CELEX: 62014CC0409
Language: en
Date: 2016-02-04 00:00:00
Title: Opinion of Advocate General Kokott delivered on 4 February 2016.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 4 February 2016 (
            1
         )
      
         Case C‑409/14
      
      
         Schenker Nemzetközi Szállítmányozási és Logisztikai Kft.
      
      
         v
      
      
         Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága
      
      
         (Request for a preliminary ruling from the Debreceni Közigazgatási és Munkaügyi Bíróság (Administrative and Employment Court, Debrecen, Hungary))
      
      ‛Common Customs Tariff — Tariff headings — Classification in the Combined Nomenclature — Directive 2008/118 — Importation of excise goods — Customs suspensive procedure — Effects of a customs declaration referring to an incorrect subheading of the Combined Nomenclature — Irregularities during the transport of excise goods’
      I – Introduction
      
      
               1.
            
            
               The basis of the reference for a preliminary ruling by the Debreceni Közigazgatási és Munkaügyi Bíróság (
                     2
                  ) (‘the national court’) is a dispute between Schenker Nemzetközi Szállítmányozási és Logisztikai Kft. (‘Schenker’) and Nemzeti Adó és Vámhivatal Észak-alföldi Regionális Vám és Pénzügyőri Főigazgatósága (
                     3
                  ) (‘the Regional Tax Directorate’).
            
         
               2.
            
            
               The context of this dispute is an overlap between European customs and excise laws, and for that reason it is necessary to work through the interrelation of these two areas of law.
            
         
               3.
            
            
               In essence, it concerns the question whether and, if so, in what circumstances can erroneous accompanying customs documents relating to goods acquired in the EU confer on the Member State in question a right to excise duty on those goods.
            
         II – Legal framework
      
      
               4.
            
            
               The classification of the goods in dispute in the main proceedings depends on the Harmonised System and the Combined Nomenclature. The legal framework for the other aspects of the dispute are constituted by the Community Customs Code, the directive concerning the general arrangements for excise duty, the directive on the structure and rates of excise duty applied to manufactured tobacco, and the Hungarian law on excise duty.
            
         A – The Harmonised System
      
      
               5.
            
            
               The International Convention on the Harmonised Commodity Description and Coding System (
                     4
                  ) (‘Harmonised System’, or ‘HS’) sets out a multi-functional nomenclature which is designed to be able to encompass all internationally traded goods. The Union is a Contracting Party to the convention, which is binding in English and French. (
                     5
                  )
            
         
               6.
            
            
               In Chapter 24 (Tobacco and manufactured tobacco substitutes) of Section IV, the HS contains certain headings and subheadings for certain goods.
            
         
               7.
            
            
               In addition, the World Customs Organisation publishes explanatory notes on the HS (‘Explanatory remarks’). Again, the French and English versions are authoritative. (
                     6
                  )
            
         B – Union law
      
      1. Combined Nomenclature
      
               8.
            
            
               The Combined Nomenclature in Regulation (EEC) No 2658/87 (
                     7
                  ) (‘Combined Nomenclature’ or ‘CN’) is based on the HS. It adopted the structure of the HS, but includes another subdivision which serves tariff and statistical purposes. The headings (the first four numbers) and the first level of subheadings (to the sixth number of the customs classification) are based on the HS. Further subheadings are based on secondary Union law.
            
         
               9.
            
            
               At the material time, (
                     8
                  ) Section 1 (General Rules) of Part I (Preliminary Provisions) of the Combined Nomenclature included the following provisions as regards its interpretation:
               ‘Classification of goods in the Combined Nomenclature shall be governed by the following principles:
               
                        1.
                     
                     
                        The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions:
                     
                  …
               
                        3.
                     
                     
                        When … goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
                        …
                        
                                 (b)
                              
                              
                                 Mixtures, composite goods consisting of different materials or made up of different components, … 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.
                              
                           
                  …’
            
         
               10.
            
            
               In Part Two (‘Schedule of Customs Duties’), Section IV (‘Prepared foodstuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes’), Chapter 24 (‘Tobacco and manufactured tobacco substitutes’), the Combined Nomenclature lists the following headings and subheadings:
               
                           CN code
                        
                        
                           Description:
                        
                        
                           Conventional rate of duty (%)
                        
                        
                           Supplementary unit
                        
                     
                           1
                        
                        
                           2
                        
                        
                           3
                        
                        
                           4
                        
                     
                           2401
                        
                        
                           Unmanufactured tobacco; Tobacco refuse
                        
                        
                            
                        
                        
                            
                        
                     
                           2401 10
                        
                        
                           Tobacco, not stemmed/stripped
                        
                        
                            
                        
                        
                            
                        
                     
                           2401 10 35
                        
                        
                           Light air-cured tobacco
                        
                        
                           11,2 MIN 22 € MAX 56 €/100 kg/net
                        
                        
                           —
                        
                     
                           …
                        
                        
                            
                        
                        
                            
                        
                        
                            
                        
                     
                           2401 30 00
                        
                        
                           Tobacco refuse
                        
                        
                           11,2 MIN 22 € MAX 56 €/100 kg/net
                        
                        
                           —
                        
                     
                           …
                        
                        
                            
                        
                        
                            
                        
                        
                            
                        
                     
                           2403
                        
                        
                           Other manufactured tobacco and manufactured tobacco substitutes; ‘homogenised’ or ‘reconstituted’ tobacco; tobacco extracts and essences
                        
                        
                            
                        
                        
                            
                        
                     Heading 2403 10 of the CN is, ‘Smoking tobacco, whether or not containing tobacco substitutes in any proportion’, and subheading 2403 10 10 is smoking tobacco, ‘In immediate packings of a net content not exceeding 500 g’. ‘Other’ smoking tobacco falls under CN subheading 2403 10 90.
            
         
               11.
            
            
               There are also Explanatory Notes relating to the headings and subheadings in the CN (‘the Explanatory Notes’). The Explanatory Notes to the CN refer in part to those relating to the HS and are therefore to be applied in conjunction with them. In the applicable version, the Explanatory Notes to Chapter 24 CN include the following points (
                     9
                  ) as regards heading 2401:
               ‘2401 Unmanufactured tobacco; Tobacco refuse
               As regards tobacco in the natural or unmanufactured state, see the HS Explanatory Notes to heading 2401, paragraph (1).
               It is to be noted that:
               …
               
                        (b)
                     
                     
                        “light air-cured” Burley type tobacco (including Burley hybrids) means tobacco which has been cured under natural atmospheric conditions and does not carry the odour of smoke or fumes if supplemental heat or air circulation has been applied; the leaves normally range from light tan to reddish colour. Other colours and combinations of colours frequently result from variations in maturity or cultural and curing techniques;
                     
                  …’
            
         
               12.
            
            
               As regards heading 2403, the Explanatory Notes contain inter alia the following classification remarks:
               ‘2403 Other manufactured tobacco and manufactured tobacco substitutes; …
               2403 10 10 and 2403 10 90 Smoking tobacco, whether or not containing tobacco substitutes in any proportion
               Smoking tobacco is tobacco which has been cut or otherwise split, twisted or pressed into blocks which can be smoked without further industrial processing;
               Tobacco refuse which is capable of being smoked and which is put up for retail sale is smoking tobacco if it does not meet the description of cigars, cigarillos or cigarettes (see the explanatory notes to subheadings 2402 10 00 and 2402 20 10 and 2402 20 90).
               …’
            
         2. Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code
      
               13.
            
            
               Regulation No 2913/92 (
                     10
                  ) (‘Customs Code’ or ‘CC’) combines general customs and customs procedure law. (
                     11
                  )
            
         
               14.
            
