C-63/77

JUDGMENT OF 15. 12. 1977 - CASE 63/77 POPPE v OBERFINANZDIREKTION COLOGNE

CELEX: 61977CJ0063
Datum: 1977-12-15
Källa: eur-lex.europa.eu

In Case 63/77 Reference to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the action pending before that court between

THE COURT composed of: G. Bosco, President of Chamber, J. Mertens de Wilmars and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

The facts, the procedure and the written observations submitted under Article 20 of the protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and procedure

1. On 3 January 1975 Firma Ludwig Poppe applied to the Oberfinanzdirektion, Cologne, for a binding customs tariff notification relating to ‘single copy’ copying paper known as ‘Huron Copysette’. The goods, which are designed for producing typed copies, consist of a set of two sheets of paper of DIN A 4 format — one sheet of flimsy paper and one sheet of ‘single copy’ carbon paper, stuck together at three points underneath. After the copy has been made the ‘single copy’ carbon paper is detached and thrown away. In its binding customs tariff notification the Oberfinanzdirektion classified the goods as ‘other stationery of paper’ under tariff heading 48.18 of the Common Customs Tariff. The rate of duty applicable to such goods is 21 % (autonomous) or 15 % (conventional). On 10 March 1975 the Firma Poppe lodged an objection against that notification, claiming that the goods should be classified under tariff heading 48.13 as ‘other copying papers … cut to size, whether or not put up in boxes …’, or at least under subheading 48.15 B, as ‘Other paper … cut to size or shape’. The rate of duty applicable to such goods is 19 % (autonomous) or 12 % (conventional). The Oberfinanzdirektion dismissed the objection by a decision of 28 August 1975 pointing out that having regard to their dimensions the goods could not be classified under Part I of Chapter 48 which covers large size papers (rolls or sheets). As regards classification in Part II of the same chapter they could not fall within tariff heading 48.13, which comprises carbon paper cut to size as copying paper but not carbon paper stuck to a sheet of ordinary paper falling within tariff heading 48.15. Furthermore classification of the goods under heading 48.15 was ruled out because they were no longer ordinary paper within the meaning of that tariff heading, since they consisted of a set of one sheet of writing paper and one sheet of carbon paper. Poppe, on the other hand, submitted that classification of the goods under tariff heading 48.13 was justified because they were only used with the addition of an original letter and thus were employed for the same purpose as the goods mentioned in that heading, namely the production of copies (duplication). On the other hand classification of the goods under subheading 48.15 B might be considered because of their form and of the material used. Moreover they claimed that if goods were not expressly mentioned in a tariff heading they must be classified under the tariff heading of which they have at least two of the distinguishing features; in this case tariff heading 48.13 or subheading 48.15 B. They could not, on the other hand, be classified under tariff heading 48.18 since the distinguishing feature of goods referred to in that heading was their binding (by the use of paper and paperboard which were lacking in this case).

2. The issue was taken to the Bundesfinanzhof which by an order of 5 April 1977 entered at the Court Registry on 17 May 1977 decided to stay proceedings and to refer to the Court of Justice for a preliminary ruling the following question: The Bundesfinanzhof in the grounds of its order states: The tariff headings to be taken into account for the classification of the sets at issue are tariff headings 48.13, 48.15 and 48.18; Carbon paper cut to size is mentioned in tariff heading 48.13 whereas flimsy writing paper, as paper cut to size falls within tariff heading 48.15; Although the sets consisting of the two aforesaid types of paper may also be classified as ‘Other’ paper under subheading 48.15 B, it is equally true that, since the carbon paper in this case has been stuck to the flimsy paper which falls within tariff heading 48.15, it has undergone a different method of preparation which could justify its classification under tariff heading 48.18 as ‘other stationery of paper’.

‘Is tariff heading 48.15 of the Common Customs Tariff to be interpreted as including only paper of a single kind such as the adhesive strips referred to in tariff subheading 48.15 A, and not sets consisting of sheets of different kinds of paper stuck together, each of which is expressly named in or falls under a different tariff heading, such as carbon paper of tariff heading 48.13 and flimsy paper cut to size or shape of tariff subheading 48.15 B, or do such sets automatically fall under tariff heading 48.18 as other stationery of paper?’

3. Firma Ludwig Poppe, represented by Debroschke and Partners and Mr Müller-Kern and the Commission of the European Communities represented by its Legal Adviser, Manfred Beschel, submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC. Having heard the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to assign the case to the First Chamber in accordance with Article 95 of the Rules of Procedure and to open the oral procedure without any preparatory inquiry.

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

a) Firma Ludwig Poppe takes the view that, since the goods at issue allow copying to be effected by the transfer of the carbon coating of the carbon paper to the other sheet of paper, they must be classified under tariff heading 48.13. In so far as the sheets of paper which are used for such purposes comply with the requirements as to size they are in fact included comprehensively in that tariff heading. Furthermore the goods are ‘put up in boxes’ in a manner which corresponds to the type of packaging mentioned in tariff heading 48.13. Moreover, it is in this tariff heading that the imported goods are in fact classified in Switzerland, Spain and France. Should it appear to be impossible to classify the imported goods under tariff heading 48.13, they should at least be classified under tariff heading 48.15. The goods in question are in fact cut for the purpose of making copies; the requirements as to size are complied with where the size is 21 × 29.7 cm. On the other hand they do not satisfy the requirements of tariff heading 48.18. The main feature of the goods covered by that heading, namely a significant transformation, is missing, since they are neither bound nor printed. Furthermore this case is not concerned with a set of forms ready for use on an office machine, which according to the ‘Classification slips’ of the Nomenclature Committee of 18 May and 9 June 1972 is a determinative criterion in such a case. In fact ‘Huron Copysette’ paper does not of itself enable a copy to be made.

b) The Commission points out that the technical progress made in the manufacture of industrial products means the appearance on the market of goods with new features. The paper at issue is such an example: it is made up of two kinds of paper, manufactured separately (carbon paper and flimsy paper for copying) and stuck together in such a way that the copying is made easier by eliminating the risk that the sheets might slip. The reason why it is difficult to interpret and apply the Common Customs Tariff is that the proper place for such new goods has to be found within the ambit of the static provisions of the tariff. For such purposes it is advisable to rely in the first place on the wording, the structure and the objectives of the tariff. Where necessary reference must be made to the Explanatory Notes to the Common Customs Tariff, the Explanatory Notes to the Brussels Nomenclature and to the Classification slips of the Nomenclature Committee as auxiliary means of interpretation. The Commission remarks that the question referred to the Court turns on the delimitation of the three tariff headings, 48.13, 48.15 B and 48.18 and unlike tariff heading 48.13 which covers specific goods, the features whereof are accurately described, subheading 48.15 B and tariff heading 48.18 are ‘residual’ tariff headings intended for those goods of a kind not specifically mentioned elsewhere. Subheading 48.15 B is distinguished in turn from tariff heading 48.18 in that it only includes paper whose sole feature is that it has been cut, whereas tariff heading 48.18 comprises stationery of paper which in addition to being cut has undergone processing for a specific use. As for tariff heading 48.13 it is clear from its wording that the main feature of the goods which it covers is that they are a ‘means’ of copying manufactured from a given substance (paper) and presented in a particular form. The technique of copying is of little importance. In the case of the goods at issue the copying paper is only a part thereof, the other part consisting of writing paper (copying paper). Only the sheet of carbon paper in the set fulfils the conditions of tariff heading 48.13; the other sheet is no longer a means of copying but a sheet of paper designed to record the result of the copying. However, classification of the goods under tariff heading 48.13 presupposes that ‘taken as a whole’ they fulfil the conditions referred to in that tariff heading. Since the set in question includes both the means and the result of the copying, classification under tariff heading 48.13 is consequently ruled out. For the same reason a classification for tariff purposes under subheading 48.15 B is out of the question. Sheets of copying paper covered by that subheading are in fact paper which has not undergone any process other than cutting. Since the flimsy paper is attached to a sheet of carbon paper, it is no longer paper which has merely been cut with the result that the set of two sheets, that is to say the goods at issue, cannot be classified under subheading 48.15 B. Furthermore this subheading covers only ‘Other paper’, that is to say paper which has not already been mentioned in any other tariff heading, whereas the sheet of ‘carbon paper’ which is part of the set in question is, at all events in its own right, already referred to in tariff heading 48.13. On the other hand the fact that the goods in question have features found in two tariff headings does not justify their classification under one or other of those headings having regard to Note 3 to Chapter 48 which states that: ‘Paper or paperboard answering to a description in two or more of the headings Nos 48.01 to 48.07 is to be classified under that one of such headings which occurs latest in the Tariff’. In the first place it is impossible to apply that Note directly since only tariff headings 48.01 to 48.07 are expressly mentioned in it. In the second place an application by analogy is also out of the question, since the tariff, by subdividing Chapter 48 into two sub-Chapters, makes a clear and systematic distinction defined in Note 4. That distinction would be disregarded if Notes, the application whereof is expressly limited to goods in sub-Chapter I, could be used by way of interpretation for the classification of goods falling within sub-Chapter II. Furthermore an application by analogy of Note 3 could only be considered if the goods in question were not completely covered by tariff heading 48.18 which is in fact the position in this case.

The latter tariff heading in fact covers two kinds of goods, namely:

a) on the one hand certain articles which according to the Explanatory Notes to the Brussels Nomenclature have the common feature of being ‘bound books (including loose-leaf) or blocks’, and

b) on the other hand all the ‘other stationery of paper’ which is not specifically described in any other tariff heading and has not been produced by merely cutting the paper.

It follows from this that all paper which has been cut and undergone a process of working not covered by a specific tariff heading must be classified under that tariff heading. The type of working and the kind of paper play little part for this purpose and this is in conformity with the residual function of that heading. This function cannot be adequately performed if, by means of a somewhat strained interpretation, the feature mentioned in (a) above of certain articles expressly referred to in the expression ‘other stationery of paper’ is included. The Explanatory Notes to the Brussels Nomenclature also give the expression ‘other stationery of paper’ a very wide meaning. Furthermore tariff heading 48.18 also mentions articles in the making up of which there has been no binding (for example blotting-pads).

These conclusions concerning the scope of this tariff heading are not invalidated by the ‘Classification slips’ of the Nomenclature Committee of 18 May and 9 June 1972. The scope of this means of interpretation is limited to the specific case to be determined and in no way prejudges other cases which are different.

In the first slip the reason given for the classification, of the article concerned under tariff heading 48.18 was that two kinds of different paper were used at the same time to make a new article ready for use. In the second slip concerning ‘continuous sets of forms’ composed of strips of paper superimposed, bound together by embossing, ordinary stapling or sticking, the article was also classified under tariff heading 48.18 the binding not being a factor in this respect.

On the basis of these observations the Commission proposes that the question referred to the Court be answered as follows:

‘Sets consisting of two sheets of paper of DIN A 4 format simply stuck together, one of them being carbon paper and the other flimsy paper must be classified under tariff heading 48.18 as other stationery of paper’.

Ill — Oral procedure

The Commission of the European Communities submitted oral observations at the hearing on 20 October 1977.

The Advocate-General delivered his opinion at the hearing on 1 December 1977.

Decision

1. By order of 5 April 1977 which reached the Court on 17 May 1977 the Bundesfinanzhof, pursuant to Article 177 of the EEC Treaty, referred the following question to the Court for a preliminary ruling:

2. This question has been referred to the Court in connexion with a dispute relating to the tariff classification of goods known as ‘Huron Copysette’ designed to make typed copies and consisting of a set of one sheet of flimsy paper and one sheet of carbon paper, each of DIN A 4 format, the carbon paper being detached and thrown away after the copy has been made. The competent customs authorities in their opinion on the tariff classification of these goods assigned them to subheading 48.18 of the Common Customs Tariff as ‘other stationery of paper’. The undertaking concerned on the other hand maintains that the goods should be classified under tariff heading 48.13 as ‘Carbon and other copying papers … cut to size, whether or not put up in boxes’ or at least under heading 48.15 as ‘Other paper and paperboard, cut to size or shape’, paragraph B.

3. Copying paper is specifically referred to in tariff heading 48.13 of the Common Customs Tariff. It is clear from the wording of that tariff heading and from the Explanatory Notes to the Brussels Nomenclature relating thereto that it includes only ‘paper coated or sometimes impregnated in such a way that one or more copies of an original document can be made by applying pressure …’. Since the goods at issue consist of a set of two sheets of paper, only one of which is a means of copying, whereas the other is intended to record the results of such copying, they cannot be classified under tariff heading 48.13.

4. Since tariff heading 48.15, on the other hand, refers to ‘Other paper and paperboard, cut to size or shape’, it applies only to goods which have not been specifically listed in one of the preceding tariff headings of Part II of the same Chapter. Since carbon paper is specifically listed in tariff heading 48.13, sets of paper such as those at issue in this case cannot therefore be considered as ‘Other paper …’ within the meaning of tariff heading 48.15 and classified under that heading. Such sets do not fall under either tariff heading 48.13 or heading 48.15, since General Rule 3 of the Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, which refers to goods classifiable under two or more tariff headings, does not apply to them. In these circumstances these sets must be classified for tariff purposes under one of the tariff headings 48.16 to 48.21 of the same chapter.

5. Tariff heading 48.18 covers not only certain articles expressly defined therein but also ‘other stationery of paper …’ which has not been specifically listed in an other tariff heading of the Chapter and which is not made up simply by cutting but involves more elaborate working. The Explanatory Notes to the Brussels Nomenclature which define the scope of tariff heading 48.18 state that it covers inter alia‘a variety of paper stationery … or blocks’. Having regard to the way in which the goods are made up and to the working process which they have undergone they represent goods referred to in that heading.

6. For these reasons the answer to the question referred to the Court should be that tariff heading 48.15 of the Common Customs Tariff must be interpreted as meaning that it does not include goods consisting of two sheets of DIN A 4 format stuck together, one of which is carbon paper and the other flimsy paper, as such goods must be classified under tariff heading 48.18 as ‘other stationery of paper’.

Costs

7. The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable. Since these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court.

On those grounds, THE COURT (First Chamber), in answer to the question referred to it by the Bundesfinanzhof, by order of 5 April 1977, hereby rules: