Judgment of the Court (Second Chamber) of 16 October 1980. - Klaus Mecke & Co. v Hauptzollamt Bremen-Ost. - Reference for a preliminary ruling: Finanzgericht Bremen - Germany. - Common customs tariff - Textile fibres and flock and dust. - Case 816/79.



European Court reports 1980 Page 03029

Greek special edition Page 00195



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . COMMON CUSTOMS TARIFF - TARIFF HEADINGS - INTERPRETATION - CONSIDERATION OF THE VARIOUS LANGUAGE VERSIONS - REFERENCE TO THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL

2 . COMMON CUSTOMS TARIFF - TARIFF SUBHEADINGS - ' ' SYNTHETIC TEXTILE FIBRES ' ' WITHIN THE MEANING OF SUBHEADING 56.01 A - CONCEPT - EXCLUSION OF FIBRES NOT SUITABLE FOR SPINNING - IMPERMISSIBLE

3 . COMMON CUSTOMS TARIFF - TARIFF HEADINGS - ' ' FLOCK AND DUST OF MAN-MADE FIBRES ' ' WITHIN THE MEANING OF SUBHEADING 59.01 B I - CRITERIA - REFERENCE TO THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL

4 . COMMON CUSTOMS TARIFF - TARIFF SUBHEADINGS - ' ' FLOCK AND DUST OF MAN-MADE FIBRES ' ' WITHIN THE MEANING OF SUBHEADING 59.01 B I - CONCEPT - CUTTINGS OF SYNTHETIC TEXTILE FIBRES HAVING A LENGTH OF BETWEEN 6 AND 7 MM - INCLUSION

Summary

1 . WHEN A COMPARISON OF THE VARIOUS LANGUAGE VERSIONS OF ANY SUBHEADINGS IN THE COMMON CUSTOMS TARIFF REVEALS THAT THE DIFFICULTIES IN INTERPRETATION RAISED BEFORE A NATIONAL COURT RESULT MAINLY FROM THE PECULIARITIES OF ONE OF THE LANGUAGE VERSIONS , THOSE SUBHEADINGS ARE TO BE CONSIDERED IN ALL THE OFFICIAL LANGUAGE VERSIONS SIMULTANEOUSLY , USING IN ADDITION THE INFORMATION TO BE FOUND IN THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL .

2 . A GENERAL CONSIDERATION OF ALL THE OFFICIAL LANGUAGE VERSIONS OF THE COMMON CUSTOMS TARIFF SHOWS CLEARLY THAT SUBHEADING 56.01 A REPRESENTS AN OPEN-ENDED CATEGORY INCLUDING ALL TYPES OF FIBRE IRRESPECTIVE OF THEIR METHOD OF MANUFACTURE AND THEIR SUBSEQUENT USE . CONSEQUENTLY AN INTERPRETATION OF THAT SUBHEADING WHICH HAS THE EFFECT OF ARBITRARILY RESTRICTING ITS SCOPE BY EXCLUDING FROM IT ALL FIBRES WHICH ARE NOT SUITABLE FOR USE LATER IN SPINNING IS UNACCEPTABLE .

3 . IT IS APPARENT FROM THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL THAT THE SCOPE OF HEADING 59.01 OF THE COMMON CUSTOMS TARIFF CANNOT BE RESTRICTED TO WASTE PRODUCED BY SHEARING AND THAT THERE CANNOT BE A REQUIREMENT THAT IN EVERY CASE THE PRODUCT HAS THE APPEARANCE OF DUST . THE NOTES MAKE IT CLEAR THAT SUBHEADING 59.01 B I CAN APPLY EQUALLY TO TEXTILE CUTTINGS OF A REGULAR LENGTH .

4 . CUTTINGS OF SYNTHETIC TEXTILE FIBRES HAVING A LENGTH OF BETWEEN 6 AND 7 MM FALL WITHIN SUBHEADING 59.01 B I OF THE COMMON CUSTOMS TARIFF AS FLOCK AND DUST OF MAN-MADE FIBRES .

Parties

IN CASE 816/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) BREMEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

KLAUS MECKE & CO , AN IMPORT-EXPORT COMPANY HAVING ITS REGISTERED OFFICE IN BREMEN ,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) BREMEN-OST ( BREMEN-EAST ),

Subject of the case

ON THE INTERPRETATION OF SUBHEADINGS 56.01 A AND 59.01 B I OF THE COMMON CUSTOMS TARIFF ,

Grounds

1 BY AN ORDER OF 1 NOVEMBER 1979 WHICH WAS RECEIVED AT THE COURT ON 17 DECEMBER 1979 , THE FINANZGERICHT ( FINANCE COURT ) BREMEN , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF SUBHEADINGS 56.01 A AND 59.01 B I OF THE COMMON CUSTOMS TARIFF , WITH REFERENCE TO THE TARIFF CLASSIFICATION OF SHORT CUTTING OF SYNTHETIC TEXTILE FIBRES .

2 ACCORDING TO THE ORDER MAKING THE REFERENCE THE PLAINTIFF IN THE MAIN ACTION IMPORTED IN AUGUST 1978 A CONSIGNMENT OF CUTTING OF MAN-MADE TEXTILE FIBRES IN POLYESTER , CUT TO A LENGTH OF BETWEEN 6 AND 7 MM , FROM THE UNITED STATES OF AMERICA . THE IMPORTER DECLARED THE GOODS AS ' ' FLOCK AND DUST OF MAN-MADE FIBRES ' ' , AS DESCRIBED IN SUBHEADING 59.01 B I OF THE CUSTOMS TARIFF , SUBJECT TO CONVENTIONAL CUSTOMS DUTY AT A RATE OF 4% .

3 THE CUSTOMS OFFICE , HOWEVER , CONSIDERED THE GOODS TO BE ' ' SYNTHETIC TEXTILE FIBRES ' ' FALLING WITHIN SUBHEADING 56.01 A , ON WHICH CONVENTIONAL CUSTOMS DUTY IS LEVIED AT A RATE OF 9% . IN THE OPINION OF THE CUSTOMS ADMINISTRATION SUBHEADING 59.01 B I ADOPTED BY THE PLAINTIFF REFERS EXCLUSIVELY TO EXTREMELY SHORT CUTTINGS OF TEXTILE FIBRES WHICH ARE OF A DUST-LIKE CONSISTENCY , SUCH AS ARE NORMALLY OBTAINED FROM FABRIC FINISHING OPERATIONS AND , IN PARTICULAR , FROM THE SHEARING OF VELVETS . ACCORDING TO THE INTERPRETATIVE NOTES OF THE CUSTOMS CO-OPERATION COUNCIL , THAT SUBHEADING IS NOT APPLICABLE TO CUTTINGS EXCEEDING 2 MM IN LENGTH , EVEN WHEN THEY ARE PRODUCED BY THE CUTTING OF TEXTILE FILAMENTS OR FIBRES . THAT BEING SO , THE CUSTOMS ADMINISTRATION CONSIDERS THAT THERE IS NO CHOICE BUT TO CLASSIFY THE GOODS IN QUESTION UNDER SUBHEADING 56.01 A .

4 FOLLOWING THE REJECTION BY THE PRINCIPAL CUSTOMS OFFICE OF THE OBJECTION LODGED BY THE PLAINTIFF , THE LATTER BROUGHT AN ACTION BEFORE THE FINANZGERICHT , WHICH HAS REFERRED A QUESTION TO THE COURT FOR A PRELIMINARY RULING IN ORDER TO ENABLE IT TO DETERMINE THE RESPECTIVE SCOPE OF THE TWO CUSTOMS HEADINGS ADOPTED BY THE PARTIES . THAT QUESTION IS WORDED AS FOLLOWS :

' ' DO CUTTINGS OF SYNTHETIC TEXTILE FIBRES ( POLYESTER ) OF 6 TO 7 MM IN LENGTH FALL WITHIN SUBHEADING 56.01 A OF THE COMMON CUSTOMS TARIFF AS SYNTHETIC TEXTILE FIBRES ( DISCONTINUOUS ), NOT CARDED , COMBED OR OTHERWISE PREPARED FOR SPINNING , OR WITHIN SUBHEADING 59.01 B I AS FLOCK AND DUST OF MAN-MADE FIBRES?

' '

5 IN THE PROCEEDINGS BEFORE THIS COURT THE PLAINTIFF BASED ITS PRINCIPAL SUBMISSIONS ON THE FACT THAT , AS INTERPRETED BY IT , SUBHEADING 56.01 A COVERS EXCLUSIVELY TEXTILE FIBRES WHICH ARE SUITABLE FOR SPINNING , WHICH IS NOT THE CASE FOR EXTREMELY SHORT CUTTINGS SIMILAR TO THOSE WHICH IT IMPORTED . IN THE LATTER CASE HEADING 59.01 MUST APPLY , FOR IT EMBRACES VARIOUS TYPES OF FIBRE CHARACTERIZED BY THE FACT THAT THEY CANNOT BE SPUN . IN FACT THE FIBRES WHICH ARE THE SUBJECT OF THE DISPUTE ARE TO BE USED FOR MANUFACTURING BONDED FIBRE FABRICS OF HEADING 59.03 , WHICH FORMS PART OF THE SAME CHAPTER AS FLOCK AND DUST .

6 THE COMMISSION , FOR ITS PART , AGREES WITH THE VIEW OF THE CUSTOMS ADMINISTRATION . IT CONSIDERS THAT GOODS LIKE THOSE CONCERNED IN THIS CASE , WHICH ARE CUT TO A REGULAR LENGTH OF SEVERAL MILLIMETRES , SHOULD BE CONSIDERED AS ' ' TEXTILE FIBRES ' ' WITHIN THE MEANING OF SUBHEADING 56.01 A , WHEREAS THE FLOCK AND DUST OF SUBHEADING 59.01 B I , ACCORDING TO SEVERAL OF THE LANGUAGE VERSIONS OF THE CUSTOMS TARIFF , NOTABLY THE GERMAN , ENGLISH AND DANISH VERSIONS , ARE CHARACTERIZED BY THEIR POWDER-LIKE NATURE AND IN ITS OPINION , MOREOVER , THE NOTES OF THE CUSTOMS CO-OPERATION COUNCIL INDICATE THAT FIBRE CUTTINGS FALLING WITHIN THIS SUBHEADING SHOULD NOT GENERALLY EXCEED 2 MM IN LENGTH .

7 A COMPARISON OF THE VARIOUS LANGUAGE VERSIONS OF THE SUBHEADINGS IN THE COMMON CUSTOMS TARIFF TO WHICH REFERENCE HAS BEEN MADE REVEALS THAT THE DIFFICULTIES IN INTERPRETATION RAISED BEFORE THE NATIONAL COURT RESULT MAINLY FROM THE PECULIARITIES OF THE GERMAN LANGUAGE VERSION OF THE TARIFF . THE SUBHEADINGS MUST THEREFORE BE CONSIDERED IN ALL THE OFFICIAL LANGUAGE VERSIONS SIMULTANEOUSLY , AND USE MUST BE MADE AT THE SAME TIME OF THE INFORMATION TO BE FOUND IN THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL ON BOTH THE SUBHEADINGS IN QUESTION .

INTERPRETATION OF SUBHEADING 56.01 A

8 SUBHEADING 56.01 A READS IN THE SIX LANGUAGE VERSIONS OF THE TARIFF AS FOLLOWS :

- GERMAN : SPINNFASERN ;

- ENGLISH : TEXTILE FIBRES ;

- DANISH : FIBRE ;

- FRENCH : FIBRES TEXTILES ;

- ITALIAN : FIBRE TESSILI ;

- DUTCH : VEZELS .

9 A COMPARISON OF THESE VERSIONS SHOWS THAT ONLY THE WORD USED IN THE GERMAN LANGUAGE INCLUDES A REFERENCE TO THE SPINNING PROCESS ; IT MAY ALSO BE OBSERVED THAT THE WORD IS AMBIGUOUS IN THAT IT APPLIES BOTH TO FIBRES PRODUCED BY SPINNING AND FIBRES INTENDED FOR SUCH A PURPOSE . A GENERAL CONSIDERATION OF ALL THE OFFICIAL VERSIONS SHOWS CLEARLY THAT SUBHEADING 56.01 A REPRESENTS AN OPEN-ENDED CATEGORY , INCLUDING ALL TYPES OF FIBRE , IRRESPECTIVE OF THEIR METHOD OF MANUFACTURE AND THEIR SUBSEQUENT USE . CONSEQUENTLY THE PLAINTIFF ' S INTERPRETATION CANNOT BE ACCEPTED , FOR IT WOULD MEAN ARBITRARILY RESTRICTING THE SCOPE OF THAT TARIFF SUBHEADING BY EXCLUDING FROM IT ALL FIBRES WHICH ARE NOT SUITABLE FOR USE LATER IN SPINNING .

10 IT IS NOTEWORTHY THAT THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL HAVE FURTHER DEFINED HEADING 56.01 IN THE FOLLOWING TERMS :

' ' THE LENGTH INTO WHICH THE FIBRES ARE CUT IS USUALLY BETWEEN 2.5 CM AND 18 CM AND VARIES ACCORDING TO THE PARTICULAR MAN-MADE FIBRE CONCERNED , THE TYPE OF YARN TO BE MANUFACTURED AND THE NATURE OF ANY OTHER TEXTILE FIBRES WITH WHICH IT IS TO BE MIXED . ' '

11 THAT EXPLANATION REVEALS THAT IN GENERAL TEXTILE FIBRES HAVING A LENGTH OF LESS THAN 2.5 CM ARE NOT TO BE CONSIDERED AS TEXTILE FIBRES WITHIN THE MEANING OF SUBHEADING 56.01 A . THAT MEANS THAT , ACCORDING TO THE EXPLANATORY NOTES , THAT SUBHEADING APPARENTLY DOES NOT APPLY TO FIBRES THE NATURE OF WHICH DOUBTLESS CORRESPONDS TO THE CONCEPT OF THE ' ' TEXTILE FIBRE ' ' , BUT WHICH REMAIN APPRECIABLY BELOW THE MINIMUM LENGTH REFERRED TO IN THE EXPLANATORY NOTES . A CLASSIFICATION UNDER THAT SUBHEADING IS THEREFORE OUT OF THE QUESTION UNLESS IT PROVES IMPOSSIBLE TO FIND AN APPROPRIATE SUBHEADING WHICH IS MORE SPECIFIC .

TARIFF SUBHEADING 59.01 B I

12 SUBHEADING 59.01 B I READS IN THE SIX LANGUAGE VERSIONS OF THE TARIFF AS FOLLOWS :

- GERMAN : SCHERSTAUB ;

- ENGLISH : FLOCK AND DUST ;

- DANISH : FLOK , STOEV ;

- FRENCH : TONTISSES ;

- ITALIAN : BORRE DI CIMATURA ;

- DUTCH : SCHEERHAAR .

13 THE SIX LANGUAGE VERSIONS FOR THIS SUBHEADING ARE SCARCELY CONSISTENT FROM THE LINGUISTIC POINT OF VIEW . FOUR OF THEM , THE GERMAN , FRENCH , ITALIAN AND DUTCH VERSIONS , REFER TO A SINGLE CONCEPT , EMPHASIZING THE SHEARING PROCESS , WHEREAS THE ENGLISH AND DANISH VERSIONS HAVE TWO CONCEPTS WHICH ARE JUXTAPOSED , MAKING NO REFERENCE TO THAT PROCESS AND BASED EXCLUSIVELY ON THE EXTERNAL APPEARANCE OF THE PRODUCT . AMONG ALL THESE THE GERMAN LANGUAGE VERSION STANDS ALONE IN COMBINING IN A SINGLE COMPOUND WORD THE SHEARING PROCESS AND THE POWDERY APPEARANCE OF THE PRODUCT .

14 THIS COMPARATIVE LINGUISTIC ANALYSIS SHOWS CLEARLY THAT SUBHEADING 59.01 B I IS NOT UNEQUIVOCAL AND THAT IT NEEDS TO BE DEFINED IN ORDER TO AVOID DISCREPANCIES BETWEEN INTERPRETATIONS IN THE DIFFERENT MEMBER STATES , DEPENDING ON THE VERSION WHICH IS USED .

15 THE SCOPE OF THAT SUBHEADING HAS IN FACT BEEN FURTHER DEFINED IN THE EXPLANATORY NOTES OF THE CUSTOMS CO-OPERATION COUNCIL IN THE FOLLOWING TERMS :

' ' TEXTILE FLOCK CONSISTS OF VERY SHORT FIBRES . . . OBTAINED AS WASTE DURING VARIOUS FINISHING OPERATIONS AND , IN PARTICULAR , FROM THE SHEARING OF VELVETS . IT IS ALSO PRODUCED BY CUTTING TEXTILE FILAMENTS OR FIBRES INTO VERY SHORT LENGTHS ( GENERALLY UP TO 2 MM LONG ). TEXTILE DUST IS OBTAINED AS WASTE , OR BY GRINDING TEXTILE FIBRES TO A POWDER . ' '

16 THAT NOTE SHOWS THAT THE DIFFERENT EXPRESSIONS USED IN SUBHEADING 59.01 B I MERELY DESCRIBE , MORE OR LESS NEARLY , A GROUP OF FIBRES OR FIBRE FRAGMENTS OBTAINED :

- EITHER AS A BY-PRODUCT OF THE FINISHING OF FABRICS AND ESPECIALLY OF THE SHEARING OF VELVETS ;

- OR BY CUTTING TEXTILE FILAMENTS OR FIBRES ;

- OR BY GRINDING TEXTILE FIBRES .

17 IN THE FIRST CASE , EXTREMELY SHORT FIBRES OF UNEQUAL LENGTHS ARE OBTAINED , WHICH ARE BY NATURE PRODUCED AS WASTE FROM CERTAIN PROCESSES IN THE TEXTILE INDUSTRY ; IN THE SECOND CASE , THE PRODUCT APPEARS AS FLOCK COMPOSED OF REGULARLY-SHAPED CUTTINGS ; IN THE THIRD CASE , IT IS A POWDER MADE OF TEXTILE MATTER . IT FOLLOWS FROM THE ABOVE , CONTRARY TO THE SUBMISSIONS ADVANCED BY THE CUSTOMS ADMINISTRATION IN THE COURSE OF THE PROCEEDINGS , THAT THIS CATEGORY CANNOT BE RESTRICTED TO WASTE PRODUCED BY SHEARING , AND DOES NOT REQUIRE THAT IN EVERY CASE THE PRODUCT HAS THE APPEARANCE OF DUST . SUCH AN INTERPRETATION WOULD EXCLUDE ONE OF THE THREE CATEGORIES REFERRED TO IN THE EXPLANATORY NOTES . THE LATTER SHOW , IN FACT , THAT SUBHEADING 59.01 B I CAN APPLY EQUALLY TO TEXTILE CUTTINGS OF A REGULAR LENGTH , SUCH AS THOSE WHICH FORM THE SUBJECT-MATTER OF THIS DISPUTE .

18 IN THOSE CIRCUMSTANCES THE ONLY POINT ON WHICH DOUBT MAY OCCUR IN THE EXPLANATORY NOTES ON SUBHEADING 59.01 B I LIES IN THE DEFINITION , ADDED IN THOSE NOTES TO THE PHRASE ' ' VERY SHORT LENGTH ' ' , TO THE EFFECT THAT THAT IS TO MEAN FIBRES WHICH DO NOT , GENERALLY , EXCEED A LENGTH OF 2 MM .

19 ON A COMPARISON OF THE ELEMENTS OF INTERPRETATION DEFINED ABOVE , IT APPEARS HOWEVER THAT AT LEAST TWO ELEMENTS ENABLE THE COURT TO CONCLUDE THAT THE GOODS IN QUESTION HAVE A CLOSER AFFINITY TO SUBHEADING 59.01 B I : IN THE FIRST PLACE , THE GREATER DEGREE OF PRECISION IN THE LATTER SUBHEADING , WHICH , AS STATED ABOVE , EXTENDS TO VERY SHORT FIBRES OBTAINED BY CUTTING TEXTILE FILAMENTS OR FIBRES ; IN THE SECOND PLACE , THE ACTUAL LENGTH OF THE FIBRES WHICH IS , IN THE PRESENT CASE , CLOSER TO THE KIND OF FIBRE ENVISAGED IN THE EXPLANATORY NOTES REFERRING TO SUBHEADING 59.01 B I THAN TO THE CATEGORY OF LENGTH INDICATED IN THE EXPLANATORY NOTES ON SUBHEADING 56.01 A . IT APPEARS THEREFORE THAT DESPITE THE IMPRESSION GIVEN BY THE TERMINOLOGY OF THE GERMAN LANGUAGE VERSION OF THE TARIFF , GOODS SUCH AS THOSE WHICH ARE THE SUBJECT OF THE DISPUTE MUST , IN THE FINAL ANALYSIS , BE CLASSIFIED PREFERABLY UNDER SUBHEADING 59.01 B I IN THE LIGHT OF THE EXPLANATIONS TO BE FOUND IN THE EXPLANATORY NOTES .

20 THE REPLY TO THE QUESTION MUST THEREFORE BE THAT CUTTINGS OF SYNTHETIC TEXTILE FIBRES HAVING A LENGTH OF BETWEEN 6 AND 7 MM FALL WITHIN SUBHEADING 59.01 B I OF THE COMMON CUSTOMS TARIFF AS FLOCK AND DUST OF MAN-MADE FIBRES .

Decision on costs

21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE 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 BREMEN BY AN ORDER OF 1 NOVEMBER 1979 , HEREBY RULES :

CUTTINGS OF SYNTHETIC TEXTILE FIBRES HAVING A LENGTH OF BETWEEN 6 AND 7 MM FALL WITHIN SUBHEADING 59.01 B I OF THE COMMON CUSTOMS TARIFF AS FLOCK AND DUST OF MAN-MADE FIBRES .