1. This request for a preliminary ruling concerns the interpretation of heading 3212 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) (‘the CN’).
2. The request has been made in proceedings between Sysmex Europe GmbH (‘Sysmex’) and the Hauptzollamt Hamburg-Hafen (the customs authority of the Port of Hamburg) concerning the tariff classification of a liquid substance marketed under the designation ‘Stromatolyser-4DS’. Legal context The CN
3. The CN is based on the Harmonised Commodity Description and Coding System (‘the HS’), which was drawn up by the Customs Cooperation Council, now the World Customs Organisation (WCO), established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983 (‘the Convention’). The Convention was approved, with the Protocol of Amendment thereto of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1). The CN reproduces the headings and subheadings of the HS.
4. The second part of the CN includes Section VI, entitled ‘Products of the chemical or allied industries’, which covers Chapters 28 to 38. Note 2 to that section states: ‘ … goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of the nomenclature.’
5. Chapter 32 of the CN is entitled ‘tanning or dyeing extracts; tannins and their derivatives; dyes, pigments and other colouring matter; paints and varnishes; putty and other mastics; inks’. Note 3 to that chapter is worded as follows: ‘Headings 3203, 3204, 3205 and 3206 apply also to preparations based on colouring matter (including, in the case of heading 3206, colouring pigments of heading 2530 or Chapter 28, metal flakes and metal powders), of a kind used for colouring any material or used as ingredients in the manufacture of colouring preparations. The headings do not apply, however, to pigments dispersed in non-aqueous media, in liquid or paste form, of a kind used in the manufacture of paints, including enamels (heading 3212), or to other preparations of headings 3207, 3208, 3209, 3210, 3212, 3213 or 3215.’
6. Heading 3204 of the CN is entitled ‘Synthetic organic colouring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic colouring matter; synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined’. The products within that heading are subject to customs duties at a rate between 6% and 6.5% according to the subheading concerned.
7. Heading 3212 of the CN is entitled ‘Pigments (including metallic powders and flakes) dispersed in non-aqueous media, in liquid or paste form, of a kind used in the manufacture of paints (including enamels); stamping foils; dyes and other colouring matter put up in forms or packings for retail sale’. It includes subheading 3212 90 90, which is worded as follows: ‘Dyes and other colouring matter put up in forms or packings for retail sale’.
8. The products classified under that subheading are subject to customs duties at a rate of 6.5%.
9. Chapter 38 of the CN, entitled ‘Miscellaneous chemical products’, includes subheading 3822 00 00, which is worded as follows: ‘Diagnostic or laboratory reagents on a backing, prepared diagnostic or laboratory reagents whether or not on a backing, other than those of heading 3002 or 3006; certified reference materials’.
10. The products classified under that subheading are exempt from duty. The HS Explanatory Notes
11. The WCO approves, under the conditions laid down in Article 8 of the Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee. The version of those notes applicable to the facts in the main proceedings is that adopted during 2002.
