JUDGMENT OF 16. 12. 1976 - CASE 38/76 LUMA v HAUPTZOLLAMT DUISBURG

In Case 38/76 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Düsseldorf for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate-General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and written procedure

II — Written observations submitted to the Court

Ill — Oral procedure

Law

Costs

I —. Facts and written procedure

II —. Written observations submitted to the Court

Ill —. Oral procedure

1. By an order of 9 April 1976 which was received at the Court Registry on 30 April 1976 the Finanzgericht Düsseldorf submitted to the Court of Justice under Article 177 of the EEC Treaty a question on the interpretation of heading 73.02 of the Common Customs Tariff, ferro-alloys, in order to define that heading in relation to heading 73.15 B I (b) 1 (aa)waste or scrap in ingot form of alloy steel (a heading which pertains to the ECSC Treaty).

2. It appears from the information supplied by the national court that the plaintiff in the main action has for some years imported from the United Kingdom re-melted ferrous scrap containing tungsten, in the form of lumps having a tungsten content of approximately 30 % and a cobalt content of between 5 and 10 %.

3. On 23 March 1972, the plaintiff obtained customs clearance for a consignment of re-melted scrap containing tungsten which the customs office undertaking clearance classified without carrying out a check under subheading 73.15 B I (b) 1 (aa), which is free from duty.

4. The plaintiff in the main action founds its action in particular on the fact that the ferro-alloys mentioned in heading 73.02 are manufactured from new metals or ores by technical processes ensuring that certain alloy elements are present in constant, precisely-determined proportions, whereas the product imported by the plaintiff, which was obtained through the unsophisticated process of melting together waste and scrap, is not very constant in its composition and the presence of cobalt in excess of the limit of 10 % in the consignment of goods whose tariff classification is in dispute thus constitutes a purely fortuitous circumstance.

5. Heading 73.02 merely bears the title ferro-alloys, followed by six subheadings (A to F) referring to alloys with a specific content, and a subheading G, entitled others.

6. Although heading 73.02, regarded in isolation, does not provide an explanation of the meaning of the expression ferro-alloys, Note 1 (c) to Chapter 73 shows that apart from certain other criteria which are irrelevant to the present case the classification of a product as a ferro-alloy is determined, other than by a minimum iron content, by the presence of 'certain non-ferrous metals in proportions exceeding those laid down by the note.

7. Whilst the Customs Tariff does indeed in certain cases contain references to manufacturing processes and to the use for which goods are intended it is generally preferred, in the interests of legal certainty and ease of verification, to employ criteria for classification based on the objective characteristics and properties of products which can be ascertained when customs clearance is obtained.

8. The reply to the question submitted must therefore be that heading 73.02 of the Common Customs Tariff includes lumps of melted ferrous scrap which satisfy the physical requirements laid down in Note 1 (c) to Chapter 73.

9. The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable.

On those grounds, THE COURT (Second Chamber) in answer to the question submitted to it by the Finanzgericht Düsseldorf by an order of 9 April 1976, hereby rules: