JUDGMENT OF 16. 3. 1978 — CASE 104/77 OEHLSCHLÄGER v HAUPTZOLLAMT EMMERICH

In Case 104/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: G. Bosco, President, A. M. Donner and A. O'Keeffe, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

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

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. In August 1970 Oehlschläger imported into the Federal Republic of Germany two consignments of goods which it described as aluminium milling waste and filings and it applied for them to be cleared through customs into free circulation. In the consignment notes, the goods were described as aluminium pellets.

2. A copy of the order making the reference was received at the Court Registry on 22 August 1977.

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

III —. Oral procedure

1. By an order of 27 July 1977 which was received at the Court on 22 August 1977, the Bundesfinanzhof under Article 177 of the EEC Treaty asked questions concerning the interpretation of certain provisions of the Common Customs Tariff relating to unwrought aluminium and aluminium waste and scrap.

2. Those questions were raised in the context of a dispute over the tariff classification of goods described by the importer as aluminium milling waste and filings. According to the details supplied by the national court in its order making the reference, the goods at issue consist of light grey, shining metal grains, which are obtained from used aluminium cables and from remnants of cables cut into short pieces in a shredder and then comminuted into irregularly-shaped grains by rotating cutters, the constituent parts of the resulting mixture then being separated and isolated from one another. After obtaining an opinion from the Zolltechnische Prufungs- und Lehranstalt (Customs Technical Testing and Research Institute) Cologne the German customs authorities classified the said goods under subheading 76.01 A of the Common Customs Tariff (unwrought aluminium) bearing autonomous duty of 10 %. The importer challenged that classification, arguing that the imported goods came under tariff subheading 76.01 B II (aluminium scrap) and are therefore free of duty.

3. In its oral observations, the plaintiff in the main action stated that the description of the goods given by the national court in its order making the reference is incorrect.

4. Under Article 177 of the Treaty, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter is empowered only to give rulings on the interpretation or the validity of a Community provision on the basis of the facts which the national court puts before it.

5. In its first question, the Bundesfinanzhof asks the Court whether tariff subheading 76.01 B of the Common Customs Tariff must be interpreted as including goods having the characteristics defined above.

6. Subheading 76.01 B, Chapter 76, Section XV of the Common Customs Tariff refers to aluminium waste and scrap.

7. Accordingly, classification under that subheading being excluded, it falls to be considered, under the second question asked by the national court, whether the said goods can be classified under tariff subheading 76.01 A, which relates to unwrought aluminium.

8. It emerges from the structure of Chapter 76, headings 76.02 to 76.05 of which refer to semi-finished products and headings 76.06 to 76.16 of which apply to finished products and other articles of aluminium, that the expression unwrought aluminium in subheading 76.01 A designates the metal as such, as yet unprocessed.

9. For all these reasons, the appropriate answer to the questions raised is that goods consisting of chopped aluminium wire of a light grey shining appearance and produced in a so-called shredder by the comminution of used aluminium cables and substantial removal of the insulation come within subheading 76.01 A of the Common Customs Tariff in so far as they consist essentially of aluminium and contain only minute quantities of other metals.

10. 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 (First Chamber), in answer to the questions referred to it by the Bundesfinanzhof by an order of 27 July 1977, hereby rules: