Case C-403/07

Metherma GmbH & Co. KG

v

Hauptzollamt Düsseldorf

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Common Customs Tariff – Combined Nomenclature – Tariff classification – Headings 8101 and 8102 – Shattering and breaking-up of bars of tungsten or molybdenum ‘obtained simply by sintering’ – Unwrought tungsten and molybdenum, including bars obtained simply by sintering – Waste and scrap)

Summary of the Judgment

Common Customs Tariff – Tariff headings – Bars of tungsten or molybdenum ‘obtained simply by sintering’

(Council Regulation No 2658/87; Commission Regulation No 2388/2000)

The Combined Nomenclature which is laid down in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version applicable in 2001, namely that deriving from Regulation No 2388/2000 amending Annex I to Regulation No 2658/87, must be interpreted as meaning that bars of tungsten or molybdenum ‘obtained simply by sintering’ fall respectively under its subheadings 8101 91 10 and 8102 91 10. Such bars, which consist of the metals in question in their unwrought form and not of articles thereof, cannot be processed, by being broken up or shattered, into scrap falling respectively under subheadings 8101 91 90 and 8102 91 90 of that Combined Nomenclature.

In that regard, according to the Explanatory Notes of the Harmonised System of the World Customs Organisation to headings 81.01 and 81.02 of that system, bars of tungsten or molybdenum obtained simply by sintering are the product of a process involving the coalescing into a solid and resistant mass of powder particles, without the bars disintegrating. In the absence of subsequent finishing or processing of those bars the fact that, because of sintering, the tungsten or molybdenum is also no longer in powder form, but is a solid mass, cannot, as such, have the consequence that the metals in question are no longer to be regarded as being in their unwrought form, at least for the purposes of application of the Combined Nomenclature. In addition, it follows from the very wording of subheadings 8101 91 10 and 8201 91 10 of the Combined Nomenclature that those metals in their unwrought form include, for the purposes of the Combined Nomenclature, ‘bars and rods obtained simply by sintering’. It follows that, since bars of tungsten and molybdenum ‘obtained simply by sintering’ correspond to those metals in their unwrought form for the purposes of headings 8101 and 8102 of the Combined Nomenclature respectively, such bars cannot be regarded as coming also within the concept of ‘articles of those metals’ within the meaning of those headings and that they cannot, consequently, be made definitely not usable as such because of breakage or cutting up.

(see paras 52-56, operative part)

JUDGMENT OF THE COURT (Seventh Chamber)

27 November 2008 (*)

(Common Customs Tariff – Combined Nomenclature – Tariff classification – Headings 8101 and 8102 – Shattering and breaking-up of bars of tungsten or molybdenum ‘obtained simply by sintering’ – Unwrought tungsten and molybdenum, including bars obtained simply by sintering – Waste and scrap)

In Case C‑403/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 31 July 2007, received at the Court on 31 August 2007, in the proceedings

Metherma GmbH & Co. KG

v

Hauptzollamt Düsseldorf,

THE COURT (Seventh Chamber),

composed of A. Ó Caoimh (Rapporteur), President of Chamber, acting as President of the Seventh Chamber, J.N. Cunha Rodrigues and U. Lõhmus, Judges,

Advocate General: P. Mengozzi,

Registrar: R. Grass,

having regard to the written procedure and further to the hearing on 12 June 2008,

after considering the observations submitted on behalf of:

–        Metherma GmbH & Co. KG, by W.-D. Glockner, Rechtsanwalt,

–        the Commission of the European Communities, by G. Wilms, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This reference for a preliminary ruling concerns the interpretation of headings 8101 and 8102 of the Combined Nomenclature laid down in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

2        The reference has been made in proceedings between Metherma GmbH & Co. KG (‘Metherma’) and the Hauptzollamt Düsseldorf (Principal Customs Office, Düsseldorf; ‘the HZA Düsseldorf’), with regard to the latter’s refusal to uphold Metherma’s application for authorisation for processing, under customs control, of bars of tungsten or molybdenum obtained by sintering, for the purpose of converting those metal bars into waste and scrap by shattering them manually.

