T-69/25

Provisional text JUDGMENT OF THE GENERAL COURT (Fifth Chamber, sitting with five Judges) 25 February 2026 (*) ( Reference for a preliminary ruling – Customs union – Common Customs Tariff – Tariff classification – Combined Nomenclature – Interpretation – Concept of ‘goods put up in sets’ consisting of two or more separate constituents – Note 3 to Section VI of Annex I to Regulation (EEC) No 2658/87 ) In Case T‑69/25, REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Fiscal Court, Germany), made by decision of 12 November 2024, received at the Court of Justice on 15 January 2025, in the proceedings A GmbH v Hauptzollamt C, THE GENERAL COURT (Fifth Chamber, sitting with five Judges), composed of M. Sampol Pucurull, President, T. Pynnä, J. Laitenberger, M. Stancu and W. Valasidis (Rapporteur), Judges, Advocate General: J. Martín y Pérez de Nanclares, Registrar: V. Di Bucci, having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 30 January 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union, having regard to the fact that the case concerns the area referred to in point (d) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute, having regard to the written part of the procedure, after considering the observations submitted on behalf of: –        A GmbH, by P. Kalski, director, and R. Schwerin, lawyer, –        the European Commission, by A. Demeneix and B. Eggers, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following Judgment 1        This request for a preliminary ruling concerns the interpretation of the Combined Nomenclature (‘the CN’) contained 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 Implementing Regulation (EU) No 1101/2014 of 16 October 2014 (OJ 2014 L 312, p. 1), and, in particular, the concept of ‘goods put up in sets’ within the meaning of Note 3 to Section VI of that annex. 2        The request has been made in proceedings between A GmbH, a company incorporated under German law, and Hauptzollamt C (Principal Customs Office C, Germany), concerning the tariff classification of a system of capsules containing alloy powder and liquid mercury for mixing in order to obtain silver dental amalgam that is used for filling cavities in teeth.  Legal context  International law 3        The Harmonised Commodity Description and Coding System (‘the HS’) was drawn up by the Customs Cooperation Council, now the World Customs Organization (WCO), and established by the Convention establishing a Customs Cooperation Council, signed in Brussels on 15 December 1950. The HS was established by the International Convention on the Harmonized Commodity Description and Coding System, concluded in Brussels on 14 June 1983 (United Nations Treaty Series, Vol. 1503, p. 4, No 25910 (1988)), and approved, with its protocol of amendment 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 HS Convention’). 4        The WCO approves, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee. 5        The general considerations set out in the explanatory notes on note 3 to Section VI of the HS, in the version applicable in the main proceedings, are worded as follows: ‘This Note deals with the classification of goods put up in sets consisting of two or more separate constituents, some or all of which fall in Section VI. The Note is, however, limited to sets of which the constituents are intended to be mixed together to obtain a product of Section VI or VII. Such sets are to be classified in the heading appropriate to that product provided that the constituents meet conditions (a) to (c) of the Note. Examples of goods in such sets are dental cements and other dental fillings of heading 30.06 and certain varnishes and paints of headings 32.08 to 32.10 and mastics, etc., of heading 32.14. … It should be noted that goods put up in sets consisting of two or more separate constituents, some or all of which fall in Section VI, intended to be used successively without prior mixing, are not covered by Note 3 to this Section. Such goods put up for retail sale are to be classified by application of the General Interpretative Rules (generally Rule 3 (b)); in the case of those not put up for retail sale the constituents are to be classified separately.’  European Union law  CN 6        The customs classification of goods imported into the European Union is governed by the CN. The CN is based on the HS. The CN reproduces the headings and subheadings of the HS to six digits, with only the seventh and eighth figures creating further subheadings which are specific to it. 7        Pursuant to Article 12(1) of Regulation No 2658/87, the European Commission adopts, each year, a regulation reproducing the complete version of the CN, together with the rates of customs duty, as resulting from measures adopted by the Council of the European Union or the Commission itself. That regulation applies with effect from 1 January of the following calendar year. 8        It is apparent from the file before the General Court that the version of the CN applicable in the case in the main proceedings is that resulting from Implementing Regulation No 1101/2014, which amended the CN with effect from 1 January 2015. 9        The General Rules for the interpretation of the Combined Nomenclature, contained in Section I(A) of Part One of Annex I to Commission Implementing Regulation No 1101/2014, provide as follows: ‘1.      The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. … 3.      When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: (a)      the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods; (b)      mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable; …’ 10      Part Two of the CN, entitled ‘Schedule of Customs Duties’, includes Section VI, entitled ‘Products of the chemical or allied industries’. 11      Note 1(B) of Section VI of the CN provides that, ‘subject to paragraph (A) above, goods answering to a description in heading 2843, 2846 or 2852 are to be classified in those headings and in no other heading of this section’. 12      Note 2 to Section VI of the CN states as follows: ‘Subject to note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of the nomenclature.’ 13      Note 3 to Section VI of the CN is worded as follows: ‘Goods put up in sets consisting of two or more separate constituents, some or all of which fall in this section and are intended to be mixed together to obtain a product of Section VI or VII, are to be classified in the heading appropriate to that product, provided that the constituents are: (a)      having regard to the manner in which they are put up, clearly identifiable as being intended to be used together without first being repacked; (b)      presented together; and (c)      identifiable, whether by their nature or by the relative proportions in which they are present, as being complementary one to another.’ 14      That section contains Chapters 28 and 30 of the CN, entitled ‘Inorganic chemicals; organic or inorganic compounds of precious metals, of rare-earth metals, of radioactive elements or of isotopes’ and ‘Pharmaceutical products’, respectively. 15      Chapter 28 of the CN includes heading 2805, entitled ‘Alkali or alkaline-earth metals; rare-earth metals, scandium and yttrium, whether or not intermixed or interalloyed; mercury’. 16      Chapter 28 of the CN also includes heading 2843, the title of which corresponds to the following table: Colloidal precious metals; inorganic or organic compounds of precious metals, whether or not chemically defined; amalgams of precious metals … … … … 2843 90 – Other compounds; amalgams 2843 90 10 – – Amalgams 5,3 — 17      Note 4 to Chapter 30 of the CN, provides as follows: ‘Heading 3006 applies only to the following, which are to be classified in that heading and in no other heading of the nomenclature: … (f)      dental cements and other dental fillings; bone reconstruction cements; …’ 18      Chapter 30 of the CN includes heading 3006, entitled ‘Pharmaceutical goods specified in note 4 to this chapter’. Subheading 3006 40 00 is entitled ‘Dental cements and other dental fillings; bone reconstruction cements’.  Guidelines 19      The Guidelines on the classification in the Combined Nomenclature of goods put up in sets for retail sale (OJ 2013 C 105, p. 1; ‘the guidelines’), provide, inter alia, the following: ‘For the purposes of [General Rule 3(b) for the interpretation of the CN], the term “goods put up in sets for retail sale” shall be taken to mean goods which: (a)      consist of at least two different articles which are, prima facie, classifiable in different headings; (b)      consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c)      are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards). … All the above conditions should be met. The above rules do not apply to “sets” which are to be classified by virtue of [General Interpretative Rules] 1 and 6 when the term “set” is in the wording of a CN code, for example: … or due to specific provisions, for example: – Note 3 to Section VI, …’  The dispute in the main proceedings and the question referred for a preliminary ruling 20      In September 2015, the applicant in the main proceedings, A, applied to Principal Customs Office C for binding tariff information concerning a system of capsules containing two components, namely alloy powder and liquid mercury, which are placed in separate chambers. It is apparent from the order for reference that those chambers cannot be separated without destroying the capsule containing them; the components are mixed as soon as the chambers are separated as a result of damage to the barrier between them. The capsules are packaged together with instructions for use in quantities intended for retail sale. The capsules are intended to be mixed in dental practices, with the aid of small machines, in one simple step in order to obtain ready-to-use silver amalgam in the amount required for a dental filling. 21      In its binding tariff information of 5 November 2015, Principal Customs Office C, contrary to what A had requested, did not classify the system of capsules at issue in the main proceedings under subheading 3006 40 00 of the CN, which is subject to a rate of customs duty of 0%, but under subheading 2843 90 10 of the CN, which is subject to a rate of customs duty of 5.3%. 22      A filed a complaint against that decision. 23      Following the rejection of its complaint, A brought an action before the Finanzgericht (Finance Court, Germany), which dismissed its action. That court found that the product at issue fell under heading 2843 of the CN, and not heading 3006 of the CN, on the ground that it was put up in a set within the meaning of Note 3 to Section VI of the CN. 24      A brought an appeal on a point of law against that judgment before the Bundesfinanzhof (Federal Fiscal Court, Germany), which is the referring court. 25      The referring court is of the opinion that the outcome of the dispute in the main proceedings depends on whether the product at issue may constitute a ‘set’ within the meaning of Note 3 to Section VI of the CN. If that were the case, the tariff classification should be based on the product resulting from the mixture of those two components. That final product would fall under heading 2843 of the CN, which takes precedence over heading 3006. On the contrary, if there is no ‘set’ within the meaning of Note 3 to Section VI of the CN, the final product obtained after mixing would not be decisive for the classification. The system of capsules would therefore fall under subheading 3006 40 00 of the CN, and not subheading 2843 90 10 thereof, since the alloy powder and mercury have not yet mixed to form an amalgam. 26      The referring court is uncertain, first, whether the concept of ‘goods put up in sets’ referred to in Note 3 to Section VI of the CN must be interpreted differently from the concept of ‘goods put up in sets for retail sale’ contained in General Rule 3(b) for the interpretation of the CN, as clarified by the guidelines. The referring court harbours doubts, in particular, as to whether the requirement laid down in the guidelines that a set must consist of two or more separate or separable articles also applies to the concept of ‘sets’ within the meaning of Note 3 to Section VI of the CN. That court notes that the legal question raised in the main proceedings must be distinguished from the one answered by the Court of Justice in the judgment of 10 March 2016, VAD and van Aert (C‑499/14, EU:C:2016:155), which concerned the interpretation of the concept of a ‘set’ of goods within the meaning of General Rule 3(b) for the interpretation of the CN. 27      Next, the referring court is uncertain whether the condition that the constituents be ‘[presented] together’, which is laid down in Note 3 to Section VI of the CN, implies the possibility of presenting those constituents separately. 28      Lastly, according to the referring court, the question arises whether the fact that the term ‘einige’ (some) is used in the plural in the German version of Note 3 to Section VI of the CN implies that, when a product contains two separate constituents, both must necessarily fall under Section VI or whether one suffices. 29      In those circumstances, the Bundesfinanzhof (Federal Fiscal Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Does the term “set” within the meaning of Note 3 to Section VI of the [CN] cover capsule systems in which two components – alloy powder and liquid mercury – for mixing [in order to obtain] silver amalgam dental fillings are contained in separate chambers which cannot be separated in a non-destructive manner?’  Consideration of the question referred 30      By its question, the referring court asks whether the concept of ‘set’ within the meaning of Note 3 to Section VI of the CN must be interpreted as covering a system of capsules in which two constituents, namely alloy powder and liquid mercury, for mixing in order to obtain silver amalgam dental fillings, are contained in separate chambers which cannot be separated without destroying the capsule containing them. 31      In order to answer that question, it should, in the first place, be determined whether the concept of ‘goods put up in sets’ within the meaning of Note 3 to Section VI of the CN must be interpreted differently from the concept of ‘goods put up in sets for retail sale’ within the meaning of General Rule 3(b) for the interpretation of the CN, as clarified by the guidelines. 32      In that regard, first, it must be noted that neither the CN nor the explanatory notes on the CN define the concept of ‘goods put up in sets’ contained in Note 3 to Section VI of the CN. 33      Secondly, it is apparent that, for the purpose of applying Note 3 to Section VI of the CN, goods are classified based not on the constituent which gives them their essential character, but on the product obtained from mixing the constituents, some or all of which fall under Section VI of the CN. Note 3 to Section VI of the CN is therefore a specific provision which sets its own conditions for application, separate from those laid down in General Rule 3(b) for the interpretation of the CN. The note, as a special rule, takes precedence over General Rule 3(b) for the interpretation of the CN (see paragraph 9 above). 34      That finding regarding the independent nature of the concept of ‘goods put up in sets’, within the meaning of Note 3 to Section VI of the CN, is confirmed by the guidelines, which expressly provide that General Rule 3(b) for the interpretation of the CN does not apply where there is a special provision relating to ‘sets’. Note 3 to Section VI of the CN is included among the examples of specific provisions explicitly listed in those guidelines (see paragraph 19 above). 35      It follows that the concept of ‘goods put up in sets’, within the meaning of Note 3 to Section VI of the CN, must be interpreted independently, in the light of the specific conditions it sets out. 36      Accordingly, in the second place, the conditions for the application of Note 3 to Section VI of the CN should be specified. 37      In that regard, first, it should be noted that, to be classified as ‘goods put up in sets’ within the meaning of Note 3 to Section VI of the CN, goods must consist of two or more separate constituents. The concept of ‘separate constituents’ must be understood as requiring that the constituents, that is to say the parts which can be identified as being intended to make up the finished product, be physically separate from one another. 38      In the present case, it is apparent from the information provided by the referring court that the two components in question, although physically separated on account of being put up in two separate chambers, are inseparable since it is not possible to separate those chambers without destroying the capsule containing them. According to that court, that fact could result in those constituents being excluded from the concept of ‘goods put up in sets’, within the meaning of Note 3 to Section VI of the CN. 39      However, it must be found that it is not apparent from either the wording of Note 3 to Section VI of the CN or the explanatory notes on the HS that the concept of ‘separate constituents’, within the meaning of that note, implies that those constituents must be separable without that separation involving the destruction of the apparatus which joins them. 40      Accordingly, the inseparability of the constituents is not a relevant criterion for determining whether the system of capsules at issue may be classified as ‘goods put up in sets’ within the meaning of Note 3 to Section VI of the CN. The fact that those constituents are put up in separate chambers which make up a single system, corresponds to the concept of ‘separate constituents’ provided for by Note 3, even if those chambers cannot be separated without bringing about the destruction of that system. 41      Moreover, that interpretation is consistent with the objective of Note 3 to Section VI of the CN, which aims to ensure that tariff classification is based on the product which results from the mixture, where the separate constituents are identifiable as being intended, once released for free circulation, to be assembled into a finished product. 42      Secondly, Note 3 to Section VI of the CN makes classification as ‘goods put up in sets’ conditional on there being two or more separate constituents, some or all of which fall under Section VI. 43      As regards the doubt expressed by the referring court as to the need, where there are two constituents, for both of those constituents to fall under Section VI, it should be noted that that doubt arises from the wording of the German version of Note 3 to Section VI of the CN, which uses the terms ‘einige oder alle’ (some or all). In that version, the term ‘einige’ is an adjective indicating number designating indefinite plurality, with the result that a purely literal interpretation could lead to the conclusion that, where only two constituents are concerned, both must fall under Section VI. 44      In that regard, it is apparent from a comparison of the various language versions of Note 3 to Section VI of the CN that the German and Finnish versions use the terms ‘einige oder alle’ and ‘jotkut tai kaikki’, respectively, which, on account of to the use of the plural form, refer to some or all of the constituents. By contrast, the Greek, Spanish, French, Italian, Portuguese, Romanian, Swedish and English versions use the terms ‘olikos i merikos’, ‘en su totalidad o en parte’, ‘en totalité ou en partie’, ‘in tutto o in parte’, ‘no todo ou em parte’, ‘in totalitate sau partial’, ‘åtminstone någon’ and ‘some or all of which’, respectively, which refer either to a part or to all of the constituents. 45      In that respect, it must be noted that according to the settled case-law of the Court of Justice, 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 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 the purpose of the rules of which it forms part (see judgment of 23 January 2020, Bundesagentur für Arbeit, C‑29/19, EU:C:2020:36, paragraph 48 and the case-law cited). 46      It is not disputed that interpreting Note 3 to Section VI of the CN as requiring that, where there are two constituents, both must fall under that section would render meaningless the reference made in that note to sets whose constituents are intended to be mixed together to obtain a product of Section VI or VII. If, in such an interpretation, all the constituents had to fall under Section VI, mixing those constituents could only result in a product falling under Section VI, with the result that the express reference to Section VII would be meaningless. 47      It follows that Note 3 to Section VI of the CN applies if one of the constituents falls under that section. 48      Thirdly, in accordance with Note 3 to Section VI of the CN, only sets intended to be mixed together to obtain a product under Section VI or VII can be regarded as ‘goods put up in sets’ within the meaning of that note. That is the case here, since the final product obtained after mixing, namely silver amalgam dental fillings, is classifiable under various headings contained in Section VI of the CN, which encompasses Chapters 28 to 38 of the CN. 49      Fourthly, it is apparent from the wording of Note 3 to Section VI of the CN that the goods put up in sets are covered by that note only if three cumulative conditions are met, namely that the constituents are (i) having regard to the manner in which they are put up, clearly identifiable as being intended to be used together without first being repacked (ii) presented together and (iii) identifiable, whether by their nature or by the relative proportions in which they are present, as being complementary one to another. 50      As regards the first condition, it is apparent from the very structure of the system of capsules that the two components of the product at issue in the main proceedings are intended to be used together without first being repacked. Those components, contained in exact doses in two separate chambers, are intended to he mixed, with the aid of small machines, in order to obtain silver dental amalgam. 51      As for the second condition, which is the subject of the referring court’s question, it is met when the constituents are presented simultaneously at customs clearance. 52      However, that condition in no way implies that the constituents must be able to be presented separately. 53      As is apparent from paragraph 41 above, an interpretation to the effect that the condition that constituents be ‘presented together’ is subject to the possibility of physically separating them would, for that matter, be contrary to the objective of Note 3 to Section VI of the CN. 54      It follows that the fact that the constituents of the product at issue in the main proceedings may not be presented separately without the system of capsules containing them being destroyed, because of the inseparable connection joining their chambers, cannot preclude the classification of that product under ‘goods put up in sets’ within the meaning of Note 3 to Section VI of the CN, since the determining factor for the purpose of such classification is that, during customs clearance, the physically distinct constituents be presented together, irrespective of whether they are inseparable. 55      As regards the third condition, it is apparent from the order for reference that, at the time of customs clearance, the two components of the product at issue in the main proceedings are identifiable as complementary since, even though they have not yet been mixed to form silver dental amalgam, their dosage already corresponds precisely to that which is needed to make a portion, with the result that that condition is met. 56      Even though, in the present case, the conditions for the application of Note 3 to Section VI of the CN appear prima facie to be met as regards the product at issue in the main proceedings, it is for the referring court to verify that all the conditions laid down in Note 3 are met in respect of the facts of the case before it. 57      In the light of the foregoing considerations, the answer to the question referred is that the concept of ‘set’ within the meaning of Note 3 to Section VI of the CN must be interpreted as applying to systems of capsules in which two components, namely alloy powder and liquid mercury, for mixing in order to obtain silver amalgam dental fillings, are contained in separate chambers which cannot be separated without destroying the capsule containing them.  Costs 58      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the General Court, other than the costs of those parties, are not recoverable. On those grounds, THE GENERAL COURT (Fifth Chamber, sitting with five Judges) hereby rules: The concept of ‘set’ within the meaning of Note 3 to Section VI of 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 Implementing Regulation (EU) No 1101/2014 of 16 October 2014, must be interpreted as applying to systems of capsules in which two components, namely alloy powder and liquid mercury, for mixing in order to obtain silver amalgam dental fillings, are contained in separate chambers which cannot be separated without destroying the capsule containing them. Sampol Pucurull Pynnä Laitenberger Stancu         Valasidis Delivered in open court in Luxembourg on 25 February 2026. [Signatures] *      Language of the case: German.