JUDGMENT OF 11. 2. 1982 — CASE 278/8: CHEM-TEC v HAUPTZOLLAMT KOBLENZ

In Case 278/80 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 (Second Chamber) composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges, Advocate General: S. Rozès Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — The relevant provisions

III — Written observations

First question

Second question

IV — Questions put by the Court

Note relating to beading 40.06

V — Oral procedure

Decision

First question

Second question

Costs

I —. Facts

A. Is tariff heading 35.06 of the Common Customs Tariff to be interpreted as also including a product described as adhesive paper strip or as strip, of unvulcanized synthetic rubber wound on to a spool and consisting of a double-sided adhesive strip and a strip of paper (treated with silicone) separating the adhesive strips which have been rolled up and which is used in such a way that the paper strip is peeled off and therefore does not adhere when the double-sided adhesive strip is applied?

B. If the answer to the first question is in the affirmative, how is the concept put up for sale by retail in packages not exceeding a net weight of 1 kg in tariff subheading 35.06 B to be interpreted? Does the product described in Question A. fulfil those conditions by reason only of the fact that the glue along the whole length of the adhesive strip is joined to a paper strip with the result that the latter may be regarded as a package, or must the adhesive strips within the required weight limit be contained in special packages and in addition be marked as glue by written indications?

II —. The relevant provisions

3. When for any reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a). 40.05 Plates, sheets and strip of unvulcanized natural or synthetic rubber, other than ... C. Other.

1. ... throughout the Tariff the expression rubber means the following products, whether or not vulcanized or hardened: natural rubber, balata, gutta-percha and similar natural gums, synthetic rubber, ...

4. In Note 1 to this Chapter and in headings Nos 40.02, 40.05 and 40.06, the expression synthetic rubber is to be taken to apply to:

(c). Natural rubber modified by grafting or mixing with artificial plastic material, de-polymerized natural rubber, ...

(b). 39.C2 Polymerization and copolymenzation products (for example, polythylene, polytetrahaloethylenes, polyisoburylene polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl chloroacetate and other polyvinyl derivatives, polyacrylic and polymethacrylic derivatives, coumaroneindene resins): ... B. Adhesive strips of a width not exceeding 10 cm, the coating of which consists of unvulcanized natural or synthetic rubber ... C. Other: ... XII. Acrylic polymers, methacrylic polymers and acrylomethacrylic co-polymers ...

1. This Chapter does not cover:

3. Headings Nos 39.01 to 39.06 are to be taken to apply to materials in tne following forms only

(c). 35.06 Prepared glues not elsewhere specified or included: products suitable for use as glues put up tor sale by retail as glues in packages not exceeding a net weight of 1 kg: A. Prepared glues not elsewhere specified or included: I. Vegetable glues: (a) Obtained from natural gums (b) Other II. Other glues B. Products suitable for use as glues put up for sale by retail as glues in packages not exceeding a net weight of 1 kg

III —. Written observations

1. The plaintiff contends that recourse to subheading 35.06 B leads to an incorrect interpretation of the term package. A package can be conceived of only in the form of a folding box or carton. A strip of between 55 mm and 914 mm in length cannot constitute a package. To describe the paperhning of Scotch 465 as non-active paper is inaccurate since the adhesive strip cannot be manufactured and used without the lining paper. The latter cannot be regarded as a package within the meaning of heading 35.06 B. That is confirmed by the list of receptacles (glass bottles or jars, metal boxes or tubes, canons and paper bags) set out in the Explanatory Notes to the Customs Cooperation Council Nomenclature on heading 35.06 B. It is also incorrect for the customs authorities, when using the expressions roll, protective paper, packages in which the product is put up for sale by retail, to refer expressly to the roll on which the wording is marked and which constitutes the basis for the definition of the expression put up for sale by retail. The adhesive strips could also be delivered wound round an unmarked non-adhesive core, that is to say a simple white paper bound core and the description of the article would appear on the label affixed to the outside of the canon, together with other indications relating to width and length and the directions for use. Accordingly, only canons in which Scotch 465 is imported may be regarded as receptacles. There are no imports of Scotch 465 put up for sale by retail in packages not exceeding a net weight of 1 kg. (subheading 35.06 B) but, as is apparent from samples despatched separately, the rolls are supplied packed in canons each of which contains between 144 and 20 or fewer rolls according to the width of the adhesive strip. The various rolls placed in a canon are not packed in individual folding boxes or in another wrapper or package. Such a canon weighs between 8 and 16 kg, including the contents.

