Judgment of the Court (First Chamber) of 21 June 1988. - Sportex GmbH & Co. v Oberfinanzdirektion Hamburg. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Tariff classification - Pre-impregnated carbon fibres. - Case 253/87.



European Court reports 1988 Page 03351



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 . Common Customs Tariff - Tariff headings - Classification of the goods - Material giving composite goods their "essential character" within the meaning of Rule 3 ( b ) of the Rules for the Interpretation of the Nomenclature - Method of identification

2 . Common Customs Tariff - Tariff headings - Semi-finished products in sheet form, composed of epoxy resin, carbon fibre and glass-fibre mesh, intended for the manufacture of tubing - Classification under heading 39.01

Summary

1 . When, in order to determine the tariff classification of mixtures, composite goods consisting of different components, and goods put up in sets, it is necessary to apply Rule 3 ( b ) of the Rules for the Interpretation of the Nomenclature, pursuant to which the classification must be carried out by reference to the material or component which gives the goods their essential character, this material may be identified by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from it .

2 . "Pre-impregnated carbon fibres", semi-finished products in sheet form, composed of epoxy resin, carbon fibre and glass-fibre mesh, intended for the manufacture of tubing, are to be regarded as artificial resins and plastic materials falling under heading 39.01 of the Common Customs Tariff .

Parties

In Case 253/87

REFERENCE to the Court by the Bundesfinanzhof ( Federal Finance Court ) for a preliminary ruling under Article 177 of the EEC Treaty in the action pending before that Court between

Sportex GmbH & Co ., Neu-Ulm ( Federal Republic of Germany )

and

Oberfinanzdirektion Hamburg ( Principal Revenue Office ), Hamburg,

on the interpretation of the Common Customs Tariff,

THE COURT ( First Chamber )

composed of : G . Bosco, President, R . Joliet and F . Schockweiler, Judges,

Advocate General : C . O . Lenz

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted, on behalf of the Commission of the European Communities, by Mr . Joern Sack, a member of its Legal Department,

having regard to the Report for the Hearing and further to the hearing on 4 May 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 4 May 1988,

gives the following

Judgment

Grounds

1 By an order dated 7 July 1987, which was received at the Court on 20 August 1987, the Bundesfinanzhof referred to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty two questions on the interpretation of the Common Customs Tariff ( CTT ).

2 Those questions were raised in the context of proceedings pending before the Bundesfinanzhof between Sportex GmbH & Co ., which claims that goods known as "pre-impregnated carbon-fibres" must be classified under heading 68.16 of the CCT, and the Oberfinanzdirektion of Hamburg, which considers that such goods fall under heading 39.01 of the CCT .

3 Reference is made to the Report for the Hearing for a fuller account of the background to the dispute and the observations of the parties, which are mentioned or discusssed hereinafter only in so far as is necessary for the reasoning of the Court .

4 In its first question, the Bundesfinanzhof essentially asks whether the CCT is to be interpreted as meaning that the goods at issue fall under heading 39.01 thereof .

5 In order to reply to that question, it is important to bear in mind that the goods at issue were defined, in the context of the main proceedings, as "semi-finished products in sheet form, composed of epoxy resin ( 36% by weight ), carbon fibre ( 42% by weight ) and glass-fibre mesh ( 22% by weight ), intended for the manufacture of tubing", and that it appears from the documents before the Court that the carbon and glass fibres are completely embedded in the resin .

6 In view of that definition, there are only two tariff headings which may be considered for the purpose of classifying the product : on the one hand, heading 39.01 ( condensation, poly-condensation and polyaddition products, whether or not modified or polymerised, and whether or not linear ... ), which includes under subheading C VII, even after the itemization introduced by Council Regulation No 750/87 of 16 March 1987 ( Official Journal L 76, p . 1 ), all "other forms" of plastic materials; on the other, heading 68.16 ( articles of stone or of other mineral substances, including articles of peat, not elsewhere specified or included ), which under subheading B included all articles of this kind other than unfired bricks made of chromite .

7 Given that the goods at issue are composed of different materials and that the two subheadings mentioned above are both general in scope, the sole provision to which recourse may be had for the purpose of classifying the goods is Rule 3 ( b ) of the Rules for the Interpretation of the Nomenclature . Under that provision, "mixtures, composite goods consisting of different components, and goods put up in sets, which cannot be classified by reference to Rule 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 ".

8 In accordance with that general rule of interpretation, it is necessary, in carrying out the tariff classification of a product, to identify, from among the materials of which it is composed, the one which gives it its essential character . This may be done by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from it .

9 In the present case, it is common ground that tubing made of carbon and glass fibre but without epoxy resin would lose the property which characterizes the product in question, namely its flexibility .

10 In those circumstances and since, in accordance with the Explanatory Notes to the Brussels Nomenclature ( Chapter 39, No 5 ( a ) ), the presence in plastic sheeting of a reinforcing foundation or mesh composed of metal or glass fibres does not preclude that product' s classification under Chapter 39, the reply to be given to the first question asked by the Bundesfinanzhof should be that the Common Customs Tariff must be interpreted as meaning that semi-finished products in sheet form, composed of epoxy resin, carbon fibre and glass-fibre mesh, and intended for the manufacture of tubing, are to be regarded as artificial resins and plastic materials and, as such, fall under heading 39.01 of the Common Customs Tariff .

11 In view of the answer given to the first question, there is no need to examine the second question which was asked only in the event that the goods in question were not to be classified under Chapter 39 of the CCT .

Decision on costs

Costs

12 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings 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 order of 7 July 1987, hereby rules :

The Common Customs Tariff must be interpreted as meaning that semi-finished products in sheet form, composed of epoxy resin, carbon fibre and glass fibre mesh, and intended for the manufacture of tubing, are to be regarded as artificial resins and plastic materials and, as such, fall under heading 39.01 of the Common Customs Tariff .