            
               Article 1 CC contains, inter alia, the following definition:
               ‘…
               
                        (13)
                     
                     
                        “Supervision by the customs authorities” means action taken in general by those authorities with a view to ensuring that customs rules and, where appropriate, other provisions applicable to goods subject to customs supervision are observed.
                     
                  …’
            
         
               15.
            
            
               The beginning and end of supervision by the customs authorities are provided for by Article 37 CC. In terms of that provision, goods brought into the customs territory of the Community shall, from the time of their entry, be subject to customs supervision and may be subject to customs controls.
            
         
               16.
            
            
               Articles 84 to 90 CC contain general provisions concerning suspensive arrangements and customs procedures with economic impact.
            
         
               17.
            
            
               Article 84 CC provides:
               ‘(1)   In Articles 85 to 90:
               
                        (a)
                     
                     
                        where the term “procedure” is used, it is understood as applying, in the case of non-Community goods, to the following arrangements:
                        
                                 —
                              
                              
                                 external transit;
                              
                           
                                 —
                              
                              
                                 customs warehousing;
                              
                           …’
                     
                  
         
               18.
            
            
               Article 91 CC provides that the ‘external transit procedure’ shall allow the movement from one point to another within the customs territory of the Community of, ‘non-Community goods, without such goods being subject to import duties …’.
            
         
               19.
            
            
               Article 201 to 216 CC make provision for the incurrence of a customs debt. In doing so, Articles 202 to 205 CC provide for the incurrence of a customs debt in certain instances of breaches of customs law.
            
         
               20.
            
            
               Article 202 CC provides:
               ‘1.   A customs debt on importation shall be incurred through:
               
                        (a)
                     
                     
                        the unlawful introduction into the customs territory of the Community of goods liable to import duties …
                     
                  2.   The customs debt shall be incurred at the moment when the goods are unlawfully introduced.
               …’
            
         3. Council Directive 2008/118/EC concerning the general arrangements for excise duty
      
               21.
            
            
               Directive 2008/118 (
                     12
                  ) makes arrangements for excise goods, in order to ensure the free movement of such goods and thus the proper functioning of the internal market in the European Union.
            
         
               22.
            
            
               According to the seventh recital of the directive, since suspensive procedures under customs laws provide for adequate monitoring pursuant to the Customs Code, ‘there is no need for the separate application of an excise monitoring system for the time that the excise goods are subject to a Community customs suspensive procedure or arrangement’.
            
         
               23.
            
            
               Article 1 of the directive provides that excise goods include, ‘manufactured tobacco covered by Directives 95/59/EC, 92/79/EEC and 92/80/EEC’.
            
         
               24.
            
            
               Article 2(b) of Directive 2008/118 provides that goods shall be subject to excise duty at the time of their importation into the territory of the Community.
            
         
               25.
            
            
               Article 4(8) of the directive defines ‘importation of excise goods’ as meaning their entry into the territory of the Community, ‘unless the goods upon their entry into the Community are placed under a customs suspensive procedure or arrangement, as well as their release from a customs suspensive procedure or arrangement’.
            
         
               26.
            
            
               Under Article 4(6) of the directive ‘customs suspensive procedure or arrangement’ means ‘any one of the special procedures as provided for under [the Customs Code] relating to the customs supervision to which non-Community goods are subjected upon their entry into the Community customs territory, temporary storage, free zones or free warehouses, as well as any of the arrangements referred to in Article 84(1)(a) of [the Customs Code]’.
            
         
               27.
            
            
               Article 7 of Directive 2008/118 provides for the time and place of chargeability to excise duty, and provides:
               ‘1.   Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.
               2.   For the purposes of this Directive, “release for consumption” shall mean any of the following:
               …
               
                        (b)
                     
                     
                        the holding of excise goods outside a duty suspension arrangement where excise duty has not been levied pursuant to the applicable provisions of Community law and national legislation;
                     
                  …
               
                        (d)
                     
                     
                        the importation of excise goods, including irregular importation, unless the excise goods are placed, immediately upon importation, under a duty suspension arrangement.
                     
                  …’
            
         
               28.
            
            
               Article 38 of Directive 2008/118 resolves potential conflicts between the Member States concerning taxing power where there have been irregularities during the transport of excise goods and provides:
               ‘1.   Where an irregularity has occurred during a movement of excise goods … in a Member State other than the Member State in which they were released for consumption, they shall be subject to excise duty and excise duty shall be chargeable in the Member State where the irregularity occurred.
               …
               4.   For the purposes of this Article, “irregularity” shall mean a situation occurring during a movement of excise goods … due to which a movement, or a part of a movement, of excise goods has not duly ended.’
            
         4. Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco
      
               29.
            
            
               Directive 2011/64 (
                     13
                  ) codifies Directives 92/79, 92/80 and 95/59, to which Article 1 of Directive 2008/118 refers in relation to manufactured tobacco. It contains inter alia definitions of the different types of manufactured tobacco.
            
         
               30.
            
            
               According to Article 2 of Directive 2011/64, ‘manufactured tobacco’ includes amongst other things ‘smoking tobacco’. Article 5 of Directive 2011/64 defines the term ‘smoking tobacco’ and includes in it tobacco which has been cut or otherwise split, twisted or pressed into blocks and is capable of being smoked without further industrial processing. Smoking tobacco in which more than 25% by weight of the tobacco particles have a cut width of less than 1.5 millimetres is deemed to be fine-cut tobacco for the rolling of cigarettes.
            
         III – Main proceedings
      
      
               31.
            
            
               Schenker provides customs and logistics services. On 21 January 2011 the undertaking was engaged by a company registered in Hungary to take four consignments of tobacco into temporary storage.
            
         
               32.
            
            
               The consignments of tobacco entered the territory of the European Union in Slovenia and their destination was Ukraine.
            
         
               33.
            
            
               According to the accompanying documents the consignments reached Hungary in an external Community transit procedure. In the customs documents, the goods were classified under CN subheading 2401 10 35 (Tobacco not stemmed/stripped — Light air-cured tobacco) and were not declared as excise goods.
            
         
               34.
            
            
               The tobacco was temporarily stored by Schenker, and thereafter was stored in a public customs warehouse.
            
         
               35.
            
            
               On 20 April 2011 the administrative authorities had the consignments searched and established that they contained cut tobacco. On 5 May 2011 a sample was taken from the goods and it was examined.
            
         
               36.
            
            
               According to the national court, it consisted of cut tobacco of various sizes of light and dark brown colour, finely ground and having the characteristic odour of manufactured tobacco, contained a large amount of granules with a relatively large and wide diameter, in which stem refuse was also present, and also tobacco in powder form. More than 25% by weight of the tobacco particles had a cut width of less than 1 millimetre.
            
         
               37.
            
            
               Altogether, the investigating expert institute established that the sample was ‘smokable tobacco’. The tobacco was, ‘loose, pressed, and packed in plastic-wrapped cartons’, with the net weight of each carton being 30 kg.
            
         
               38.
            
            
               On the basis of these examination results, the administrative authority concluded that the tobacco in question had to be classified under CN subheading 2403 10 90, and was liable to excise duty. The incorrect classification of the goods in the accompanying documents meant that these did not count as evidence of the origin of the goods or of the fact that the goods were being transported in a suspensive procedure.
            
         
               39.
            
            
               On 21 June 2011 the administrative authority imposed a fine on Schenker. The undertaking had breached Hungarian excise duty law, in that it stored excise goods without having proved their origin and without having paid the appropriate duty.
            
         
               40.
            
            
               After the decision was confirmed by the Regional Finance Directorate on 28 March 2012 Schenker appealed to the national court.
            
         
               41.
            
            
               The national court has doubts as regards the interpretation of CN subheading 2401 10 35 and the correct classification of the tobacco in question. In addition, it asks whether an accompanying document may suffice as proof that the goods are being transported in a suspensive procedure even if it includes an incorrect tariff heading.
            
         IV – Reference for preliminary ruling
      
      
               42.
            
            
               Accordingly, the national court referred the following questions to the Court of Justice for a preliminary ruling:
               
                        ‘(1)
                     
                     
                        Must the description of customs goods as “Light air-cured tobacco” in accordance with CN subheading 2401 10 35 of Chapter 24 “tobacco and manufactured tobacco substitutes” in Annex I to Regulation No 861/2010 be interpreted as meaning that it includes only air cured tobacco, not stemmed/stripped …
                        
                                 —
                              
                              
                                 which contains the whole leaves of the tobacco plant,
                              
                           
                                 —
                              
                              
                                 which is not cut, pressed or compacted,
                              
                           
                                 —
                              
                              
                                 which is not permitted, as light air cured tobacco not stemmed/stripped under CN subheading 2401 10 35, to undergo any other form of processing (for example, removal of stems, cutting or compacting of leaves) apart from processing consisting in air curing,
                              
                           
                                 —
                              
                              
                                 which is not for smoking?
                              
                           
                  
                        (2)
                     
                     
                        Must the concept of “suspensive customs procedure” in Article 4(6) of Directive 2008/118 be interpreted as meaning that it also covers the case of customs goods (excise goods) in external transit, in temporary storage or in customs storage under accompanying documents in which the tariff heading is incorrectly stated (CN 2401 10 35 instead of CN 2403 10 9000), but the relevant chapter (Chapter 24 — tobacco) and all the other data in those documents (container number, quantity, net weight) are correct and the seals are not broken?
                        (In other words, it must be determined whether particular products can be under a suspensive customs procedure when the chapter of the Common Customs Code is indicated correctly in its accompanying documents but the specific tariff heading is incorrect?)
                     
                  
                        (3)
                     
                     
                        Must the concept of “importation” in Article 2(b) of Directive 2008/118 and the concept of “importation of excise goods” in Article 4(8) of that directive be interpreted as meaning that they also cover the case where the tariff heading of the actual goods in external transit and the tariff heading stated in the accompanying documents is different, while, apart from that disparity, both the indication of the chapter (in the present case, Chapter 24 — tobacco) and the quantity and net weight of the actual goods correspond to the data given in the accompanying documents?
                     
                  
                        (4)
                     
                     
                        Do the irregularities referred to in Article 38 of Directive 2008/118 include a situation where goods are under a suspensive customs arrangement and there is an incorrect CN code under Annex I to Regulation No 2658/87, as amended by Regulation No 861/2010, in the accompanying documents?’
                     
                  
         V – Legal analysis
      
      A – The first question
      
      1. Interpretation of the first question
      
               43.
            
            
               In the first place, it is to be observed that the task of the Court of Justice in a preliminary ruling procedure in the field of classification for customs tariff purposes is not to determine the correct classification of the goods in the CN. Instead, the Court of Justice provides the national court with the criteria by reference to which it may itself correctly classify the goods in dispute in the main proceedings in the CN. (
                     14
                  )
            
         
               44.
            
            
               In this connection it is the task of the Court of Justice to provide a relevant answer to the national court, in order that it can make a decision in the main proceedings. To that end, the Court may have to reformulate the questions referred to it. (
                     15
                  )
            
         
               45.
            
            
               In the present case, it may be inferred from the decision by the national court making the reference that by its first question it does not want merely to know how CN subheading 2401 10 35 is to be interpreted. Instead, it wants also to know how CN headings 2401 to 2403 are to be interpreted for the purpose of classifying a product which has the features of the goods in dispute.
            
         2. Criteria for classification of goods in the Combined Nomenclature
      
               46.
            
            
               As I explained in my Opinions in Ikegami, Algemene Scheeps Agentuur Dordrecht, Uroplasty and Turbon International, (
                     16
                  ) the correct approach to classifying commodities in the Combined Nomenclature is as follows.
            
         
               47.
            
            
               First, the goods to be classified must be analysed by reference to their intended purpose and their material properties. Next, in the light of the wording of the headings of the relevant sections and chapters a provisional classification must be undertaken according to the article’s intended use and material composition. There must then be considered whether on a combined examination of the wording of the headings and the explanatory notes to the relevant sections and chapters a definitive classification may be reached. If not, then in order to resolve the conflict between the competing provisions recourse must be had to the general rules of the CN. Lastly, classification must be made under the subheadings.
            
         
               48.
            
            
               In this exercise the wording of the headings and the explanatory notes of the CN are to be interpreted, so far as possible, so as to be consistent with the Harmonised System. The Explanatory Notes to the HS and the CN are intended to ensure the uniform application of the Common Customs Tariff, and thus are a valid aid to the interpretation of individual tariff headings, notwithstanding that they are not legally binding. (
                     17
                  ) According to the case-law of the Court, given that they are not legally binding, it is necessary, where appropriate in the context of checking a primary conclusion, to consider whether their content is in accordance with the actual provisions of the nomenclature and does not alter their scope of application. (
                     18
                  )
            
         3. Application of these criteria to the present case
      a) Assessment of the goods according to their material composition and intended use
      
               49.
            
            
               According to the national court, the disputed goods are cut tobacco of different sizes. The sample which was examined consisted principally of fine, long threads, contained in addition a large amount of granules with a relatively broad diameter, in which tobacco refuse was also present, and also tobacco in powder form. 25% by weight of the tobacco particles had a cut width of less than 1 millimetre.
            
         
               50.
            
            
               As regards its material composition, the disputed tobacco has thus been subjected to an industrial process. In other words, the goods are not dried tobacco leaves in their natural state. The tobacco has already been extensively stemmed, stripped, that is the leaf veins have been removed, and cut.
            
         
               51.
            
            
               The intended use of an article is to be determined by recourse to objective criteria. (
                     19
                  )
            
         
               52.
            
            
               In that regard the national court states that the sample was ‘smokable tobacco’. (
                     20
                  ) In the absence of any contrary details, the description given by the national court therefore permits the conclusion that the goods are already intended for consumption and not necessarily for further processing.
            
         
               53.
            
            
               To the extent that the sample contains granules, in which stem refuse is also present, the intended use cannot be ascertained with certainty. According to the available information it is possible that the granules can be used to produce smoking tobacco, but also that they will disposed of as tobacco refuse.
            
         b) Classification according to the wording of the headings
      
               54.
            
            
               Chapter 24 of the CN, which applies to tobacco, includes headings 2401 to 2403. Whereas unmanufactured tobacco and tobacco refuse are classified within CN heading 2401, the other headings cover manufactured tobacco in the form of cigars, cigarillos and cigarettes (2402 CN) and other forms (2403 CN).
            
         
               55.
            
            
               On the basis of their wording, in view of the material composition of the tobacco, CN headings 2401 and 2403 fall to be considered.
            
         
               56.
            
            
               On its wording, CN heading 2401 covers two alternatives, namely goods having the qualities ‘unmanufactured tobacco’ and ‘tobacco refuse’.
            
         i) Concept of unmanufactured tobacco
      
               57.
            
            
               The CN itself does not contain any clear indication as to the point from which there exists ‘manufacture’ which excludes classification under CN heading 2401. (
                     21
                  ) However, the existence of CN subheading 2401 20, which includes within CN heading 2401 tobacco which has been ‘partly or wholly stripped’, proves that not every process removes the quality of being ‘unmanufactured’.
            
         
               58.
            
            
               On that basis, the corresponding Explanatory Notes to the Combined Nomenclature are to be referred to in interpreting CN heading 2401.
            
         
               59.
            
            
               In relation to ‘unmanufactured tobacco’, the Explanatory Notes concerning CN heading 2401 refer to number 1 of the Explanatory Notes concerning HS heading 2401. In its authoritative French and English versions, it contains the following classification points as regards the term ‘unmanufactured tobacco’:
               ‘Le tabac à l’état naturel sous forme de plantes entières ou de feuilles et les feuilles séchées ou fermentées, ces feuilles pouvant être entières ou écôtées, rognées ou non, brisées ou découpées même sous une forme régulière, mais à la condition qu’il ne s’agisse pas d’un produit prêt à être fumé.’ (
                     22
                  )
               ‘Unmanufactured tobacco in the form of whole plants or leaves in the natural state or as cured or fermented leaves, whole or stemmed/stripped, trimmed or untrimmed, broken or cut (including pieces cut to shape, but not tobacco ready for smoking).’ (
                     23
                  )
            
         
               60.
            
            
               From this it may be inferred that the dividing line between manufactured and unmanufactured tobacco depends on whether it is in a state in which it may be described as ‘prêt à être fumé’ or ‘ready for smoking’. If, as in the main proceedings, the latter is the case, classification under CN heading 2401 (‘Unmanufactured tobacco’) is excluded.
            
         
               61.
            
            
               Given that the disputed tobacco does not fall under CN heading 2401, it cannot be classified under CN subheading 2401 10 35, which the national court asks about in connection with the description ‘light air cured’ tobacco. This is because the first and second subheadings must share all the features of the primary tariff heading.
            
         
               62.
            
            
               There are no indications either submitted or apparent which support the proposition that the content of the Explanatory Notes to the CN, on which this conclusion is based, might not be compatible with the provisions of the Common Customs Code or could change their scope. (
                     24
                  )
            
         ii) Concept of tobacco refuse
      
               63.
            
            
               Nor can the disputed tobacco be classified within the second alternative of CN heading 2401 (‘tobacco refuse’).
            
         
               64.
            
            
               Admittedly, according to the details given by the national court the goods contain a large amount of granules, in which waste from stems is present. Such a component of goods is in principle capable of being classified under CN heading 2401. According to the corresponding Explanatory Notes, (
                     25
                  ) the term ‘tobacco waste’ includes inter alia leaf stems and dust resulting from the processing of the leaves or the manufacture of tobacco products.
            
         
               65.
            
            
               However, it does not follow from this that the disputed goods as a whole are to be classified under CN heading 2401.
            
         
               66.
            
            
               The treatment of mixed substances which fall under different headings of the CN depends on its General Provisions (‘GP’). According to them, the goods are to be classified by reference to the material which gives them their essential character (GP, 3(b)).
            
         
               67.
            
            
               The details given by the national court (‘the sample which was tested consisted principally [ (
                     26
                  )] of fine, long strands’) supports an assumption that the goods were given their essential character by the tobacco content which was ready to smoke.
            
         
               68.
            
            
               However, that is ultimately for the national court to determine.
            
         
               69.
            
            
               On that basis, once CN headings 2401 and 2402 (
                     27
                  ) have been excluded in relation to it, tobacco which has the features displayed by the disputed goods are to be regarded as ‘other manufactured tobacco’, and to be classified under CN heading 2403.
            
         c) Classification according to the wording of the subheadings
      
               70.
            
            
               It is first to be observed that as a whole the goods are ‘smoking tobacco’ within the meaning of the first CN subheading 2403 10. Accordingly, classification under the other criteria which are brought together under the heading description ‘other’ (2403 91 00, 2403 99 CN) is precluded.
            
         
               71.
            
            
               Then, on the wording of the further CN subheadings 2403 10 10 and 2403 10 90 the dividing line between them depends on whether the goods are, ‘in immediate packings not exceeding a net content of 500 g’ (subheading 2403 10 10).
            
         
               72.
            
            
               According to the details provided by the national court, the goods were, ‘loose, pressed, and packed in plastic-wrapped cartons’, and the ‘net weight of a carton was 30 kg’, and the goods were therefore to be classified under CN subheading 2403 10 90.
            
         4. Conclusion on the first question
      
               73.
            
            
               On that basis, the answer to be given to the national court’s first question is that goods which may be used as smoking tobacco without further processing, such as those in dispute in the main proceedings, are not to be regarded as ‘“light air-cured” tobacco’ within CN subheading 2401 10 35, but, if they do not essentially consist of tobacco refuse, they are to be regarded as ‘other manufactured tobacco’ and classified under CN heading 2403. Furthermore, if the goods are loose, pressed, and packaged in plastic-wrapped cartons of a net weight of 30 kg, they are to be classified under CN subheading 2403 10 90.
            
         B – The second and third questions
      
      
               74.
            
            
               The second and third questions concern the interpretation of Directive 2008/118, which makes general arrangements for charging excise duty on certain goods. They are to be considered together and in essence concern the interpretation of the terms ‘importation’ and ‘suspensive procedure’ for the purposes of that directive.
            
         
               75.
            
            
               In that regard the national court seeks guidance as to whether the term, ‘customs suspensive procedure’ — if such a procedure was on foot in the main proceedings, no fine may be levied under Hungarian law — within Article 4(6) of Directive 2008/118 includes also cases in which, as in the main proceedings, accompanying documents of goods state an incorrect tariff heading, or whether such cases are to be regarded as ‘importation’ (Article 2(b)) or ‘importation of excise goods’ (Article 4(8)) within the meaning of this directive.
            
         
               76.
            
            
               While the questions relate to Directive 2008/119, on the facts they arise at the intersection of excise and customs law. For that reason, it is sensible to begin by elucidating the relationship between these two sets of legislation.
            
         1. Customs and excise law
      
               77.
            
            
               Legislative and taxing power in the field of customs have been almost completely transferred to the Union. At European level, customs law is based on Articles 28 to 37 TFEU and consists inter alia of the Customs Code, related implementation provisions and the Combined Nomenclature. Union law fixes inter alia uniform rates of customs duty which are charged at the EU’s external borders.
            
         
               78.
            
            
               Excise duties, which are national levies, are to be distinguished from customs liabilities. They are charged on the consumption of certain goods, such as for example tobacco, and are levied on the manufacturer or trader of the goods as indirect taxes.
            
         
               79.
            
            
               Notwithstanding that legislative and taxing powers in the area of excise duties remain with the Member States, within the framework of the creation of the single market national excise duty law has been harmonised by directives to a certain extent. In contrast to customs duties, rates of excise duty are different in the Member States. (
                     28
                  )
            
         2. Excise duty under Directive 2008/118
      
               80.
            
            
               Articles 1, 2 and 7 of Directive 2008/118 harmonise the requirements for the incurrence of a liability to excise duty.
            
         
               81.
            
            
               Article 1(1)(c) of Directive 2008/118 provides that excise duty is levied on the consumption of manufactured tobacco covered by Directive 2011/64. (
                     29
                  )
            
         
               82.
            
            
               Articles 1 to 5 of Directive 2011/64 set out the tobacco goods which it covers. The question of whether tobacco as described by the national court is covered by the directive and is therefore liable to excise duty has to be answered independently of the answer to the first question. In that regard the determinative element is not the Combined Nomenclature, but Directive 2011/64.
            
         
               83.
            
            
               According to the details provided by the national court, the object of the present case is ground tobacco which is suitable for smoking without further industrial processing and which is more than 25% by weight composed of tobacco pieces having a diameter of less than 1.5 millimetres. Tobacco with these characteristics falls within Directive 2011/64 (
                     30
                  ) as ‘fine-cut tobacco for the rolling of cigarettes’, and thus also within the excise duty Directive 2008/118.
            
         
               84.
            
            
               Then, Article 2(b) of Directive 2008/118 provides that excise goods become subject to excise duty at the time of their ‘importation’ into the territory of the Union.
            
         
               85.
            
