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On 11 April 2013, the European Commission published long-awaited guidance on the definition of ‘goods put up in sets for retail sale’ for the purposes of tariff classification in the C-series of the Official Journal, entitled Guidelines on the classification in the Combined Nomenclature of goods put up in sets for retail sale (the “Guidelines”).(1)
A draft set of guidelines had been in circulation since November 2011 as an Annex to the Summary Report of the 68th meeting of the European Union’s Customs Code Committee. With the exception of an additional sentence, the entirety of the draft text has been adopted and provides those importing into the EU with important guidance that overrides the relevant explanatory note.
This guidance will be key to any company importing sets into the EU (e.g., repair sets). Companies currently importing sets should consider whether the tariff classification codes that they currently use on import into the EU are in line with this guidance.
Steps in the Classification of ‘Goods Put Up in Sets for Retail Sale’
In cases where importers face difficulty in classifying sets and composite goods according to the EU’s Combined Nomenclature (the “CN”) (based on the World Customs Organization’s (“WCO”) Harmonized System or the “HS”), importers must follow the classification principles set out in the six General Interpretative Rules (each a “GIR”) and apply these in turn on a step-by-step basis.
GIR 1 stipulates that classification is to be determined according to the terms of the headings and any relevant Section or Chapter Notes. If goods are classifiable under two or more headings, the heading with the most specific description applies (GIR 3(a)). However, if these headings each refer to only part of the goods, then the headings are to be regarded as equally specific and classification must be according to the material or component that gives them their essential character (GIR 3(b)). If none of the above are applicable, the product must be classified under the code with the highest numerical value (GIR 3(c)).
Existing Definition
According to the HS Explanatory Notes to the GIR 3(b), the term ‘goods put up in sets for retail sale’ is defined to include goods that:
(a) consist of at least two different articles which are, prima facie, classifiable in a different heading;
(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 (Rule 3(b)).
New Guidance for the Uniform Application of GIR 3(b) in the case of Sets
The Guidelines discuss each of the above criteria in turn. We summarise below, for ease of reference, a number of the points noted in the Guidelines.
Part A: ‘… are, prima facie, classifiable in different headings …’
For the purposes of GIR 3(b), the Guidelines clarify that two or more different products that are classifiable under the same heading and the same subheading do not constitute a set within the meaning of GIR 3(b).
Part B: ‘… put up together to meet a particular need or carry out a specific activity …’
The Guidelines provide helpful examples of products and articles that can and cannot be classified as a ‘set’ by reference to GIR 3(b). For example, a renovation set or DIY (do-it-yourself) set comprising items for removing wall paper or for painting will constitute a set as the goods serve the ‘common need’ of ‘wall renovation’. By contrast, travel sets and airline sets comprising toiletry articles as well as slippers and pyjamas will not constitute a set as the latter are not products for a personal toilet.
In order to ‘meet a particular need’, the Guidelines recognise that individual articles comprising a set can be used either ‘in sequence’ or ‘randomly’. The term ‘particular need’ can, therefore, be interpreted broadly.
If one or more articles of a ‘set’ do not meet the same particular need or are not required to carry out the same specific activity, each article must be classified separately. To be classified as a ‘set’, all of the articles must be related and used together; a ‘set’ cannot, therefore, be constructed from a ‘failed set’.
The Guidelines provide that goods put up in sets for retail sale can be combined with an unrelated, minor or negligible article (and in certain cases, more than one) that would normally be classified separately. However, the Guidelines provide for a de minimis rule: the presence of a minor or negligible article in a group of items can be disregarded and all the articles classified together as a set if all of the following four conditions are met:
(a) the article is merely an incidental or immaterial element of the whole set (i.e., a surprise article);
(b) it does not alter the character of the set;
(c) the value of the article is negligible in comparison to the total value of the goods that comprise the set; and
(d) the article usually has a minor or insignificant practical use or a limited use when used on its own (e.g., it cannot be used repetitively or its durability is limited).
Part C: ‘… are put in a manner suitable for sale directly to users without repacking… ‘
The Guidelines clarify that, in order to be considered a set, the following three conditions must be fulfilled in relation to all of the items comprising the ‘set’:
(a) they must be presented at the same time and in the same declaration;
(b) they must be presented in the same package (e.g., a carrying case, plastic bag, box, netting around, or (whether or not packed) bound together); and
(c) they must be put up in a manner suitable for sale directly to users without repacking.
The Guidelines provide an exception to condition (b): goods put up in sets for retail sale may be packaged individually if this is justified and as long as they are suitable for sale directly to users without repacking. Three examples of where individual packaging may be justified: (i) due to the composition of the articles (e.g., size, weight, shape, chemical composition); (ii) due to transport-related reasons; and (iii) for reasons of safety.
To benefit from this exception:
(a) the goods must be presented in ‘relative proportions’ (i.e., one dining table suitable for four persons and four dining chairs as opposed to four dining tables and one dining chair; and
(b) it must be clear that the goods belong together by reference to, for example, labelling on the packages and an indication on the documents.
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Please do not hesitate to contact us if you have any questions concerning the Guidelines.
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(1) OJ C 105/01, 11.4.2013.
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