61982CJ0192_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 192/82
REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) BREMEN, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
KAFFEE-CONTOR BREMEN GMBH & CO . KG
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) BREMEN-NORD
Subject of the case
ON THE INTERPRETATION OF CERTAIN TARIFF HEADINGS OF THE COMMON CUSTOMS TARIFF,
Grounds
1 BY ORDER OF 24 JUNE 1982, WHICH WAS RECEIVED AT THE COURT ON 30 JULY 1982, THE FINANZGERICHT ( FINANCE COURT ) BREMEN REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY A QUESTION RELATING TO THE INTERPRETATION OF VARIOUS TARIFF HEADINGS OF THE COMMON CUSTOMS TARIFF .
2 THE QUESTION AROSE IN THE COURSE OF PROCEEDINGS BETWEEN THE APPROPRIATE CUSTOMS AUTHORITY ( THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) BREMEN-NORD ) AND A GERMAN COMPANY WHICH, IN 1980, HAD IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY 20 000 JEWELLERY BOXES, DECLARING THE GOODS TO BE ARTICLES OF POLYSTYRENE FALLING WITHIN TARIFF SUBHEADING 39.07 B V ( D ).
3 THE HAUPTZOLLAMT APPLIED TO THE ZOLLEHRANSTALT ( CUSTOMS TRAINING COLLEGE ) FOR AN EXPERT OPINION, ACCORDING TO WHICH THE BOX IN QUESTION WAS A RECEPTACLE MEASURING 9.4 CM BY 7.6 CM BY 3.4 CM, NORMALLY USED AS A DISPLAY CASE FOR OBJECTS ON SALE OR AS A CONTAINER FOR KEEPING ITEMS OF JEWELLERY . THE BOX, FITTED WITH A HINGED LID, WAS MADE OF POLYSTYRENE AND WHOLLY COVERED ON THE OUTSIDE WITH COATED PAPER-BOARD .
4 ON THE BASIS OF THE EXPERT OPINION THE HAUPTZOLLAMT CLASSIFIED THE GOODS UNDER SUBHEADING 42.02 B, WHICH CONSISTS OF :
' ' TRAVEL GOODS ( FOR EXAMPLE, TRUNKS, SUIT-CASES, HAT-BOXES, TRAVELLING-BAGS, RUCKSACKS ), SHOPPING-BAGS, HANDBAGS, SATCHELS, BRIEF-CASES, WALLETS, PURSES, TOILET-CASES, TOOL-CASES, TOBACCO-POUCHES, SHEATHS, CASES, BOXES ( FOR EXAMPLE, FOR ARMS, MUSICAL INSTRUMENTS, BINOCULARS, JEWELLERY, BOTTLES, COLLARS, FOOTWEAR, BRUSHES ) AND SIMILAR CONTAINERS, OF LEATHER OR OF COMPOSITION LEATHER, OF VULCANIZED FIBRE, OF ARTIFICIAL PLASTIC SHEETING, OF PAPER-BOARD OR OF TEXTILE FABRIC :
A . OF ARTIFICIAL PLASTIC SHEETING . . .
B . OF OTHER MATERIALS . . . ' '
IN MAKING THAT CLASSIFICATION THE HAUPTZOLLAMT APPLIED ONE OF THE EXPLANATORY NOTES OF THE CUSTOMS COOPERATION COUNCIL WHICH STATES THAT ARTICLES OF OTHER MATERIALS STILL FALL WITHIN THAT HEADING IF THEY ARE COVERED ON THE OUTSIDE BY ONE OF THE MATERIALS REFERRED TO IN THAT HEADING .
5 THE IMPORTER BROUGHT AN ACTION AGAINST THAT DECISION BEFORE THE FINANZGERICHT, CLAIMING THAT THE GOODS SHOULD BE CLASSIFIED UNDER SUBHEADING 39.07 B V ( D ).
6 THE FINANZGERICHT STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' ARE JEWELLERY BOXES WITH HINGED LIDS, OF POLYSTYRENE AND WHOLLY COVERED ON THE OUTSIDE WITH VARNISHED PAPER, TO BE CLASSIFIED AS BOXES FOR JEWELLERY AND SIMILAR CONTAINERS UNDER TARIFF HEADING 42.02 B OF THE COMMON CUSTOMS TARIFF, OR AS BOXES OF ARTIFICIAL RESINS OR PLASTIC MATERIALS UNDER TARIFF SUBHEADING 39.07 B V ( D ) OF THE COMMON CUSTOMS TARIFF?
' '
7 ACCORDING TO RULE 3 ( A ) AND ( B ) OF THE GENERAL RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF, WHEN THE GOODS ARE PRIMA FACIE CLASSIFIABLE UNDER TWO OR MORE HEADINGS, THE HEADING PROVIDING THE MOST SPECIFIC DESCRIPTION MUST TAKE PRECEDENCE AND GOODS CONSISTING OF DIFFERENT MATERIALS MUST BE CLASSIFIED BY REFERENCE TO THE MATERIAL WHICH GIVES THEM THEIR ESSENTIAL CHARACTER .
8 THE IMPORTER EMPHASIZED THAT THE BOXES CONSISTED OF TWO PIECES OF POLYSTYRENE AND WERE COVERED WITH PAPER, WHICH WAS A LIGHT AND SIMPLE MATERIAL INCAPABLE OF DEPRIVING THE BOXES OF THEIR CHARACTER OF OBJECTS OF ARTIFICIAL PLASTIC .
9 IN THE OBSERVATIONS IT SUBMITTED TO THE COURT THE COMMISSION STATED, ON THE CONTRARY, THAT IT AGREED WITH THE HAUPTZOLLAMT THAT IT WAS THE VARNISHED PAPER COVERING THE BOXES WHICH DETERMINED THEIR ESSENTIAL CHARACTER . HOWEVER, IT DREW ATTENTION TO THE FACT THAT ONLY PAPER-BOARD, AND NOT PAPER, APPEARS IN THE LIST OF MATERIALS IN HEADING 42.02 B . SINCE THE COMMON CUSTOMS TARIFF CONTAINS NO CRITERION FOR DISTINGUISHING BETWEEN THOSE TWO MATERIALS, THE COMMISSION REFERRED TO A STATISTICAL NOTE TO CHAPTER 48 OF THE NOMENCLATURE OF GOODS FOR EXTERNAL TRADE STATISTICS OF THE COMMUNITY AND STATISTICS OF TRADE BETWEEN MEMBER STATES, WHICH FIXES THE BORDERLINE BETWEEN PAPER AND PAPER-BOARD AT A WEIGHT OF 225 GRAMS PER SQUARE METRE . ACCORDING TO THE INFORMATION PROVIDED BY THE MANUFACTURER THE WEIGHT OF THE COVERING MATERIAL OF THE BOXES IN QUESTION DOES NOT EXCEED 185 GRAMS PER SQUARE METRE AND THE COMMISSION CONCLUDED FROM THAT THAT THE BOXES MUST BE CLASSIFIED UNDER HEADING 48.16 ( ' ' BOXES, BAGS AND OTHER PACKING CONTAINERS, OF PAPER OR PAPER-BOARD ; BOX FILES, LETTER TRAYS AND SIMILAR ARTICLES, OF PAPER OR PAPER-BOARD, OF A KIND COMMONLY USED IN OFFICES, SHOPS AND THE LIKE ' ' ).
10 IN ORDER TO DETERMINE THE CORRECT HEADING IT IS NECESSARY TO NOTE FIRST THAT IT IS THE COVERING, AND NOT THE MOUNTING, WHICH GIVES THE BOXES THE LUXURY APPEARANCE WHICH IS NECESSARY TO MAKE THEM SUITABLE FOR THE DISPLAY OF JEWELLERY . THUS, BY VIRTUE OF RULE 3 ( B ) OF THE GENERAL RULES REFERRED TO ABOVE, IT IS POSSIBLE TO EXCLUDE HEADING 39.07 RELATING TO ARTICLES OF ARTIFICIAL PLASTIC MATERIALS .
11 OF THE OTHER TWO HEADINGS, TARIFF HEADING 42.02 CERTAINLY CONTAINS THE MORE SPECIFIC DESCRIPTION SINCE IT REFERS EXPRESSLY TO JEWELLERY BOXES . THE QUESTION SUBMITTED BY THE NATIONAL COURT THEREFORE COMES DOWN TO THE QUESTION WHETHER AN ARTICLE COVERED WITH PAPER MAY BE REGARDED AS A BOX ' ' OF PAPER-BOARD ' '
WITHIN THE MEANING OF THAT TARIFF HEADING .
12 THE REPLY MUST BE IN THE AFFIRMATIVE . IN FACT THE WORDING OF THAT TARIFF HEADING AND THE EXPLANATORY NOTE OF THE CUSTOMS COOPERATION COUNCIL THEREON INDICATE THAT THE DECISIVE CRITERIA FOR MAKING A CLASSIFICATION ARE NOT ONLY THE MATERIALS USED, BUT BOTH THE EXTERNAL APPEARANCE OF THE ARTICLES IN QUESTION AND THE USE TO WHICH THEY ARE NORMALLY PUT . CONSEQUENTLY AN ARTICLE
MADE OF PLASTIC AND COVERED WITH PAPER IN SUCH A WAY THAT THE COVERING GIVES IT THE APPEARANCE OF A JEWELLERY BOX MUST BE REGARDED AS A JEWELLERY BOX WITHIN THE MEANING OF TARIFF HEADING 42.02, EVEN IF PAPER IS NOT EXPRESSLY MENTIONED IN THAT HEADING .
13 THAT INTERPRETATION IS SUPPORTED, MOREOVER, BY THE FACT THAT PAPER AND PAPER-BOARD ARE, AS A GENERAL RULE, INCLUDED WITHOUT DISTINCTION IN THE SAME HEADINGS AND SUBHEADINGS OF THE COMMON CUSTOMS TARIFF AND THAT NEITHER THE COMMON CUSTOMS TARIFF NOR THE EXPLANATORY NOTES OF THE CUSTOMS COOPERATION COUNCIL GIVES ANY CRITERION FOR DISTINGUISHING BETWEEN PAPER AND PAPER-BOARD, WHICH ARE MADE OF THE SAME RAW MATERIALS AND WHICH MAY BE DIFFERENTIATED ONLY ON THE BASIS OF THEIR WEIGHT . THAT INDICATES THAT THE TWO PRODUCTS WERE INTENDED TO BE TREATED ALIKE FROM THE POINT OF VIEW OF TARIFF CLASSIFICATION UNLESS OTHERWISE PROVIDED . NO SUCH CONTRARY PROVISION IS TO BE FOUND IN HEADING 42.02 . THAT PAPER-BOARD ALONE, AND NOT PAPER, APPEARS IN THE LIST OF MATERIALS GIVEN IN THE HEADING IS ATTRIBUTABLE TO THE FACT THAT THE VARIOUS ARTICLES LISTED THEREIN CANNOT NORMALLY BE MADE FROM THAT MATERIAL ALONE . HOWEVER, PAPER IS MORE SUITABLE FOR USE AS A COVERING MATERIAL THAN PAPER-BOARD . IN THE CIRCUMSTANCES THE FACT THAT PAPER IS NOT REFERRED TO IN HEADING 42.02 MAY NOT BE REGARDED AS EVIDENCE OF AN INTENTION THAT ARTICLES COVERED IN PAPER AND ARTICLES MADE FROM PAPER-BOARD SHOULD NOT BE TREATED IN THE SAME MANNER .
14 FOR THOSE REASONS A JEWELLERY BOX MADE OF PLASTIC MATERIAL BUT COVERED WITH PAPER MUST BE EQUATED WITH A SIMILAR BOX MADE OF PAPER-BOARD FOR THE PURPOSES OF TARIFF SUBHEADING 42.02 B .
15 THE REPLY TO THE QUESTION REFERRED TO THE COURT MUST THEREFORE BE THAT JEWELLERY BOXES WITH HINGED LIDS, OF POLYSTYRENE AND WHOLLY COVERED ON THE OUTSIDE WITH VARNISHED PAPER, MUST BE CLASSIFIED AS BOXES FOR JEWELLERY UNDER TARIFF SUBHEADING 42.02 B OF THE COMMON CUSTOMS TARIFF .
Decision on costs
COSTS
16 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, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT BREMEN BY ORDER OF 24 JUNE 1982, HEREBY RULES :
JEWELLERY BOXES WITH HINGED LIDS, OF POLYSTYRENE AND WHOLLY COVERED ON THE OUTSIDE WITH VARNISHED PAPER, MUST BE CLASSIFIED AS BOXES FOR JEWELLERY UNDER TARIFF SUBHEADING 42.02 B OF THE COMMON CUSTOMS TARIFF .