            
               Article 4(8) of Directive 2008/118 defines the ‘importation of excise goods’ as entry into the territory of the Union, ‘unless the goods upon their entry … are placed under a customs suspensive procedure or arrangement …’.
            
         
               86.
            
            
               The goods in dispute in the main proceedings entered the territory of the Union across the Slovenian border. Therefore, clarification is required as to whether, as at that point in time, they were placed under a customs suspensive procedure or arrangement. If they were, there was no importation (
                     31
                  ) and it would follow that there was also no liability to excise duty.
            
         
               87.
            
            
               Accordingly, it depends on what counts as a suspensive procedure within the meaning of the directive in question.
            
         
               88.
            
            
               According to the definition in Article 4(6) of Directive 2008/118, (
                     32
                  ) a customs suspensive procedure or arrangement is ‘any one of the special procedures as provided for under [the Customs Code] relating to the customs supervision to which non-Community goods are subjected upon their entry into the Community customs territory, temporary storage, free zones or free warehouses, as well as any of the arrangements referred to in Article 84(1)(a) of [the Customs Code]’. The last of these four possibilities include transit and customs warehousing.
            
         
               89.
            
            
               Schenker submits (
                     33
                  ) that customs supervision within Article 37 CC also falls within this definition (see below, section a). By contrast, the other parties submit that it depends on whether the goods have been properly placed in temporary storage, or placed in external transit and customs warehousing in accordance with the applicable provisions (see below, section b).
            
         a) Customs supervision as a suspensive procedure within the meaning of Directive 2008/118
      
               90.
            
            
               It is necessary to decide whether, on the facts of the main proceedings, one can proceed on the basis at all that there was any customs supervision, and, if there was, to consider whether this establishes a suspensive procedure which precludes liability to excise duty, on the basis that it is a, ‘special procedure relating to customs supervision’.
            
         i) Existence of customs supervision in the main proceedings
      
               91.
            
            
               Article 4(13) CC provides that supervision by the customs authorities means all action taken in general by those authorities with a view to ensuring that customs rules and, where appropriate, other provisions applicable to goods subject to customs supervision are observed.
            
         
               92.
            
            
               In the present case, pursuant to Article 37(1) CC it commenced at the time of the physical act of the goods being introduced into the customs territory. A possibly incorrect classification of the goods does not preclude this. Specifically, the commencement of customs supervision does not depend on whether the goods have been introduced into the territory of the Union in accordance with applicable provisions. (
                     34
                  )
            
         
               93.
            
            
               In addition, customs supervision did not end under Article 37(2) CC. This is because in the case of non-Union goods it continues until their customs status is changed from non-Union goods to Union goods, they enter a free zone or free warehouse or they are re-exported or destroyed. (
                     35
                  ) None of these obtains in the present case. (
                     36
                  )
            
         
               94.
            
            
               Nor were the goods removed from customs supervision, (
                     37
                  ) as it was at all times physically and legally possible for the authorities to implement customs measures and they indeed did so in Hungary.
            
         
               95.
            
            
               Thus, there is to be considered whether the customs supervision relating to the goods is a ‘special procedure relating to customs supervision’ for non-Union goods within the meaning of Article 4(6) of Directive 2008/118.
            
         ii) Concept of ‘special procedures relating to customs supervision’
      
               96.
            
            
               The words, ‘besonderes Verfahren’ in the German version of Article 4(6) of Directive 2008/118 give rise to doubts as to whether this can have been intended to include also customs supervision under Article 37 CC.
            
         
               97.
            
            
               Specifically, the term ‘besonderes’ immediately makes one think that the legislature intended to encompass not all but only some customs supervision procedures within the concept of special procedures, though this leaves it unclear which supervision procedures were meant.
            
         
               98.
            
            
               On the other hand, the phrase, ‘upon their entry into the Community customs territory’ in Article 4(6) of the directive indicates that the provision is linked to the physical act of crossing the border which commences customs supervision, and that the suspension of excise duty is not intended to start only with subsequent entry into a customs procedure.
            
         
               99.
            
            
               A comparison of the wording of Article 4(6) of Directive 2008/118 in the various official languages of the Union does not give a clear picture. Whereas most versions use formulations which are comparable with the German, (
                     38
                  ) the Spanish for example does not include any restriction to ‘besondere’ procedures for customs supervision. (
                     39
                  )
            
         
               100.
            
            
               Nor does the legislative history of the provision give any indication as to whether the legislature’s intention was that customs supervision should count as a ‘special procedure for customs supervision’. The Commission’s original proposal did not contain the word ‘special’. Instead, according to it, ‘any one of the arrangements as provided for under [the Customs Code] relating to the customs supervision to which non-Community goods are subjected upon their entry into the Community customs territory’ are suspensive procedures. (
                     40
                  ) The subsequent history of the provision does not give any indication as to whether and, if so, to what extent the later insertion of the adjective ‘special’ in numerous language versions was or was not intended to restrict suspensive effect as regards excise duty.
            
         
               101.
            
            
               On the basis of this terminological uncertainty, the meaning of the term in question is to be ascertained by reference to systematic and teleological considerations. These support a broad interpretation of the term.
            
         
               102.
            
            
               In order that the requirement of ‘special procedures for customs supervision’ within the framework of Article 4(6) of Directive 2008/118 retains an independent scope of application which is relevant in practice, it must be capable of being distinguished from the other instances referred to in the provision which are each capable of constituting a suspensive procedure — ‘temporary storage, free zones or free warehouses, as well as any of the arrangements referred to in Article 84(1)(a) of [the Customs Code]’.
            
         
               103.
            
            
               The second procedure, ‘temporary storage’ begins with the presentation of the goods (
                     41
                  ) and ends with receipt of a customs-approved treatment or use.
            
         
               104.
            
            
               Accordingly, it is consistent with the scheme of the provision that ‘special provisions relating to customs supervision’ within the meaning of the first possibility referred to in Article 4(6) of Directive 2008/118 refers to the physical and legal acts from crossing the border until presentation, which are provided for in Articles 37 to 39 CC. These include customs supervision.
            
         
               105.
            
            
               The main point that supports the proposition that customs supervision under Article 37 CC constitutes a customs suspensive procedure is the seventh recital of Directive 2008/118, which sets out the aim pursued by the legislature.
            
         
               106.
            
            
               According to it, the directive is based on the premiss that, ‘suspensive procedures under [the Customs Code] provide for adequate monitoring whilst excise goods are subject to the provisions of [the Customs Code]’, (
                     42
                  ) and that there is therefore, ‘no need for the separate application of an excise monitoring system for the time that the excise goods are subject to a Community customs suspensive procedure or arrangement’.
            
         
               107.
            
            
               Suspending the liability to excise duty from the very moment the border is crossed would correspond to this basic intention of the legislature, to avoid duplication of (customs and excise duty) procedures. Specifically, from that moment the goods are already subject to customs supervision pursuant to Article 37 CC and there is no need (
                     43
                  ) for the separate application of an excise monitoring system.
            
         
               108.
            
            
               If customs supervision did not give rise to a suspensive procedure within the meaning of the directive, and if no liability to excise duty arose on crossing the border, the list of further procedures (
                     44
                  ) in Article 4(6) of the directive would be practically pointless in terms of establishing any suspensive effect on excise duty, because the liability to excise duty which arose on the introduction of the goods would not be extinguished by the subsequent placing of the goods in a suspensive procedure.
            
         
               109.
            
            
               It follows from that that pursuant to Directive 2008/118 suspensive effect as regards excise duty must arise as soon as, and as long as, the goods are subject to customs supervision under Article 37 CC.
            
         
               110.
            
            
               Accordingly, from the moment of their entry into the territory of the Union the disputed goods were subject to customs supervision, which is a ‘suspensive procedure’ within the meaning of Article 4(6) of Directive 2008/118, which has the consequence that, there being no importation within the meaning of Article 4(8) of the same directive, the goods did not become subject to excise duty under Article 2(b).
            
         
               111.
            
            
               If one accepts this conclusion, the factual situations set out in the second and third questions are deprived of any object: it would not be necessary to discuss the procedures individually listed there — temporary storage, external transit and customs warehousing — because given the fact that customs supervision already gives rise to a suspensive procedure which excludes liability to customs duty, they would be just as unimportant for the determinative question of liability to excise duty as the question concerning the relevance of inaccurate accompanying documents for the goods.
            
         
               112.
            
            
               However, on a subsidiary basis, in what follows I must still consider how the facts of the main proceedings would fall to be assessed if customs supervision were not in itself sufficient to conclude that there was a suspensive procedure in place which suspended liability to excise duty.
            
         
               113.
            
            
               The procedures referred to in the second question are to be considered, and it is necessary to determine whether the placing of the goods in temporary storage, the external transit to Hungary and the placing of them there into customs warehousing are called into question by the incorrect classification in the documents accompanying the goods. In that regard, according to the findings of the national court it is to be assumed that in the case of each of these procedures, the goods were marked with the (incorrect) CN tariff subheading 2401 10 35.
            
         b) Temporary storage, external transit and customs warehousing as suspensive procedures within the meaning of Directive 2008/118
      
               114.
            
            
               As already explained, under Article 2(b) of Directive 2008/118 goods become liable to excise duty on their importation, which according to Article 4(8) includes entry into the territory of the Union, unless the goods are placed under a customs suspensive procedure or arrangement. To that extent there is a parallel between excise duty and the customs debt which is linked to introduction.
            
         
               115.
            
            
               Article 4(6) of Directive 2008/118 in conjunction with Article 84(1)(a) CC provides that temporary storage, external transit and customs warehousing are ‘customs suspensive procedures or arrangements’ for the purposes of that directive.
            
         
               116.
            
            
               However, the requirements for goods to be in temporary storage, external transit or customs warehousing are not set out in Directive 2008/118. Accordingly, in that regard the provisions of the Customs Code must be applied. Whether giving an incorrect tariff heading leads to the creation of a liability to excise duty thus depends ultimately on whether the requirements of the Customs Code have been complied with.
            
         
               117.
            
            
               However, in that regard it is to be borne in mind that not every infringement of a provision of the Customs Code necessarily has the consequence that placing the goods into a suspensive procedure within the meaning of Article 4(8) of Directive 2008/118 fails, and thus a liability to excise duty arises. Instead, in the present case it depends on whether stating an incorrect tariff heading in the accompanying documents under Articles 202 to 205 CC gives rise to a customs debt.
            
         i) Temporary storage
      
               118.
            
            
               Article 50 CC states that until such time as they are assigned a customs-approved treatment or use, goods presented to customs are to have the status of goods in temporary storage.
            
         
               119.
            
            
               Presentation is regulated in Article 40 CC, and defined in Article 4(19) CC as the notification to the customs authorities of the arrival of goods at the customs office or at any other approved place.
            
         
               120.
            
            
               Article 202(1) CC provides that infringement of the obligation to present goods — by the unlawful introduction into the customs territory of goods liable to import duties — gives rise to a customs debt on importation.
            
         
               121.
            
            
               The obligation to present goods is satisfied first by notification of the arrival of goods at the customs office. In Papismedov, however, the Court, under reference to the former version Articles 43 and 45 CC, discerned a relationship between summary notification and regular presentation, and held that the obligation to present was infringed, ‘when the presentation … is accompanied by the lodging of a summary declaration or of a customs declaration which gives a description of the type of goods which bears no relation to reality’. (
                     45
                  )
            
         
               122.
            
            
               This relationship is expressly provided for by Article 186(1) of Regulation No 2454/93 (‘CC Implementation Regulation’). (
                     46
                  ) It provides that non-Community goods presented to customs shall be covered by a summary declaration for temporary storage, to be provided at the latest at the time of presentation.
            
         
               123.
            
            
               By contrast with the case of Papismedov, however, the false description (‘cookware’ instead of ‘cookware and cigarettes’) did not in the present case mislead as regards the true nature of a large part of the goods. In the present case, as regards a large part of the goods there was no complete failure in the notification of their arrival at the customs office. It is only the declaration of CN subheading 2401 10 35 that contradicts the actual facts, given that the goods are in truth to be classified under CN subheading 2403 10 90.
            
         
               124.
            
            
               Therefore, against this background the issue is whether the substantively incorrect statement of the tariff heading in a summary declaration for temporary storage in itself means that the goods are to be regarded as not having been presented, and that a customs and excise duty debt could thus arise.
            
         
               125.
            
            
               A summary declaration in relation to temporary storage is different as regards both content and purpose from a summary declaration relating to introduction, which is required to be made by Article 36a CC prior to the introduction of the goods into the customs territory, and from a customs declaration under Article 59 CC.
            
         
               126.
            
            
               Whereas the Customs Code and its implementation provisions require specific CN details to be given for entry and customs declaration, Article 186(1)(a) CCIP does not require the same for a summary declaration for temporary storage, but only that the customs authorities make provision for the details. For example, form 0306 issued by the German customs authorities does not contain any requirement to give the CN tariff heading.
            
         
               127.
            
            
               That matters cannot depend on the provision of the correct CN heading in the context of a summary declaration relating to temporary storage corresponds also to the purpose of the provisions governing it.
            
         
               128.
            
            
               A summary declaration relating to temporary storage is intended to enable the customs authorities to verify whether the goods are assigned a customs-approved treatment within the applicable time limit, (
                     47
                  ) and whether the goods which are temporarily stored are in fact being stored only at the places specified and under the conditions laid down therefor.
            
         
               129.
            
            
               It follows from this purpose that the incorrect statement of the tariff heading need not in itself preclude a valid presentation, provided that the goods are in essence correctly described in terms of their nature, the quantity of goods is correct, and the details as regards the packaging of the goods correspond to the facts. The question as to whether the details are sufficient in that regard does not depend on the correct statement of the relevant chapter of the CN. This is because the Combined Nomenclature sometimes includes goods of very different types within the same chapter. For example, Chapter 24, which is applicable in the present case, applies not only for tobacco refuse but also for cigars. Whether a description of the goods for the purposes of presentation and temporary storage is to be regarded as in essence correct must instead be assessed by reference to whether the details which are given as a whole enable an unambiguous attribution of the goods to the declaration.
            
         
               130.
            
            
               On the basis of the information available to the Court, it appears that on the facts in the main proceedings this was the case in relation to the presentation of the goods; but this is a matter to be assessed by the national court.
            
         
               131.
            
            
               In the absence of an infringement within the meaning of Article 202 CC, on their entry into Slovenia the goods in question would have been validly placed in a suspensive procedure under Article 4(6) of Directive 2008/118, so that importation occurred in terms of Article 2(b) of that directive and no liability to excise duty arose.
            
         
               132.
            
            
               However, there remains to be discussed whether, despite the incorrect tariff heading being stated, the goods which were stored temporarily were subsequently validly placed in external transit and were properly placed in customs warehousing in Hungary, and again no liability to excise duty thereby arose under Article 4(8) of Directive 2008/118.
            
         ii) Placing in external transit or customs warehousing
      
               133.
            
            
               Article 59(1) CC provides that all goods intended to be placed under a customs procedure shall be covered by a declaration for that customs procedure. Within the framework of this declaration, the tariff heading of the goods, together with the correct subheading, is to be declared. (
                     48
                  ) This applies equally for external transit and customs warehousing. The provision of an incorrect tariff heading infringes this obligation.
            
         
               134.
            
