1. This request for a preliminary ruling concerns the interpretation of the Combined Nomenclature 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 Commission Regulation (EC) No 1031/2008 of 19 September 2008 (OJ 2008 L 291, p. 1) (‘the CN’), in particular subheading 9027 10 10 thereof.
2. The request has been made in proceedings between TSI GmbH (‘TSI’) and the Hauptzollamt Aachen (Principal Customs Office, Aachen) concerning the tariff classification of ultraviolet aerodynamic particle sizer spectrometers and handheld particle counters. Legal context
3. The CN, introduced by Regulation No 2658/87, is based on the Harmonised Commodity Description and Coding System, which was drawn up by the Customs Cooperation Council, now the World Customs Organisation (WCO), and established by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983 (‘the HS’). That convention, with its amending protocol of 24 June 1986, was approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).
4. The second part of the CN, entitled ‘Schedule of Customs Duties’, contains, inter alia, Section XVI, entitled ‘Machinery and mechanical appliances; electrical equipment; parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles’. That section is preceded by note 3, in accordance with which: ‘Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.’
5. The second part contains also Section XVIII, entitled ‘Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; clocks and watches; musical instruments; parts and accessories thereof’, which includes, inter alia, Chapter 90, entitled ‘Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof’. That chapter is preceded by note 3, according to which: ‘The provisions [of note 3] to Section XVI apply also to this chapter.’
6. That chapter too is preceded by an additional note, which provides as follows: ‘(1) For the purposes of subheadings … 9027 10 10 …, the expression ‘electronic’ means instruments and apparatus which incorporate one or more articles of heading 8540, 8541 or 8542 but for the purposes of the foregoing, no account shall be taken of articles of heading 8540, 8541 or 8542 which have solely the function of rectifying current or which are included in the power pack of instruments or apparatus’.
7. Heading 9027 of the CN provides: ‘9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); 9027 10 − Gas or smoke analysis apparatus; 9027 10 10 − −\telectronic … 9027 30 00 − Spectrometers, spectrophotometers and spectrographs using optical radiations (UV, visible, IR) 9027 50 00 − other instruments and apparatus using optical radiations (UV, visible, IR) … .’
8. Pursuant to the second indent of Article 9(1)(a) of Regulation No 2658/87, the Commission draws up explanatory notes to the CN, which it publishes regularly in the Official Journal of the European Union . The notes published on 30 May 2008 (OJ 2008 C 133, p. 1), which were applicable at the time of the facts in the main proceedings, state, under subheading 9027 10 10 of the CN: ‘This subheading includes laser air-particle counters. These are electronic devices which determine or monitor the dust content of filtered air, for example, in industrial plants or in the medical field. The dust particles contained in the air sample cause a laser beam to produce scattered light in the measurement chamber of the device which, after being concentrated into a beam by a lens system, is picked up by a photodiode and converted into an electrical signal. With the aid of pre-programmed reference data, the proportion of dust particles is determined and the measurement result is shown on the instrument's digital display or printed out on an external tape printer. Via an interface, the measurement result in the form of an electrical signal can also be sent by cable to an automatic data-processing machine.’
9. The WCO is to approve, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee. The explanatory note to the HS relating to heading 90.27 thereof, the wording of which is identical to that of heading 9027 of the CN, states: ‘The following instruments and apparatus are included in this heading: … (8) Gas or smoke analysis apparatus, used to analyse combustible gases or combustion products (flared gas) in coke battery furnaces, gas generators, blast furnaces, etc, and which allows levels of carbonic acid, carbon monoxide, oxygen, hydrogen, nitrogen or hydrocarbons to be determined in order to ensure rational production processes. Electric analysers are used in particular in several industries, to measure the composition of the following gases: carbon dioxide, carbon monoxide and hydrogen, oxygen, hydrogen, sulphur dioxide, ammonium gas. Some of those apparatus carry out a volumetric determination of gases burned or absorbed by suitable chemical substances, in particular: (1) The Orsat apparatus, including essentially a gas aspirating bottle, one or more absorber tubes and a measuring tube. (2) The combustion or explosive apparatus, which are equipped, moreover, with a combustion or explosive tube (platinum capillary tube, platinum or palladium wire tube, induction spark tube, etc.). Those types of apparatus may moreover be combined. … .’ The main proceedings and the question referred for a preliminary ruling
10. It is apparent from the order for reference that, on 10 August 2009, TSI made a declaration for release into free circulation of a handheld particle counter. That device is contained within a housing equipped with a screen, several interfaces and operating controls which are made out of electric and electronic components. It makes it possible to monitor particulate contamination. It is equipped with a handle allowing the apparatus to be fully operated with thumb controls. That counter can be configured and operated through the use of a colour touch screen interface. The resulting particle count data can be viewed on screen, downloaded, or printed directly. That counter is designed to be used for tracking down particle contamination sources, classifying clean areas, looking for filter leaks and conducting investigations.
