1 BY AN ORDER DATED 26 OCTOBER 1976 , WHICH WAS LODGED AT THE REGISTRY OF THE COURT ON 22 NOVEMBER 1976 , THE BUNDESFINANZHOF REFERRED THE FOLLOWING TWO QUESTIONS FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY :
1 . IS THE TERM ' STRUCTURE ' IN TARIFF HEADING 73.21 OF THE COMMON CUSTOMS TARIFF TO BE INTERPRETED SO AS TO INCLUDE ALSO AN ARTICLE WHICH IS INTENDED TO RENDER THE MINE FACE SAFE IN MINING AND INTER ALIA IS EQUIPPED IN SUCH A WAY THAT IT AND MINING MACHINERY PLACED ON A PART OF IT CAN BE MOVED FORWARD STEP BY STEP BY MEANS OF INCORPORATED HYDRAULIC CYLINDERS AND A MOTORIZED PUMP UNIT WHICH IS SEPARATELY INSTALLED?
2 . IF QUESTION 1 IS ANSWERED IN THE NEGATIVE : DOES TARIFF HEADING 84.23 OF THE COMMON CUSTOMS TARIFF INCLUDE ONLY SUCH MACHINERY AND APPLIANCES FOR MINING AS ARE INTENDED TO WORK THE EARTH DIRECTLY?
2 THESE QUESTIONS HAVE ARISEN IN AN ACTION BETWEEN THE UNDERTAKING KLOCKNER-FERROMATIK GMBH AND THE OBERFINANZDIREKTION MUNCHEN . KLOCKNER-FERROMATIK GMBH IMPORTED THE DEVICE AT ISSUE , WHICH IT DESCRIBES AS EQUIPMENT FOR THE SUPPORT OF MINE TUNNELS TO BE CLASSIFIED BY ANALOGY WITH HYDRAULIC PIT-PROPS AND MOVING BRIDGES UNDER TARIFF HEADING 73.21 : ' STRUCTURE ' ; ON THE OTHER HAND , THE OBERFINANZDIREKTION MUNCHEN CONSIDERS THE DEVICE TO BE A SELF-ADVANCING PIT-PROP WHICH BELONGS TO CHAPTER 84 OF THE COMMON CUSTOMS TARIFF BECAUSE OF ITS MECHANICAL COMPONENTS .
3 IN THESE CIRCUMSTANCES THE FOLLOWING THREE TARIFF HEADINGS COME INTO CONSIDERATION :
- TARIFF HEADING 73.21 : ' STRUCTURES AND PARTS OF STRUCTURES ( FOR EXAMPLE , HANGARS AND OTHER BUILDINGS , BRIDGES AND BRIDGE SECTIONS . . . ROOFING FRAMEWORKS . . .), OF IRON OR STEEL . . . ' ;
- TARIFF HEADING 84.23 : ' EXCAVATING , LEVELLING , TAMPING , BORING AND EXTRACTING MACHINERY , STATIONARY OR MOBILE , FOR EARTH , MINERALS OR ORES ( FOR EXAMPLE MECHANICAL SHOVELS , . . . LEVELLERS AND BULLDOZERS ) . . . ' ;
- TARIFF HEADING 84.59 : ' MACHINES AND MECHANICAL APPLIANCES , HAVING INDIVIDUAL FUNCTIONS , NOT FALLING WITHIN ANY OTHER HEADING OF THIS CHAPTER ' .
IT MUST THEREFORE BE CONSIDERED WHETHER THE ARTICLE IN QUESTION IS A ' STRUCTURE ' WITHIN THE MEANING OF TARIFF HEADING 73.21 OF SECTION XV OR A ' MACHINE OR MECHANICAL APPLIANCE ' FALLING UNDER CHAPTER 84 OF SECTION XVI .
