1 By order of 19 February 1987, which was received at the Court on 12 March 1987, the Finanzgericht Duesseldorf referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Note 1 ( d ) to Chapter 28 of the Common Customs Tariff .
2 That question arose in the context of proceedings concerning the question whether a chemical product called "Kataboran A" composed of an aqueous solution containing 12% by weight of sodium borohydride and 40% of sodium hydroxide as a stabilizer comes under subheading 28.57 A of the Common Customs Tariff ( hydrides ).
3 At the time of the importation, the goods were declared as sodium boronate solution and other hydrides coming under subheading 28.57 A . After the goods had been cleared through customs, the competent customs office issued a notice of re-assessment classifying the product as sodium boronate in a sodium hydroxide solution coming under subheading 38.19 T . On that basis, it demanded payment of additional import duty corresponding to the difference in rate between the two subheadings . It was in opposition to that classification of the goods that the importing company relied on the Notes to Chapter 28 .
4 According to Note 1, Chapter 28 applies to separate chemical elements and separate chemically defined compounds, whether or not containing impurities ( Note 1 ( a ) ), and the same products dissolved in water ( Note 1 ( b ) ). It also applies to the products mentioned in ( a ) and ( b ) with an added stabilizer "necessary for their preservation or transport" ( Note 1 ( d ) ).
5 After obtaining an expert' s report, the Finanzgericht concluded that the aqueous solution of sodium boronate as such, that is to say, without the sodium hydroxide, constituted a separate chemically defined compound dissolved in water within the meaning of Note 1 ( b ). It also found that sodium hydroxide was a stabilizer necessary for the preservation or transport within the meaning of Note 1 ( d ), of the aqueous solution of sodium boronate . It therefore decided that the product should be classified under subheading 28.57 A .
6 On appeal by the customs authority, the Bundesfinanzhof ( Federal Finance Court ) quashed the decision of the Finanzgericht on the ground that the latter had wrongly applied the rule according to which a product is no longer within the scope of Chapter 28 of the Common Customs Tariff if the stabilizer which it contains could permit uses of the aqueous solution of sodium boronate which would not have been possible without the presence of the stabilizer . The addition of the stabilizer must not entail a broadening of the range of possible uses for the chemical product in addition to its general use . The Bundesfinanzhof pointed out that according to the Explanatory Notes to the Nomenclature of the Customs Cooperation Council concerning Chapter 28, the character of a chemical product may not be altered by additives . In particular, it must not be rendered suitable for some types of use rather than for general use .
7 After the case had been referred back to it, the Finanzgericht Duesseldorf decided first that the Customs Cooperation Council' s Explanatory Notes could not amend the provisions of the Common Customs Tariff which, unlike the Explanatory Notes, are binding . It then found that in regard to chemical products it was very rare that the addition of a stabilizer could not have the effect of making it possible for the imported product to be used for other purposes and thereby to be transformed . The line had to be drawn at the precise point at which a different product intended for different uses was imported under cover of a stabilizer .
8 Since it considered that doubts remained as to the tariff classification of the goods in question, the Finanzgericht stayed proceedings and referred the following question to the Court of Justice for a preliminary ruling : "Is Note 1 ( d ) to Chapter 28 of the Common Customs Tariff to be interpreted as meaning that a stabilizer necessary for the transport of a product may not make other uses possible?"
9 Reference is made to the Report for the Hearing for a fuller account of the observations submitted to the Court which are mentioned or discussed herinafter only in so far as is necessary for the reasoning of the Court .
10 The Hauptzollamt Geldern, the defendant in the main proceedings, and the Commission of the European Communities expressed doubts as to the need to add sodium hydroxide in order to stabilize the boronate . They consider that the amounts used are greater than what was "necessary" in order to stabilize the chemical product to be transported . It should be observed in that regard that in the context of the procedure laid down in Article 177 of the Treaty, it is for the national court to make findings of fact . In this case, the Finanzgericht decided, after considering an expert' s report, that a concentration of 40% of sodium hydroxide was necessary to stabilize an aqueous solution of sodium boronate for the purposes of transport . Since that finding was not contested by the Bundesfinanzhof, the Court of Justice must accept it .
11 The first problem to be resolved is whether any possibility of putting the chemical product to a different use which results from the addition of a stabilizer necessary for the transport thereof has the effect of excluding it from the scope of Chapter 28 of the Common Customs Tariff .
12 The Commission claims in that regard that the notes concerning that chapter must be read together . Note 1 ( c ), concerning chemical products dissolved in other solvents constituting a method of putting up the said products, expressly requires that the method should be adopted "solely for reasons of safety or for transport", and that, furthermore, "the solvent (( should )) not render the product particularly suitable for some types of use rather than for general use ". Similarly, Note 1 ( e ), concerning anti-dusting agents and colouring substances, requires that such additions should "not render the product particularly suitable for some types of use rather than for general use ". There is no reason to believe that such conditions, laid down in regard to methods of putting up products, anti-dusting agents and colouring substances, should not also apply to stabilizers .
13 The Commission' s argument in that regard cannot be accepted . Peculiar to Note 1 ( d ) is precisely the fact that, unlike Notes 1 ( c ) and 1 ( e ), it lays down no condition for stabilizers other than that they should be "necessary" for the preservation or transport of the chemical product . An application by analogy of the conditions laid down for other substances is possible only if the same considerations which underly Notes 1 ( c ) and 1 ( e ) in regard to the substances mentioned therein are also valid in regard to stabilizers . However, nothing in the documents before the Court makes it possible to arrive at that conclusion . On the other hand, the opposite conclusion may be based on the fact that the transport of certain chemical products for the purposes of importation cannot take place without the addition of a stabilizer whereas the presence in a chemical product of methods of putting up the product, anti-dusting agents or colouring substances, whether useful or not, is not necessary for the transport of the chemical product in question .
14 It must therefore be concluded that application of Chapter 28 is not excluded by the mere fact that the addition of a stabilizer necessary for the preservation or transport of the chemical product could make other uses of the product possible .
15 The second problem raised by the national court' s question is whether Chapter 28 remains applicable if the addition of the stabilizer to the chemical product has the effect of entirely altering the nature of the product imported .
16 The importing firm, the plaintiff in the main proceedings, emphasized in that regard that the addition of sodium hydroxide as a stabilizer was necessary to ensure that the boronate could be transported without danger but it had to be removed subsequently by an extremely costly method . The situation in this case is therefore very different from one in which, after importation, the principal use of the product as a whole is determined by the possible use of the stabilizer rather than that of the chemical product transported .
17 In that regard, it must indeed be observed that although an aqueous solution of a separate chemically defined compound is covered by Chapter 28, even after the addition of a stabilizer, that chapter cannot apply if the principal use of the product is determined by the use which may be made of the stabilizer . The use of the stabilizer for the purposes of transport or preservation cannot constitute an indirect means of importing goods free of duty or at a reduced rate of duty .
18 Consequently, Note 1 ( d ) to Chapter 28 of the Common Customs Tariff must be interpreted as meaning that application of that chapter is not excluded merely by the addition to an imported chemical product of a stabilizer necessary for its preservation or transport could enable the chemical product in question to be used for a different purpose . However, Chapter 28 cannot apply when the principal use of the goods is determined by the possible use of the stabilizer and not that of the chemical product .