12. Note 3 to Chapter 32 of the HS is worded in the same way as Note 3 to Chapter 32 of the CN.
13. The HS Explanatory Notes on heading 3204 are worded as follows: ‘(I) - Synthetic organic colouring matter, whether or not chemically defined; preparations as specified in note 3 to this chapter based on synthetic organic colouring matter. Synthetic colouring matter is generally obtained from oils or other products of the distillation of coal tar. The heading applies, inter alia , to: (A) Unmixed synthetic organic colouring matter (whether or not chemically defined compounds) and synthetic organic colouring matter diluted with substances which have no dyeing properties (e.g. anhydrous sodium sulphate, sodium chloride, dextrin, starch) to decrease or standardise their colouring power. The addition of small quantities of surface-active products to encourage penetration and fixation of the dye does not affect the classification of colouring matter. Colouring matter of these descriptions is usually in the form of powder, crystals, pastes, etc. Synthetic organic colouring matter put up in forms or packings for retail sale is classified in heading 3212 (see Part (C) of the Explanatory Note to that heading). … The various types of synthetic organic colouring matter classified here (whether as dyes or pigments) include: … (8) Acridines, quinolones (e.g., cyanines, isocyanines, cryptocyanines). … Synthetic organic colouring matter may be soluble or insoluble in water. It has almost completely replaced natural organic colouring matter, particularly for dyeing or printing textiles, dyeing hides or skins, paper or wood. … Certain of these substances are also used as laboratory reagents or for medical purposes. Substances which in practice are not used for their dyeing properties are excluded, e.g., azulenes (heading 2902), trinitrophenol (picric acid) and dinitroorthocresol (heading 2908), hexanitrodiphenylamine (heading 2921), methyl orange (heading 2927), bilirubin, biliverdin and porphyrins (heading 2933), acriflavine (heading 3824). (II) - Synthetic organic products of a kind used as fluorescent brightening agents or as luminophores, whether or not chemically defined. … (2) Organic products of a kind used as luminophores are synthetic products which, under the action of light rays, produce a luminescent or fluorescent effect. Some of these products also have the character of colouring matter. An example of these luminophores is rhodamine B in plastics, which produces a red fluorescence. It is generally in the form of powder. Most organic products of a kind used as luminophores … are not colouring matter. They are added to colouring pigments to increase their brilliance. These products remain in this heading even when chemically defined but the same chemicals in a non-luminescent form … are excluded (Chapter 29) … .’
14. With regard to heading 3212, the HS Explanatory Notes provide: ‘C. - Dyes and other colouring matter put up in forms or packings for retail sale. These are non-film forming products which normally consist of mixtures of colouring matter with other substances (e.g. inert diluents, surface-active products which encourage the penetration and fixation of the colouring matter). Mordants are also sometimes added. They fall here only if: (1) In packings for retail sale (e.g., sachets of powder, bottles of liquid) put up for use as dyes; … The dyes covered by this heading are mainly those used for domestic purposes and usually sold as “household dyes” (e.g., dyes for clothes, for shoes, for furniture). The heading also includes special dyes used in laboratories, e.g., to colour microscopic preparations.’
15. The HS Explanatory Notes on heading 3822 state: ‘ - Diagnostic or laboratory reagents on a backing, prepared diagnostic or laboratory reagents whether or not on a backing, other than those of heading 3002 or 3006; certified reference materials. This heading covers diagnostic or laboratory reagents on a backing, prepared diagnostic or laboratory reagents other than diagnostic reagents of heading 3002, or diagnostic reagents designed to be administered to the patient and blood-grouping reagents of heading 3006 … Diagnostic reagents are used in the evaluation of physical, biophysical or biochemical processes and states in animals and humans; their function is based upon a measurable or observable change in the biological or chemical substances constituting the reagent. … Prepared laboratory reagents include not only diagnostic reagents, but also other analytical reagents used for purposes other than detection or diagnosis. Prepared diagnostic and laboratory reagents may be used in medical, veterinary, scientific or industrial laboratories, in hospitals, in industry, in the field or, in some cases, in the home. … The heading also excludes the following reagents, whether or not put up in forms for use as diagnostic or laboratory reagents: … (c) Colouring matter of heading 3204, including preparations mentioned in Note 3 to Chapter 32’. Implementing Regulation (EU) No 827/2011
16. Commission Implementing Regulation (EU) No 827/2011 of 12 August 2011 concerning the classification of certain goods in the Combined Nomenclature (OJ 2011 L 211, p. 9), which is not applicable ratione temporis to the dispute in the main proceedings, provides that the goods corresponding to the following description are to be classified under subheading 3212 90 00: ‘Blue polymethine dye (fluorescent dye) diluted in a mixture of the solvents ethylene glycol and methanol. Composition (% by weight): - Ethylene glycol 96.9 - Methanol 3.0 - Polymethine dye 0.002 The product is meant to be used in automatic blood analysers. It is used for staining leukocytes by means of fluorescent marking after they have undergone a specific preparatory treatment. The product is put up in a small, labelled container for use in laboratories.’ The dispute in the main proceedings and the question referred for a preliminary ruling
17. In July 2005, Sysmex imported into Germany a liquid under the commercial designation ‘Stromatolyser-4DS’.
18. Stromatolyser-4DS is a bluish transparent liquid put up for retail sale. It is composed of solvents, namely ethylene glycol (96.9%) and methanol (3%), and of a synthetic organic substance (0.002%) which, chemically, belongs to the polymethines and, more precisely, to the cyanines.
19. This liquid is intended for the analysis of white blood cells (leukocytes) in order to determine the existence of a possible pathology. Specifically, the blood to be analysed undergoes a preparatory operation. The Stromatolyser-4DS is then added to the prepared blood, which causes a chemical reaction. The resulting mixture is exposed to laser light, causing a fluorescence of the nucleic acids present in the nucleus and cytoplasm of the leukocytes. This fluorescence subsides rapidly after the end of the exposure to the laser light.
20. At the time of importation, the product at issue in the main proceedings was declared by Sysmex as coming under subheading 3822 00 00 of the CN and was thus released into free circulation exempt from customs duties. On 18 June 2007, the Hauptzollamt Hamburg-Hafen, taking the view that that product did not come under that subheading, issued a notice of additional assessment providing for the a posteriori recovery of customs duties on the importation of Stromatolyser-4DS at a rate of 6.5%.
21. Sysmex lodged an objection to that notice of assessment, which was rejected by the Hauptzollamt Hamburg-Hafen on 13 January 2009. In response to that rejection, on 10 February 2009, Sysmex brought an action before the referring court in which it sought annulment of the notice of additional assessment.
22. During the proceedings before the referring court, Sysmex obtained a binding tariff information from the customs authorities of the Netherlands, classifying the product at issue in the main proceedings under heading 3822 of the CN. That binding tariff information was annulled following the adoption of Regulation No 827/2011.
23. In support of its action, Sysmex claimed that the product at issue in the main proceedings had been validly declared under subheading 3822 00 00 of the CN. With regard to Regulation No 827/2011, it claimed, first, that it was not applicable retroactively to the contested importation and, secondly, that it was unclear whether the description of the product set out in that regulation actually covered the product in question.
24. The Hauptzollamt Hamburg-Hafen, for its part, contended that the action should be dismissed. In that regard, it submitted that the product at issue in the main proceedings was composed of a mixture of colouring matter and a solvent, that it was a dye, put up in packings for retail sale, which was used as a special dye in laboratories, and that it therefore came under subheading 3212 90 90.
25. In the context of the proceedings before the referring court, the latter ordered an expert opinion to be carried out, at the end of which the expert concluded that the product at issue in the main proceedings could dye a textile with a blue colour, but that that colouring was nevertheless very light and could not be classified as ‘permanent’.
26. In that context, the referring court states that it shares the opinion of Sysmex, according to which that product comes under heading 3822 of the CN relating to laboratory reagents, but that it is unsure, however, whether or not that product could also be classified under heading 3212 of the CN relating to dyes and other colouring matter. In its opinion, if such is the case, it would be necessary to classify the product at issue in the main proceedings under that heading as a matter of priority, in accordance with Note 3 to Chapter 32 of the CN.
27. In those circumstances, the Finanzgericht Hamburg decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Should a product have been classified, in 2005, under heading 3212 of the [CN] as a dye or colouring matter where it is composed of solvents and of a polymethine substance which can have a certain colouring effect - which, on textiles at least, is not permanent - but which, in the case of the product to be classified, serves to obtain information on particles (white blood cells) contained in a test solution (pre-treated blood) by means of a process in which, through the deposition of ions in defined components of the particles (nucleic acids), the substance forms molecular structures which, when exposed to laser light on a certain wavelength, become fluorochromatic for a limited period and this state and its extent are measured with the aid of a special photoelectric cell? The question referred for a preliminary ruling
28. By its question, the referring court asks, in essence, whether the CN must be interpreted as meaning that a product, composed of solvents and of a polymethine-based substance, which can have a colouring effect on textiles and which is intended for the analysis of white blood cells, by means of the deposition of ions in defined components of those blood cells, which, when those elements are exposed to laser light, become fluorochromatic for a limited period, is to be classified under heading 3212 of the CN, relating to dyes and other colouring matters, or under heading 3822 of the CN, relating to laboratory reagents.
29. It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Roeckl Sporthandschuhe , C‑123/09, EU:C:2010:237, paragraph 27).
30. According to the case-law, the Explanatory Notes drawn up by the European Commission, as regards the CN, and by the WCO, as regards the HS, may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see, inter alia, Krings , C‑130/02, EU:C:2004:122, paragraph 28, and TNT Freight Management (Amsterdam) , C‑291/11, EU:C:2012:459, paragraph 32).
31. It must also be noted that the intended use of a product may also constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see RUMA , C‑183/06, EU:C:2007:110, paragraph 36, and Roeckl Sporthandschuhe , EU:C:2010:237, paragraph 28).
32. In that connection, it has been held, with regard to a product having two possible uses, that, as one of those uses was no more than a purely theoretical possibility, that product was, on the basis of its objective characteristics and properties, naturally intended for the other use and therefore came under the tariff heading relating to that use (see, by analogy, Thyssen Haniel Logistic , C‑459/93, EU:C:1995:160, paragraphs 17 and 18). Likewise, according to the case-law, in order to be classified under the tariff heading relating to a use, the product to be classified need not be solely or exclusively intended for that use. It suffices that that use is the main use for which the product is intended (see, to that effect, Neckermann Versand , C‑395/93, EU:C:1994:318, paragraphs 8 and 9, and Anagram International , C‑14/05, EU:C:2006:465, paragraph 26).
33. In the present case, it should be noted, first, that, in the light of its objective characteristics and properties, the product at issue in the main proceedings is capable of coming under both heading 3822 of the CN and heading 3212 of the CN.
34. In the first place, with regard to heading 3822 of the CN, its wording refers to diagnostic or laboratory reagents. Moreover, it is mentioned in the HS Explanatory Notes on that heading that diagnostic reagents are used for the evaluation of physical, biophysical and biochemical processes and states in humans. According to those explanatory notes, the functions of those diagnostic reagents are based on a measurable or observable change in their biological or chemical constituents.
35. It is apparent from the order for reference and from the observations submitted to the Court that the product concerned is intended for the analysis of white blood cells (leukocytes). In practice, the blood to be analysed is pre-treated in such a way that the membranes of the cells of the leukocytes are perforated. When the product concerned is added to the blood thus pre-treated, a brief deposition of polymethine ions on the ribonucleic acid (RNA) of the leukocytes occurs if the latter belong to a certain class and present a certain level of biological activity. This level of activity reflects both the type of cellular function and a possible pathology. The deposition of polymethine ions on the RNA of the leukocytes is visualised by means of a laser light which causes a temporary fluorescence. The light emitted in the form of fluorescence is measured by optical detectors in an analyser and is then evaluated.
36. Thus, the product at issue in the main proceedings is intended to determine the existence of a possible pathology. Furthermore, its method of functioning indeed involves a measureable or observable change in its constituent substances, in so far as, when it is placed in contact with the pre-treated blood, a chemical reaction occurs which makes it possible to measure cellular activity. Therefore, it must be held that it is capable of coming under heading 3822 of the CN, as interpreted in the light of the HS Explanatory Notes.
37. In the second place, with regard to heading 3212 of the CN, this refers to ‘dyes and other colouring matter put up in forms or packings for retail sale’. As is apparent from the wording of Note 2 to Section VI of the CN, Note 3 to Chapter 32 thereof and the HS Explanatory Notes on heading 3212, heading 3212 of the CN covers ‘synthetic organic colouring matter’ in heading 3204 of the CN which is intended for retail sale.
38. It is stated, in the explanatory notes to the HS relating to heading 3204, first, that cyanines are included among the synthetic organic colouring matter set out in that heading, secondly, that that heading covers synthetic organic colouring matter diluted with substances which have no dyeing properties to decrease or standardise their colouring power and, thirdly, that certain synthetic organic colouring matter is also used as coloured laboratory reagents or for medical purposes.
39. It is apparent from the order for reference that the product at issue in the main proceedings is composed of solvents, namely ethylene glycol (96.9%), methanol (3%) and of a synthetic organic substance (0.002%) which, chemically, belongs to the polymethines and, more precisely, to the cyanines. Furthermore, although it follows from the observations submitted to the Court that that product is not capable of colouring blood, the expert opinion ordered by the referring court shows that it is capable of having a colouring effect on textiles, which, admittedly, is weak and non-permanent.
40. Therefore, by reason of its chemical composition and its colouring power, the product at issue in the main proceedings could come within heading 3204 of the CN, as interpreted in the light of the HS Explanatory Notes. It does not matter, in that regard, contrary to what was put forward in the observations submitted to the Court, whether or not the fluorescence resulting from the exposure of the blood/product mixture to a laser light must be regarded as a ‘colouring matter’ for the purposes of that heading.
41. In so far as it follows from the observations submitted to the Court that the product at issue is put up for retail sale, it may come within, not heading 3204 of the CN, but heading 3212 thereof, the wording of which, as interpreted in the light of the notes referred to in paragraph 37 of this judgment, refers to colouring matter put up in forms or packings for retail sale.
42. Nevertheless, secondly, it should be noted that, although the product at issue is covered both by the wording of heading 3822 of the CN and by that of heading 3212 thereof, it is apparent from the expert opinion ordered by the referring court that the use of that product as a colouring matter is no more than a purely theoretical possibility. The expert examined whether the liquid at issue could dye textile material. Although he established that it had a certain dyeing power, he nevertheless noted that it produced a very weak blue colouring, almost a lack of colouring. He also noted that the colouring was not permanent and disappeared as a result of washing. It follows that the use of the product at issue as a laboratory reagent constitutes, in the light of its objective characteristics and properties, its exclusive use, which supports its classification under heading 3822 of the CN, as is apparent from the case-law cited in paragraphs 31 and 32 of the present judgment.
43. That conclusion is supported by the HS Explanatory Notes on headings 3822 and 3204 of the CN. Indeed, it is apparent from the HS Explanatory Notes on heading 3822 that the colouring matter referred to in heading 3204 is excluded from heading 3822, even if it is put up in a form allowing its use as diagnostic or laboratory reagents. However, it is also apparent from the HS Explanatory Notes on heading 3204 that the products which are not in practice used for their colouring properties are excluded from that heading. In practice, the product at issue is not likely to be used as colouring matter.
44. Furthermore, that conclusion cannot be called into question by Regulation No 827/2011, which classifies a product similar to that at issue in the main proceedings under heading 3212 of the CN, since that regulation is not applicable ratione temporis to those proceedings. In any event, it should be noted that the Commission’s power to adopt measures relating to the classification of certain products in the CN does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS established by the Convention, the scope of which the Community has undertaken, under Article 3 thereof, not to modify (see Hewlett-Packard Europe , C‑361/11, EU:C:2013:18, paragraph 39 and the case-law cited).
45. In the light of the foregoing considerations, the answer to the question referred for a preliminary ruling is that the CN must be interpreted as meaning that a product, composed of solvents and of a polymethine-based substance, which, although it may have a weak and non-permanent dyeing effect on textiles, is not in practice used for its dyeing properties and is intended for the analysis of white blood cells, by means of the deposition of ions in defined components of those blood cells, which, when exposed to laser light, become fluorescent for a limited period, comes under heading 3822 of the CN relating to laboratory reagents. Costs
46. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.