            
               However, it is to be observed that cases such as the present concern placing goods into a suspensive procedure, i.e. the question is whether importation duties are to be paid at all, and not the amount of such duties. In principle, all non-Community goods can be placed in external transit or customs warehousing without this depending on their tariff heading.
            
         
               135.
            
            
               In addition there must be taken into account that the tariff legislation is complex and depends not only on facts but also on legal evaluations. The correct interpretation and application of the heading in the Combined Nomenclature is regularly the subject of legal disputes and judicial decisions, as the present case indeed demonstrates. Not every error which occurs in that regard must needs be serious.
            
         
               136.
            
            
               In the present case, the goods were indeed incorrectly classified, but were not attributed with a CN heading that was completely alien to their nature. The heading given to them and the actual heading have broadly comparable characteristics. Even if one may expect a certain expertise in tariff classification of goods from transport and logistics undertakings such as Schenker, the present case does not involve an obviously and completely divergent mistaken classification.
            
         
               137.
            
            
               Nor does the possibility available in principle of applying in advance to the customs authorities for a binding tariff information under Article 12(1) CC and giving the goods a corresponding designation mean that every incorrect classification must give rise to a customs debt. Otherwise, Article 12 CC would result in goods transporters being forced even by the least uncertainty to make such an application. This would not be practicable for either the carrier or the customs authorities, as was indicated at the oral hearing, and would in addition be inconsistent with the purposes of Article 12 CC, which is primarily intended to provide an optional means of assistance to improve certainty as regards the customs treatment of goods by the customs authority.
            
         
               138.
            
            
               In addition, Article 65 CC, which enables errors in customs declarations to be corrected, would be largely devoid of purpose if merely providing an incorrect tariff heading in a customs declaration automatically gave rise to a customs debt.
            
         
               139.
            
            
               Accordingly, ultimately it does not appear justified to punish the provision of an incorrect tariff heading in a declaration relating to external transit or customs warehousing with the creation of a customs debt, provided that the goods are described essentially correctly.
            
         
               140.
            
            
               Even if the decision in this regard is for the national court, the available information indicates that the infringement was not sufficiently serious. (
                     49
                  ) In that case, suspensive effect pursuant to Article 4(8) of Directive 2008/118 continued during the introduction, and during storage in Hungary. In the absence of any ‘importation’ within the meaning of Article 2(b) of that directive, it would follow that no liability to excise duty arose.
            
         3. Result as regards the second and third questions
      
               141.
            
            
               On the basis of the foregoing, the answer to be given to the second and third question is that given that, from the time of their entry into the territory of the Union, the disputed goods were subject to customs supervision which counted as a ‘suspensive procedure’ within the meaning of Article 4(6) of Directive 2008/118, in the absence of their importation within the meaning of Article 4(8) of that directive they did not become liable to excise duty under Article 2(b) thereof, and despite the incorrect details in the accompanying documents no liability to excise duty arose. Article 4(6) of Directive 2008/118 is to be interpreted as meaning that notwithstanding the provision of an incorrect tariff heading goods may be regarded as having been placed in temporary storage, external transit or customs warehousing, and thus as in a ‘customs suspensive procedure or arrangement’, provided that the goods have been in essence correctly described in terms of their nature, and the quantity of goods as well as the details as regards their packaging correspond to the actual facts. If this is the case, then in the absence of importation within the meaning of Article 4(8) they have not become liable to excise duty pursuant to Article 2(b) of Directive 2008/118.
            
         C – The fourth question
      
      
               142.
            
            
               By its fourth question the national court asks, in essence, whether, for the purposes of Article 38 of Directive 2008/118, the term ‘irregularity’ is to be interpreted as encompassing cases in which goods have been given an incorrect tariff heading in the documents accompanying them.
            
         
               143.
            
            
               By contrast with Articles 2 and 7, Article 38 of Directive 2008/118 does not govern the occurrence of a liability to excise duty but resolves potential conflicts between different Member States as regards taxing power in relation to excise duty. Therefore, the interpretation of the term ‘irregularity’ is important only for the question as to which Member State has the power to levy excise duty, and not as regards the question of whether a liability to excise duty has arisen.
            
         
               144.
            
            
               Article 38(1) of Directive 2008/118 provides that where an irregularity has occurred during a movement of excise goods in a Member State other than the Member State in which they were released for consumption, they shall be subject to excise duty and excise duty shall be chargeable in the Member State where the irregularity occurred.
            
         
               145.
            
            
               In that connection, Article 38(4) of Directive 2008/118 defines ‘irregularity’ as a situation occurring during a movement of excise goods under Article 33(1) or Article 36(1), not covered by Article 37, (
                     50
                  ) due to which a movement of excise goods has not duly ended. (
                     51
                  )
            
         
               146.
            
            
               For the purposes of Directive 2008/118, there is a transport of excise goods if goods which have already been released for consumption in one Member State are held for commercial purposes (
                     52
                  ) in another Member State in order to be delivered or used there, or are purchased from another Member State and are dispatched or transported by the seller to there.
            
         
               147.
            
            
               So far as the facts of the present case are concerned, the requirements of Article 38(4) of Directive 2008/118 are not satisfied.
            
         
               148.
            
            
               In the first place, the goods were not released for consumption in Slovenia, but were in a suspensive procedure. Second, Schenker had not held the goods for commercial purposes in Hungary in order to be delivered or used there within the meaning of Article 33 of Directive 2008/118, but intended to transport them onwards to the Ukraine.
            
         
               149.
            
            
               Accordingly, ultimately one must agree with the Commission, Hungary and Schenker that the provision of an incorrect tariff heading in the present circumstances does not result in an irregularity falling within Article 38 of Directive 2008/118.
            
         VI – Conclusion
      
      
               150.
            
            
               In the light of all the foregoing, I propose that the Court answer the questions referred as follows:
               Goods which may be used as smoking tobacco without further processing, such as those in dispute in the main proceedings, are not to be regarded as ‘‘light air-cured’ tobacco’ within CN subheading 2401 10 35 of the Combined Nomenclature, but, if they do not essentially consist of tobacco refuse, they are to be regarded as ‘other manufactured tobacco’ and classified under CN heading 2403. Furthermore, if the goods are loose, pressed, and packaged in plastic-wrapped cartons of a net weight of 30 kg, they are to be classified under CN subheading 2403 10 90.
               Given that, from the time of their entry into the territory of the Union, the disputed goods were subject to customs supervision which counted as a ‘suspensive procedure’ within the meaning of Article 34(6) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, in the absence of their importation within the meaning of Article 4(8) of that directive they did not become liable to excise duty under Article 2(b) thereof, and despite the incorrect details in the accompanying documents no liability to excise duty arose. Article 4(6) of Directive 2008/118 is to be interpreted as meaning that notwithstanding the provision of an incorrect tariff heading goods may be regarded as having been placed in temporary storage, external transit or customs warehousing, and thus as in a ‘customs suspensive procedure or arrangement’, provided that the goods have been in essence correctly described in terms of their nature, and the quantity of goods as well as the details as regards their packaging correspond to the actual facts. If this is the case, then in the absence of importation within the meaning of Article 4(8) the goods have not become liable to excise duty pursuant to Article 2(b) of Directive 2008/118.
               The provision of an incorrect tariff heading in the present circumstances does not result in an irregularity falling within Article 38 of Directive 2008/118.
            
