JUDGMENT OF 2. 7. 1981 — CASE 160/80 SMULING-DE LEEUW í INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN

In Case 160/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tariefcommissie [administrative court of last instance in revenue matters] of the Netherlands for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber), composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: Sir Gordon Slynn Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Observations, lodged under Article 20 of the Protocol on the Statute of the Court of Justice

A — Observations of the appellant in the main action

B — Observations of the French Government

— First xanthan gum does not fall within heading 13.02.

— Furthermore xanthan gum does not fall within heading 13.03 as it is too complex to be brought within the classification system which has been adopted.

C — Observations of the Commission

III — Oral procedure

Decision

Costs

I —. Facts and procedure

C. Agar-agar and other mucilages and thickeners, derived from vegetable products :

B. Other.

II —. Observations, lodged under Article 20 of the Protocol on the Statute of the Court of Justice

A —. Observations of the appellant in the main action

(a). In applying the wording of the tariff headings, which is in itself clear, is it nevertheless permissible to proceed on the basis of what is claimed to be the general plan of the nomenclature of the Common Customs Tariff?

(b). Are not the terms of headings 13.03 and 13.02 sufficiently clear to enable reliance to be placed on such a general plan in classifying goods in one or other of the two headings?

(c). Although it has thus been established that the general plan of the Common Customs Tariff is irrelevant to classification thereunder can that gum nevertheless be classified in headings 13.03 or 13.02 because it is prepared on an industrial scale?

B —. Observations of the French Government

—. First xanthan gum does not fall within heading 13.02.

—. Furthermore xanthan gum does not fall within heading 13.03 as it is too complex to be brought within the classification system which has been adopted.

C —. Observations of the Commission

1. Xanthan gum is not a high polymer produced industrially through biochemical action.

2. Although the chemical structure of that gum closely resembles certain products falling within heading 13.02 the gums there referred to are nevertheless of natural origin and form on certain trees by natural exudation or after an incision has been made, as is confirmed by the explanatory notes. Consequently xanthan gum cannot be classified in heading 13.02.

3. It is likewise impossible to classify xanthan gum in heading 13.03 since it does not constitute a thickener derived from vegetable products in view of the fact that it is produced from maize starch, which is already a product derived from vegetable matter. Thus xanthan gum is produced through a very complex synthesizing process whilst the Eroducts which are classified in eading 13.03 are derived from vegetable matter by simple methods. Accordingly it does not suffice that xanthan gum has properties comparable with the other products referred to in subheading 13.03.

4. In fact neither the properties of the product nor its manufacture or otherwise on an industrial scale are decisive for its classification in headings 13.02 and 13.03 but rather the fact that xanthan gum, being neither an extract nor derived from vegetable products by relatively simple means, is the product of an industrial process in which the basic substance, which furthermore is not a vegetable, undergoes fundamental structural modifications by means of a complex synthesizing procedure.

5. It is furthermore clear that a certain number of other high polymers and above all certain polysaccharides which resemble xanthan gum are classified in heading 39.06. The explanatory note to heading 39.06 shows that that heading includes not only artificial high polymers but also natural high polymers, as for example dextran, glycogen and heparin; it is thus absurd not to classify xanthan gum in heading 39.06 since it is largely comparable to those products from the point of view of its structure and the method of production.

III —. Oral procedure

1. By a judgment of 27 June 1980, which was received at the Court Registry on 10 July 1980, the Tariefcommissie of the Netherlands referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of headings 13.02, 13.03 and subheading 39.06 B of the Common Customs Tariff.

2. This question arose in the course of proceedings concerning the tariff classification of Keltről F, or xanthan gum imported into the Netherlands by Smuling-De Leeuw BV, Rotterdam, which was classified by the Inspecteur der Invoerrechten en Accijnzen [Inspector of Customs and Excise] (hereinafter referred to as the inspector), Rotterdam, under subheading 39.06 B of the Common Customs Tariff. This classification resulted in the imposition of customs duty on importation of 16 °/o.

3. The importer, having been unsuccessful in its objection to this classification, lodged an appeal with the Tariefcommissie against the rejection of its objection requesting that the decision of the inspector should be set aside and that the product should be classified in subheading 13.03 CIII of the Common Customs Tariff or in the alternative in heading 13.02 to both of which a nil rate of duty applies.

4. The description of the three tariff headings referred to is as follows :

5. The Tariefcommissie states that the product at issue as regards it nature and composition, corresponds to the goods described in headings 13.02 and 13.03 and that at the same time it belongs to the high polymers to which heading 39.06 relates and considers that General Rule A 3 (a) for the interpretation of the nomenclature of the Common Customs Tariff which states that the heading which provides the most specific description shall be preferred to headings providing a more general description must be applied. In the result the Tariefcommissie considers that headings 13.02 or 13.03 are applicable. However, in view of the contention of the inspector concerning the general plan of the tariff that products manufactured by biochemical processes, as in the case of the product in question, may not be classified, whatever the resemblance between industrial products and natural products, in Chapter 13 the headings of which relate to products obtained by means of simple, craft methods, the Tariefcommissie considered that a question of interpretation of the Common Customs Tariff was involved and that it was therefore bound to refer the case to the Court of Justice for a decision on that question of interpretation.

6. The Tariefcommissie therefore stayed the proceedings and referred to the Court of Justice the following question :

7. It appears from the wording of the question and from the reasons upon which the judgment making the reference is based that the Court has to establish whether the product in question should be classified as natural gum within the meaning of heading 13.02, or as other mucilage and thickener derived from vegetable products within the meaning of subheading 13.03 CIII, or again as other high polymer, within the meaning of subheading 39.06 B.

8. From the explanations given to the Court during oral argument and also from the terms of the judgment making the reference it is essentially a question of deciding whether or not the choice between the various possible classifications should be guided by a consideration of the fact that the product in question is manufactured on an industrial scale. In fact, however, although the question itself includes the expression on an industrial scale (op industriële schaal) in describing the production, the objection of the inspector is stated by the court itself in its judgment to be based on the general plan of a tariff which distinguishes between natural products and products “produced by simple, craft methods on the one hand, and on the other hand, industrial products or, as in the present case, products manufactured biochemically but the distinction thus highlighted has a greater bearing on the method of production than on the quantity produced.

9. The classification of the gum in question in heading 13.03 or 13.02 of the Common Customs Tariff conflicts, not only with the wording of the headings themselves, but also with the internal logic of Chapter 13 which covered, at the time of the events at issue, on the one hand primary vegetable products for dyeing or tanning, on the other hand gums, resins and other vegetable saps and extracts. Whatever linguistic versions of the tariff there may be, the chief feature of interest in this case is the nature of vegetable extracts of the products in question, in other words the fact that they are the result of processing a vegetable constituent or a natural vegetable product. This being established, the classification in that chapter by way of exception of products obtained by processing vegetable substances may only be justified by an express statement appearing in the description of the goods falling within that chapter.

10. This is not so in the case of xanthan gum. Moreover, it is to be expected that Chapter 13 should contain no special description for this product, since it does not correspond, as regards its nature, to a vegetable extract. It is in fact a very complex product obtained by an industrial chemical process in which the bacterium xanthomonas campestris is placed on a culture medium of maize sugar or maize starch to which are added nitrogen, potassium phosphate and certain trace elements, these substances helping to nurture micro-organisms; the xanthomonas campestris metabolically turns the constituents of the medium on which it is placed into xanthan gum. The product so obtained is then placed in isopropyl alcohol and dried and finally milled. It may be concluded from this process that, even if vegetable extracts are used in the composition of the culture medium and if its conversion is effected by a biological agent, the finished product results, not from the separation of a natural constituent of a vegetable or a vegetable extract but from a chemical change brought about through an industrial process. Xanthan gum is thus no longer a vegetable extract but a new substance manufactured by means of an industrial process of fundamental chemical conversion. In view of this finding it should be noted that even the documents submitted by the plaintiff in the main proceedings show that the products mentioned under heading 13.03 are obtained, either naturally, or by solution, or by a relatively simple chemical process.

11. It is therefore appropriate to state in reply to the Tariefcommissie that the systematic classification of the goods in the various sections and chapters of the Common Customs Tariff does not allow a gum which is used as a thickener, even if as regards its nature and composition it corresponds to the goods described in headings 13.02 and 13.03, to be classified in one of the headings of Chapter 13 of the Common Customs Tariff since the gum is prepared on an industrial scale by the action of the bacterium xanthomonas campestris on a culture medium of maize sugar and maize starch.

12. The costs incurred by the Commission of the European Communities and by the French Government are not recoverable.

13. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Second Chamber) in answer to the question referred to it by the Tariefcommissie, by a judgment of 27 June 1980, hereby rules: