C-816/79

HAUPTZOLLAMT [Principal Customs Office] BREMEN-OST [Bremen-East],

on the interpretation of subheadings 56.01 A and 59.01 B I of the Common Customs Tariff,

T H E COURT (Second Chamber)

. composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

The facts of the case, the course of the charged Mecke the sum of DM 4 283.62, procedure and the observations being DM 1 658 for customs duties and submitted under Article 20 of the DM 2 625.62 for import turnover tax. Protocol on the Statute of the Court of Justice of the EEC may be summarized An objection lodged by Mecke on as follows: 17 August 1978 against that assessment was rejected by a decision of the Haupt- zollamt Bremen-Ost on 26 September 1978. I — Facts and written procedure On 24 October 1978 Mecke appealed against that decision to the Finanzgericht On 4 August 1978 Klaus Mecke & Co, (Finance Court) Bremen. an import-export business having its registered office in Bremen, applied to the Zollamt (customs office) Bremen- Its main argument is that the dispute has Neustädter Hafen for clearance into free arisen because as a result of the advance circulation of a consignment of 100 bales of technology in the preparation of of goods from the United States of textile fibres a new product has appeared America, which it described in the recently on the market, the short-cut customs declaration as 6 mm flock and fibre, which is not expressly covered by dust of man-made fibres, falling within the Common Customs Tariff. Such fibre subheading 59.01 B I of the Common cannot be classified in subheading Customs Tariff and therefore subject to 56.01 A, as the term "textile fibres" conventional customs duty at a rate of implies that they are suitable for sub- 4%. sequent spinning; but the fibres imported by Mecke are too short to be spun on the machines currently used by the After carrying out a random sampling textile industry. According to the Ex- check the customs office concluded that planatory Notes to heading 56.01 of the goods which had been imported by the Customs Co-operation Council Mecke were in fact 6 to 7 mm cuttings Nomenclature, textile fibres are usually of synthetic textile fibres (polyester), between 25 and 180 mm in length, the falling within subheading 56.01 A of the ideal length for spinning by machine; the Common Customs Tariff as synthetic textile fibre products referred to in textile fibres (discontinuous), not carded, Chapter 56 are, moreover, all worked by combed or otherwise prepared for spinning such fibres. spinning, in respect of which a conventional customs duty applies at a rate of 9%. The goods in question are for use in the manufacture of bonded fibre fabrics by the wet process, products which fall By a notice of assessment of 8 August within Chapter 59 of the Common 1978 the Hauptzollamt (Principal Customs Tariff; the basic product must Customs Office) Bremen-Ost therefore therefore also fall within Chapter 59.

The Hauptzollamt Bremen-Ost contends By an order of its Second Chamber of that the suitability of synthetic textile 1 November 1979 the Finanzgericht fibres for spinning is a criterion without decided to stay the proceedings, any relevance whatsoever to tariff classi- pursuant to Article 177 of the EEC fication; the deciding factor lies in the Treaty, until a preliminary ruling had objective physical characteristics of the been obtained from the Court of Justice product. on the following question: Do cuttings of synthetic textile fibres The concept of "textile fibres" as used in (polyester) of 6 to 7 mm in length fall the tariff classification applies to man- within subheading 56.01 A of the made fibres produced by spinning; that Common Customs Tariff as synthetic view is supported by the Explanatory textile fibres (discontinuous), not carded, Notes to the Customs Co-operation combed or otherwise prepared for Council Nomenclature on tariff heading spinning, or within subheading 59.01 B I 56.01. The products referred to in as flock and dust of man-made fibres? Chapters 50 to 57 of the Common Customs Tariff are listed according to The order of the Finanzgericht Bremen the kind of material of which they are was received at the Court Registry on made. Some raw fibre and most waste is 17 December 1979. not suitable for spinning; but they are nevertheless classified under the In accordance with Article 20 of the corresponding headings in the chapter. Protocol on the Statute of the Court of Moreover, the textile fibres used in Justice of the EEC written observations manufacturing the bonded fibre fabrics were submitted on 11 February and of Chapter 59 are of varying lengths (6 3 March 1980 by Klaus Mecke & Co, to 60 mm). the plaintiff in the main action, and on 5 March 1980 by the Commission of the In order to be considered as "flock and European Communities, represented by dust" within the meaning of subheading its Legal Adviser, Manfred Beschel. 59.01 B of the Common Customs Tariff, the textile fibres must be short enough to After hearing the report of the Judge- have the characteristic of dust. The Rapporteur and the views of the Explanatory Notes to the Customs Co- Advocate General the Court decided to operation Council Nomenclature on open the oral procedure without any tariff heading 59.01 refer to "very short preparatory inquiry.

By an order of 7 May 1980 under Article scheme of the Common Customs Tariff 95 (1) and (2) of the Rules of Procedure itself; recourse may also be had to the the Court decided to assign the case to Explanatory Notes and to opinions the Second Chamber. relating to the Common Customs Tariff and to the Customs Co-operation Council Nomenclature, which are important factors in interpretation, but II — Written observations sub- the sole purpose of which is to explain or mitted to the Court to define, without in any way modifying the wording of the Common Customs

products in question should be classified under heading 59.01 of the Common Customs Tariff. Such a classification is That interpretation is borne out by the principally based on the assertion that "legal definition" in the other language tariff heading 56.01 concerns textile versions of subheading 56.01 A and in fibres which, according to modern Explanatory Note 1 on Chapter 51; in techniques, may be converted into yarn particular, the word "discontinuous" by spinning and are constituted, within refers to the condition of "fibres". the meaning of the Customs Tariff, by flock and all short cuttings of synthetic The classification criteria based on fibres. chemical composition, the manufacturing process and the external appearance of The Commission points out that the the fibres constitute at the same time an question of interpretation which has been exhaustive list of the features decisive for submitted to the Court seeks a definition tariff classification of synthetic textile of the meaning, in the context of tariff fibres. The presence of all of them is

It would be wrong to wording, the aims and the general deduce from the words "textile fibres"

(b) Products falling within subheading The Common Customs Tariff does not 56.01 A are indistinguishable, as regards define the concept of flock arid dust. It essential features and manufacturing does, however, refer to the process of process, from those falling within sub- shearing and describes the particles of heading 59.01 B I, so that the essential textile material produced by such a question is whether products such as process; the German wording of the those which form the subject-matter of subheading further requires that the the main action should, for the purposes goods have the appearance of dust. That of tariff classification, still be considered is the primary classification test: it relies as fibres or as flock and dust on the basis on the objective state, and not on the of their external appearance. and, more manufacturing process, which is difficult, particularly, their length. indeed impossible, to check. The products falling within subheading 59.01 B I must be a particular kind of Textile filaments are • continuous; matter, synthetic textile material, in the synthetic fibres, on the other hand, are form of dust. characterized by their restricted lengths and by large differences in length. They are normally produced by cutting In general, the term "dust" applies to continuous filament tow and t h e desired particles which are very small, powdery lengths can be obtained merely· by regu- or floury, and impossible to discern with lating the cut; the length is fixed the naked eye: reference works define according to requirements, the length dust as being constituted by fine, solid most frequently found varying between 2 particles, of varying shape, structure and and 20 cm. density, or of solid matter which has been pulverized. Fibres of between 6 and 7 mm in length are also covered by the concept of "textile fibres" used in the Common The Explanatory Notes to the Customs Customs Tariff. In stating that man- Co-operation Council Nomenclature made fibres are usually between 2.5 and concerning heading 59.01 give some 18 cm in length, the Explanatory Notes explanation of the concept of dust. The to the Customs Co-operation Council main point to be noted in that expla- Nomenclature on heading 56.01 are nation is that textile flock consists of referring to the kind of textile fibres "very short" fibres which may be most commonly found; they do not produced by the cutting of filaments or

fibres into "very short lengths"; that by its owner Klaus Mecke, and the emphasizes in a generic fashion the Commission of the European powder-like character of the product. Communities represented by Manfred Beschel, presented their oral observations and their replies to questions asked by The expression "generally up to 2 mm the Court at the hearing on 12 June long" seems to indicate that longer fibres 1980. might also be considered as flock and dust; a general conclusion to that effect would be incorrect and incompatible with the wording of the Common Mecke, relying on additional expert Customs Tariff. Flock and dust is opinions given by the Industrieverband obtained during various finishing Vliesstoffe [Industrial Association for operations; it is thus inevitable that the Bonded Fibre Fabrics], Wiesbaden, the particles which constitute it are of Staatliches Prüfamt für Textilstoffe uneven lengths, the average being not [National Centre for the Examination of more than ("generally") 2 mm. It is Textile Materials], and the Öffentliche possible for some fibres to be longer Prüfstelle und Textilinstitut für Vertrags- without that affecting the powder-like forschung [Public Inspectorate and character of the goods as a whole. Textile Institute for Research under However, the situation would be quite Contract], Krefeld, continued to different if all the fibres were cut to a maintain that the disputed products length which regularly exceeded 2 mm; unquestionably fall within heading 59.01 such goods would no longer have the of the Common Customs Tariff. characteristic of dust required by the Common Customs Tariff. Mecke claims that on the wording of the Common Customs Tariff, the definitions it gives, and the Explanatory Notes, (d) Textile fibres which have been cut Chapter 56 does not cover man-made regularly to a length of 6 or 7 mm can textile fibres which are not suitable for no longer be considered as flock and being worked by spinning and heading dust within the meaning of the Common 59.01 is the appropriate classification, as Customs Tariff and do not therefore fall flock and dust, of the product obtained within subheading 59.01 B I. by cutting into very short lengths textile filaments or fibres, which are not suitable The reply to the question which has been for spinning and the nature of which has referred to the Court by the Finanz- clearly been altered from that of textile gericht Bremen should therefore be: fibres.

2 According to the order making the reference the plaintiff in the main action imported in August 1978 a consignment of cutting of man-made textile fibres in polyester, cut to a length of between 6 and 7 mm, from the United States of America. The importer declared the goods as "flock and dust of man- made fibres", as described in subheading 59.01 B I of the Customs Tariff, subject to conventional customs duty at a rate of 4%.

3 The customs office, however, considered the goods to be "synthetic textile fibres" falling within subheading 56.01 A, on which conventional customs duty is levied at a rate of 9%. In the opinion of the customs administration subheading 59.01 B I adopted by the plaintiff refers exclusively to extremely short cuttings of textile fibres which are of a dust-like consistency, such as are normally obtained from fabric finishing operations and, in particular, from the shearing of velvets. According to the interpretative notes of the Customs Co-operation Council, that subheading is not applicable to cuttings exceeding 2 mm in length, even when they are produced by the cutting of textile filaments or fibres. That being so, the customs administration considers that there is no choice but to classify the goods in question under subheading 56.01 A.

MECKE v HAUPTZOLLAMT BREMEN-OST

4 Following the rejection by the Principal Customs Office of the objection lodged by the plaintiff, the latter brought an action before the Finanzgericht, which has referred a question to the Court for a preliminary ruling in order to enable it to determine the respective scope of the two customs headings adopted by the parties. That question is worded as follows :

7 A comparison of the various language versions of the subheadings in the Common Customs Tariff to which reference has been made reveals that the difficulties in interpretation raised before the national court result mainly from the peculiarities of the German language version of the tariff. The subheadings must therefore be considered in all the official language versions simultaneously, and use must be made at the same time of the information to

JUDGMENT OF 16. 10. 1980 — CASE 816/79

be found in the Explanatory Notes of the Customs Co-operation Council on both the subheadings in question.

Interpretation of subheading 56.01 A

8 Subheading 56.01 A reads in the six language versions of the tariff as follows :

— German: Spinnfasern;

10 It is noteworthy that the Explanatory Notes of the Customs Co-operation Council have further defined heading 56.01 in the following terms:

MECKE v HAUPTZOLLAMT BREMEN-OST

"The length into which the fibres are cut is usually between 2.5 cm and 18 cm and varies according to the particular man-made fibre concerned, the type of yarn to be manufactured and the nature of any other textile fibres with which it is to be mixed."

11 That explanation reveals that in general textile fibres having a length of less than 2.5 cm are not to be considered as textile fibres within the meaning of subheading 56.01 A. That means that, according to the Explanatory Notes, that subheading apparently does not apply to fibres the nature of which doubtless corresponds to the concept of the "textile fibre", but which remain appreciably below the minimum length referred to in the Explanatory Notes. A classification under that subheading is therefore out of the question unless it proves impossible to find an appropriate subheading which is more specific.

Tariff subheading 59.01 B I

12 Subheading 59.01 B I reads in the six language versions of the tariff as follows :

1 3 The six language versions for this subheading are scarcely consistent from the linguistic point of view. Four of them, the German, French, Italian and Dutch versions, refer to a single concept, emphasizing the shearing process, whereas the English and Danish versions have two concepts which are juxtaposed, making no reference to that process and based exclusively on the external appearance of the product. Among all these the German language

JUDGMENT OF 16. 10. 1980 — CASE 816/79

version stands alone in combining in a single compound word the shearing process and the powdery appearance of the product.

1 4 This comparative linguistic analysis shows clearly that subheading 59.01 B I is not unequivocal and that it needs to be defined in order to avoid discre- pancies between interpretations in the different Member States, depending on the version which is used.

15 The scope of that subheading has in fact been further defined in the Expla- natory Notes of the Customs Co-operation Council in the following terms :

"Textile flock consists of very short fibres . . . obtained as waste during various finishing operations and, in particular, from the shearing of velvets. It is also produced by cutting textile filaments or fibres into very short lengths (generally up to 2 mm long). Textile dust is obtained as waste, or by grinding textile fibres to a powder."

require that in every case the product has the appearance of dust. Such an interpretation would exclude one of the three categories referred to in the Explanatory Notes. The latter show, in fact, that subheading 59.01 B I can apply equally to textile cuttings of a regular length, such as those which form the subject-matter of this dispute.

18 In those circumstances the only point on which doubt may occur in the Explanatory Notes on subheading 59.01 B I lies in the definition, added in those notes to the phrase "very short length", to the effect that that is to mean fibres which do not, generally, exceed a length of 2 mm.

OPINION OF MR MAYRAS — CASE 816/79

On those grounds,

T H E COURT (Second Chamber)

in answer to the question referred to it by the Finanzgericht Bremen by an order of 1 November 1979, hereby rules:

Cuttings of synthetic textile fibres having a length of between 6 and 7 mm fall within subheading 59.01 B I of the Common Customs Tariff as flock and dust of man-made fibres.

Pescatore Touffait Due