 Legal framework

 The procedure of processing under customs control

3        Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17), (‘the Customs Code’) establishes a number of customs procedures with economic impact including, in Articles 130 to 136, that of ‘processing under customs control’.

4        Under Article 130 of the Customs Code:

‘The procedure for processing under customs control shall allow non-Community goods to be used in the customs territory of the Community in operations which alter their nature or state, without their being subject to import duties or commercial policy measures, and shall allow the products resulting from such operations to be released for free circulation at the rate of import duty appropriate to them. …’.

5        Article 132 of the Code provides that ‘authorisation for processing under customs control shall be granted at the request of the person who carries out the processing or arranges for it to be carried out’.

6        Article 133 of the Customs Code provides:

‘Authorisation shall be granted only:

…

(e)      where the necessary conditions for the procedure to help create or maintain a processing activity in the Community without adversely affecting the essential interests of Community producers of similar goods (economic conditions) are fulfilled. …’

7        The first subparagraph of Article 551(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 993/2001 of 4 May 2001 (OJ 2001 L 141, p. 1), provides that ‘the arrangements for processing under customs control shall apply for goods the processing of which leads to products which are subject to a lower amount of import duties than that applicable to the import goods’.

8        Under the first subparagraph of Article 552(1) of Regulation No 2454/93, as amended by Regulation No 993/2001, read in conjunction with Order 2 of Part A of Annex 76 to that regulation, as amended, the economic conditions in the framework of the arrangements for processing under customs control are deemed to be fulfilled in the case of reduction of goods of any kind to waste and scrap.

 The Combined Nomenclature

9        The International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983, and the Protocol of Amendment thereto of 24 June 1986 were approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

10      Regulation No 2658/87 laid down a nomenclature for goods called the ‘Combined Nomenclature’ (‘CN’), which is based on the Harmonised Commodity Description and Coding System (‘HS’), from which it takes the six-digit headings and subheadings, only the seventh and eighth digits forming subdivisions specific to it.

11      The CN, together with the autonomous and conventional rates of duty and the statistical supplementary units, are reproduced in Annex I to that regulation.

12      Under Article 12(1) of that regulation, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16), the Commission of the European Communities is required to adopt each year a regulation reproducing the complete version of the CN and the rates of customs duty, as resulting from measures adopted by the Council of the European Union or by the Commission. That regulation is to apply from 1 January of the following year.

13      Thus, Annex I to Regulation No 2658/87 was replaced, inter alia, with effect from 1 January 2001, by the Annex to Commission Regulation (EC) No 2388/2000 of 13 October 2000 (OJ 2000 L 264, p. 1).

14      Part Two of the CN, as laid down by the latter regulation, includes a Section XV, entitled ‘Base metals and articles of base metal’ which includes a number of chapters, Chapter 81 of which is entitled ‘Other base metals; cermets; articles thereof’.

 The provisions of the CN concerning tungsten

15      Heading 8101 of the CN, which appears in Chapter 81 thereof, reads as follows: ‘Tungsten (wolfram) and articles thereof, including waste and scrap’. Heading 8101 is divided into two categories, namely ‘Powders’ (subheading 8101 10 00) and ‘Other’.

16      In the version of the CN derived from Regulation No 2388/2000, the latter category (‘Other’) includes in particular subheading 8101 91, which reads: ‘Unwrought tungsten, including bars and rods obtained simply by sintering; waste and scrap’. That subheading is itself divided into subheadings 8101 91 10 and 8101 91 90, the wording of these being ‘Unwrought tungsten, including bars and rods obtained simply by sintering’ and ‘Waste and scrap’ respectively.

 The provisions of the CN concerning molybdenum

17      Heading 8102, which also appears in Chapter 81 of the CN, reads as follows: ‘Molybdenum and articles thereof, including waste and scrap’. Heading 8102 is divided into two categories, namely ‘Powders’ (subheading 8102 10 00) and ‘Other’.

18      In the version of the CN derived from Regulation No 2388/2000, the latter category (‘Other’) includes subheading 8102 91, which reads: ‘Unwrought molybdenum, including bars and rods obtained simply by sintering; waste and scrap’. The latter subheading is itself divided into subheadings 8102 91 10 and 8102 91 90, which are worded ‘Unwrought molybdenum, including bars and rods obtained simply by sintering’ and ‘Waste and scrap’ respectively.

 The interpretation of the CN

19      The General Rules for the interpretation of the CN, which appear in Part One, Section I, A, of the CN, state inter alia:

‘Classification of goods in the Combined Nomenclature shall be governed by the following principles:

1.      The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

...

6.      For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule the relative section and chapter notes also apply, unless the context requires otherwise.’

20      Under Note 8(a) to Section XV of the CN, ‘Waste and scrap’ means ‘Metal waste and scrap from the manufacture or mechanical working of metals, and metal goods definitely not usable as such because of breakage, cutting-up, wear or other reasons’.

21      The note to the subheadings in Chapter 81 of the CN states that Note 1 to Chapter 74 of the CN, defining ‘“bars and rods”, “profiles”, “wire” and “plates, sheets, strip and foil”’ applies mutatis mutandis to Chapter 81. According to subparagraph (d) of that Note 1, the term ‘bars and rods’ means:

‘Rolled, extruded, drawn or forged products, not in coils, which have a uniform solid cross-section along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons …. Products with a rectangular (including square), triangular or polygonal cross‑section may have corners rounded along their whole length. The thickness of such products which have a rectangular … cross-section exceeds one-tenth of the width. The expression also covers cast or sintered products, of the same forms and dimensions, which have been subsequently worked after production (otherwise than by simple trimming or de-scaling), provided that they have not thereby assumed the character of articles or products of other headings.

Wire-bars and billets with their ends tapered or otherwise worked simply to facilitate their entry into machines for converting them into, for example, [“profiles”, “wire” and “plates, sheets, strip and foil” and “tubes and pipes”] are, however, to be taken to be unwrought copper of heading No 7403’.

 Explanatory notes to the HS

22      The Customs Cooperation Council, now the World Customs Organisation, established by the international Convention concluded at Brussels on 15 December 1950, is to approve, under the conditions laid down in Article 8 of the International Convention on the Harmonised Commodity Description and Coding System, the Explanatory Notes and Classification Opinions adopted by the HS Committee. At the time of the facts in the main proceedings, the applicable version of those notes was that resulting from Amending Supplement No 11 of February 2001 (‘the HS explanatory notes’).

23      According to the HS explanatory note to heading 81.01, tungsten is obtained in the form of powdered metal which is compressed into blocks or bars which are sintered in an atmosphere of hydrogen in an electric furnace. The compact sintered bars are then hammered mechanically, and finally rolled or drawn into sheets, bars of smaller section or wire. Tungsten is used in filaments for electric light bulbs but ‘[t]he most important use of tungsten (usually as ferrotungsten, see Chapter 72 [of the HS]) is, however, in the preparation of special steels’.

24      The final part of the aforesaid explanatory note to heading 81.01 of the HS states in particular that ‘tungsten (wolfram) falls in this heading whether in the form of:

A)      Powders;

B)      Unwrought metal, e.g., in blocks, ingots, sintered bars and rods, or as waste and scrap (for the latter see the Explanatory Note to heading 72.04);

C)      Wrought metal, e.g., rolled or drawn bars; profiles, plates and sheets, strip or wire;

D)      Manufactures ...’.

25      With regard to molybdenum, it follows from the HS explanatory note to heading 81.02 that, inter alia, the metal is obtained either in a compact form or as a powder which can be sintered like tungsten. This metal is used in the form of ferromolybdenum, falling under Chapter 72 of the HS, for the manufacture of alloy steels. This explanatory note also states that, in the light of the resemblance between the metallurgy of tungsten and that of molybdenum, and given their often similar uses, the final part of the HS explanatory note to heading 81.01 of the HS also applies to molybdenum.

26      The HS explanatory note to heading 72.04 of the HS, entitled ‘Ferrous waste and scrap; remelting scrap ingots of iron or steel’, reads as follows:

‘…

The heading covers waste and scrap of iron or steel, as defined in Note 8(a) to Section XV [of the HS].

Such waste and scrap of iron or steel is of a miscellaneous nature and generally takes the form of:

1)      Waste and scrap from the manufacture or mechanical working of iron or steel (e.g., crop ends, filings and turnings).

…

But the heading excludes articles which, with or without repair or renovation, can be re-used for their former purposes or can be adapted for other uses; it also excludes articles which can be refashioned into other goods without first being recovered as metal …

The heading also excludes:

…

c)      Broken pieces of pig iron or spiegeleisen …’

 The main proceedings and the question referred for a preliminary ruling

27      During October 2001, Metherma applied for authorisation for processing, under customs control, of bars of tungsten or molybdenum obtained by sintering, for the purpose of converting those metal bars into ‘waste and scrap’ by shattering them manually. It appears that that application was based in particular on the fact that, under the CN, ‘waste and scrap’ were exempt from customs duties, whereas the conventional rates of duty on unwrought tungsten and molybdenum, ‘including bars and rods obtained simply by sintering’, were 5% and 3% respectively.

28      After examining several samples, the customs testing and training institute attached to the Oberfinanzdirektion Köln (Cologne Principal Revenue Office) concluded that the sintered bars of molybdenum comprised unwrought molybdenum and that it was impossible to convert those bars into waste or scrap by breaking them up or cutting them, because they could still be used, in particular for smelting.

29      The HZA Düsseldorf agreed with that opinion and dismissed the application for processing under customs control made for unwrought forms of tungsten or molybdenum such as blocks, bars or granulates obtained by sintering.

30      In the action brought before it challenging that refusal, the Finanzgericht (Finance Court), by contrast, ordered the HZA Düsseldorf to grant the authorisation applied for. The Finanzgericht held that the economic conditions for the grant of an authorisation for processing under customs control were satisfied, because the sintered bars would be converted, by the manual shattering envisaged, into waste and scrap. According to it, the shattering of the sintered bars, which makes any subsequent conversion of them into sheets, bars or wire impossible, renders them definitively unusable.

31      In its application for review on a point of law (‘Revision’) brought before the referring court, the HZA Düsseldorf claims, first, that the sintered metal bars did not constitute ‘metal goods’ within the meaning of Note 8(a) to Section XV of the CN, but unwrought goods. Second, even after being shattered, the sintered metal bars still constituted unwrought metal.

32      According to the referring court, the authorisation for processing under customs control sought by Metherma should be granted if the imported goods, namely the bars of tungsten or molybdenum obtained simply by sintering, after being broken up or shattered, had to be regarded as constituting ‘waste and scrap’. It is not disputed in the proceedings before that court that the other conditions for the grant of such authorisation are satisfied.

33      That court states that it proceeds on the assumption that the metals in question, in their unwrought form, cannot be processed into scrap by being broken up or shattered. Where a block of pure tungsten or molybdenum is shattered, fragments of that same metal in unwrought form are produced, and not scrap.

34      That court, however, adds that the subheadings of the CN which result in conventional rates of duty of 5% for tungsten and 3% for molybdenum apply not only to those metals in their unwrought form, but also to bars of such metals ‘obtained simply by sintering’.

35      The question therefore arises as to whether it must be inferred from the wording of the subheadings of the CN in question that metal bars ‘obtained simply by sintering’, although they are the product of the metal when it is first processed, can be treated as equivalent to the metal in its unwrought form, with the result that even breaking up or shattering cannot turn them into scrap falling under subheadings of the CN which would lead to an exemption from customs duties, or whether, on the other hand, it follows from that wording that metal bars ‘obtained simply by sintering’, although they are referred to in the same subheading as the unwrought metal, already constitute ‘metal articles’ which can be rendered unusable as a result of being broken up or shattered.

36      If the latter interpretation is correct, the referring court is of the opinion that the question then arises as to whether the bars of tungsten or molybdenum ‘obtained simply by sintering’ can be processed into scrap by being broken up or shattered, since that process means that they cannot subsequently be converted into sheets, bars or wire, or whether the only application which remains following the breaking-up or shattering of the sintered fragments, namely their use for smelting in steel production, excludes the possibility that the original bars are nevertheless definitely ‘not usable as such’ within the meaning of Note 8(a) to Section XV of the CN.

