delivered on 15 May 1985 (*1)

Mr President,

Members of the Court,

1.By an order of 8 May 1984, the Bundesfinanzhof [Federal Finance Court] referred the following questions to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty, in the context of proceedings between a German company, Thomasdünger GmbH, and the Oberfinanzdirektion [Principal Revenue Office] Frankfurt am Main:

(1)Is tariff heading 26.02 of the Common Customs Tariff to be interpreted as including converter slag or converter lime with a phosphate content of about 6 to 7%? Is it relevant in this regard that the product in question is a mixture of converter slags or converter limes the individual components of which have a varying phosphate content or that phosphate has been added?

(2)If the answer to question (1) is in the negative: Is tariff subheading 31.03 B of the Common Customs Tariff to be interpreted as including that product?

(3)If the answer to question (2) is in the negative: Is tariff subheading 31.03 A II of the Common Customs Tariff to be interpreted as including that product?

The order for reference informs us that the plaintiff in the main proceedings sought a binding customs tariff ruling pursuant to Paragraph 23 of the German customs law in respect of the abovementioned product even though it had been imported from France. In the ruling, issued on 9 July 1980, the administrative authorities classified the product under subheading 31.03 B of the Common Customs Tariff, which concerns basic slag (with fertilizing properties). The undertaking lodged an objection which was, however, dismissed, and in its subsequent action before the courts, claimed that the goods in question should be classified under heading 26.02 of the Common Customs Tariff which covers, inter alia, slag from the manufacture of iron or steel.

2. In the observations it submitted to the Court, the Commission states that it does not understand how these proceedings arose. The subject of the main proceedings is the importation into Germany of goods coming from another Member State and thus clearly outside the scope of the Common Customs Tariff. Thomasdünger recognizes that fact but observes that for reasons of an internal character, some German authorities make use of the Community classification. That is the case with the Bundesbahn [Federal Railways] which charges different rates for transporting products derived from the steel industry according to the heading of the Common Customs Tariff under which they are to be classified. An erroneous classification of goods could therefore increase transport costs and cause the undertaking to lose in this case DM 2500000 a year. That is the basis of Thomasdünger's interest in the reply which this Court will give to the questions referred to it by the Bundesfinanzhof. Of the two arguments, I prefer the former (which, if I am not mistaken, is also supported by the Court's case-law: see the judgment of 17 December 1975 in Case 93/75, Adlerblum v Caisse nationale d'assurance vieillesse des travailleurs salariés [1975] ECR 2147). The Community law which the national court is asking this Court to interpret actually concerns the main proceedings, and affects the interests of the parties, not directly but per relationem. In other words, it comes into consideration solely because a national authority has decided, freely and unilaterally, to adopt it as a frame of reference in order to determine its own rules. In replying to those questions therefore, the Court would in appearance be interpreting the provisions mentioned therein but would in reality be expressing an opinion on the internal rules in which those provisions had been absorbed and by which process they had lost their binding force. That is something which the Court is expressly prohibited from doing by Article 177 of the Treaty.

I regard that argument as decisive but a further point might be added. When the Community authorities defined the Common Custom Tariff headings, they were concerned inter alia with ensuring that goods coming from nonmember countries meet the Community's minimum requirements for permitting them to be placed in free circulation on the common market. However, it is clear that the national authorities could not have had the same purpose. It follows that when the Common Customs Tariff headings are used by the national authorities in the way set out above, they are deprived of at least one of their purposes and acquire others of a different character. Thus, from that point of view also, it is impossible for the Court to interpret them.

3. On the basis of the foregoing, I propose that this Court reply to the national court as follows: The questions referred to the Court of Justice under Article 177 of the EEC Treaty by an order of the Bundesfinanzhof dated 8 May 1984 in the framework of proceedings between Thomasdünger GmbH and the Oberfinanzdirektion Frankfurt do not concern the interpretation of the provisions of the Treaty or of Community law derived therefrom and are as such outside the jurisdiction of the Court of Justice.

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(*1) Translated from the Italian.