Inspecteur van de Belastingdienst – Douanedistrict Rotterdam

(Reference for a preliminary ruling from the Gerechtshof te Amsterdam)

(Common Customs Tariff – Combined Nomenclature – Tariff classification – Gas‑filled balloons)

Judgment of the Court (Sixth Chamber), 13 July 2006

Summary of the Judgment

Common Customs Tariff – Tariff headings – Subheading 9503 90 32 (other toys of plastics, not mechanically operated)

(Commission Regulation No 442/2000)

Subheading 9503 90 32 (other toys of plastics, not mechanically operated) of the Combined Nomenclature of the Common Customs Tariff, in the version set out in Regulation No 1832/2002 amending Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff must be interpreted as meaning that it covers gas‑filled balloons made of aluminised, bonded plastic foil, the plastic foil forming the exterior of the balloon, such as those described in point 3 of the table set out in the Annex to Regulation No 442/2000 concerning the classification of certain goods in the Combined Nomenclature.

The classification decided upon by the Commission in that regulation is applicable by analogy to balloons having the same composition, but in which the plastic foil forms the inside of the balloon.

(see paras 16, 28, 33, 35, operative parts 1 and 2)

13 July 2006 (*)

(Common Customs Tariff – Combined Nomenclature – Tariff classification – Gas‑filled balloons)

In Case C‑14/05,

REFERENCE for a preliminary ruling under Article 234 EC from the Gerechtshof te Amsterdam (Netherlands), made by decision of 28 December 2004, received at the Court on 19 January 2005, in the proceedings

Inspecteur van de Belastingdienst - Douanedistrict Rotterdam,

THE COURT (Sixth Chamber),

composed of J. Malenovský, President of the Chamber, S. von Bahr and U. Lõhmus (Rapporteur), Judges,

Advocate General: A. Tizzano,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Anagram International Inc., by K. Winters, advocaat and J.A.H. Hollebeek, adviser,

– the Netherlands Government, by H.G. Sevenster and D.J.M. de Grave, acting as Agents,

– the Commission of the European Communities, by J. Hottiaux, acting as Agent, and by F. Tuytschaever, avocat,

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

gives the following

This reference for a preliminary ruling concerns, first, the interpretation of the Combined Nomenclature of the Common Customs Tariff (‘the CN’), 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 Commission Regulation (EC) No 1832/2002 of 1 August 2002 (OJ 2002 L 290, p. 1) and, secondly, the interpretation and, if necessary, the validity of point 3 of the table set out in the Annex to Commission Regulation (EC) No 442/2000 of 25 February 2000 concerning the classification of certain goods in the Combined Nomenclature (OJ 2000 L 54, p. 33).

The reference was made in proceedings between Anagram International Inc. (‘Anagram’), a company established in the United States of America, and the Inspecteur van de Belastingdienst - Douanedistrict Rotterdam (the Rotterdam district customs inspector) (‘the Inspector’) concerning the tariff classification for a helium‑filled balloon.

Legal framework

Community law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

17By its second question, which it is appropriate to examine first, for, if the answer to this question is in the negative, the first question would be redundant, the referring court raises the question of the validity of point 3 of the table set out in the Annex to Regulation No 442/2000 in so far as it classifies balloons made of aluminised, bonded plastic foil, in which the plastic foil forms the exterior, under subheading 9503 90 32 of the CN.

18According to settled case-law, the Council of the European Union has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a broad discretion to define the subject-matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures referred to in Article 9 of Regulation No 2658/87 does not authorise it to alter the subject-matter and the scope of the tariff headings (see, to that effect, Krings, paragraph 26, and the case‑law cited).

19It is therefore necessary to consider whether subheading 9503 90 32 of the CN must be interpreted as covering products such as the balloons described in point 3 of the table set out in the Annex to Regulation No 442/2000.

20It is also settled case‑law that, in the interests of legal certainty and for 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. The Explanatory Notes drawn up by the Commission as regards the CN and by the World Customs Organisation as regards the HS may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see Case C‑467/03 Ikegami [2005] ECR I‑2389, paragraph 17).

21The intended use of a product may constitute an objective classification criterion if it is inherent in the product; the inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see Ikegami, paragraph 23, and the case‑law cited).

22Anagram submits that the balloon described in point 3 of the table annexed to Regulation No 442/2000 cannot be characterised as a ‘toy’ as referred to in subheading 9503 90 32 of the CN. Since such a balloon can only float in the air, it cannot be used for amusement or play. Moreover, because of the material from which it is made, it is not sufficiently resistant or durable to be used as a toy. It does not correspond to the description of heading 9503 of the CN or to the description of the HS Explanatory Notes on that heading.

23In that connection, it follows from the HS Explanatory Notes on heading 9503 that a toy as referred to in that heading is an object intended essentially for the amusement of persons (children or adults).

24It must be held that the balloons in question have that characteristic notwithstanding that the material from which they are made is not resistant or durable, since the fact that they do not last long and that they float in the air does not prevent children in particular from enjoying and playing with those objects.

25Moreover, the Commission’s classification of the balloons in Regulation No 442/2000 is supported by the HS Explanatory Notes on heading 9503, which state that that heading includes toy balloons and toy kites, as well as balls (other than those for funfair, table, parlour or sporting games).

26Furthermore, it is irrelevant that those balloons can also be used as festive articles. If the objective characteristic of a product can be established at the time of customs clearance, the fact that it may also be possible to envisage another use for that product will not preclude its classification for legal purposes. For its classification for customs purposes, that product does not have to be solely or exclusively intended for use corresponding to that objective characteristic. It suffices if that is the main use for which it is intended (see, to that effect, Case C‑395/93 Neckermann Versand [1994] ECR I‑4027, paragraphs 8 and 9).

27Finally, the wording of subheadings 9503 90 and 9503 90 32 of the CN does not provide a distinct criterion which identifies gas‑filled balloons. It contains only two general conditions in order for a product to fall within subheading 9503 90 32 of the CN, namely, that it is made from plastic and that it is not mechanically operated. Those two conditions are met by the goods referred to in point 3 of the table set out in the Annex to Regulation No 442/2000.

28Consequently, the answer to be given to the referring court is that consideration of the second question has disclosed nothing capable of affecting the validity of Regulation No 442/2000 in so far as the products referred to in point 3 of the table set out in its Annex are classified under subheading 9503 90 32 of the CN.

29As regards the first question, which asks whether the product at issue in the main proceedings must also be classified under subheading 9503 90 32 of the CN, it should be noted that a classification regulation is of general application in so far as it does not apply to an individual trader but, in general, to products which are the same as that examined by the Customs Code Committee which has given its opinion for the purposes of that regulation. In the interpretation of a classification regulation, in order to determine its scope, account must be taken, inter alia, of its statement of reasons (Krings, paragraph 33, and the case‑law cited).

30Anagram maintains that, having regard to the description set out in point 3 of the table set out in the Annex to Regulation No 442/2000, the product at issue does not fall within the scope of that point. It draws attention to the explicit manner in which the balloon is described, namely that it consists of plastic foil on the exterior of which an aluminium layer is bonded. According to Anagram, that type of balloon is the only one referred to in that provision. In the product at issue, the plastic foil forms the inside of the balloon.

31In that regard, it should be stated that the product at issue in the main proceedings is admittedly not identical to the product described in point 3 of the table set out in the Annex to Regulation No 442/2000, in that it does not correspond, in every respect, to the description of the goods contained in that point. Consequently, as the Netherlands Government correctly points out in its written observations, that regulation is not directly applicable to that product.

32Nevertheless, as the Court has already held, the application by analogy of a classification regulation, such as Regulation No 442/2000, to products similar to those covered by that regulation facilitates a coherent interpretation of the CN and the equal treatment of traders (see Krings, paragraph 35).

33The only difference between the product at issue and the product referred to by the description contained in point 3 of the table set out in the Annex to Regulation No 442/2000 consists in a mere inversion of the materials from which the product is made and, as the Commission also notes, its principal characteristics are not affected. It follows that that regulation is applicable to Anagram’s product by analogy.

34Moreover, that finding is confirmed by the statement of reasons relating to point 3, according to which products may be printed with different motifs, which, in the present case, relate mainly to various festive occasions, without however influencing the classification as a toy balloon.

35Accordingly, the reply to the first question must be that the classification decided upon by the Commission in Regulation No 442/2000, as regards the product described in point 3 of the table set out in the Annex thereto, is applicable by analogy to gas‑filled balloons made of aluminised, bonded plastic foil, the plastic foil forming the inside of the balloon.

36In the light of the foregoing, it is not necessary to reply to the third question.

Costs

37Since 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:

1.Consideration of the second question has disclosed nothing capable of affecting the validity of Commission Regulation (EC) No 442/2000 of 25 February 2000 concerning the classification of certain goods in the Combined Nomenclature in so far as the products referred to in point 3 of the table set out in the Annex thereto are classified under subheading 9503 90 32 of the Combined Nomenclature of the Common Customs Tariff, 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 Commission Regulation (EC) No 1832/2002 of 1 August 2002.

2.The classification decided upon by the Commission of the European Communities in Regulation No 442/2000, as regards the product described in point 3 of the table set out in the Annex thereto, is applicable by analogy to gas‑filled balloons made of aluminised, bonded plastic foil, the plastic foil forming the inside of the balloon.

[Signatures]

*

Language of the case: Dutch.