Report for the Hearing delivered in Case C-66/89

I — Facts and procedure

1. Powerex-Europe imports silicon discs from the United States, on which it carries out a number of processes in its plants at Massy and Le Mans for the purpose of turning them into electronic components known as high-power semiconductors (for the most part thyristors), that is to say, devices which allow an electrical current to pass in only one direction.

2. The items which Powerex import are of two types, A and B, which correspond to two distinct levels of production and which are used at different stages in one of the three phases of the technological production cycle introduced by the company. Before those items are imported into France, impurities designed to allow conduction are added to the items which are then soldered to a molybdenum disc.

3. The main proceedings between the customs authorities and the Powerex company have arisen due to a difference of opinion concerning the tariff classification of those silicon discs in the case of imports made between 16 May and 14 September 1986. The customs authorities take the view that those discs come within the scope of Commission Regulation (EEC) No 1203/86 of 23 April 1986 (hereinafter referred to as Regulation No 1203/86) and must therefore be classified under subheading 85.21 D II of the Common Customs Tariff (rate of 17%) which is worded as follows:

4. The tribunal d'instance of Le Mans, before which the case was brought, took the view that, for it to be able to come to a decision, it was necessary to determine authoritatively the properties of the items imported and to have a highly detailed and objective description of the processes which Powerex carries out on them prior to their resale. The court therefore commissioned Mr Camus, the Director of the Centre national d'études des télécommunications (National Centre for Telecommunications Studies) in Grenoble for the purpose of acquiring an expert opinion. Following the submission of his report, the national court decided to stay the proceedings as it considered it necessary to refer the following questions to the Court of Justice:

II — Written observations submitted to the Court

1. Powerex-Europe, the defendant in the main proceedings, states first of all that the report drawn up by the expert, Mr Camus, shows that the goods which Powerex imports do not, in their imported state, possess the essential characteristics of semiconductor devices as defined under subheading 85.21 D II of the Common Customs Tariff. It explains that the processes carried out in its plants on the components of type A make it possible to create a component which allows electrical current to pass in one direction and which blocks it in the other, while the processes which it carries out on items of types A and B lead to an alteration at the very core of the silicon discs, which is the active part of the product, and render the components capable of performing the electrical functions for which they were designed.

2. With regard to the first question, the French Government believes that the second and fourth recitals in the preamble to Regulation No 1203/86, in conjunction with Article 1 thereof, make it clear, in the first place, that that regulation covers silicon discs which have undergone selective diffusion whereby discrete zones are formed, and which are mounted on a molybdenum support; secondly, that those discs, although not provided with terminals, leads or housing, already in their present form constitute semiconductor devices; finally, that those discs come under subheading 85.21 D II.

3. The Commission believes that the question whether the items imported by Powerex come within the scope of Regulation No 1203/86 must be answered in the negative.

1 Language of the case: French.