61981C0234
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 8 JULY 1982
My Lords,
The Commercial Court of the Queen's Bench Division of the High Court in England asks for a preliminary ruling, pursuant to Article 177 of the EEC Treaty, as to whether a product called “Corian” falls under heading 68.11 of the Common Customs Tariff which covers, inter alia, artificial stone, or under headings 39.02 C XII and 39.07 B V (d), which cover certain polymers and plastics, or under any other heading.
The question is referred in an action before the Commercial Court in which the first Plaintiffs are E. I. Du Pont de Nemours and Company, hereinafter called “Du Pont”, a corporation established and resident in Delaware, with a very substantial business in the manufacture and sale of products for domestic and industrial use. The second Plaintiffs are Dewfield, an unlimited company incorporated and resident in England, and trading as builders' merchants. “Corian” is the trade mark of a product manufactured by Du Pont and purchased by Dewfield for resale in the United Kingdom. Du Pont and Dewfield asked the Commercial Court to declare that Corian is properly to be classified under heading 68.11 of the Common Customs Tariff. The Commissioners of Customs and Excise, who are the Defendants in the proceedings before the Commercial Court, contend that the product is to be classified under heading 39.02 when imported in the form of sheets, and under heading 39.07 when imported in the form of articles made therefrom.
In the proceedings before this Court the Commission supports the contention of the Commissioners of Customs and Excise.
An agreed summary of the properties of Corian is succinctly and helpfully included in the order for reference. From this it appears that Corian is a nonstructural building material, represented by the manufacturers as having the appearance of marble. It has a wide range of applications in homes and hotels and commercial and public buildings. It is cast in slabs of various thicknesses and in the shapes of basins, sinks and similar items. These must be worked and finished by the installer. It is a solid, translucent, homogeneous material which cannot be moulded, vacuum-formed or heat-treated once it has been cast and set, but can be worked with tools such as saws or drills having carbide cutting edges. It is composed of two main elements, apart from catalytic and other curing agents. The first main element, comprising two-thirds of the product by volume (and apparently half by weight) is described by the Plaintiffs as gibbsite and by the Defendants as aluminium hydroxide. The latter, it seems, is a hydrate of alumina in crystal form, extracted by a chemical process from bauxite ore, as mined in Arkansas, USA. The second main element is a plastic material known as polymethyl methacrylate.
It was stated at the hearing before this Court that the patent covering “Corian” extends to products made with minerals other than gibbsite (or aluminium hydroxide). This case however, is concerned only with the product manufactured in accordance with the process described in the Order for Reference.
Headings 39.02 und 39.07 read:
“39.02:
Polymerization and copolymerization products (for example, polyethylene, polytetrahaloethylenes, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl chloroacetate and other polyvinyl derivatives, polyacrylic and polymethacrylic derivatives, coumarone-indene resins)...
C. ...
XII.
... methacrylic polymers
39.07:
Articles of materials of the kinds described in headings Nos 39.01 to 39.06.”
and heading 68.11 reads:
“Articles of cement (including slag cement), of concrete or of artificial stone (including granulated marble agglomerated with cement), reinforced or not.”
It is accepted that Corian can fall within this heading only if it is an “artificial stone”.
Corian, made as is described, cannot be said to be exclusively a “polymerization or copolymerization product”. On the other hand, one of its constituent parts (polymethyl methacrylate) is accepted to be a methacrylic polymer, which is specifically mentioned in heading 39.02 C XII. The other constituent or material used to make Corian (gibbsite or aluminium hydroxide) falls outside Article 39.
Rule 2 (b) of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff (hereafter called “the Interpretation Rules”) provides in part:
“Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance.”
Accordingly the reference in heading 39.02 to methacrylic polymers is to be taken to include a reference to Corian, and the reference in heading 39.07 to articles of methacrylic polymers is to be taken to include a reference to articles made of Corian. Prima facie then, Corian falls within headings 39.02 and 39.07.
Can it be said that Corian is also, prima facie, classifiable under some other heading or headings so that Rule 3 of the Interpretation Rules applies?
In view of Rule 2 (b) it must be considered whether Corian can be classified by reference to “gibbşite”, which the Plaintiffs say is the other element, or to aluminium hydroxide, which the Commissioners of Customs and Excise say is the other element. If the constituent is gibbsite, that seems clearly to be a metallic ore which at first glance falls under heading 26.01. Note 2 to the Chapter provides, however, that the heading does not include minerals which have been submitted to processes not normal in the metallurgical industry. The Commission's contention that the mineral was obtained by a process not normal to the metallurgical industry has not been challenged, and it is not asserted or shown that this gibbsite was obtained by such a process. Heading 26.01 does not in my view apply. If the constituent is aluminium hydroxide, which is expressly mentioned in heading 28.20, Corian is excluded therefrom by Note 1 (a) to the Chapter which provides (subject to immaterial exceptions) that the headings are to be taken to apply only to separate chemical elements and separate chemically-defined compounds, which Corian is not alleged to be.
There remains Article 68.11, on which the Plaintiffs rely, and in particular the item “artificial stone”. This phrase seen alone can be said as a matter of ordinary language to be wide enough to include any product which is not stone, but which looks like stone, has the attributes of stone and can be put to the uses to which stone is put. In the Common Customs Tariff that phrase must, however, be construed in its context, or in accordance with “the general plan of that heading” (Case 165/78, IMCOMichaelis v Oberfinanzdirektion Berlin [1979] ECR 1837 at p. 1844). It is also permissible to have regard to the meaning which the phrase has in the relevant trade or branch of science or technology and to the Explanatory Notes, which even though they cannot modify the clear meaning of the text otherwise ascertained, may be a helpful guide in interpreting the tariff headings (see Case 183/73, Osram v Oberfinanzdirektion [1974] ECR 477 at p. 486 und Case 54/79, Hako-Schuh v Hauptzollamt Frankfurt [1980] ECR 311 at p. 318).