         (
            1
         )	Original language: German.
      (
            2
         )	Administrative and Employment Court, Debrecen.
      (
            3
         )	Regional Finance Directorate of the National Duties and Taxes Authority for the Northern Great Plain region.
      (
            4
         )	OJ 1987 L 198, p. 3.
      (
            5
         )	See the Final Provisions of the International Convention on the Harmonised Commodity Description and Coding System, OJ 1987 L 198, p. 9: ‘Done … in the English and French languages, both texts being equally authentic …’.
      (
            6
         )	Because the law in force as at spring 2011, when the goods entered the territory of the Union, is applicable, the relevant version of the Explanatory Notes is the version in force in 2007 and not in 2012.
      (
            7
         )	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 (OJ 1997 L 256, p. 1), as amended by Commission Regulation (EU) No 861/2010 of 5 October 2010 (OJ 2010 L 284, p. 1).
      (
            8
         )	Pursuant to Article 2 of Regulation No 861/2010, the version in question entered into force on 1 January 2011, and this version is the relevant one for the decision on the law in the present case.
      (
            9
         )	Explanatory Notes to the Combined Nomenclature of the European Union (2011/C 137/01), publication made in accordance with Article 9(1) of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2011 C 137, p. 1).
      (
            10
         )	Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1).
      (
            11
         )	Regulation (EC) No 450/2008 of the European Parliament and the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1) is not relevant to the decision on the legal issues as at the material time for the decision. Admittedly, Article 188(1) of this regulation refers to provisions in force from 24 June 2008. However, these are merely the legal bases for the implementing provisions. With the exception of Article 30 concerning charges and costs, Article 188(2) provides that all other provisions shall be applicable only once the implementing provisions adopted on the basis of the articles referred to in paragraph 1 are applicable. As at the material time in the present case (January 2011), this was not the case.
      (
            12
         )	Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2008 L 9, p. 12), as amended by Council Directive 2010/12/EU of 16 February 2010 amending Directives 92/79/EEC, 92/80/EEC and 95/59/EC on the structure and rates of excise duty applied on manufactured tobacco and Directive 2008/118 (OJ 2010 L 50, p. 1).
      (
            13
         )	Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (OJ 2011 L 176, p. 24). In terms of Article 22, it entered into force on 1 January 2011.
      (
            14
         )	Judgments in Lohmann and Medi Bayreuth, C‑260/00 to C‑263/00, EU:C:2002:637, paragraph 26, and Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraphs 27 and 28.
      (
            15
         )	Judgments in Krüger, C‑334/95, EU:C:1997:378, paragraphs 22 and 23; Byankov, C‑249/11, EU:C:2012:608, paragraph 57; and Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraph 29.
      (
            16
         )	See my Opinions in Ikegami Electronics, C‑467/03, EU:C:2005:49, points 31 to 36; Algemene Scheeps Agentuur Dordrecht, C‑311/04, EU:C:2005:595, points 27, 28 and 35; Uroplasty, C‑514/04, EU:C:2006:56, points 42 to 44; and Turbon International, C‑250/05, EU:C:2006:384, points 38 and 40.
      (
            17
         )	See judgments in Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4; LTM, C‑201/96, EU:C:1997:523, paragraph 17; and Glob-Sped, C‑328/97, EU:C:1998:601, paragraph 26.
      (
            18
         )	Judgment in Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4.
      (
            19
         )	See my Opinion in Ikegami Electronics, C‑467/03, EU:C:2005:49, point 35.
      (
            20
         )	In the original Hungarian, the expert report uses the term ‘dohányzásra kész dohány’.
      (
            21
         )	This applies also as regards the terms ‘Tabacs bruts ou non fabriqués’ and ‘unmanufactured tobacco’ in the corresponding headings in the authoritative versions of the HS.
      (
            22
         )	Emphasis added.
      (
            23
         )	Emphasis added.
      (
            24
         )	In regard to this cross-check, see judgment in Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4.
      (
            25
         )	Number 2 of the Explanatory Notes to the HS (explanatory notes on CN subheading 2401 30 00).
      (
            26
         )	Emphasis added.
      (
            27
         )	CN heading 2402 is not a possibility. Its wording (‘cigars, cheroots, cigarillos and cigarettes …’) and the Explanatory Notes to the CN make it clear that it covers only, ‘rolls of tobacco, which can be smoked as they are’, and thus not loose tobacco without any cover or wrapper, as is the case in the main proceedings. For that reason, a detailed consideration of this heading is not necessary.
      (
            28
         )	The original proposal for Directive 2011/64 provided for complete harmonisation of excise duty rates for tobacco goods. In the event, the directive restricted itself to setting minimum rates.
      (
            29
         )	Directive 2011/64 brings together Directives 95/59, 92/79 and 92/80, which are mentioned in the wording of Article 1(1)(c) of Directive 2008/118.
      (
            30
         )	See Article 1 and Article 2(1)(c)(i) in conjunction with Article 5(1)(a) and (2) of Directive 2011/64.
      (
            31
         )	There is no indication that the goods in question were ‘released’ from customs supervision, or from external transit or customs warehousing. Thus, it depends solely on the question whether the goods were placed in a customs suspensive procedure or arrangement.
      (
            32
         )	The definition which is relevant in the present case is worded more broadly than that in the Customs Code, which classifies as suspensive procedures only the procedures within Article 84(1)(a) CC.
      (
            33
         )	See section D.II.2.4 of its written submissions.
      (
            34
         )	Judgment in Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 22.
      (
            35
         )	Judgment in Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 21.
      (
            36
         )	In particular, the goods did not change their status, as in terms of Article 79 CC this requires release for free circulation under customs law, which depends inter alia on the correct importation duties having been paid. On this point, see judgment in D. Wandel, C‑66/99, EU:C:2001:69, paragraph 36.
      (
            37
         )	On this point, see my Opinion in Papsidemov and Others, C‑195/03, EU:C:2004:572, point 38.
      (
            38
         )	See for example the formulations, ‘any one of the special procedures’, ‘l’un des régimes spéciaux’, ‘vastgestelde bijzondere procedure’, ‘una delle procedure speciali’, ‘um dos procedimentos especiais’.
      (
            39
         )	‘“[R]égimen aduanero suspensivo”: cualquiera de los regímenes previstos en el Reglamento (CEE) no 2913/92 en relación con el control aduanero del que su objeto las mercancías no comunitarias en el momento de su introducción en el territorio aduanero de la Comunidad, en depósitos temporales …’.
      (
            40
         )	Article 4(2) of Commission proposal for a Council directive concerning the general arrangements for excise duty, as at 26 February 2008 (COM(2008) 78 final).
      (
            41
         )	Article 50 CC. According to Article 4(19) CC ‘presentation’ means the notification to the customs authorities, in the manner laid down, of the arrival of goods at the customs office or at any other place designated or approved by the customs authorities.
      (
            42
         )	Emphasis added.
      (
            43
         )	The intention to avoid duplication of procedures is also apparent from the Explanatory Memorandum for the Commission’s proposal for Directive 2008/118: see p. 6 of the Explanatory Memorandum of the Commission’s proposal for a Council directive concerning the general arrangements for excise duty, as at 26 February 2008.
      (
            44
         )	The provision refers to temporary storage, free zones, free warehouses, and arrangements under Article 84(1) of the Regulation.
      (
            45
         )	Judgment in Papismedov and Others, C-195/03, EU:C:2005:131, paragraph 31.
      (
            46
         )	Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EU) No 1063/2010 of 18 November 2010 (OJ 2010 L 307, p. 1).
      (
            47
         )	Article 186(7) CCIP.
      (
            48
         )	Judgment in DP grup EOOD, C‑138/10, EU:C:2011:587, paragraph 40, under reference to judgment in Top Hitz Holzvertrieb v Commission, 378/87, EU:C:1989:209, paragraph 26.
      (
            49
         )	In that regard see points 134 to 137 of this Opinion.
      (
            50
         )	Article 37 of Directive 2008/118 encompasses cases of total destruction and irretrievable loss.
      (
            51
         )	Article 10(6) of Directive 2008/118, which defines ‘irregularity’ in the context of duty suspension arrangements.
      (
            52
         )	Article 33(1) provides that ‘holding for commercial purposes’ means inter alia the holding of excise goods by a person other than a private individual.