11. Since TSI had declared the handheld particle counter under subheading 9027 50 00 of the CN, the competent customs office did not require payment of customs duties.
12. On 25 November 2009, TSI lodged a declaration for release into free circulation of an ultraviolet aerodynamic particle sizer spectrometer (‘the particle sizer spectrometer’). That apparatus is contained within a housing with an opening for air to flow through. It is equipped with a light emitting diode (LED) display, several interfaces and operating controls made out of electric and electronic components. That particle sizer spectrometer is used for measuring the aerodynamic diameter, scattered-light intensity and fluorescence intensity of individual airborne particles in real time. For measuring the aerodynamic diameter and scattered-light intensity of airborne particles, it uses a double-crest optical system. An ultraviolet aerodynamic particle sizer spectrometer records the fluorescence properties of individual particles. That particle sizer spectrometer is used for filter and air-cleaner testing, inhalation toxicology studies, indoor air-quality monitoring and to study the biological effects of aerosols.
13. Since TSI had declared the handheld particle counter under subheading 9027 30 00 of the CN, the competent customs office did not require payment of customs duties.
14. Following an on-site inspection, the Principal Customs Office, Aachen, took the view that the particle sizer spectrometer and the handheld particle counter had to be classified, not under the subheading stated by TSI in its declarations, but under subheading 9027 10 10 of the CN. Consequently, that office sent two assessment notices to TSI ex post recovery of customs duties.
15. Since extra-judicial appeal procedures were unsuccessful, TSI brought actions to have the handheld particle counter classified in subheading 9027 50 00 of the CN and the particle sizer spectrometer in subheading 9027 30 00 of the CN. According to TSI, those apparatuses cannot be classified under subheading 9027 10 10 of the CN. Such apparatuses cannot be used for analysing gases. They are neither intended to measure, nor capable of measuring smoke or hot exhaust fumes. Unless fitted with other apparatuses, the apparatus concerned would be destroyed by its typical use in conditions of smoke or gas emissions.
16. TSI also submitted that the Principal Customs Office, Aachen, may not rely in support of its position on the Explanatory Notes to the Combined CN relating to subheading 9027 10 10 of the CN. The laser air-particle counter, which is described therein, could not be compared with handheld particle counters or particle sizer spectrometers. Moreover, nor are those explanatory notes compatible with the wording itself of subheading 9027 10 10 of the CN.
17. The defendant in the main proceedings contends that the handheld particle counter and the particle sizer spectrometer are to be classified in subheading 9027 10 10 of the CN. The additional note to Chapter 90 of the CN, point 8 of the HS Explanatory Notes relating to heading 90.27 thereof and the Explanatory Notes relating to subheading 9027 10 10 of the CN relating to subheading 9027 10 10 thereof support that conclusion.
18. The Finanzgericht Düsseldorf (Finance Court, Düsseldorf) notes that the outcome of the action pending before it depends on the interpretation which is to be given to subheadings 9027 10 10, 9027 30 00 and 9027 50 00 of the CN.
19. With regard, in particular, to subheading 9027 10 10 of the CN, that court notes that it is common ground between the parties that the handheld particle counter and the particle sizer spectrometer are not gas analysis apparatuses and that it has no doubts in that regard.
20. By contrast, that court questions whether the apparatuses at issue in the main proceedings must be regarded as smoke analysis apparatuses for the purposes of their tariff classification. It considers, in that regard, that the subject-matter capable of being measured by the apparatuses depends upon the particular purpose of measurement. The surrounding air (aerosol) being analysed can contain particles existing as a result either of combustion processes or mechanical processes. The actual use of one type of measuring apparatus does not depend upon the form and size of particles of that type which are contained in the aerosol. Thus, particles formed by processes of combustion or particles formed by mechanical processes may be present in the same aerosol.
21. Having regard to those findings and the purpose for which the apparatus at issue in the main proceedings is used, the issue arises for the referring court of how ‘smoke’ within the meaning of subheading 9027 10 10 of the CN is to be interpreted. Referring, in particular, to the Explanatory Notes to the CN relating to that subheading, that court considers that the concept of ‘smoke’ can have a broad meaning, so that it could be decisive for the classification of smoke that the particles originated as a result of complete or incomplete combustion, even if analysis of the particles does not necessarily immediately follow that complete or incomplete combustion.
22. On the assumption that that broad interpretation of the term ‘smoke’ for the purposes of subheading 9027 10 10 of the CN is accepted, the question however then arises for the referring court as to whether smoke analysis apparatus is concerned also where the apparatus at issue measures not only particles formed by processes of combustion, but also particles formed by mechanical processes. That is the case of the two apparatuses at issue in the main proceedings. Moreover, it is not possible to quantify to what extent the user of those apparatus will in reality measure particles formed by processes of combustion or particles formed by mechanical processes.
23. In those circumstances, the Finanzgericht Düsseldorf (Finance Court, Düsseldorf) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Is the CN to be interpreted as meaning that ultraviolet aerodynamic particle sizer spectrometers and handheld particle counters as described in more detail in the order [for reference] fall under subheading 9027 10 10?’ The question referred for a preliminary ruling
24. It should be recalled that it is settled case-law of the Court that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods 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 of the notes to the sections or chapters (see, inter alia, judgment in Kyowa Hakko Europe , C‑344/14, EU:C:2015:615, paragraph 25 and the case-law cited).
25. It is also settled case-law that the Explanatory Notes, drawn up by the Commission as regards the CN and by the WCO as regards the HS, are an important aid for interpreting the scope of the various tariff headings but do not have legally binding force (see, inter alia, judgment in Kyowa Hakko Europe , C‑344/14, EU:C:2015:615, paragraph 26 and the case-law cited).
26. It is apparent from the order for reference that the apparatuses at issue in the main proceedings are not gas analysis apparatuses within the meaning of subheading 9027 10 of the CN. As regards that subheading, the only question which arises in the context of the main proceedings is whether those apparatuses are smoke analysis apparatus within the meaning of that subheading and, consequently, electronic smoke analysis apparatus within the meaning of subheading 9027 10 10 of the CN.
27. In that regard, it should be noted that the wording of subheading 9027 10 of the CN refers specifically and exclusively to ‘smoke analysis apparatus’.
28. However, the objective characteristics and properties, such as those described in the order for reference, do not correspond with that wording. As is apparent from that order, those apparatuses do not specifically and exclusively analyse particles derived from combustion, which, for their part, come within the concept of ‘smoke’ in accordance with the normal meaning of that word in common language. Those apparatuses also analyse particles which do not come within that concept, namely particles resulting from mechanical processes.
29. Taking into consideration the wording of subheading 9027 10 of the CN, it should therefore be considered that apparatuses such as those at issue in the main proceedings fall neither within that subheading nor, consequently, within subheading 9027 10 10 of the CN.
30. As the Commission correctly notes, that interpretation is confirmed by note 3 to Chapter 90 of the CN. It is apparent from that note that machines designed for the purpose of performing two or more functions are classified according to the principal function of the whole. However, as is apparent from the order for reference, the principal function of the machines at issue in the main proceedings is not smoke analysis.
31. Likewise, that interpretation is not called into question by the additional note to Chapter 90 of the CN, point 8 of the HS Explanatory Notes relating to heading 90.27 thereof or by the Explanatory Notes relating to subheading 9027 10 10 of the CN, which the referring court mentions in its decision.
32. As regards the additional note to Chapter 90 of the CN and point 8 of the HS Explanatory Notes relating to heading 90.27 thereof, it suffices to note that the wording thereof is not such as to support an interpretation of subheadings 9027 10 and 9027 10 10 of the CN different from that stated in paragraphs 28 and 29 of the present judgment.
33. With regard to the Explanatory Notes relating to subheading 9027 10 10 of the CN, it should be noted that they refer not to subheading 9027 10 of the CN, but to the former subheading. Therefore, as the Commission correctly noted, those Explanatory Notes are intended to interpret the word ‘electric’ within the meaning of subheading 9027 10 10 of the CN, rather than the term ‘smoke analysis apparatus …’ within the meaning of subheading 9027 10 of the CN.
34. Moreover, as is apparent from the case-law set out in paragraph 25 of the present judgment, the Explanatory Notes relating to subheading 9027 10 10 of the CN would not, in any event, allow an interpretation of that subheading contrary to its wording.
35. Consequently, the answer to the question referred is that the CN must be interpreted as meaning that ultraviolet aerodynamic particle sizer spectrometers and handheld particle counters, such as those at issue in the main proceedings, do not fall under subheading 9027 10 10 thereof. Costs
36. 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.