1.

The German Bundesfinanzhof, by an order of 13 June 1978, referred to the Court of Justice three preliminary questions which are concerned in essence to clarify the meaning and scope of the second sentence of General Rule 2 (a) of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff. General Rule 2 (a) is worded as follows: ‘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. It shall also he 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’. In the context of a dispute between an importer of ball-point pens and the German customs administration the question was raised whether a binding classification opinion issued on 15 June 1977 at the request of the importer concerned by the Oberfinanzdirektion [Regional Finance Office] (in pursuance of Article 23 (1) of the German customs law) was in conformity with that rule. The binding opinion related to the simultaneous importation of various consignments of all the constituent parts of ball-point pens: in particular, barrels of base metal containing the mechanism of the ball-point pens, magazines to be mounted in the barrels, and caps, also of base metal. Further the importer used to have included in such consignments of parts extra refill-magazines to complete his stocks. According to the opinion of the Oberfinanzdirektion the caps and barrels, and the number of magazines corresponding thereto, should be classified on the basis of the Common Customs Tariff as disassembled ball-point pens (heading 98.03 A) whilst the surplus magazines would come under heading 98.03 C II as parts of ball-point pens. It should be stated in this connexion that tariff heading 98.03 entitled ‘Fountain-pens, stylograph pens and pencils (including ball-point pens and pencils) and other pens, pen-holders, pencil-holders and similar holders, propelling pencils and sliding pencils; parts and fittings thereof …’ includes at subheading A ‘Fountainpens and stylograph pens and pencils (including ball-point, felt-tipped and fibre-tipped pens and pencils)’ and at subheading C ‘Parts and fittings’, and that the goods coming under subheading A are liable to a higher duty than that provided for subheading C. The Oberfinanzdirektion, in effecting the said classification of the caps and barrels and the corresponding number of magazines, referred to the said Rule 2 (a) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff and to the Explanatory Notes to the Nomenclature of the Customs Co-operation Council. The importer however denies that that rule applies in cases such as the present where there is a specific tariff subheading for parts (subheading 98.03 C). In the proceedings before the Bundesfinanzhof the importer also disputed another aspect of the lawfulness of the binding interpretation of the Oberfinanzdirektion, on the basis of the German version of the said General Rule 2 (a). The German version, unlike those in all the other official languages of the Community, does not refer to articles presented as ‘unassembled or disassembled’, but merely as ‘zerlegt’ which, if taken in isolation, might be understood as referring to articles which have already been assembled and have subsequently been disassembled. The undertaking concerned has therefore maintained that all the parts imported by it which are assembled to form ball-point pens only after importation, must be classified on the basis of the said General Rule 2 (a) as parts and accordingly included under the said subheading C.