Commission Implementing Regulation (EU) 2019/321 of 18 February 2019 concerning the classification of certain goods in the Combined Nomenclature and repealing Implementing Regulation (EU) 2017/1232

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code⁽¹⁾, and in particular Article 57(4) and Article 58(2) thereof,

Whereas:

1. In order to ensure uniform application of the Combined Nomenclature (‘CN’) annexed to Council Regulation (EEC) No 2658/87⁽²⁾, it is necessary to adopt measures concerning the classification of certain goods.

2. By Commission Implementing Regulation (EU) 2017/1232⁽³⁾, an article made of spheroidal graphite cast iron (ductile iron, EN-GJS-500-7) was classified under CN code 7325 99 10 as other cast articles of malleable cast iron.

3. The classification in Implementing Regulation (EU) 2017/1232 was based on the Explanatory notes to the Combined Nomenclature to CN code 7307 19 10 which defined malleable cast iron and according to those notes, the expression ‘malleable’ included spheroidal graphite cast iron.

4. In Joined Cases C-397/17 and C-398/17, Profit Europe⁽⁴⁾, the Court of Justice ruled that cast tube or pipe fittings of spheroidal graphite cast iron must be classified under subheading 7307 19 90.

5. The Court of Justice based its decision on the finding that spheroidal graphite cast iron and malleable cast iron differ in terms of their composition and method of production and that even if spheroidal graphite cast iron has characteristics similar to those of malleable cast iron (EN-GJM), none the less it constitutes a separate category in the classification of cast iron (EN-GJS).

6. The Court of Justice concluded that in that regard those Explanatory Notes, in so far as they state that ‘the expression ‘malleable’ includes spheroidal graphite cast iron’, have the effect of extending the concept of ‘malleable cast iron’ to another category of cast iron and must therefore be disregarded.

7. The judgment of the Court of Justice is applicable by analogy to the product covered by Implementing Regulation (EU) 2017/1232 since that product corresponds to standard EN-GJS-500-7 and its classification as an article of malleable iron was based on the text of Explanatory notes to the Combined Nomenclature to CN code 7307 19 10 which were found by the Court of Justice to be altering the scope of CN subheading 7307 19 10.

8. Classification of the article covered by Implementing Regulation (EU) 2017/1232 is therefore not in line with the findings of the Court of Justice in its judgment in Joined Cases C-397/17 and C-398/17.

9. Implementing Regulation (EU) 2017/1232 should therefore be repealed and replaced.

10. The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

HAS ADOPTED THIS REGULATION: