In Case C-318/90,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof for a preliminary ruling in the proceedings pending before that court between
Hauptzollamt Mannheim
and
Boehringer Mannheim GmbH,
on the interpretation of headings 05.15 and 38.16 of the Common Customs Tariff,
THE COURT (Fourth Chamber),
composed of: P.J.G. Kapteyn, President of the Chamber, C.N. Kakouris and M. Diez de Velasco, Judges,
Advocate General: M. Darmon,
Registrar: H.A. Ruehl, Principal Administrator,
after considering the written observations submitted on behalf of:
° the Commission, by René Barents and Joern Sack, Legal Advisers, and Roberto Hayder, an official of the Federal Ministry of Economic Affairs of the Federal Republic of Germany seconded to the Legal Service of the Commission under the exchange scheme for national civil servants, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Boehringer Mannheim GmbH, represented by Hinrich Glashoff, Tax Adviser, and the Commission at the hearing on 24 January 1992,
after hearing the Opinion of the Advocate General at the sitting on 26 February 1992,
gives the following
Judgment
1 By order of 25 September 1990, received at the Court on 22 October 1990, the Bundesfinanzhof (Federal Finance Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the classification of "unsterile calf foetus serum" under the Common Customs Tariff (CCT), in the version annexed to Council Regulation (EEC) No 3300/81 of 16 November 1981 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (OJ 1981 L 335, p. 1).
2 That question was raised in proceedings between Hauptzollamt (Principal Customs Office) Mannheim ("the Hauptzollamt") and Boehringer Mannheim GmbH ("Boehringer") on the tariff classification of deep-frozen goods imported by Boehringer from non-member countries, released into free circulation in the Community in 1982 and declared as "foetales Kaelberserum" (calf foetus serum) or "newborn calf serum".
3 It is apparent from the order for reference that the Hauptzollamt had initially classified the said goods under subheading 05.15 B of the CCT ("animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption" other than fish, crustaceans and molluscs), and had consequently exempted them from customs duty.
4 Following an import flow control inspection, the Hauptzollamt later adopted a different view and classified the goods under CCT heading 38.16 ("prepared culture media for development of micro-organisms") and accordingly charged back customs duty of DM 47 810.95.
5 Boehringer brought an action in the Finanzgericht against the second classification. That court substantially upheld Boehringer' s application, in a decision against which the Hauptzollamt appealed to the Bundesfinanzhof on a point of law.
6 The Bundesfinanzhof considered that the outcome of the case depended on the interpretation of the CCT in the version applicable at the material time. It stayed the proceedings and referred the following question to the Court for a preliminary ruling:
"Should unsterile calf foetus serum have been classified in 1982 under subheading 05.15 B or heading 38.16 of the Common Customs Tariff? If not, under which other heading of the Common Customs Tariff should such goods have been classified?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the relevant provisions of Community law, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
8 It should be noted to begin with that Rule 3 of the Rules for the interpretation of the Nomenclature of the CCT states that:
"When for any reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.
(b) ...".
9 Since the goods described above are prima facie classifiable under heading 38.16 or heading 05.15, the Court must first consider whether unsterile calf foetus serum falls under CCT heading 38.16, which provides a more specific description than heading 05.15. If not, it will then be necessary to ascertain whether the said goods can be classified under heading 05.15, and more specifically under subheading 05.15 B.
10 In examining whether the goods at issue in the main proceedings come under CCT heading 38.16, it must be observed that the Court has consistently held that, having regard to the imperatives of legal certainty and ease of verification, the decisive criterion for the tariff classification of goods must be sought generally in their objective characteristics and qualities, as defined in the headings and the sub -headings of the CCT, and in the notes to the sections or chapters (see, most recently, the judgment in Case C-120/90 Ludwig Post v Oberfinanzdirektion Muenchen [1991] ECR I-2391, paragraph 11).
11 Heading 38.16 forms part of Chapter 38 of the CCT, entitled "Miscellaneous chemical products", and describes the goods in question as "prepared culture media for development of micro-organisms".
