C-35/75

2. Common Customs Tariff — Classification of goods — Interpretation — Absence of Community provisions — Authority of the explanatory notes and the classification opinions of the Brussels Convention on Nomenclature

3. Common Customs Tariff — Classification of goods — Mechanically propelled within the meaning of beading 86.04 — Interpretation

tariffs are an authoritative source for 1. Although the Court in ruling under Article 177 does not have jurisdiction the purposes of the interpretation of to apply the Community rale to a the headings to the Common specific case, it may however supply Customs Tariff. the national courts with the principles of interpretation relating to Com­ 3. The phrase 'mechanically propelled' munity law which may be useful in in heading 86.04 of the Common the application of this rale. Customs Tariff must be interpreted as 2. In the absence of relevant Community covering self-propelled vehicles for provisions on the subject, the track maintenance, equipped with one explanatory notes and the or more engines enabling the vehicle classification opinions provided for by to move about from place to place the Convention on Nomenclature for rapidly on the track and quite the classification of goods in customs independently."

In Case 35/75

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

1 — Language of the Case: German.

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

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts, procedure and observations It is used for tamping or ramming down submitted pursuant to Article 20 of the under the sleepers the bedding materials Protocol on . the Statute of the Court of on which railway tracks are laid and Justice of the EEC may be summarized straightening the railway lines. The as follows: machine consists of a roofed railway track chassis equipped with the machinery necessary to execute the works for which it was designed, in I — Facts and procedure particular for tamping boxes each with two pairs of tampers, track lifting, track On 3 June 1971 Matisa-Maschinen- shifting and levelling devices. The diesel GmbH applied to the Hauptzollamt engine not only drives the working Berlin-Packhof for customs clearance for machinery and propels the vehicle free circulation of a Matisa machine for during its work, but also enables it to tamping, levelling and adjusting railway move about rapidly from place to place tracks. This machine is a vehicle running at speeds of up to 80 km per hour in on rails for use in the repair of railways. both forward and reverse directions.

The Hauptzollamt first of all classified After unsuccesfully objecting to the new the machine under heading 84.23 A II b notice of recovery, Matisa-Maschinen- of the Common Customs Tariff. GmbH brought a action before the Finanzgericht Berlin for the annulment Heading 84.23 is worded as follows: of the notice. 8423 Excavating, levelling, tamping, boring and extracting In these proceedings the Hauptzollamt machinery, stationary or mobile, maintains that it is not a question of a for earth, minerals or ores (for working machine within the meaning of example, mechanical shovels, heading 84.23 since the machine has coal cutters, excavators, scrapers, great mobility on the railway network levellers and bulldozers); pile and by reason of this it should be drivers, snow ploughs, not classified, as mechanically propelled, selfpropelled (including snow- under heading 86.04. It relies mainly on plough attachments): paragraph 13 of the Explanatory Notes to A — Excavating, levelling, tamp­ the Brussels Nomenclature on heading ing, boring and extracting 86.04. This note is worded as follows: machinery for earth, minerals or ores: This heading further covers self-pro­ 1. Self-propelled, track pelled vehicles for track maintenance (in laying or wheeled, not particular, railway track liners), equipped capable of running on with one or more engines which not rails only power the working machines II. Other: mounted thereon (track-setters, (a) Boring and sinking ballast-tampers, etc), and propel the machinery vehicle while work is in progress but also (b) Other enable it to travel rapidly along the track, B — Pile drivers; snow ploughs, as a self-propelled unit, when the not self-propelled (includ­ working machines are not in operation.' ing snow-plough attach­ ments).' The Hauptzollamt maintains that the concept 'mechanically propelled' within By a notice of amendment dated 2 the meaning of heading 86.04 covers not March 1972 the Hauptzollamt classified only railway vehicles intended to carry the machine under heading 86.04 B on passengers and goods, but also service the ground that it was not just a working vehicles intended to maintain railway machine, but a railway maintenance track and vehicles. vehicle on account of its capacity for Matisa-Maschinen-GmbH considers on moving rapidly under its own power from place to place within the railway the other hand that the concept network. 'mechanically propelled' can include only vehicles basically intended to carry Heading 86.04 is worded as follows: passengers or goods. The machine in '86.04 Mechanically propelled railway question must be regarded as a working and tramway coaches, vans and machine. trucks, and mechanically propelled track inspection It is of the opinion that the trolleys: Hauptzollamt cannot rely on the A — electric railway and Explanatory Notes to the Brussels tramway coaches, vans Nomenclature in support of the opposite and trucks (powered from argument. In the plaintiff's view these an external source of notes are invalid in law in that they electricity) widen the scope of heading 86.04 far b — other. beyond the subject-matter which forms

the Commission cites the case-law of the the legal content of this heading. Finally 'levellers' are expressly mentioned in Court according to which in the absence heading 84.23 by way of example. of Community provisions in the matter the Explanatory Notes 'afford an By order dated 19 March 1975 the authoritative source for the purpose of Finanzgericht Berlin (IIIrd Senate) stayed the interpretation' of the provisions of the proceedings and submitted the the Common Customs Tariff. following question to the Court of Justice of the European Communities The Commission stresses the necessity of under Article 177 of the EEC Treaty: the uniform application of the Common 'Is the Matisa machine for tamping, Customs Tariff throughout the whole of levelling and adjusting railway tracks, the Community and considers that the imported by the plaintiff in the present Explanatory Notes constitute an action on 3 June 1971 into the territory important instrument of interpretation of the European Economic Community, enabling a correct application of to be classified under subheading 86.04 B Community law to be arrived at. (as a mechanically propelled railway coach) or under subheading 84.23 A II b With regard to the question of classifying (as earth moving machinery) of the the machine for tamping, levelling and Common Customs Tariff (CCT) — adjusting railway tracks, the Commission Regulation (EEC) of the Council No states that according to the wording of Note 1 k of Section XVI of the Common 950/68 of 28 June 1968 — OJ L 172 of 22 July 1968, p. 1?

1 April 1975. Since it concerns in the present case a In accordance with Article 20 of the self-propelled vehicle, the question Protocol on the Statute of the Court of ultimately relates to the interpretation of Justice of the EEC written observations the concept of 'mechanically propelled' were submitted by the Commission of within the meaning of heading 86.04. the European Communities, represented by its Legal Adviser, Jean Amphoux, The Commission recalls that when the acting as Agent, assisted by Mr.

MATISA v HAUPTZOLLAMT, BERLIN

The fact that self-propelled machines III — Oral procedure intended for track maintenance come under heading 86.04 is, moreover, Matisa-Maschinen-GmbH, represented by confirmed by a comparison with the Wolfgang Schlüter, Advocate of Bielefeld wording of heading 86.06 which covers and the Commission of the European track maintenance vehicles moving from Communities, represented by its Legal place to place on rails which are not Adviser Jean Amphoux, acting as Agent, self-propelled but moved by locomotives. assisted by Mr Götz zur Hausen, member

JUDGMENT OF 23. 10. 1975 — CASE 35/75

The Advocate-General delivered his of the Legal Department, presented their oral observations at the hearing on 24 opinion at the hearing on 14 October September 1975. 1975.

Law

1 By order dated 19 March 1975, which arrived at the Registry on 1 April 1975, the Finanzgericht Berlin referred two questions to the Court for a preliminary ruling on the interpretation of the Common Customs Tariff (OJ L 172, 1968).

The first question asks whether the 'Matisa machine for tamping, levelling and adjusting railway-tracks' is to be classified under subheading 86.04 B (as a mechanically propelled railway coach) or under subheading 84.23 A II b (as earthmoving machinery) of the Common Customs Tariff.

MATISA v HAUPTZOLLAMT, BERLIN

the vehicle during its work, but also enables it to move about rapidly from place to place at speeds of up to 80 km per hour in both forward and reverse directions.

Although the Court in ruling under Article 177 does not have jurisdiction to apply the Community rule to a specific case, it may however supply the national courts with the principles of interpretation relating to Community law which may be useful in the application of this rule.

4 Heading 84.23 A II b relates to:

'Excavating, levelling, tamping, boring and extracting machinery, stationary or mobile, for earth, minerals or ores (for example, mechanical shovels, coal cutters, excavators, scrapers, levellers and bulldozers); pile drivers, snow ploughs, not self-propelled (including snow plough attachments):

A — Excavating, levelling, tamping, boring and extracting machinery for earth, minerals or ores:

5 Heading 84 comes in Section XVI of the Common Customs Tariff and heading 86 in Section XVII.

The introductory notes to Section XVI are worded.

'1. This Section does not cover:... (k) vehicles, aircraft, ships or boats, of Section XVII.'

JUDGMENT OF 23. 10. 1975 — CASE 35/75

It is therefore necessary to define the concept 'vehicles, aircraft, ships or boats'.

6 A perusal of Chapter 86 of the Common Customs Tariff headed 'Railway and tramway locomotoves, rolling stock and parts thereof; railway and tramway track fixtures and fittings; traffic signalling equipment of all kinds (not electrically powered)', shows an intention to bring under this chapter all railway equipment and in particular rolling stock.

MATISA v HAUPTZOLLAMT, BERLIN

On those grounds,

THE COURT

in answer to the questions referred to it by the Finanzgericht Berlin by order dated 19 March 1975, hereby rules:

In the absence of relevant Community provisions on the subject, the explanatory notes and the classification opinions provided for by the Convention on Nomenclature for the Classification of Goods in Customs Tariffs are an authoritative source for the

purposes of the interpretation of the headings to the Common Customs Tariff.

OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 14 OCTOBER 1975

My Lords, Finanzgericht of Berlin. The question that that Court has to decide is as to the This case comes to the Court by way of a classification under the Common reference for a preliminary ruling by the Customs Tariff of a piece of equipment