Judgment of the Court of 8 May 1974. - Osram GmbH v Oberfinanzdirektion Frankfurt/Main. - Reference for a preliminary ruling: Bundesfinanzhof - Allemagne. - Case 183-73.



European Court reports 1974 Page 00477

Greek special edition Page 00265

Portuguese special edition Page 00271

Spanish special edition Page 00259



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . COMMON CUSTOMS TARIFF - INTERPRETATION - RULES - AIM - CHARACTER - TIME OF APPLICATION

2 . COMMON CUSTOMS TARIFF - INTERPRETATION - RULES - COMMISSION'S EXPLANATORY NOTES - CHARACTER - EFFECT

3 . COMMON CUSTOMS TARIFF - TARIFF HEADING NO 70.11 - CONCEPT

4 . COMMON CUSTOMS TARIFF - TARIFF SUBHEADING 85.20-C - CONCEPT

Summary

1 . THE RULES FOR INTERPRETATION INSERTED INTO THE COMMON CUSTOMS TARIFF PURSUANT TO THE COUNCIL DECISION OF 21 JUNE 1971 WERE DEVISED WITH THE AIM OF COORDINATING, FOR THE TARIFF AS A WHOLE, INTERPRETATION PRACTICES LAID DOWN BY SPECIAL PROVISIONS, SO THAT THEY DO NOT FORM A LEGAL INNOVATION BUT APPLY TO IMPORTS EFFECTED EVEN BEFORE 1 JANUARY 1972 .

2 . THE COMMISSION'S EXPLANATORY NOTES, WHILE CONSTITUTING AN IMPORTANT FACTOR IN INTERPRETING THE COMMON CUSTOMS TARIFF, CANNOT MODIFY ITS TEXT, NOR THE INTRODUCTORY NOTES TO THE CHAPTERS WHICH ARE AN INTEGRAL PART OF THE TARIFF .

3 . THE TERMS 'GLASS ENVELOPES ( INCLUDING BULBS AND TUBES ) FOR ELECTRIC LAMPS' UNDER TARIFF HEADING NO 70.11 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT THIS INCLUDES ANY ARTICLE OF GLASS INTENDED TO FORM AN ENVELOPE FOR ELECTRIC LAMPS AND TUBES AND HAVING, AS IMPORTED, THE ESSENTIAL CHARACTER OF THE COMPLETE OR FINISHED ARTICLE .

4 . SUBHEADING NO 82.20-C OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT IT INCLUDES ANY PART OR COMPONENT OF GLASS INTENDED TO FORM AN ENVELOPE FOR ELECTRIC LAMPS AND TUBES AND NOT FALLING UNDER TARIFF HEADING NO 70.11 .

Parties

IN CASE 183/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF ( FEDERAL FISCAL COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

OSRAM GMBH, MUNICH

AND

OBERFINANZDIREKTION FRANKFURT ( MAIN ) ( CENTRAL TAX OFFICE, FRANKFURT-ON-MAIN )

Subject of the case

ON THE INTERPRETATION OF TARIFF HEADINGS NOS 70.11, 85.20 AND 70.21 OF THE COMMON CUSTOMS TARIFF REGARDING THE CLASSIFICATION OF CERTAIN TYPES OF REFLECTOR INTENDED FOR THE MANUFACTURE OF LAMPS

Grounds

1 BY ORDER OF 16 OCTOBER 1973, RECEIVED BY THE COURT ON 19 NOVEMBER 1973, THE BUNDESFINANZHOF, BY APPLICATION OF ARTICLE 177 OF THE EEC TREATY, SUBMITTED QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF ( HEREINAFTER REFERRED TO AS THE 'CCT ').

2 IT APPEARS FROM THE ORDER FOR REFERENCE THAT THESE QUESTIONS WERE SUBMITTED IN CONNEXION WITH AN ACTION RELATING TO A BINDING TARIFF CLASSIFICATION (' VERBINDLICHE ZOLLTARIFAUSKUNFT ') ISSUED BY A GERMAN CUSTOMS AUTHORITY ON 11 AUGUST 1970 CONCERNING THE CLASSIFICATION OF REFLECTORS AND LENSES MADE FROM MOULDED GLASS INTENDED FOR THE MANUFACTURE OF CERTAIN SPECIAL KINDS OF ELECTRIC LAMP .

3 THE MANUFACTURING PROCESS FOR SUCH LAMPS, UNLIKE THAT FOR THE TRADITIONAL ELECTRIC LAMP, DOES NOT INVOLVE THE USE OF A COMPLETE GLASS BULB BUT THAT OF OPEN, CONIFORM GLASS REFLECTORS WHICH, AFTER THE ELECTRICAL COMPONENTS HAVE BEEN ASSEMBLED, ARE CLOSED BY LENSES WELDED TO THEIR SIDES .

THE FIRST AND SECOND QUESTIONS

4 THE FIRST TWO QUESTIONS SUBMITTED REQUIRE AN INTERPRETATION OF THE TERMS 'GLASS ENVELOPES, ( INCLUDING BULBS ...)' IN THE SENSE OF TARIFF HEADING NO 70.11 OF THE CCT .

5 IT APPEARS FROM THE WORDING OF TARIFF HEADING NO 70.11 IN ITS VARIOUS LINGUISTIC VERSIONS THAT IT COVERS NOT ONLY GLASS OBJECTS USED IN THE MANUFACTURE OF ELECTRIC LAMPS BY TRADITIONAL PROCESSES, BUT ALL GLASS OBJECTS INTENDED FOR THE MANUFACTURE OF SUCH LAMPS WHATEVER THE PROCESS USED .

THIS INTERPRETATION IS CONFIRMED BY THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE IN RESPECT OF TARIFF HEADING NO 70.11, FROM WHICH IT CLEARLY APPEARS THAT THE OBJECTIVE CHARACTERISTICS AND PROPERTIES OF THE PRODUCTS FALLING WITHIN THIS HEADING DERIVE ESSENTIALLY FROM THEIR UTILIZATION IN THE MANUFACTURE OF ELECTRIC LAMPS AND TUBES .

6 AS WORDED IN THE OFFICIAL LANGUAGES OF THE COMMUNITY BEFORE 1973, TARIFF HEADING NO 70.11 APPLIES ONLY TO 'UNFINISHED' PRODUCTS .

THIS TERM MUST BE INTERPRETED IN LINE WITH RULE 2 ( A ), FIRST SENTENCE, OF THE GENERAL RULES FOR THE INTERPRETATION OF THE CCT, IN SECTION I .

ACCORDING TO THIS RULE, 'ANY REFERENCE IN A HEADING TO AN ARTICLE SHALL BE TAKEN TO INCLUDE A REFERENCE TO THAT ARTICLE INCOMPLETE OR UNFINISHED, PROVIDED THAT, AS IMPORTED, THE INCOMPLETE OR UNFINISHED ARTICLE HAS THE ESSENTIAL CHARACTER OF THE COMPLETE OR FINISHED ARTICLE '.

THE QUESTION OF ASCERTAINING WHETHER THE PRODUCTS WITH WHICH THE MAIN ACTION IS CONCERNED IN FACT MEET THESE REQUIREMENTS CONCERNS THE APPLICATION RATHER THAN AN INTERPRETATION OF THE CCT AND IS CONSEQUENTLY A MATTER FOR THE NATIONAL COURT .

7 IF IT IS TRUE THAT THE CONCEPT OF AN UNFINISHED PRODUCT CANNOT BE TAKEN TO EXTEND TO EACH OF THE SEPARATE PARTS THAT GO TO MAKE UP A PRODUCT, ACCOUNT SHOULD BE TAKEN OF THE GENERAL RULE FOR INTERPRETATION NO 2 ( A ), SECOND SENTENCE, IN SECTION I OF THE CCT, WHICH PROVIDES THAT ANY REFERENCE IN A GIVEN HEADING OF THE TARIFF 'SHALL ALSO BE TAKEN TO INCLUDE A REFERENCE TO THAT ARTICLE COMPLETE OR FINISHED ( OR FALLING TO BE CLASSIFIED AS COMPLETE OR FINISHED BY VIRTUE OF THIS RULE ), IMPORTED UNASSEMBLED OR DISASSEMBLED '.

IT APPEARS FROM THE WORDING OF THIS PROVISION THAT IT CAN APPLY ONLY PROVIDED THAT THE DISASSEMBLED PARTS ARE PUT FORWARD SIMULTANEOUSLY FOR CUSTOMS CLEARANCE .

ACCOUNT SHOULD FURTHER BE TAKEN OF THE EXPLANATORY NOTE TO THE BRUSSELS NOMENCLATURE RELATING TO THIS PROVISION, ACCORDING TO WHICH A DISASSEMBLED ARTICLE IS ANY ARTICLE 'THE COMPONENTS OF WHICH ARE TO BE ASSEMBLED EITHER BY MEANS OF SIMPLE FIXING DEVICES (...) OR BY RIVETTING OR WELDING, FOR EXAMPLE, PROVIDED THAT ONLY SIMPLE ASSEMBLY OPERATIONS ARE INVOLVED '.

IT IS FOR THE NATIONAL COURT TO DECIDE WHETHER THE WELDING OF LENSES TO THE REFLECTORS IN QUESTION IN FACT FULFILS THESE REQUIREMENTS .

8 THE TWO SENTENCES OF THE RULE FOR INTERPRETATION NO 2 ( A ) IN SECTION I WERE INSERTED INTO THE CCT WITH EFFECT FROM 1 JANUARY 1972, CONSEQUENT UPON A RECOMMENDATION ADOPTED ON 9 JUNE 1970 BY THE CUSTOMS COOPERATION COUNCIL AND ACCEPTED BY THE MEMBER STATES OF THE COMMUNITY PURSUANT TO THE COUNCIL DECISION OF 21 JUNE 1971 ( OJ L 137 OF 23 JUNE 1971, P . 10 ).

THERE ARE GROUNDS FOR CONSIDERING THAT THESE RULES FOR INTERPRETATION WERE DEVISED WITH THE AIM OF COORDINATING, FOR THE TARIFF AS A WHOLE, INTERPRETATION PRACTICES LAID DOWN BY SPECIAL PROVISIONS, SO THAT THEY DO NOT FORM A LEGAL INNOVATION BUT APPLY TO IMPORTS EFFECTED EVEN BEFORE 1 JANUARY 1972 .

THE THIRD QUESTION

9 THE THIRD QUESTION ASKS WHETHER CONIFORM ARTICLES OF GLASS OPEN AT BOTH ENDS FALL UNDER HEADING NO 70.11 OR, ON THE OTHER HAND, UNDER HEADINGS NOS 85.20 OR 70.21 .

10 AS ALREADY STATED, IT IS FOR THE NATIONAL COURT TO DETERMINE WHETHER THE ITEMS IN QUESTION IN FACT MEET THE CONDITIONS WHEREBY THEY CAN BE CLASSIFIED UNDER ONE OR OTHER TARIFF HEADING, AND THE COURT IS COMPETENT BY APPLICATION OF ARTICLE 177 OF THE EEC TREATY TO FIND ONLY AS REGARDS THE INTERPRETATION OF THE PROVISIONS OF THE TARIFF .

11 HEADING NO 70.21 INCLUDES 'OTHER ARTICLES OF GLASS' AND HEADING NO 85.20 'ELECTRIC FILAMENT LAMPS AND ELECTRIC DISCHARGE LAMPS', INCLUDING 'PARTS' ( PRESENT SUBHEADING C ).

NOTE 1 ( B ) TO CHAPTER 85 OF THE TARIFF PROVIDES FOR 'ARTICLES OF GLASS OF HEADING NO 70.11' TO BE EXCLUDED FROM THIS CHAPTER .

IT APPEARS FROM THIS THAT A PRODUCT THAT DOES NOT FALL UNDER HEADING NO 70.11 MAY FALL WITHIN CHAPTER 85 .

12 THE GENERAL RULE FOR INTERPRETATION UNDER 3 ( A ) TO SECTION I PROVIDES THAT HEADINGS WHICH PROVIDE THE MOST SPECIFIC DESCRIPTION SHALL BE PREFERRED TO HEADINGS PROVIDING A MORE GENERAL DESCRIPTION .

THE HEADING NO 85.20-C (' ELECTRIC FILAMENT LAMPS AND ELECTRIC DISCHARGE LAMPS ...: PARTS ') IS MORE SPECIFIC THAN RESIDUAL HEADING NO 70.21 (' OTHER ARTICLES OF GLASS ').

THE COMMISSION HAS STATED, HOWEVER, THAT IT HAS ISSUED AN EXPLANATORY NOTE RELATING TO SUBHEADING NO 85.20-C WHICH EXCLUDES FROM THE LATTER 'GLASS COMPONENTS INTENDED TO FORM AN ENVELOPE FOR BULBS AND TUBES OF ELECTRIC LAMPS ( NO 70.21 )'.

THE COMMISSION'S EXPLANATORY NOTES, WHILE CONSTITUTING AN IMPORTANT FACTOR IN INTERPRETING THE COMMON CUSTOMS TARIFF, CANNOT MODIFY ITS TEXT, NOR THE INTRODUCTORY NOTES TO THE CHAPTERS, WHICH ARE AN INTEGRAL PART OF THE TARIFF .

13 IT MUST THEREFORE BE CONCLUDED THAT TARIFF HEADING NO 85.20-C MUST BE INTERPRETED TO MEAN THAT IT INCLUDES ARTICLES OF GLASS INTENDED TO FORM AN ENVELOPE FOR ELECTRIC LAMPS AND NOT FALLING UNDER TARIFF HEADING NO 70.11 .

Decision on costs

14 THE COSTS INCURRED BY THE COMMISSION, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

15 AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY AN ORDER DATED 16 OCTOBER 1973, HEREBY RULES :

1 . THE TERM 'GLASS ENVELOPES ( INCLUDING BULBS AND TUBES ) FOR ELECTRIC LAMPS' UNDER TARIFF HEADING NO 70.11 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT THIS INCLUDES ANY ARTICLE OF GLASS INTENDED TO FORM AN ENVELOPE FOR ELECTRIC LAMPS AND TUBES AND HAVING, AS IMPORTED, THE ESSENTIAL CHARACTER OF THE COMPLETE OR FINISHED ARTICLE .

2 . SUBHEADING NO 85.20-C OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED TO MEAN THAT IT INCLUDES ANY PART OR COMPONENT OF GLASS INTENDED TO FORM AN ENVELOPE FOR ELECTRIC LAMPS AND TUBES AND NOT FALLING UNDER TARIFF HEADING NO 70.11 .