37      In those circumstances, the Bundesfinanzhof decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Can bars of tungsten (wolfram) or molybdenum which have been “obtained simply by sintering” and which fall respectively under subheadings 8101 94 00 and 8102 94 00 of the [CN] be processed into scrap falling respectively under subheadings 8101 97 00 and 8102 97 00 of the [CN] by being broken up or shattered?’

 The question referred for a preliminary ruling

38      At the outset, it must be pointed out that the national decision which laid down the tariff classification under challenge in the main proceedings was adopted while Regulation No 2388/2000 was in force. According to the case-file submitted to the Court, Metherma made its application for authorisation on 5 October 2001, and this was then dismissed by the HZA Düsseldorf on 3 December 2001.

39      In that regard, it should be recalled that a regulation specifying the conditions for classification in a tariff heading or subheading is of a legislative nature and cannot have retroactive effect (Case 158/78 Biegi [1979] ECR 1103, paragraph 11 and Case C-479/99 CBA Computer [2001] ECR I‑4391, paragraph 31). In addition, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred when formulating its question for a preliminary ruling (see, to that effect, Case 35/85 Tissier [1986] ECR 1207, paragraph 9; Case C-315/88 Bagli Pennacchiotti [1990] ECR I‑1323, paragraph 10; Case C-107/98 Teckal [1999] ECR I‑8121, paragraph 39; and Joined Cases C‑329/06 and C-343/06 Wiedemann and Funk, [2008] ECR I‑0000, paragraph 45).

40      In those circumstances, as the Commission has correctly argued, the question referred for a preliminary ruling must be examined in the light, not of the provisions of Commission Regulation No 1810/2004 of 7 September 2004 amending Annex I to Regulation No 2658/87 (OJ 2004 L 327, p. 1), as suggested by the wording of the order for reference, but of those of Regulation No 2388/2000.

41      Even if it appears that Metherma, in its written observations, based its argument on the version of the CN resulting from Regulation No 1810/2004, it later explicitly conceded, at the hearing before the Court, that the version of the CN to be applied in the main proceedings was that resulting from Regulation No 2388/2000. In addition, at that hearing, it was taken as agreed that, leaving aside their numbering and structure, the wording of the provisions of those two regulations concerning the subheadings of the CN in question in the present case was identical. Accordingly, Metherma’s written and oral arguments should be understood as referring to headings 8101 and 8102 of the CN as laid down in Regulation No 2388/2000.

42      It should also be pointed out that the subheadings in question are at the same level and can therefore, according to Rule 6 of the General Rules on the interpretation of the CN, be compared.

43      Having regard to the foregoing, the question referred for a preliminary ruling is to be understood as seeking essentially to establish whether the CN, in the version applicable in 2001, namely that laid down in Regulation No 2388/2000, must be interpreted as meaning that bars of tungsten or molybdenum ‘obtained simply by sintering’, falling respectively under subheadings 8101 91 10 and 8102 91 10, can be processed, by being broken up or shattered, into scrap falling respectively under subheadings 8101 91 90 and 8102 91 90.

44      On the substance, Metherma, relying in particular on the explanatory notes to the HS, claims in essence, first, that bars of tungsten or of molybdenum ‘obtained simply by sintering’ cannot be treated as equivalent to the metals in question in their unwrought form and, second, that even if it were to be conceded that they can be so treated, they can be processed into scrap by being broken up or shattered.

45      The Commission takes the opposite view and maintains that such bars must be regarded as equivalent to the metals in their unwrought form and that shattering or breaking up the bars does not alter that situation. That view coincides, essentially, as follows from paragraph 31 of the present judgment, with that taken in the main proceedings by the HZA Düsseldorf, which did not submit observations to the Court.

46      It is settled case-law of the Court that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see Case 145/81 Wünsche [1982] ECR 2493, paragraph 12; Case C‑15/05 Kawasaki Motors Europe [2006] ECR I‑3657, paragraph 38; and Case C‑310/06 FTS International [2007] ECR I‑6749, paragraph 27).

47      In addition, the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see Case C‑459/93 Thyssen Haniel Logistic [1995] ECR I‑1381, paragraph 13; Case C‑201/99 Deutsche Nichimen [2001] ECR I-2701, paragraph 20; and Case C-142/06 Olicom [2007] ECR I‑6675, paragraph 18).

48      Furthermore, it should be recalled that, according to the case-law of the Court, the explanatory notes drawn up, as regards the CN, by the Commission and, as regards the HS, by the World Customs Organisation may be an important aid to the interpretation of the scope of the various headings but do not have legally binding force (see Case C-35/93 Develop Dr. Eisbein [1994] ECR I‑2655, paragraph 21, and Case C-400/05 B.A.S. Trucks [2007] ECR I‑311, paragraph 28). The content of those notes must therefore be in accordance with the provisions of the CN and may not alter their meaning (Case C-280/97 ROSE Elektrotechnik [1999] ECR I‑689, paragraph 23; Case C-495/03 Intermodal Transports [2005] ECR I‑8151, paragraph 48; and Case C‑445/04 Possehl Erzkontor [2005] ECR I‑10721, paragraph 20).

49      In the present case, with regard to the question whether bars of tungsten and molybdenum ‘obtained simply by sintering’ can be treated as equivalent to those metals in their unwrought form, Metherma maintains first of all that the expression ‘unwrought form’ refers in the present case rather to ‘the shapes, shaped pieces or shaping of the material’.

50      That interpretation cannot be accepted. It follows from the wording of the relevant subheadings of the CN in the present case, and form the context in which they are laid down, that the expression ‘unwrought’ which appears in those subheadings refers not to the dimensions of the metallic objects in question, but to their essentially unfinished state. Such an interpretation follows particularly clearly from certain language versions of Regulation No 2388/2000, such as the Danish (‘ubearbejdet’), English (‘unwrought’), Italian (‘greggio’), Finnish (‘muokkaamaton’) and Swedish (‘i obearbetad form’) versions.

51      Metherma also takes the view that the bars of tungsten and molybdenum ‘obtained simply by sintering’ cannot be treated as equivalent to those metals in their unwrought form since, by sintering, the tungsten and molybdenum acquire other properties which turn them into goods and, therefore, ‘metal articles’.

52      Admittedly, with regard to the HS explanatory notes to headings 81.01 and 81.02, it can perhaps be conceded that, by sintering, tungsten and molybdenum in the form of powder acquire additional properties, such as malleability. However, the fact remains that, as also follows from those notes, bars of tungsten or molybdenum obtained simply by sintering are the product of a process involving the coalescing into a solid and resistant mass of powder particles, without the bars disintegrating. As follows in particular from the last part of the HS explanatory note to heading 81.01, in the absence of subsequent finishing or processing of those bars the fact that, because of sintering, the tungsten or molybdenum is also no longer in powder form, but is a solid mass, cannot, as such, have the consequence that the metals in question are no longer to be regarded as being in their unwrought form, at least for the purposes of application of the CN.

53      In any case, as the Commission has pointed out, it follows from the very wording of subheadings 8101 91 10 and 8201 91 10 of the CN, in the versions applicable at the time of the main proceedings, that those metals in their unwrought form included, for the purposes of the CN, ‘bars and rods obtained simply by sintering’. It is common ground that, as follows from the wording of the question asked by the referring court and from paragraphs 32, 35 and 51 of the present judgment, it is such bars that are at issue in the main proceedings.

54      It follows that, since bars of tungsten and molybdenum ‘obtained simply by sintering’ correspond to those metals in their unwrought form for the purposes of headings 8101 and 8102 of the CN respectively, such bars cannot be regarded as coming also within the concept of ‘articles of those metals’ within the meaning of those headings.

55      If, however, the main proceedings concern those metals in their unwrought form or articles of those metals, according to Metherma the fact remains that bars of tungsten or molybdenum ‘obtained simply by sintering’ can be made definitively unusable as such by being broken or cut up. Such shattered bars can no longer, according to Metherma, be processed into sheets, bars or wire. In that regard, Metherma refers to Note 8(a) in Section XV of the CN, according to which ‘waste and scrap’ means inter alia metal goods made definitely not usable as such because of breakage or cutting up.

56      In so far as that argument is based on the premise that bars of tungsten or molybdenum obtained simply by sintering constitute, in their original state, articles of those metals, that cannot be accepted, since it follows from paragraph 54 of the present judgment that such bars are of unwrought tungsten or molybdenum for the purposes of headings 8101 and 8102 of the CN respectively.

57      Metherma takes issue, in that context, with the referring court’s interpretation to the effect that tungsten or molybdenum in unwrought form cannot in principle be processed into waste and scrap. It maintains, first, with reference to the HS explanatory note to heading 81.01, that only certain solid forms of the metals in question can be treated as equivalent to the unwrought form, that is, powder particles compressed into blocks or bars. Second, waste and scrap can also be obtained from unwrought forms, as is made clear by the HS explanatory note to heading 72.04 of the HS, according to which waste and scrap take the form of ‘turnings’.

58      With regard to the first of those arguments, it must be pointed out that the wording of the CN subheadings at issue in the main proceedings refers to tungsten or molybdenum which is ‘unwrought … including bars and rods obtained simply by sintering’. It follows that those metals can take an unwrought form other than that of the bars thereby obtained. The possibility that fragments of bars of tungsten or molybdenum ‘obtained simply by sintering’ can also constitute the unwrought form of the metals in question is therefore by no means excluded.

59      Concerning the second of those arguments, it must be pointed out that Metherma bases its argument on a selective reading of the explanatory note to heading 72.04 of the HS. In particular, it follows expressly from that note that scrap such as turnings must come from the manufacture or mechanical working of the metals in question. The manual shattering of tungsten or molybdenum in their unwrought form which is at issue in the main proceedings does not, however, correspond to those terms.

60      Moreover, it follows from the extracts of the HS explanatory notes to headings 81.01 and 81.02 of the HS which are referred to in paragraphs 24 and 25 of this judgment, that bars of tungsten or molybdenum simply obtained by sintering do not correspond to ‘articles’ within the meaning of the HS explanatory note to heading 72.04 of the HS, which states that the category of waste and scrap does not include articles which, with or without repair or renovation, can be re-used for their former purposes or can be adapted for other uses, or articles which can be refashioned into other goods without first being recovered as metal. Moreover, even if Metherma’s argument that bars of tungsten or molybdenum obtained simply by sintering can constitute ‘articles’ were to be accepted, it follows from, inter alia, the information provided by the referring court, which has not been contested by Metherma, that the broken bars at issue in the main proceedings lend themselves in particular, without first being recovered as the metals in question, to smelting for steel production.

61      In the light of all of the foregoing, the answer to the question referred must be that the CN which is laid down in Annex I to Regulation No 2658/87, in the version applicable in 2001, namely that deriving from Regulation No 2388/2000, must be interpreted as meaning that bars of tungsten or molybdenum ‘obtained simply by sintering’ fall respectively under its subheadings 8101 91 10 and 8102 91 10. Such bars, which consist of the metals in question in their unwrought form and not of articles thereof, cannot be processed, by being broken up or shattered, into scrap falling respectively under subheadings 8101 91 90 and 8102 91 90 of the CN.

 Costs

62      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

The Combined Nomenclature which is laid down in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version applicable in 2001, namely that deriving from Commission Regulation (EC) No 2388/2000 of 13 October 2000 amending Annex I to Regulation No 2658/87, must be interpreted as meaning that bars of tungsten or molybdenum ‘obtained simply by sintering’ fall respectively under its subheadings 8101 91 10 and 8102 91 10. Such bars, which consist of the metals in question in their unwrought form and not of articles thereof, cannot be processed, by being broken up or shattered, into scrap falling respectively under subheadings 8101 91 90 and 8102 91 90 of that Combined Nomenclature.

[Signatures]

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* Language of the case: German.