Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The German Bundesfinanzhof, by an order of 13 June 1978, referred to the Court of Justice three preliminary questions which are concerned in essence to clarify the meaning and scope of the second sentence of General Rule 2 (a) of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff.

2. In Question 1 the Court of Justice is requested to state whether the final part of General Rule 2 (a) (which, as we have seen, extends the treatment for tariff purposes of the complete or finished article to its constituent parts which together make up the article as if it were unassembled or disassembled) is inapplicable in view of the fact that the Common Customs Tariff contains a specific heading for the parts of an article, the forgoing being in pursuance of the third sentence of General Rule 1 which states that the classification shall be determined according to the terms of the headings and any relevant section or chapter notes.

3. I shall now proceed to the second question in which the German court asks whether Rule 2 (a) covers, in addition to disassambled articles, articles which have never been assembled. The doubt arises from the German version of the rule which, as we have already seen, is not fully in accordance with all the official versions in the other languages of the Community.

4. In the third question the Bundesfinanzhof asks whether the second sentence of General Rule 2 (a) also applies if, when a number of parts of articles which have not yet been assembled is presented for customs clearance, it is impossible to establish with certainty which will be put together in order to obtain a single finished article. In the grounds for the order of reference it was stated that, in the present case, by combining the various imported parts it was possible to produce ball-point pens of varied appearance and application since there were different models of caps and barrels in each consignment and the magazines contained various colours of ink and had different sizes of points. Since there were a number of possible combinations of the same parts it was not possible to establish at the time of importation a separate identity for the individual ball-point pens for which there were, as we have seen, all the separate constituent parts.

5. For the reasons set out above I conclude by suggesting that the Court of Justice, in reply to the preliminary questions submitted to it by the Bundesfinanzhof by an order of 13 June 1978, should rule as follows:

1 Translated from the Italian.