12 It follows that goods coming under heading 38.16 must have the following characteristics: firstly, they must be chemical products, and secondly they must be prepared for the development of micro-organisms, that is to say, they must have undergone a specific treatment.
13 These are not the characteristics of the goods at issue in the main proceedings. As can be seen from the answers given by Boehringer and the Commission at the hearing, unsterile calf foetus serum is the liquid part of the blood of unborn or newly-born calves. It follows that such goods, which have not received any specific treatment, cannot be regarded as a chemical product prepared as a culture medium for the development of micro-organisms.
14 That interpretation is supported by the Explanatory Notes to the nomenclature of the Customs Cooperation Council, which state that tariff heading 38.16 "covers various preparations" and that these preparations may have acids, ferments or other substances added to them. Moreover, the explanatory notes also state that this "heading does not cover products not prepared as culture media".
15 However, the Commission refers to Rule 2(a) of the Rules for the interpretation of the CCT, according to which "Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as imported, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this Rule), imported unassembled or disassembled." The Commission observes that if the goods cannot be classified under tariff heading 38.16 as a finished article, they come under that heading as an "incomplete" or "unfinished" article.
16 That argument cannot be accepted.
17 The explanatory note on Rule 2(a), in the context of the general rules for interpretation of the Customs Cooperation Council nomenclature, states that that rule does not normally apply to products of Sections I to VI, in other words Chapters 1 to 38.
18 Although the words "not normally" mean that it cannot altogether be ruled out that that rule of interpretation might exceptionally apply to a heading in Chapter 38 of the CCT, it must be observed that the mere fact that unsterile calf foetus serum is used as a basis for the composition of culture media for micro-organisms does not mean that it already has the essential character of the complete or finished article classifiable under heading 38.16, "prepared culture media for development of micro-organisms". As the Advocate General has said in paragraph 22 of his Opinion, "in fact, only a product which is so close to the finished product that it can come under the same tariff heading as the finished product can be accepted as having such character". Otherwise, it is a different product. This is the case with the product at issue, as long as it has not yet undergone a particular treatment.
19 That interpretation is supported, moreover, by the Explanatory Notes to the Customs Cooperation Council nomenclature, which ° as stated above (paragraph 14) ° specify that heading 38.16 does not cover products not prepared as culture media.
20 It should be added that Council Regulation (EEC) No 1945/86 of 18 June 1986 temporarily suspending the autonomous Common Customs Tariff duties on a number of industrial products (OJ 1986 L 174, p. 1), adopted after the events giving rise to the main proceedings, in which "unsterile blood serum obtained from the blood of a bovine foetus or non-immunized newly-born calf" is placed under heading 38.16, cannot be used as an aid to interpretation, since, as the Commission observes, it is not a regulation of general application whose purpose is the classification of goods under the CCT.
21 Consequently, unsterile calf foetus serum does not come under heading 38.16.
22 In answering the question whether the goods at issue in the main proceedings come under CCT heading 05.15, it should first be noted that that heading, which does not require that the products included thereunder should have been prepared, comprises "animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption".
23 Of those products subheading 05.15 B covers those which are neither fish, crustaceans nor molluscs. Unsterile calf foetus serum, being an animal product not elsewhere specified or included, falls under that subheading.
24 That classification is confirmed by the explanatory notes to the Customs Cooperation Council nomenclature, which state that the heading includes among other things animal blood, liquid or dry, edible or not.
25 The answer to the question put by the Bundesfinanzhof must therefore be that Council Regulation (EEC) No 3300/81 of 16 November 1981 amending Regulation (EEC) No 950/68 on the Common Customs Tariff is to be interpreted as meaning that unsterile calf foetus serum does not come under tariff heading 38.16 but under subheading 05.15 B of the CCT.
Costs
26 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fourth Chamber),
in answer to the question submitted to it by the Bundesfinanzhof, by order of 25 September 1990, hereby rules:
Council Regulation (EEC) No 3300/81 of 16 November 1981 amending Regulation (EEC) No 950/68 on the Common Customs Tariff must be interpreted as meaning that unsterile calf foetus serum does not come under tariff heading 38.16 but under subheading 05.15 B of the Common Customs Tariff.
