellant argues that the District Court, Devnya, wrongly held that, in the 
context of General Interpretative Rule 3(b), the plastic (the melamine 
formaldehyde resin) gives the goods their essential character. In its opinion, the 
HS Explanatory Notes on the description and coding of goods do not stipulate that 
the weight of the binding substance in the goods must not exceed 15%. It makes 
the argument that it follows from the interpretation of the Explanatory Notes that 
all materials made up of wood fibres mixed with resin, such as the beakers at 
issue, which are made up of 75% wood fibres and 25% resin, come under Chapter 
44, headings 4410 and 4411. 
18 The appellant argues that interpretation of the CN is not necessary, as the Court of 
Justice of the European Union has established case-law stipulating that the 
decisive criterion for the classification of goods for customs purposes is in general 
to be found in their objective characteristics and properties (judgment of 
11 January 2007, B.A.S. Trucks, С-400/05, EU:C:2007:22). According to the case-
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law of the Court of Justice, the Explanatory Notes in respect of the CN and in 
respect of the HS are an important aid for interpreting the various tariff headings 
but do not have legally binding force (judgement of 13 September 2018, Vision 
Research Europе, C-372/17, EU:C:2018:708). The appellant argues in that regard 
that the product would have to be described as a plastic product if it was made up 
of plastic or if that material at least outweighed the other materials, rather than 
accounting, as in the present case, for a mere 24.7% to 33% of the composition of 
the product. 
19 The respondent contends that the goods have to be categorised based on General 
Interpretative Rule 3(b), as the plastic (melamine formaldehyde resin) gives the 
product its essential properties, namely form, stability, overall appearance and the 
hygienic feeling needed in order to use the product for the preparation of drinks, 
and thus its essential character; hence the product has to be categorised under 
subheading 3924 10 00. 
Brief summary of the reasons for the reference 
20 This dispute raises the question of whether, for the purpose of classification of the 
goods, Rule 3(a) of the General Rules for the interpretation of the CN applies, 
meaning that the heading covering the material that outweighs the other materials 
by quantity is the ‘heading which provides the most specific description’ or, if 
Rule 3(a) does not apply and Rule 3(b) is the correct rule, the material or 
component which gives them their essential character has to be identified. 
21 The abovementioned judgments delivered by various chambers of the 
Administrative Court, Varna in other proceedings on similar issues contain one 
possible interpretation of the CN, namely that, even though the plant fibres 
outweigh the other materials by quantity, the product is not an ‘article of wood’ 
and must be categorised by the other main substance (the synthetic plastic) as 
‘tableware of plastic’, because that substance exceeds 15%. 
22 The other possible interpretation is that given by the Supreme Administrative 
Court in the abovementioned judgment of 29 October 2019, namely that Rule 3(a) 
of the General Rules for the interpretation of the CN applies and the heading that 
covers the material that outweighs the others by quantity should be selected as the 
heading which provides ‘the most specific’ description. 
23 The referring court has doubts, based on the considerations below, as to which is 
the correct solution. 
24 It follows from HS Explanatory Note I) on General Interpretative Rule 3 that 
General Interpretative Rule 3(b) applies only where classification has not been 
resolved under General Interpretative Rule 3(a). If neither General Interpretative 
Rule 3(a) nor General Interpretative Rule 3(b) applies, General Interpretative Rule 
3(c) applies. Thus the sequence is: a) most specific description; b) essential 
character; c) heading which occurs last in the nomenclature. 
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25 According to HS Explanatory Note IV) on Rule 3(a), it can be said that ‘a) 
description by name is more specific than a description by class’, and ‘b) if the 
goods answer to a description which more clearly identifies them, that description 
is more specific than one where identification is less complete’. 
26 HS Explanatory Note V) on Rule 3(a) states that, ‘however, when two or more 
headings each refer to part only of the materials or substances contained in mixed 
or composite goods or to part only of the items in a set put up for retail sale, those 
headings are to be regarded as equally specific in relation to those goods, even if 
one of them gives a more complete or precise description than the others. In such 
cases, the classification of the goods shall be determined by Rule 3(b) or 3(c).’ 
27 HS Explanatory Note VIII) on Rule 3(b) states that the ‘factor which determines 
essential character will vary as between different kinds of goods. It may, for 
example, be determined by the nature of the material or component, its bulk, 
quantity, weight or value, or by the role of a constituent material in relation to the 
use of the goods’. 
28 These tips for the interpretation of Rules 3(a) and 3(b) of the General Rules for the 
interpretation of the HS appear to suggest that, in the case of products made up of 
various materials, the quantity of a substance is only relevant when determining 
the ‘most specific’ heading under Rule 3(a) if it is expressly named as a 
requirement of the corresponding heading and therefore provides the most 
specific, accurate and complete description of the goods. 
29 In that regard and inasmuch as it refers in certain cases to the quantities of 
materials in mixed products, the Common Customs Tariff fundamentally prefers, 
in the interests of legal certainty and ease of verification, classification criteria 
based on objective characteristics and properties of the goods that can be verified 
at the time of customs clearance. It follows from this that the quantity of a 
material that specifically identifies the mixed product at issue must be mentioned 
in the heading itself. 
30 In other cases, when the quantity of a material is not expressly named in a 
heading, to assume that the heading which provides the ‘most specific’ description 
is the heading covering the material that outweighs the other materials by quantity 
or weight would mean that the application of Rule 3(a) is based on an 
inadmissible presumption in respect of Rule 3(c) (judgment of 5 September 2019, 
TDK-Lambda Germany, С-559/18, EU:C:2019:667, paragraph 33). 
31 In this case, it is necessary to examine whether each of the materials of which the 
goods are made up (72.33% plant fibres and 25.2% melamine resin) can be 
categorised under the appropriate subheading and, if so, whether one of those 
subheadings can be held to provide the most specific description of the goods. 
32 On the one had, melamine resins, which are expressly named in Chapter 39 of the 
CN (‘plastics and articles thereof’) are categorised under subheading 3909 20. 
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According to the HS Explanatory Notes, heading 3909 includes amino-resins, 
which are used in the manufacture of plastics. 
33 On the other hand, it follows from Note 3 on Chapter 44 of the CN (‘wood and 
articles of wood; wood charcoal’) that that chapter applies to articles of ‘densified’ 
wood as it applies to such articles of wood. 
34 According to the notes on the subheadings in Chapter 44 of the HS, products such 
as bamboos in chips or shavings (used in the manufacture of particle board, 
fibreboard or cellulosic pulp) and articles of bamboo or other ligneous materials 
that are not wickerwork or furniture or other goods expressly covered by other 
chapters are to be categorised with the corresponding articles of wood in Chapter 
44 (e.g. in the case of headings 4410 and 4411) except where the context requires 
otherwise. 
35 In that regard, Note 6 on Chapter 44 [CN] states: ‘Subject to note 1 above [goods 
not covered by Chapter 44] and except where the context otherwise requires, any 
reference to “wood” in a heading of this chapter applies also to bamboos and other 
materials of a woody nature.’ 
36 The HS Explanatory Notes to  heading 4410 state that particle board is a flat 
product manufactured to various lengths, widths or thicknesses by compression or 
‘extrusion’, that the raw materials used in its manufacture are mostly wood 
particles obtained by mechanical crushing of logs or wood waste, that they can be 
manufactured from other ligneous materials, such as bagasse, bamboo or cereal 
straw particles or from flax or hemp waste, and that particle board is usually 
agglomerated using an organic binding substance, generally a thermosetting resin 
that does not exceed 15% of the weight of the board. 
37 Heading 4410 also covers impregnated particle board, in which case the quantity 
of impregnation substance may exceed that. As, according to the [HS] 
Explanatory Notes on this heading, impregnation must be carried out by soaking 
the particle board with one or more materials not necessary for the cohesion of the 
basic material, in order to give the board additional properties, such as making it 
waterproof, resistant to rotting or insect damage, non-flammable or low-
flammable or resistant to chemicals or electricity or in order to increase its 
density, the exemption in terms of the weight of the resin in mixed products made 
up of wood particles does not apply to the product at issue in this case, as there is 
no evidence that the melamine resin was used as an impregnation substance. On 
the contrary, the melamine was used solely as a binding substance. 
38 It would appear that, in order to categorise goods such as those at issue under 
subheading 4419 00 90 in Chapter 44, the melamine resin in the composite 
material should not exceed 15% of the total weight of the composite material, 
which it does in the goods at issue. 
39 That being so, it cannot be assumed that heading 4410 which, based on the 
General Interpretative Rules and Note 6 on Chapter 44 [CN], is the correct 
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heading for the plant fibres (bamboo fibres), provides the most accurate 
description of the goods. 
40 For those reasons, and because the CN contains no guidance for the classification 
of goods containing more than 15% melamine resin, it has to be assumed that both 
headings covering the respective materials, namely 4410 and 3909, are equally 
specific, meaning that the goods must be categorised in accordance with Rule 
3(b). 
41 If, however, the interpretation in the HS Explanatory Notes is disregarded or it is 
assumed that the requirement that the proportion of resin should not exceed 15% 
does not have binding force, a different interpretation, namely that made by the 
Supreme Administrative Court, is possible. 
42 If the goods must be categorised in accordance with Rule 3(b), it is necessary to 
examine which of the materials gives the goods their essential character. 
43 In that regard, the referring court has doubts as to whether the material that 
determines most of the characteristics (properties) of the product should be 
regarded as the material that gives the goods their essential character. 
44 According to HS Explanatory Note VIII on Rule 3(b), the factor which determines 
essential character can vary as between different kinds of goods. 
45 In order to establish which material gives the goods their essential character, it is 
necessary to identify, in application of each of the criteria named (nature of the 
material, bulk, quantity, weight, value), the material or substance which, if 
removed, would cause the goods to loss their essential character (judgments of 
26 October 2006, Turbon International, С-250/05, EU:C:2006:681, paragraph 21, 
and of 18 June 2009, Kloosterboer Services, С-173/08, EU:C:2009:382, 
paragraph 31). 
46 Only if it were such a material would the material present in the mixture in the 
greatest proportion or the material that gives the mixture most of its properties 
determine the essential character of the product. If essential character cannot be 
determined unequivocally, Rule 3(c) is to be applied and it is not to be presumed 
that the substance present in the mixture in the greatest proportion gives the 
product its essential character (judgment of 26 May 2016, Latvijas propāna gāze, 
С-286/15, EU:C:2016:363, paragraphs 30 and 34).