2. The Commission emphasizes first of all that there ire no legal provisions in the Common Customs Tariff on that point. The Explanatory Notes to trie Customs Cooperation Council Nomenclature must be interpreted broadly. The example of the slab of bone glue wound round with a simple paper wrapper shows that not only packages in the strict sense of the word, such as glass bottles or jars, metal or cardboard boxes, paper bags etc., but also materials used in certain specific cases as wrapping may be regarded as packages.

IV —. Questions put by the Court

1. In view of the fact that subheading 35.06 A covers prepared glues not elsewhere specified or included and that subheading 35.08 B covers products suitable for use as glues put up for sale by retail as glues in packages not exceeding a net weight of 1 kg, the plaintiff in the main action and the Commission are requested to state their views on the relationship between the two subheadings as regards the products in question and on the question whether and, as the case may be, to what extent the substances listed in headings 39.02 C XII and 40.05 my themselves be described as prepared glues?

2. The plaintiff in the main action is requested to state its views on the following two questions:

3. Can the Commission supply the Court with information on the position adopted by the custom authorities of the other Member States on the classification for tariff purposes of the products in question and on the reasons for that position?

1. The products in tariff heading 39.02 C XII and in heading 40.05 which may be used as glues fall within tariff heading 35.06 A as prepared glues only if they are prepared, that is to say if they contain the additives needed for adhesion or if their ingredients are mixed with a view to adhesion.

2. In the absence of additives needed for adhesion, that is to say if they have not been prepared within the meaning of the Common Customs Tariff, the adhesive products falling within tariff heading 39.02 C XII and heading number 40.05 continue (to the extent to which it is technically possible) to be covered by those tariff headings.

3. If unprepared products of that kind falling within tariff heading 39.02 C XII and heading 40.05 are put up for sale by retail as glues in packages not exceeding a net weight of 1 kg, they are products within the meaning of tariff heading 35.06 B. That classification for tariff purposes, which derives from Rule 1 of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, is unequivocally confirmed by the explanatory notes to that nomenclature. In that connection, the following should be compared:

6. ...

(d). Preparations specifically formulated for use as glues, consisting either of a mixture of several artificial plastic materials falling individually within different headings of the present Chapter, or of artificial plastic materials which, apart from any permitted additions to the products of this Chapter, contain other added substances not falling in Chapter 39 (e.g., waxes). These are classified in heading 35.06 as are products of headings 39.01 to 39.06 put up for sale by retail as glues in packages not exceeding a net weight of 1 kg.

(c). Rubber solutions or dispersions with added fillers, vulcanizing agents and resins, for use as glues, and rubber solutions or dispersions put up for sale by retail as glues in packages not exceeding a net weight of 1 kg (heading 35.06).)

V —. Oral procedure

1. By order of 11 November 1980, received at the Court on 15 December 1930, the Bundesfinanzhof [Federal Finance Court] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of tariff heading 35.06 of the Common Customs Tariff which is worded as follows:

2. The questions have arisen in connection with a dispute between the competent customs authority and a German undertaking, which from October 1973 until July 1974 put into free circulation in the Federal Republic of Germany a product known as transferable adhesive strips, having the trade-name Scotch and the serial number 465.

3. It is clear from the order making the reference to the Court that the product in question consists of an adhesive layer which is pressed on a strip of paper treated with silicone on both sides and which is wound, together with the strip of paper, on to a cardboard spool. When it is used, the adhesive layer is applied, with the aid of the paper strip, to one of the surfaces requiring adhesion, then the paper strip is peeled off and the other surface requiring adhesion is pressed on to the adhesive layer formerly protected by the paper strip. Thus the paper strip serves as the necessary backing for the adhesive layer when the latter is manufactured, as a material for protecting and isolating the layer until it is used, and as a technical means for applying the layer on the first surface requiring adhesion, but it is not used in the actual process of joining the surfaces together.

4. Initially, the goods were classified, in accordance with the declarations made by the importing undertakings, as adhesive paper strip the coating of which consists of unvulcanized synthetic rubber falling within subheading 48.15 A and, subsequently, as strip, of unvulcanized synthetic rubber falling within subheading 40.05 C. After it had commissioned a number of expert studies of the product, the customs administration amended its decisions relating to classification and applied first subheading 39.02 C XII (Polymerization .. products...: Acrylic polymers.. ) and finally subheading 35.06 B referred to above.

5. Against that decision classifying Scotch 465 in subheading 35.06 B, a classification confirmed, moreover, at a meeting of the Committee on Common Customs Tariff Nomenclature, the importing undertaking brought an action before the Finanzgericht Rheinland-Pfalz [Finance Court, Rhineland-Palatinate], claiming that the goods should be classified in subheading 40.05 C, referred to above, alternatively in subheading 39.02 B (Polymerization ... products; Adhesive strips ... the coating of which consists of unvulcanized ... synthetic rubber) or, as a further alternative, in subheading 35.06 A.

6. Following the Finanzgericht's dismissal of the action, the undertaking lodgec an appeal on a point of law (Revision) with the Bundesfinanzhof [Federal Finance Court]. Although that court inclines to the view that tne product in fact a glue, it doubts whether the paper strip may be considered a package. On those grounds, the Bundesfinanzhof referred the following questions to the Court for a preliminary ruling.

7. In its first question, the Bundesfinanzhof asks, in substance, whether the customs authorities have applied the Common Customs Tariff correctly by basing their final decision on classification for tariff purposes not on the characteristics of the paper strip but on those of the adhesive layer, and not on the chemical composition of the latter, as requested by the plaintiff, but by reference to its function.

8. According to Rule 3 (a) and (b) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, when the goods are prima facie classifiable under two or more headings, the heading providing the most specific description must take precedence and goods consisting of different materials must be classified by reference to the material which gives them their essential character.

9. In that regard, the contested product is clearly distinguishable from the adhesive strips which are expressly referred to in various headings and subheadings of the Common Customs Tariff and classified by reference to the material quality of the strip in question. Those strips are coated on either or both surfaces with an adhesive layer. The strip itself is used in the joining process and ensures firm adhesion. However, in the case of a product such as the one at issue in this case, where the paper strip is peeled off before adhesion, it is exclusively the adhesive layer which gives the product its essential character. That'character consists precisely in the fact that it is capable of being used as a glue. For such a product, which is not referred to or included as a prepared glue in another heading, heading 35.06 is the one which provides the most specific description. The fact that the adhesive layer is also in the form of a strip, as a result of the manner in which it is manufactured and in order to facilitate its use, in no way affects that conclusion.

10. Accordingly, the answer to be given to the first question of the Bundesfinanzhof is that tariff heading 35.06 of the Common Customs Tariff must be interpreted as also including a product described as adhesive paper strip or as strip, of unvulcanized synthetic rubber wound on to a spool and consisting of a double-sided adhesive strip and a strip of paper (treated with silicone) separating the adhesive strips which have been rolled up and which is used in such a way that the paper strip is peeled off and therefore does not adhere when the double-sided adhesive strip is applied.

11. In its second question, the Bundesfinanzhof asks, in the first place, whether the strip of paper wound, together with the adhesive layer, on to a cardboard spool may be considered as a product put up in a package within the meaning of subheading 35.06 B of the Common Customs Tariff or whether the application of that subheading presupposes that the rolls are placed in special packages.

12. For the purpose of the reply to the first part of the second question, it is necessary to begin by considering the scheme of heading 35.06. As in the case of other tariff headings, heading 35.06 is subdivided into a general subheading (35.06 A) and a specific subheading (35.06 B) which relates to products put up for sale by retail and makes them subject to a higher rate of duty than that levied on imported products which are to be sold directly to consumers and therefore require further packaging after they have been put into free circulation. In that regard, the fact that an imported product is, as the plaintiff maintains, normally used in industry- and that in consequence is not offered for sale by retail, is not of decisive importance. The subheading providing the most specific description remains applicable if the product is objectively suitable, given the form in which it is presented, for sale by retail, without further packaging.

13. In the light of those considerations, the concept of package must be given a wide interpretation if, from every other point of view, the product is suitable for direct sale to the consumer, without any further packaging.

14. Such a wide interpretation is moreover supported by the Explanatory Notes to the Customs Cooperation Council Nomenclature which, according to the consistent case-law of the Court, constitutes an important factor in the interpretation of the Common Customs Tariff. The explanatory notes to subheading 35.06 B list examples of packages of the most varied kinds and certainly do not prevent the pace of technical development from being taken into account which, in the case of packages, is particularly swift. In keeping with that approach, a paper strip which is treated with silicone, is rolled on to an adhesive layer constituting the essential component of the product and thus serves to protect it, may in principle be described as a package.

15. The arguments of the plaintiff on that point and the doubts expressed by the Bundesfinanzhof concern in particular the fact that the paper strip not only fulfils the function which is typical of a package, namely to ensure the conservation and protection of the product, but also constitutes the necessary backing for the adhesive layer when it is manufactured and a technical means for applying the layer to the first surface requiring adhesion.

16. In that connection, however, it should be pointed out that the trend of technical developments in relation to packages is precisely towards endowing them with several functions. Even ordinary metal tubes in which glues are often packed and which are expressly mentioned in the explanatory notes to the relevant subheading constitute both impermeable receptacles which are necessary when the glue is manufactured and a means of determining the amount required when the glue is applied on the first surface requiring adhesion. It follows that additional functions such as those described are insufficient to deprive the strip of paper of its character as a package.

17. Moreover, the plaintiff has contended before the Court that the paper strip is inadequate for the purpose of protecting the adhesive layer against any impurities which may cling to its edges and that such impurities reduce the effect of adhesion and may render the glued product unusable. For that reason, the rolls are not suitable for being sold separately but solely in cartons such as those in which the product has been imported, each of which contains a large number of rolls. That attests to the product's use for industrial purposes. Thus, in order to be sold by retail, the product requires further packaging.

18. Since those arguments were not, according to the documents in the file on the case produced before the Court, put forward in the proceedings before the national court and since the facts on which the plaintiff seeks to found these arguments are not included amongst those set out by the Bundesfinanzhof in the questions which it has referred to the Court for a preliminary ruling, it will be for the national court, if appropriate, taking into account the criteria for interpretation provided by the Court of Justice, to rule on the validity of the arguments as well as on any other matters of fact, such as the net weight of the rolls, not raised in the questions submitted for a preliminary ruling.

19. Accordingly, the answer to be given to the first part of the second question is that the expression put up for sale by retail... in packages not exceeding a net weight of 1 kg in subheading 35.06 B is to be interpreted as meaning that the paper strip described above may be considered a package but that the classification of the rolls in that subheading presupposes that they are suitable for sale by retail without any additional packaging and that the net weight of the rolls, that is to say the weight of the adhesive layer, does not exceed 1 kg.

20. In the final part of its second question, the Bundesfinanzhof asks secondly whether the package must bear a written indication that the product in question is glue.

21. According to the Explanatory Notes to the Customs Cooperation Council Nomenclature on subheading 35.06 B such an indication is required in the case of products which may be used for purposes other than those for which glues are employed. If, on the other hand, a product can be used only as an adhesive, there is nothing in the wording of that subheading or in the notes relating thereto to suggest that it is necessary for the package to bear any indication as to the use of the product.

22. Accordingly, the answer to be given to the second part of the second question is that if the product cannot be put to any use other than that of an adhesive, the package need not, for the product to be classified in subheading 35.06 B, bear any indication as to its use.

23. The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs as a matter for that court.

On those grounds, THE COURT (Second Chamber), in answer to the questions referred to it by the Bundesfinanzhof by order of 11 November 1980, hereby rules:

1 Tariff heading 35.06 of the Common Customs Tariff must be interpreted as also including a product described as adhesive paper strip or as strip, of unvulcanized synthetic rubber wound on to a spool and consisting of a double-sided adhesive strip and a strip of paper (treated with silicone) separating the adhesive strips which have been rolled up and which is used in such a way that the paper strip is peeled off and therefore does not adhere when the double-sided adhesive strip is applied.

2 The expression put up for sale by retail... in packages not exceeding a net weight of 1 kg in subheading 35.06 B is to be interpreted as meaning that the paper strip described above may be regarded as a package but that the classification of the rolls in that subheading presupposes that they are suitable for sale by retail without any additional packaging and that the net weight of the rolls, that is to say the weight of the adhesive layer, does not exceed 1 kg.

3 If the product cannot be put to any use other than that of an adhesive, the package need not, for the product to be classified in subheading 35.06 B, bear any indication as to its use.