JUDGMENT OF 16. 10. 1980 — CASE 816/79 MECKE v HAUPTZOLLAMT BREMEN-OST

In Case 816/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Bremen for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the 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 written procedure

On 4 August 1978 Klaus Mecke & Co, an import-export business having its registered office in Bremen, applied to the Zollamt (customs office) Bremen-Neustädter Hafen for clearance into free circulation of a consignment of 100 bales of goods from the United States of America, which it described in the customs declaration as 6 mm flock and dust of man-made fibres, falling within subheading 59.01 B I of the Common Customs Tariff and therefore subject to conventional customs duty at a rate of 4%.

After carrying out a random sampling check the customs office concluded that the goods which had been imported by Mecke were in fact 6 to 7 mm cuttings of synthetic textile fibres (polyester), falling within subheading 56.01 A of the Common Customs Tariff as synthetic textile fibres (discontinuous), not carded, combed or otherwise prepared for spinning, in respect of which a conventional customs duty applies at a rate of 9%.

By a notice of assessment of 8 August 1978 the Hauptzollamt (Principal Customs Office) Bremen-Ost therefore charged Mecke the sum of DM 4283.62, being DM 1658 for customs duties and DM 2625.62 for import turnover tax.

An objection lodged by Mecke on 17 August 1978 against that assessment was rejected by a decision of the Hauptzollamt Bremen-Ost on 26 September 1978.

On 24 October 1978 Mecke appealed against that decision to the Finanzgericht (Finance Court) Bremen.

Its main argument is that the dispute has arisen because as a result of the advance of technology in the preparation of textile fibres a new product has appeared recently on the market, the short-cut fibre, which is not expressly covered by the Common Customs Tariff. Such fibre cannot be classified in subheading 56.01 A, as the term “textile fibres” implies that they are suitable for subsequent spinning; but the fibres imported by Mecke are too short to be spun on the machines currently used by the textile industry. According to the Explanatory Notes to heading 56.01 of the Customs Co-operation Council Nomenclature, textile fibres are usually between 25 and 180 mm in length, the ideal length for spinning by machine; the textile fibre products referred to in Chapter 56 are, moreover, all worked by spinning such fibres.

The goods in question are for use in the manufacture of bonded fibre fabrics by the wet process, products which fall within Chapter 59 of the Common Customs Tariff; the basic product must therefore also fall within Chapter 59.

Furthermore, the Explanatory Notes to the Customs Co-operation Council Nomenclature on tariff heading 59.01 specify that flock is produced by cutting textile filaments or fibres into very short lengths, “generally up to 2 mm long”; at 6 mm, the product which has been imported is certainly longer, but the excess over 2 mm in length is compatible with the terms used (“generally”).

In any case, a cutting of 6 mm differs much more from the length specified in the Explanatory Notes for textile fibres (25 to 180 mm) than it does from the length specified for flock.

The Hauptzollamt Bremen-Ost contends that the suitability of synthetic textile fibres for spinning is a criterion without any relevance whatsoever to tariff classification; the deciding factor lies in the objective physical characteristics of the product.

The concept of “textile fibres” as used in the tariff classification applies to man-made fibres produced by spinning; that view is supported by the Explanatory Notes to the Customs Co-operation Council Nomenclature on tariff heading 56.01. The products referred to in Chapters 50 to 57 of the Common Customs Tariff are listed according to the kind of material of which they are made. Some raw fibre and most waste is not suitable for spinning; but they are nevertheless classified under the corresponding headings in the chapter. Moreover, the textile fibres used in manufacturing the bonded fibre fabrics of Chapter 59 are of varying lengths (6 to 60 mm).

In order to be considered as “flock and dust” within the meaning of subheading 59.01 B of the Common Customs Tariff, the textile fibres must be short enough to have the characteristic of dust. The Explanatory Notes to the Customs Cooperation Council Nomenclature on tariff heading 59.01 refer to “very short fibres”, or to “very short lengths”. The words used in the Explanatory Notes, “generally up to 2 mm long”, must be strictly interpreted; moreover, the wording cannot justify in any way the classification under subheading 59.01 B of the Common Customs Tariff of synthetic fibres between 6 and 7 mm long.

The only classification possible is under subheading 56.01 A: the products concerned in the dispute cannot be considered as waste of synthetic textile fibres falling within subheading 56.03 A as they are too cleanly cut and even.

By an order of its Second Chamber of 1 November 1979 the Finanzgericht decided to stay the proceedings, pursuant to Article 177 of the EEC Treaty, until a preliminary ruling had been obtained from the Court of Justice on the following question:

Do cuttings of synthetic textile fibres (polyester) of 6 to 7 mm in length fall within subheading 56.01 A of the Common Customs Tariff as synthetic textile fibres (discontinuous), not carded, combed or otherwise prepared for spinning, or within subheading 59.01 B I as flock and dust of man-made fibres?

The order of the Finanzgericht Bremen was received at the Court Registry on 17 December 1979.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted on 11 February and 3 March 1980 by Klaus Mecke & Co, the plaintiff in the main action, and on 5 March 1980 by the Commission of the European Communities, represented by its Legal Adviser, Manfred Beschel.

After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

By an order of 7 May 1980 under Article 95 (1) and (2) of the Rules of Procedure the Court decided to assign the case to the Second Chamber.

II — Written observations submitted to the Court

Klaus Mecke & Co, the plaintiff in the main action, has submitted to the Court expert evidence supplied by the Öffentliches Warenprüfungsamt für die Textilindustrie GmbH, [Public Inspection Centre for Products of the Textile Industry], Aachen, the Staatliches Prüfamt für das Textilgewerbe [National Inspection Centre for the Textile Industry], Münchberg, the Bundesanstalt für Materialprüfung, Fachgruppe Textilien und Leder [Federal Quality Control Bureau, Textiles and Leather Section], Berlin, and the Vezelinstituut [Fibre Institute] TNO, Delft (The Netherlands), according to which the products in question should be classified under heading 59.01 of the Common Customs Tariff. Such a classification is principally based on the assertion that tariff heading 56.01 concerns textile fibres which, according to modern techniques, may be converted into yarn by spinning and are constituted, within the meaning of the Customs Tariff, by flock and all short cuttings of synthetic fibres.

The Commission points out that the question of interpretation which has been submitted to the Court seeks a definition of the meaning, in the context of tariff classification, of the terms “synthetic textile fibres” and “flock and dust of man-made fibres” and a definition of the criteria for distinguishing them by comparing the different characteristics embraced by those terms. In order to interpret the tariff subheadings in question the basic guide should be the wording, the aims and the general scheme of the Common Customs Tariff itself; recourse may also be had to the Explanatory Notes and to opinions relating to the Common Customs Tariff and to the Customs Co-operation Council Nomenclature, which are important factors in interpretation, but the sole purpose of which is to explain or to define, without in any way modifying the wording of the Common Customs Tariff.

a) According to the German language version of Explanatory Note 1 on Chapter 51 of the Customs Co-operation Council Nomenclature in order to qualify as “man-made fibres”, the material must satisfy three conditions: it must have a particular chemical structure (organic polymers), it must have been produced by a particular chemical technical process (by polymerization or condensation of organic monomers) and it must be in the form of “Faser” (fibres) as opposed to “Faden” (filaments). That interpretation is borne out by the “legal definition” in the other language versions of subheading 56.01 A and in Explanatory Note 1 on Chapter 51; in particular, the word “discontinuous” refers to the condition of “fibres”. The classification criteria based on chemical composition, the manufacturing process and the external appearance of the fibres constitute at the same time an exhaustive list of the features decisive for tariff classification of synthetic textile fibres. The presence of all of them is required, but is also sufficient, for a product to be classified as textile fibres within the meaning of subheading 56.01 A. On the other hand, the possible uses to which such fibres may be put, for instance their suitability for spinning, has no bearing whatsoever on the tariff classification. It would be wrong to deduce from the words “textile fibres” that the fibres must be suitable for spinning; in reality, the concepts of textile material, textile filaments and textile fibres are derived from the spinning process used for manufacturing such products, It appears, moreover, that fibres of at least 5 mm in length can be spun. The fact that textile fibre products referred to in tariff headings 56.05 to 56.07 are, in practice, obtained by spinning, is irrelevant: Chapter 56 contains no exhaustive listing at all of textile fibre products.

b) Products falling within subheading 56.01 A are indistinguishable, as regards essential features and manufacturing process, from those falling within subheading 59.01 B I, so that the essential question is whether products such as those which form the subject-matter of the main action should, for the purposes of tariff classification, still be considered as fibres or as flock and dust on the basis of their external appearance. and, more particularly, their length. Textile filaments are continuous; synthetic fibres, on the other hand, are characterized by their restricted lengths and by large differences in length. They are normally produced by cutting continuous filament tow and the desired lengths can be obtained merely by regulating the cut; the length is fixed according to requirements, the length most frequently found varying between 2 and 20 cm. Fibres of between 6 and 7 mm in length are also covered by the concept of “textile fibres” used in the Common Customs Tariff. In stating that man-made fibres are usually between 2.5 and 18 cm in length, the Explanatory Notes to the Customs Co-operation Council Nomenclature on heading 56.01 are referring to the kind of textile fibres most commonly found; they do not contain any obligatory length limit. The products imported by Mecke are textile fibres which have been cut to a length shorter than is usual for textile fibres with a view to their future use in the manufacture of certain bonded fibre fabrics.

c) A classification of the disputed products under subheading 59.01 B I is unacceptable. The Common Customs Tariff does not define the concept of flock arid dust. It does, however, refer to the process of shearing and describes the particles of textile material produced by such a process; the German wording of the subheading further requires that the goods have the appearance of dust. That is the primary classification test: it relies on the objective state, and not on the manufacturing process, which is difficult, indeed impossible, to check. The products falling within subheading 59.01 B I must be a particular kind of matter, synthetic textile material, in the form of dust. In general, the term “dust” applies to particles which are very small, powdery or floury, and impossible to discern with the naked eye: reference works define dust as being constituted by fine, solid particles, of varying shape, structure and density, or of solid matter which has been pulverized. The Explanatory Notes to the Customs Co-operation Council Nomenclature concerning heading 59.01 give some explanation of the concept of dust. The main point to be noted in that explanation is that textile flock consists of “very short” fibres which may be produced by the cutting of filaments or fibres into “very short lengths”; that emphasizes in a generic fashion the powder-like character of the product. The expression “generally up to 2 mm long” seems to indicate that longer fibres might also be considered as flock and dust; a general conclusion to that effect would be incorrect and incompatible with the wording of the Common Customs Tariff. Flock and dust is obtained during various finishing operations; it is thus inevitable that the particles which constitute it are of uneven lengths, the average being not more than (“generally”) 2 mm. It is possible for some fibres to be longer without that affecting the powder-like character of the goods as a whole. However, the situation would be quite different if all the fibres were cut to a length which regularly exceeded 2 mm; such goods would no longer have the characteristic of dust required by the Common Customs Tariff.

d) Textile fibres which have been cut regularly to a length of 6 or 7 mm can no longer be considered as flock and dust within the meaning of the Common Customs Tariff and do not therefore fall within subheading 59.01 B I. The reply to the question which has been referred to the Court by the Finanzgericht Bremen should therefore be: Cuttings of synthetic textile fibres with a regular length of 6 to 7 mm are synthetic textile fibres falling within subheading 56.01 A of the Common Customs Tariff.

III — Oral procedure

The company Klaus Mecke and Co, the plaintiff in the main action, represented by its owner Klaus Mecke, and the Commission of the European Communities represented by Manfred Beschel, presented their oral observations and their replies to questions asked by the Court at the hearing on 12 June 1980.

Mecke, relying on additional expert opinions given by the Industrieverband Vliesstoffe [Industrial Association for Bonded Fibre Fabrics], Wiesbaden, the Staatliches Prüfamt für Textilstoffe [National Centre for the Examination of Textile Materials], and the Öffentliche Prüfstelle und Textilinstitut für Vertragsforschung [Public Inspectorate and Textile Institute for Research under Contract], Krefeld, continued to maintain that the disputed products unquestionably fall within heading 59.01 of the Common Customs Tariff.

Mecke claims that on the wording of the Common Customs Tariff, the definitions it gives, and the Explanatory Notes, Chapter 56 does not cover man-made textile fibres which are not suitable for being worked by spinning and heading 59.01 is the appropriate classification, as flock and dust, of the product obtained by cutting into very short lengths textile filaments or fibres, which are not suitable for spinning and the nature of which has clearly been altered from that of textile fibres.

The Principal Customs Office, Bremen-East, Mecke alleges, has not sought to obtain a proper expert opinion from any official and impartial body.

In the course of 25 years' experience of international trading in man-made fibres of all kinds and of importing by way of a large number of ports and customs offices, no difficulty whatsoever has ever been encountered as to the tariff classification of fibres which, depending on their length and thus their suitability for spinning, have been classified either in Chapter 59 or in Chapter 56.

There are, according to the Explanatory-Notes on tariff heading 59.01, three types of flock and dust: that resulting from finishing operations for fabrics, that manufactured by cutting textile filaments or fibres into very short lengths, and that obtained by grinding textile fibres to a powder; only the last named has in fact a powder-like quality. The decisive criterion for classification in heading 59.01 cannot, therefore, be the powderlike character of the goods.

The Advocate General delivered his opinion at the sitting on 18 September 1980.

Decision

1. By an order of 1 November 1979 which was received at the Court on 17 December 1979, the Finanzgericht [Finance Court] Bremen, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of subheadings 56.01 A and 59.01 B I of the Common Customs Tariff, with reference to the tariff classification of short cutting of synthetic textile fibres.

2. According to the order making the reference the plaintiff in the main action imported in August 1978 a consignment of cutting of man-made textile fibres in polyester, cut to a length of between 6 and 7 mm, from the United States of America. The importer declared the goods as “flock and dust of man-made fibres”, as described in subheading 59.01 B I of the Customs Tariff, subject to conventional customs duty at a rate of 4%.

3. The customs office, however, considered the goods to be “synthetic textile fibres” falling within subheading 56.01 A, on which conventional customs duty is levied at a rate of 9%. In the opinion of the customs administration subheading 59.01 B I adopted by the plaintiff refers exclusively to extremely short cuttings of textile fibres which are of a dust-like consistency, such as are normally obtained from fabric finishing operations and, in particular, from the shearing of velvets. According to the interpretative notes of the Customs Co-operation Council, that subheading is not applicable to cuttings exceeding 2 mm in length, even when they are produced by the cutting of textile filaments or fibres. That being so, the customs administration considers that there is no choice but to classify the goods in question under subheading 56.01 A.

4. Following the rejection by the Principal Customs Office of the objection lodged by the plaintiff, the latter brought an action before the Finanzgericht, which has referred a question to the Court for a preliminary ruling in order to enable it to determine the respective scope of the two customs headings adopted by the parties. That question is worded as follows :

“Do cuttings of synthetic textile fibres (polyester) of 6 to 7 mm in length fall within subheading 56.01 A of the Common Customs Tariff as synthetic textile fibres (discontinuous), not carded, combed or otherwise prepared for spinning, or within subheading 59.01 B I as flock and dust of man-made fibres?”

5. In the proceedings before this Court the plaintiff based its principal submissions on the fact that, as interpreted by it, subheading 56.01 A covers exclusively textile fibres which are suitable for spinning, which is not the case for extremely short cuttings similar to those which it imported. In the latter case heading 59.01 must apply, for it embraces various types of fibre characterized by the fact that they cannot be spun. In fact the fibres which are the subject of the dispute are to be used for manufacturing bonded fibre fabrics of heading 59.03, which forms part of the same chapter as flock and dust.

6. The Commission, for its part, agrees with the view of the customs administration. It considers that goods like those concerned in this case, which are cut to a regular length of several millimetres, should be considered as “textile fibres” within the meaning of subheading 56.01 A, whereas the flock and dust of subheading 59.01 B I, according to several of the language versions of the customs tariff, notably the German, English and Danish versions, are characterized by their powder-like nature and in its opinion, moreover, the notes of the Customs Co-operation Council indicate that fibre cuttings falling within this subheading should not generally exceed 2 mm in length.

7. A comparison of the various language versions of the subheadings in the Common Customs Tariff to which reference has been made reveals that the difficulties in interpretation raised before the national court result mainly from the peculiarities of the German language version of the tariff. The subheadings must therefore be considered in all the official language versions simultaneously, and use must be made at the same time of the information to be found in the Explanatory Notes of the Customs Co-operation Council on both the subheadings in question.

Interpretation of subheading 56.01 A

8. Subheading 56.01 A reads in the six language versions of the tariff as follows : German: Spinnfasern; English: textile fibres; Danish: fibre; French: fibres textiles; Italian: fibre tessili; Dutch: vezels.

9. A comparison of these versions shows that only the word used in the German language includes a reference to the spinning process; it may also be observed that the word is ambiguous in that it applies both to fibres produced by spinning and fibres intended for such a purpose. A general consideration of all the official versions shows clearly that subheading 56.01 A represents an open-ended category, including all types of fibre, irrespective of their method of manufacture and their subsequent use. Consequently the plaintiffs interpretation cannot be accepted, for it would mean arbitrarily restricting the scope of that tariff subheading by excluding from it all fibres which are not suitable for use later in spinning.

10. It is noteworthy that the Explanatory Notes of the Customs Co-operation Council have further defined heading 56.01 in the following terms:

“The length into which the fibres are cut is usually between 2.5 cm and 18 cm and varies according to the particular man-made fibre concerned, the type of yarn to be manufactured and the nature of any other textile fibres with which it is to be mixed.”

11. That explanation reveals that in general textile fibres having a length of less than 2.5 cm are not to be considered as textile fibres within the meaning of subheading 56.01 A. That means that, according to the Explanatory Notes, that subheading apparently does not apply to fibres the nature of which doubtless corresponds to the concept of the “textile fibre”, but which remain appreciably below the minimum length referred to in the Explanatory Notes. A classification under that subheading is therefore out of the question unless it proves impossible to find an appropriate subheading which is more specific.

Tariff subheading 59.01 B I

12. Subheading 59.01 B I reads in the six language versions of the tariff as follows : German: Scherstaub; English: flock and dust; Danish: flok, støv; French: tontisses; Italian: borre di cimatura; Dutch: scheerhaar.

13. The six language versions for this subheading are scarcely consistent from the linguistic point of view. Four of them, the German, French, Italian and Dutch versions, refer to a single concept, emphasizing the shearing process, whereas the English and Danish versions have two concepts which are juxtaposed, making no reference to that process and based exclusively on the external appearance of the product. Among all these the German language version stands alone in combining in a single compound word the shearing process and the powdery appearance of the product.

14. This comparative linguistic analysis shows clearly that subheading 59.01 B I is not unequivocal and that it needs to be defined in order to avoid discrepancies between interpretations in the different Member States, depending on the version which is used.

15. The scope of that subheading has in fact been further defined in the Explanatory Notes of the Customs Co-operation Council in the following terms :

“Textile flock consists of very short fibres ... obtained as waste during various finishing operations and, in particular, from the shearing of velvets. It is also produced by cutting textile filaments or fibres into very short lengths (generally up to 2 mm long). Textile dust is obtained as waste, or by grinding textile fibres to a powder.”

16. That note shows that the different expressions used in subheading 59.01 B I merely describe, more or less nearly, a group of fibres or fibre fragments obtained: either as a by-product of the finishing of fabrics and especially of the shearing of velvets; or by cutting textile filaments or fibres; or by grinding textile fibres.

17. In the first case, extremely short fibres of unequal lengths are obtained, which are by nature produced as waste from certain processes in the textile industry; in the second case, the product appears as flock composed of regularly-shaped cuttings; in the third case, it is a powder made of textile matter. It follows from the above, contrary to the submissions advanced by the customs administration in the course of the proceedings, that this category cannot be restricted to waste produced by shearing, and does not require that in every case the product has the appearance of dust. Such an interpretation would exclude one of the three categories referred to in the Explanatory Notes. The latter show, in fact, that subheading 59.01 B I can apply equally to textile cuttings of a regular length, such as those which form the subject-matter of this dispute.

18. In those circumstances the only point on which doubt may occur in the Explanatory Notes on subheading 59.01 B I lies in the definition, added in those notes to the phrase “very short length”, to the effect that that is to mean fibres which do not, generally, exceed a length of 2 mm.

19. On a comparison of the elements of interpretation defined above, it appears however that at least two elements enable the Court to conclude that the goods in question have a closer affinity to subheading 59.01 B I: in the first place, the greater degree of precision in the latter subheading, which, as stated above, extends to very short fibres obtained by cutting textile filaments or fibres; in the second place, the actual length of the fibres which is, in the present case, closer to the kind of fibre envisaged in the Explanatory Notes referring to subheading 59.01 B I than to the category of length indicated in the Explanatory Notes on subheading 56.01 A. It appears therefore that despite the impression given by the terminology of the German language version of the tariff, goods such as those which are the subject of the dispute must, in the final analysis, be classified preferably under subheading 59.01 B I in the light of the explanations to be found in the Explanatory Notes.

20. The reply to the question must therefore be that cuttings of synthetic textile fibres having a length of between 6 and 7 mm fall within subheading 59.01 B I of the Common Customs Tariff as flock and dust of man-made fibres.

Costs

21. The costs incurred by the Commission of the European Communities, 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, in the nature of 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 (Second Chamber) in answer to the question referred to it by the Finanzgericht Bremen by an order of 1 November 1979, hereby rules: