5 September 2024 (*1)

(Reference for a preliminary ruling – Customs union – Common Customs Tariff – Regulation (EC) No 1186/2009 – Relief from import duties – Article 46 – Tags intended for the marking of fish – Concept of ‘scientific instrument or apparatus’ – Tariff classification – Combined Nomenclature – Subheadings 39269092 and 39269097)

In Case C‑344/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Augstākā tiesa (Senāts) (Supreme Court (Senate), Latvia), made by decision of 30 May 2023, received at the Court on 31 May 2023, in the proceedings

Pārtikas drošības, dzīvnieku veselības un vides zinātniskais institūts ‘BIOR’

Valsts ieņēmumu dienests,

THE COURT (Sixth Chamber),

composed of T. von Danwitz, President of the Chamber, P.G. Xuereb and A. Kumin (Rapporteur), Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–the Valsts ieņēmumu dienests, by I. Jaunzeme, ģenerāldirektore,

–the European Commission, by M. Salyková and A. Sauka, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This request for a preliminary ruling concerns the interpretation of (i) Article 46(a) of Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty (OJ 2009 L 324, p. 23) and (ii) tariff subheadings 39269092 and 39269097 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 Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16) (‘Regulation No 2658/87’), in the version resulting from Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017 (OJ 2017 L 282, p. 1) (‘the CN’).

2The request has been made in proceedings between the Pārtikas drošības, dzīvnieku veselības un vides zinātniskais institūts ‘BIOR’ (Institute of Food Safety, Animal Health and Environment ‘BIOR’, Latvia) (‘BIOR’) and Valsts ieņēmumu dienests (State Tax Authority, Latvia) concerning tariff classification and, therefore, the import duties payable by BIOR in relation to tags intended for the marking of fish.

Legal context

The HS

3The Harmonised Commodity Description and Coding System (‘the HS’) was established by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983 within the framework of the World Customs Organization (WCO), and approved, with its amending protocol 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 Explanatory Notes to the HS are drawn up within the WCO in accordance with the provisions of that convention.

4Under Article 3(1)(a) of that convention, each Contracting Party undertakes that its customs tariff and statistical nomenclatures will be in conformity with the HS, first, by using all the headings and the subheadings of the HS without addition or modification, together with their related numerical codes, secondly, by applying the General rules for the interpretation of the HS and all the section, chapter and subheading notes without modifying their scope, and, thirdly, by following the numerical sequence of the HS.

Rule 3 of the General rules for the interpretation of the HS provides:

‘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.’

The Explanatory Note relating to rule 3(b) of the General rules for the interpretation of the HS states:

‘(VI) This second method relates only to:

(i) Mixtures.

(ii) Composite goods consisting of different materials.

(iii) Composite goods consisting of different components.

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The Explanatory Notes relating to heading 392690 of the HS are worded as follows:

‘This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 of the Chapter) or of other materials of headings 39.01 to 39.14 …’

The CN

8As is apparent from Article 1(1) of Regulation No 2658/87, the CN, established by the European Commission, governs the tariff classification of goods imported into the European Union. That nomenclature reproduces the six-digit headings and subheadings of the HS, with only the seventh and eighth figures creating further subheadings which are specific to it.

Under Article 12(1) of Regulation No 2658/87, the Commission is to adopt each year by means of a regulation a complete version of the CN, together with the rates of duty in accordance with Article 1 of that regulation, as resulting from measures adopted by the Council of the European Union or by the Commission. That regulation is to be published not later than 31 October in the Official Journal of the European Union and is to apply from 1 January of the following year.

According to the General rules for the interpretation of the CN, which are set out in Part One, Section I(A), of the CN:

‘Classification of goods in the [CN] shall be governed by the following principles:

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.

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

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.

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:

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;

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;

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.

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’

Part Two of the CN, entitled ‘Schedule of customs duties’, has a Section VII, entitled ‘Plastics and articles thereof; rubber and articles thereof’. Chapter 39 of that section is entitled ‘Plastics and articles thereof’.

Note 1 of that Chapter 39 is worded as follows:

‘Throughout the nomenclature, the expression “plastics” means those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence.

Throughout the nomenclature, any reference to “plastics” also includes vulcanised fibre. The expression, however, does not apply to materials regarded as textile materials of Section XI.’

That Chapter 39 includes the following headings and subheadings of the CN:

CN code

Description

Conventional rate of duty (%)

Supplementary unit

Other articles of plastics and articles of other materials of headings 3901 to 3914:

– Other:

– – Made from sheet

– – – Other

Regulation No 1798/75

Article 3 of Regulation (EEC) No 1798/75 of the Council of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (OJ 1975 L 184, p. 1), as amended by Council Regulation (EEC) No 1027/79 of 8 May 1979 (OJ 1979 L 134, p. 1) (‘Regulation No 1798/75’), provides:

‘1. Scientific instruments and apparatus not included in Article 2 and imported exclusively for non-commercial purposes may be admitted free of Common Customs Tariff duties provided that:

(a)they are intended for:

–either public establishments principally engaged in education or scientific research, including those departments of public establishments which are principally engaged in education or scientific research,

–or private establishments principally engaged in education or scientific research and authorised by the competent authorities of the Member States to receive such articles duty free

and provided that

(b)instruments or apparatus of equivalent scientific value are not being manufactured in the Community.

…

–“a scientific instrument or apparatus” shall mean any instrument or apparatus which, by reason of its objective technical characteristics and the results which it makes possible to obtain is mainly or exclusively suited to scientific activities,

…’

Regulation No 1186/2009

Recitals 2 and 3 of Regulation No 1186/2009 state:

‘(2)In the absence of a specific measure of derogation adopted in accordance with the provisions of the Treaty, Common Customs Tariff duties are applicable to all goods imported into the Community. …

(3)However, in certain well-defined circumstances, where by virtue of the special conditions under which goods are imported the usual need to protect the economy is absent, such taxation is not justified.’

Article 1 of that regulation provides:

‘This Regulation sets out those cases in which, owing to special circumstances, relief from import duties, export duties and measures adopted on the basis of Article 133 [EC] shall be granted when goods are released for free circulation or are exported from the customs territory of the Community.’

Chapter XI of that regulation, entitled ‘Educational, scientific and cultural materials; scientific instruments and apparatus’, includes Articles 42 to 52 thereof.

Article 43 of that regulation is worded as follows:

‘The educational, scientific and cultural materials listed in Annex II shall be admitted free of import duties provided they are intended either:

(a)for public educational, scientific or cultural establishments or organisations; or

(b)for the establishments or organisations in the categories specified opposite each article in column 3 of Annex II, on condition that they have been approved by the competent authorities of the Member States to receive such articles duty-free.’

Article 44 of Regulation No 1186/2009 provides:

‘1. Subject to Articles 45 to 49, scientific instruments and apparatus which are not included in Article 43 shall be admitted free of import duties when they are imported exclusively for non-commercial purposes.

(a)public establishments principally engaged in education or scientific research and those departments of public establishments which are principally engaged in education or scientific research; or

(b)private establishments principally engaged in education or scientific research and authorised by the competent authorities of the Member States to receive such articles duty free.’

Article 46(a) of that regulation states:

‘For the purposes of Articles 44 and 45:

(a)“scientific instrument or apparatus” means any instrument or apparatus which, by reason of its objective technical characteristics and the results which it makes possible to obtain, is mainly or exclusively suited to scientific activities;

…’

Implementing Regulation (EU) No 1225/2011

Article 5 of Commission Implementing Regulation (EU) No 1225/2011 of 28 November 2011 for the purposes of Articles 42 to 52, 57 and 58 of Regulation No 1186/2009 (OJ 2011 L 314, p. 20) is set out in Chapter IV of that implementing regulation, entitled ‘Specific provisions relating to the admission free of import duties of scientific instruments and apparatus under Articles 44 and 46 of [Regulation No 1186/2009]’. That article provides:

‘For the purposes of point (a) of Article 46 of [Regulation No 1186/2009], the objective technical characteristics of a scientific instrument or apparatus shall be understood to mean those characteristics resulting from the construction of that instrument or apparatus or from adjustments to a standard instrument or apparatus which make it possible to obtain high-level performances above those normally required for industrial or commercial use.

Where it is not possible to establish clearly on the basis of its objective technical characteristics whether an instrument or apparatus is to be regarded as a scientific instrument or apparatus, reference shall be made to the use of the instrument or apparatus for which admission free of import duties is requested. If this examination shows that the instrument or apparatus in question is used for scientific purposes, it shall be deemed to be of a scientific nature.’

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

BIOR, the applicant in the main proceedings, imported tags of the type ‘T-bar’, ‘streamer’, ‘standard anchor t-bar’ and ‘tagging applicators’, namely tags which are plastic coated or made from polyethylene rods and intended to be attached to live fish in order to observe their migration and growth in the context of scientific research (‘the tags at issue’).

In June 2018, BIOR declared that the tags at issue fell within subheading 39269092 of the CN as ‘other articles of plastics and articles of other materials of headings 3901 to 3914’ which are ‘made from sheet’. BIOR claimed that those tags were ‘scientific instruments or apparatus’ imported exclusively for non-commercial purposes. In the light of that classification, those tags were exempt from customs duties.

By decision of 20 November 2018, the State Tax Authority classified the tags at issue in subheading 39269097 of the CN as ‘other articles of plastics and articles of other materials of headings 3901 to 3914’ which are not ‘made from sheet’, subject to a 6.5% rate of customs duties, on the ground that those tags could not be considered as ‘scientific instruments or apparatus’ within the meaning of Article 46(a) of Regulation No 1186/2009, as those tags are intended to mark the subject of the scientific study, allowing necessary information to be gathered for the research, but are not used for the specific activities normally performed using instruments. Consequently, by that decision, that authority imposed the payment of customs duties in the amount of EUR 612.20 on BIOR and value added tax (VAT) in the amount of EUR 128.56 as well as penalties for late payment.

25

BIOR brought an action for annulment of that decision to obtain a relief from the import duties concerning the tags at issue. By judgment of 18 September 2020, the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia), hearing the case on appeal, annulled that decision and upheld that exemption. It found that those tags could be considered as ‘scientific instruments’ within the meaning of Article 44 and Article 46(a) of Regulation No 1186/2009 as those tags are used exclusively for scientific and non-commercial purposes.

The State Tax Authority brought an appeal on a point of law against that judgment before the Augstākā tiesa (Senāts) (Supreme Court (Senate), Latvia), the referring court, claiming that the Administratīvā apgabaltiesa (Regional Administrative Court) had misinterpreted the scope of the relief from import duties under Article 44 of Regulation No 1186/2009, read in conjunction with Article 46(a) of that regulation, since the tags at issue simply provide information and cannot be classified as an ‘instrument’ within the meaning of those provisions. Furthermore, that relief must, in accordance with the Court’s case-law, be interpreted strictly.

27

BIOR maintains that, unless fish are tagged, scientists would not be able to research their migration patterns or growth or determine their survival rates, and so the tags at issue must be considered as ‘instruments’ intended to mark the subjects of scientific research which, by reason of their objective technical characteristics and the results they obtain, are exclusively or mainly suited to scientific activities. Furthermore, BIOR claims that those tags were imported exclusively for non-commercial purposes, which is not contested by the State Tax Authority.

28

The referring court states that BIOR and the State Tax Authority are in dispute as to whether the tags at issue must be classified under subheading 39269092 or 39269097 of the CN. However, that court points out that, given that the same rate of customs duties applies to both of those subheadings, that question is of secondary importance. The decisive factor is whether those tags fall within the concept of ‘scientific instrument or apparatus’, within the meaning of Article 46(a) of Regulation No 1186/2009, a concept that has not yet been interpreted by the Court.

29

However, the referring court states that the Court interpreted that concept in the context of Regulation No 1798/75 which, unlike Article 44 of Regulation No 1186/2009, contained an additional condition for relief from import duties, namely that no instruments or apparatus of equivalent scientific value were being manufactured in the Community.

30

First, the referring court states that it is apparent from the case-law resulting from the judgment of 26 June 1986, Nicolet Instrument (203/85, EU:C:1986:269, paragraph 21), that the ‘objective technical characteristics’ of an instrument are to be understood to mean those characteristics resulting from the construction of that instrument or from adjustments to a standard instrument which make it possible to obtain high-level performances above those normally required for industrial or commercial use.

31

Secondly, according to the referring court, it is apparent from the case-law resulting from the judgments of 2 February 1978, Universiteitskliniek (72/77, EU:C:1978:21, paragraph 15), of 29 January 1985, Gesamthochschule Duisberg (234/83, EU:C:1985:30, paragraph 27), and of 21 January 1987, Control Data Belgium v Commission (13/84, EU:C:1987:16, paragraph 16), that the criterion according to which, in order to be considered a ‘scientific instrument or apparatus’, the instrument or apparatus at issue must, by reason of its objective technical characteristics and the results which it makes possible to obtain, be ‘mainly or exclusively suited’ to scientific activities requires only that that instrument be primarily suitable for scientific activities, and the fact that it may also be suitable, secondarily, for other purposes, such as industrial use, is not a ground for disqualification.

32

Lastly, the referring court submits that it is apparent from the case-law resulting from the judgments of 10 November 1983, Gesamthochschule Essen (300/82, EU:C:1983:324, paragraph 15), and of 26 January 1984, Ludwig-Maximilians-Universität München (45/83, EU:C:1984:31, paragraphs 11, 12 and 14), that an object which, intrinsically, is not a means of research but a tool for performing scientific research cannot be regarded as a ‘scientific instrument or apparatus’, whereas objects which, by virtue of their particular technical structure and functioning, themselves serve directly as a means of scientific research can fall within that concept.

33

However, the question arises as to whether the case-law mentioned in paragraphs 30 to 32 above is applicable in the present case. On that point, the referring court notes that, according to the Court’s case-law, 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. Those provisions must be interpreted and applied uniformly in the light of the versions existing in all EU languages.

In that regard, the referring court states that, according to their usual meaning in everyday language, the terms ‘apparatus’ and ‘instrument’ carry different meanings in English, French, German and Latvian. First, regarding the term ‘apparatus’, the question arises as to whether it must be defined as a technical device, a tool or equipment which fulfils a function or rather as a set of technical elements, tools or pieces of equipment fulfilling such a function. Secondly, the term ‘instrument’ may be interpreted either broadly as a tool or means which can be used to perform a specific activity or task, or narrowly by posing the additional requirement that that tool or means must serve to carry out specific operations usually carried out with instruments.

35

It is in those circumstances that the Augstākā tiesa (Senāts) (Supreme Court (Senate)) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Must the expression “scientific instrument or apparatus” in point (a) of Article 46 of [Regulation No 1186/2009] be interpreted as meaning that it may include objects which, by virtue of their particular technical structure and functioning, themselves serve directly as a means of scientific research?

(2)

Must the [CN] be interpreted as meaning that subheading [39269092] of the [CN] may include fish tags made of plastic?’

Consideration of the questions referred

The first question

By its first question, the referring court asks, in essence, whether Article 46(a) of Regulation No 1186/2009 must be interpreted as meaning that tags which are plastic coated or made from polyethylene rods and which, by virtue of their technical design and functioning, serve, as such, as a scientific research tool, in that they are attached to live fish in order to observe their migration and growth, fall under the concept of ‘instruments’ or ‘apparatus’, which can be classified as ‘scientific’ within the meaning of that provision.

Under Article 46(a) of Regulation No 1186/2009 an ‘instrument or apparatus’ may be classified as being ‘scientific’ where, ‘by reason of its objective technical characteristics and the results which it makes possible to obtain’, it is ‘mainly or exclusively suited to scientific activities’.

In the first place, it must be ascertained whether the tags at issue may be classified as an ‘instrument’ or ‘apparatus’, within the meaning of that provision.

In that regard, it should be pointed out that neither Regulation No 1186/2009 nor Implementing Regulation No 1225/2011 provide a definition of the concept of ‘instrument’ or that of ‘apparatus’ nor do they, in that respect, refer to national law.

According to settled case-law, the meaning and scope of terms for which EU law provides no definition and makes no reference to the national law of the Member States must be determined by reference to their usual meaning in everyday language, while taking into account the context in which they are used and the objectives pursued by the legislation of which they form part (see, to that effect, judgments of 5 May 2022, DSR – Montagem e Manutenção de Ascensores e Escadas Rolantes, C‑218/21, EU:C:2022:355, paragraph 29, and of 22 February 2024, Randstad Empleo and Others, C‑649/22, EU:C:2024:156, paragraph 41 and the case-law cited).

In the present case, first, according to its usual meaning in everyday language, the term ‘apparatus’ is understood as an assembly of parts intended to function together or a set of technical elements organised into a more complete whole than a tool and which has a function. In the light of the information in the order for reference, it cannot be considered that the tags at issue constitute such an assembly of parts or such a set of technical elements, with the result that they are not capable of falling within that concept.

Secondly, the concept of ‘instrument’ covers, according to its usual meaning in everyday language, a tool or a manufactured object allowing the performance of an operation or activity. Thus, that meaning is sufficiently broad to be capable of including the tags at issue which, according to the information provided by the referring court, are tools or manufactured objects used to mark live fish.

As regards the context in which the concept of ‘instrument’ occurs in the legislation of which it forms part, it should be noted that Article 44(1) of Regulation No 1186/2009 exempts ‘scientific instruments’ which are imported exclusively for non-commercial purposes from import duties.

According to settled case‑law in matters of VAT, which also applies in respect of customs duties, the terms used to specify the exemptions are to be interpreted strictly, since those exemptions constitute exceptions to the general principle that VAT is to be levied on all goods and services supplied for consideration by a taxable person (judgment of 19 July 2012, Lietuvos geležinkeliai, C‑250/11, EU:C:2012:496, paragraph 35 and the case-law cited).

In that regard, contrary to the claims of the Commission in its written observations, the fact that the term ‘any’ appears before the term ‘instrument’ in the English-language version of Article 46(a) of Regulation No 1186/2009 cannot support a broad interpretation of the concept of ‘instrument’. Other language versions of that provision, namely the French- and German-language versions, which refer respectively to ‘un instrument’ and to ‘diejenigen Instrumente’, do not include a term equivalent to ‘any’. In accordance with settled case-law, 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. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is a divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (judgment of 21 March 2024, Cobult, C‑76/23, EU:C:2024:253, paragraph 25 and the case-law cited).

Nevertheless, the Court has already ruled that the concept of ‘scientific instrument’, within the meaning of Article 3(1) of Regulation No 1798/75, must be interpreted as including items used not as an object but as a tool of scientific research, namely where the research is carried out by means of that material, such that the role of that item in the research process is not purely passive (see, to that effect, judgments of 10 November 1983, Gesamthochschule Essen, C‑300/82, EU:C:1983:324, paragraph 15, and of 26 January 1984, Ludwig-Maximilians-Universität München, C‑45/83

EU:C:1984:31

paragraph 11

Apart from the additional condition of exemption provided for in Article 3(1) of Regulation No 1798/75, according to which ‘instruments or apparatus of equivalent scientific value [were] not being manufactured in the Community’, which no longer appears in Article 44(1) and (2) of Regulation No 1186/2009 and which is not decisive for the assessment of the concept of ‘scientific instrument’, the latter provision is worded in essentially identical terms to those of Article 3(1). Moreover, it must be noted that Article 3(3) of Regulation No 1798/75 and Article 46(a) of Regulation No 1186/2009 define that concept in entirely identical terms. Accordingly, it must be held that the case-law in relation to the interpretation of that concept in the context of Regulation No 1798/75, mentioned in the previous paragraph, is relevant for the purposes of defining the same concept within the meaning of Regulation No 1186/2009.

Accordingly, it must be held that the term ‘instrument’ when it must be classified as ‘scientific’, can be understood as covering not only the tools and objects manufactured to perform a specific activity, but also an item which, by virtue of its technical design and functioning, is intended to serve as a scientific research tool, as seems to be the case in respect of the tags at issue, which are attached to live fish, in order to observe their migration and growth.

As for the rest, the context in which the term ‘instrument’ appears in Regulation No 1186/2009, in Implementing Regulation No 1225/2011 and in the CN, and the objectives pursued by those regulations, are inconclusive in determining the meaning of that term.

In the light of the foregoing, it must be held, subject to the verifications which it is for the referring court to carry out, that the tags at issue fall within the concept of ‘instrument’, within the meaning of Article 46(a) of Regulation No 1186/2009.

In the second place, to be classified as ‘scientific instruments’ within the meaning of Article 46(a) of Regulation No 1186/2009, those tags must, by reason of their objective technical characteristics and the results which they make possible to obtain, be mainly or exclusively suited to scientific research.

As to whether the tags at issue possess ‘objective technical characteristics’, within the meaning of that provision, which makes them suited to scientific activities, it must be noted that, in accordance with the first paragraph of Article 5 of Implementing Regulation No 1225/2011, the ‘objective technical characteristics’ of a scientific instrument are defined as ‘those characteristics resulting from the construction of that instrument … or from adjustments to a standard instrument … which make it possible to obtain high-level performances above those normally required for industrial or commercial use’.

The present case concerns tags which are plastic coated or made from polyethylene rods and attached to fish, in order to observe their migration and growth in the context of scientific research. While it is true that, in the light of the information in the order for reference, such tags seem suited to be used for scientific purposes, it should, however, be noted that it does not appear that they possess characteristics as a result of their construction or their adjustment which make it possible to obtain high-level performances above those normally required for industrial or commercial use. As the Commission essentially stated in its written observations, it appears that tags such as the tags at issue may also have an appropriate use in aquaculture or recreational fishing, for industrial or commercial purposes.

While it is true, in accordance with the second paragraph of Article 5 of Implementing Regulation No 1225/2011, that an instrument is to be deemed to be of a scientific nature if it is used for the purposes of scientific activities, it must be noted that that presumption applies only where it is not possible to establish clearly on the basis of its objective technical characteristics whether the instrument at issue is to be regarded as a ‘scientific instrument’. In the light of the previous paragraph, in the present case, it appears possible to establish clearly that the tags at issue do not possess such ‘objective technical characteristics’ which make them suited to scientific activities.

Accordingly, subject to the verifications to be carried out by the referring court, the tags at issue do not possess ‘objective technical characteristics’ within the meaning of Article 46(a) of Regulation No 1186/2009, read in conjunction with Article 5 of Implementing Regulation No 1225/2011, which make them suited to scientific activities.

In any event, even if it were considered that the tags at issue possess such ‘objective technical characteristics’, those tags would not appear to be, due to those characteristics and the results which they make possible to obtain, ‘mainly or exclusively suited to scientific activities’ within the meaning of Article 46(a) of Regulation No 1186/2009. It should be recalled that that requirement entails verifying whether the instrument at issue is primarily suitable for scientific activities, namely for the acquisition or advancement of scientific knowledge, without excluding the possibility that it might also be suitable, secondarily, for other purposes, such as industrial or commercial use (see, by analogy, judgments of 29 January 1985, Gesamthochschule Duisburg, 234/83, paragraph 27, and of 21 January 1987, Control Data Belgium v Commission, 13/84, paragraph 16).

