Judgment;Summary — ECLI:EU:C:2021:288
Date: 2021-04-15
Language of the case: Dutch
Court formation: Tenth Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Belgium

Translation  C-62/20 — 1 
Case C-62/20 
Request for a preliminary ruling 
Date lodged: 
6 February 2020 
Referring court: 
Nederlandstalige rechtbank van eerste aanleg Brussel, 7de Kamer 
(Belgium) 
Date of the decision to refer: 
17 January 2020 
Applicant: 
NV Vogel Import Export 
Defendant: 
Belgische Staat 
  
… 
In the case of: 
N.V. VOGEL IMPORT EXPORT, KBO 0882.538.959, having its registered 
office at 2000 Antwerp [Belgium], … 
applicant, 
… 
v: 
BELGISCHE STAAT (BELGIAN STATE), in the person of the Minister van 
Financiën (Minister for Finance), with its offices at 1000 Brussels [Belgium], … 
defendant, 
… [procedural background] 
 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 1. 2020 — CASE C-62/20 
 
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I. FACTS 
1. On 30 October 2017, the company DKM Customs submitted an application 
for binding tariff information on behalf of the applicant for an article with the 
trade name ‘IPE Decking FAS (Profile S4S Surface 4 Sides — E4E Eased 4 
Edges)’, namely, boards of Ipé wood which were planed along each side and all 
four corners of which were rounded (eased) along the entire length of the board.  
‘S4S E4E’ stands for Surfaced 4 Sides — Eased 4 Edges. Surfaced timber is 
planed timber (geschaafd). The ‘eased’ means rounded. S4S E4E thus means that 
the wood is planed along the four sides and that the four corners are rounded.  
The result of there being those four rounded corners is that there is no longer a 
rectangular cross-section. The rounding is applied over the entire length of each 
corner. In order to be able to make that ‘E4E’ profile, blades specially made for 
that purpose have to be mounted onto the planing bench. The four sides of the 
wood are worked and a smooth rounding is applied over the entire length of the 
board. 
4. On 7 December 2017, Binding Tariff Information decision (‘BTI decision’) 
BE BTI D.T. 305.701 was issued to the applicant for ‘Planed boards with an 
almost rectangular cross-section and slightly rounded long sides which do not 
facilitate assembly (neither tongued nor grooved or V-jointed), made of Ipé 
(according to specification). The boards have a thickness of 21 mm, a width of 
145 mm and a length which varies between 1.82 and 4.53 m’. According to that 
BTI decision, the goods in question must be classified under commodity code 
4407 2983. 
5. The applicant, however, is of the view that the goods in question must be 
classified under commodity code 4409 2200. On 12 January 2018, supplemented 
on 21 December 2018, the applicant lodged an administrative appeal against that 
decision. 
6. By decision of the adviseur-generaal, departementshoofd — Hoofd van het 
Departement Geschillen (Adviser General, department head — Head of the 
Disputes Department), of 13 March 2019, reference D.C. 6003-010, that objection 
was rejected as unfounded.  
II. SUBJECT MATTER OF THE CLAIM 
7. The applicant’s claim, as formulated in its application, seeks to have the 
decision of the adviseur-generaal, of 13 March 2019, reference D.C. 6003-010, as 
well as the decision of 7 December 2017, reference BE BTI D.T. 305.701, 
‘annulled and/or declared null and void, or at least to obtain a declaration that no 
legal consequences whatsoever may be attached to them’.  
VOGEL IMPORT EXPORT 
 
3 
8. By heads of agreement lodged at the hearing of 20 December 2019, the 
parties request by common accord to refer the following questions to the Court of 
Justice of the European Union for a preliminary ruling: 
‘1) Should the [Combined Nomenclature] — in the light also of the various 
language versions of tariff heading 4409 and the HS Explanatory Notes to 
tariff headings 4407 and 4409 — be interpreted as meaning that the goods 
which are the subject of the main proceedings, namely, planed wooden 
boards the four corners of which have been rounded over the entire length 
of the board, are to be regarded as being ‘continuously shaped’ and 
accordingly should be classified under tariff heading 4409 or can the 
rounding of the corners not be regarded as being ‘continuously shaped’ and 
should the goods therefore be classified under tariff heading 4407?  
2) Is the size of the rounding determinative for classification under tariff 
heading 4407 or tariff heading 4409?’ 
III. ASSESSMMENT 
III.1. Admissibility 
9. […][assessment of admissibility] The claim is […] admissible. 
III.2. Substance of the case 
III.2.1. Positions of the parties 
III.2.1.1. Position of the applicant 
10. The applicant is of the view that CN code 4407 2983 does not apply, but that 
the goods fall under heading 4409 and, more specifically, under CN code 
4409 2200. In that regard, it refers first to the general rules for the interpretation of 
the commodity codes listed in Part I, Section I, A, of Annex I to Regulation (EEC) 
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the 
Common Customs Tariff. It notes in the first place that tariff heading 4407 
contains a very broad description of wood and wood products (‘Wood sawn or 
chipped lengthwise, sliced or peeled, whether or not planed, sanded or end-
jointed, of a thickness exceeding 6 mm’), such that any sawn and/or planed board 
can be classified under that tariff heading. Tariff heading 4409 (‘Wood (including 
strips and friezes for parquet flooring, not assembled) continuously shaped 
(tongued, grooved, rebated, chamfered, V-jointed, beaded, moulded, rounded or 
the like) along any of its edges, ends or faces, whether or not planed, sanded or 
end-jointed’ contains a more detailed description. The wood that was the object of 
the application for a BTI decision is wood continuously shaped along any of its 
edges, ends or faces, such that both tariff headings could apply. On the basis of the 
provisions of Rule 3(a) of Part One, Section I, A, of Annex I to Regulation 
REQUEST FOR A PRELIMINARY RULING OF 17. 1. 2020 — CASE C-62/20 
 
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No 2658/87, the heading which provides the most specific description is to be 
preferred to headings providing a more general description. At the very least, by 
the application of rule 3(c), when goods cannot be classified by reference to 3(a) 
or (b), they must be classified under the heading which occurs last in numerical 
order.  
11. The applicant states that the boards in question are continuously shaped, in 
that they are rounded. Boards rounded along their entire length can fall under 
commodity code 4409, as is explicitly shown in the French, English and German 
versions of these descriptions.  
12. According to the applicant, BTI decisions to that effect were moreover 
issued in other countries for identical goods (the applicant refers to BTI Ref. FR-
RTC-2015-002422, BTI Ref. NLRTD-2013-001482 and BTI Ref. DE11404/17-
1). A previous decision by the Belgian administrative authorities also ruled in that 
sense (the applicant refers to a decision of 7 June 2017, with reference number 
1140/2017/813/1267 D9896/17).  
III.2.1.2. Position of the defendant 
13. The administrative authorities are of the view that the goods in question 
must be classified under commodity code 4407 2983. General rule 3(a) of the 
previously cited rules on the interpretation of commodity codes does not apply. 
After all, the goods can be classified by the application of general rule 1. That rule 
states, inter alia, that, for legal purposes, classification is to be determined 
according to the terms of the headings and that the latter therefore take precedence 
over any other consideration. The rounding that was applied to the goods in 
question cannot be regarded as a continuous shaping. Indeed, the rounding does 
not serve to facilitate assembly.  
14. The claim that the goods must be classified under commodity code 
4407 2983 is supported by the Harmonised System Explanatory Notes (HS 
Explanatory Notes). Although those explanatory notes are not legally binding, it is 
the settled case-law of the Court of Justice that they are an important aid for 
interpreting the scope of the various tariff headings (see, inter alia, judgments of 
11 April 2019, X v Staatssecretaris van Financiën, C-288/18, paragraph 28; of 
13 September 2018, Vision Research Europe, C-372/17, paragraph 23, and of 
19 February 2009, Staatssecretaris van Financiën v Kamino, C-376/07, 
paragraph 47). The defendant maintains that the rounding was not applied to 
facilitate the assembly of the goods or for the manufacture of mouldings. The HS 
Explanatory Notes to heading 4407, however, clearly state that wood which is not 
of rectangular or square cross-section and wood with slightly rounded angles must 
also be classified under heading 4407. It therefore cannot be inferred from the 
goods’ objective characteristics and properties that the processing they have 
undergone is a further continuous shaping. Furthermore, wood with slightly 
rounded corners is classified under heading 4407.  
VOGEL IMPORT EXPORT 
 
5 
15. The defendant considers itself not to be bound by other BTI decisions, given 
that have only relative binding force (Article 33(2) DWU (Douanewetboek van de 
Unie; Union Customs Code)) and the BTI decisions from other European 
countries referred to by the applicant do not pertain to identical goods. 
16. Finally, the Belgian State notes that the issue of the tariff classification of 
the goods in question has already been submitted to the Comité Douanewetboek, 
afdeling tarief- en statistieknomenclatuur (Customs Code Committee, Tariff and 
Statistical Nomenclature Section). However, there appears to be no consensus 
within the Comité Douanewetboek on the correct tariff classification …. Inter alia 
point 7.14 of the minutes of the 202nd meeting of that Committee … refers to the 
various positions on this matter. 
III.2.2. Assessment 
17. As has been set out above in the positions of the parties, the discussion 
concerns the interpretation of commodity codes 4407 and 4409. The content of 
those commodity codes is set out in Regulation No 2658/87, as are the 
interpretation methods which are the subject of Annex I to that regulation. The 
discussion thus relates to the interpretation of EU law meaning that, by virtue of 
Article 19(3) of the Treaty on European Union and Article 267 of the Treaty on 
the Functioning of the European Union, it may be the subject of a question 
referred for a preliminary ruling to the Court of Justice of the European Union. 
18. Moreover, the presentation of the facts by the parties shows that there is no 
consensus at European level, either, on the interpretation of the relevant 
commodity codes with regard to the goods under discussion (see the reports of the 
Customs Code Committee). The Rechtbank also notes that there has apparently 
been no discussion between the parties on the nature of the goods described 
above. The discussion thus essentially addresses only the uniform interpretation of 
EU law, the assessment of which is the essence of a request for a preliminary 
ruling (see Recommendations to national courts and tribunals in relation to the 
initiation of preliminary ruling proceedings, Nos 1, 8 and 9, OJ C 380, 8/11/2019). 
The questions formulated by the parties should therefore be referred for a 
preliminary ruling.  
19. In addition, the Rechtbank finds that the current discussion exclusively 
involves a point of EU law, such that no other specific national provisions are 
relevant (Recommendations to national courts and tribunals in relation to the 
initiation of preliminary ruling proceedings, No. 16, OJ C 380, 8/11/2019, and 
Article 94 of the Rules of Procedure of the Court of Justice of 25 September 
2012). 
20. The interpretation of the Combined Nomenclature is essential for the 
resolution of the dispute, since it revolves around the issuing of a BTI decision in 
which the question of the scope and interpretation of the commodity codes cited is 
raised.  
REQUEST FOR A PRELIMINARY RULING OF 17. 1. 2020 — CASE C-62/20 
 
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21. The parties are in agreement on the questions to be referred for a preliminary 
ruling, and they are reproduced in essence. 
V. COSTS 
22. […] 
 
FOR THOSE REASONS, 
THE RECHTBANK, 
 
[…] [national procedural law aspects] 
Before ruling on the substance of the claim, refers the following questions to the 
Court of Justice pursuant to Article 19(3)(b) of the Treaty on European Union and 
Article 267 of the Treaty on the Functioning of the European Union: 
1) Should the Combined Nomenclature as is 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 — in the light also of the 
various language versions of tariff heading 4409 and the HS Explanatory 
Notes to tariff headings 4407 and 4409 — be interpreted as meaning that the 
goods which are the subject of the main proceedings, namely, planed 
wooden boards the four corners of which have been rounded over the entire 
length of the board, are to be regarded as being ‘continuously shaped’ and 
accordingly should be classified under tariff heading 4409 or can the 
rounding of the corners not be regarded as being ‘continuously shaped’ and 
should the goods therefore be classified under tariff heading 4407?  
2) Is the size of the rounding determinative for classification under tariff 
heading 4407 or tariff heading 4409? 
[…]Thus […] delivered […] on 17 January 2020. [closing formula] 
[…]