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Cite as: [1976] EUECJ R-99/75

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61975J0098
Judgment of the Court of 18 February 1976.
Carstens Keramik GmbH et August Hoff v Oberfinanzdirektion Frankfurt am Main.
References for a preliminary ruling: Bundesfinanzhof - Germany.
Potteries.
Joined cases 98 and 99-75.
European Court reports 1976 Page 00241
Greek special edition 1976 Page 00117
Portuguese special edition 1976 Page 00123

1 . COMMON CUSTOMS TARIFF - INTERPRETATION - ABSENCE OF COMMUNITY PROVISIONS - CONVENTION ON THE BRUSSELS NOMENCLATURE - EXPLANATORY NOTES - AUTHORITY
2 . COMMON CUSTOMS TARIFF - SUBHEADINGS 69.12 A AND 69.12 C ; 69.13 A AND 69.13 C - INTERPRETATION - DISTINCTION

1 . IT IS ESTABLISHED THAT IN THE ABSENCE OF COMMUNITY MEASURES , OF EXPLANATORY NOTES AND OTHER INFORMATION SUPPLIED BY THE COMMUNITY AUTHORITIES , THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE ARE AN AUTHORITATIVE AID TO THE INTERPRETATION OF HEADINGS IN THE COMMON CUSTOMS TARIFF .

2 . SUBHEADINGS 69.12 A AND 69.12 C ( TABLEWARE ' OF COMMON POTTERY ' AND ' OF FINE POTTERY ' ) AND SUBHEADINGS 69.13 A AND 69.13 C ( STATUETTES AND OTHER ORNAMENTS OF ' COMMON POTTERY ' AND OF ' OTHER KINDS OF POTTERY ' ) MUST BE INTERPRETED AND DISTINGUISHED IN TERMS OF THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE SO THAT A VERY FINE AND HOMOGENEOUS PRODUCT CANNOT BE CLASSIFIED AS A PRODUCT OF COMMON POTTERY .

ALTHOUGH THE OPINION ISSUED IN JUNE 1972 BY THE COMMITTEE ON NOMENCLATURE , ESTABLISHED BY REGULATION NO 97/69 OF THE COUNCIL OF THE EEC , IS NOT BINDING AND RELATES TO A HEADING WHICH IS NOT ONE OF THOSE AT ISSUE IN THE PRESENT CASE , IT REPRESENTS A VALID EVIDENCE FOR THE ABOVE PURPOSES .

IN JOINED CASES 98 AND 99/75
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
CARSTENS KERAMIK GMBH TONNIESHOF , FREDELSLOH UBER NORTHEIM ( CASE 98/75 )
FIRMA AUGUST HOFF , NURNBERG-GROSSGRUNDLACH ( CASE 99/75 )
AND
OBERFINANZDIREKTION ( REGIONAL FINANCE OFFICE ), FRANKFURT AM MAIN

ON THE INTERPRETATION OF TARIFF HEADINGS 69.12 A , 69.12 C , 69.13 A AND 69.13 C OF THE COMMON CUSTOMS TARIFF ( REGULATION NO 950/68 OF THE COUNCIL OF 22 JULY 1968 , JO L 172 , 1968 , P . 1 , AS LAST AMENDED BY REGULATION NO 3000/75 OF THE COUNCIL OF 24 NOVEMBER 1975 , OJ L 304 , 1975 , P . 1 ) CONCERNING THE CLASSIFICATION OF CERTAIN CERAMIC PRODUCTS ,

1 BY TWO ORDERS OF 5 AUGUST 1975 WHICH WERE RECEIVED AT THE COURT ON 11 SEPTEMBER 1975 THE BUNDESFINANZHOF REFERRED , UNDER ARTICLE 177 OF THE EEC TREATY , QUESTIONS ON THE INTERPRETATION OF TARIFF HEADINGS 69.12 A , 69.12 C , 69.13 A AND 69.13 C OF THE COMMON CUSTOMS TARIFF ( REGULATION NO 950/68 OF THE COUNCIL OF 28 JUNE 1968 , JO L 172 , 1968 , AS AMENDED BY SUBSEQUENT REGULATIONS ).

2 THE QUESTIONS PUT IN THE TWO CASES SHOULD BE JOINED FOR THE PURPOSES OF THE JUDGMENT SINCE THEIR ESSENTIAL SUBJECT-MATTER IS THE SAME .

3 IT IS CLEAR FROM THE ORDERS FOR REFERENCE THAT THE QUESTIONS WERE PUT IN THE COURSE OF DISPUTES RELATING TO OFFICIAL TARIFF CLASSIFICATION OPINIONS , BINDING UPON THE ADMINISTRATION ( ' VERBINDLICHE ZOLLTARIFAUSKUNFT ' ) ISSUED BY A GERMAN CUSTOMS AUTHORITY IN 1972 AND 1973 WITH REGARD TO THE CLASSIFICATION OF CERTAIN CERAMIC PRODUCTS . IN THE FIRST OFFICIAL OPINION CERTAIN CERAMIC PRODUCTS WERE CLASSIFIED UNDER HEADING 69.13 C OF THE COMMON CUSTOMS TARIFF ( HEREINAFTER REFERRED TO AS ' THE CCT ' ) AS ' ARTICLES OF FURNITURE OR ORNAMENTS OF FINE POTTERY ( VASES ) ' . IN THE SECOND OFFICIAL OPINION OTHER PRODUCTS WERE CLASSIFIED UNDER HEADING 69.12 C II AS ' TABLEWARE OF FINE POTTERY ' . THE IMPORTERS OF THOSE PRODUCTS CLAIMED THAT THEY SHOULD BE CLASSIFIED RESPECTIVELY UNDER HEADING 69.13 A AND HEADING 69.12 A AS PRODUCTS ' OF COMMON POTTERY ' .

4 IN ITS QUESTION IN CASE 98/75 THE BUNDESFINANZHOF ASKS HOW THE EXPRESSIONS ' . . . OTHER ORNAMENTS AND . . . ARTICLES OF FURNITURE : . . . COMMON POTTERY ' AND ' . . . OTHER ORNAMENTS . . . ARTICLES OF FURNITURE : . . . OTHER ' IN TARIFF HEADINGS 69.13 A AND 69.13 C OF THE CCT ARE TO BE INTERPRETED AND DISTINGUISHED FROM ONE ANOTHER . IN ITS QUESTION IN CASE 99/75 IT ASKS HOW THE EXPRESSIONS ' TABLEWARE . . . OF . . . COMMON POTTERY ' AND ' TABLEWARE . . . OF . . . FINE POTTERY ' EMPLOYED IN TARIFF HEADINGS 69.12 A AND 69.12 C ARE TO BE INTERPRETED AND DISTINGUISHED FROM ONE ANOTHER . THE ESSENTIAL PROBLEM POSED BY THESE QUESTIONS IS THUS THE INTERPRETATION OF THE EXPRESSION ' COMMON POTTERY ' AS A CRITERION FOR TARIFF CLASSIFICATION .

5 THE RELEVANT TARIFF HEADINGS ARE SUBDIVIDED AS FOLLOWS :
69.12 TABLEWARE AND OTHER ARTICLES OF A KIND COMMONLY USED FOR DOMESTIC OR TOILET PURPOSES , OF OTHER KINDS OF POTTERY :
A . COMMON POTTERY
B . STONEWARE
C . EARTHENWARE OR FINE POTTERY :
I . WHITE OR SINGLE-COLOURED
II . OTHER
D . OTHER
69.13 STATUETTES AND OTHER ORNAMENTS , ARTICLES OF PERSONAL ADORNMENT ; ARTICLES OF FURNITURE :
A . COMMON POTTERY
B . PORCELAIN OR CHINA
C . OTHER
6 IT MUST BE CONSIDERED IN THE FIRST PLACE WHETHER THE EXPRESSION ' COMMON POTTERY ' MUST BE INTERPRETED EXCLUSIVELY IN TERMS OF THE NATURE OF THE RAW MATERIAL AND PERHAPS OF ITS PREPARATION IN THE COURSE OF MANUFACTURE OR WHETHER ACCOUNT SHOULD ALSO BE TAKEN OF THE OBJECTIVE CHARACTERISTICS OF THE PRODUCT . IT IS CLEAR FROM THE ORDERS FOR REFERENCE THAT THE GERMAN CUSTOMS AUTHORITIES PROCEEDED ON THE BASIS OF AN EXAMINATION OF THE OBJECTIVE CHARACTERISTICS OF THE PRODUCTS , PRIMARILY THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE , WHILST THE PLAINTIFFS IN THE MAIN ACTION RELIED ON INFORMATION FROM THE PRODUCER COUNTRIES ACCORDING TO WHICH THE OBJECTS WERE PRODUCED FROM NATURAL RAW MATERIALS WHICH DID NOT UNDERGO ANY SPECIAL PREPARATION AND WHOSE FINENESS AND HOMOGENEITY WERE DUE TO THE CHARACTERISTICS OF THE CLAYS EMPLOYED .

7 IN THE INTERESTS OF LEGAL CERTAINTY AND OF THE ADMINISTRATIVE PROCEDURES , IT IS THE CHARACTERISTICS AND OBJECTIVE PROPERTIES OF PRODUCTS WHICH AFFORD THE DECISIVE CRITERION FOR THEIR CLASSIFICATION IN THE CCT UNLESS THERE ARE SPECIAL FACTS AND CIRCUMSTANCES IMPLYING OTHER CRITERIA .

8 THE PROBLEM WHICH PRESENTS ITSELF IS THUS TO ASCERTAIN THE CHARACTERISTICS AND OBJECTIVE PROPERTIES OF THE RELEVANT PRODUCTS WHICH , FOR THE PURPOSES OF THEIR CLASSIFICATION IN THE CCT , DISTINGUISH THEM FROM EACH OTHER .

9 THE GERMAN CUSTOMS AUTHORITY , AND ALSO THE COMMISSION , REFER TO AN OPINION ISSUED IN JUNE 1972 BY THE COMMITTEE ON NOMENCLATURE , ESTABLISHED BY REGULATION NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ON MEASURES TO BE TAKEN FOR THE UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ( JO L 14 , 1969 , P . 1 ) IN REPLY TO A QUESTION ON THE CLASSIFICATION OF CERAMIC WALL TILES COMING UNDER TARIFF HEADING 69.08 . THIS OPINION CLASSIFIES THE PRODUCTS IN QUESTION UNDER SUBHEADING B II AS ' OTHER ' PRODUCTS AND NOT UNDER SUBHEADING B I ( PRODUCTS OF ' COMMON POTTERY ' ) STATING THAT ALTHOUGH THE BODY DISPLAYS A MIXTURE OF VARIOUS GRAINS AND COLOURS IT HAS A HIGH DEGREE OF HOMOGENEITY AND REGULARITY TO OBTAIN WHICH THE CLAY EMPLOYED MUST HAVE BEEN SUBJECTED TO A MORE INTENSIVE PREPARATION , AND IN PARTICULAR TO A REFINING PROCESS , THAN THAT REQUIRED IN ORDER TO OBTAIN PRODUCTS OF COMMON POTTERY . NEVERTHELESS THE PLAINTIFFS IN THE MAIN ACTION CLAIMED THAT THE REGULARITY AND HOMOGENEITY OF THE PRODUCT CANNOT SERVE AS A CRITERION AND IN THIS RESPECT THEY RELY ON THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE WHICH DEFINE THE TERM ' COMMON POTTERY ' WITHOUT RECOURSE TO THE CRITERION OF THE HOMOGENEITY AND REGULARITY OF THE PRODUCT .

10 WITH REGARD TO SUBCHAPTER II OF CHAPTER 69 OF THE CCT THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE CONTAIN THE FOLLOWING ' GENERAL ' CONSIDERATIONS :
' FOR THE PURPOSE OF THE NOMENCLATURE , THESE ARTICLES ARE CLASSIFIED ACCORDING TO KIND . . ., EXCEPT IN THE CASE OF :
( 1 ) . . .

( 2 ) TABLEWARE AND OTHER DOMESTIC AND TOILET ARTICLES , CLASSIFIED IN HEADING 69.11 WHEN OF PORCELAIN OR CHINA , AND IN HEADING 69.12 IF OF OTHER KINDS OF POTTERY .

( I ) - PORCELAIN OR CHINA
FOR THE PURPOSES OF HEADING 69.11 , PORCELAIN OR CHINA INCLUDES . . .

( II ) - POTTERY , OTHER THAN PORCELAIN OR CHINA
FOR THE PURPOSES OF HEADING 69.12 , THE TERM ' OTHER KINDS OF POTTERY ' INCLUDES :
( A ) POTTERY WITH A POROUS BODY WHICH , UNLIKE PORCELAIN IS OPAQUE , PERMEABLE TO LIQUIDS , EASILY SCRATCHED WITH IRON AND WHOSE FRACTURE STICKS TO THE TONGUE . SUCH POTTERY INCLUDES :
( 1 ) POTTERY MADE FROM COMMON CLAY ( BRICK EARTH ). IT HAS A DULL EARTHY TEXTURE AND ITS COLOUR IS GENERALLY BROWN , RED OR YELLOW . IT MAY BE GLAZED .
( 2 ) A WIDE RANGE OF WHITE OR COLOURED POTTERY . . . MORE OR LESS FINE . THE BODY IS POROUS AND MUST BE GLAZED TO MAKE THE ARTICLES IMPERMEABLE . . . ( EARTHENWARE , ETC .) IS MADE FROM FINELY SIEVED CLAYS STIRRED WITH WATER . IT HAS A FINEGRAINED BODY OBTAINED BY FIRING TO A HIGHER TEMPERATURE THAN IN THE CASE OF POTTERY MADE FROM COMMON CLAY ; IT DIFFERS FROM PORCELAIN OR CHINA BECAUSE IT IS NOT COMPLETELY VITRIFIED .

( B ) STONEWARE WHICH , THOUGH DENSE , . . . DIFFERS FROM PORCELAIN BECAUSE IT IS MORE OPAQUE . . .

( C ) CERTAIN SO-CALLED ' SEMI-PORCELAINS ' OR ' IMITATION-PORCELAINS ' , SOMETIMES PREPARED , DECORATED AND GLAZED TO GIVE THE COMMERCIAL APPEARANCE OF PORCELAIN . . . . TABLEWARE , ETC ., OF THESE IMITATION ' PORCELAINS ' IS CLASSIFIED IN HEADING 29.12 AND NOT AS PORCELAIN OR CHINA IN HEADING 69.11 . '
THE EXPLANATORY NOTES TO THE CCT IN THEIR TURN REFER TO THOSE ' GENERAL ' CONSIDERATIONS ' WITH REGARD TO THE SCOPE OF THE TERMS ' ' PORCELAIN ' ' , ' ' COMMON POTTERY ' ' , ' ' FINE POTTERY ' ' , ' ' EARTHENWARE ' ' AND ' ' STONEWARE ' ' APPEARING IN THE HEADINGS AND SUBHEADINGS OF SUBCHAPTER II OF CHAPTER 69 . '
11 IT IS ESTABLISHED THAT IN THE ABSENCE OF COMMUNITY MEASURES , OF EXPLANATORY NOTES OR OTHER INFORMATION SUPPLIED BY THE COMMUNITY AUTHORITIES , THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE ARE AN AUTHORITATIVE AID TO THE INTERPRETATION OF HEADINGS IN THE CCT . NEVERTHELESS THE QUESTION MUST BE ASKED WHETHER THE ABOVEMENTIONED NOTES TO THE BRUSSELS NOMENCLATURE CONTAIN ANYTHING WHICH ENABLES A DISTINCTION TO BE DRAWN BETWEEN THE SUBHEADINGS ' COMMON POTTERY ' ON THE ONE HAND AND ' FINE POTTERY ' AND ' OTHER KINDS OF POTTERY ' ON THE OTHER HAND . ACCORDING TO THE WORDING OF THESE NOTES THEY ONLY REFER TO THE DISTINCTION BETWEEN THE TWO HEADINGS 69.11 AND 69.12 , THAT IS TO SAY , BETWEEN TABLEWARE ' OF PORCELAIN OR CHINA ( INCLUDING BISCUIT PORCELAIN AND PARIAN ) ' AND TABLEWARE ' OF OTHER KINDS OF POTTERY ' AND CONTAINS NO REFERENCE AT ALL TO THE SUBHEADINGS OF HEADING 69.12 . THIS IS NO DOUBT TO BE EXPLAINED BY THE FACT THAT CHAPTER 69 OF THE BRUSSELS NOMENCLATURE DOES NOT CONTAIN SUBHEADINGS . FROM THIS IT MUST THEREFORE BE CONCLUDED THAT THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE DO NOT PRECLUDE TAKING INTO CONSIDERATION THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE FOR THE PURPOSES OF DISTINGUISHING BETWEEN THE RELEVANT SUBHEADINGS OF THE CCT .
12 IN ADDITION , ALTHOUGH THE ABOVEMENTIONED OPINION OF THE COMMITTEE ON NOMENCLATURE IS NOT BINDING AND RELATES TO A HEADING WHICH IS NOT ONE OF THOSE AT ISSUE IN THE PRESENT CASE , IT REPRESENTS A VALID INDICATION FOR THE PURPOSES OF TAKING INTO CONSIDERATION THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE OF THE PRODUCT AS OBJECTIVE CHARACTERISTICS OF THE PRODUCT FOR THE PURPOSES OF THE INTERPRETATION AND DEFINITION OF THE CONCEPT ' COMMON POTTERY ' . THIS CONCLUSION APPEARS TO CORRESPOND TO THE GENERAL SCHEME OF THE CCT IN THIS SPHERE WHICH PRESUPPOSES THAT OBJECTS OF LITTLE VALUE ARE PRODUCED FROM COMMON CLAY , IN THAT IT IS THE SIMPLEST RAW MATERIAL , WHILST LESS COARSE PRODUCTS ARE OBTAINED FROM RAW POTTERY MATERIAL OF HIGHER QUALITY . ALTHOUGH THE GERMAN VERSION OF HEADING 69.12 DOES NOT PERHAPS BRING OUT THIS DIFFERENCE CLEARLY , OTHER OFFICIAL VERSIONS LEAVE NO DOUBT IN THIS MATTER SINCE THEY EMPLOY EXPRESSIONS SUCH AS ' EN POTERIE FINE ' , ' FINE POTTERY ' AND ' DI TERRACOTTA FINE ' TO DESCRIBE PRODUCTS MANUFACTURED FROM A RAW MATERIAL OTHER THAN ' COMMON CLAY ' .

13 THE PLAINTIFFS IN THE MAIN ACTION HAVE OBJECTED THAT THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE ARE CRITERIA WHICH ARE TOO VAGUE AND TOO SUBJECTIVE TO BE EMPLOYED TO DRAW A DISTINCTION BETWEEN TARIFF HEADINGS .

14 NEVERTHELESS IN THIS CONNEXION , AS THE COMMISSION HAS STATED IN THE COURSE OF THE PROCEEDINGS , IN PROFESSIONAL CIRCLES CERTAIN TRENDS OF OPINION HAVE APPEARED WHICH MAY BE OF USE TO THE CUSTOMS AUTHORITIES .

15 IT MUST THEREFORE BE CONCLUDED THAT SUBHEADINGS 69.12 A AND 69.12 C ( TABLEWARE ' OF COMMON POTTERY ' AND ' OF FINE POTTERY ' ) AND SUBHEADINGS 69.13 A AND 69.13 C ( STATUETTES AND OTHER ORNAMENTS OF ' COMMON POTTERY ' AND OF ' OTHER KINDS OF POTTERY ' ) MUST BE INTERPRETED AND DISTINGUISHED IN TERMS OF THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE SO THAT A VERY FINE AND HOMOGENEOUS PRODUCT CANNOT BE CLASSIFIED AS A PRODUCT OF COMMON POTTERY . IT IS FOR THE NATIONAL COURT TO DETERMINE WHETHER THE ARTICLES IN QUESTION IN FACT FULFIL THE CONDITIONS FOR CLASSIFICATION UNDER THE ONE OR THE OTHER SUBHEADING .

COSTS
16 THE COSTS INCURRED BY THE COMMISSION 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 , A STEP IN THE ACTION BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDERS OF 5 AUGUST 1975 , HEREBY RULES :
SUBHEADINGS 69.12 A AND 69.12 C ( TABLEWARE ' OF COMMON POTTERY ' AND ' OF FINE POTTERY ' ) AND SUBHEADINGS 69.13 A AND 69.13 C ( STATUETTES AND OTHER ORNAMENTS OF ' COMMON POTTERY ' AND OF ' OTHER KINDS OF POTTERY ' ) MUST BE INTERPRETED AND DISTINGUISHED IN TERMS OF THE FINENESS OF THE GRAIN AND THE HOMOGENEITY OF THE STRUCTURE SO THAT A VERY FINE AND HOMOGENEOUS PRODUCT CANNOT BE CLASSIFIED AS A PRODUCT OF COMMON POTTERY .