OPINION OF SIR GORDON SLYNN — CASE 234/81
of approximately 66% aluminium hydroxide, approximately 33%
polymethyl methacrylate and a very small percentage of catalytic and
other curing agents, falls under subheading 39.02 C XII of the Common
Customs Tariff when it is imported in the form of slabs, and under subheading 39.07 B V (d) when it is imported in the form of articles made of
that material, and is not classifiable under any other heading of the
Common Customs Tariff.
O'Keeffe
Bosco
Koopmans
Delivered in open court in Luxembourg on 7 October 1982.
For the Registrar
H. A. Rühl
Principal Administrator
A. O'Keeffe
President of the First Chamber
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 8 JULY 1982
My Lords,
The Commercial Court of the Queen's
Bench Division of the High Court in
England asks for a preliminary ruling,
pursuant to Article 177 of the EEC
Treaty, as to whether a product called
"Corian" falls under heading 68.11 of
the Common Customs Tariff which
covers, inter alia, artificial stone, or
3528
under headings 39.02 C XII and 39.07
B V (d), which cover certain polymers
and plastics, or under any other heading.
The question is referred in an action
before the Commercial Court in which
the first Plaintiffs are E. I. Du Pont de
Nemours and Company, hereinafter
called
"Du
Pont",
a
corporation
established and resident in Delaware,
with a very substantial business in the
DU PONT DE NEMOURS v COMMISSIONERS OF CUSTOMS AND EXCISE
manufacture and sale of products for
domestic and industrial use. The second
Plaintiffs are Dewfield, an unlimited
company incorporated and resident in
England,
and
trading
as
builders'
merchants. "Corian" is the trade mark of
a product manufactured by Du Pont and
purchased by Dewfield for re-sale in the
United Kingdom. Du Pont and Dewfield
asked the Commercial Court to declare
that Corian is properly to be classified
under heading 68.11 of the Common
Customs Tariff. The Commissioners of
Customs and Excise, who are the
Defendants in the proceedings before the
Commercial Court, contend that the
product is to be classified under heading
39.02 when imported in the form of
sheets, and under heading 39.07 when
imported in the form of articles made
therefrom.
In the proceedings before this Court the
Commission supports the contention of
the Commissioners of Customs and
Excise.
An agreed summary of the properties of
Corian
is
succinctly
and
helpfully
included in the order for reference. From
this it appears that Corian is a non­
structural building material, represented
by the manufacturers as having the
appearance of marble. It has a wide
range of applications in homes and
hotels
and
commercial
and
public
buildings. It is cast in slabs of various
thicknesses and in the shapes of basins,
sinks and similar items. These must be
worked and finished by the installer. It is
a
solid,
translucent,
homogeneous
material which cannot be moulded,
vacuum-formed or heat-treated once it
has been cast and set, but can be worked
with tools such as saws or drills having
carbide cutting edges. It is composed of
two main elements, apart from catalytic
and other curing agents. The first main
element, comprising two-thirds of the
product by volume (and apparently half
by weight) is described by the Plaintiffs
as gibbsite and by the Defendants as
aluminium hydroxide. The latter, it
seems, is a hydrate of alumina in crystal
form, extracted by a chemical process
from bauxite ore, as mined in Arkansas,
USA. The second main element is a
plastic material known as polymethyl
methacrylate.
It was stated at the hearing before this
Court that the patent covering "Corian"
extends to products made with minerals
other
than
gibbsite
(or
aluminium
hydroxide). This
case
however,
is
concerned only with the product manu­
factured in accordance with the process
described in the Order for Reference.
Headings 39.02 und 39.07 read:
"39.02: Polymerization and copolymerization products (for example,
polyethylene, polytetrahaloethylenes,
polyisobutylene,
poly­
styrene, polyvinyl chloride, poly­
vinyl acetate, polyvinyl chloroacetate and other polyvinyl de­
rivatives, polyacrylic and polymethacrylic
derivatives,
coumarone-indene resins) . . .
C. ...
XII. . . . methacrylic
mers
poly­
39.07: Articles of materials of the kinds
described in headings Nos 39.01
to 39.06."
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OPINION OF SIR GORDON SLYNN — CASE 234/81
and heading 68.11 reads:
"Articles
of
cement (including
slag
cement), of concrete or of artificial stone
(including granulated marble agglomer­
ated with cement), reinforced or not."
It is accepted that Corian can fall within
this heading only if it is an "artificial
stone".
Corian, made as is described, cannot be
said to be exclusively a "polymerization
or copolymerization product". On the
other hand, one of its constituent parts
(polymethyl methacrylate) is accepted to
be a methacrylic polymer, which is
specifically mentioned in heading 39.02
C XII. The other constituent or material
used
to make
Corian
(gibbsite
or
aluminium
hydroxide)
falls
outside
Article 39.
Rule 2 (b) of the Rules for the In­
terpretation of the Nomenclature of the
Common
Customs
Tariff
(hereafter
called
"the
Interpretation
Rules")
provides in part:
"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 sub­
stances. 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."
Accordingly the reference in heading
39.02 to methacrylic polymers is to be
taken to include a reference to Corian,
3530
and the reference in heading 39.07 to
articles of methacrylic polymers is to be
taken to include a reference to articles
made of Corian. Prima facie then, Corian
falls within headings 39.02 and 39.07.
Can it be said that Corian is also, prima
facie, classifiable
under
some
other
heading or headings so that Rule 3 of
' the Interpretation Rules applies?
In view of Rule 2 (b) it must be
considered
whether
Corian
can
be
classified by reference to "gibbşite",
which the Plaintiffs say is the other
element, or to aluminium hydroxide,
which the Commissioners of Customs
and Excise say is the other element. If
the constituent is gibbsite, that seems
clearly to be a metallic ore which at first
glance falls under heading 26.01. Note 2
to the Chapter provides, however, that
the heading does not include minerals
which have been submitted to processes
not normal in the metallurgical industry.
The Commission's contention that the
mineral was obtained by a process not
normal to the metallurgical industry has
not been challenged, and it is not
asserted or shown that this gibbsite was
obtained by such a process. Heading
26.01 does not in my view apply. If the
constituent
is
aluminium
hydroxide,
which is expressly mentioned in heading
28.20, Corian is excluded therefrom by
Note
1 (a) to the Chapter which
provides
(subject
to
immaterial
exceptions) that the headings are to be
taken to apply only to separate chemical
elements and separate chemically-defined
compounds, which Corian is not alleged
to be.
There remains Article 68.11, on which
the Plaintiffs rely, and in particular the
item "artificial stone". This phrase seen
alone can be said as a matter of ordinary
DU PONT DE NEMOURS v COMMISSIONERS OF CUSTOMS AND EXCISE
language to be wide enough to include
any product which is not stone, but
which looks like stone, has the attributes
of stone and can be put to the uses to
which stone is put. In the Common
Customs
Tariff
that
phrase
must,
however, be construed in its context, or
in accordance with "the general plan of
IMCOthat heading" (Case 165/78,
Michaelis v Oberfinanzdirektion
Berlin
[1979] ECR 1837 at p. 1844). It is also
permissible to have regard
to
the
meaning which the phrase has in the
relevant trade or branch of science or
technology and to the
Explanatory
Notes, which even though they cannot
modify the clear meaning of the text
otherwise ascertained, may be a helpful
guide in interpreting the tariff headings
(see Case 183/73, Osram v Oberfinanzdirektion [1974] ECR 477 at p. 486 und
Case 54/79, Hako-Schuh v Hauptzollamt
Frankfurt [1980] ECR 311 at p. 318).
Taking first the context, it seems that the
other items in the heading (cement,
concrete
and
granulated
marble
agglomerated
with
cement)
would
normally be understood
to
include
elements of natural stone even if, as is
suggested, it is today possible to find
concrete without natural stone. That is
some indication that "artificial stone"
includes elements of natural stone. The
trend of dictionary definitions produced
to the Court, although not unanimous,
supports the contention that in technical
parlance, artificial stone includes as part
of its composition natural stone. Thus,
for example, Chambers' Dictionary of
Science and Technology states that arti­
ficial stone as a building term means:
"a pre-cast imitation of natural stone
made in block moulds. The interior of
the block is of concrete, the required
exterior face of cement mixed with dust
or chippings of the natural stone to be
imitated."
Moreover, if "artificial stone" is not to
be read in this limited way, it would
embrace a very wide range of products
many of which would consist wholly of
synthetic materials. The result of customs
officers' decisions is likely to be more
precise and more consistent if the initial
question is whether the product contains
elements of natural stone as is contended
by the Commission.
The Customs Cooperation
Council's
Explanatory Notes state that: "Artificial
stone is an imitation of natural stone
usually obtained by agglomerating pieces
of natural stone (limestone, marble,
granite, porphyry, serpentine, etc.) with
lime or cement or other binders (e.g.
artificial plastic material). Articles of arti­
ficial stone include those of 'terrazzo',
'granito', etc."
The Plaintiffs place much stress on the
word "usually" which they are entitled
to argue, prima facie, indicates that there
are other cases, exceptionally, which fall
within this category. If, as is submitted,
"usually" qualifies "agglomerating" then
the notes do not help the Plaintiffs since
the
exceptions
arise
where
other
3531
OPINION OF SIR GORDON SLYNN — CASE 234/81
processes than "agglomerating" are used
to unite the natural stone with a binder.
If it does not do so, then I should not in
any event regard the Explanatory Notes
as expanding by the use of the word
"usually" what is otherwise the correct
approach. In my opinion (despite the
arguments to the contrary)
artificial
stone in the heading includes only a
substance containing elements of natural
stone.
The Plaintiffs rely on decisions of the
Court which stress the importance of
looking
at
the
characteristics
and
objective properties of the product. I
would accept that feel, appearance,
brittleness, translucence, homogeneous
structure,
durability,
porosity
and
reaction to heat and flame are factors to
be considered in deciding whether the
product is artificial stone, and that in the
present case these suggest the quality of
stone rather than plastic. But as I see it
these factors come into play only if the
product first contains elements of natural
stone.
Corian does not, it seems to me, contain
elements of natural stone. Bauxite is a
mineral-bearing ore rather than a stone,
and the substance extracted from it, even
if properly classified as gibbsite, is itself
not stone. It is, it seems on the material
before the Court, a crystalline mineral;
aluminium hydroxide is a metallic oxide.
On this basis, it seems to me that Corian
does not fall under heading 68.11, so
that Rule 3 of the Interpretation Rules
does not have to be considered.
3532
If on the other hand it is not necessary
that a product should contain elements
of natural stone before it can, for the
purposes of the Common
Customs
Tariff, be classified as artificial stone,
then I would accept that Corian falls
prima facie within heading 68.11 for the
reasons advanced by the Plaintiffs. Since
I consider that it also falls, prima facie,
within headings 39.02 and 39.07, it is
necessary to apply the principle set out in
Rule 3 of the Interpretation Rules. Rule
3 (a) provides that the heading providing
the more specific description is to be
preferred to the headings providing a
more general description. I do not accept
the
Plaintiff's
contention
that
the
description given in heading 68.11 is
more specific than that given in heading
39.02. The Plaintiffs can succeed only if
the term "artificial stone", in heading
68.11 is so broad as to encompass "any
material which had the characteristics of
an imitation of natural stone", as the
first Plaintiffs put it. That seems to me to
open up the item in the heading to a
wide range of products and to be a much
less specific description than that to be
found under heading 39.02.
Rule 3 (b) of the Interpretation Rules
provides that mixtures which cannot be
classified in accordance with Rule 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. I derive no
assistance from this principle in the
present case; first because it is excluded
whenever a material may be classified
under Rule 3 (a) (as is the case here) and
second because in any event it produces
inconclusive results in this case. The first
Plaintiffs emphasize the importance of
gibbsite (or aluminium hydroxide) in
DU PONT DE NEMOURS v COMMISSIONERS OF CUSTOMS AND EXCISE
contributing to the characteristics of
Corian, observing that it is one of the
costliest "fillers" available and only pure
gibbsite from bauxite mined in Arkansas
will produce the qualities of Corian. The
Commission,
on
the
other
hand,
contends that Corian derives its main
characteristics (those of
consistency,
beauty,
brilliance,
transparency
and
durability to impact) from polymethyl
methacrylate
and
that
aluminium
hydroxide serves simply as a filler. In my
view,
Corian
derives
its
essential
character
from
both
of
the
main
elements of which it is composed and it
cannot be said that it derives its essential
character only from one of them, namely
gibbsite or aluminium hydroxide.
Accordingly I would still consider that
Corian falls under heading 39.02 and
39.07 rather than heading 68.11.
In reaching this opinion I have not had
regard to the differing results produced
by the customs authorities of Member
States, nor to the decisions of the
Committee on Common Customs Tariff
Nomenclature and of the Nomenclature
Committee of the Customs Cooperation
Council, to which the Court has been
referred, although the latter clearly
support the conclusion to which I have
come.
For these reasons I am of the opinion that the
Commercial Court should be answered as follows:
questions posed
by
the
The product " Corian " ( made as described in the Order for Reference) is to
be classified under the heading 39.02 of the Common Customs Tariff when
imported in the form of sheets and under heading 39.07 when imported in
the form of articles made therefrom, and is not to be classified under any
other heading of that Tariff.
3533