4 ' STRUCTURES ' WITHIN THE MEANING OF TARIFF HEADING 73.21 ARE CHARACTERIZED BY THE FACT THAT , IN PRINCIPLE , AFTER ERECTION AT THE SITE THEY REMAIN STATIONARY . THE CONCEPT OF STABILITY IS THE BASIS OF THE EXAMPLES GIVEN IN TARIFF HEADING 73.21 , AS WELL AS IN NOTE 1 ( F ) AT THE BEGINNING OF SECTION XV , WHICH EXCLUDES MACHINERY AND MECHANICAL APPLIANCES WHICH HAVE A CERTAIN MOBILITY . THIS INTERPRETATION ALSO AGREES WITH THE SYSTEM OF CHAPTER 73 OF THE COMMON CUSTOMS TARIFF WHERE , UNDER THE HEADING ' IRON AND STEEL AND ARTICLES THEREOF ' , CLASSIFICATION OF GOODS IS EFFECTED MAINLY IN ACCORDANCE WITH THE MATERIAL OF WHICH THEY ARE COMPOSED OR WITH THEIR PHYSICAL COMPOSITION . THE REASON WHY , BY THE TARIFF DECISION OF 9 JUNE 1972 , THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE CLASSIFIED HYDRAULIC PIT-PROPS UNDER TARIFF HEADING 73.21 WAS THAT THE MECHANICAL ACTIVITY PERFORMED BY SUCH APPLIANCES HAS ONLY SECONDARY SIGNIFICANCE AND WAS NOT REGARDED AS A DECISIVE REASON FOR CLASSIFICATION UNDER ANOTHER HEADING , SINCE PIT-PROPS REMAIN STATIONARY WHILE USED AS TUNNEL SUPPORTS AND ARE EXTENDED HYDRAULICALLY ONLY TO FACILITATE MANIPULATION DURING ERECTION AND DISMANTLING WHICH , HOWEVER , DOES NOT AFFECT THEIR BASICALLY STATIONARY CHARACTER . THE SAME IS TRUE OF THE CLASSIFICATION OF MOVING BRIDGES UNDER THAT HEADING , SINCE BRIDGES OF THIS KIND REST ON FOUNDATIONS AND DO NOT REQUIRE A SUPPLY OF MOTIVE ENERGY .
5 ON THE OTHER HAND , CHAPTER 84 , THE HEADINGS OF WHICH LARGELY RELATE TO THE PURPOSE OF THE GOODS , IS CONCERNED WITH THE USE OF PARTS INTENDED FOR MACHINERY OR MECHANICAL APPLIANCES THE FUNCTIONAL CHARACTERISTIC OF WHICH IS A MORE OR LESS CONSTANT PROCESS OF MECHANICAL MOVEMENT .
6 IT MAY BE INFERRED FROM THE OBSERVATIONS MADE TO THE COURT THAT THE DEVICE IN QUESTION IS NOT INTENDED TO REMAIN STATIONARY AFTER ERECTION AND THAT ITS FUNCTION IS ALWAYS TO ACCOMPANY THE EXTRACTION PROCESS , SO THAT ALL ITS PARTS ARE ADAPTED FOR THE POSSIBILITY OF MOVEMENT . THE SHIELD ASSEMBLY ADVANCES INDEPENDENTLY TO KEEP PACE WITH THE EXTRACTION PROCESS . ITS PARTICULAR USE DEPENDS ON ITS MECHANICAL MOBILITY , EVEN THOUGH IT IS IN MOTION ONLY FOR SHORT PERIODS . FROM THESE FINDINGS IT FOLLOWS THAT A DEVICE OF THE KIND WHICH IS THE SUBJECT OF THE MAIN ACTION CANNOT BE CLASSIFIED UNDER TARIFF HEADING 73.21 AND MUST BE CLASSIFIED UNDER CHAPTER 84 ON THE BASIS OF ITS ESSENTIAL CHARACTERISTICS .
7 THE FIRST QUESTION MUST THEREFORE BE ANSWERED TO THE EFFECT THAT THE TERM ' STRUCTURE ' IN TARIFF HEADING 73.21 OF THE COMMON CUSTOMS TARIFF MAY NOT BE INTERPRETED SO AS TO INCLUDE AN ARTICLE WHICH IS INTENDED TO RENDER THE MINE FACE SAFE IN MINING AND INTER ALIA IS EQUIPPED IN SUCH A WAY THAT IT AND MINING MACHINERY PLACED ON A PART OF IT CAN BE MOVED FORWARD STEP BY STEP BY MEANS OF INCORPORATED HYDRAULIC CYLINDERS AND A MOTORIZED PUMP UNIT WHICH IS SEPARATELY INSTALLED .
8 SO FAR AS THE SECOND QUESTION IS CONCERNED , MACHINERY AND MECHANICAL APPLIANCES WITHIN THE MEANING OF TARIFF HEADING 84.23 IN THE OFFICIAL VERSIONS IN ENGLISH , FRENCH , ITALIAN AND DUTCH ARE CHARACTERIZED BY THEIR PURPOSE , WHICH IS DIRECTLY TO MODIFY MATTER , NAMELY HERE THE EARTH ' S CRUST ; FURTHER THEY ALL FALL WITHIN THE CLASS OF MACHINES FOR ' ATTACKING THE EARTH ' S CRUST ' , THAT IS , MACHINERY AND MECHANICAL APPLIANCES WHICH ARE INTENDED DIRECTLY TO MODIFY THE EARTH ' S CRUST . THE LESS PRECISE VERSIONS IN GERMAN AND DANISH MUST BE READ IN THE LIGHT OF THIS . THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE IN RESPECT OF TARIFF HEADING 84.23 SUPPORT THIS INTERPRETATION . THE LATTER DOES NOT , HOWEVER , NECESSARILY MEAN THAT CLASSIFICATION UNDER TARIFF HEADING 84.23 IS RULED OUT FOR DEVICES OF THE KIND IN QUESTION HERE . THE VIEW MAY BE TAKEN THAT BECAUSE OF THE SPECIAL TECHNICAL EQUIPMENT INCORPORATED INTO THE SHIELD ASSEMBLY AND BECAUSE OF ITS CONVEYOR UNDER-FRAME THE WHOLE APPLIANCE MAY BE EQUATED WITH MINING MACHINERY IN THE TRUE SENSE ; EQUALLY , IT COULD BE MAINTAINED THAT CERTAIN KINDS OF SHIELD ASSEMBLY APPLIANCE SHOULD BE CLASSIFIED UNDER SUBHEADING 84.59 E , SINCE THEY ARE NOT EQUIPPED FOR DIRECT ATTACHMENT TO MINING MACHINERY .
9 WHETHER OR NOT APPLIANCES OF THE KIND IN QUESTION IN THE MAIN ACTION FULFIL THESE CONDITIONS IS A MATTER OF THE APPLICATION RATHER THAN THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF ; THE DECISION ON THIS POINT MUST THEREFORE BE TAKEN BY THE NATIONAL COURT . WITH THIS RESERVATION , THE SECOND QUESTION MUST BE ANSWERED TO THE EFFECT THAT THE MACHINERY DESCRIBED IN QUESTION 1 IS TO BE CLASSIFIED UNDER TARIFF HEADING 84.23 OF THE COMMON CUSTOMS TARIFF IF IT IS DIRECTLY ATTACHED TO MINING MACHINERY FOR WORKING THE EARTH ' S CRUST ; IF THIS IS NOT THE CASE , IT MUST BE CLASSIFIED UNDER SUBHEADING 84.59 E OF THE COMMON CUSTOMS TARIFF .
COSTS
10 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 BUNDESFINANZHOF , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF ( VIITH SENATE ) BY ORDER OF 26 OCTOBER 1976 , HEREBY RULES :
1 . THE FIRST QUESTION MUST BE ANSWERED TO THE EFFECT THAT THE TERM ' STRUCTURE ' IN TARIFF HEADING 73.21 OF THE COMMON CUSTOMS TARIFF MAY NOT BE INTERPRETED SO AS INCLUDE AN ARTICLE WHICH IS INTENDED TO RENDER THE MINE FACE SAFE IN MINING AND INTER ALIA IS EQUIPPED IN SUCH A WAY THAT IT AND MINING MACHINERY PLACED ON A PART OF IT CAN BE MOVED FORWARD STEP BY STEP BY MEANS OF INCORPORATED HYDRAULIC CYLINDERS AND A MOTORIZED PUMP UNIT WHICH IS SEPARATELY INSTALLED .
2 . SUBJECT TO THE RESERVATION REFERRED TO IN THE GROUNDS OF THIS DECISION , THE SECOND QUESTION MUST BE ANSWERED TO THE EFFECT THAT THE MACHINERY DESCRIBED IN QUESTION 1 IS TO BE CLASSIFIED UNDER TARIFF HEADING 84.23 OF THE COMMON CUSTOMS TARIFF IF IT IS DIRECTLY ATTACHED TO MINING MACHINERY FOR WORKING THE EARTH ' S CRUST ; IF THIS IS NOT THE CASE , IT MUST BE CLASSIFIED UNDER SUBHEADING 84.59 E OF THE COMMON CUSTOMS TARIFF .
