2.

The products which are to be classified are composed, as I have said, of an alloy of base metals; it is therefore appropriate to recall Note 3 (b) contained in Section XV of the Common Customs Tariff which, referring to the various ferro-alloys and master alloys as defined in Chapters 73 and 74, provides that: ‘Any other alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals’. In both consignments of goods in question in this case lead clearly predominates by weight over the other constituents. There is therefore no doubt that it is necessary to classify them for customs purposes under Chapter 78 of the Common Customs Tariff which relates precisely to lead. It is however necessary to see what headings contained in that chapter might come into consideration in this case. The parties to the proceedings before the court making the reference have disputed the classification of the two consignments of goods in question merely by reference to tariff heading 78.01. However, as we have seen, in its second question the Finanzgericht also took into consideration tariff heading 78.02, the subject-matter of which is: ‘Wrought bars, rods, angles, shapes and sections, of lead; lead wire’. In fact the expression ‘lead bars’ would seem to be appropriate with regard to the products with which we are concerned in this case. However, Note 1 (b) to Chapter 78 of the Common Customs Tariff must not be overlooked; the concept of wrought bars, rods, angles, shapes and sections coming under tariff heading No 78.02 is defined thus: ‘Rolled, extruded, drawn or forged products of solid section, of which the maximum cross-sectional dimension exceeds 6 mm and which, if they are flat, have a thickness exceeding one-tenth of the width. Also cast or sintered products, of the same forms and dimensions, which have been subsequently machined (otherwise than by simple trimming or de-scaling)’. The Commission has pointed out that the bars obtained by melting old type have not undergone any machining; for this reason they cannot be classified under tariff heading 78.02. On the other hand it is necessary to observe that the court making the reference referred to tariff heading 78.02 only with regard to the broken bars for type-casting machines. It seems to me to be obvious that the fragments of bars can in no way come within that tariff heading if, as the Commission considers, and as it seems justified to admit, the same bars whole and free from impurities would remain outside that tariff heading because they had not undergone any refining process after melting. The question of the classification for customs purposes of the goods in question must therefore be considered within the context of tariff heading 78.01. The alternative remains: are they unwrought lead or lead scrap? It seems to me however that, in accordance with the wording of the questions submitted by the Finanzgericht, it is helpful to make a clearer distinction than have the parties to the present proceedings between the product resulting from the melting into bars of old type (which in the present case was what was imported from Denmark) and the product consisting of fragments of new bars for type-casting machines (like the consignment of goods imported from the United States). In fact the two products, although consisting of alloys of the same metals, show important differences both with regard to their actual chemical composition, since only the former contains impurities resulting from the prolonged use in printing of the type from which it is made, and as regards their possible uses: it is true that in both cases an alloy suitable for printing is involved, but in the first case such use is impossible without a prior refining process, whilst in the second case simple re-melting is sufficient to reconstitute whole new bars for type-casting machines. It is therefore necessary to examine the question of the classification for customs purposes which was indicated above with regard to each of these two products.