In the light of paragraph 53 above, it must be held that the tags at issue do not seem to be more suited to the performance of scientific activities than to other purposes, such as industrial or commercial purposes. Subject to the verifications which are for the referring court to carry out, those tags are not, by reason of their objective technical characteristics, assuming that they were established, and the results which they make possible to obtain, ‘mainly or exclusively suited to scientific activities’, within the meaning of Article 46(a) of Regulation No 1186/2009.

Consequently, it must be considered, as the Commission and the State Tax Authority did, subject to verification by the referring court, that the tags at issue do not fall within the concept of ‘scientific instrument’ within the meaning of Article 46(a) of Regulation No 1186/2009.

That finding is supported by both the case-law mentioned in paragraph 44 above, according to which the terms used to specify the exemptions from import duties are to be interpreted strictly, and by Article 1 of Regulation No 1186/2009, read in the light of recitals 2 and 3 thereof, pursuant to which relief from import duties is only justified in ‘certain well-defined circumstances, where by virtue of the special conditions under which goods are imported the usual need to protect the economy is absent’.

It follows from the foregoing that the answer to the first question is that Article 46(a) of Regulation No 1186/2009 must be interpreted as meaning that tags which are plastic coated or made from polyethylene rods and which, by virtue of their technical design and functioning, serve, as such, as a scientific research tool, in that they are attached to live fish in order to observe their migration and growth, do not fall within the concept of ‘scientific instruments’, within the meaning of that provision.

The second question

By its second question, the referring court asks, in essence, whether the CN must be interpreted as meaning that tags which are plastic coated or made from polyethylene rods and which are attached to live fish for the purposes of scientific research fall under subheading 39269092 of the CN or whether such tags fall under subheading 39269097 of that nomenclature.

In the first place, it should be noted, as the referring court and the Commission did, that that question is of secondary importance to the decision in the main proceedings, since the rate of customs duties applicable to goods falling under each of those two subheadings is identical, that is, 6.5 %.

However, it cannot be ruled out that the referring court might have to decide whether the State Tax Authority correctly classified the tags at issue, even if that has no impact on the applicable rate of customs duties.

In the second place, it should be noted that, when the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, its task is to provide the national courts 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. The description, for classification purposes, of the goods at issue is the result of a purely factual finding which it is not for the Court to make in the context of a reference for a preliminary ruling (judgment of 27 April 2023, X and Inspecteur van de Belastingdienst Douane, C‑107/22, EU:C:2023:346, paragraph 17 and the case-law cited).

Moreover, under General rule 1 for the interpretation of the CN, the tariff classification of goods in the CN is to be determined according to the terms of the headings and any relative section or chapter notes, the titles of sections, chapters and subchapters being provided for ease of reference only. 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 that nomenclature and of the notes to the sections or chapters (judgment of 27 April 2023, X and Inspecteur van de Belastingdienst Douane, C‑107/22, EU:C:2023:346, paragraph 18 and the case-law cited).

Moreover, the Court has repeatedly held that, although the Explanatory Notes to the HS and to the CN do not have binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (judgment of 27 April 2023, X and Inspecteur van de Belastingdienst Douane, C‑107/22, EU:C:2023:346, paragraph 19 and the case-law cited).

It follows from the wording of heading 3926 of the CN that that heading covers ‘other articles of plastics and articles of other materials of headings 3901 to 3914’.

In addition, Note 1 of Chapter 39 of the CN defines the expression ‘plastics’ as covering, namely, ‘those materials of headings 3901 to 3914 which are or have been capable, either at the moment of polymerisation or at some subsequent stage, of being formed under external influence (usually heat and pressure, if necessary with a solvent or plasticiser) by moulding, casting, extruding, rolling or other process into shapes which are retained on the removal of the external influence’.

The decision of the referring court does not include elements giving rise to doubts as to the relevance of a classification of the tags at issue under heading 3926 of the CN, as defined in Note 1 of Chapter 39 of the CN.

Nevertheless, it will be for the referring court to verify whether, as the Commission claimed in its written observations, tags of the type ‘streamer’ include, in addition to a polyethylene band, a metal tip used to attach those tags to fish. If that is the case, it would be appropriate to proceed with the tariff classification of those tags by applying General rule 3 for the interpretation of the CN.

In that regard, it follows from General rule 3(a) for the interpretation of the CN that the heading which provides the most specific description is to be preferred to headings providing a more general description. However, when two or more headings each refer to only part of the materials contained in mixed or composite goods, those headings are to be regarded as equally specific in relation to those goods. As regards tags which include, in addition to a polyethylene band, a metal tip, it should be noted that the two parts of those tags are composed of materials which do not fall under the same heading of the CN, so that those headings must be considered to be equally specific and that, therefore, a tariff classification does not appear to be possible according to that general rule.

If the referring court were to conclude that that is indeed the case, for the purposes of the tariff classification of tags of the type ‘streamer’, General rule 3(b) for the interpretation of the CN should be applied, according to which ‘mixtures [and] composite goods consisting of different materials or made up of different components …, which cannot be classified by reference to [General rule 3(a) for the interpretation of the CN] shall be classified as if they consisted of the material or component which gives them their essential character’.

That essential character may be determined by asking whether the goods would retain their characteristic properties if one or the other of their constituents were removed. As indicated by paragraph VIII of the Explanatory Note to the HS concerning rule 3(b) of the General rules for the interpretation of the HS, which corresponds to General rule 3(b) for the interpretation of the CN, the factor which determines the essential character of the goods may, depending on the type of goods, be determined for example by the nature of the constituent material or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods (see, to that effect, judgment 22 June 2023, PR Pet, C‑24/22, EU:C:2023:507, paragraph 66 and the case-law cited).

In this case, if, as the Commission maintains, the metal tip with which the tags of the type ‘streamer’ are fitted serves only to attach them to the body of the fish, it would have to be concluded that the polyethylene band of which those tags are composed gives them their essential character, so that, in accordance with General rule 3(b) for the interpretation of the CN, those tags should be classified under heading 3926 of the CN, which it is, however, for the referring court to verify.

If that is the case, the referring court will have to verify, in the light of General rule 1 for the interpretation of the CN and the case-law referred to in paragraphs 64 to 66 above, under which subheading of heading 3926 of the CN the tags at issue may be classified, in the light of their characteristics and their objective properties, it being noted that the decision of the referring court does not include any element capable of justifying a classification of those tags in any subheading other than subheading 39269097 of the CN, entitled ‘Other’.

In the light of the foregoing, the answer to the second question is that the CN must be interpreted as meaning that tags which are plastic coated or made from polyethylene rods and which are attached to live fish for the purposes of scientific research fall under subheading 39269097 of the CN, on the condition, however, that those tags are either composed exclusively of ‘plastics’ within the meaning of Note 1 of Chapter 39 of the CN, or that the plastic gives them their essential character, if they are mixtures or composite goods consisting of different materials or made up of different components, within the meaning of General rule 3(b) for the interpretation of the CN, which cannot be classified by reference to point (a) of that general rule.

Costs

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.

On those grounds, the Court (Sixth Chamber) hereby rules:

Article 46(a) of Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty

must be interpreted as meaning that tags which are plastic coated or made from polyethylene rods and which, by virtue of their technical design and functioning, serve, as such, as a scientific research tool, in that they are attached to live fish in order to observe their migration and growth, do not fall under the concept of ‘scientific instruments’, within the meaning of that provision.

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, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000, in the version resulting from Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017,

must be interpreted as meaning that tags which are plastic coated or made from polyethylene rods and which are attached to live fish for the purposes of scientific research fall under subheading 39269097 of that nomenclature, on the condition, however, that those tags are either composed exclusively of ‘plastics’ within the meaning of Note 1 of Chapter 39 of that nomenclature, or that the plastic gives them their essential character, if they are mixtures or composite goods consisting of different materials or made up of different components, within the meaning of General rule 3(b) for the interpretation of that nomenclature, which cannot be classified by reference to point (a) of that general rule.

[Signatures]

*1 Language of the case: Latvian.