61981CJ0237_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 237/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT RHEINLAND-PFALZ ( FINANCE COURT, RHINELAND-PALATINATE ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
ALMADENT DENTAL-HANDELS- UND VERTRIEBSGESELLSCHAFT MBH,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) MAINZ,
Subject of the case
ON THE INTERPRETATION OF SUBHEADING 38.19 K OF THE COMMON CUSTOMS TARIFF,
Grounds
1 BY ORDER OF 13 AUGUST 1981, WHICH WAS RECEIVED AT THE COURT ON 27 AUGUST 1981, THE FINANZGERICHT RHEINLAND-PFALZ ( FINANCE COURT, RHINELAND-PALATINATE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE INTERPRETATION OF THE CONCEPT ' ' REFRACTORY COMPSITIONS ' '
APPEARING IN SUBHEADING 38.19 K OF THE COMMON CUSTOMS TARIFF IN THE VERSION IN FORCE IN 1979 ( OFFICIAL JOURNAL 1978, L 335 P . 1 ) FOR THE PURPOSE OF THE TARIFF CLASSIFICATION OF A SILICA-BASED PRODUCT, USED FOR MAKING MOULDS FOR DENTAL PURPOSES BY THE LOST-WAX PROCESS, KNOWN AS ' ' COMPLETE INVESTMENT ' '
AND IMPORTED FROM THE UNITED STATES BY THE PLAINTIFF COMPANY IN THE MAIN ACTION .
2 THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) MAINZ CLASSIFIED THAT PRODUCT, WHICH ON ITS IMPORTATION WAS DECLARED AS ' ' MODELLING PLASTER ' ', UNDER SUBHEADING 38.19 U, ' ' OTHER ' ', GIVING RISE TO THE PAYMENT OF A DUTY OF 14.4% .
3 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION, THE PRODUCT IN QUESTION OUGHT TO BE CLASSIFIED UNDER SUBHEADING 38.19 K, ' ' REFRACTORY CEMENTS, MORTARS AND SIMILAR COMPOSITIONS ' ', EVEN THOUGH IT DOES NOT SHOW A PYROSCOPIC RESISTANCE OF AT LEAST 1 500 OC, AS REQUIRED BY THE FIRST PARAGRAPH OF THE EXPLANATORY NOTE TO THE COMMON CUSTOMS TARIFF RELATING TO THAT SUBHEADING . IT ARGUES THAT THE CONCEPT ' ' REFRACTORY COMPOSITIONS ' '
MAY BE APPROPRIATE FOR A PYROSCOPIC RESISTANCE WHICH IS PARTICULAR TO THE PRODUCTS REFERRED TO IN THAT PARAGRAPH, IN RELATION TO THE USE TO WHICH THEY ARE PUT, AND WHICH MAY BE LOWER THAN 1 500 OC . SUCH A HIGH DEGREE OF PYROSCOPIC RESISTANCE IS NEITHER NECESSARY NOR APPROPRIATE FOR PRODUCTS USED FOR MAKING MOULDS FOR DENTAL PURPOSES BY THE LOST-WAX PROCESS .
4 THE HAUPTZOLLAMT MAINTAINS ON THE OTHER HAND THAT THE FACT THAT THE PRODUCT IN QUESTION SHOWS A PYROSCOPIC RESISTANCE OF LESS THAN 1 500 OC DEPRIVES IT OF ITS ' ' REFRACTORY ' '
NATURE FOR THE PURPOSES OF THE FIRST PARAGRAPH OF THE EXPLANATORY NOTE TO THE SAME SUBHEADING 38.19 K WHICH, BY REASON OF ITS GENERALITY, MUST ALSO APPLY TO THE PRODUCTS REFERRED TO IN THE THIRD PARAGRAPH OF THE EXPLANATORY NOTE IN QUESTION .
5 IN ORDER RESOLVE THAT DISPUTE THE FINANZGERICHT REFERRED THE FOLLOWING QUESTION TO THE COURT :
' ' MUST TARIFF SUBHEADING 38.19 K OF THE 1979 COMMON CUSTOMS TARIFF BE CONSTRUED AS MEANING THAT ONLY PRODUCTS HAVING A PYROSCOPIC RESISTANCE OF AT LEAST 1 500 OC DETERMINED IN ACCORDANCE WITH ISO RECOMMENDATIONS R 528-1966 AND R 1146-1969 MAY BE CLASSIFIED AS ' REFRACTORY '
PRODUCTS FOR THE PURPOSES OF THAT TARIFF SUBHEADING ( DEPENDING ON CONSTITUENT MATERIAL AND INTENDED USE)?
' '
6 IT IS STATED IN THE EXPLANATORY NOTE TO SUBHEADING 38.19 K :
' ' ONE OF THE ESSENTIAL CHARACTERISTICS OF REFRACTORY COMPOSITIONS OF THIS SUBHEADING IS THAT THEY SHOW A PYROSCOPIC RESISTANCE OF 1 500 OC AT LEAST ( DETERMINED IN ACCORDANCE WITH ISO RECOMMENDATIONS R 528-1966 AND R 1146-1969 ).
THIS SUBHEADING INCLUDES CERTAIN PREPARATIONS COMPOSED OF REFRACTORY MATERIALS, SUCH AS CHAMOTTE . . .
ALSO INCLUDED IN THIS SUBHEADING ARE SILICA-BASED REFRACTORY COMPOSITIONS USED FOR MAKING MOULDS FOR DENTAL PURPOSES OR FOR JEWELLERY BY THE LOST-WAX PROCESS . . . ' ' .
7 ACCORDING TO THE CASE-LAW OF THE COURT, THE EXPLANATORY NOTES TO THE COMMON CUSTOMS TARIFF CONSTITUTE AN IMPORTANT MEANS OF INTERPRETATION WHICH MAKES IT POSSIBLE TO DEFINE OR CLARIFY THE SCOPE OF THE VARIOUS TARIFF HEADINGS OR SUBHEADINGS .
8 IN THAT RESPECT IT SHOULD BE STATED THAT THE DECISIVE CRITERION FOR THE TARIFF CLASSIFICATION OF PRODUCTS MUST GENERALLY BE LOOKED FOR IN THE DESCRIPTION OF THEIR CHARACTERISTICS AND OBJECTIVE PROPERTIES CONTAINED IN THE WORDING OF COMMON CUSTOMS TARIFF HEADINGS AND THE NOTES RELATING THERETO .
9 THE CONCEPT ' ' REFRACTORY COMPOSITIONS ' '
APPEARING IN SUBHEADING 38.19 K IS TO BE UNDERSTOOD AS REQUIRING A PYROSCOPIC RESISTANCE OF 1 500 OC, WHICH WAS LAID DOWN IN THE COMMUNITY EXPLANATORY NOTES ON THE BASIS OF THE ISO RECOMMENDATIONS AND, IN THAT RESPECT, SUPPLIES THE ELEMENT OF CERTAINTY NEEDED TO ENSURE THE UNIFORM APPLICATION OF THE COMMON CUSTOMS TARIFF .
10 THE REFERENCE IN THE THIRD PARAGRAPH TO SILICA-BASED PRODUCTS USED FOR MAKING MOULDS FOR DENTAL PURPOSES OR FOR JEWELLERY IS MERELY AN INDICATION OF VARIOUS PRODUCTS WHICH COME WITHIN SUBHEADING 38.19 K ONLY IF THEY SATISFY THE DEFINITION OF REFRACTORY COMPOSITION GIVEN IN THE FIRST PARAGRAPH OF THE EXPLANATORY NOTE TO THAT SUBHEADING .
11 IT FOLLOWS THAT SUBHEADING 38.19 K OF THE 1979 COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT ONLY PRODUCTS HAVING A PYROSCOPIC RESISTANCE OF AT LEAST 1 500 DEGREES CENTIGRADE MAY BE CLASSIFIED AMONGST THE ' ' REFRACTORY COMPOSITIONS ' '
MENTIONED IN THAT SUBHEADING .
Decision on costs
COSTS
12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT RHEINLAND-PFALZ, BY ORDER OF 13 AUGUST 1981, HEREBY RULES :
SUBHEADING 38.19 K OF THE 1979 COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT ONLY PRODUCTS HAVING A PYROSCOPIC RESISTANCE OF AT LEAST 1 500 DEGREES CENTIGRADE MAY BE CLASSIFIED AMONGST THE ' ' REFRACTORY COMPOSITIONS ' '
MENTIONED IN THAT SUBHEADING .