Judgment_paragraph 2. · 237/81

2.The Commission of the European Communities refers to the definition of pyroscopic resistance as it appears in that part of the Explanatory Notes to the Customs Tariff of the European Communities which relates to tariff subheading 38.19 K.In the Commission's view the question raised by the Finanzgericht enables the issue to be confined to the question whether the term “refractory” appearing in the wording of subheading 38.19 K should be construed as a technical criterion which is fixed once and for all or whether it is merely necessary for a product to be able to tolerate temperatures corresponding to the use for which it is intended: in other words whether the term “refractory” must be construed absolutely or relatively. The Commission believes that the former acceptation of the term is the only possible one.The Commission acknowledges that the term “refractory” may commonly be used of products which show resistance to heat of less than 1500 ^oC.However, in the Commission's view that common acceptation of the term “heat-resistant” ceases to be valid where it is sought to lay down a criterion for making a valid distinction between products summarily described as pyroscopic. From a scientific and technical point of view that term must therefore be reserved to nonmetallic products which can tolerate temperatures of at least 1500 ^oC.In that connection the Commission cites several definitions of elements displaying pyroscopic resistance from encyclopaedias and technical dictionaries which state that an ability to resist a temperature of at least 1500 ^oC is an essential feature of that concept.The Commission adds that, since the result of the methods for testing pyroscopic resistance vary, however, according to the conditions under which they are carried out (speed of heating, form of the sample), the ISO has drawn up detailed recommendations describing the conditions under which such experiments should be conducted. In that respect the Commission stresses that the range of temperatures applied begins at 1500^oC, that temperature being considered as the threshold of pyroscopic resistance, as is borne out by the fact that ISO Recommendation R 528-1966 refers expressly to refractory products and that ISO Recommendation R 1146-1969 mentions a pyroscopic resistance of 1500 ^oC.The Commission points out that in the Explanatory Notes to tariff subheading 38.19 K the Community adopted the latter definition of pyroscopic resistance which is uniformly recognized in scientific and technological circles.It maintains in that connection that to adopt a temperature threshold lower or higher than 1500 ^oC in order to define pyroscopic resistance for the purposes of the Common Customs Tariff would, regard being had to the consensus of views existing within scientific and technical circles, be arbitrary and unjustifiable and would give rise to uncertainties and disputes in the carrying out of customs formalities.In the Commission's view, an approval based on relative factors as advocated by the plaintiff in the main action might be acceptable to traders but would be of little use for the purposes of the interpreting the Common Customs Tariff which may only be done on the basis of objective and uniform criteria as is demonstrated by the decision of the Court of Justice in its judgment of 28 March 1979 in Case 158/78, Biegi v Hauptzollamt Bochum [1979] ECR 1103, (last sentence of paragraph 8 of the decision ai p. 1118).The Commission also relies on the case-law of the Court according to which the classification of a product should in principle be based on its objective characteristics (cf. Opinion of Mr Advocate General Warner in Case 11/79 Cieton v Inspecteur der Invoerrechten en Accijnzen [1979] ECR 3068, especially at p. 3088, top right-hand column) and properties (cf. judgment of the Court of 10 December 1975 in Case 53/75 Belgium v Vandertaelen [1975] ECR 1647, paragraph 9 of the decision at p. 1654).Since the characteristic of products coming within subheading 38.19 K is their pyroscopic resistance, that property woula be only capable of being ascertained objectively if it were expressed in terms of the measurable magnitude of 1500 CC mentioned above, thereby using a generally recognized figure. In adopting this approach, the Explanatory Notes did not amend the Common Customs Tariff, but they interpreted and elucidated it within permissible limits.In the Commission's view, although the product in question, moulding compound, shows resistance to heat, it cannot, given its intended use and the technical process in which it is used, be described as refractory since in any event it does not have to resist temperatures higher than 1400 ^oC.The Commission further remarks that the third paragraph of the Explanatory Notes to tariff subheading 38.19 K which states that also included in that subheading are “silica-based refractory compositions used for making moulds for dental purposes” does not mean that compounds for making moulds for dental purposes or for jewellery automatically come under that subheading. That would only be possible if they were “refractory” in the sense in which that term is used in the first paragraph of the Explanatory Note to subheading 38.19 K, that is to say if they were to show a resistance to heat of at least 1500 ^oC.If it were otherwise, the Commission stresses, the third paragraph would not mention “refractory compositions” but simply moulding compounds, the term “refractory” retaining the same meaning as it has in the first paragraph, as is demonstrated by the negative reference which is made to it in the fourth paragraph. (“This subheading does not include non-refractory preparations such as ...”).In the Commission's view the purpose of the third paragraph of the Explanatory-Note is to state that the term “refractory compositions” covers not merely materials such as cement and mortar which are handled in bags and in large quantities but also those materials which are processed in very small quantities, for instance in laboratories used by dental technicians and jewellers. Its purpose is therefore first and foremost to prevent an incorrect interpretation of the term “similar” used in subheading 38.19 K. The Commission considers that the product in question is indeed manufactured from silica which is in itself a refractory substance but through the addition of other materials its resistance to heat is reduced below the threshold of pyroscopic resistance. The result of that consideration is to prevent the product from being classified in subheading 38.19 K and to cause it to be classified under subheading 38.19 U of the Common Customs Tariff.The Commission therefore proposes that the Court should give the following reply to the Finanzgericht Rheinland-Pfalz:Refractory compsitions covered by subheading 38.19 K of the Common Customs Tariff must have a pyroscopic resistance of at least 1500 ^oC. Pyroscopic resistance is to be determined in accordance with ISO Recommendations R 528-1966 and R 1146-1969.