C-165/78

OBERFINANZDIREKTION [Regional Finance Office] BERLIN

for an interpretation of the Nomenclature of the Common Customs Tariff and of the General Rules for the Interpretation of that nomenclature.

THE COURT (Second Chamber)

composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

The facts of the case, the course of the requested a binding opinion as to tariff procedure and the observations classification ("verbindliche Zolltarif­ submitted pursuant to Article 20 of the auskunft") in respect of them. The Protocol on the Statute of the Court of products concerned were: Justice of the EEC may be summarized as follows: — Caps (in base metal) for ball-point pens with depressing mechanism; I — Facts and procedure — Barrels (in base metal) for ball-point The General Rules for the Interpretation pens with depressing mechanism; of the Nomenclature of the Common — Magazines for the above-mentioned Customs Tariff (Official Journal 1977, L ball-point pens. 289, p. 11) include inter alia the following rules: The caps and barrels in various finishes "1. The titles of Sections, Chapters and contain all the parts of the mechanism sub-Chapters are provided for ease and are always delivered in pairs. The of reference only; for legal purposes, magazines are delivered in boxes of 600 classification shall be determined units (of different calibres and mixed according to the terms of the colours). These magazines are in part headings and any relative Section or intended to be made up with the caps Chapter Notes and, provided such and barrels with which they are imported headings or Notes do not otherwise to form ball-point pens. A number of require, according to the following these magazines are intended for provisions. IMCO's stock of refill-magazines. In its 2. (a) Any reference in a heading to an request IMCO described the articles in article shall be taken to include a dispute as "parts for 'Fisher Space Pen' reference to that article incom­ (caps, barrels and magazines)". These plete or unfinished, provided articles are imported from the United States and assembled in the Federal that, as imported, the incomplete or unfinished article has the Republic of Germany. essential character of the The Oberfinanzdirektion, in its classi­ complete or finished article. It fication opinion of 15 June 1977, found shall also be taken to include a that the caps, barrels and the reference to that article complete corresponding number of magazines or finished (or falling to be came under tariff heading 98.03 A classified as complete or finished ("Fountain pens and stylograph pens and by virtue of this rule), imported pencils (including ball-point, felt-tipped unassembled or disassembled". and fibre-tipped pens and pencils") [German text: "Füllhalter, Kugel­ The last phrase of General Rule 2 (a) is schreiber, Filzschreiber und Faser­ worded in the German version as schreiber"] of the Common Customs follows: "... wenn sie zerlegt gestellt Tariff whilst the surplus magazines came wird." under tariff subheading 98.03 C II "Parts IMCO — J. Michaelis GmbH & Co., and fittings ... Other") [German text: Stuttgart, submitted samples of certain "Teile und Zubehör ... andere"] and products to the Oberfinanzdirektion were thus liable to a lower customs duty Berlin and on 25 February 1977 than was applicable to the other articles.

IMCO considered that the articles which number of parts of articles which it imported all came under subheading have not yet been assembled is 98.03 CII and therefore lodged an presented for customs clearance, it is objection (Einspruch) against the classi uncertain which parts will be fication opinion. The Oberfinanz assembled with which other parts direktion, by a decision of 14 December will be assembled with which other 1977, dismissed the objection whereupon parts to form an article?" IMCO lodged an application with the The order was received at the Court Bundesfinanzhof on 27 February 1978. Registry on 31 July 1978. By an order of 13 June 1978 the VIIth The plaintiff in the main action and Senate of the Bundesfinanzhof stayed the Commission of the European the proceedings and, under Article 177 Communities submitted written obser of the EEC Treaty, referred the vations in accordance with Article 20 of following preliminary questions to the the Protocol on the Statute of the Court Court of Justice: of Justice of the EEC.

unassembled or disassembled' under Article 20 of the Pro ['zerlegt'] article? tocol on the Statute of the If the answer to this question is in Court of Justice of the EEC the negative: 2. Must the second sentence of General The plaintiff in the main action submitted the following observations on the three Rule 2 (a) of the Common Customs questions submitted by the Bundes Tariff be interpreted as meaning finanzhof. that, in addition to articles which are

The General Rules only apply however in so far as the Tariff contains a special subheading for tariff headings and Section and Chapter notes do not the components of disassembled goods otherwise provide". that heading must take precedence, as a 2 — Translator's note: Since the words "unassembled or disassembled" in the English version are represented lex specialis, over the second sentence of by the single German word "zerlegt", which means General Rule 2 (a). primarily to dismount, disassemble or dismantle, to avoid the apparent absurdity of discussing whether Question 2 "unassembled or disassembled" can also mean The ball-point pens are assembled only "unassembled" the German word "zerlegt" is retained in this translation where appropriate. after the separate parts have been

imported into the country. Since until There is no special relationship between then the ball-point pen has not been complete articles presented disassembled assembled, it is likewise impossible to or unassembled on the one hand and concede that it constitutes a separate parts on the other. The most "disassembled" article within the that can be said is that a whole article meaning of the second sentence of disassembled has a special character in General Rule 2 (a) for the Interpretation relation to the mere separate parts of the Nomenclature of the Common inasmuch as only parts which form a Customs Tariff. whole disassembled article can be assembled to form a whole article.

articles. There is no contradiction ("zerlegt") into its constituent pans. between these two categories, which That restrictive concept, which emerges stand in a graduated relationship to each only from the German text of the second other. Where an article fulfils the sentence of General Rule 2 (a), conditions laid down in the second disregards the principle that tariff classi sentence of General Rule 2 (a) in that fication must be effected on the basis of it constitutes a complete article objective criteria. In fact it is only in very disassembled into its constituent parts it rare cases that it is possible to establish cannot be classified as separate parts and from parts whether or not they have the provisions relating to such parts are been previously assembled.

assembled. Finally, the Commission maintains that a different interpretation would also be With regard to the third question the contrary to the second sentence of Commission claims in particular that ball General Rule 1. That rule, which is an point pens which have not (yet) been expression of the principle of the lex assembled fall under subheading 98.03 A specialis, means in fact that specific rules, pursuant to the second sentence of as they may be deduced from the terms General Rule 2 (a).

JUDGMENT OF 29. 5. 1979 — CASE 165/76

assembled with which other part it is 2. The second sentence of General Rule nevertheless possible to establish clearly 2 (a) also applies to articles which the number of finished articles (ball­ have not yet been assembled. point pens) which may be produced from such parts. In that case all the conditions 3. Where separate parts are imported for the existence of a complete article, with a view to their assembly into within the meaning of the rules on classi­ complete articles the second sentence fication for tariff purposes, are fulfilled. of General Rule 2 (a) applies even though it is not yet known at the time of importation which pieces will be The Commission accordingly suggests assembled together. that the reply to the question submitted should be as follows:

III — Oral procedure 1. The second sentence of General Rule The Commission of the European 2 (a) for the Interpretation of the Communities, represented by Jean Nomenclature of the Common Amphoux, a member of its Legal Customs Tariff also applies where Department, presented oral argument at the Common Customs Tariff contains the hearing on 15 February 1979. a particular subheading for the parts which make up a complete The Advocate General delivered his article submitted unassembled or opinion at the hearing on 22 March disassembled. 1979.

Decision

1 By an order of 13 June 1978 which was received at the Court Registry on 31 July 1979, the Bundesfinanzhof submitted the following preliminary questions pursuant to Article 177 of the EEC Treaty:

2 These questions were raised in the context of a dispute concerning a binding opinion as to tariff classification (verbindliche Zolitarifauskunft), issued on the application of a German importer, the plaintiff in the main action, by the Oberfinanzdirektion Berlin, the defendant in the main action, setting out the headings of the Common Customs Tariff applicable to the articles described by the plaintiff as "parts for 'Fisher Space Pen' (caps, barrels and magazines)" which it intended to import from the United States into the Federal Republic of Germany with a view to assembling them to form ball­ point pens.

3 The file establishes that the caps and barrels, in various finishes, contain all the parts of the device and are supplied in pairs, whilst the magazines, which are of different sizes and mixed colours, and are supplied in boxes of 600 units, are intended in part to be assembled with the caps and barrels with which they are imported and in part to supplement the plaintiff's stock of refill-magazines.

4 The defendant, in its classification opinion of 15 June 1977, stated that the caps, barrels and the corresponding number of magazines came under sub­ heading 98.03 A of the Common Customs Tariff ("Fountain-pens and stylograph pens and pencils (including ball-point, felt-tipped and fibre-tipped pens and pencils)") as parts for ball-point pens. For the classification of the caps and barrels and the corresponding number of magazines intended to be assembled in the form of ball-point pens, the defendant relied on General Rule 2 (a) of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, which provides:

» The reply to the first two questions submitted by the national court must therefore be that General Rule 2 (a) for the Interpretation of the Nomenclature of the Common Customs Tariff covers articles not yet assembled as well as articles which have been disassembled and to the extent to which the parts not yet assembled allow of the assembly of a complete article they are covered by the provisions governing that article even though the Common Customs Tariff contains a specific heading for parts and fittings.

9 Question 3 is intended to settle a special difficulty arising from the fact that in a large consignment of parts of a given article which have not yet been assembled there is no correspondence between any one of such parts and any other, so that it is impossible to establish which, when put together, will ultimately form the finished article.

IMCO — MICHAELIS v OBERFINANZDIREKTION BERLIN

10 In such a situation, since standard and interchangeable parts are concerned, only those parts which may be assembled to form the finished article must be classified under the tariff heading for that article whilst any surplus must thus be covered by the concept of "parts and fittings". The reply to Question 3 must therefore be that when unassembled parts of an article are presented for customs clearance only any surplus parts not allowing of the assembly of a complete article are to be regarded as "parts and fittings" of the said article within the meaning of the Common Customs Tariff.

Cost

11 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 Bundesfinanzhof, costs are a matter for that court.

Mackenzie Stuart Pescatore Touffait

Delivered in open court in Luxembourg on 29 May 1979.

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 22 MARCH 1979 1

Mr President, incomplete or unfinished article has the Members of the Court, essential character of the complete or finished article. It shall also he taken to include a reference to that article complete or finished (or falling to be classified as 1. The German Bundesfinanzhof, by an complete or finished by virtue of this order of 13 June 1978, referred to the rule), imported unassembled or Court of Justice three preliminary disassembled". questions which are concerned in essence to clarify the meaning and scope of the second sentence of General Rule 2 (a) of In the context of a dispute between an the Rules for the Interpretation of the importer of ball-point pens and the Nomenclature of the Common Customs German customs administration the Tariff. question was raised whether a binding classification opinion issued on 15 June 1977 at the request of the importer General Rule 2 (a) is worded as follows: concerned by the Oberfinanzdirektion "Any reference in a heading to an article [Regional Finance Office] (in pursuance shall be taken to include a reference to of Article 23 (1) of the German customs that article incomplete or unfinished, law) was in conformity with that rule. provided that, as imported, the The binding opinion related to the I — Translated from the Italian.