C-28/75

Common Customs Tariff — Classification of goods — Mixtures — Interpretation — Rules applicable

When a mixture is, prima facie, classi­ precise or complete description of the fiable under two or more headings of the product referred to. Common Customs Tariff, each of which relates to one of the materials composing In classifying such a product Rule 3 (b) the mixture, none of the headings can be or 3 (c) of the General Rules must regarded as more specific than the others therefore be applied. on the sole ground that it gives a more

In Case 28/75

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

BAUPLA GmbH, Sarrelouis,

and

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and procedure and the obser­ tar pitch)' and lodged an administrative vations presented under Article 20 of the objection with the OFD to the effect that Protocol on the Statute of the Court of the official tariff classification opinion Justice of the EEC may be summarized should be rescinded. as follows: By decision dated 25 June 1973 the OFD rejected this objection on the I — Facts and procedure ground that the tariff classification should be made in accordance with Rule On 15 May 1972 the Oberfinanz­ 3 (b) of the General Rules for the direktion Köln (hereinafter referred to as interpretation of the Common Customs 'the OFD") sent Baupla an official tariff Tariff, that is to say as if they consisted of classification opinion in respect of facing the material or component which gives board being compressed wood fibre the goods their essential character. This board impregnated with asphalt with an is wood pulp, from which building board asphalt layer on the front which in turn is essentially made. The goods were there­ is encrusted with mineral grains and fore properly classified under heading No 48.09 of the Common Customs bears a stamped pattern. The OFD classified the facing board under heading Tariff. No 48.09 of the Common Customs Tariff referring to 'Building board of It is against this decision that Baupla has wood pulp or of vegetable fibre, whether brought an action before the Bundes­ or not bonded with natural or artificial finanzhof. The plaintiff maintains that resins or with similar binders'. the characteristic component of building boards is asphalt which, by ensuring their Baupla took the view that the goods in imperviousness to damp gives them one question should be classified under of the decisive qualitites for the use to heading No 68.08 relating to 'Articles of which they are intended: the covering of asphalt or of similar material (for the external walls of houses. The material example, of petroleum bitumen or coal made up of compressed wood fibre is

unimportant Since it is not an essential highest rate of duty and if this factor in heat insulation and since the rate is the same for several wood pulp does not determine the shape headings, they shall be classified or strength of the goods it does not under that one of such headings matter that the wood fibre has the greater which occurs latest in the bulk, since the main criterion is the use nomenclature of the Tariff.' to which the goods are put. The OFD states that the wood fibre gives the goods By order dated 12 February 1975 the their essential character. Apart from the Bundesfinanzhof stayed the proceedings bulk, the weight and the value of the and referred the following question to materials to be taken into consideration the Court of Justice of the European

at the tariff classification in the present case by applying this rule of registerred at the Court of Justice on 12 March 1975. interpretation the wording of which is as follows: In accordance with Article 20 of the Protocol on the Statute of the Court of '3. When for any reason, goods are, Justice of the EEC, written observations prima fade, classifiable under two or were lodged by Baupla, represented by more headings, classification shall be Dieter Scheidemantel, Rechtsanwalt, effected as follows:

JUDGMENT OF 25. 9. 1975 - CASE 28/75

description. The two headings thus application. stand in a graded relationship. In classifying a product both headings In classifying mixtures such as those come into consideration. In this case referred to in the present preliminary Rule 3 (a) of the General Rules states question two approaches appear possible that the heading which provides the according to the terms of Rule 3 (a) of most specific description shall be the General Rules: preferred to headings providing a 1. As wide as possible a scope could be more general description. given to this rule so that in classifying

Rules). It follows that for the '(c) if two or more headings each refer classification of this product there to one only of the materials or exist both a heading providing a substances contained in mixed or general description and a specific composite goods, those headings heading. But these two headings do are to be regarded as equally not stand in a graded relationship one specific in relation to those goods, to another, since the specific heading even if one of them gives a more does not describe a section of the complete or precise description heading providing a general des

BAUPLA v OBERFINANZDIREKTION, KÖLN

First of all this approach is the one materials, the criterion of the greatest contained in the Explanatory Notes to specificity is inapplicable and the the Brussels Nomenclature, but, criterion laid down in Rule 3 (b) of the moreover, if the criterion of the most General Rules should be applied. specific heading were applied systematically in classifying the products The Commission considers that the reply referred to in the present case, it would to the question raised should be as follows: lead to arbitrary solutions. On the one hand this method would make the "When a mixture is prima facie classi­ classification of the goods depend on the fiable under two or more headings each more or less precise wording of the of which relates to one of the materials headings. On the other hand, applied in composing the mixture, none of those an absolute fashion, this method would headings can be regarded as more result in a failure to take into account the specific than the others even if the relative proportion and importance of the description which it gives of the products different components composing the referred to is more precise or more product. complete, so that Rule 3 (a) of Section I of the Common Customs Tariff cannot The criterion of the heading which be applied in classifying the mixture. provides the most specific description This classification must be determined laid down in Rule 3 (a) of the General by applying Rule 3 (b) or 3 (c) of the Rules is inapplicable in classifying the General Rules.' goods in question, since none of the headings coming into consideration is more specific than the other. Faced with III — Oral procedure two headings conceived in terms of the materials of which the goods referred to The Commission of the European are composed, a judgment on the greatest Communities submitted its oral obser­ specificity is possible only if both relate vations at the hearing on 26 June 1975. to products of the same material. If on the other hand the headings relate, as in The Advocate-General delivered his the present case, to products of different opinion on 16 September 1975.

'(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.

(b) Mixture and composite goods which consist of different materials or are made up of different components and which cannot be classified by reference to 3 (a) shall be classified as if they consisted of the material or component which gives the goods their essential character, in so far as this criterion is applicable.

(c) When goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the heading which involves the highest rate of duty and if this rate is the same for several headings, they shall be classified under that one of such headings which occurs latest in the nomenclature of the Tariff.'

4 It is common ground that the methods laid down in (a), (b) and (c) must be applied in the order in which they are set out in the rule.

The question therefore may arise whether, since heading No 48.09 in the present case describes the product in question by name ('Building boarď), it must not be regarded as being more specific than heading No 68.08 which comprises a category of products ('Articles … '), so that Rule 3 (a) can and therefore must apply.

5 The national court however asks whether such an interpretation which relates exclusively to the external form of the goods without taking into account the materials which make them up, does not risk leading to arbitrary applications incompatible with the objectives of the Common Customs Tariff.

In classifying such a product Rules 3 (b) or 3 (c) of the General Rules must therefore be applied.

Costs

8 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Bundesfinanzhof, costs are a matter for that court

JUDGMENT OF 25. 9. 1975 - CASE 28/75

On those grounds,

THE COURT

A. Van Houtte R. Lecourt

Registrar President