JUDGMENT OF 23. 10. 1975 — CASE 35/75 MATISA v HAUPTZOLLAMT, BERLIN

In Case 35/75 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Berlin for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Written observations submitted to the Court

III — Oral procedure

Law

Costs

I —. Facts and procedure

A —. Excavating, levelling, tamping, boring and extracting machinery for earth, minerals or ores:

B —. Pile drivers; snow ploughs, not self-propelled (including snow-plough attachments).

A —. electric railway and tramway coaches, vans and trucks (powered from an external source of electricity)

B —. other.

II —. Written observations submitted to the Court

1. In the absence of relevant Community explanatory notes, the explanatory notes provided for by the Convention on Nomenclature for the Classification of Goods in Customs Tariffs are an authoritative source for the purposes of the interpretation of the headings to the Common Customs Tariff.

2. The phrase mechanically propelled in heading 86.04 of the Common Customs Tariff must be interpreted as meaning that it covers all railway or tramway track vehicles having a means of propulsion enabling them to move from place to place over the whole of the network even if their main object is not to move other railway or tramway non-self-propelled vehicles.

III —. Oral procedure

1. By order dated 19 March 1975, which arrived at the Registry on 1 April 1975, the Finanzgericht Berlin referred two questions to the Court for a preliminary ruling on the interpretation of the Common Customs Tariff (OJ L 172, 1968).

2. As regards this latter question, the Court, in its Judgment of 8 December 1970 in Case 14/70, Bakels v Oberfinanzdirektion München, ([1970] ECR) stated:

3. The machine in question is described by the order as a vehicle running on rails intended for the maintenance of railways and used for tamping or ramming down under the sleepers the bedding materials on which the railway-tracks are laid and for straightening the railway lines; it consists of a roofed railway track chassis equipped with machinery necessary to execute the works for which it was designed, in particular for tamping boxes, each with two pairs of tampers, track lifting, track shifting and levelling devices, while the diesel engine not only drives the working machinery and propels the vehicle during its work, but also enables it to move about rapidly from place to place at speeds of up to 80 km per hour in both forward and reverse directions.

4. Heading 84.23 A II b relates to:

5. Heading 84 comes in Section XVI of the Common Customs Tariff and heading 86 in Section XVII.

6. A perusal of Chapter 86 of the Common Customs Tariff headed Railway and tramway locomotoves, rolling stock and parts thereof; railway and tramway track fixtures and fittings; traffic signalling equipment of all kinds (not electrically powered), shows an intention to bring under this chapter all railway equipment and in particular rolling stock.

7. It is therefore proper to reply to the first question that the phrase mechanically propelled in heading 86.04 of the Common Customs Tariff must be interpreted as covering self-propelled vehicles for track maintenance, equipped with one or more engines enabling the vehicle to move about from place to place rapidly on the track and quite independently.

8. 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, in so far as the parties to the main action are concerned, a step in the action before the Finanzgericht Berlin, costs are a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Finanzgericht Berlin by order dated 19 March 1975, hereby rules: