61976CJ0022_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 22/76
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNALE DI PAVIA FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
IMPORT GADGETS, S.A.R.L ., PARIS
AND
L.A.M.P ., S.P.A ., PAVIA
Subject of the case
ON THE INTERPRETATION OF HEADINGS 97.02 AND 97.03 OF THE COMMON CUSTOMS TARIFF,
Grounds
1 BY ORDER OF 22 JANUARY 1976, WHICH REACHED THE COURT ON 5 MARCH 1976, THE TRIBUNALE DI PAVIA REFERRED UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION OF HEADINGS 97.02 AND 97.03 OF THE COMMON CUSTOMS TARIFF .
2 THIS QUESTION WAS RAISED IN CONNEXION WITH A DISPUTE CONCERNING THE IMPORTATION INTO FRANCE BY THE PLAINTIFF IN THE MAIN ACTION OF ' LAUGHING DEVICES '
WHICH IT HAD PURCHASED IN ITALY FROM THE DEFENDANT IN THE MAIN ACTION FOR USE IN THE MANUFACTURE OF TALKING DOLLS .
3 2 000 OF THESE DEVICES, DISPATCHED IN FEBRUARY 1970, ACCOMPANIED BY A CERTIFICATE OF ITALIAN ORIGIN DECLARING THAT THEY CAME UNDER TARIFF SUBHEADING 97.02 B ( PARTS AND ACCESSORIES OF DOLLS ), WERE, ON ARRIVAL IN PARIS, DECLARED UNDER THE SAME SUBHEADING .
1 600 OF THESE DEVICES, DISPATCHED IN FEBRUARY 1971 UNDER THE SAME CONDITIONS AS THE PREVIOUS ONES, WERE ON ARRIVAL IN PARIS DECLARED UNDER SUBHEADING 97.03 B ( OTHER TOYS ; WORKING MODELS OF A KIND USED FOR RECREATIONAL PURPOSES ).
4 THE FRENCH CUSTOMS FOUND THAT THE DEVICES IN QUESTION BORE THE INSCRIPTION, PARTLY DELETED, ' MADE IN JAPAN ', REFUSED THEM COMMUNITY TREATMENT, ORDERED THEM TO BE CONFISCATED AND IMPOSED A FINE ON THE PLAINTIFF IN THE MAIN ACTION .
IN CONSEQUENCE, IMPORT GADGETS, THE PLAINTIFF IN THE MAIN ACTION, BROUGHT AN ACTION FOR DISSOLUTION OF THE CONTRACT OF SALE BEFORE THE TRIBUNALE DI PAVIA AND FOR DAMAGES .
5 THE QUESTION IS ASKED WHETHER THE LAUGHING DEVICES CONSTITUTE MECHANISMS CAPABLE OF BEING USED BY THEMSELVES AS TOYS ( 97.03 ) OR, ON THE OTHER HAND, WHETHER THEY MERELY CONSTITUTE PARTS OF DOLLS ( 97.02 B ).
6 NOTE 3 TO CHAPTER 97 OF THE COMMON CUSTOMS TARIFF ( 1972 NUMBERING ) READS : ' IN HEADING 97.02 THE TERM ' ' DOLLS ' '
IS TO BE TAKEN TO APPLY TO SUCH ARTICLES AS ARE REPRESENTATIONS OF HUMAN BEINGS ' .
NOTE 4 PROVIDES THAT ' PARTS AND ACCESSORIES WHICH ARE SUITABLE FOR USE SOLELY OR PRINCIPALLY WITH ARTICLES FALLING WITHIN ANY HEADING OF THIS CHAPTER ARE TO BE CLASSIFIED WITH THOSE ARTICLES ' .
7 THE EXPLANATORY NOTES TO THE BRUSSELS NOMENCLATURE WHICH, IN THE ABSENCE OF SPECIFIC PROVISIONS OF COMMUNITY LAW, ARE AN AUTHORITATIVE AND VALID AID TO THE INTERPRETATION OF THE COMMON CUSTOMS TARIFF HEADINGS, CONTAIN THE FOLLOWING CLARIFICATION OF HEADING 97.02 :
' THE TERM ' ' DOLLS ' '
IS TO BE TAKEN TO APPLY ONLY TO SUCH ARTICLES AS ARE REPRESENTATIONS OF HUMAN BEINGS ( INCLUDING THOSE OF A CARICATURE TYPE ).
. . . . . .
PARTS AND ACCESSORIES OF DOLLS FALLING WITHIN THIS HEADING INCLUDE : HEADS, BODIES, LIMBS ; WIGS ; VOICE AND OTHER MECHANISMS ; DOLLS '
CLOTHING, SHOES AND HATS ; DOLLS '
EYES WHETHER OR NOT MOUNTED ON MOVING MECHANISMS, BUT UNMOUNTED DOLLS '
EYES OF GLASS ARE EXCLUDED ( HEADING 70.19 ) ' .
8 ON THE OTHER HAND, THE LONG LIST OF EXAMPLES OF TOYS FALLING WITHIN HEADING 97.03 GIVEN BY THE NOTES DOES NOT INCLUDE ANYTHING RESEMBLING LAUGHING DEVICES, NOR ARE THE LATTER INCLUDED IN THE LIST OF EXAMPLES OF NOVELTY JOKES FALLING WITHIN HEADING 97.05 .
THIS JUSTIFIES THE CONCLUSION THAT ' VOICE AND OTHER MECHANISMS '
ARE SUITABLE FOR USE, IF NOT SOLELY, AT LEAST PRINCIPALLY, IN DOLLS WHICH ARE REPRESENTATIONS OF HUMAN BEINGS, NOTWITHSTANDING THAT THEY MAY BE SUITABLE ALSO FOR OTHER USES .
9 IN CONSEQUENCE, THE REPLY TO THE QUESTION SUBMITTED BY THE TRIBUNALE DI PAVIA MUST BE THAT LAUGHING DEVICES SUITABLE PRINCIPALLY FOR USE IN DOLLS THAT ARE REPRESENTATIONS OF HUMAN BEINGS COME WITHIN HEADING 97.02 B OF THE COMMON CUSTOMS TARIFF .
Decision on costs
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, A STEP IN THE ACTION PENDING BEFORE THE TRIBUNALE DI PAVIA, COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNALE DI PAVIA BY ORDER OF 22 JANUARY 1976 HEREBY RULES :
LAUGHING DEVICES SUITABLE FOR USE PRINCIPALLY IN DOLLS THAT ARE REPRESENTATIONS OF HUMAN BEINGS COME WITHIN HEADING 97.02 B OF THE COMMON CUSTOMS TARIFF .