VAD BVBA and Johannes Josephus Maria van Aert v Belgische Staat.
Date: 2016-03-10
31


Even if, in the present case, the conditions for the application of Rule 3(b) of the General Rules appear prima facie to be satisfied as regards the goods at issue in the main proceedings, it is for this Court to provide the necessary assessment in that regard and to determine whether the goods can be classified under different CN headings, none of which may be considered to be the most specific within the meaning of Rule 3(a) of the General Rules (see, to that effect, judgments in Kurcums Metal, C‑558/11, EU:C:2012:721, paragraph 28, and Vario Tek, C‑178/14, EU:C:2015:152, paragraph 18).
32


As regards the question referred, it should be noted that the explanatory notes to the HS and the guidelines provide, as regards Rule 3(b) of the General Rules, in particular that only those goods ‘put up in a manner suitable for sale without repacking’ can be regarded as ‘goods put up in sets’ within the meaning of that Rule. However, in the present case, it was only after their clearance by customs that the goods at issue in the main proceedings were repacked together in order to be sold as belonging together as a unit, the consequence of which, according to the referring court, could be that to exclude them from the definition of ‘goods put up in sets for retail sale’, as clarified by those explanatory notes to the HS and guidelines.
34


The wording of those notes must therefore be consistent with the provisions of the CN and cannot alter their scope (judgments in JVC France, C‑312/07, EU:C:2008:324, paragraph 34, and Vario Tek, C‑178/14, EU:C:2015:152, paragraph 22). That applies, even more strongly, as regards the guidelines, in so far as, in those guidelines, the Commission clarifies the definition that in its view the terms ‘goods put up in sets for retail sale’, within the meaning of Rule 3(b) of the General Rules, must have.
35


Thus it must be held, in the first place, that it is not apparent, in any event, from the wording of Rule 3(b) of the General Rules or, furthermore, from the explanatory notes of the HS or the guidelines, the latter laying down certain exceptions to the requirement that there must be a single package, that the concept of a ‘set’, within the meaning of that rule, necessarily presupposes, in every case, that the goods concerned are presented within the same package for the purposes of customs clearance.
37


In that regard, while it is clear from the judgment in Telefunken Fernseh und Rundfunk (163/84, EU:C:1985:396) that in order to be capable of being the object of a single classification as a ‘set’ of goods, those goods must be presented together for the purposes of customs clearance, it does not follow from that case, however, that in order to be classified as such, the goods must necessarily be in one and the same package at the time of that transaction. The term a ‘set’ of goods refers rather to a combination of articles that are normally offered, in particular in retail shops, as a unit and in a single package, in order to meet a particular need or in order for a specific activity to be performed.
41


Moreover, it is clear, in essence, from the case-law of the Court that the determination, at the time of the presentation of the goods concerned to customs, of whether the goods belong together as a unit, or, in other words, constitute a ‘set’ within the meaning of Rule 3(b) of the General Rules must, in the final analysis, be made having regard to the manner in which they are intended to be offered for sale to consumers, namely whether they will be presented to consumers as a unit (see, to that effect, the judgment in Telefunken Fernseh und Rundfunk, 163/84, EU:C:1985:396, paragraph 35).
42


Finally, as submitted by the Belgian Government, it must be held that the fact that, in the case in the main proceedings, the goods at issue were, after customs clearance, repacked into single packages does not necessarily imply that those goods are not suitable for sale directly to users, as a unit, without repacking. In fact, taking into account the information provided by the referring court, it seems to be just as conceivable and justified that the audio/video systems and the corresponding loudspeakers may be sold together to users in separate boxes as in a single package.