GSV (Judgment of the Court) [2014] EUECJ C-74/13 (9 April 2014)

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(Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — TARIC Codes 7019 59 00 10 and 7019 59 00 90 — Regulations imposing anti-dumping duties on imports of certain open mesh fabrics of glass fibres originating in China — Discrepancies between language versions — Obligation to pay the anti-dumping duty)

REQUEST for a preliminary ruling under Article 267 TFEU from the Debreceni Közigazgatási és Munkaügyi Bíróság (Hungary), made by decision of 30 January 2013, received at the Court on 12 February 2013, in the proceedings

Nemzeti Adó- és Vámhivatal Észak-Alföldi Regionális Vám- és Pénzügyőri Főigazgatósága,

composed of R. Silva de Lapuerta, President of the Chamber, J.L. da Cruz Vilaça, G. Arestis, J.-C. Bonichot, and A. Arabadjiev (Rapporteur), Judges,

– the Hungarian Government, by K. Szíjjártó, M.Z. Fehér and G. Koós, acting as Agents,

1 This request for a preliminary ruling concerns the interpretation of the Integrated Tariff of the European Communities (‘the TARIC’) in Article 2 of 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).

2 The request has been made in proceedings between GSV Kft. (‘GSV’) and the Nemzeti Adó- és Vámhivatal Észak-Alföldi Regionális Vám- és Pénzügyőri Főigazgatósága (Regional Customs and Tax Directorate of Észak-Alföld, forming part of the National Treasury and Customs Authority; ‘the Tax Directorate’) concerning the payment of anti-dumping duties subsequent to the application of Commission Regulation (EU) No 138/2011 of 16 February 2011 imposing a provisional anti-dumping duty on imports of certain open mesh fabrics of glass fibres originating in the People’s Republic of China (OJ 2011 L 43, p. 9) and Council Implementing Regulation (EU) No 791/2011 of 3 August 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain open mesh fabrics of glass fibres originating in the People’s Republic of China (OJ 2011 L 204, p. 1).

3 The Combined Nomenclature (‘CN’) is based on the Harmonised Commodity Description and Coding System drawn up by the Customs Cooperation Council, now the World Customs Organisation, and established by the International Convention on the Harmonised Commodity Description and Coding System concluded at Brussels on 14 June 1983, which 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 Part One of the CN consists of a number of preliminary provisions. In that part, in Section I, containing general rules, subsection A, ‘General rules for the interpretation of the [CN]’, states:

‘Classification of goods in the [CN] 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.

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;

(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), 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;

(c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

5 Part Two of the CN contains Chapter 59, entitled ‘Impregnated, coated, covered or laminated textile fabrics; textile articles of a kind suitable for industrial use’, in Section XI, headed ‘Textiles and textile articles’, which includes heading 5911 20 00, worded as follows:

‘Heading 5911 applies to the following goods, which do not fall in any other heading of Section XI:

(a) textile products in the piece, cut to length or simply cut to rectangular (including square) shape (other than those having the character of the products of headings 5908 to 5910), the following only:

7 Chapter 70 of the CN, entitled ‘Glass and glassware’, includes heading 7019 59, worded as follows:

‘… certain specific Community measures cannot be dealt with in the framework of the [CN]; … it is therefore necessary to create additional Community subdivisions and to include them in an integrated tariff of the European Communities (TARIC); …’.

‘A [TARIC], which meets the requirements of the Common Customs Tariff, external trade statistics, the commercial, agricultural and other Community policies concerning the importation or exportation of goods, shall be established by the Commission.

(b) the additional Community subdivisions, referred to as ‘Taric subheadings', which are needed for the implementation of specific Community measures listed in Annex II;

10 With a view to imposing a provisional anti-dumping duty, the Commission inserted into the TARIC code 7019 59 00 10 which, in the version applicable when the provisional anti-dumping duties under Regulation No 138/2011 were imposed, reads as follows:

‘Open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m²’.

