CELEX: 61985CJ0038
Bienengräber & Co. v Hauptzollamt Hamburg
Jonas

1 BY AN ORDER OF 18 DECEMBER 1984 , WHICH WAS RECEIVED AT THE COURT ON 11 FEBRUARY 1985 , THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY A NUMBER OF QUESTIONS REGARDING THE INTERPRETATION OF THE PROVISIONS OF CHAPTER 97 ( ' TOYS , GAMES AND SPORTS REQUISITES ; PARTS THEREOF ' ) OF THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL , L 289 OF 14 NOVEMBER 1977 , P . 348 ).
2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN BIENENGRABER AND THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS REGARDING THE TARIFF CLASSIFICATION OF CLOTHES AND ACCESSORIES FOR FIGURES KNOWN AS ' MONCHHICHI '  OR ' KIKIS '  CLEARED FOR RELEASE INTO FREE CIRCULATION IN THE COMMUNITY .
3 ' MONCHHICHI '  OR ' KIKIS '  ARE HALF HUMAN IN APPEARANCE , IN SO FAR AS THEIR HANDS , FEET , THE SHAPE OF THEIR EYES , CHEEKS AND MOUTH ARE CONCERNED , AND HALF ANIMAL , WITH REGARD IN PARTICULAR TO THEIR NOSE AND TAIL AND TO THE FUR WHICH COVERS THEIR TORSO AND LIMBS .
4 BIENENGRABER DECLARED THE CLOTHES AND ACCESSORIES FOR THE FIGURES IN QUESTION UNDER SUBHEADING 97.02 B OF THE COMMON CUSTOMS TARIFF , ' PARTS AND ACCESSORIES '  OF DOLLS , BUT THE HAUPTZOLLAMT HAMBURG-JONAS CLASSIFIED THEM UNDER SUBHEADING 97.03 B , ' OTHER TOYS ; WORKING MODELS OF A KIND USED FOR RECREATIONAL PURPOSES ' .
5 AFTER ITS OBJECTION TO THAT CLASSIFICATION WAS REJECTED THE PLAINTIFF BROUGHT PROCEEDINGS BEFORE THE FINANZGERICHT HAMBURG .
6 THE FINANZGERICHT DISMISSED THE ACTION ON THE GROUND THAT ' MONCHHICHI '  OR ' KIKIS '  WERE NOT DOLLS WITHIN THE MEANING OF SUBHEADING 97.02 B OF THE COMMON CUSTOMS TARIFF . THE JUDGMENT WAS BASED ESSENTIALLY ON THE RESULTS OF AN OPINION POLL CARRIED OUT AT THE FINANZGERICHT ' S REQUEST BY THE INSTITUT FUR VERBRAUCHS- UND EINKAUFSFORSCHUNG ( A MARKET RESEARCH ORGANIZATION ) AND ON AN EXPERT OPINION PROVIDED BY THE ZOLLTECHNISCHE PRUFUNGS- UND LEHRANSTALT ( CUSTOMS LABORATORY AND TRAINING COLLEGE ) ACCORDING TO WHICH ' KIKIS '  REPRESENTED ANIMALS .
7 BIENENGRABER APPEALED AGAINST THAT JUDGMENT TO THE BUNDESFINANZHOF , AND RELIED IN PARTICULAR ON A DECISION OF THE FRENCH COMMISSION DE CONCILIATION ET D ' EXPERTISE DOUANIERE ( CUSTOMS CONCILIATION AND ADVISORY COMMITTEE ) TO THE EFFECT THAT THEIR CLOTHING AND ACCESSORIES MADE THE ' KIKIS '  STYLIZED REPRESENTATIONS OF HUMAN BEINGS .
8 IN VIEW OF THAT DIFFERENCE OF OPINION THE BUNDESFINANZHOF DECIDED TO STAY THE PROCEEDINGS AND REFER THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ( 1 ) IS NOTE 3 TO CHAPTER 97 OF THE COMMON CUSTOMS TARIFF TO BE INTERPRETED AS MEANING THAT A FIGURE IS ONLY TO BE REGARDED AS A REPRESENTATION OF A HUMAN BEING AND THEREFORE AS A DOLL WITHIN THE MEANING OF HEADING 97.02 A OF THE COMMON CUSTOMS TARIFF IF IT DISPLAYS ONLY SUCH FEATURES AS CORRESPOND TO THE NATURAL APPEARANCE OF HUMAN BEINGS , ALBEIT IN A DISTORTED FORM?
( 2)IF QUESTION 1 IS ANSWERED IN THE NEGATIVE :
ARE THE TERMS ' REPRESENTATIONS OF HUMAN BEINGS '  IN NOTE 3 TO CHAPTER 97 OF THE COMMON CUSTOMS TARIFF AND ' DOLLS '  IN HEADING 97.02 A OF THE COMMON CUSTOMS TARIFF TO BE INTERPRETED AS MEANING THAT A FIGURE MAY BE REGARDED AS A REPRESENTATION OF A HUMAN BEING AND THEREFORE AS A DOLL WITHIN THE MEANING OF THAT HEADING EVEN IF IT DISPLAYS ANIMAL AS WELL AS HUMAN FEATURES?
UNDER WHAT CONDITIONS , IN THE PRESENCE OF ANIMAL FEATURES AS WELL AS THOSE SUGGESTING THE REPRESENTATION OF A HUMAN BEING , CAN THE FIGURE IN QUESTION NEVERTHELESS BE REGARDED AS A DOLL?
'
9 IT APPEARS FROM THE WORDING OF THOSE TWO QUESTIONS THAT THE BUNDESFINANZHOF WISHES ESSENTIALLY TO KNOW WHETHER THE REPRESENTATION OF HUMAN BEINGS FOR THE PURPOSES OF NOTE 3 OF CHAPTER 97 OF THE COMMON CUSTOMS TARIFF MUST BE UNDERSTOOD AS MEANING THE REPRESENTATION OF HUMAN CHARACTERISTICS ONLY , AND IF NOT , IN WHAT CIRCUMSTANCES CERTAIN ANIMAL CHARACTERISTICS MAY BE ACCEPTED .
10 THE COMMISSION CONSIDERS THAT IN VIEW OF THE DIFFERENT LANGUAGE VERSIONS OF THE EXPLANATORY NOTES ON THE NOMENCLATURE OF THE CUSTOMS COOPERATION COUNCIL A DOLL , AS REFERRED TO IN HEADING 97.02 OF THE COMMON CUSTOMS TARIFF , MAY HAVE CERTAIN ANIMAL CHARACTERISTICS SO LONG AS IT IS PREDOMINANTLY HUMAN IN APPEARANCE .
11 ACCORDING TO THE EXPLANATORY NOTES ON THE NOMENCLATURE ' ONLY . . . SUCH ARTICLES AS ARE REPRESENTATIONS OF HUMAN BEINGS ( INCLUDING THOSE OF A CARICATURE TYPE ) '  ARE TO BE REGARDED AS DOLLS FOR THE PURPOSES OF HEADING 97.02 OF THE COMMON CUSTOMS TARIFF .
12 INASMUCH AS THE REPRESENTATION OF A HUMAN BEING MAY , ACCORDING TO THE WORDING OF THOSE EXPLANATORY NOTES , BE DEFORMED OR EVEN STYLIZED , IT MAY ALSO INCLUDE CERTAIN CHARACTERISTICS BORROWED FROM THE ANIMAL KINGDOM . SUCH ANIMAL CHARACTERISTICS MUST , HOWEVER , REMAIN MINOR AND SECONDARY AND MUST NOT PUT IN QUESTION THE GENERAL APPEARANCE OF THE FIGURE WHICH MUST ESSENTIALLY CORRESPOND TO THAT OF A HUMAN BEING .
13 THE ANSWER TO THE QUESTIONS REFERRED BY THE BUNDESFINANZHOF MUST THEREFORE BE THAT NOTE 3 TO CHAPTER 97 OF THE COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT A FIGURE MAY BE REGARDED AS A DOLL WITHIN THE MEANING OF SUBHEADING 97.02 A OF THE COMMON CUSTOMS TARIFF ONLY IF ANY ANIMAL FEATURES WHICH IT MAY HAVE ARE MINOR AND SECONDARY AND THE FIGURE ' S GENERAL APPEARANCE IS ESSENTIALLY THAT OF A HUMAN BEING .
Decision on costs
COSTS
14 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 NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 18 DECEMBER 1984 , HEREBY RULES :
NOTE 3 TO CHAPTER 97 OF THE COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT A FIGURE MAY BE REGARDED AS A DOLL WITHIN THE MEANING OF SUBHEADING 97.02 A OF THE COMMON CUSTOMS TARIFF ONLY IF ANY ANIMAL FEATURES WHICH IT MAY HAVE ARE MINOR AND SECONDARY AND THE FIGURE ' S GENERAL APPEARANCE IS ESSENTIALLY THAT OF A HUMAN BEING .