On 3 June 1971 Matisa-Maschinen-GmbH applied to the Hauptzollamt Berlin-Packhof for customs clearance for free circulation of a Matisa machine for tamping, levelling and adjusting railway tracks. This machine is a vehicle running on rails for use in the repair of railways. It is used for tamping or ramming down under the sleepers the bedding materials on which railway tracks are laid and straightening the railway lines. The machine consists of a roofed railway track chassis equipped with the 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. 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.

The Hauptzollamt first of all classified the machine under heading 84.23 A II b of the Common Customs Tariff.

Heading 84.23 is worded as follows:

By a notice of amendment dated 2 March 1972 the Hauptzollamt classified the machine under heading 86.04 B on the ground that it was not just a working machine, but a railway maintenance vehicle on account of its capacity for moving rapidly under its own power from place to place within the railway network.

Heading 86.04 is worded as follows:

After unsuccesfully objecting to the new notice of recovery, Matisa-Maschinen-GmbH brought a action before the Finanzgericht Berlin for the annulment of the notice.

In these proceedings the Hauptzollamt maintains that it is not a question of a working machine within the meaning of heading 84.23 since the machine has great mobility on the railway network and by reason of this it should be classified, as mechanically propelled, under heading 86.04. It relies mainly on paragraph 13 of the Explanatory Notes to the Brussels Nomenclature on heading 86.04. This note is worded as follows:

The Hauptzollamt maintains that the concept mechanically propelled within the meaning of heading 86.04 covers not only railway vehicles intended to carry passengers and goods, but also service vehicles intended to maintain railway track and vehicles.

Matisa-Maschinen-GmbH considers on the other hand that the concept mechanically propelled can include only vehicles basically intended to carry passengers or goods. The machine in question must be regarded as a working machine.

It is of the opinion that the Hauptzollamt cannot rely on the Explanatory Notes to the Brussels Nomenclature in support of the opposite argument. In the plaintiff's view these notes are invalid in law in that they widen the scope of heading 86.04 far beyond the subject-matter which forms the legal content of this heading. Finally levellers are expressly mentioned in heading 84.23 by way of example.

By order dated 19 March 1975 the Finanzgericht Berlin (IIIrd Senate) stayed the proceedings and submitted the following question to the Court of Justice of the European Communities under Article 177 of the EEC Treaty:

The order of the Finanzgericht Berlin was registered at the Court Registry on 1 April 1975.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted by the Commission of the European Communities, represented by its Legal Adviser, Jean Amphoux, acting as Agent, assisted by Mr. Götz zur Hausen, a member of the Legal Department

With regard to the scope of the Explanatory Notes to the Brussels Nomenclature, the Commission cites the case-law of the Court according to which in the absence of Community provisions in the matter the Explanatory Notes afford an authoritative source for the purpose of the interpretation of the provisions of the Common Customs Tariff.

The Commission stresses the necessity of the uniform application of the Common Customs Tariff throughout the whole of the Community and considers that the Explanatory Notes constitute an important instrument of interpretation enabling a correct application of Community law to be arrived at.

With regard to the question of classifying the machine for tamping, levelling and adjusting railway tracks, the Commission states that according to the wording of Note 1 k of Section XVI of the Common Customs Tariff (machinery and mechanical applicances; electrical parts thereof) classification under heading 84.23 is automatically ruled out if the machine comes under vehicles, aircraft, ships or boats.

Accordingly, it is necessary to define the concept of vehicles, aircraft, ships or boats in the sense of Section XVII, in particular that of railway and tramway locomotives, rolling-stock in Chapter 86 of the Common Customs Tariff.

Since it concerns in the present case a self-propelled vehicle, the question ultimately relates to the interpretation of the concept of mechanically propelled within the meaning of heading 86.04.

The Commission recalls that when the Council's Committee on Common Customs Tariff Nomenclature was previously consulted on a tariff classification of a machine very similar to the one in the present case, it pronounced itself in favour of a classification under heading 86.04 and that as a result the Explanatory Notes on this heading were accordingly amended.

In the Commission's opinion the present case is likewise concerned with mechanically propelled coming under heading 86.04.

A consideration of the structure of Chapter 86 shows that it was intended to include therein all railway or tramway track construction material, including not only rolling stock but also track fixtures and fittings. This is moreover confirmed by the Explanatory Notes to the Brussels Nomenclature to Chapter 86 which is worded as follows:

It is true that the mere fact of moving from place to place by rail would not make a machine a railway vehicle within the meaning of Chapter 86. The decisive criterion for such classification is that the machines are intended to travel over a network of a certain extent. As regards, in particular, the concept of mechanically propelled within the meaning of heading 86.04, the determining factor is the vehicle's capacity to move from place to place by its own means over the whole network without, as distinct from the case of locomotives, traction or the pushing of other railway vehicles being the main objective.

The fact that self-propelled machines intended for track maintenance come under heading 86.04 is, moreover, confirmed by a comparison with the wording of heading 86.06 which covers track maintenance vehicles moving from place to place on rails which are not self-propelled but moved by locomotives.

The Explanatory Notes to the Brussels Nomenclature on this heading also expressly refer to tampers (under 4). As regards the classification of track maintenance machines it thus appears that the notes to heading 86.06 agree with those to heading 86.04, save with regard to the matter of self-propulsion which distinguishes the two headings.

Finally it would appear quite unjustified and illogical to infer that a means of self-propulsion is a reason for not regarding the machine as a vehicle and thus classifying it under Chapter 84. A non-self-propelled machine is even less assimilable to rolling-stock than a self-propelled machine which is much more akin to locomotives.

The Commission therefore considers that the questions raised should be answered as follows:

Matisa-Maschinen-GmbH, represented by Wolfgang Schlüter, Advocate of Bielefeld and the Commission of the European Communities, represented by its Legal Adviser Jean Amphoux, acting as Agent, assisted by Mr Götz zur Hausen, member of the Legal Department, presented their oral observations at the hearing on 24 September 1975.

The Advocate-General delivered his opinion at the hearing on 14 October 1975.