CELEX: 61981CJ0317
Common Customs Tariff
Treatment which can "be seen with the naked eye"

1 BY ORDER DATED 17 NOVEMBER 1981 WHICH WAS RECEIVED AT THE COURT ON 21 DECEMBER 1981 THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION AND VALIDITY OF NOTE 2 ( A ) ( A ) TO CHAPTER 59 OF THE COMMON CUSTOMS TARIFF .
2 THOSE QUESTIONS AROSE IN THE COURSE OF PROCEEDINGS BETWEEN A NETHERLANDS UNDERTAKING , THE PLAINTIFF IN THE MAIN ACTION , AND THE OBERFINANZDIREKTION ( PRINCIPAL REVENUE OFFICE ) FRANKFURT AM MAIN ON THE QUESTION OF A BINDING CUSTOMS TARIFF RULING OF 22 MAY 1975 RELATING TO GOODS DESCRIBED BY THE PLAINTIFF AS ' ' SAILCLOTH TEXTILE FABRIC ' ' .
3 IN THE RULING THE OBERFINANZDIREKTION CLASSIFIED THE GOODS UNDER HEADING 51.04 A OF THE COMMON CUSTOMS TARIFF ( WOVEN FABRICS OF SYNTHETIC TEXTILE FIBRES ) WHEREAS THE PLAINTIFF DESIRED CLASSIFICATION UNDER HEADING 59.08 ( TEXTILE FABRICS IMPREGNATED , COATED , COVERED OR LAMINATED WITH PREPARATIONS OF CELLULOSE DERIVATIVES OR OF OTHER ARTIFICIAL PLASTIC MATERIALS ).
4 IT APPEARS FROM THE FILE THAT THE GOODS IN QUESTION HAD IN FACT BEEN TREATED IN THE MANNER PROVIDED FOR IN HEADING 59.08 BUT THE OBERFINANZDIREKTION REJECTED CLASSIFICATION THEREUNDER BY REASON OF NOTE 2 ( A ) TO CHAPTER 59 ACCORDING TO WHICH HEADING 59.08 DOES NOT COVER INTER ALIA :
' ' ( A ) FABRICS IN WHICH THE IMPREGNATION , COATING OR COVERING CANNOT BE SEEN WITH THE NAKED EYE . . .. ' '
5 UPON THE PLAINTIFF ' S BRINGING AN ACTION AGAINST THE CUSTOMS TARIFF RULING THE BUNDESFINANZHOF REFERRED THE FOLLOWING QUESTIONS TO THE COURT :
' ' 1 . WHICH IS THE CORRECT INTERPRETATION OF NOTE 2 ( A ) ( A ) TO CHAPTER 59 OF THE COMMON CUSTOMS TARIFF WHICH STATES THAT HEADING 59.08 DOES NOT COVER FABRICS IN WHICH THE IMPREGNATION , COATING OR COVERING WITH PREPARATIONS OF CELLULOSE DERIVATIVES OR OF OTHER ARTIFICIAL PLASTIC MATERIALS CANNOT BE SEEN WITH THE NAKED EYE? DOES THE INTERPRETATION DEPEND UPON THE PERCEPTION OF ANY OBSERVER OR OF AN AVERAGE OR PARTICULARLY EXPERIENCED CUSTOMS OFFICIAL OR ON THAT OF AN EXPERT? DO THE WORDS ' CANNOT BE SEEN WITH THE NAKED EYE '  MEAN THAT ONLY A PIECE OF FABRIC LYING ON A FLAT SURFACE IS TO BE VISUALLY APPRAISED OR DO THEY ALSO ALLOW THE POSSIBILITY OF RECOGNITION BY INDIRECT VISUAL MEANS WHICH POINT TO THE STIFFNESS OF THE FABRIC AS A RESULT OF IMPREGNATION , COATING OR COVERING ( FOR EXAMPLE , LACK OF ' FLUFFING OUT '  ON THE CUT EDGES , CONTINUED PRESENCE OF CREASES IN THE FABRIC)?
