1 BY ORDER DATED 19 MARCH 1975, WHICH ARRIVED AT THE REGISTRY ON 1 APRIL 1975, THE FINANZGERICHT BERLIN REFERRED TWO QUESTIONS TO THE COURT FOR A PRELIMINARY RULING ON THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF ( OJ L 172, 1968 ).
THE FIRST QUESTION ASKS WHETHER THE 'MATISA MACHINE FOR TAMPING, LEVELLING AND ADJUSTING RAILWAY-TRACKS' IS TO BE CLASSIFIED UNDER SUBHEADING 86.04 B ( AS A MECHANICALLY PROPELLED RAILWAY COACH ) OR UNDER SUBHEADING 84.23 A II B ( AS EARTHMOVING MACHINERY ) OF THE COMMON CUSTOMS TARIFF .
THE SECOND QUESTION ASKS WHETHER THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE RELATING TO THE AFOREMENTIONED HEADINGS ARE BINDING UNDER COMMUNITY LAW FOR THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF .
2 AS REGARDS THIS LATTER QUESTION, THE COURT, IN ITS JUDGMENT OF 8 DECEMBER 1970 IN CASE 14/70, BAKELS V OBERFINANZDIREKTION MUENCHEN, (( 1970 ) ECR ) STATED :
'IN THE ABSENCE OF RELEVANT COMMUNITY PROVISIONS, THE EXPLANATORY NOTES AND THE CLASSIFICATION OPINIONS PROVIDED FOR BY THE CONVENTION ON NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS ARE AN AUTHORITATIVE SOURCE FOR THE PURPOSE OF THE INTERPRETATION OF THE HEADINGS TO THE COMMON CUSTOMS TARIFF '.
SINCE THERE IS NOTHING IN THE PRESENT CASE CAPABLE OF LEADING TO A DIFFERENT CONCLUSION, IT IS PROPER TO REPLY TO THE SAME EFFECT .
3 THE MACHINE IN QUESTION IS DESCRIBED BY THE ORDER AS A VEHICLE RUNNING ON RAILS INTENDED FOR THE MAINTENANCE OF RAILWAYS AND USED FOR TAMPING OR RAMMING DOWN UNDER THE SLEEPERS THE BEDDING MATERIALS ON WHICH THE RAILWAY-TRACKS ARE LAID AND FOR STRAIGHTENING THE RAILWAY LINES; IT CONSISTS OF A ROOFED RAILWAY TRACK CHASSIS EQUIPPED WITH MACHINERY NECESSARY TO EXECUTE THE WORKS FOR WHICH IT WAS DESIGNED, IN PARTICULAR FOR TAMPING BOXES, EACH WITH TWO PAIRS OF TAMPERS, TRACK LIFTING, TRACK SHIFTING AND LEVELLING DEVICES, WHILE THE DIESEL ENGINE NOT ONLY DRIVES THE WORKING MACHINERY AND PROPELS THE VEHICLE DURING ITS WORK, BUT ALSO ENABLES IT TO MOVE ABOUT RAPIDLY FROM PLACE TO PLACE AT SPEEDS OF UP TO 80 KM PER HOUR IN BOTH FORWARD AND REVERSE DIRECTIONS .
ALTHOUGH THE COURT IN RULING UNDER ARTICLE 177 DOES NOT HAVE JURISDICTION TO APPLY THE COMMUNITY RULE TO A SPECIFIC CASE, IT MAY HOWEVER SUPPLY THE NATIONAL COURTS WITH THE PRINCIPLES OF INTERPRETATION RELATING TO COMMUNITY LAW WHICH MAY BE USEFUL IN THE APPLICATION OF THIS RULE .
4 HEADING 84.23 A II B RELATES TO :
'EXCAVATING, LEVELLING, TAMPING, BORING AND EXTRACTING MACHINERY, STATIONARY OR MOBILE, FOR EARTH, MINERALS OR ORES ( FOR EXAMPLE, MECHANICAL SHOVELS, COAL CUTTERS, EXCAVATORS, SCRAPERS, LEVELLERS AND BULLDOZERS ); PILE DRIVERS, SNOW PLOUGHS, NOT SELF-PROPELLED ( INCLUDING SNOW PLOUGH ATTACHMENTS ):
A - EXCAVATING, LEVELLING, TAMPING, BORING AND EXTRACTING MACHINERY FOR EARTH, MINERALS OR ORES :
I . SELF-PROPELLED, TRACK LAYING OR WHEELED, NOT CAPABLE OF RUNNING ON RAILS
II . OTHER :
( A ) BORING AND SINKING MACHINERY
( B ) OTHER '.
HEADING 86.04 B IS WORDED :
'MECHANICALLY PROPELLED RAILWAY AND TRAMWAY COACHES, VANS AND TRUCKS, AND MECHANICALLY PROPELLED TRACK INSPECTION TROLLEYS :
A - ELECTRIC RAILWAY AND TRAMWAY COACHES, VANS AND TRUCKS ( POWERED FROM AN EXTERNAL SOURCE OF ELECTRICITY )
B - OTHER '.
5 HEADING 84 COMES IN SECTION XVI OF THE COMMON CUSTOMS TARIFF AND HEADING 86 IN SECTION XVII .
THE INTRODUCTORY NOTES TO SECTION XVI ARE WORDED .
'1 . THIS SECTION DOESNOT COVER : ... ( K ) VEHICLES, AIRCRAFT, SHIPS OR BOATS, OF SECTION XVII '.
IT IS THEREFORE NECESSARY TO DEFINE THE CONCEPT 'VEHICLES, AIRCRAFT, SHIPS OR BOATS '.
6 A PERUSAL OF CHAPTER 86 OF THE COMMON CUSTOMS TARIFF HEADED 'RAILWAY AND TRAMWAY LOCOMOTIVES, ROLLING STOCK AND PARTS THEREOF; RAILWAY AND TRAMWAY TRACK FIXTURES AND FITTINGS; TRAFFIC SIGNALLING EQUIPMENT OF ALL KINDS ( NOT ELECTRICALLY POWERED )', SHOWS AN INTENTION TO BRING UNDER THIS CHAPTER ALL RAILWAY EQUIPMENT AND IN PARTICULAR ROLLING STOCK .
ALTHOUGH THE WORD 'TRIEBWAGEN' IN THE GERMAN VERSION OF HEADING 86.04 IS CAPABLE OF GIVING THE IMPRESSION THAT IT REFERS ONLY TO VEHICLES INTENDED TO CARRY PASSENGERS AND GOODS, A COMPARISON WITH THE VERSIONS IN THE OTHER LANGUAGES SHOWS THAT IT CAN IN ADDITION COVER VEHICLES RUNNING ON RAILS INTENDED FOR RAILWAY MAINTENANCE .
IN THESE CIRCUMSTANCES THE WORDING OF THIS HEADING IS NO OBSTACLE TO THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE RELATING THERETO BEING ACCEPTED AS AN AUTHORITATIVE SOURCE FOR THE PURPOSE OF INTERPRETATION WHEN IT STATES :
'THIS HEADING FURTHER COVERS SELF-PROPELLED VEHICLES FOR TRACK MAINTENANCE ( IN PARTICULAR, RAILWAY TRACKLINERS ), EQUIPPED WITH ONE OR MORE ENGINES WHICH NOT ONLY POWER THE WORKING MACHINES MOUNTED THEREON ( TRACK SETTERS, BALLAST-TAMPERS, ETC .), AND PROPEL THE VEHICLE WHILE WORK IS IN PROGRESS BUT ALSO ENABLE IT TO TRAVEL RAPIDLY ALONG THE TRACK, AS A SELF-PROPELLED UNIT, WHEN THE WORKING MACHINES ARE NOT IN OPERATION '.
7 IT IS THEREFORE PROPER TO REPLY TO THE FIRST QUESTION THAT THE PHRASE 'MECHANICALLY PROPELLED' IN HEADING 86.04 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS COVERING SELF-PROPELLED VEHICLES FOR TRACK MAINTENANCE, EQUIPPED WITH ONE OR MORE ENGINES ENABLING THE VEHICLE TO MOVE ABOUT FROM PLACE TO PLACE RAPIDLY ON THE TRACK AND QUITE INDEPENDENTLY .
8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE FINANZGERICHT BERLIN, COSTS ARE A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT BERLIN BY ORDER DATED 19 MARCH 1975, HEREBY RULES :
IN THE ABSENCE OF RELEVANT COMMUNITY PROVISIONS ON THE SUBJECT, THE EXPLANATORY NOTES AND THE CLASSIFICATION OPINIONS PROVIDED FOR BY THE CONVENTION ON NOMENCLATURE FOR THE CLASSIFICATION OF GOODS IN CUSTOMS TARIFFS ARE AN AUTHORITATIVE SOURCE FOR THE PURPOSES OF THE INTERPRETATION OF THE HEADINGS TO THE COMMON CUSTOMS TARIFF .
THE PHRASE 'MECHANICALLY PROPELLED' IN HEADING 86.04 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS COVERING SELF-PROPELLED VEHICLES FOR TRACK MAINTENANCE, EQUIPPED WITH ONE OR MORE ENGINES ENABLING THE VEHICLE TO MOVE ABOUT FROM PLACE TO PLACE RAPIDLY ON THE TRACK AND QUITE INDEPENDENTLY .
