OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 28 JANUARY 1976 (*1)

Mr President,

Members of the Court,

The references for a preliminary ruling in the present cases from the Bundesfinanzhof are concerned with the interpretation of tariff headings 69.12 A and C and 69.13 A and C of the Common Customs Tariff. Heading 69.12 refers to ‘Tableware’ subheading A to ‘Common pottery’ and subheading C to ‘Earthenware’, while heading 69.13 refers to ‘… articles of personal adornment; articles of furniture’ subheading A to ‘Common pottery’ and subheading C to ‘Other’.

Underlying the disputes which gave rise to these requests for a preliminary ruling there is, of course, a difference of opinion between the undertakings concerned and the relevant customs authority concerning the classification of products imported from third countries. The two cases are concerned with clay articles produced by craftsmen. The customs authorities consider them as coming under the classification of tableware, fine pottery, namely heading 69.12 C (Case 99/75) and under the classification of articles of furniture and of personal adornment ‘Other’, in heading 69.13 C (Case 98/75).

The classifications carried out by the German customs authorities are based on the result of tests carried out on their behalf by a specialized laboratory which, as the result of chemical analyses and microscopic examination of the body, came to the conclusion that, although it was unmixed clay, it had been prepared with greater care than is usual in the manufacture of common pottery.

In Case 99/75 the plaintiff contested the decision of the customs authorities and submitted a declaration from the supplier stating that the products concerned had been manufactured exclusively and without the addition of any other material from natural clay from a particular deposit. The plaintiff also produced a report from a specialized laboratory in Germany certifying that the raw material used for manufacture was found to be common clay. From the findings of expert's reports produced by the plaintiffs in both cases, it further appears that some types of clay of a particular quality can be put to immediate use in the production of fine pottery without needing to be purified, and this is what happened in the present case.

However, the national administrative court with jurisdiction to resolve these two conflicts of view declared that the nature of the raw material was irrelevant and held that the customs classification in question must be based exclusively on the objective characteristics of the product, namely on the fineness of grain and homogeneity of the pottery. The concept of articles of common pottery is therefore not the same as that of articles of natural clay.

The first question which falls for decision by the Court is in fact the following: in classifying a piece of pottery in one of the categories under the tariff headings concerned must the properties of the material used be taken into account or must the objective characteristics of the article produced be the determining factor?

The decisions of this Court have on occasion emphasized the importance of the objective characteristics of products for purposes of their customs classification under the Common Customs Tariff; see, for example, the judgment in Case 36/71, Günter Henck, Rec. 1972, p. 198 and recently, the judgment of 10 December 1975 in Case 53/75, Vandertaelen.

As regards the present case, some versions of the Common Customs Tariff, such as, for example, the Italian and English texts, place the emphasis on the material produced after processing (‘terracotta’, ‘pottery’). On the other hand, other versions such as, for example, the German and French ones lay greater emphasis on the raw material. Furthermore, under tariff heading 69.12 in the French text, letter A seems to refer to the raw material (‘terre commune’), while letter C covers the finished product (‘poterie fine’). This difference should not be interpreted as inconsistency or uncertainty on the part of the legislature. The versions of the latter type cover what happens in the majority of cases. Normally, common pottery is produced by the use of common clay whereas fine pottery is produced from clay which has undergone a refining process. This does not mean that, when use is made of a clay which, in its natural state, is of especially fine quality, it cannot be employed to produce fine pottery without requiring further preparation.

The point to be noted is the absence, in all the versions of the tariff heading concerned, of any reference to the process of refining the raw material.

I am therefore of the opinion that the objective characteristics of the finished product must be the decisive criterion for distinguishing between the two concepts, regardless of whether the raw material used has or has not undergone an industrial process of refinement.

This is, moreover, in accordance with the practical criterion on which, in its decisions, this Court has relied in resolving disagreements on the subject of classification and which meets the need for its decisions to be based on considerations which are as simple and clear as possible so as to avoid uncertainty and unnecessary complications for the customs authorities in the performance of their tasks. This also accords with the need for legal certainty.

But we are now faced with the problem of defining the characteristics which make it possible to distinguish common pottery both from the fine pottery referred to under heading 69.12 C and from the other kinds of pottery (apart from porcelain) referred to under heading 69.13 C of the Common Customs Tariff.

For a definition of these terms, the explanatory notes to the Common Customs Tariff refer to the Explanatory Notes to the Brussels Nomenclature. With the object of distinguishing porcelain from the other kinds of pottery under customs heading 69.12, the Brussels Nomenclature defines pottery made from common clay and earthenware articles by reference to certain features of their appearance. The latter are included under heading 69.12 C together with articles of fine pottery, so it can be assumed that the criteria laid down for them in the Brussels Notes also apply to fine pottery.

In particular the Brussels Notes instance as typical features of pottery made from common clay the earthy texture and opaque colour which is thereby produced and the structure of the objects. Although, compared with porcelain, somewhat coarse-grained, the texture of earthenware articles is nevertheless of reasonably fine and homogenous quality. Its colour, too, can help to distinguish it from pottery made from common clay. It is true that these Explanatory Notes deal with the concepts under consideration here mainly with a view to establishing the differences between porcelain and articles of other kinds of pottery, but, in so doing, the notes deal separately with the two types of pottery products and set out the distinctive features of each, which may help to differentiate between them. There does not, therefore, appear to be any ground for doubting the validity of these criteria in defining the corresponding products referred to under tariff headings 69.12 and 69.13.

In its Opinion dated 19 June 1972, the Committee on Common Customs Tariff Nomenclature in effect treated the homogeneity and the fineness of grain as factors which help to distinguish common pottery tiles from tiles made of other ceramic materials, these characteristics depending on the grade of refinement of the raw material. As was stated during the proceedings, what is involved is not a broad definition of the concepts at issue but only their application to a specific product. In its observations, the Commission argued that these criteria may be used on a wider scale though without excluding other additional criteria to distinguish common pottery products, among them being porosity, permeability, opacity and whether they may be easily scratched.

It is not, in my view, for me to comment on the soundness of criteria which are technically so sophisticated that they are beyond me. The knowledge which, as such, a lawyer possesses on the subject of pottery does not enable him to decide whether the particular features picked out by the Notes to the Brussels Nomenclature or the other features referred to by the Commission are, when applied, worthy to be considered as the better pointer to the real nature of the product.

Although, to enable the Court to take its decision in a particular case, arrangements could be made to obtain expert opinion to advise it on technical questions, it is my opinion that, bearing in mind the wider import of the judgments it has delivered under Article 177 of the Treaty, recourse to expert opinion should be avoided in the case of a preliminary ruling on interpretation. In this connexion it should be noted that, according to what has been stated in the decision of the Bundesfinanzhof, the experts who comprise the relevant Committee on Common Customs Tariff Nomenclature have not so far succeeded in reaching agreement on a precise definition of common pottery within the meaning of Chapter 69 of the Common Customs Tariff. The importance of this should not be underestimated.

As the Commission has observed, the various criteria referred to above are not necessarily incompatible with each other and it must be conceded that they can, as a rule, be used simultaneously, at least with one supplementing the other.

Moreover it might become necessary to use the criteria suggested by the Commission if, in a concrete case involving a particular kind of product, the distinguishing factors set forth in the Brussels Explanatory Notes proved inadequate to provide a reliable basis of classification.

On the other hand, there should be no question of using the criteria proposed by the Commission if, as might happen in the present case, this impelled us to adopt a customs classification other than that which would be produced by the criteria described in the Notes to the Brussels Nomenclature. In those circumstances I am of the opinion that, in the interests of legal certainty, the latter criteria must take precedence in view of the fact that they are expressly referred to by the Explanatory Notes to the Common Customs Tariff. This would, moreover, appear to accord with the rule consistently followed by the Court that, in the absence of Community provisions, the Brussels Explanatory Notes are authoritative on the interpretation of Common Customs Tariff headings. To mention only the most recent in a long series I refer in this connexion to the judgments in Cases 12/73, Muras [1973] ECR 975, 185/73, König ([1974) ECR 619) and 35/75, Matisa, ([1975] ECR 1212).

The fact that the Commission has referred to different criteria used by the Committee on Common Customs Tariff Nomenclature in connexion with the classification of a particular product is, in the absence of a more detailed official decision on the part of that Committee, insufficient forthwith to invalidate the criteria set out in the Explanatory Notes to the Brussels Nomenclature.

I conclude therefore by recommending that, in reply to the questions put by the Bundesfinanzhof, the Court should, rule that the concepts of ‘Tableware … Common Pottery’ and ‘articles of personal adornment; articles of furniture … Common pottery’ under headings 69.12 A and 69.13 A respectively of the Common Customs Tariff differ from the concepts of ‘Tableware … fine pottery’ and ‘articles of personal adornment; articles of furniture … Other’ under headings 69.12 C and 69.13 C respectively by virtue of the quality and objective characteristics of the finished product as, with reference to heading 69.12, they are described by the Explanatory Notes to the Brussels Nomenclature and, in addition, as they are identified in the opinion expressed on 19 June 1972 by the Commission in respect of a particular product coming within the concept of ‘Other’ than the common pottery referred to under tariff heading 69.08.

In the event of conflict between the relevant criteria laid down by the Notes to the Brussels Nomenclature and those laid down by the Commission, the criteria laid down by the Notes to the Brussels Nomenclature must prevail in the absence of Community explanatory notes or of decisions equal in authority to the aforesaid tariff headings.

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(*1) Translated from the Italian.