C-183/73

on the interpretation of tariff headings Nos 70.11, 85.20 and 70.21 of the Common Customs Tariff regarding the classification of certain types of reflector intended for the manufacture of lamps

THE COURT

composed of: R. Lecourt, President, A. M. Donner and M. Sørensen (Rapporteur), Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart, Judges,

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

In its official notice of 11 August 1970 3. The Bundesfinanzhof suspended the Oberfinanzdirektion at Frankfurt proceedings and applied to the European (the Central Tax Office) classified these Court of Justice in accordance with articles under tariff heading No 70.21 of Article 177 of the EEC Treaty for a the .Common Customs Tariff (CCT, see preliminary ruling on the following Regulation No 950/68, OJ L 172 of 22 questions: July 1968, p. 1, most recently amended by Regulation No 1/73, OJ L 1 of 1 1. What is meant by the term 'glass envelopes' (Glaskolben) in tariff January 1973, p. 1). heading No 70.11 of the Common The company opposed the Oberfinanz­ Customs Tariff? direktion's point of view. It asked that the reflectors should be classified under 2. What are 'glass envelopes, (including tariff heading No 70.11 or alternatively bulbs ...)' within the meaning of that under tariff subheading No 85.20-D tariff heading? under which heading the lenses should 3. Do they include coniform articles of also appear, and lodged a protest with glass which are open at both ends, or this body with a view to having the do these come under tariff heading official tariff classification withdrawn; No 85.20 or No 70.21? the Oberfinanzdirektion dismissed this protest. The company instituted an In its order for reference, the appeal against this decision before the Bundesfinanzhof stated in particular: Bundesfinanzhof. 'Since the reflectors, like the lenses, are used in the manufacture of electric 2. The headings in the CCT in dispute filament lamps it would at first sight are the following: seem proper to classify them as parts of In Chapter 70: glass and glassware; such electric lamps, under tariff heading No 85.20-D. But this cannot be done if 70.11: Glass envelopes (including bulbs they are glass articles within the meaning and tubes) for electric lamps, of tariff heading No 70.11, since Note 1 electronic valves or the like 18 % (b) of Chapter 85 states that such articles are not covered by the Chapter. 70.21: Other articles of glass 21 % A decision in the case rests, therefore, In Chapter 85: Electrical machinery and primarily on wheter the reflectors are equipment; parts thereof; 'glass envelopes (including bulbs ...)' within the meaning of heading No 70.11 85.20: Electric filament lamps and of the CCT. This question cannot be electric discharge lamps (including answered, however, until it has been infra-red and ultra-violet lamps); determined what the term 'glass arc-lamps; electrically ignited photographic flashbulbs; envelopes' comprises. Community law contains no definition of the term ... In A general usage the term 'Kolben' describes a spherical object with a stem. But B. employed in different technical fields the C term gains more specific connotations which are extremly varied ... This D. Parts (as from 1 January 1972: leads, in the present case, to the 85.20-C) consideration of whether articles such as

Pursuant to Article 20 of the Protocol on used in the manufacture of lamps as electric filament lamp units. If, therefore, the Statute of the Court of Justice of the the Company's view is without EEC, written observations were lodged substance, the articles in dispute must on behalf of the Commission by its legal thereupon be classified as 'electric adviser J. Amphoux, acting as agent, assisted by D. Oldekop, legal adviser to filament lamp units' (No 85.20), since only articles of glass under heading No the Commission, and on behalf of 70.11 (bulbs/Kolben and glass envel­ Osram by W. Zimmermann and P. Haase. opes) are included under this heading pursuant to the explanatory Note 1 (b) Having heard the report of the to Chapter 85. Further transfer from No Judge-Rapporteur and the opinion of the 85.20 to No 70.21, on the basis of tariff Advocate-General, the Court decided to heading No 70.11 (other articles of open the oral procedure without any glass), is not permissible. preparatory enquiry. According to the Company, the definition of glass bulbs under tariff heading No 70.11 must follow from the II — Written observations utilization for which they are normally submitted to the intended. The concepts in combination Court of 'glass bulbs', 'open', 'unfinished' and 'glass envelopes' enable it to be The Osram Company assert that the determined that the extent to which a English and French versions of the tariff bulb is finished cannot in itself have any headings support their view that the bearing on its classification. articles to be classified, the reflector The Commission points out that the first bulbs (reflectors) and covering glasses two questions deal with the (lenses), must be classified as bulbs pursuant to tariff heading No 70.11. The 1 — Translator's Note: Sic. The words in fact used reflector bulb and the covering glass are in the CCT under this heading are as follows: 'ampoules et enveloppes tubulaires en verre, obviously complementary items making ouvertes, non finies . . (open, unfinished bulbs up the glass part of electric filament and tubular envelopes of glass).

It subsequently refers to the Explanatory glass envelope for lamps would fall Notes to the Brussels nomenclature and under tariff heading No 70.11 even if it quotes the Notes relating to tariff were only an incomplete article heading No 70.11. compared with the glass envelopes to which this heading refers or has still to It holds that the notes clearly, if not undergo various processes towards this expressly, define the objective character­ end. This is subject to one condition, istics and properties to be used as however: in line with a classification rule yardsticks for classifying goods under generally adopted when applying the tariff heading No 70.11. Without Common Customs Tariff, an incomplete reference to the materials that go to or unfinished article must, as imported, make up these goods, such character­ bear the essential characteristics of the istics essentially lie in the intention to complete or finished article if it is to be use the said goods for the manufacture included under the same tariff heading of electric lamps and tubes. The English as the latter (cf. General Rule 2 (a) for wording of this heading is quite clear in the interpretation of the nomenclature of this respect. The heading covers all glass the CCT). It is also obvious that in the envelopes 'for electric lamps, electronic possible event of a bulb being made up valves or the like'. On the other hand, by assembling various glass units, each however, the wording of the tariff of which is of equal importance though heading No 70.11 and the related none of which yet possesses the explanatory Notes clearly show that this essential characteristics of the bulb to be is intended to apply only to items that produced, none of such units can be can in themselves compose the glass included under tariff heading No 70.11. envelope of the lamps, the manufacture The concept of unfinished bulbs should of which they are intended to serve. The not be confused with that of parts of Commission states inter alia that the bulbs. This is evident from the general Explanatory Notes to the Brussels composition of the CCT and the nomenclature refer to 'bulbs as such'. terminology that it employs. As regards To rank for classification under tariff the Brussels nomenclature, the CCT heading No 70.11, an item' should draws a clear distinction between therefore in itself be able, once it has incomplete or unfinished articles and

parts or separate components of articles. the first part of the alternative is in fact Wherever it is intended that the tariff implicit in the comments made above. should refer to parts or separate The goods in question are not covered components of an article as well as to by tariff heading No 70.11. It should the article itself it is ensured that this is therefore be asked whether they may be stated in express terms. classified as parts or separate Unless referred to in this way, a part of components of lamps under sub-heading No 85.20-D. an article must be allotted to its proper place in the nomenclature and where no If one were to abide strictly by the tariff specific heading exists to cover it it must provisions there would be some be classified under the residual heading temptation to accept this possibility. relating to the finished article. In fact, Subheading No 85.20-D relates to parts this is the principle that the Customs and separate components of the lamps Cooperation Council has adopted in a under consideration, and draws no number of formal classifications (cf. e.g. distinction on the basis of the nature of Collected Classifications, page M. J. such parts or components nor indeed on 1966, 73.11-73.13). In this context, the the basis of whether they are of glass or Commission further refers to the not. The sole exclusion made is that Explanatory Notes to the Customs stated in Note 1 (b) to Chapter 85.

It is hard to However, the Commission draws understand how such parts of bulbs can attention to a new General Rule 2 (a) of already be included under tariff heading the CCT for the interpretation of No 85.20 if the bulbs themselves are not. nomenclature, added to Regulation No In fact, the exclusion from Chapter 85 1/72 of the Council of 20 December contained in Note 1 (b) of the Chapter 1971 (OJ L 1 of 1 January 1972, p. 1), must be taken to refer not only to by virtue of which any reference to an articles under tariff heading No 70.11 article in a particular heading of the but also to units intended to make up tariff 'shall also be taken to include a such articles, even at a stage of reference to that article complete or production previous to the process

. . As regards the third question, the intended to be fitted inside lamps or Commission maintains that the reply to tubes' are concerned in this case.

The Explanatory Notes, furthermore, reasons properly speaking, and finally, expressly confirm that: 'on the other that the work of assembling them is one hand, this subheading does not cover the of extreme simplicity. following ... 1. articles of glass intended The Commission doubts whether these to form the envelope of lamps or tubes conditions have been fulfilled in the (No 70.21).' present case. It considers that the fact The Commission further refers to the that the lenses and reflectors are above-mentioned CCT classification imported separately is due to the special relating to tariff heading No 85.21. nature of the manufacturing process. It maintains, furthermore, that the sealing The Commission concludes that the only process is much more than a simple tariff heading left under which the matter of assembling the components. articles in question can be classified is In the Commission s opinion, the first the residual one relating to other articles sentence of Rule 2 (a) relating to of glass, namely tariff heading No 70.21. incomplete or unfinished articles is no After the written procedure had been more than a codification of previous closed, the oral procedure was law, while the second sentence relating commenced on 20 March 1974. The to articles submitted in an unassembled Osram Company was represented by Dr or disassembled state applies only in Schweickert and the Commission by its respect of certain specific Chapters; also, legal adviser, J. Amphoux, assisted by D. in 1972, the whole of the CCT was Oldekop. extended. In the course of the oral procedure, the The Osram Company considers that the Company and the Commission, in general rule for interpretation supports response to a question by the Court, its view and that this rule states a stated their views on the importance in position that already existed in law. the present case of the General Rule No It demonstrates that for technical 2 (a), last sentence, for the interpretation reasons the glass envelope has to be of the nomenclature of the CCT, with divided into two parts and maintains regard to articles submitted unassembled that these two parts constitute a single or disassembled. unit, the bulb unit. The Commission draws attention to the The Company refers to the following fact that this Rule was introduced into comment included in the Commission's the CCT on 1 January 1972. Referring observations: 'The characteristics that to the Explanatory Notes to the Brussels the article in question must possess in nomenclature, it maintains that the Rule order to fall under tariff heading No applies on the assumption that all the 70.11 are determined by the technical articles are imported simultaneously, requirements for the operation of the that the fact that they are imported in an said lamp or said tube.' It considers that unassembled or disassembled state is due this comment supports its own point of mainly to such reasons as special view.

The first and second questions

4 The first two questions submitted require an interpretation of the terms 'glass envelopes, (including bulbs...)' in the sense of tariff heading No 70.11 of the CCT.

5 It appears from the wording of tariff heading No 70.11 in its various linguistic versions that it covers not only glass objects used in the manufacture of electric lamps by traditional processes, but all glass objects intended for the manufacture of such lamps whatever the process used.

This interpretation is confirmed by the Explanatory Notes to the Brussels nomenclature in respect of tariff heading No 70.11, from which it clearly appears that the objective characteristics and properties of the products falling within this heading derive essentially from their utilization in the manufacture of electric lamps and tubes.

6 As worded in the official languages of the Community before 1973, tariff heading No 70.11 applies only to 'unfinished' products.

This term must be interpreted in line with Rule 2 (a), first sentence, of the General Rules for the interpretation of the CCT, in Section I.

It is for the national court to decide whether the welding of lenses to the reflectors in question in fact fulfils these requirements.

8 The two sentences of the Rule for interpretation No 2 (a) in Section I were inserted into the CCT with effect from 1 January 1972, consequent upon a recommendation adopted on 9 June 1970 by the Customs Cooperation Council and accepted by the Member States of the Community pursuant to the Council decision of 21 June 1971 (OJ L 137 of 23 June 1971, p. 10).

There are grounds for considering that these Rules for interpretation were devised with the aim of coordinating, for the tariff as a whole, interpretation practices laid down by special provisions, so that they do not form a legal innovation but apply to imports effected even before 1 January 1972.

The third question

9 The third question asks whether coniform articles of glass open at both ends fall under heading No 70.11 or, on the other hand, under headings Nos 85.20 or 70.21.

JUDGMENT OF 8. 5. 1974 — CASE 183/73

The Commission has stated, however, that it has issued an Explanatory Note relating to subheading No 85.20-C which excludes from the latter 'glass components intended to form an envelope for bulbs and tubes of electric lamps (No 70.21)'.

The Commission's Explanatory Notes, while constituting an important factor in interpreting the Common Customs Tariff, cannot modify its text, nor the introductory Notes to the Chapters, which are an integral part of the Tariff.

13 It must therefore be concluded that tariff heading No 85.20-C must be interpreted to mean that it includes articles of glass intended to form an envelope for electric lamps and not falling under tariff heading No 70.11.

OSRAM v OBERFINANZDIREKTION

Costs

14 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.

Pescatore Kutscher Ó Dálaigh Mackenzie Stuart

Delivered in open court in Luxembourg on 8 May 1974.

A. Van Houtte R. Lecourt

Registrar President