C-98/75

JUDGMENT OF THE COURT 18 FEBRUARY 1976 1

Carstens Keramik GmbH and Firma August Hoff v Oberfinanzdirektion Frankfurt am Main

(preliminary ruling requested by the Bundesfinanzhof)

'Potteries'

Joined Cases 98 and 99/75

Summary

JUDGMENT OF 18. 2. 1976 —JOINED CASES 98 AND 99/75

CARTENS KERAMIK GMBH TÖNNIESHOF, Fredelsloh über Northeim (Case 98/75)

FIRMA August Hoff, Nürnberg-Großgründlach (Case 99/75) and

Oberfinanzdirektion (Regional Finance Office), Frankfurt am Main

on the interpretation of tariff headings 69.12 A, 69.12 C, 69.13 A and 69.13 C of the Common Customs Tariff (Regulation No 950/68 of the Council of 22 July 1968, JO L 172, 1968, p. 1, as last amended by Regulation No 3000/75 of the Council of 24 November 1975, OJ L 304, 1975, p. 1) concerning the classification of certain ceramic products,

THE COURT

The orders for reference and the written tariff classification opinion binding the observations submitted pursuant to administration in relation to vases Article 20 of the Protocol on the Statute approximately 15 centimetres high with of the Court of Justice of the EEC may a simple decorative shape imported from be summarized as follows: Rumania.

In its official opinion the Oberfinanz­ direktion classified the products under I — Facts and procedure heading 69.13 C of the Common Customs Tariff as 'articles of furniture or 1. In March 1972 the undertaking ornaments of fine pottery (vases)'. Carstens Keramik applied to the Oberfinanzdirektion (Regional Finance In October 1972 the undertaking August Office), Frankfurt am Main, for an official Hoff requested from the same

CARSTENS KERAMIK v OBERFINANZDIREKTION FRANKFURT AM MAIN

administration an official tariff How are the expressions '... other classification opinion regarding mugs ornaments and... articles of furniture: with or without handles, of Hungarian ... common pottery' and '... other and Bulgarian origin. In its official ornaments ... articles of furniture: ...

2. The tariff headings in question are The Oberfinanzdirektion based its subdivided as follows: decision upon 'a tariff decision of the 69.12 Tableware and other articles of a Commission' of 19 June 1972 in which kind commonly used for wall tiles made from brown ceramic domestic or toilet purposes, of whose body is of marked uniformity and other kinds of pottery: homogeneity were classified under tariff A. Common pottery heading 69.08 B II as tiles made from B. Stoneware pottery other than common pottery. It C. Earthenware of fine pottery: follows from this decision that in order I. White or single-coloured to distinguish the terms of the customs II. Other tariff products of 'common pottery' and D. Other products of 'other kinds of pottery', the 69.13 Statuettes and other ornaments, determining factor is the objective articles of personal adornment; property of the product, that is to say, the articles of furniture: fineness of grain and the homogeneity of A. Common pottery the body and not the method of B. Porcelain or china manufacture and, consequently, the C. Other refining or preparation of the clay. In the opinion of the Oberfinanzdirektion the 3. The Oberfinanzdirektion rejected the words 'common pottery' which are complaints of the importers who then employed in tariff heading 69.08 B I as instituted proceedings before the well as in tariff headings 69.12 A and Bundesfinanzhof (Federal Finance Court) 69.13 A can only receive a uniform against these decisions rejecting their interpretation. complaints. Carstens Keramik claimed that 'the tariff By orders of 5 August 1975 the decision' relied upon by the Bundesfinanzhof stayed the proceedings Oberfinanzdirektion is not applicable to in the two cases and requested the Court the goods produced by hand under tariff of Justice in accordance with Article 177 heading 69.13. Wall tiles are of the EEC Treaty to give a preliminary mass-produced articles not comparable ruling on the following questions: with hand-made pottery products as

regards the quality of clay used. When it the Commission are accepted the official is executed in common pottery, that is to information on customs matters binding say, in clay extracted from a single source the administration is incorrect. This is so hand-made pottery may display a fine because the Oberfinanzdirektion has in body structure. particular failed to take account of the size and nature of the xenocrysts. The body structure has thus no effect on Furthermore it is the porosity of the the tariff classification of hand-made finished products which constitutes the

. . which is concerned with wall tiles of Nevertheless, if it were necessary to "common pottery" under tariff heading classify products in the customs tariff 69.08 only represents the decision in an according to objectively ascertainable individual case, which has no binding criteria as to properties it would be effect on the case which is here to be necessary to include in such examination decided. Moreover the distinguishing all data as to properties relating to the criteria on which this tariff decision is product to be classified and, to this end based do not coincide with the also to compare a large number of items. corresponding criteria contained in the Explanatory Notes to the Brussels The Oberfinanzdirektion argues that the Nomenclature; it is to these Explanatory sole factor which is decisive for the Notes that the Explanatory Notes to the outcome of the proceedings is the Customs Tariff of the European properties of the sample defined from Communities also refer.' the customs point of view and submitted at the time with the request for a The term 'common pottery' is more classification opinion. closely defined in the Explanatory Notes to Chapter 69 of the Brussels August Hoff also argues that the 'tariff Nomenclature (cf. Subchapter II Section decision of the Commission' cannot be II A..

Such pottery includes: Even if the distinguishing criteria which 1. Pottery made from common clay form the basis of the tariff decision of (brick earth) containing iron and lime;

The Explanatory Notes stress as The Commission recalls that the wording particular characteristics of common of the questions referred in abstract and pottery the porosity, the colour and the general. Nevertheless, in accordance with dullness of the body and a particular the objective of that procedure the chemical composition of the material... questions should be answered in the On the other hand the tariff decision of light of the circumstances of the cases the Commission emphasizes only the which gave rise to them in order to homogeneity and regularity of the grain enable the national court in practice to as factors for distinguishing products of arrive at a decision in accordance with common pottery in relation to other Community law. kinds of pottery on the ground that these characteristics are to be ascribed to a The Commission considers the tariff more intensive preparation of the headings of the Common Customs Tariff material. and the relevant provisions of the Brussels Nomenclature and observes that 6. The orders of the Bundesfinanzhof the concept of 'common pottery' appears were registered at the Court Registry on in various headings of the Common 11 September 1975. Customs Tariff. In defining this concept it is necessary, for reasons of legal In accordance with Article 20 of the certainty and clarity, to proceed from the Protocol on the Statute of the Court of principle that since the same concepts Justice of the EEC written observations appear several times in the Common were lodged by the Commission through Customs Tariff they must be interpreted its Legal Adviser, Mr Jean Amphoux, in the same way and the conceptual assisted by Mr Manfred Beschel, a bases worked out must be adopted as a member of its Legal Service. general basis for distinction used for the exact tariff classification of a product. By an order of 11 December 1975 the Court, upon hearing the report of the From the point of view of procedure it Judge-Rapporteur and the views of the seems appropriate to reply to the Advocate-General, decided to join the question referred by considering first of cases for the purposes of the oral all the characteristics of 'common procedure. pottery'. In order to clarify this concept reference must be made to the general Upon hearing the report of the plan of the Common Customs Tariff and Judge-Rapporteur and the views of the to the factors which must be taken into Advocate-General the Court decided to account in interpreting it. open the oral procedure without any preparatory inquiry. The Common Customs Tariff by itself does not, apart from certain very general statements, provide any information from II — Written observations sub­ which to work out the definition sought. mitted to the Court

Having considered the Explanatory It is possible to find clay of exceptional Notes to the Brussels Nomenclature to purity generally in small quantities. In Chapter 69 (cf. Subchapter II, A, 1) the such a case reference must rather be Commission argues with regard to the made to the objective and evident nature concept 'common pottery' that the raw of the product in accordance with the material is a simple substance, normally general principles of tariff classification. in the coarse state, containing impurities and termed 'brick earth'. Furthermore By applying the criteria set out above it the following should be adopted as is possible to draw a distinction between additional criteria: a porous and coloured products 'of common pottery' and body, permeability, opaqueness the fact products 'of other kinds of pottery'. that the pottery in question is easily However, in order to classify vases of scratched with iron, and a dull earthy pottery under heading 69.13 C and fracture 'which sticks to the tongue'. tableware of pottery under heading 69.12 C it must first of all be confirmed that The 'tariff decision' of 19 June 1972 they do not come under another heading relied upon by the Oberfinanzdirektion of the Common Customs Tariff. does not contradict these criteria; on the contrary it clarifies them and applies On the basis of these considerations the them to a particular case. Through a Commission suggests to the Court that it method of reasoning a contrario it has should reply as follows to the question rather used the criteria already referred by the Bundesfinanzhof in Case established so that when characteristics 98/75: (fineness of grain and homogeneity) are '(1) Articles of furniture or of personal present which differ from those of adornment which are obtained from common clay (coarse and impure) it simple brick clay, and which are completely ruled out any possibility of porous, permeable, opaque, easily classification amongst products of scratched with iron and whose earthy common clay. fracture sticks to the tongue must be classified under tariff heading 69.13 Furthermore the 'tariff decision' does not A as common pottery. constitute a decision in the legal sense (2) Articles of furniture or of personal (having binding effect) but merely an adornment which do not display the opinion given by the Committee on essential characteristics of "common Nomenclature in reply to a specific pottery" or those which are required

a special process. Nevertheless the In Case 99/75 the Commission suggest converse conclusion may not be drawn the following reply: from this that the (objective) '(1) Tableware of pottery made from characteristic of common pottery must simple brick clay which is porous,

permeable, opaque, easily scratched which is used in various tariff headings with iron, having a rather coarse should receive a uniform interpretation. grain, a non-homogeneous structure This is, however, difficult because the and an earthy fracture which sticks relevant articles have entirely different to the tongue must be classified uses and in every case require raw under tariff heading 69.12 A as a materials having different characteristics. product of common pottery. (2) Tableware of pottery which does not In the form in which it has been display the essential characteristics of developed by the Commission, the "common pottery" or those charac­ concept of 'common pottery' is very teristics required for classification difficult to apply since it is nowhere under tariff headings 69.11, 69.12 B stated what degree of homogeneity of the or 69.12 D come under tariff body and fineness of grain can be heading 69.12 C. In this respect it is attained whilst still enabling the product of little importance whether the to remain in this category. The superior quality distinguishing the classification would thus be effected in product in question from products of accordance with entirely subjective 'common pottery" results from a impressions. Consequently the definition particular preparation or from should not take account of such concepts refinement of the body of the clay.' of homogeneity of body and fineness of grain. In addition such concepts do not With regard to this last reply the appear in the Explanatory Notes to the Commission emphasizes the fact that the Brussels Nomenclature. definition of tableware of porcelain does not in itself raise any problem in the When establishing groups in the present case since the chemical and Common Customs Tariff the authors no physical properties of the raw material doubt had an entirely different, and the characteristics of the product subdivision in view. The designation properly so-called are relatively clear. 'common pottery' can merely indicate a The same holds good for products of lower quality and a lesser value for pottery regarded as stoneware and for articles produced from 'common pottery' tableware of pottery classified under as compared with stoneware, earthenware heading 69.12 D. or porcelain.

whether or not vitrified, that is to say, This distinction accordingly requires to produced at a relatively low temperature, be formulated subsequently and there is porous, permeable to gas and liquids and thus no contradiction between the which are capable of being scratched opinion of the Commission on the one with iron. hand and the Explanatory Notes to the Brussels Nomenclature on the other. With regard to the systematic distinction between pottery materials the As a general rule the graining must be Commission argues in particular that regarded as coarse when there are such categories overlap and that criteria swellings, xenocrysts and fissures must be found for each particular case. exceeding 0-1 mm that is to say, visible In addition account should be taken of to the naked eye, and when these coarse the fact that the distinction between features are typical of the structure of the categories results from the necessary general body. purpose and the use of such a distinction. The Commission finally argues that the differences between the six language Temperature constitutes a secondary versions of the Common Customs Tariff factor, according to the material and then have scarcely any importance for the to the product which it is desired to following reason: there is a relationship obtain. between the product on the one hand and the materials on the other and it is Porosity constitutes a valid criterion for consequently irrelevant that in one case distinguishing common porcelain clay the final product is emphasized whilst in for example. Clearly, the Explanatory the others the raw material of this Notes to the Brussels Nomenclature refer product is stressed. to the distinction between porcelain and other kinds of pottery rather than the The Advocate-General delivered his clear distinction between the various opinion at the hearing on 28 January kinds of pottery. 1976.

4 In its question in Case 98/75 the Bundesfinanzhof asks how the expressions '... other ornaments and ... articles of furniture: ... Common pottery' and '... other ornaments ... articles of furniture: ... Other' in tariff headings 69.13 A and 69.13 C of the CCT are to be interpreted and distinguished from one another. In its question in Case 99/75 it asks how the expressions Tableware ... of ... common pottery' and Tableware ... of ... fine pottery' employed in tariff headings 69.12 A and 69.12 C are to be interpreted and distinguished from one another. The essential problem posed by these questions is thus the interpretation of the expression 'common pottery' as a criterion for tariff classification.

5 The relevant tariff headings are subdivided as follows:

69.12 Tableware and other articles of a kind commonly used for domestic or toilet purposes, of other kinds of pottery:

A. Common pottery B. Stoneware

C. Earthenware or fine pottery: I. white or single-coloured II. Other

D. Other

7 In the interests of legal certainty and of the administrative procedures, it is the characteristics and objective properties of products which afford the decisive criterion for their classification in the CCT unless there are special facts and circumstances implying other criteria.

8 The problem which presents itself is thus to ascertain the characteristics and objective properties of the relevant products which, for the purposes of their classification in the CCT, distinguish them from each other.

(1) ... (2) Tableware and other domestic and toilet articles, classified in heading 69.11 when of porcelain or china, and in heading 69.12 if of other kinds of pottery.

(I) — Porcelain or China

For the purposes of heading 69.11, porcelain or china includes ...

(II) — Pottery, other than porcelain or China

For the purposes of heading 69.12, the term 'other kinds of pottery' includes: (A) Pottery with a porous body which, unlike porcelain is opaque, permeable to liquids, easily scratched with iron and whose fracture sticks to the tongue. Such pottery includes: (1) Pottery made from common clay (brick earth). It has a dull earthy texture and its colour is generally brown, red or yellow. It may be glazed.1 (2) A wide range of white or coloured pottery ... more or less fine.1 The body is porous and must be glazed to make the articles impermeable... [Earthenware, etc.] is made from finely sieved clays stirred with water. 1 It has a finegrained body obtained by firing to a higher temperature than in the case of pottery made from common clay; it differs from porcelain or china because it is not completely vitrified.

(B) Stoneware which, though dense, ... differs from porcelain because it is more opaque ...

12 In addition, although the abovementioned opinion of the Committee on Nomenclature is not binding and relates to a heading which is not one of those, at issue in the present case, it represents a valid indication for the purposes of taking into consideration the fineness of the grain and the homogeneity of the structure of the product as objective characteristics of the product for the purposes of the interpretation and definition of the concept 'common pottery'. This conclusion appears to correspond to the general scheme of the CCT in this sphere which presupposes that objects of little value are produced from common clay, in that it is the simplest raw material, whilst less coarse products are obtained from raw pottery material of higher quality. Although the German version of heading 69.12 does not perhaps bring out this difference clearly, other official versions leave no doubt in this matter since they employ expressions such as 'en poterie fine', 'fine pottery' and 'di terracotta fine' to describe products manufactured from a raw material other than 'common clay'.

13 The plaintiffs in the main action have objected that the fineness of the grain and the homogeneity of the structure are criteria which are too vague and too subjective to be employed to draw a distinction between tariff headings.

14 Nevertheless in this connexion, as the Commission has stated in the course of the proceedings, in professional circles certain trends of opinion have appeared which may be of use to the customs authorities.

CARSTENS KERAMIK v OBERFINANZDIREKTION FRANKFURT AM MAIN

Lecourt Kutscher O'Keeffe

Donner Mertens de Wilmars Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 18 February 1976.

A. Van Houtte R. Lecourt

Registrar President