JUDGMENT OF 22. 11. 1973 — CASE 128/73 PAST v HAUPTZOLLAMT FREIBURG

In Case 128/73 Reference to the Court under Article 177 of the EEC Treaty, by the Baden-Württemberg Finanzgericht for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore and A. J. Mackenzie Stuart (Rapporteur), Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Grounds of judgment

Costs

I —. Facts and procedure

1. The issue in the main action is the classification to be given to sheep and lamb skin leather imported from Spain into the Federal Republic of Germany on 20 August 1971. The matter concerns chrome-tanned skins to which a certain quantity of fat had been added.

2. Sheep and lamb skin leather comes under tariff heading 41.03 of the Common Customs Tariff which is sub-divided as follows:

3. For subheading 41.03 B I the Explanatory Notes of the Common Customs Tariff provide:

4. The plaintiff declared the goods as not further prepared than tanned (41.03 B I), whereas the Customs Office Freiburg, classified them under subheading 41.03 B II.

5. The Committee on Nomenclature of the Common Customs Tariff has given the following opinion during the session of 18/22 September 1972:

6. The Finanzgericht Baden-Württemberg, which was called upon to adjudicate on the plaintiff's appeal against the defendant's decision, decided by Order dated 28 March 1973 to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

7. The Order of reference was registered at the Court on 20 April 1973.

8. On the report of the Judge-Rapporteur, after hearing the Advocate-General, the Court decided to proceed without any preparatory inquiry.

9. The plaintiff and the Commission of the European Communities have submitted written observations'.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. By order dated 28 March 1973, filed at the Registry on 20 April 1973, the Finanzgericht of Baden-Württemberg referred to the Court for a preliminary ruling the interpretation of subheadings 41.03 B I, sheep and lamb skin leather not further prepared than tanned, and 41.03 B II, other, of the Common Customs Tariff.

2. More precisely the question is whether chrome-tanned skin is no longer a skin not further prepared than tanned when fat has been added in tanning.

3. The decisive criterion for the customs classification of goods must generally be looked for in the objective characteristics and properties of products.

4. The Notes specify that hides and skins which have had further treatment going beyond tanning, aimed at rendering them ready for use by, in particular, making them more supple, come under subheading 41.03 B II.

5. Whilst, according to the Notes, the addition of fat normally comes within the framework of processes which follow tanning, it is conceivable that, for technical reasons, in particular to avoid deterioration of the fibres resulting from a dried skin, the addition of fat to the tanning liquids is indispensable in order to proceed to the second phase of the treatment in the importing country.

6. Consequently while the fact that a hide or skin has received an addition of fat will normally involve its classification under subheading 41.03 B II, the competent national authorities must judge whether the addition in question constitutes an essential process in tanning by reason of its function of preserving the leather without rendering it ready for use.

7. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 950/68 relating to the Common Customs Tariff; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the question referred to it by the Finanzgericht Baden-Württemberg by order of that court dated 28 March 1973, hereby rules: