Judgment of the Court (First Chamber) of 16 March 1978. - Wolfgang Oehlschläger v Hauptzollamt Emmerich. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Case 104/77.



European Court reports 1978 Page 00791

Greek special edition Page 00277

Portuguese special edition Page 00293



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT OF JUSTICE - LIMITS

( EEC TREATY , ART . 177 )

2 . COMMON CUSTOMS TARIFF - DESCRIPTION OF GOODS - ALUMINIUM WASTE AND SCRAP - SUBHEADING 76.01 B - INTERPRETATION

3 . COMMON CUSTOMS TARIFF - CLASSIFICATION OF GOODS - GOODS MADE OUT OF USED ALUMINIUM CABLES - CLASSIFICATION UNDER SUBHEADING 78.01 A - CONDITIONS

Summary

1 . UNDER ARTICLE 177 OF THE TREATY , WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE , THE LATTER IS EMPOWERED ONLY TO GIVE RULINGS ON THE INTERPRETATION OR THE VALIDITY OF A COMMUNITY PROVISION ON THE BASIS OF THE FACTS WHICH THE NATIONAL COURT PUTS BEFORE IT ; TO VERIFY WHETHER SUCH FACTS ARE CORRECT IS NOT WITHIN THE COMPETENCE OF THE COURT OF JUSTICE , AND IS A MATTER FOR THE NATIONAL COURT .

2 . THE CONCEPTS OF ' ' WASTE AND SCRAP ' ' IN SUBHEADING 76.01 B OF THE COMMON CUSTOMS TARIFF COVERS PRODUCTS WHICH , AS FAR AS THEIR OBJECTIVE CHARACTERISTICS ARE CONCERNED , ARE LEFT OVER FROM THE CUTTING , SHAPING OR OTHER MECHANICAL WORKING OF ALUMINIUM OBJECTS OR ARE DEFECTIVE , USED OR IRREPARABLE ALUMINIUM ARTICLES AND WHICH , AS REGARDS THE USE TO WHICH , THEY CAN BE PUT , HAVE NO REMAINING VALUE OTHER THAN BEING FIT FOR THE RECOVERY OF THE METAL .

3 . GOODS CONSISTING OF CHOPPED ALUMINIUM WIRE OF A LIGHT GREY SHINING APPEARANCE AND PRODUCED IN A SO-CALLED SHREDDER BY THE COMMINUTION OF USED ALUMINIUM CABLES AND SUBSTANTIAL REMOVAL OF THE INSULATION COME WITHIN SUBHEADING 76.01 A OF THE COMMON CUSTOMS TARIFF IN SO FAR AS THEY CONSIST ESSENTIALLY OF ALUMINIUM AND CONTAIN ONLY MINUTE QUANTITIES OF OTHER METALS .

Parties

IN CASE 104/77

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

FIRMA WOLFGANG OEHLSCHLAGER , HILDEN

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) EMMERICH ,

Subject of the case

ON THE INTERPRETATION OF THE PROVISIONS OF THE COMMON CUSTOMS TARIFF RELATING TO THE TARIFF CLASSIFICATION OF UNWROUGHT ALUMINIUM AND ALUMINIUM WASTE AND SCRAP ,

Grounds

1BY AN ORDER OF 27 JULY 1977 WHICH WAS RECEIVED AT THE COURT ON 22 AUGUST 1977 , THE BUNDESFINANZHOF UNDER ARTICLE 177 OF THE EEC TREATY ASKED QUESTIONS CONCERNING THE INTERPRETATION OF CERTAIN PROVISIONS OF THE COMMON CUSTOMS TARIFF RELATING TO UNWROUGHT ALUMINIUM AND ALUMINIUM WASTE AND SCRAP .

2THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE OVER THE TARIFF CLASSIFICATION OF GOODS DESCRIBED BY THE IMPORTER AS ' ' ALUMINIUM MILLING WASTE AND FILINGS ' ' .

ACCORDING TO THE DETAILS SUPPLIED BY THE NATIONAL COURT IN ITS ORDER MAKING THE REFERENCE , THE GOODS AT ISSUE CONSIST OF LIGHT GREY , SHINING METAL GRAINS , WHICH ARE OBTAINED FROM USED ALUMINIUM CABLES AND FROM REMNANTS OF CABLES CUT INTO SHORT PIECES IN A SHREDDER AND THEN COMMINUTED INTO IRREGULARLY-SHAPED GRAINS BY ROTATING CUTTERS , THE CONSTITUENT PARTS OF THE RESULTING MIXTURE THEN BEING SEPARATED AND ISOLATED FROM ONE ANOTHER .

