C-280/97

* Original language: English. 8535 Electrical apparatus for 1 — Council Regulation (EEC) No 2658/87 of 23 July 1987 switching or protecting elec­ (OJ 1987 L 256, p. 1) on the tariff and statistical nomenclature ana on the Common Customs Tariff replaced the former trical circuits, or for making Common Customs Tariff nomenclatures with the combined nomenclature established under the International Convention connections to or in electrical on the Harmonised Commodity Description and Coding circuits (for example, switches, System, which was done at Brussels on 14 June 1983 and which is known as 'the Harmonised System' (hereinafter, for convenience, the 'HS'). The 1983 Convention was approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the International Convention on the Harmonised Commodity 2 — OJ 1996 L 238, p. 1. Under Article 2, Regulation No 1734/96 Description and Coding System and of the Protocol of entered into force on 1 January 1997 and will hereinafter be Amendment thereto (OJ 1987 L 198, p. 1). referred to as 'the CN 1997'.

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fuses, lightning arresters, of heading Nos 8535, 8536 or voltage limiters, surge suppres­ 8537: sors, plugs, junction boxes), for a voltage exceeding 1 000 V:

8538 10 00 — Boards, panels, consoles, desks, cabinets and other bases for the goods of 8536 Electrical apparatus for heading No 8537, not switching or protecting elec­ equipped with their appa­ trical circuits, or for making ratus connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage 8538 90 — Other not exceeding 1 000 V:

(b) mixtures, composite goods consisting (b) Any reference in a heading to a of different materials or made up of material or substance shall be taken different components, and goods put to include a reference to mixtures or up in sets for retail sale, which cannot combinations of that material or be classified by reference to 3 (a), substance with other materials or shall be classified as if they consisted substances. Any reference to goods of the material or component which of a given material or substance shall gives them their essential character be taken to include a reference to in so far as this criterion is appli­ goods consisting wholly or partly of cable; such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

(c) when goods cannot be classified by reference to 3 (a) or (b), they 3. When by application of rule 2 (b) or for shall be classified under the heading any other reason, goods are prima facie which occurs last in numerical order classifiable under two or more headings, among those which equally merit classification shall be effected as follows: consideration. "

(a) the heading which provides the most specific description shall be preferred to headings providing a more general ... .' description. However, when two or

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4. Note (III)(C) of the Explanatory Notes to General Rule 2(a) is concerned, Notes (I) and the Harmonised Commodity Description and (II) are relevant. They are worded as follows: Coding System of the Customs Cooperation 3 Council (hereinafter 'the HSENs') deals spe­ cifically with the notion of 'junction boxes', 4 to which heading No 8536 refers. It pro­ vides as follows:

3 — This is the description of the Customs Cooperation Council ('CCC') Explanatory Notes used by the Commission in its 1994 Explanatory Notes to the combined nomenclature of the European Communities (OJ 1994 C 342). According to A — Facts and questions referred the Court's consistent case-law (see, for instance, Case 183/73 Osram v Oberfinanzdirektion [1974] ECR 477, at para- graph 12), the Commission's Explanatory Notes, which con- stitute an important factor in interpretation, cannot modify the text of the tariff.It should be noted, however, that none of the Commission Notes to heading No 8536 sheds any additional light on the notion of a 'junction box'. 4 — The HSENs referred to are those contained in the second edi- tion of notes issued in 1996. Although the CCC adopted the working name 'World Customs Organisation' in June 1994, its official name remains the 'Customs Cooperation Council'. 6. It appears from the case-file that the plain­ The CCC issues HSENs only in English and French. tiff in the main proceedings (ROSE Elektro-

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7. ROSE sought to have the article classified under subheading 8536 90 85 of the CN . In support of its application it pointed out that 9. ROSE appealed on 5 August 1996 to the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, hereinafter 'the national court'),

5 — OJ 1993 L 253, p. 1. Under Article 5(1) a 'binding tariff infor- mation' is desenbed as referring to 'tariff information binding on the administrations of ail Community Member States when the conditions laid down in Articles 6 and 7 are fulfilled'. 7 — This initial binding tariff information was later withdrawn by 6 — The description actually used in the original German version the Arnhem office, under instructions from Directie Douane, of the order for reference is 'Schaltverbindungskasten'. Rotterdam (Principal Customs Office, Rotterdam), which Although 'Schalt' would normally connote the idea of 'switch- issued a new binding tariff information on 25 July 1997 clas- ing' in English, since the present case turns on the 'connec- sifying the article under subheading 7616 99 10. According to tion' ('Verbindung') aspect of the box, the English and French the observations submitted to the Court by the defendant tax translation (respectively, 'junction box' and 'boîte de jonc- office, it was apprised of this new information on 16 Septem- tion') would not appear to be inappropriate. ber 1997.

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which has concisely described the arguments pretation of the Combined Nomencla­ advanced before it and the doubts which led ture, under heading No 8536?' it to refer the following questions to the 8 Court:

meaning that an article described as a In its view, heading No 8536 does not require junction box and consisting of a rectan­ a circuit to be closed or capable of being gular container with lid of coated die- closed in the technical sense by the relevant cast aluminium (aluminium/silicon alloy article, but, instead, the decisive criterion is with aluminium content predominant by whether a device for an electrical connection weight) with four steel connecting bolts is present. The article at issue contains such a and four earthing bolts of copper-plated device in that it provides for current to be steel (packed loose in the article and yet carried to earth in the event of a fault. In to be inserted into threaded holes pro­ accordance with General Rule 2(a), the article vided for that purpose) is to be classified may be regarded as having the essential char­ under heading No 8538? acter of a junction box since all that is required for the production of a complete junction box is the addition of 'series terminals' or 'termi­ nal strips' as well as the boring of a number of corresponding holes for whatever indus­ trial use is envisaged.

2. If the answer to Question 1 is negative: Is the Common Customs Tariff (Com­ bined Nomenclature 1997) to be inter­ preted as meaning that such an article is to be classified, applying the first sen­ tence of General Rule 2(a) for the inter­ 11. The defendant submitted that it follows from Note (III)(C) of the HSENs to heading

8 — It should be noted that, notwithstanding ROSE's allegation that the binding tariff information issued initially by the 9 — The Court has not been informed of the version of the CN Arnhem office remained valid, the national court decided that relied upon by ROSE in its application in the main proceed- it was unnecessary to refer any question regarding the scope ings. It may, perhaps, have been the 1996 version, but this is of that information. Since, in any event, a binding tariff infor- irrelevant because, as the Commission has observed, there are mation is not binding on the Court, that issue will not be no material differences between the 1996 and 1997 versions addressed. of the CN .

12. The national court regards the interpreta­ 13. Written observations only were submitted tion of heading Nos 8536 and 8538, in respect by ROSE, the defendant and the Commis­ of junction boxes, put forward by the defen­ sion. In the absence of any request on their dant as 'uncertain'. It states that there is behalf, no oral hearing was held. agreement that the article at issue in this case is incomplete. However, the national court does not believe that it may be classified under heading No 8538 as a part suitable for use with an apparatus falling within heading No 8536, since, apart from the missing termi­ nals, the article has the external appearance of a junction box. Next, it takes the view that the article may, pursuant to General Rule 2(a), 14. ROSE takes issue with the notion of be regarded as having the essential character 'electrical circuit' as discussed by the national of a junction box within heading No 8536. court. In its view, it is fallacious to assume Nevertheless, it regards the wording of that that even a junction box fitted with terminals heading to be uncertain in so far as the alleged will automatically connect or cut a current necessity of the presence of connecting devices unless and until it is connected to an electrical for joining electrical circuits is concerned. apparatus. Moreover, although it is true that Having regard to the HSENs concerning both an earthing connection does not permanently General Rule 2(a) and heading No 8536, the conduct electric current, the same is also true of various other types of conductors, such as photoelectric cells, alarm or lighting appa­ ratus. Accordingly, ROSE concludes that an 10 — For the purposes of summarising both the defendant's posi- tion and views expressed by the national court, I shall replace earthing connection, precisely because it per­ all their references to the unofficial German version of the mits a current to run to earth when required, explanatory notes — issued by the German Ministry of Finance — with references to the official 1996 HSENs. constitutes an electrical connection.

IV — Opinion

16. The Commission submits, initially in respect of the first question referred, that the article in question cannot manifestly be 18. The Court has recently on several occa­ regarded as constituting a part for apparatus sions restated its approach to customs clas- within either heading No 8535 or 8537, since the former heading concerns equipment for a voltage exceeding 1 000 V while the latter 11 — In paragraph 24 of its observations, the Commission by only concerns electric-distribution apparatus. oversight refers to a non-existent CN subheading 7616 19 10. However, it is clear from its description of the content of Since no one has argued otherwise, I shall not that supposed subheading, namely 'andere Waren aus Alu- minium, gegossen' ('other articles of aluminium, cast'), that consider these headings further. a reference to subheading 7616 99 10 is intended.

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ROSE ELEKTROTECHNIK v OBERFINANZDIREKTION KÖLN

21. Section Note 2(a) to Section XVI of the CN provides that 'parts which are goods 19. Heading No 7616 falls within Chapter 76 included in any of the headings of Chap­ of the CN , which, as one of the chapters of ters 84 or 85 ... are in all cases to be classified Section XV concerning 'Base Metals and Arti­ in their respective headings', while under Sec­ cles of Base Metal', itself covers 'Aluminium tion Note 2(b) of the same section, 'other and articles thereof'. Section Note 1(f) to Sec­ parts, if suitable for use solely or principally tion XV of the CN excludes from its ambit with a particular kind of machine,... are to be articles covered by Section XVI, which, in classified with the machines of that kind or in heading No ... 8538 as appropriate'. This is confirmed by the wording of heading No 8538 itself, which repeats the criterion that the 12 — See, for instance, Case C-67/95 Rank Xerox [1997] ECR I-5401 and Case C-105/96 Codiaciv Conselho Técnico parts must be suitable for use solely or prin­ Aduaneiro [1997] ECR I-3465, at paragraph 17 of both judg- cipally with the apparatus of, inter alia, ments. 13 — Ibid., at paragraph 17. heading No 8536. Moreover, the relevant

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ROSE ELEKTROTECHNIK v OBERFINANZDIREKTION KÖLN

of connecting an electrical circuit on a per­ it is equally clear that individual tariff head­ manent (as opposed to a merely temporary) ings must be construed in the light of the rel­ basis, the Court would not have to assess evant HSENs. According to the third recital whether, in accordance with General Rule 2(a), in the preamble to Regulation No 2658/87, an article, which merely permits the occa­ the combined nomenclature 'must be estab­ sional earthing of electric current and, more­ lished on the basis of the harmonised system', over, whose earthing bolts come packed which had been laid down by the 1983 Con­ loosely, could still be regarded as possessing vention. Article 3(1 )(a)(ii) of the 1983 Con­ the essential characteristics of a complete junc­ vention, which was approved on behalf of tion box. If regard were merely to be made to the Community by Council Decision the wording of the heading, I would have 87/369/EEC, obliges '[Each Contracting little hesitation in recommending that such an Party] to apply the General Rules for the article, which essentially serves to protect interpretation of the Harmonised System electrical circuits, should be covered. The text and all the Section, Chapter and Subheading of heading No 8536 (quoted in paragraph 2 Notes, and shall not modify the scope of the above) lends itself perfectly to a disjunctive Sections, Chapters, headings or subheadings 15 interpretation: the examples listed in paren­ of the Harmonised System'. Accordingly, it thesis, which include junction boxes, may is not possible to construe the ambit of the each separately come within the description: notion of a 'junction box' under heading 'electrical apparatus for switching or pro­ No 8536 without having regard to the HSENs. tecting electrical circuits' (emphasis added) and that 'for making connections to or in 14 electrical circuits'. A junction box, such as that in issue, is designed for the protection of electrical circuits. However, a different inter­ pretation emerges from perusal of the rel­ evant HSENs .

fundamental objective of such a box is that of 16 of its impartiality. Furthermore, the HSENs, electrical connection. The purpose of pro­ in alluding to the presence of fitted terminals tecting electrical circuits is not sufficient. or other devices for connecting together elec­ Accordingly, it is necessary to determine trical wires, clearly indicate that, in so far as whether the sort of connection envisaged is heading No 8536 is concerned, a reputed junc­ only that of completing an electrical circuit or tion box must be capable of connecting or whether it also refers to earthing connections. completing an electrical circuit. Indeed, the exclusion of purely protective boxes, namely those that are effectively dependent on or used in connection with a pre-existing joint, from the notion of a 'junction box' under­ mines ROSE's contention that there can be no 'independent joint' for the purposes of the HSENs without the presence of an earth connection. Finally, ROSE's reference to the existence of everyday electrical circuits, such as those used in alarm and lighting systems, which serve the purpose of allowing electric current to pass when required, is not con­ vincing. While such circuits do not operate continuously, in order to be functional they must, when activated (for instance when a light is turned on), be capable of being con­ nected until such time as they are subse­ 27. An ordinary reading of the wording of quently de-activated. the HSENs would not admit of classifying an article designed to serve a predominantly pro­ tective function by permitting, when required, a current to pass to earth as capable of con­ necting an electrical circuit. I agree with the defendant that this interpretation finds sup­ port in the view of the Zentralverband Elektrotechnik- und Elektronikindustrie e. V. (Professional Association of the (Ger­ man) Electronic and Electrotechnical Industry; hereinafter 'the ZEE'), expressed in a letter of 4 August 1995 in response to a request from the defendant and alluded to by the national 28. I am therefore satisfied that the notion of court, to the effect that the connection of an a 'junction box' referred to in heading No 8536 electrical circuit to earth — such as through must, when read in the light of the HSENs , using the copper-plated bolts and threaded holes present in the article at issue — cannot be regarded as closing or connecting an elec­ 16 — There is nothing in the ordinary dictionary definitions of a trical circuit. Since the HSENs refer to a junction box that would cast doubt on the veracity of the technical concept (to wit, the connection of ZEE's view. According to The Concise Oxford English Dic- tionary, (Eighth ed., 1990), a junction box is 'a box con- circuits), the view of an association such as taining a junction of electric cables etc.', while, according to the 1980 version of the Merriam-Webster Third New Inter- the ZEE may properly be taken into account national Dictionary of the English Language Unabridged, it refers to 'a box (as of metal) for enclosing the junction of by the national court, provided it is satisfied electric wires and cables'.

be interpreted as comprising only boxes which 30. The defendant and the Commission con­ can, when fitted, connect electrical circuits. tend that, since the essence of a 'junction box' Consequently, it does not extend to articles within heading No 8536 concerns the con­ which, when fitted, are merely capable of nection of electrical circuits, the article at issue earthing an otherwise autonomously con­ may not be regarded as having the essential nected electrical circuit. character of a complete or finished junction box under General Rule 2(a). I do not agree. As the national court rightly points out, Note (II) of the HSENs to that General Rule refers to the notion of a 'blank'. Since neither heading No 8536 nor any other heading refers to blank or incomplete junction boxes, the Note is prima facie applicable. The kernel of the definition of a 'blank' (quoted in para­ graph 5 above) is that it refers to an incom­ plete article which has 'the approximate shape or outline of the finished article' and which can, effectively, only be used 'for completion into the relevant finished article ...'. Subject to the right of the national court to make all appropriate findings of fact in this respect, it would appear that an article of the type imported by ROSE — an example of which was furnished with the case-file supplied by the national court — has the approximate 29. However, the mere fact that an article shape or outline of a finished junction box. such as that at issue in the present case cannot Moreover, it does not seem that the article be regarded as falling within heading No 8536 could, at least without very significant alter­ does not provide a complete answer to the ations, be used otherwise than as a junction second question referred by the national court. box. In any event there is no evidence, let The national court has also referred to Gen­ alone even a suggestion in the defendant's eral Rule 2(a). In essence, it wishes to know observations before the Court, that the articles whether an article like that imported by the imported by the plaintiff are ultimately used plaintiff may be regarded, in accordance with other than as junction boxes. Furthermore, that Rule, as possessing the 'essential char­ the mere fact that the earthing bolts are pro­ vided loosely rather than fitted cannot be acter' of a junction box. In other words, does decisive. All junction boxes must, by their the fact that the article imported by ROSE nature, be fitted, whether it be to a new or merely requires terminals or other connecting existing electrical circuit. That a purchaser of devices — which ROSE also supplies to its an article such as that imported by ROSE customers — to be fitted thereto in order to has, in addition to fitting a terminal or other render it capable of functioning as a junction connecting device, also to fit the earthing box envisaged by heading No 8536 mean that bolts before ultimately using it to connect an it may be regarded as an incomplete junction electrical circuit cannot, in my view, affect the box within that heading by virtue of General appropriate customs classification. Rule 2(a)?

33. The relevant HSENs are Notes (VII) and (VIII) to General Rule 3. They provide first that the application of the essential-character criterion is not absolute and, secondly, that the factor which determines that character 32. If the Court were to disagree with the will vary from case to case. Thus, although above recommendation and, for instance, con­ the Commission is correct in viewing the strue the notion of an incomplete or blank weight of the aluminium component as a junction box as requiring that the terminal or potentially relevant factor, its approach fails other connecting devices be fitted, I would to take account of 'the role of the constituent not recommend that it accept the alternative material in relation to the use of the goods' classification proposed by the defendant and (see Note (VIII)). Subject to the right of the the Commission. Since the article at issue national court to find otherwise, there seems consists of a number of different materials little doubt that articles of the type at issue in (including aluminium and silicon, a plastic this case are used either as protective junction insulation seal and copper-plated steel earthing boxes or, on the fitting of apposite connecting bolts), General Rule 2(b) is applicable to the devices, as electrical circuit-connection junc­ extent that it indicates that the article should tion boxes. The use of aluminium as the prin­ be classified in accordance with General cipal component in the box part of the article Rule 3. I agree with the Commission's sub­ would, in the absence of a finding to that mission that General Rule 3(a) is inapplicable effect by the national court, hardly seem fun­ because more than one heading refers to a damental. By analogy with the criterion devel­ part only of the materials or substances con­ oped by the Court in Sportex in respect of tained in the article; in other words the silicon, General Rule 3(b), the article at issue would copper, steel and plastic materials cannot be retain its essential character as an incomplete classified within Chapter 76 of the CN as if form of junction box regardless of whether a they were of aluminium content. It follows predominantly aluminium alloy were used in 17 that General Rule 3(b) must next be applied. the manufacture of the article. The Commission contends, subject to verifi­ cation by the national court, that, since alu­ minium is the predominant substance, it is that which gives the article its essential char­ 17 — See paragraph 8 of the judgment in Case 253/87 Sportex v Oberfinanzdirektion Hamburg [1988] ECR 3351.

(2) Annex I to Commission Regulation ( EC ) No 1734 / 96 should be interpreted as meaning that such an article is to be classified, in accordance with the first sentence of General Rule 2(a) for the interpretation of the Combined Nomen­ clature , under subheading 8536 90 85.

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