Opinion of the Advocate-General
1. This case concerns the validity of Commission Regulation No 1509/97 in so far as it classifies rectangular wood blocks, 48 or 85 mm wide x 72 mm high, used in the construction of window frames, consisting of layers of wood glued together with the grain running parallel and with slightly rounded edges, under subheading 4418 90 10 of the combined nomenclature (CN) contained in Annex I to Council Regulation No 2658/87, as amended and updated from time to time.
The customs classification legislation, facts and procedure
2. The CN is the Community customs tariff nomenclature based on the world-wide Harmonised System (HS), to which it is identical as regards the first six digits in each code, the seventh and eighth digits forming subdivisions specific to the CN.
3. Chapter 44 of the HS and the CN covers Wood and articles of wood; wood charcoal. The basic (six-digit) structure of heading 4418 (Builders' joinery and carpentry of wood, including cellular wood panels, assembled parquet panels, shingles and shakes) is as follows:
4418 10 Windows, frenchwindows and their frames
4418 20 Doors and their frames and thresholds
4418 30 Parquet panels
4418 40 Shuttering for concrete constructional work
4418 50 Shingles and shakes
4418 90 Other.
4. With effect from 1 January 1996, subheading 4418 90 of the CN was further subdivided by Regulation No 3009/95 into 4418 90 10 Glue-laminated timber and 4418 90 90 Other. That subdivision was effected, for purely statistical purposes, at the request of a number of timber trade federations within the Community.
5. Heading 4421, the last in the chapter, is for the residual category Other articles of wood and subheading 4421 90 99 is for the most residual of all, Other - other - other, that is to say for articles of wood which cannot be classified under any other heading or subheading.
6. The goods in issue are known in the trade, we are told, as laminated window scantlings. Those which the applicant in the main proceedings, Holz Geenen GmbH, imports for its window frames, in lengths of between 76 and 300 cm, are composed of a softwood core with a layer of meranti, a tropical hardwood, glued to each side. The purpose of that composition is said to be to achieve a more economical use of wood rather than any structural advantage such as strength.
7. Prior to the adoption of Regulation No 1509/97, which made the contested classification, the Commission's explanatory notes to the CN (CNENs) stated that wood blocks made up of slats glued together and then planed on the four sides were included under the residual subheading 4421 90 99. The Commission confirms that those articles were the same as those referred to in different terms in Regulation No 1509/97. (In the following edition of the CNENs, published after the adoption of the Regulation, they were omitted from the list under subheading 4421 90 99.)
8. Regulation No 3009/95, introducing CN subheadings 4418 90 10 and 4418 90 90, was published in the Official Journal of the European Communities on 30 December 1995. On 2 January 1996, Holz Geenen sought binding tariff information on the customs classification of its imported articles from the Oberfinanzdirektion (Principal Revenue Office), Munich (hereinafter the OFD), which replied that they fell within CN subheading 4418 90 10, glue-laminated timber.
9. Holz Geenen asked the OFD to review its decision, but that review was stayed pending a decision by the Commission on the classification of the disputed goods. The Commission's decision took the form of Regulation No 1509/97, in the light of which the OFD upheld its initial view. The Commission states that it adopted the Regulation - and subsequently amended the CNENs - in order to resolve what it considered to be a conflict between the classification then given in the CNENs and the statement in the explanatory notes to the HS (HSENs) that heading 4418 included glue-laminated timber.
10. Holz Geenen then challenged the OFD's decision before the Finanzgericht (Finance Court), Munich, arguing, essentially, that the articles in question are unsuited to serve as load-bearing elements of builders' carpentry (a category to which it considered glue-laminated timber to be confined), nor are they window frames, even unfinished, since the work needed to render them suitable for use in window frames has not yet been carried out. Not being covered by any other heading or subheading, they could fall only into the residual category for other articles of wood. The Regulation was thus, in Holz Geenen's view, unlawful because the Commission had no power to adopt classifying regulations deviating from the HS and because the statement of reasons was inadequate.
11. The Finanzgericht seems inclined to be swayed by Holz Geenen's reasoning, but feels itself constrained by the Regulation. It has therefore asked the Court whether the Regulation is invalid in so far as it makes the disputed classification.
12. Article 1 of the Regulation provides: The goods described in column 1 of the annexed table are now classified within the combined nomenclature under the appropriate CN codes indicated in column 2 of the said table. Column 1 of that table includes the aforesaid rectangular wood blocks, 48 or 85 mm wide x 72 mm high, used in the construction of window frames, consisting of layers of wood glued together with the grain running parallel and with slightly rounded edges. Such articles are to be classified, as indicated in column 2, under CN code 4418 90 10 (glue-laminated timber), the reason given in column 3 being: Classification is determined by the provisions of General Rules 1 and 6 for the interpretation of the combined nomenclature and by the wording of CN codes 4418, 4418 90 and 4418 90 10. Laminated wood is an item of builder's carpentry.
13. General Rule 1 for the interpretation of the CN provides that ... for legal purposes, classification shall be determined according to the terms of the headings and any relevant section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.
14. Of those following provisions, only one may be of any possible relevance. General Rule 2(a) reads: 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.
15. General Rule 6 applies, mutatis mutandis, the same rules to classification under a subheading.
16. There are no notes to Section IX, in which Chapter 44 appears, and only one of the notes to that chapter appears at first sight to have any possible bearing on the classification in issue. Note 3 to Chapter 44 states: Heading Nos 4414 to 4421 apply to articles of the respective descriptions of ... laminated wood ... as they apply to such articles of wood.
Relevant law and issues
17. The question in this case is that of the validity of a Commission regulation, not of a classification made by a national customs authority. We must thus consider the law governing the Commission's exercise of its power to adopt such regulations and the Court's review thereof.
18. The Commission's power to specify the classification of goods in the CN derives from Article 9(1)(a) of Regulation No 2658/87, and is governed by the conditions laid down in Article 10 thereof, relating to consultation of the Customs Code Committee set up in accordance with Article 247 of Regulation No 2913/92.
19. The principles governing the exercise of that power have been set out by the Court as follows:
... the Council 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 mentioned in Article 9(1)(a) ... of Regulation No 2658/87 does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the harmonised system established by the Convention whose scope the Community has undertaken, under Article 3 thereof, not to modify.
It must therefore be considered whether the Commission, notwithstanding what is stated in the preamble to the contested regulation, has in fact amended [the relevant heading] of the combined nomenclature, thus exceeding the limit of the powers conferred upon it by Article 9 of Regulation No 2658/87.
20. The salient points are that: (i) the Commission enjoys a broad discretion to define the subject-matter of tariff headings; (ii) in exercising that discretion, it must act in cooperation with the Customs Code Committee; and (iii) it must not for any reason alter the subject-matter of the HS headings or subheadings, that is to say those down to the six-digit level.
21. There is no suggestion in the present case of any defect in the cooperation with the Customs Code Committee. The conflict of views is confined to whether the Commission acted properly within its broad discretion or whether, by classifying the goods in question under subheading 4418 90 10, it altered the subject-matter of any heading defined on the basis of the HS.
22. Consideration of those questions is to be carried out in the light of a number of rules laid down in the case-law. First, 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.
23. Second, the explanatory notes drawn up, as regards the CN, by the Commission and, as regards the Harmonised Commodity Description and Coding System, by the Customs Cooperation Council, ... may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force.
24. In addition, the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties.
25. Heading 4418 covers builders' joinery and carpentry. Holz Geenen and the Commission agree with the national court that the articles in question do not constitute builders' joinery because they have not yet been shaped or cut for such a use; nor, by the same token, can they be treated as incomplete or unfinished windows or window frames under General Rule 2(a) for the interpretation of the CN. The difference of opinion arises over whether they constitute builders' carpentry or not.
26. The HSENs for heading 4418 begin with three general paragraphs, describing the scope of the heading:
This heading applies to woodwork, including that of wood marquetry or inlaid wood, used in the construction of any kind of building, etc., in the form of assembled goods or as recognised unassembled pieces (e.g., prepared with tenons, mortises, dovetails or other similar joints for assembly), whether or not with their metal fittings such as hinges, locks, etc.
The term "joinery" applies more particularly to builders' fittings (such as doors, windows, shutters, stairs, door or window frames), whereas the term "carpentry" refers to woodwork (such as beams, rafters and roof struts) used for structural purposes or in scaffoldings, arch supports etc., and includes assembled shuttering for concrete constructional work. ...
Builders' carpentry also includes glue-laminated timber (glulam), which is a structural timber product obtained by gluing together a number of wood laminations having their grain essentially parallel. Laminations of curved members are arranged so that the plane of each lamination is at 90 degrees to the plane of the applied load; thus, laminations of a straight glulam beam are laid flat.
27. Holz Geenen emphasises the references in those notes to glue-laminated timber as comprising structural, load-bearing elements, and the choice of the term timber in English, to support its argument that the articles in question do not fall within this category, even though they consist of glued laminations. It points out that plywood, veneered panels and similar laminated wood (heading 4412) are also excluded, despite their laminated nature. Heading 4418 thus in its view covers only structural laminated timber and not all laminated wood. The articles in question are not suitable for such uses; the glues employed are not sufficiently resistant and attention is paid to economy, not strength, in their manufacture. Because their objective nature and specific use are not covered by the terms of heading 4418, the Regulation is unlawful in so far as it purports to bring them within that heading. In Holz Geenen's view, the articles in question must therefore be classed as other articles of wood under heading 4421, the only subheading of which that can apply being 4421 90 99.
28. The Commission takes the opposite view. It states that the terms of heading 4418 do not refer to articles classified according to their purpose or intended use; the question is what is meant, objectively, by builders' carpentry. The inclusion of shuttering for concrete constructional work demonstrates that not only load-bearing items are covered. The term builders' carpentry (pièces de charpente in French) is neutral, and glue-laminated timber is specifically included under the HSENs (the use of the word structural in the English version being of no import, since the heading is to be interpreted according to its own terms). The fact that wood blocks made up of slats glued together and then planed on the four sides were formerly included under subheading 4421 90 99 is irrelevant, since heading 4418 cannot be construed on the basis of that subheading. The reference in the Regulation to the fact that the blocks in issue are used in the construction of window frames is also immaterial, since classification under heading 4418 is not determined by intended use and the blocks, which may be of any length, can be used for other purposes. Even if the word timber in English referred only to load-bearing structural items, laminated wood would not be excluded from builders' carpentry, since a heading may not be interpreted on the basis of a subheading; the blocks would simply come under subheading 4418 90 90, other, not 4421 90 99.
29. The issue thus defined is essentially whether the articles in question fall under heading 4418 or not. If they do (the Commission's view), they must fall within one of the subdivisions of 4418 90. If they do not (Holz Geenen's view), they can fall only under heading 4421 and, given the terms and structure of that heading, subheading 4421 90 99. It must, however, also be borne in mind that some other classification might be more appropriate.
Does classification of the articles in question under heading 4418 alter the subject-matter of the heading?
30. The two approaches taken differ over whether the intended use of the articles is to be taken into account. One of the Commission's main submissions is that classification under heading 4418 is a matter to be determined purely on the basis of objective characteristics, and not of intended use, even though the Regulation describes the articles in question as used in the construction of window frames. Holz Geenen contends that the intended use is the determining criterion, that the articles in question are not intended (or suitable) for use as builders' carpentry and that even though intended for use in window (and door) frames they cannot come within those categories, which constitute builders' joinery, since they do not possess the essential character of the complete or finished article as required by General Rule 2(a).
31. When considering this question, the first step, before consulting the HSENs, is to examine the wording of heading 4418, in the two authentic language versions of the HS which form the basis of the Community's international commitments in this regard. If we exclude the illustrative list which concludes the heading, we have Builders' joinery and carpentry of wood in English and Ouvrages de menuiserie et pièces de charpente pour construction in French.
32. It seems clear that the terms builders' and pour construction apply to both joinery and carpentry, and that they do in fact introduce a criterion of intended use. This is borne out - although the wording of the heading can stand on its own - by the general statement in the HSENs that the heading applies to woodwork ... used in the construction of any kind of building.
33. It may also be noted that no distinction is made between joinery and carpentry. The fact that the HSENs indicate what is included under each term is thus immaterial to the extent that the fact that an article may constitute joinery rather than carpentry or vice versa should not have the effect of excluding it from any of the subheadings of heading 4418, provided that it is one or the other.
34. The HSENs go on, after the three paragraphs I have cited above, to describe cellular wood panels, parquet strips, etc., assembled into panels or tiles, shingles and shakes, then state:
The heading does not cover:
(a) Plywood panels or veneered panels, used as flooring panels, which have a thin veneer of wood affixed to the surface, so as to simulate a flooring panel made up of parquet strips (heading 44.12).
(b) Cupboards, with or without backs, even if designed to be nailed or otherwise secured to the ceiling or wall (heading 94.03).
(c) Prefabricated buildings (heading 94.06).
35. It thus seems to me clear that the heading includes all wooden elements used by builders in the structure of a building (floors, walls, partitions, ceilings, roofs etc., with items such as doors and windows entering into the structure of walls or partitions) or in its construction (scaffolding, concrete shuttering), with the exception of plywood or the like and actual prefabricated buildings, which both have their own headings. It does not include wooden fixtures not forming part of the structure (I am intrigued, in this connection, by the idea that builders may nail cupboards to the ceiling). Nor, by virtue of General Rule 2(a), does it include articles of wood requiring further working by other specialist trades (such as window makers) in order to produce wooden elements which are to be used by builders in the structure of a building or in its construction.
36. The HSENs and all of the terms used in the illustrative list in the heading, and in the subheadings, are fully consistent with that view. Shingles and shakes (bardeaux in French) are roofing or wall-facing items, and the fact that cellular wood panels are sometimes used in the manufacture of furniture is clearly irrelevant to their classification under this heading according to their main use.
37. The articles in issue are blocks of varying length consisting of layers of wood glued together. According to the Regulation, they are used in the construction of window frames and Holz Geenen has stated before the national court that they have a variety of uses as non-load-bearing building components of wood, for example also in doors. There is no suggestion that they are ever used or intended to be used directly in the construction of any kind of building or that they are themselves builders' fittings of the same kind as doors, windows, shutters, stairs, window frames or door frames, and it is agreed that they are not recognisable unassembled pieces of such fittings, prepared with tenons, mortises, dovetails or other similar joints. Nor, indeed, are their objective characteristics and properties those of items which do fall within those categories (unless, perhaps, their composition is such that they must be described as glue-laminated timber and all glue-laminated timber must be included under heading 4418, a hypothesis which I shall examine below).
38. To take the contrary view would be to include in builders' joinery and carpentry of wood items which are not used in the structure or construction of buildings, as builders' fittings or as recognisable unassembled parts thereof, but which may be used to make such fittings or parts of fittings. In this, they are like any other piece of wood of the same dimensions which, if not laminated, would presumably fall under heading 4407 (Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm) or 4409 (Wood ... continuously shaped ... along any of its edges or faces, whether or not planed, sanded or finger-jointed). The fact that such pieces of wood must be classified under other headings if not laminated seems to me highly persuasive.
39. Whilst, according to Note 3 to Chapter 44, heading 4418 applies - like all the other headings from 4414 to 4421 - to articles of laminated wood as it applies to such articles of wood, that note cannot bring articles within the heading (or any other heading concerned) merely because they are of laminated wood. And whilst glue-laminated timber may be classified under heading 4418\/ in accordance with the HSENs - and it was thus quite permissible for the Commission to introduce a specific subheading in the CN to accommodate it - it does not follow that all wood which is glued and laminated necessarily comes under that subheading. Only products which constitute builders' joinery and carpentry will do so. This, I think, clearly explains and is confirmed by the reference in the HSENs to a structural timber product (pièce de charpente), rather than a more general definition.
40. I turn now to the question of the difference between laminated wood and glue-laminated timber. Holz Geenen has argued emphatically that the goods in issue are not glue-laminated timber.
41. The term glue-laminated timber first appears in the HSENs, as a product included without further specification under heading 4418, and in both English and French the term used is different from that used in Note 3 to Chapter 44. It was then taken over into subheading 4418 90 10 of the CN as from 1 January 1996 and again the word used in all the official Community languages (with the exception of Portuguese) is different from that for laminated wood. Whilst I would not attach too much significance to the use of the word timber in English, which is not echoed in other languages, it seems overwhelmingly clear that something different is meant.
42. Consultation of bilingual and monolingual technical dictionaries and works of reference does not reveal any consistent usage of the terms employed in the various Community languages. Any one reference work in any one language may be relied upon in support of one view or the other. But the greater and more varied the number of works consulted, the clearer it becomes that the terms used in the HS and the CN do not reflect any systematic terminological distinction generally drawn in the trade.
43. However, I think it is clear from the materials I have examined above that the intended difference is between, on the one hand, a general category of laminated wood, of which any item classifiable under headings 4414 to 4421 may be made, and, on the other, a specific sub-category of such wood used by builders in the structure or construction of a building (generally as a structural element) and thus to be classified under heading 4418.
44. I therefore consider that the articles in question are not to be classified under heading 4418 by reason either of their intended use or of their objective characteristics and properties.
45. All the above reasoning leads me towards the view that the Commission altered the subject-matter of heading 4418 by classifying the articles in question under it. Before confirming that conclusion, however, I propose to consider what the proper classification of the goods in question should be.
46. This is not a question which the national court has asked, and it is one of a kind which, as I stated in my Opinion in Wiener, it should normally be in a position to answer for itself. In a case of this kind, however, I think it fully consistent with the duty of cooperation between this Court and the national courts for guidance to be given. A Community institution has made a formal classification, and the Community Court may properly take a position on the correct classification.
What is the correct classification of the articles in question?
47. Goods of this kind were presumably imported, by Holz Geenen and others, before the introduction of the subheading for glue-laminated timber and whatever classification was appropriate then may presumably serve just as well now. It may be that they were classified under subheading 4421 90 99 in accordance with the 1994 version of the CNENs, which the Commission has stated referred to identical goods. That is, indeed, the only alternative heading to have been put forward (by Holz Geenen), since the Commission's suggestion of subheading 4418 90 90 can be no more valid than subheading 4418 90 10 if one takes the view that the articles in question do not fall under heading 4418 at all. At the hearing, moreover, the Commission's representative, when confronted with the hypothesis that the Regulation might not be held valid, tentatively suggested that subheading 4421 90 99 might be the only other possible classification.
48. In addition, however, the following observations may be helpful to the national court.
49. From Note 3 to Chapter 44 of the CN (see paragraph 16 above), it is clear that headings 4414 to 4421 all include articles of laminated wood, and there is no dispute that the articles in question here are of wood and are laminated. Headings 4414 (Wooden frames for paintings, photographs, mirrors or similar objects), 4415 (Packing cases, boxes, crates, drums and similar packings, of wood; cable-drums, of wood; pallets, box pallets and other load boards, of wood; pallet collars, of wood), 4416 (Casks, barrels, vats, tubs and other coopers' products and parts thereof, of wood, including staves), 4417 (Tools, tool bodies, tool handles, broom or brush bodies and handles, of wood; boot or shoe lasts and trees, of wood), 4419 (Tableware and kitchenware, of wood) and 4420 (Wood marquetry and inlaid wood; caskets and cases for jewellery or cutlery, and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling in Chapter 94) are all clearly inappropriate. If the articles in question are to fall under one of the headings which include laminated wood under Chapter Note 3, then it must be heading 4421, Other articles of wood. Not being any of the articles specifically named under that heading, they must come under subheading 4421 90, Other, which is subdivided into 4421 90 91 Of fibreboard and 4421 90 99 Other, the latter offering the only possible classification, since the articles are not of fibreboard.
50. However, although the fact that headings 4414 to 4421 expressly include articles of laminated wood seems to imply that the other headings in Chapter 44 do not include such articles, that inference cannot hold true for heading 4412, which covers Plywood, veneered panels and similar laminated wood, divided into Plywood consisting solely of sheets of wood, each ply not exceeding 6 mm thickness, Other, with at least one ply of non-coniferous wood and Other. Whilst this heading appears at first sight to refer to panels rather than to blocks of the kind in issue here (in fact lengths of up to 3 metres), closer inspection reveals that such articles may in some circumstances be included.
51. Note 4 to Chapter 44 states: Products of heading No 4410, 4411 or 4412 may be worked to form the shapes provided for in respect of the goods of heading No 4409, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submitted to any other operation provided it does not give them the character of articles of other headings.
52. Heading 4409 covers Wood (including strips and friezes for parquet flooring, not assembled) continuously shaped (tongued, grooved, rebated, chamfered, V-jointed, beaded, moulded, rounded or the like) along any of its edges or faces, whether or not planed, sanded or finger-jointed. The various categories included are: Beadings and mouldings, including moulded skirting and other moulded boards; Mouldings for frames for paintings, photographs, mirrors or similar objects; Blocks, strips and friezes for parquet or wood block flooring, not assembled; and Other.
53. It will be recalled that the articles in issue are blocks ... consisting of layers of wood glued together ... and with slightly rounded edges. They would therefore appear to fit the definition of laminated wood, worked to form the shapes provided for in respect of the goods of heading No 4409 by being continuously ... rounded, thus being classifiable under one of the subheadings of heading 4412, in accordance with their actual constitution, of which we do not have sufficiently precise information.
54. Indeed, in Amending Supplement No 22, of June 1998, to the Compendium of (HS) Classification Opinions issued by the WCO, it is stated that, by application of Note 4 to Chapter 44, subheading 4412 99 (the residual subheading for otherwise unclassified items of plywood, veneer and similar laminated wood) includes: Rectangular pieces of laminated wood (213 cm long x 11.26 cm wide x 23.8 mm thick), used for making a door frame, consisting of a thick core and two thin outer plies of coniferous wood, continuously grooved along both edges to fit a door casing and on one face to fit a door stopper. It is intended to be cut to size after the door casing and stopper have been fitted into the grooves so as to make a finished door frame.
55. Such items appear to be very similar, as regards both intended use (Holz Geenen has stated that the articles in issue are also used in door frames) and objective characteristics and properties, to those with which we are concerned here.
56. Both Holz Geenen and the Commission have been asked by the Court to comment on the possible relevance of that classification opinion and on any distinction that might be drawn between the products to which it refers and those with which the present case is concerned.
57. Holz Geenen distinguishes the two products on the basis of their cross-sectional dimensions and of the extent to which they are worked.
58. With regard to the former criterion, I must say I am not convinced. I do not see any essential difference in nature between a length of laminated wood used in the manufacture of door frames, which measures 112.6 mm by 23.8 mm (a cross-sectional area of 2680 mm2), and a length of laminated wood used in the manufacture of window frames, which measures 72 mm by 48 mm (a cross-sectional area of 3456 mm2). One is broader and less thick than the other, but the differences between their dimensions do not seem to me to place them in obviously different categories.
59. Nor do I find the degree of difference in working conclusive. The goods classified by the Regulation are explicitly stated to have slightly rounded edges. Continuous shaping, including rounding, is one of the criteria for inclusion under heading 4409. I do not think that a lesser degree of rounding of the edges can have the effect of excluding the goods from that heading, provided that they are rounded. The fact that other products may be more distinctively shaped is not relevant in that regard.
60. The Commission, on the other hand, submits that the difference between the two types of article lies in the fact that the laminated wood referred to in the WCO classification opinion has only two very thin outer layers. I assume, therefore, that it is something akin to veneered wood, although the outer layers may be thicker than veneer.
61. I have taken a view above on what is meant by laminated wood for the purposes of Note 3 to Chapter 44 and headings 4414 to 4421. One would expect the term to have the same meaning when used elsewhere in the chapter. However, heading 4412 is for Plywood, veneered panels and similar laminated wood (my emphasis). From that wording, from the Commission's answer to the question put by the Court, and from the documents which it produced with that answer, I am satisfied that the pieces of laminated wood referred to in the WCO opinion were classified under heading 4412 because, inter alia, the two outer plies were of a thickness comparable to that of the plies of plywood or veneer.
62. We have no specific information on the thicknesses of the different layers of the products referred to in the Regulation. If the outer layers are of a thickness comparable to that of the plies of plywood or veneer, which is a question of fact for the national court, the products must in my view be classified under heading 4412 since they are in all other material respects similar to those to which the classification opinion relates. If the three layers are all of similar thickness, as was the case with the sample produced by Holz Geenen's representative at the hearing, then, as I have reasoned above, subheading 4421 90 99 is the only possible classification.
Conclusion
63. I therefore reach the conclusion that the Regulation is invalid in so far as it classifies the contested goods under CN subheading 4418 90 10 and that such goods should be classified under the subheading of heading 4412 appropriate to their composition if the two outer layers are of a thickness comparable to that of the plies of plywood or veneer or, if not, under subheading 4421 90 99.
64. Since the question of the correct classification of the goods in issue has not been raised by the national court, however, the Court need perhaps only reply that:
Commission Regulation (EC) No 1509/97 of 30 July 1997 concerning the classification of certain goods in the combined nomenclature is invalid in so far as it classifies under CN subheading 4418 90 10 rectangular wood blocks, 48 or 85 mm wide x 72 mm high, used in the construction of window frames, consisting of layers of wood glued together with the grain running parallel and with slightly rounded edges.
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