Opinion of mr advocate-general Capotorti

Mr President,

Members of the Court,

1. The preliminary question submitted to the Court in these proceedings concerns the interpretation of the expression ferro-alloys- contained in heading 73.02 of the Common Customs Tariff. The Finanzgericht Düsseldorf requests the Court to define the scope of that expression so that it can settle a dispute between a Customs Office of the Federal Republic of Germany and the company LUMA, which has its registered office in Düsseldorf.

2. Having regard to the dispute as to the facts which has given rise to the problem of interpretation now submitted to the Court as we have seen subheading 73.15 B I (b) 1 (aa) must be considered together with tariff heading 73.02.

3. The question submitted by the national court amounts to a clear choice concerning the interpretation of tariff heading 73.02: does it cover only products manufactured from new metals or ores, characterized by their constant and exact content of certain alloy elements or does it also include products obtained by melting (provided, naturally, that the substantive conditions laid down in Note 1 (c) to Chapter 73 obtain)? However, before tackling the problem in those terms I think it necessary to consider another alternative which, in view of the development of the facts in this case, seems logically to take precedence over that put forward by the national court: it is, precisely, to ascertain whether there are sufficient grounds for classifying the relevant products under heading 73.02 rather than heading 73.15, where they were previously classified.

4. We shall now consider the choice, put forward by the national court, between the two possible interpretations of the scope of heading 73.02. This choice clearly takes account of the views advanced by the undertaking Luma before the court dealing with the substance of the case; namely, from the technical point of view the imported products differ clearly from the ferro-alloys mentioned in heading 73.02. In fact, the imported products are produced merely by melting, whilst ferro-alloys are principally obtained by electrothermal or thermit processes and are moreover usually obtained from new metals and ores and produced by special techniques since they must contain particular alloy elements in constant proportions, whilst it is impossible to maintain such constant proportions when scrap, is melted because of the presence of large quantities of slag.

5. It must therefore be established whether the customs subheading in question is to be interpreted essentially on the basis of the concept and of the technical characteristics of ferro-alloys or whether precedence should be given to consideration of the composition of those alloys, within the context of the definition provided in Note 1 (c) to Chapter 73.

6. In conclusion, I suggest that the Court should reply to the request for an interpretation submitted on 30 April 1976 by the Finanzgericht Düsseldorf under Article 177 of the EEC Treaty by ruling that heading 73.02 of the Common Customs Tariff also includes lumps of melted down scrap which contains the appropriate materials, mentioned in Note 1 (c) to Chapter 73.

1 Translated from the Italian.