Taking first the context, it seems that the other items in the heading (cement, concrete and granulated marble agglomerated with cement) would normally be understood to include elements of natural stone even if, as is suggested, it is today possible to find concrete without natural stone. That is some indication that “artificial stone” includes elements of natural stone. The trend of dictionary definitions produced to the Court, although not unanimous, supports the contention that in technical parlance, artificial stone includes as part of its composition natural stone. Thus, for example, Chambers' Dictionary of Science and Technology states that artificial stone as a building term means:
“a pre-cast imitation of natural stone made in block moulds. The interior of the block is of concrete, the required exterior face of cement mixed with dust or chippings of the natural stone to be imitated.”
Moreover, if “artificial stone” is not to be read in this limited way, it would embrace a very wide range of products many of which would consist wholly of synthetic materials. The result of customs officers' decisions is likely to be more precise and more consistent if the initial question is whether the product contains elements of natural stone as is contended by the Commission.
The Customs Cooperation Council's Explanatory Notes state that: “Artificial stone is an imitation of natural stone usually obtained by agglomerating pieces of natural stone (limestone, marble, granite, porphyry, serpentine, etc.) with lime or cement or other binders (e.g. artificial plastic material). Articles of artificial stone include those of ‘terrazzo’, ‘granito’, etc.”
The Plaintiffs place much stress on the word “usually” which they are entitled to argue, prima facie, indicates that there are other cases, exceptionally, which fall within this category. If, as is submitted, “usually” qualifies “agglomerating” then the notes do not help the Plaintiffs since the exceptions arise where other processes than “agglomerating” are used to unite the natural stone with a binder. If it does not do so, then I should not in any event regard the Explanatory Notes as expanding by the use of the word “usually” what is otherwise the correct approach. In my opinion (despite the arguments to the contrary) artificial stone in the heading includes only a substance containing elements of natural stone.
The Plaintiffs rely on decisions of the Court which stress the importance of looking at the characteristics and objective properties of the product. I would accept that feel, appearance, brittleness, translucence, homogeneous structure, durability, porosity and reaction to heat and flame are factors to be considered in deciding whether the product is artificial stone, and that in the present case these suggest the quality of stone rather than plastic. But as I see it these factors come into play only if the product first contains elements of natural stone.
Corian does not, it seems to me, contain elements of natural stone. Bauxite is a mineral-bearing ore rather than a stone, and the substance extracted from it, even if properly classified as gibbsite, is itself not stone. It is, it seems on the material before the Court, a crystalline mineral; aluminium hydroxide is a metallic oxide. On this basis, it seems to me that Corian does not fall under heading 68.11, so that Rule 3 of the Interpretation Rules does not have to be considered.
If on the other hand it is not necessary that a product should contain elements of natural stone before it can, for the purposes of the Common Customs Tariff, be classified as artificial stone, then I would accept that Corian falls prima facie within heading 68.11 for the reasons advanced by the Plaintiffs. Since I consider that it also falls, prima facie, within headings 39.02 and 39.07, it is necessary to apply the principle set out in Rule 3 of the Interpretation Rules. Rule 3 (a) provides that the heading providing the more specific description is to be preferred to the headings providing a more general description. I do not accept the Plaintiff's contention that the description given in heading 68.11 is more specific than that given in heading 39.02. The Plaintiffs can succeed only if the term “artificial stone”, in heading 68.11 is so broad as to encompass “any material which had the characteristics of an imitation of natural stone”, as the first Plaintiffs put it. That seems to me to open up the item in the heading to a wide range of products and to be a much less specific description than that to be found under heading 39.02.
Rule 3 (b) of the Interpretation Rules provides that mixtures which cannot be classified in accordance with Rule 3 (a) shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable. I derive no assistance from this principle in the present case; first because it is excluded whenever a material may be classified under Rule 3 (a) (as is the case here) and second because in any event it produces inconclusive results in this case. The first Plaintiffs emphasize the importance of gibbsite (or aluminium hydroxide) in contributing to the characteristics of Corian, observing that it is one of the costliest “fillers” available and only pure gibbsite from bauxite mined in Arkansas will produce the qualities of Corian. The Commission, on the other hand, contends that Corian derives its main characteristics (those of consistency, beauty, brilliance, transparency and durability to impact) from polymethyl methacrylate and that aluminium hydroxide serves simply as a filler. In my view, Corian derives its essential character from both of the main elements of which it is composed and it cannot be said that it derives its essential character only from one of them, namely gibbsite or aluminium hydroxide.
Accordingly I would still consider that Corian falls under heading 39.02 and 39.07 rather than heading 68.11.
In reaching this opinion I have not had regard to the differing results produced by the customs authorities of Member States, nor to the decisions of the Committee on Common Customs Tariff Nomenclature and of the Nomenclature Committee of the Customs Cooperation Council, to which the Court has been referred, although the latter clearly support the conclusion to which I have come.
For these reasons I am of the opinion that the questions posed by the Commercial Court should be answered as follows:
The product “Corian” (made as described in the Order for Reference) is to be classified under the heading 39.02 of the Common Customs Tariff when imported in the form of sheets and under heading 39.07 when imported in the form of articles made therefrom, and is not to be classified under any other heading of that Tariff.