AFTER OBTAINING AN OPINION FROM THE ZOLLTECHNISCHE PRUFUNGS- UND LEHRANSTALT ( CUSTOMS TECHNICAL TESTING AND RESEARCH INSTITUTE ) COLOGNE THE GERMAN CUSTOMS AUTHORITIES CLASSIFIED THE SAID GOODS UNDER SUBHEADING 76.01 A OF THE COMMON CUSTOMS TARIFF ( ' ' UNWROUGHT ALUMINIUM ' ' ) BEARING AUTONOMOUS DUTY OF 10% .

THE IMPORTER CHALLENGED THAT CLASSIFICATION , ARGUING THAT THE IMPORTED GOODS CAME UNDER TARIFF SUBHEADING 76.01 B II ( ' ' ALUMINIUM SCRAP ' ) AND ARE THEREFORE FREE OF DUTY .

3IN ITS ORAL OBSERVATIONS , THE PLAINTIFF IN THE MAIN ACTION STATED THAT THE DESCRIPTION OF THE GOODS GIVEN BY THE NATIONAL COURT IN ITS ORDER MAKING THE REFERENCE IS INCORRECT .

4UNDER ARTICLE 177 OF THE TREATY , WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE , THE LATTER IS EMPOWERED ONLY TO GIVE RULINGS ON THE INTERPRETATION OR THE VALIDITY OF A COMMUNITY PROVISION ON THE BASIS OF THE FACTS WHICH THE NATIONAL COURT PUTS BEFORE IT .

TO VERIFY WHETHER SUCH FACTS ARE CORRECT IS NOT WITHIN THE COMPETENCE OF THE COURT OF JUSTICE , AND IS A MATTER FOR THE NATIONAL COURT .

5IN ITS FIRST QUESTION , THE BUNDESFINANZHOF ASKS THE COURT WHETHER TARIFF SUBHEADING 76.01 B OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS INCLUDING GOODS HAVING THE CHARACTERISTICS DEFINED ABOVE .

IN THE EVENT OF THAT QUESTION BEING ANSWERED IN THE NEGATIVE , IT IS THEN ASKED WHETHER THE AFORESAID GOODS COME UNDER TARIFF SUBHEADING 76.01 A .

AS THE TOW QUESTIONS RELATE TO THE TARIFF CLASSIFICATION OF THE SAME GOODS , THEY MUST BE DEALT WITH TOGETHER .

6SUBHEADING 76.01 B , CHAPTER 76 , SECTION XV OF THE COMMON CUSTOMS TARIFF REFERS TO ALUMINIUM ' ' WASTE AND SCRAP ' ' .

THE EXPRESSION ' ' WASTE AND SCRAP ' ' IS DEFINED BY NOTE 6 TO SECTION XV OF THE CCT AS MEANING , FOR THE PURPOSES OF THAT SECTION , ' ' WASTE AND SCRAP METAL FIT ONLY FOR THE RECOVERY OF METAL OR FOR USE IN THE MANUFACTURE OF CHEMICALS ' ' .

IN ADDITION , THE EXPLANATORY NOTE TO THE BRUSSELS NOMENCLATURE ON HEADING 76.01 REFERS , FOR THE DEFINITION OF ' ' ALUMINIUM WASTE AND SCRAP ' ' , TO THE EXPLANATORY NOTE ON HEADING 73.03 CONCERNING WASTE AND SCRAP OF FERROUS METALS .

THE LATTER NOTE DEFINES THE CONCEPT OF ' ' WASTE AND SCRAP ' ' BY REFERENCE TO ' ' WASTE AND SCRAP RESULTING FROM THE CUTTING , SHAPING OR OTHER MECHANICAL WORKING OF IRON AND STEEL ' ' OR TO ' ' UNUSABLE , WORN-OUT AND BROKEN ARTICLES OF IRON OR STEEL ' ' .

THE SAME NOTE ALSO STATES THAT SUCH ARTICLES ARE ' ' FREQUENTLY CRUSHED OR COMPRESSED TOGETHER ' ' .

IT FOLLOWS FROM THESE PROVISIONS THAT THE CONCEPT OF ' ' WASTE AND SCRAP ' ' IN SUBHEADING 76.01 B OF THE CCT COVERS PRODUCTS WHICH , AS FAR AS THEIR OBJECTIVE CHARACTERISTICS ARE CONCERNED , ARE LEFT OVER FROM THE CUTTING , SHAPING OR OTHER MECHANICAL WORKING OF ALUMINIUM OBJECTS OR ARE DEFECTIVE , USED OR IRREPARABLE ALUMINIUM ARTICLES AND WHICH , AS REGARDS THE USE TO WHICH THEY CAN BE PUT , HAVE NO REMAINING VALUE OTHER THAN BEING FIT FOR THE RECOVERY OF METAL .

THEREFORE , IN VIEW BOTH OF THEIR FORM AND OF THE PROCESSING FROM WHICH THEY RESULTED , IT DOES NOT APPEAR THAT THE GOODS DESCRIBED BY THE NATIONAL COURT CAN BE REGARDED AS WASTE OR SCRAP FOR THE PURPOSES OF SUBHEADING 76.01 B OF THE CCT .

7ACCORDINGLY , CLASSIFICATION UNDER THAT SUBHEADING BEING EXCLUDED , IT FALLS TO BE CONSIDERED , UNDER THE SECOND QUESTION ASKED BY THE NATIONAL COURT , WHETHER THE SAID GOODS CAN BE CLASSIFIED UNDER TARIFF SUBHEADING 76.01 A , WHICH RELATES TO ' ' UNWROUGHT ALUMINIUM ' ' .

8IT EMERGES FROM THE STRUCTURE OF CHAPTER 76 , HEADINGS 76.02 TO 76.05 OF WHICH REFER TO SEMI-FINISHED PRODUCTS AND HEADINGS 76.06 TO 76.16 OF WHICH APPLY TO FINISHED PRODUCTS AND OTHER ARTICLES OF ALUMINIUM , THAT THE EXPRESSION ' ' UNWROUGHT ALUMINIUM ' ' IN SUBHEADING 76.01 A DESIGNATES THE METAL AS SUCH , AS YET UNPROCESSED .

ALTHOUGH THE COMMON CUSTOMS TARIFF DOES NOT SPECIFY THE PERCENTAGE OF METAL WHICH PRODUCTS COMING UNDER THAT SUBHEADING MUST CONTAIN , GENERAL RULE NO 2 ( B ) FOR THE INTERPRETATION OF THE NOMENCLATURE COMMON CUSTOMS TARIFF STATES THAT ' ' ANY REFERENCE IN A HEADING TO A MATERIAL OR SUBSTANCE SHALL BE TAKEN TO INCLUDE A REFERENCE TO MIXTURES OR COMBINATIONS OF THAT MATERIAL OR SUBSTANCE WITH OTHER MATERIALS OR SUBSTANCES ' ' .

FURTHERMORE , THE EXPLANATORY NOTE TO THE BRUSSELS NOMENCLATURE ON HEADING 76.01 STATES THAT THE EXPRESSION ' ' UNWROUGHT ALUMINIUM ' ' ALSO INCLUDES ' ' ALUMINIUM PELLETS , MAINLY USED IN METALLURGY ' ' .

ACCORDING TO THE INFORMATION SUPPLIED BY THE NATIONAL COURT , THE GOODS DESCRIBED ARE FORMED OF GRAINS OF METAL CONSISTING ESSENTIALLY OF ALUMINIUM AND CONTAINING ONLY MINUTE PROPORTIONS OF OTHER METALS .

9FOR ALL THESE REASONS , THE APPROPRIATE ANSWER TO THE QUESTIONS RAISED IS THAT GOODS CONSISTING OF CHOPPED ALUMINIUM WIRE OF A LIGHT GREY SHINING APPEARANCE AND PRODUCED IN A SO-CALLED SHREDDER BY THE COMMINUTION OF USED ALUMINIUM CABLES AND SUBSTANTIAL REMOVAL OF THE INSULATION COME WITHIN SUBHEADING 76.01 A OF THE COMMON CUSTOMS TARIFF IN SO FAR AS THEY CONSIST ESSENTIALLY OF ALUMINIUM AND CONTAIN ONLY MINUTE QUANTITIES OF OTHER METALS .

Decision on costs

COSTS

10THE 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 ( FIRST CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY AN ORDER OF 27 JULY 1977 , HEREBY RULES :

GOODS CONSISTING OF CHOPPED ALUMINIUM WIRE OF A LIGHT GREY SHINING APPEARANCE AND PRODUCED IN A SO-CALLED SHREDDER BY THE COMMINUTION OF USED ALUMINIUM CABLES AND SUBSTANTIAL REMOVAL OF THE INSULATION COME WITHIN SUBHEADING 76.01 A OF THE COMMON CUSTOMS TARIFF IN SO FAR AS THEY CONSIST ESSENTIALLY OF ALUMINIUM AND CONTAIN ONLY MINUTE QUANTITIES OF OTHER METALS .