61973CJ0128_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 128/73
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY, BY THE BADEN-WUERTTEMBERG FINANZGERICHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
PAST AND CO . KG,
AND
HAUPTZOLLAMT FREIBURG,
Subject of the case
ON THE INTERPRETATION OF SUBHEADINGS I AND II OF TARIFF HEADING 41.03-B OF THE COMMON CUSTOMS TARIFF,
Grounds
1 BY ORDER DATED 28 MARCH 1973, FILED AT THE REGISTRY ON 20 APRIL 1973, THE FINANZGERICHT OF BADEN-WUERTTEMBERG REFERRED TO THE COURT FOR A PRELIMINARY RULING THE INTERPRETATION OF SUBHEADINGS 41.03 B I, " SHEEP AND LAMB SKIN LEATHER NOT FURTHER PREPARED THAN TANNED ", AND 41.03 B II, " OTHER ", OF THE COMMON CUSTOMS TARIFF .
2 MORE PRECISELY THE QUESTION IS WHETHER " CHROME-TANNED SKIN IS NO LONGER A SKIN " NOT FURTHER PREPARED THAN TANNED " WHEN FAT HAS BEEN ADDED IN TANNING ".
3 THE DECISIVE CRITERION FOR THE CUSTOMS CLASSIFICATION OF GOODS MUST GENERALLY BE LOOKED FOR IN THE OBJECTIVE CHARACTERISTICS AND PROPERTIES OF PRODUCTS .
ACCORDING TO THE EXPLANATORY NOTES OF THE BRUSSELS NOMENCLATURE RELATING TO TARIFF HEADING 41.02, AND APPLICABLE LIKEWISE TO TARIFF HEADING 41.03, TANNING RENDERS HIDES AND SKINS RESISTANT TO DECAY AND INCREASES THEIR PHYSICAL STRENGTH AND IMPERMEABILITY TO WATER .
4 THE NOTES SPECIFY THAT HIDES AND SKINS WHICH HAVE HAD FURTHER TREATMENT GOING BEYOND TANNING, AIMED AT RENDERING THEM READY FOR USE BY, IN PARTICULAR, MAKING THEM MORE SUPPLE, COME UNDER SUBHEADING 41.03 B II .
ACCORDING TO THE EXPLANATORY NOTES OF THE COMMON CUSTOMS TARIFF, PROCESSES INTENDED TO COMPLETE THE TANNING, E.G . DRYING THE SKINS, DO NOT ALTER THEIR CLASSIFICATION AS HIDES AND SKINS " NOT FURTHER PREPARED THAN TANNED ".
5 WHILST, ACCORDING TO THE NOTES, THE ADDITION OF FAT NORMALLY COMES WITHIN THE FRAMEWORK OF PROCESSES WHICH FOLLOW TANNING, IT IS CONCEIVABLE THAT, FOR TECHNICAL REASONS, IN PARTICULAR TO AVOID DETERIORATION OF THE FIBRES RESULTING FROM A DRIED SKIN, THE ADDITION OF FAT TO THE TANNING LIQUIDS IS INDISPENSABLE IN ORDER TO PROCEED TO THE SECOND PHASE OF THE TREATMENT IN THE IMPORTING COUNTRY .
THIS INTERPRETATION IS NOT INVALIDATED BY THE OPINION GIVEN BY THE COMMITTEE ON CUSTOMS NOMENCLATURE AT ITS 67TH MEETING IN SEPTEMBER 1972, WHICH, WHILE ACCEPTING THAT THE ADDITION OF FAT GENERALLY WENT BEYOND TANNING, CONSIDERS THAT THE WORKING PARTY CHARGED WITH DEFINING THIS POSITION IN AN EXPLANATORY NOTE, SHOULD TAKE INTO ACCOUNT THE TECHNOLOGICAL EVOLUTION IN TANNING LIQUIDS .
6 CONSEQUENTLY WHILE THE FACT THAT A HIDE OR SKIN HAS RECEIVED AN ADDITION OF FAT WILL NORMALLY INVOLVE ITS CLASSIFICATION UNDER SUBHEADING 41.03 B II, THE COMPETENT NATIONAL AUTHORITIES MUST JUDGE WHETHER THE ADDITION IN QUESTION CONSTITUTES AN ESSENTIAL PROCESS IN TANNING BY REASON OF ITS FUNCTION OF PRESERVING THE LEATHER WITHOUT RENDERING IT READY FOR USE .
Decision on costs
7 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, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE OBSERVATIONS OF THE PLAINTIFF IN THE MAIN ACTION AND THE COMMISSION OF THE EUROPEAN COMMUNITIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLE 177;
HAVING REGARD TO REGULATION NO 950/68 RELATING TO THE COMMON CUSTOMS TARIFF;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLE 20;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES;
Operative part
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT BADEN-WUERTTEMBERG BY ORDER OF THAT COURT DATED 28 MARCH 1973, HEREBY RULES :
THE ADDITION OF FAT DOES NOT ALTER THE CLASSIFICATION OF SHEEP AND LAMB SKIN LEATHER UNDER SUBHEADING 41.03 B I INSOFAR AS IT CONSTITUTES A PROCESS INHERENT IN TANNING BY REASON OF ITS FUNCTION OF PRESERVING THE LEATHER WITHOUT MAKING IT READY FOR USE .