2.IF SUCH INTERPRETATION DEPENDS UPON THE PERCEPTION OF ANY OBSERVER OR OF AN INEXPERIENCED CUSTOMS OFFICIAL :
IS THE ABOVE-MENTIONED NOTE VALID INASMUCH AS IT CONFRONTS THESE PERSONS WITH ALMOST INSOLUBLE TARIFF CLASSIFICATION PROBLEMS?
' '
6 THERE ARE TWO PARTS TO QUESTION 1 , THE FIRST OF WHICH CONCERNS THE RELEVANT OBSERVER FOR THE PURPOSES OF THE INTERPRETATION AND APPLICATION OF THE NOTE . SINCE THAT FIRST PART IS CLOSELY CONNECTED WITH QUESTION 2 , RELATING TO THE VALIDITY OF THE NOTE THEY NEED TO BE CONSIDERED TOGETHER BUT AS A PRELIMINARY THE SECOND PART OF QUESTION 1 MUST BE EXAMINED .
7 IN THE SECOND PART OF QUESTION 1 THE BUNDESFINANZHOF IS ASKING ESSENTIALLY WHETHER THE NOTE MAKES IT A CONDITION FOR THE APPLICATION OF HEADING 59.08 THAT THE IMPREGNATION , COATING OR COVERING MUST BE DIRECTLY VISIBLE UPON SIMPLE VISUAL EXAMINATION OR WHETHER THE NOTE ALLOWS SUCH TREATMENT TO BE INFERRED FROM THE STIFFNESS OF THE MATERIAL RESULTING THEREFROM .
8 IN ITS OBSERVATIONS SUBMITTED TO THE COURT THE COMMISSION STRESSED IN PARTICULAR MATTERS OF INTERPRETATION TO BE DERIVED FROM THE HISTORY OF THE NOTE IN QUESTION AND OF THE IDENTICAL NOTE IN THE CORRESPONDING CHAPTER OF THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE AS WELL AS THE PRACTICE FOLLOWED BY THE TWO NOMENCLATURE COMMITTEES , THAT OF THE COMMON CUSTOMS TARIFF AND THAT OF THE CUSTOMS COOPERATION COUNCIL WITH REGARD TO THE APPLICATION OF THOSE NOTES .
9 IN THAT RESPECT IT MUST BE OBSERVED THAT THE ORIGINAL VERSIONS OF THE TWO NOTES PROVIDED THAT HEADING 59.08 DID NOT COVER FABRICS WHERE THE IMPREGNATION OR COATING WAS NOT ' ' APPARENT ' ' . SINCE THE NOMENCLATURE COMMITTEE OF THE CUSTOMS COOPERATION COUNCIL INTERPRETED THAT AS MEANING ' ' CAN BE SEEN WITH THE NAKED EYE ' ' , THE WORDING OF THAT NOMENCLATURE WAS AMENDED TO THAT EFFECT IN 1969 . SUBSEQUENTLY THE COMMON CUSTOMS TARIFF WAS AMENDED IN THE SAME WAY BY REGULATION NO 1/72 OF THE COUNCIL OF 20 DECEMBER 1971 ( JOURNAL OFFICIEL L 1 OF 1 JANUARY 1972 , P . 1 ).
10 AFTER THE AMENDMENT THE TWO NOMENCLATURE COMMITTEES WERE CALLED UPON TO GIVE A RULING ON THE INTERPRETATION OF THE NEW VERSION OF THE NOTES . IN 1976 THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE CONSIDERED THAT HEADING 59.08 DID NOT APPLY TO FABRICS THE TREATMENT OF WHICH WAS NOT APPARENT UNTIL AFTER THE SAMPLE HAD BEEN FOLDED . IN 1978 THE NOMENCLATURE COMMITTEE OF THE CUSTOMS COOPERATION COUNCIL CONSIDERED THAT THE WORDS ' ' CAN BE SEEN WITH THE NAKED EYE ' '  WERE TO BE INTERPRETED IN THE SENSE OF ' ' DIRECT PERCEPTION ' '  BY LOOKING AT THE SURFACE OF THE FABRIC AND THAT THE FACT THAT THE IMPREGNATION HAD GIVEN A CERTAIN STIFFNESS TO THE FABRIC DID NOT ALLOW IT TO BE CLASSIFIED UNDER HEADING 59.08 .
11 THE INTERPRETATION THUS SUGGESTED BY THE AMENDMENT OF THE WORDING IS CONFIRMED BY THE PRACTICE OF THE NOMENCLATURE COMMITTEES ; IT CORRESPONDS TO THE FIRST ALTERNATIVE PROPOSED BY THE NATIONAL COURT AND IS IN FACT CONSISTENT WITH THE MEANING GIVEN TO THAT EXPRESSION IN EVERYDAY LANGUAGE .
12 SUCH AN INTERPRETATION ALSO ACCORDS WITH THE OBJECTIVE OF THE NOTE IN QUESTION . AS THE COUNCIL HAS REMARKED IN ITS OBSERVATIONS TO THE COURT , THE REASONS FOR WHICH THE PROVISIONS IN FORCE AT COMMUNITY AND INTERNATIONAL LEVEL ESTABLISH SUCH CRITERIA FOR TARIFF CLASSIFICATION IN SPECIAL CASES ARE BASICALLY TO BE FOUND IN THE CONCERN TO ALLOW SPEEDY CHECKING ON CUSTOMS CLEARANCE .
13 MOREOVER , THE ADDITION TO PARAGRAPH ( A ) OF THE NOTE , TO THE EFFECT THAT NO ACCOUNT IS TO BE TAKEN OF ANY RESULTING CHANGE OF COLOUR CONFIRMS THE CONTENTION THAT IT MUST BE POSSIBLE TO OBSERVE THE EXISTENCE OF THE TREATMENT DIRECTLY AND NOT TO INFER IT FROM OTHER PROPERTIES WHICH THE TREATMENT MAY HAVE CONFERRED ON THE FABRIC .
14 THAT PART OF QUESTION 1 MUST THEREFORE BE ANSWERED TO THE EFFECT THAT THE EXPRESSION ' ' CAN BE SEEN WITH THE NAKED EYE ' '  IN NOTE 2 ( A ) ( A ) TO CHAPTER 59 OF THE COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT THE IMPREGNATION , COATING OR COVERING OF THE FABRIC MUST BE DIRECTLY VISIBLE ON SIMPLE VISUAL EXAMINATION AND THAT THE WORDING OF THE NOTE DOES NOT ALLOW THE CONCLUSION TO BE DRAWN FROM THE STIFFNESS OF A FABRIC THAT IT HAS RECEIVED SUCH TREATMENT .
15 IN THE FIRST PART OF QUESTION 1 THE BUNDESFINANZHOF ASKS WHETHER FOR THE INTERPRETATION AND APPLICATION OF THE NOTE IN QUESTION ACCOUNT MUST BE TAKEN OF THE PERCEPTION OF ANY OBSERVER OR OF AN AVERAGE OR PARTICULARLY EXPERIENCED CUSTOMS OFFICIAL OR THAT OF AN EXPERT .
16 IN THAT RESPECT IT MUST BE EMPHASIZED THAT ALTHOUGH THE COMMON CUSTOMS TARIFF CONSTITUTES A MEASURE OF COMMUNITY LAW TO BE INTERPRETED UNIFORMLY IN ALL MEMBER STATES , ITS APPLICATION IS ENTRUSTED TO THE STATES .
17 THAT PART OF QUESTION 1 MUST THEREFORE BE ANSWERED TO THE EFFECT THAT IT IS FOR THE MEMBER STATES TO DESIGNATE THE AUTHORITIES AND PERSONS REQUIRED TO UNDERTAKE THE TARIFF CLASSIFICATION OF PRODUCTS AND TO DECIDE THEIR TRAINING IN ORDER TO ENABLE THEM PROPERLY TO FULFIL SUCH TASKS .
18 IN QUESTION 2 THE BUNDESFINANZHOF ESSENTIALLY ASKS WHETHER OR NOT THE NOTE AS FAR AS CONCERNS THE WORDS AT ISSUE IS VALID IN VIEW OF THE DIFFICULTIES WHICH THEIR APPLICATION MAY CAUSE TO PERSONS CALLED UPON TO DECIDE THE TARIFF CLASSIFICATION OF THE GOODS IN QUESTION .
19 IN THAT RESPECT IT MUST BE STRESSED THAT ALTHOUGH DIFFICULTIES CAUSED BY THE APPLICATION OF A COMMUNITY PROVISION MAY BE RELEVANT TO ITS INTERPRETATION THEY ARE NOT OF SUCH A NATURE AS TO CALL ITS VALIDITY IN QUESTION .
20 IT MUST MOREOVER BE MENTIONED THAT THE APPLICATION OF THE NOTE IN QUESTION , AS INTERPRETED ABOVE , DOES NOT SEEM TO PRESENT THE DIFFICULTIES WHICH THE QUESTION MENTIONS . IN CASES WHERE THE PERSONS ENTRUSTED WITH THE TASK BY THE MEMBER STATE ARE NOT ABLE BY SIMPLE VISUAL EXAMINATION TO ASCERTAIN THAT THE FABRIC HAS BEEN TREATED IT FOLLOWS FROM THE NOTE THAT SUCH TREATMENT , IF IT HAS IN FACT TAKEN PLACE , IS NOT SUFFICIENT TO TRANSFER THE FABRIC FROM THE TARIFF HEADING NORMALLY APPLICABLE TO A FABRIC OF THAT TYPE TO THE SPECIFIC HEADING PROVIDED FOR UNDER NO 59.08 . THUS THE NOTE DOES IN FACT REJECT ANY EXAMINATION EXCEEDING THE CAPACITIES OF SUCH PERSONS FOR THE PURPOSE OF CHECKING WHETHER OR NOT THE FABRIC HAS UNDERGONE SUCH TREATMENT .
21 THE SECOND QUESTION MUST THEREFORE BE ANSWERED TO THE EFFECT THAT CONSIDERATION OF THE NOTE HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .
Decision on costs
COSTS
22 THE COSTS INCURRED BY THE COUNCIL AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THE 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 , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 17 NOVEMBER 1981 , HEREBY RULES :
( 1 ) THE EXPRESSION ' ' CAN BE SEEN WITH THE NAKED EYE ' '  IN NOTE 2 ( A ) ( A ) TO CHAPTER 59 OF THE COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT THE IMPREGNATION , COATING OR COVERING OF THE FABRIC MUST BE DIRECTLY VISIBLE UPON SIMPLE VISUAL EXAMINATION . THE WORDING OF THE NOTE DOES NOT ALLOW THE INFERENCE TO BE DRAWN FROM THE STIFFNESS OF A FABRIC THAT IT HAS RECEIVED SUCH TREATMENT .
( 2)IT IS FOR THE MEMBER STATES TO DESIGNATE THE AUTHORITIES AND THE PERSONS CALLED UPON TO UNDERTAKE THE TARIFF CLASSIFICATION OF PRODUCTS AND TO DETERMINE THE TRAINING OF SUCH PERSONS IN ORDER TO ENABLE THEM TO PERFORM THEIR TASK PROPERLY .
( 3)CONSIDERATION OF THE NOTE HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO AFFECT ITS VALIDITY .