11 The TARIC code 7019 59 00 10, in the version applicable when the definitive anti-dumping duties were imposed under Regulation No 791/2011, adds that ‘fibreglass discs’ are excluded from that tariff heading.

13 Recitals 14 and 15 in the preamble to Regulation No 138/2001 state as follows:

‘(14) The product concerned is open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m² originating in the [People’s Republic of China] and currently falling within CN codes ex 7019 40 00, ex 7019 51 00, ex 7019 59 00, ex 7019 90 91 and ex 7019 90 99.

(15) Open mesh fabrics are made of glass fibre yarns and can be found in different cell sizes and weight per square metre. They are mostly used as reinforcement material in the construction sector (external thermal insulation, marble/floor reinforcement, wall repair).’

‘A provisional anti-dumping duty is hereby imposed on imports of open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m², currently falling within CN codes ex 7019 40 00, ex 7019 51 00, ex 7019 59 00, ex 7019 90 91 and ex 7019 90 99 (TARIC codes 7019 40 00 11, 7019 40 00 21, 7019 40 00 50, 7019 51 00 10, 7019 59 00 10, 7019 90 91 10 and 7019 90 99 50) and originating in the People’s Republic of China.’

‘A definitive anti-dumping duty is hereby imposed on imports of open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m², excluding fibreglass discs, currently falling within CN codes ex 7019 51 00 and ex 7019 59 00 (TARIC codes 7019 51 00 10 and 7019 59 00 10) and originating in the People’s Republic of China.’

16 Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’) provides:

‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238:

– resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions.

2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor.

However, the customs authorities may permit this period to be exceeded in duly justified exceptional cases.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

17 On 17 and 30 March, GSV sought the release for free circulation of goods consisting of fabric of glass fibres originating in China, which it declared under TARIC code 7019 59 00 90.

18 The Nemzeti Adó- és Vámhivatal Hajdú-Bihar Megyei Vám- és Pénzügyőri Igazgatóság (Provincial Customs and Tax Directorate of Hajdú-Bihar, forming part of the National Treasury and Customs Authority) found that the product in question fell within TARIC code 7019 59 00 10 on the ground that it had the characteristics described in that heading, namely open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m², and accordingly should not fall within the TARIC tariff heading 7019 59 00 90 used by GSV in its customs declaration.

19 As a consequence of that classification, the Hungarian customs authorities took the view that the product in question was subject to a provisional anti-dumping duty provided for in Article 1 of Regulation No 138/2011, then to a definitive duty provided for in Article 1 of Regulation No 791/2011 and required GSV to pay those anti-dumping duties.

20 GSV contested that decision before the Tax Directorate, arguing that the product which it had imported should be classified under TARIC heading 7019 59 00 90, given that it could not actually be classified as ‘szitaszövet’, the term used in the Hungarian language version of those regulations and TARIC code 7019 59 00 10. The Hungarian term ‘szitaszövet’ is translated, in particular, into English as ‘bolting cloth’ and into French as ‘gazes et toiles à bluter’, while the terms used in the English and French language versions of that TARIC code are ‘open mesh fabrics’ and ‘tissu à maille ouverte’, the translation of which into Hungarian corresponds to ‘hálós szövet’.

21 Since the defendant at first instance confirmed that decision, GSV brought an action before the referring court seeking a declaration that the tariff classification made by the Hungarian customs authorities is unlawful and the annulment of their decisions.

22 The parties to the main proceedings agree that the product in question is not a ‘szitaszövet’.

23 In those circumstances, the Debreceni Közigazgatási és Munkaügyi Bíróság decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

– is made of glass fibres which possess a styrene acrylic copolymer plastic coating,

complies with the material characteristics set out in recital 14 of the preamble and in Article 1(1) of [Regulation No 138/2011], which consist of

and, consequently, that TARIC code 7019 59 00 10 must be interpreted so that the material described above is included as such in that TARIC code, taking into account also the tariff classification and the various linguistic versions of Community law?

2. If the answer to the first question is in the affirmative, can payment of the anti-dumping duty be waived, on the basis of the Community legal order, for a legal or physical person which, trusting in the wording of the Regulation published in the language corresponding to its nationality — without ascertaining potentially different meanings in other language versions — on the basis of the general and well-known understanding of the legislation in that person’s language, imports into the territory of the European Union a product manufactured outside that territory, taking into account that, according to the language version that the person knows, that product is not included in the list of goods subject to anti-dumping duty, even if it may be determined, on the basis of a comparison of the different language versions of the rule of Community law, that Community law does make the product subject to anti-dumping duty?’

24 By its first question, the referring court asks, in essence, whether TARIC code 7019 59 00 10 must be interpreted as meaning that it covers products such as that at issue in the main proceedings, comprising in particular fabrics of glass fibres with openings of a cell size of 4 mm both in length and in width and weighing 136 g/m².

25 In accordance with its French language version, that tariff heading covers ‘tissus de fibre de verre à maille ouverte dont la cellule mesure plus de 1.8 mm tant en longueur qu’en largeur et dont le poids est supérieur à 35 g/m²’(open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m²).

26 However, the Hungarian language version of that tariff heading differs from the text set out in the preceding paragraph in that it uses the term ‘szitaszövet’, which is translated into French as ‘gazes et toiles à bluter’ (bolting cloth) and not as ‘open mesh fabric’.

27 In that regard, it must be borne in mind that it is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. EU provisions must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is a divergence between the various language versions of an EU text, the provision in question must thus be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (see Case C‑558/11 Kurcums Metal EU:C:2012:721, paragraph 48 and the case-law cited).

28 As regards the versions of TARIC code 7019 59 00 10 in the other EU languages, with the exception of the Hungarian language version, it is clear that they refer expressly, like the French language version set out in paragraph 26 of this judgment, to a ‘tissu à maille ouverte’ (open mesh fabric) and not to ‘gazes et toiles à bluter’ (bolting cloth). For example, the Spanish language version refers to ‘tejidos de malla abierta’, the German language version to ‘offenmaschige Gewebe’, the English language version to ‘open mesh fabrics’, the Polish language version to ‘tkaniny siatkowe o otwartych’ and the Swedish language version to ‘öppna maskor’.

29 The wording of the TARIC code 7019 59 00 10, in the versions set out in the preceding paragraph, thus suggests that that tariff heading is not intended to refer to ‘gazes et toiles à bluter’ (bolting cloth).

30 The general scheme and the purpose of that tariff heading corroborate that finding. It must be noted that the wording of CN heading 7019 refers to ‘glass fibres (including glass wool) and articles thereof (for example, yarn, woven fabrics)’ and thus designates exclusively products whose principal property is the fact that they are made from glass fibres. It follows therefrom that the fabric’s characteristic of being open mesh must of necessity be read in conjunction with that of its being made of glass fibres.

31 The term ‘gazes et toiles à bluter’ (bolting cloth) are understood in particular as having the usual meaning in common language of the verb ‘bluter’ (to bolt), which refers to the action of bolting, or filtering and eliminating, while the characteristics of fibreglass are, however, its properties of reinforcement and insulation, which is apparent in particular from recital 15 in the preamble to Regulation No 138/2011.

32 Furthermore, it must be noted that ‘gazes et toiles à bluter’ (bolting cloth) are expressly covered, including in the Hungarian language version of the CN, by CN heading 5911, entitled ‘Textile products and articles, for technical uses, specified in note 7 to this chapter’. It is clear that that note 7(a) to Chapter 59 of the CN states, expressly, that heading 5911 covers in particular ‘bolting cloth’, which is thus regarded as not falling in any other heading of Section XI of the CN, entitled ‘Textiles and textile articles’. It follows that ‘bolting cloth’ cannot fall within Section XIII of the CN either, which is entitled ‘Articles of stone, of plaster, of cement, of asbestos, of mica and of similar materials; ceramic products; glass and glassware’ which fall within CN heading 7019.

33 Moreover, it must be pointed out that TARIC code 7019 59 00 10 was introduced in order to impose anti-dumping duties, as is apparent from the wording of Regulations Nos 138/2011 and 791/2011, on certain open mesh fabrics of glass fibres originating in China.

34 It follows therefrom that any other interpretation, such as that put forward by the applicant in the main proceedings, would amount to circumventing the anti-dumping measures thus imposed.

35 It follows from the foregoing that TARIC tariff heading 7019 59 00 10 must be interpreted as covering open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m².

36 As regards whether the characteristics of the product imported by the applicant in the main proceedings, as described in the order for reference, correspond to all the characteristics of that tariff heading, it is necessary to point out that when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, in particular since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (see, to that effect, Case C‑500/04 Proxxon EU:C:2006:111, paragraph 23, and Joined Cases C‑320/11, C‑330/11, C‑382/11 and C‑383/11 Digitalnet and Others EU:C:2012:745, paragraph 61).

37 However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts and having regard to the information set out in the order for reference, provide it with all the guidance that it deems necessary (see, to that effect, Cases C‑260/00 to C‑263/00 Lohmann and Medi Bayreuth EU:C:2002:637, paragraph 28, and Case C‑56/08 Pärlitigu EU:C:2009:467, paragraph 23).

38 In that regard, it is appropriate to bear in mind settled case-law, according to which, 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, Proxxon EU:C:2006:111, paragraph 21; Case C‑140/08 Rakvere Lihakombinaat EU:C:2009:667, paragraph 42; and Digitalnet and Others EU:C:2012:745, paragraph 27 and the case-law cited).

39 With regard to the first characteristic referred to in TARIC code 7019 59 00 10, namely the fact that the fabric is made of fibreglass, it must be held, having regard to the information supplied by the referring court in response to a request for clarification put to it by virtue of Article 101 of the Rules of Procedure of the Court, that the threads which form the weave of the fabric imported by the applicant in the main proceedings are of fibreglass.

40 With regard to the second characteristic which a product must have to fall within TARIC code 7019 59 00 10, namely that it must be open mesh, it must be noted that the fact that the product imported by the applicant in the main proceedings comprises a weave formed of twisted thread and whose wefts are composed of two threads which, crossing each other, surround the warps, does not affect the tariff classification of the product in question since, as is apparent from the information supplied by the referring court, it does actually have openings of 4 mm by 4 mm.

41 That tariff heading then requires that the open mesh fabric of glass fibres have a cell size of more than 1.8 mm both in length and in width and weigh more than 35 g/m².

42 As is apparent from the wording of the first question referred, the product declared by the applicant in the main proceedings to the Hungarian customs authorities comprises a fabric with openings of 4 mm by 4 mm and which weighs 136 g/m², as stated in paragraph 40 of the present judgment.

43 Finally, it must be borne in mind that the intended use of the product may 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, inter alia, Case C‑229/06 Sunshine Deutschland Handelsgesellschaft EU:C:2007:239, paragraph 28; Joined Cases C‑208/06 and C‑209/06 Medion and Canon Deutschland EU:C:2007:553, paragraph 37; and Case C‑291/11 TNT Freight Management EU:C:2012:459, paragraph 33 and the case-law cited).

44 Thus, it must be pointed out that, having regard to recital 15 in the preamble to Regulation No 138/2011, the open mesh fabric made of glass fibres is intended for use as a reinforcing material in the construction sector, namely for external thermal insulation, marble/floor reinforcement and wall repair.

45 It is also apparent from the information supplied by the referring court in response to the request for clarification referred to in paragraph 39 of this judgment that the product imported by the applicant in the main proceedings is intended for use in the field of construction.

46 Having regard to all the foregoing, the answer to the first question is that TARIC code 7019 59 00 10 must be interpreted as meaning that it covers products such as that at issue in the main proceedings, comprising in particular fabrics of glass fibres with openings of a cell size of 4 mm both in length and in width and weighing more than 35 g/m² and intended for the field of construction.

47 By its second question, the referring court asks, in essence, whether the fact that the product covered by the customs declaration at issue in the main proceedings, while corresponding to the characteristics laid down in TARIC code 7019 59 00 10 and set out in the regulations subjecting it to anti-dumping duties, does not correspond to the designation given to it in that code and those regulations as published in the language of the Member State of origin of the declarant and on which alone the latter based its declaration is liable to entail the annulment of its tariff classification under that code made by the customs authorities on the basis of all the other language versions of that code and those regulations.

48 As follows from the settled case-law cited in paragraph 27 of this judgment, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. EU provisions must be interpreted and applied uniformly in the light of the versions existing in all EU languages.

49 In addition, as is apparent from the answer to the first question, TARIC code 7019 59 00 10 must be interpreted as meaning that it covers products comprising in particular fabrics of glass fibres with openings of a cell size of 4 mm both in length and in width and weighing more than 35 g/m² and intended for the field of construction.

50 Accordingly, if the product imported by the applicant in the main proceedings corresponds to the description of the product subject to the anti-dumping duties under Regulations Nos 138/2011 and 791/2011, its import into the European Union must be subject to payment of those duties.

51 In those circumstances, the customs authorities cannot be criticised for having classified that product under TARIC tariff heading 7019 59 00 10.

52 That being so, it must be pointed out that the foregoing considerations are without prejudice to any repayment or remittance of those anti-dumping duties under the procedure laid down in Article 239 of the Customs Code, provided that the conditions set out therein are met.

53 Having regard to all the foregoing considerations, the answer to the second question is that the fact that the product covered by the customs declaration at issue in the main proceedings, while corresponding to the characteristics laid down in TARIC code 7019 59 00 10 and set out in the regulations subjecting it to anti-dumping duties, does not correspond to the designation given to it in that code and those regulations as published in the language of the Member State of origin of the declarant and on which alone the latter based its declaration is not liable to entail the annulment of its tariff classification under that code made by the customs authorities on the basis of all the other language versions of that code and those regulations.

54 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.

1. Code 7019 59 00 10 of the Integrated Tariff of the European Communities established by Article 2 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that it covers products such as that at issue in the main proceedings, comprising in particular fabrics of glass fibres with openings of a cell size of 4 mm both in length and in width and weighing more than 35 g/m² and intended for the field of construction;

2. The fact that the product covered by the customs declaration at issue in the main proceedings, while corresponding to the characteristics laid down in code 7019 59 00 10 of the Integrated Tariff of the European Communities and set out in the regulations subjecting it to anti-dumping duties, does not correspond to the designation given to it in that code and those regulations as published in the language of the Member State of origin of the declarant and on which alone the latter based its declaration is not liable to entail the annulment of its tariff classification under that code made by the customs authorities on the basis of all the other language versions of that code and those regulations.

5911	Textile products and articles, for technical uses, specified in note 7 to this chapter:
...
5911 20 00	- Bolting cloth, whether or not made up …
5911 20 00		- Textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper-making or similar machines (for example, for pulp or asbestos-cement) …

7019	Glass fibres (including glass wool) and articles thereof (for example, yarn, woven fabrics):
		- Slivers, rovings, yarn and chopped strands …
			- Thin sheets (voiles), webs, mats, mattresses, boards and similar non-woven products:
…
7019 59	--Other
7019 59		--- Open mesh fabrics of glass fibres, of a cell size of more than 1.8 mm both in length and in width and weighing more than 35 g/m², excluding fibreglass discs

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> GSV (Judgment of the Court) [2014] EUECJ C-74/13 (9 April 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C7413.html Cite as: ECLI:EU:C:2014:243, EU:C:2014:243, [2014] EUECJ C-74/13

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