61975CJ0028_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 28/75
TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
BAUPLA GMBH, SARRELOUIS,
AND
OBERFINANZDIREKTION KOELN
Subject of the case
ON THE INTERPRETATION OF RULE 3 OF THE GENERAL RULES IN SECTION I A OF THE PRELIMINARY PROVISIONS IN REGULATION ( EEC ) NO 950/68 ON THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL 1968, NO L 172 ),
Grounds
1 BY ORDER DATED 12 FEBRUARY 1975, FILED AT THE COURT REGISTRY ON 12 MARCH 1975, THE BUNDESFINANZHOF, UNDER ARTICLE 177 OF THE EEC TREATY, RAISED THE QUESTION WHETHER RULE 3 ( A ) OF THE RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ( REGULATION ( EEC ) NO 950/68 OF THE COUNCIL OF 28 JUNE 1968, OJ NO 172 AS AMENDED BY LATER REGULATIONS ) SHOULD BE INTERPRETED AS MEANING THAT WHEN A MIXTURE IS CLASSIFIABLE UNDER TWO OR MORE HEADINGS, EACH OF WHICH RELATES TO ONE OF THE MATERIALS COMPOSING THE MIXTURE, THE HEADING WHICH PROVIDES THE MOST SPECIFIC DESCRIPTION IS NOT TO BE PREFERRED AND THAT THE GOODS ARE TO BE CLASSIFIED UNDER RULES 3 ( B ) OR 3 ( C ).
2 THIS QUESTION OF INTERPRETATION HAS BEEN RAISED IN THE CONTEXT OF AN ACTION RELATING TO THE TARIFF CLASSIFICATION OF FACING BOARDS OF COMPRESSED WOOD FIBRE IMPREGNATED WITH ASPHALT WITH A LAYER OF ASPHALT ON THE FRONT .
THE OBERFINANZDIREKTION KOELN, THE DEFENDANT IN THE MAIN ACTION, CLASSIFIED THE PRODUCT UNDER HEADING NO 48.09 (' BUILDING BOARD OF WOOD PULP ...') WHEREAS THE PLAINTIFF IN THE MAIN ACTION CLAIMED THAT IT SHOULD BE CLASSIFIED UNDER HEADING NO 68.08 (' ARTICLES OF ASPHALT ...').
3 ACCORDING TO RULE 3 OF THE GENERAL RULES WHEN, FOR ANY 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 .
( B ) MIXTURE AND COMPOSITE GOODS WHICH CONSIST OF DIFFERENT MATERIALS OR ARE MADE UP OF DIFFERENT COMPONENTS AND WHICH CANNOT BE CLASSIFIED BY REFERENCE TO 3 ( A ) SHALL BE CLASSIFIED AS IF THEY CONSISTED OF THE MATERIAL OR COMPONENT WHICH GIVES THE GOODS THEIR ESSENTIAL CHARACTER, IN SO FAR AS THIS CRITERION IS APPLICABLE .
( C ) WHEN GOODS CANNOT BE CLASSIFIED BY REFERENCE TO 3 ( A ) OR 3 ( B ), THEY SHALL BE CLASSIFIED UNDER THE HEADING WHICH INVOLVES THE HIGHEST RATE OF DUTY AND IF THIS RATE IS THE SAME FOR SEVERAL HEADINGS, THEY SHALL BE CLASSIFIED UNDER THAT ONE OF SUCH HEADINGS WHICH OCCURS LATEST IN THE NOMENCLATURE OF THE TARIFF '.
4 IT IS COMMON GROUND THAT THE METHODS LAID DOWN IN ( A ), ( B ) AND ( C ) MUST BE APPLIED IN THE ORDER IN WHICH THEY ARE SET OUT IN THE RULE .
THE QUESTION THEREFORE MAY ARISE WHETHER, SINCE HEADING NO 48.09 IN THE PRESENT CASE DESCRIBES THE PRODUCT IN QUESTION BY NAME (' BUILDING BOARD '), IT MUST NOT BE REGARDED AS BEING MORE SPECIFIC THAN HEADING NO 68.08 WHICH COMPRISES A CATEGORY OF PRODUCTS (' ARTICLES ...'), SO THAT RULE 3 ( A ) CAN AND THEREFORE MUST APPLY .
5 THE NATIONAL COURT HOWEVER ASKS WHETHER SUCH AN INTERPRETATION WHICH RELATES EXCLUSIVELY TO THE EXTERNAL FORM OF THE GOODS WITHOUT TAKING INTO ACCOUNT THE MATERIALS WHICH MAKE THEM UP, DOES NOT RISK LEADING TO ARBITRARY APPLICATIONS INCOMPATIBLE WITH THE OBJECTIVES OF THE COMMON CUSTOMS TARIFF .
THE OBSERVATIONS OF THE COMMISSION TEND TO CONFIRM THE DOUBTS OF THE NATIONAL COURT .
IN THIS RESPECT BOTH PARTIES CITE THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE ADOPTED BY THE COMMON CUSTOMS TARIFF, ACCORDING TO WHICH 'IF TWO OR MORE HEADINGS EACH REFER TO ONE ONLY OF THE MATERIALS OR SUBSTANCES CONTAINED IN MIXED OR COMPOSITE GOODS, 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 THAN THE OTHERS '.
6 IF INDEEDING CASES SUCH AS THE PRESENT WHERE GOODS APPEAR TO BE CLASSIFIABLE UNDER TWO HEADINGS CORRESPONDING TO THE DIFFERENT MATERIALS OF WHICH THEY ARE COMPOSED, IT WERE NECESSARY IN CLASSIFYING THEM TO HAVE REGARD TO THE HEADING DESCRIBING THEM MOST PRECISELY WITH REGARD TO THEIR APPEARANCE, THE RESULT WOULD DEPEND ON CHANCE CIRCUMSTANCES ALIEN TO THE NEEDS OF CUSTOMS PROTECTION .
FROM THE LATTER ASPECT THE COMPOSITION OF THE GOODS HAS IN MANY CASES A MUCH GREATER IMPORTANCE AND MUST THEREFORE BE TAKEN INTO ACCOUNT AS AN ESSENTIAL FACTOR IN THE CLASSIFICATION .
7 IT IS RIGHT THEREFORE TO REPLY THAT WHEN A MIXTURE IS, PRIMA FACIE, CLASSIFIABLE UNDER TWO OR MORE HEADINGS OF THE COMMON CUSTOMS TARIFF, EACH OF WHICH RELATES TO ONE OF THE MATERIALS COMPOSING THE MIXTURE, NONE OF THE HEADINGS CAN BE REGARDED AS MORE SPECIFIC THAN THE OTHERS ON THE SOLE GROUND THAT IT GIVES A MORE PRECISE OR MORE COMPLETE DESCRIPTION OF THE PRODUCT REFERRED TO .
IN CLASSIFYING SUCH A PRODUCT RULES 3 ( B ) OR 3 ( C ) OF THE GENERAL RULES MUST THEREFORE BE APPLIED .
Decision on costs
8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE BUNDESFINANZHOF, COSTS ARE A MATTER FOR THAT COURT .
Operative part
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 12 FEBRUARY 1975, HEREBY RULES :
WHEN A MIXTURE IS, PRIMA FACIE, CLASSIFIABLE UNDER TWO OR MORE HEADINGS OF THE COMMON CUSTOMS TARIFF, EACH OF WHICH RELATES TO ONE OF THE MATERIALS COMPOSING THE MIXTURE, NONE OF THE HEADINGS CAN BE REGARDED AS MORE SPECIFIC THAN THE OTHERS ON THE SOLE GROUND THAT IT GIVES A MORE PRECISE OR MORE COMPLETE DESCRIPTION OF THE PRODUCT REFERRED TO .
IN CLASSIFYING SUCH A PRODUCT RULES 3 ( B ) OR 3 ( C ) OF THE GENERAL RULES MUST THEREFORE BE APPLIED .