C-104/77
ECLI:EU:C:1978:69
- Súd
- Súdny dvor Európskej únie
- IČS
- 61977CJ0104
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF 16. 3. 1978 — CASE 104/77
In Case 104/77
REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the action pending before that court between
Firma WOLFGANG OEHLSCHLÄGER, Hilden
and
HAUPTZOUAMT (Principal Customs Office) Emmerich,
on the interpretation of the provisions of the Common Customs Tariff relating to the tariff classification of unwrought aluminium and aluminium waste and scrap,
THE COURT (First Chamber)
composed of: G. Bosco, President, A. M. Donner and A. O'Keeffe, Judges,
Advocate General: H. Mayras Registrar : A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the procedure and Germany two consignments of goods the observations submitted under Article which it described as "aluminium 20 of the Protocol on the Sutute of the milling waste and filings" and it applied Court of Justice of the EEC may be for them to be cleared through customs summarized as follows: into free circulation. In the consignment notes, the goods were described as "aluminium pellets". I — Facts and written procedure According to the details supplied in the order making the reference, the goods 1. In August 1970 Oehlschläger in question take the form of light grey imported into the Federal Republic of shining metal pellets. Made out of
OEHLSCHLÄGER ν HAUPTZOLLAMT EMMERICH
cables of various thicknesses by means Finance Court) before which the case is of a machine called a shredder, they now pending. consist essentially of aluminium and In the HZA's submission, the fact that contain only minute proportions of the original material — which is other metals. The original materials are admitted to be scrap for the purposes of first cut into short pieces with mechanical cutters. Then mon of the the CCT — has been processed "deliberately and for a specific purpose" particles of iron are removed with has given rise to a new product which magnets, and the remaining materials must be classified according to its own are comminuted into irregularly-shaped
properties. Since the goods at issue grains by routing cutters. Ax the same cannot be regarded in their present time the insulation is separated from the form as unusable, worn-out or broken cables and reduced to small pieces. The articles, they cannot be classified as constituent parts of the resulting aluminium scrap under subheading mixture are then separated by an air jet 76.01 B II. They should be classified as by a process based on the difference in unwrought aluminium in the form of their specific gravity, and the materials rough pellets. thus separated from one another (aluminium, copper, insulation) are On the other hand the importing under sorted into different storage bins. taking submits that the goods have not lost their status as scrap by virtue of The Hauptzollamt (Principal Customs their processing in the shredder, as Office) Emmerich (HZA) classified the breaking down cables for scrap involves said goods under subheading 76.01 A of more than merely comminuting them. the Common Customs Tariff (CCT) as Moreover final sorting is carried out "unwrought aluminium" in a pro only after importation.
The goods still visional duty notice, which was declared have the nature and the properties of final after an expert opinion had been used cables and have not been obtained from the Zolltechnische converted into a new product. Fur Prüfungs- und Lehranstalt (Customs thermore it is submitted that the said Technical Testing and Research goods cannot be regarded as unwrought Institute) Cologne. In 1970 unwrought aluminium. On one hand, unwrought aluminium was subject to autonomous aluminium can be obtained only by a duty of 10% or conventional duty of process of fusion; on the other, the
9%. imported goods contain not only aluminium but also other metals. On the other hand, the importing under taking asked for the goods to be For its pan, the Bundesfinanzhof classified under subheading 76.01 B II considers that, on account of the of the CCT, under the designation structure of Chapter 76 (Aluminium) of "aluminium scrap". The products the CCT, which draws a distinction covered by that subheading are free of between unwrought metal (76.01), semi duty. finished products (76.02 to 76.05) and articles of aluminium (76.06 to 76.16), Proceedings in which objections were the goods in question can only come raised were unsuccessful, and the said under heading 76.01. undertaking commenced proceedings before the Finanzgericht (Finance Therefore the only question to be Court) Dusseldorf. By a judgment of 3 decided is under which of the two sub September 1974 that court found headings in heading 76.01 the goods at against the undertaking, which appealed issue are to be classified: under sub to the Bundesfinanzhof (Federal heading 76.01 A, as "unwrought
JUDGMENT OF 16. 3. 1978 — CASE 104/77
aluminium", or under subheading 76.01 "scrap" in subheading 76.01 B of the B, as aluminium waste or scrap. Common Customs Tariff generally Considering that the interpretation of refers to remnants of metal having little the CCT applicable in this instance was or no remaining value, namely not free from doubt, the said court by defective, worn or irreparable objects an order of 27 July 1977 stayed the the' original purpose of which can still proceedings and referred the following be discerned but which can no longer questions to the Court of Justice for a serve that purpose preliminary ruling under Article 177 of the EEC Treaty: The scrap envisaged here consists of "1. Must tariff subheading 76.01 B of — used metal goods which have the Common Customs Tariff be become unusable for one reason or interpreted as including goods another, consisting of chopped aluminium wire of a light grey shining — metal goods the sute of which is not appearance and produced in a so due to deliberate processing, called shredder by the comminution of used aluminium cables and sub — metal goods fit only for the recovery stantial removal of the insulation? of metal, the only remaining value of which is consequently the value 2. In the event of Question 1 being of the metal itself. answered in the negative, do such goods come under tariff subheading 76.01 A?" The last of these three essential char acteristics of "scrap" is emphasized by 2. A copy of the order making the Note 6 to Section XV of the CCT, reference was received at the Court according to which "the expression Registry on 22 August 1977. 'waste and scrap' means waste and scrap The Commission of the European metal fit only for the recovery of metal Communities, represented by its Legal or for use in the manufacture of Adviser Manfred Beschel acting as chemicals". Agent, submitted written observations under Article 20 of the Protocol on the It is not correa to interpret this Statute of the Court of Justice of the definition of "scrap" as turning only on EEC. the use for which the product is Upon hearing the report of the judge- intended and as meaning that any object Rapporteur and the views of the fit only for the recovery of metal must Advocate General, the Court decided to be regarded as "scrap" whatever its open the oral procedure without any nature.
preparatory inquiry. By an order of 30 November 1977 it decided to assign the In fact, such an interpretation is not case to the First Chamber, pursuant to compatible with the fundamental rule of Article 95 of the Rules of Procedure. the CCT, which is that it is generally preferred to employ classifications based II — Written observations sub on the objective characteristics and prop mitted under Article 20 of erties of a product. That interpretation is also not in accordance with the the Protocol on the Statute wording of the note in question, from of the Court of Justice of the EEC which it precisely emerges that the concept of "scrap" is not confined to The Commission of the European objects which are "fit only for the Communities observes that the term recovery of metal".
OEHLSCHLÄGER v HAUPTZOLLAMT EMMERICH
On the contrary, as also emerges from is none the less made in the technical the Explanatory Notes to the Brussels and scientific field between four sorts of Nomenclature on heading 73.03 of the "pure" aluminium according to their Customs Cooperation Council degree of purity, namely "Al 99., Al Nomenclature (CCCN), it is logical to 99.6, Al 99.8 and Al 99.99, the letter H interpret the note cited above as being added to these abbreviations in meaning that "unusable, worn-out and the case of can aluminium. broken articles of iron and steel" mun Thus if grains of aluminium made out be regarded as "scrap". of aluminium cables by means of a Moreover that interpretation is shredder have the material composition convincing from the economic point of of one of the four sorts of "unwrought view, because, in so far as scrap can be aluminium" mentioned above, those partially or wholly separated and used grains must be classified as unwrought for purposes other than the recovery of aluminium for the purposes of sub metal, it would lose its quality of being heading 76.01 A, the ambit of which unusable used goods. For such goods, can moreover cover less "pure" Note 6 — like the Explanatory Notes to products since according to general the Brussels Nomenclature on heading Rule No 2 (b) for the interpretation of 73.03 of the CCCN — excludes any the Nomenclature of the CCT: possibility of tariff classification as "Any reference in a heading to a scrap. material or substance shall be taken to It follows from these considerations include a reference to mixtures or that, albeit that old aluminium cables combinations of that material or may be classified as scrap, the goods at substance with other materials or issue in the state in which they were substances "
imported cannot be so classified. In fact, That being the case, it follows that, in in the case of those goods the original so far as aluminium is the distinctive material had undergone complex component of the mixture in goods such processing designed to recover the as those at issue in this case, in the metal. The product resulting from that absence of any specific provisions for processing was not merely "chopped the interpretation of the Nomenclature aluminium wire" but grains of of the CCT, such mixture must be aluminium of a high degree of purity. classified as "unwrought aluminium" Thus this case concerns fresh goods under subheading 76.01 A The process which, on the basis of their nature and by which the characteristics mentioned properties, cannot be described as in the CCT have been acquired by the "scrap", and consequently -cannot be mixture have no relevance in this classified under tariff subheading 76.01 connexion. B II. In support of that conclusion, the As regards the possibility of tariff classi Commission refers to the Explanatory fication under subheading 76.01 A the Notes on heading 76.01 of the CCCN better view is that the expression and to a "classification slip" of the "unwrought aluminium" which appears Committee on CCT Nomenclature there does not designate a particular dated 18 May 1972. technical category of that metal, but the metal as such in its physical and It proposes that the questions raised should be answered as follows: chemical composition and as, yet unprocessed. Although the material "Chopped aluminium wire of a light composition of "unwrought aluminium" grey shining appearance and produced is not defined in the CCT, a distinction in a so-called shredder by the
JUDGMENT OF 16. 3. 1971 — CASE 104/77
comminution of used aluminium cables At that hearing Firma Wolfgang and substantial removal of the insulation Oehlschläger alleged that the comes under subheading 76.01 A of the description of the goods at issue given CCT." by the court making the reference was not factually correct. The Commission objected that it is not III — Oral procedure for the Court of Justice in the context of the present proceedings to verify the Firma Wolfgang Oehlschläger, rep findings of fact concerning the goods at resented by Klaus Gründler, and the issue made by the national court. Commission of the European Com The Advocate General delivered his munities presented oral argument at the opinion at the hearing on 23 February hearing on 2 February 1978. 1978.
Decision
1 By an order of 27 July 1977 which was received at the Court on 22 August 1977, the Bundesfinanzhof under Article 177 of the EEC Treaty asked questions concerning the interpretation of certain provisions of the Common Customs Tariff relating to unwrought aluminium and aluminium waste and scrap.
2 Those questions were raised in the context of a dispute over the tariff class ification of goods described by the importer as "aluminium milling waste and filings".
According to the details supplied by the national court in its order making the reference, the goods at issue consist of light grey, shining metal grains, which are obtained from used aluminium cables and from remnants of cables cut into short pieces in a shredder and then comminuted into irre gularly-shaped grains by rotating cutters, the constituent parts of the resulting mixture then being separated and isolated from one another.
After obtaining an opinion from the Zolltechnische Prufungs- und Lehr anstalt (Customs Technical Testing and Research Institute) Cologne the German customs authorities classified the said goods under subheading 76.01 A of the Common Customs Tariff ("unwrought aluminium") bearing autonomous duty of 10%.
The importer challenged that classification, arguing that the imported goods came under tariff subheading 76.01 B II ("aluminium scrap') and are therefore free of duty.
OEHLSCHLÄGER v HAUPTZOLLAMT EMMERICH
3 In its oral observations, the plaintiff in the main action stated that the description of the goods given by the national court in its order making the reference is incorrect.
4 Under Article 177 of the Treaty, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter is empowered only to give rulings on the interpretation or the validity of a Community provision on the basis of the facts which the national court puts before it.
To verify whether such facts are correa is not within the competence of the Court of Justice, and is a matter for the national court.
5 In its first question, the Bundesfinanzhof asks the Court whether tariff sub heading 76.01 B of the Common Customs Tariff must be interpreted as including goods having the characteristics defined above.
In the event of that question being answered in the negative, it is then asked whether the aforesaid goods come under tariff subheading 76.01 A.
As the tow questions relate to the tariff classification of the same goods, they must be dealt with together.
6 Subheading 76.01 B, Chapter 76, Section XV of the Common Customs Tariff refers to aluminium "waste and scrap".
The expression "waste and scrap" is defined by Note 6 to Section XV of the CCT as meaning, for the purposes of that Section, "waste and scrap metal fit only for the recovery of metal or for use in the manufacture of chemicals".
In addition, the Explanatory Note to the Brussels Nomenclature on heading 76.01 refers, for the definition of "aluminium waste and scrap", to the Explanatory Note on heading 73.03 concerning waste and scrap of ferrous metals.
The latter note defines the concept of "waste and scrap" by reference to "waste and scrap resulting from the cutting, shaping or other mechanical working of iron and steel" or to "unusable, worn-out and broken articles of iron or steel".
The same note also states that such articles are "frequently crushed or compressed together".
JUDGMENT OF 16. 3. 1978 — CASE 104/77
It follows from these provisions that the concept of "waste and scrap" in subheading 76.01 B of the CCT covers products which, as far as their objective characteristics are concerned, are left over from the cutting, shaping or other mechanical working of aluminium objects or are defective, used or irreparable aluminium articles and which, as regards the use to which they can be put, have no remaining value other than being fit for the recovery of metal.
Therefore, in view both of their form and of the processing from which they resulted, it does not appear that the goods described by the national court can be regarded as waste or scrap for the purposes of subheading 76.01 B of the CCT.
7 Accordingly, classification under that subheading being excluded, it falls to be considered, under the second question asked by the national court, whether the said goods can be classified under tariff subheading 76.01 A, which relates to "unwrought aluminium".
8 It emerges from the structure of Chapter 76, headings 76.02 to 76.05 of which refer to semi-finished products and headings 76.06 to 76.16 of which apply to finished products and other articles of aluminium, that the expression "unwrought aluminium" in subheading 76.01 A designates the metal as such, as yet unprocessed.
Although the Common Customs Tariff does not specify the percentage of metal which products coming under that subheading must contain, general Rule No 2 (b) for the interpretation of the Nomenclature Common Customs Tariff states that "Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances".
Furthermore, the Explanatory Note to the Brussels Nomenclature on heading 76.01 states that the expression "unwrought aluminium" also includes "aluminium pellets, mainly used in metallurgy".
According to the information supplied by the national court, the goods described are formed of grains of metal consisting essentially of aluminium and containing only minute proportions of other metals.
9 For all these reasons, the appropriate answer to the questions raised is that goods consisting of chopped aluminium wire of a light grey shining appearance and produced in a so-called shredder by the comminution of
OEHLSCHLÄGER v HAUPTZOLLAMT EMMERICH
used aluminium cables and substantial removal of the insulation come within subheading 76.01 A of the Common Customs Tariff in so far as they consist essentially of aluminium and contain only minute quantities of other metals.
Costs
10 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court are not recoverable.
As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (First Chamber),
in answer to the questions referred to it by the Bundesfinanzhof by an order of 27 July 1977, hereby rules:
Goods consisting of chopped aluminium wire of a light grey shining appearance and produced in a so-called shredder by the comminution of used aluminium cables and substantial removal of the insulation come within subheading 76.01 A of the Common Customs Tariff in so far as they consist essentially of aluminium and contain only minute quantities of other metals.
Bosco Donner O'Keeffe
Delivered in open court in Luxembourg on 16 March 1978.
A. Van Houtte G. Bosco
Registrar President of the First Chamber