Opinion of Mr Advocate General Fennelly delivered on 14 May 1998. - ROSE Elektrotechnic GmbH & Co. KG v Oberfinanzdirektion Köln. - Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. - Combined nomenclature - Tariff headings - Junction box without cables or contacts. - Case C-280/97.



European Court reports 1999 Page I-00689



Opinion of the Advocate-General

1 This case concerns the customs classification of an article described as a junction box and, thus, raises the issue of the ambit of the notion of a `junction box' as used in the Community's Common Customs Tariff. In particular, the national court wishes to know whether the essential character of such a box necessarily implies the presence of connecting devices for joining electrical circuits or whether an earthing connection suffices.

I - The legal context

2 According to the national court the relevant provisions of the Common Customs Tariff are those contained in Commission Regulation (EC) No 1734/96 of 9 September 1996 amending Annex I to Council Regulation (EEC) No 2658/87 (1) on the tariff and statistical nomenclature and on the Common Customs Tariff (Combined Nomenclature, hereinafter `CN'). (2) The headings referred to by the national court comprise, on the one hand, No 7616 and, on the other, Nos 8535, 8536, 8537 and 8538. They are worded as follows:

`7616 Other articles of aluminium: ... - Other

7616 91 00 - - Cloth, grill, netting and fencing, of aluminium wire

7616 99 - - Other: 7616 99 10 - - - Cast 7616 99 90 - - - Other ...

8535 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1 000 V:

...

8536 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1 000 V:

... 8536 90 - Other apparatus: ... 8536 90 85 - - Other

8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading No 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instruments or apparatus of Chapter 90, and numerical control apparatus, other than switching apparatus of heading No 8517:

...

8538 Parts suitable for use solely or principally with the apparatus of heading Nos 8535, 8536 or 8537:

8538 10 000 - Boards, panels, consoles, desks, cabinets and other bases for the goods of heading No 8537, not equipped with their apparatus

8538 90 - Other ... .'

3 Reference is also made to the General Rules for the interpretation of the CN (hereinafter `the General Rules'). In the 1997 CN, the relevant rules were worded as follows:

`Classification of goods in the combined nomenclature shall be governed by the following principles:

"1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It 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), presented unassembled or disassembled.

(b) 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. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When by application of rule 2 (b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;

(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character in so far as this criterion is applicable;

(c) when goods cannot be classified by reference to 3 (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration."

... .'

4 Note (III)(C) of the Explanatory Notes to the Harmonised Commodity Description and Coding System of the Customs Cooperation Council (hereinafter `the HSENs') (3) deals specifically with the notion of `junction boxes', to which heading No 8536 refers. (4) It provides as follows:

`Junction boxes. These consist of boxes fitted internally with terminals or other devices for connecting together electrical wires. Junction boxes not fitted with means of electrical connection, but used solely as a protective cover or to hold an insulating compound over a joint made independently, are not covered here, but are classified according to their constituent material.'

5 The HSENs to the General Rules are of particular significance in this case. In so far as General Rule 2(a) is concerned, Notes (I) and (II) are relevant. They are worded as follows:

`(I) The first part of Rule 2(a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article.

(II) The provisions of this Rule also apply to blanks unless these are specified in a particular heading. The term "blanks" means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part ... .'

II - The factual and procedural context

A - Facts and questions referred

6 It appears from the case-file that the plaintiff in the main proceedings (ROSE Elektrotechnik GmbH & Co. KG, hereinafter `ROSE') initially applied on 3 March 1995 to be issued with a binding tariff information under Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (5) in respect of the classification of an article described as a junction box. (6) The article at issue is a rectangular container (c. 21.7 cm long, c. 8 cm high and c. 11.7 cm wide) with a lid of coated die-cast aluminium (aluminium/silicon alloy with aluminium content predominant by weight). In the lid, in which a plastic insulation has been inset, there are four steel connecting bolts. The article is intended to receive electrical terminals (series terminals) of various types and dimensions and, in addition to holes for screw connections, it also has holes for fastening. Furthermore, it has four threaded holes designed for earthing bolts of copper-plated steel and four such earthing bolts are packed in a plastic bag which is supplied with the product. No other connecting devices are, however, supplied.

7 ROSE sought to have the article classified under subheading 8536 90 85 of the CN. In support of its application it pointed out that the article was supplied to its customers for use primarily in conditions where electrical connections had to be protected against the effects of electric shock and/or damp. ROSE supplies the articles with such additional holes and terminal strips of various designs as are required by its customers. It also relied on a subsequent binding tariff information issued by the Netherlands customs authorities at Arnhem on 28 July 1995, under which, at the instigation of a company related to the plaintiff, a comparable article was classified under subheading 8538 10 00. (7)

8 The application was ultimately rejected by the Oberfinanzdirektion Köln (Principal Revenue Office, Cologne; hereinafter `the defendant'), which, on 11 July 1996, classified the article under subheading 7616 99 10 of the CN. The defendant justified this classification principally on the ground that the article contained no connecting devices, but served merely as a container for the protection or insulation against environmental influences of a joint made independently.

9 ROSE appealed on 5 August 1996 to the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, hereinafter `the national court'), which has concisely described the arguments advanced before it and the doubts which led it to refer the following questions to the Court: (8)

`1. Is the Common Customs Tariff in the version in Annex I to Commission Regulation (EC) No 1734/96 of 9 September 1996 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (Combined Nomenclature 1997) to be interpreted as meaning that an article described as a junction box and consisting of a rectangular container with lid of coated die-cast aluminium (aluminium/silicon alloy with aluminium content predominant by weight) with four steel connecting bolts and four earthing bolts of copper-plated steel (packed loose in the article and yet to be inserted into threaded holes provided for that purpose) is to be classified under heading No 8538?

2. If the answer to Question 1 is negative: Is the Common Customs Tariff (Combined Nomenclature 1997) to be interpreted as meaning that such an article is to be classified, applying the first sentence of General Rule 2(a) for the interpretation of the Combined Nomenclature, under heading No 8536?'

B - The procedure before the national court

10 ROSE contended that, since junction boxes were specifically mentioned in heading No 8536 of the CN classification, classification under heading No 7616 was precluded. (9) In its view, heading No 8536 does not require a circuit to be closed or capable of being closed in the technical sense by the relevant article, but, instead, the decisive criterion is whether a device for an electrical connection is present. The article at issue contains such a device in that it provides for current to be carried to earth in the event of a fault. In accordance with General Rule 2(a), the article may be regarded as having the essential character of a junction box since all that is required for the production of a complete junction box is the addition of `series terminals' or `terminal strips' as well as the boring of a number of corresponding holes for whatever industrial use is envisaged.

11 The defendant submitted that it follows from Note (III)(C) of the HSENs to heading No 8536 that, in order for a product to be classified as a junction box within that heading, it must serve for connecting circuits. (10) The article must therefore be provided with a means of making such an electrical connection; series terminals or terminal strips must thus be fitted. The potential to connect a circuit with the earth does not suffice, since only a connection between a power source and a consumer constitutes a circuit for the purposes of heading No 8536.

12 The national court regards the interpretation of heading Nos 8536 and 8538, in respect of junction boxes, put forward by the defendant as `uncertain'. It states that there is agreement that the article at issue in this case is incomplete. However, the national court does not believe that it may be classified under heading No 8538 as a part suitable for use with an apparatus falling within heading No 8536, since, apart from the missing terminals, the article has the external appearance of a junction box. Next, it takes the view that the article may, pursuant to General Rule 2(a), be regarded as having the essential character of a junction box within heading No 8536. Nevertheless, it regards the wording of that heading to be uncertain in so far as the alleged necessity of the presence of connecting devices for joining electrical circuits is concerned. Having regard to the HSENs concerning both General Rule 2(a) and heading No 8536, the national court seeks clarification essentially as to whether, for an article to be regarded as constituting an incomplete junction box under that heading, earthing bolts which are supplied therewith must already be fitted and, in addition, whether it must contain connecting devices capable of joining an electrical circuit.

III - Observations submitted to the Court

13 Written observations only were submitted by ROSE, the defendant and the Commission. In the absence of any request on their behalf, no oral hearing was held.

14 ROSE takes issue with the notion of `electrical circuit' as discussed by the national court. In its view, it is fallacious to assume that even a junction box fitted with terminals will automatically connect or cut a current unless and until it is connected to an electrical apparatus. Moreover, although it is true that an earthing connection does not permanently conduct electric current, the same is also true of various other types of conductors, such as photoelectric cells, alarm or lighting apparatus. Accordingly, ROSE concludes that an earthing connection, precisely because it permits a current to run to earth when required, constitutes an electrical connection.

15 The defendant submits, for the reasons developed by the national court in its reference, that the article in question cannot be regarded within heading No 8538 as a part suitable for use solely or principally with apparatus of heading Nos 8535, 8536 or 8537. As to whether the article may be regarded as having the essential character of a complete junction box, it contends, by reference to Note (III)(C) of the HSENs to heading No 8536, that the essential characteristic of such a box is the presence of terminals capable of connecting electrical currents. It observes that the articles imported by ROSE may only serve that purpose after the execution of further assembly work by the customers to whom they are supplied. For the same reasons, the defendant submits that the article at issue may not be regarded as a `blank' of a junction box within the meaning of Note (II) of the HSENs to General Rule 2(a).

16 The Commission submits, initially in respect of the first question referred, that the article in question cannot manifestly be regarded as constituting a part for apparatus within either heading No 8535 or 8537, since the former heading concerns equipment for a voltage exceeding 1 000 V while the latter only concerns electric-distribution apparatus. Since no one has argued otherwise, I shall not consider these headings further.

17 As regards heading No 8536, the Commission observes that it does not describe the junction boxes at issue. However, referring to Note (III)(C) of the HSENs to heading No 8536, it contends that the essence of a junction box is that it must serve to connect the different parts of an electrical circuit. In its view, since the article at issue is designed merely to provide an earthing protection for such circuits, it may not be regarded either as a junction box or as a part thereof as defined in heading No 8538. Similarly, the Commission observes that it may not, for the purposes of the second question, be regarded as possessing the essential character of a junction box. The Commission concludes that General Rule 3(b) applies in this case and, accordingly, that classification of the article must be by reference to the material or component which gives it its essential character, to wit, subject to confirmation by the national court, aluminium. In conclusion, the Commission submits the appropriate classification to be subheading 7616 99 10. (11)

IV - Opinion

18 The Court has recently on several occasions restated its approach to customs classification. (12) Thus, in Rank Xerox it declared that:

`... [I]n the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties, as defined in the relevant headings of the Common Customs Tariff and the notes to the sections or Chapters. Likewise, for the purpose of interpreting the Common Customs Tariff, both the notes which head the Chapters of the Common Customs Tariff and the explanatory notes to the nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the tariff and as such may be regarded as useful aids to its interpretation.' (13)

It is therefore fitting to apply this approach in the present case.

19 Heading No 7616 falls within Chapter 76 of the CN, which, as one of the chapters of Section XV concerning `Base Metals and Articles of Base Metal', itself covers `Aluminium and articles thereof'. Section Note 1(f) to Section XV of the CN excludes from its ambit articles covered by Section XVI, which, in that note, are described as `machinery, mechanical appliances and electrical goods'. Since Chapter 85 comes within Section XVI, I shall initially examine whether the article at issue may be regarded as falling within one of the relevant headings of that chapter. It is consequently opportune first to consider whether heading No 8538, the subject-matter of the first question referred, may constitute the appropriate classification in the present case.

A - Question 1

20 The first question referred by the national court asks, in essence, whether an article, such as that described in the reference, may be classified under heading No 8538 as a `part' for a `junction box'. In its reference the national court expresses the view that such a classification would not appear to be permissible. I consider the national court's doubts to be well founded.

21 Section Note 2(a) to Section XVI of the CN provides that `parts which are goods included in any of the headings of Chapters 84 or 85 ... are in all cases to be classified in their respective headings', while under Section Note 2(b) of the same section, `other parts, if suitable for use solely or principally with a particular kind of machine, ... are to be classified with the machines of that kind or in heading No ... 8538 as appropriate'. This is confirmed by the wording of heading No 8538 itself, which repeats the criterion that the parts must be suitable for use solely or principally with the apparatus of, inter alia, heading No 8536. Moreover, the relevant HSENs are even more explicit. Note (II), under the heading `General' which deals with content, to Section XVI, concerning parts, provides that parts of apparatus of heading Nos 8535, 8536 and 8537 are to be classified in heading No 8538 (see subnote (IJ) thereto), unless the part in question constitutes `an article covered by a heading of this Section ... ; these are in all cases classified in their own appropriate headings even if specifically designed to work as part of a specific machine'. This latter rule is stated to apply (see subnote (12) to Section Note 5(II)) particularly to `electrical apparatus for switching, protecting, etc., electrical circuits (switches, fuses, junction boxes, etc.) (headings 85.35 and 85.36)'.

22 In the light of these interpretative aids, I am satisfied that the provisional view expressed by the national court, to the effect that the article at issue in the instant case cannot be regarded as a `part' within heading No 8538, since it constitutes, even in its imported condition, an article that may be classified within heading No 8536, is correct. In other words, the article cannot be regarded as part of a `junction box' since it has already the outward appearance of a complete junction box. Whether its outward appearance matches reality forms the core issue raised by the second question referred in this case. Accordingly, I would recommend that the Court answer the first question in the negative.

B - Question 2

23 Two opposing views have been advanced regarding the essential nature of a `junction box' for the purposes of heading No 8536. The precise wording of General Rule 2(a) demonstrates that in order to benefit from classification under a specific heading or subheading, the article in question must have `the essential character of the complete or finished article'. The national court has referred to the HSENs to General Rule 2(a), which, at Note (II), provide that Rule 2(a) also applies to `blanks unless they are specified in a particular heading'. According to the national court, this is not the case with respect to (blank) junction boxes. The term `blank' is defined to mean `an article, not ready for direct use, having the approximate shape or outline of the finished article or part and which can only be used other than in exceptional cases, for completion into the finished article or part'. The national court essentially queries, in addition to its doubts regarding the fundamental nature of a (complete) junction box, whether an article, such as that at issue in the instant case whose earthing bolts are not fitted, may be regarded as an incomplete or blank junction box.

24 It is first necessary to determine the meaning of a `junction box' for the purposes of heading No 8536. If ROSE were correct in contending that, to come within that heading, a supposed junction box would not necessarily have to contain a fitted device capable of connecting an electrical circuit on a permanent (as opposed to a merely temporary) basis, the Court would not have to assess whether, in accordance with General Rule 2(a), an article, which merely permits the occasional earthing of electric current and, moreover, whose earthing bolts come packed loosely, could still be regarded as possessing the essential characteristics of a complete junction box. If regard were merely to be made to the wording of the heading, I would have little hesitation in recommending that such an article, which essentially serves to protect electrical circuits, should be covered. The text of heading No 8536 (quoted in paragraph 2 above) lends itself perfectly to a disjunctive interpretation: the examples listed in parenthesis, which include junction boxes, may each separately come within the description: `electrical apparatus for switching or protecting electrical circuits' (emphasis added) and that `for making connections to or in electrical circuits'. (14) A junction box, such as that in issue, is designed for the protection of electrical circuits. However, a different interpretation emerges from perusal of the relevant HSENs.

25 It has not been contended expressly by ROSE that classification of the article at issue may be effected solely on the basis of the wording of heading No 8536. Although it is clear from General Rule 1 (quoted in paragraph 3 above) that classification must be based primarily on `the terms of the headings and any relevant section or chapter notes ...', it is equally clear that individual tariff headings must be construed in the light of the relevant HSENs. According to the third recital in the preamble to Regulation No 2658/87, the combined nomenclature `must be established on the basis of the harmonised system', which had been laid down by the 1983 Convention. Article 3(1)(a)(ii) of the 1983 Convention, which was approved on behalf of the Community by Council Decision 87/369/EEC, obliges `[Each Contracting Party] to apply the General Rules for the interpretation of the Harmonised System and all the Section, Chapter and Subheading Notes, and shall not modify the scope of the Sections, Chapters, headings or subheadings of the Harmonised System'. (15) Accordingly, it is not possible to construe the ambit of the notion of a `junction box' under heading No 8536 without having regard to the HSENs.

26 The relevant HSENs point quite unequivocally towards the primacy of the electrical circuit-connection function of junction boxes. In the first place, they do not mention junction boxes other than in respect of apparatus for making connections to or in electrical circuits. The general description of such apparatus in Note (III) to heading No 8536 is that it comprises equipment `used to connect together the various parts of an electrical circuit' and that it includes, inter alia, `junction boxes'. Note (III)(C) (quoted in paragraph 4 above) then provides unambiguously that the fundamental objective of such a box is that of electrical connection. The purpose of protecting electrical circuits is not sufficient. Accordingly, it is necessary to determine whether the sort of connection envisaged is only that of completing an electrical circuit or whether it also refers to earthing connections.

27 An ordinary reading of the wording of the HSENs would not admit of classifying an article designed to serve a predominantly protective function by permitting, when required, a current to pass to earth as capable of connecting an electrical circuit. I agree with the defendant that this interpretation finds support in the view of the Zentralverband Elektrotechnik- und Elektronikindustrie e.V. (Professional Association of the (German) Electronic and Electrotechnical Industry; hereinafter `the ZEE'), expressed in a letter of 4 August 1995 in response to a request from the defendant and alluded to by the national court, to the effect that the connection of an electrical circuit to earth - such as through using the copper-plated bolts and threaded holes present in the article at issue - cannot be regarded as closing or connecting an electrical circuit. Since the HSENs refer to a technical concept (to wit, the connection of circuits), the view of an association such as the ZEE may properly be taken into account by the national court, provided it is satisfied of its impartiality. (16) Furthermore, the HSENs, in alluding to the presence of fitted terminals or other devices for connecting together electrical wires, clearly indicate that, in so far as heading No 8536 is concerned, a reputed junction box must be capable of connecting or completing an electrical circuit. Indeed, the exclusion of purely protective boxes, namely those that are effectively dependent on or used in connection with a pre-existing joint, from the notion of a `junction box' undermines ROSE's contention that there can be no `independent joint' for the purposes of the HSENs without the presence of an earth connection. Finally, ROSE's reference to the existence of everyday electrical circuits, such as those used in alarm and lighting systems, which serve the purpose of allowing electric current to pass when required, is not convincing. While such circuits do not operate continuously, in order to be functional they must, when activated (for instance when a light is turned on), be capable of being connected until such time as they are subsequently de-activated.

28 I am therefore satisfied that the notion of a `junction box' referred to in heading No 8536 must, when read in the light of the HSENs, be interpreted as comprising only boxes which can, when fitted, connect electrical circuits. Consequently, it does not extend to articles which, when fitted, are merely capable of earthing an otherwise autonomously connected electrical circuit.

29 However, the mere fact that an article such as that at issue in the present case cannot be regarded as falling within heading No 8536 does not provide a complete answer to the second question referred by the national court. The national court has also referred to General Rule 2(a). In essence, it wishes to know whether an article like that imported by the plaintiff may be regarded, in accordance with that Rule, as possessing the `essential character' of a junction box. In other words, does the fact that the article imported by ROSE merely requires terminals or other connecting devices - which ROSE also supplies to its customers - to be fitted thereto in order to render it capable of functioning as a junction box envisaged by heading No 8536 mean that it may be regarded as an incomplete junction box within that heading by virtue of General Rule 2(a)?

30 The defendant and the Commission contend that, since the essence of a `junction box' within heading No 8536 concerns the connection of electrical circuits, the article at issue may not be regarded as having the essential character of a complete or finished junction box under General Rule 2(a). I do not agree. As the national court rightly points out, Note (II) of the HSENs to that General Rule refers to the notion of a `blank'. Since neither heading No 8536 nor any other heading refers to blank or incomplete junction boxes, the Note is prima facie applicable. The kernel of the definition of a `blank' (quoted in paragraph 5 above) is that it refers to an incomplete article which has `the approximate shape or outline of the finished article' and which can, effectively, only be used `for completion into the relevant finished article ...'. Subject to the right of the national court to make all appropriate findings of fact in this respect, it would appear that an article of the type imported by ROSE - an example of which was furnished with the case-file supplied by the national court - has the approximate shape or outline of a finished junction box. Moreover, it does not seem that the article could, at least without very significant alterations, be used otherwise than as a junction box. In any event there is no evidence, let alone even a suggestion in the defendant's observations before the Court, that the articles imported by the plaintiff are ultimately used other than as junction boxes. Furthermore, the mere fact that the earthing bolts are provided loosely rather than fitted cannot be decisive. All junction boxes must, by their nature, be fitted, whether it be to a new or existing electrical circuit. That a purchaser of an article such as that imported by ROSE has, in addition to fitting a terminal or other connecting device, also to fit the earthing bolts before ultimately using it to connect an electrical circuit cannot, in my view, affect the appropriate customs classification.

31 Subject to a finding by the national court that the article at issue may, other than in exceptional circumstances, be used for purposes apart from completion into a finished junction box, I am satisfied that, pursuant to the notion of a blank developed in the HSENs, it should be regarded as an incomplete junction box which has the essential character of a complete `junction box' for the purposes of heading No 8536. I would, consequently, answer the second question in the affirmative and recommend that the type of article at issue be classified within subheading 8536 90 85.

32 If the Court were to disagree with the above recommendation and, for instance, construe the notion of an incomplete or blank junction box as requiring that the terminal or other connecting devices be fitted, I would not recommend that it accept the alternative classification proposed by the defendant and the Commission. Since the article at issue consists of a number of different materials (including aluminium and silicon, a plastic insulation seal and copper-plated steel earthing bolts), General Rule 2(b) is applicable to the extent that it indicates that the article should be classified in accordance with General Rule 3. I agree with the Commission's submission that General Rule 3(a) is inapplicable because more than one heading refers to a part only of the materials or substances contained in the article; in other words the silicon, copper, steel and plastic materials cannot be classified within Chapter 76 of the CN as if they were of aluminium content. It follows that General Rule 3(b) must next be applied. The Commission contends, subject to verification by the national court, that, since aluminium is the predominant substance, it is that which gives the article its essential character and, accordingly, that the article ought to be classified within subheading 7616 99 10. I cannot subscribe to this proposed classification.

33 The relevant HSENs are Notes (VII) and (VIII) to General Rule 3. They provide first that the application of the essential-character criterion is not absolute and, secondly, that the factor which determines that character will vary from case to case. Thus, although the Commission is correct in viewing the weight of the aluminium component as a potentially relevant factor, its approach fails to take account of `the role of the constituent material in relation to the use of the goods' (see Note (VIII)). Subject to the right of the national court to find otherwise, there seems little doubt that articles of the type at issue in this case are used either as protective junction boxes or, on the fitting of apposite connecting devices, as electrical circuit-connection junction boxes. The use of aluminium as the principal component in the box part of the article would, in the absence of a finding to that effect by the national court, hardly seem fundamental. By analogy with the criterion developed by the Court in Sportex in respect of General Rule 3(b), the article at issue would retain its essential character as an incomplete form of junction box regardless of whether a predominantly aluminium alloy were used in the manufacture of the article. (17)

34 Since General Rule 3(b) is inapplicable Rule 3(c) must be applied. Being an entirely residual rule, it provides (quoted in paragraph 3 above) simply for classification `... under the heading that occurs last in numerical order among those which equally merit consideration' (emphasis added). For the reasons outlined in paragraphs 20 to 22 above, I do not think that heading No 8538, which is concerned, inter alia, with parts of junction boxes, would constitute an appropriate classification. To employ the wording of the Rule, heading No 8538 does not merit equal consideration with heading No 8536. Accordingly, to my mind, an article such as that described in the reference must be classified under subheading 8536 90 85.

V - Conclusion

35 In the light of foregoing, I would recommend that the Court answer the questions referred by the Finanzgericht Düsseldorf as follows:

(1) Annex I to Commission Regulation (EC) No 1734/96 of 9 September 1996 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff should be interpreted as meaning that an article described as a junction box and consisting of a rectangular container with lid of coated die-cast aluminium (aluminium/silicon alloy with aluminium content predominant by weight) with four steel connecting bolts and four earthing bolts of copper-plated steel (packed loose in the article and yet to be inserted into threaded holes provided for that purpose) may not be classified under heading No 8538;

(2) Annex I to Commission Regulation (EC) No 1734/96 should be interpreted as meaning that such an article is to be classified, in accordance with the first sentence of General Rule 2(a) for the interpretation of the Combined Nomenclature, under subheading 8536 90 85.

(1) - Council Regulation (EEC) No 2658/87 of 23 July 1987 (OJ 1987 L 256, p. 1) on the tariff and statistical nomenclature and on the Common Customs Tariff replaced the former Common Customs Tariff nomenclatures with the combined nomenclature established under the International Convention on the Harmonised Commodity Description and Coding System, which was done at Brussels on 14 June 1983 and which is known as `the Harmonised System' (hereinafter, for convenience, the `HS'). The 1983 Convention was approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the International Convention on the Harmonised Commodity Description and Coding System and of the Protocol of Amendment thereto (OJ 1987 L 198, p. 1).

(2) - OJ 1996 L 238, p. 1. Under Article 2, Regulation No 1734/96 entered into force on 1 January 1997 and will hereinafter be referred to as `the CN 1997'.

(3) - This is the description of the Customs Cooperation Council (`CCC') Explanatory Notes used by the Commission in its 1994 Explanatory Notes to the combined nomenclature of the European Communities (OJ 1994 C 342). According to the Court's consistent case-law (see, for instance, Case 183/73 Osram v Oberfinanzdirektion [1974] ECR 477, at paragraph 12), the Commission's Explanatory Notes, which constitute an important factor in interpretation, cannot modify the text of the tariff. It should be noted, however, that none of the Commission Notes to heading No 8536 sheds any additional light on the notion of a `junction box'.

(4) - The HSENs referred to are those contained in the second edition of notes issued in 1996. Although the CCC adopted the working name `World Customs Organisation' in June 1994, its official name remains the `Customs Cooperation Council'. The CCC issues HSENs only in English and French.

(5) - OJ 1993 L 253, p. 1. Under Article 5(1) a `binding tariff information' is described as referring to `tariff information binding on the administrations of all Community Member States when the conditions laid down in Articles 6 and 7 are fulfilled'.

(6) - The description actually used in the original German version of the order for reference is `Schaltverbindungskasten'. Although `Schalt' would normally connote the idea of `switching' in English, since the present case turns on the `connection' (`verbindung') aspect of the box, the English and French translation (respectively, `junction box' and `boîte de jonction') would not appear to be inappropriate.

(7) - This initial binding tariff information was later withdrawn by the Arnhem office, under instructions from Directie Douane, Rotterdam (Principal Customs Office, Rotterdam), which issued a new binding tariff information on 25 July 1997 classifying the article under subheading 7616 99 10. According to the observations submitted to the Court by the defendant tax office, it was apprised of this new information on 16 September 1997.

(8) - It should be noted that, notwithstanding ROSE's allegation that the binding tariff information issued initially by the Arnhem office remained valid, the national court decided that it was unnecessary to refer any question regarding the scope of that information. Since, in any event, a binding tariff information is not binding on the Court, that issue will not be addressed.

(9) - The Court has not been informed of the version of the CN relied upon by ROSE in its application in the main proceedings. It may, perhaps, have been the 1996 version, but this is irrelevant because, as the Commission has observed, there are no material differences between the 1996 and 1997 versions of the CN.

(10) - For the purposes of summarising both the defendant's position and views expressed by the national court, I shall replace all their references to the unofficial German version of the explanatory notes - issued by the German Ministry of Finance - with references to the official 1996 HSENs.

(11) - In paragraph 24 of its observations, the Commission by oversight refers to a non-existent CN subheading 7616 19 10. However, it is clear from its description of the content of that supposed subheading, namely `andere Waren aus Aluminium, gegossen' (`other articles of aluminium, cast'), that a reference to subheading 7616 99 10 is intended.

(12) - See, for instance, Case C-67/95 Rank Xerox [1997] ECR I-5401 and Case C-105/96 Codiesel v Conselho Técnico Aduaneiro [1997] ECR I-3465, at paragraph 17 of both judgments.

(13) - Ibid., at paragraph 17.

(14) - In German, which is the language of procedure in the present case, the text of heading No 8536 (`Elektrische Geräte zum Schließen, Unterbrechen, oder Verbinden von elektrischen Stromkreisen') also unambiguously supports such a disjunctive construction.

(15) - See, in this respect, paragraph 20 of the Court's judgment in Case C-267/94 France v Commission [1995] ECR I-4845 and paragraph 10 of my Opinion in Case C-80/96 Quelle Schickedanz v Oberfinanzdirektion [1998] ECR I-0000.

(16) - There is nothing in the ordinary dictionary definitions of a junction box that would cast doubt on the veracity of the ZEE's view. According to The Concise Oxford English Dictionary, (Eighth ed., 1990), a junction box is `a box containing a junction of electric cables etc.', while, according to the 1980 version of the Merriam-Webster Third New International Dictionary of the English Language Unabridged, it refers to `a box (as of metal) for enclosing the junction of electric wires and cables'.

(17) - See paragraph 8 of the judgment in Case 253/87 Sportex v Oberfinanzdirektion Hamburg [1988] ECR 3351.