3.

The question submitted by the national court amounts to a clear choice concerning the interpretation of tariff heading 73.02: does it cover only products manufactured from new metals or ores, characterized by their constant and exact content of certain alloy elements or does it also include products obtained by melting (provided, naturally, that the substantive conditions laid down in Note 1 (c) to Chapter 73 obtain)? However, before tackling the problem in those terms I think it necessary to consider another alternative which, in view of the development of the facts in this case, seems logically to take precedence over that put forward by the national court: it is, precisely, to ascertain whether there are sufficient grounds for classifying the relevant products under heading 73.02 rather than heading 73.15, where they were previously classified. In this respect it must first of all be emphasized that the classification made on 20 October 1970 by the Committee on Common Customs Tariff Nomenclature was based on the finding that no heading in the Tariff made specific provision for scrap of alloy steel, containing tungsten, and melted into slabs (‘lumps’). Perusal of the letter from the German delegation of 28 April 1970 initiating the proceedings before the Committee clarifies the reason for this finding: on the one hand, melted lumps differ from ingots (subheading 73.15 B I (b) 1 being entitled ‘ingots’); on the other hand, the tungsten content of such melted lumps is always less than 40 %. According to the letter of the German delegation it is precisely this last fact which prevents the product in question from being classified under heading 73.02: indeed, one of the subsidiary characteristics required for inclusion under this heading, in accordance with Note 1 (c) to Chapter 73 of the Common Customs Tariff, is a tungsten content of more than 40 %. In those circumstances the Committee felt obliged to suggest ‘assimilation’ to the category of ‘waste or scrap in ingot form’, in application of the General Rules for the interpretation of the nomenclature of the Common Customs Tariff, Rule No 5 of which in fact establishes that the foregoing rules relating to headings are also valid in determining the relevant subheading, while Rule No 4 requires that goods not falling within any heading of the Tariff be classified under the heading appropriate ‘to the goods to which they are most akin’. Moreover, a glance at the title of heading 73.15 and at Note 1 (d) to Chapter 73 is sufficient to establish that the classification effected on 20 October 1970 was no more than an ‘assimilation’ to a related heading: in fact, heading 73.15 relates to ferro-alloys (containing, inter alia, as is stated in the Note, 0.30 % or more of tungsten), subheading B I (b) 1 to ingots of alloy steel and only in the subsequent subheading (aa) is reference made to waste or scrap in ingot form, which is a product similar in some respects but differing in others from lumps of melted scrap. On the other hand, the content of tariff heading 73.02, ferro-alloys, is so defined in Note 1 (c) to Chapter 73 that lumps of melted scrap seem to be directly covered thereby if they contain one of the stated alloy elements in the requisite proportions. Indeed, according to that note ‘Alloys of iron … which are not usefully malleable and are commonly used as raw material in the manufacture of ferrous metals and which contain, by weight, separately or together: more than 8 % of silicon, or more than 30 % of manganese, or more than 30 % of chromium, or more than 40 % of tungsten, or a total of more than 10 % of other alloy elements’ shall be considered as ferro-alloys. It is clear that if the lumps of ferrous scrap do not contain the given minimum percentages of those elements heading 73.02 does not apply; but as soon as those elements are found to be present that heading is applicable, since the definition of ferro-alloys seems closer to the other characteristics of lumps of melted scrap than to the concept of ‘alloys of steel’. In the present case the tungsten content has never exceeded 40 %, but when the cobalt content exceeded 10 % the required alternative condition concerning the presence of more than 10 % of ‘other alloy elements’ was met. Heading 73.02 does not lay down other material characteristics: it is sufficient to consider the wording of subheading G: after a list of specific alloys such as ferro-manganese, ferro-aluminium, ferrosilicon etc., there is a general reference to ‘other’, that is, all ferro-alloys which cannot be brought under specific subheadings.