(b)

As to subheading 59.01 B, which forms part of heading 59.01: Wadding and articles of wadding; textile flock and dust and mill neps, this is worded, in French, as follows: “B. Tontisses, noeuds et noppes (boutons): I. de matières textiles synthétiques ou artificielles II. d'autres matières textiles”. [“B. Flock and dust and mill neps: I. Of man-made fibres II. Of other textile materials”.] The German equivalent for the French “tontisse” is “Scherstaub”. As that word includes “Staub”, which means “dust”, both the Principal Customs Office and, curiously enough, the Commission, have concluded that a product cannot be classified as “tontisse” [“textile flock and dust”] if it does not have a powder-like quality. But that conclusion does not appear to me to take into account the corresponding words for “Scherstaub” in the five other Community languages. The French “tontisse”, the Dutch “scheerhaar (tontisse)” and the Italian “borra di cimatura” do not give any indication that the product to which they refer must have the outward appearance of dust. Contrary to what the Commission's view appears to be, that is even clearer in the expressions used in English and Danish, which read, for subheading 59.01 B: “Flock and dust and mill neps”, in English, and “Flok, støv og nopper”, in Danish. In order to translate the German “Scherstaub”, recourse is thus had in those languages to two words, “flock and dust” in English, “flok og støv” in Danish, of which the second means precisely “dust”, but the first of which signifies a substance which, on the contrary, does not have a powder-like character. There is no doubt that in English the equivalent of the French word “tontisse”, and therefore the German word “Scherstaub”, embraces not only “dust”, but also “flock”, for the English text — which is as authentic as the French text — of the Explanatory Notes to the Customs Co-operation Council Nomenclature concerning “tontisses” bears the title “Textile Flock and Dust”. Finally, it is clear that the Danish expression corresponds exactly to the English expression. If these arguments based on the actual wording of the Customs Tariff were not sufficient, there might be added the apposite criticisms levelled by the plaintiff in the main action against the test of the powder-like quality of the substance. The criticisms are based on the Explanatory Notes to the Customs Co-operation Council Nomenclature, which the defendant in the main action contends have no value whatsoever in the present case as an aid to interpreting the tariff. The Principal Customs Office, following the case-law of this Court (in particular the Chem-Tec judgment, already cited, paragraph 12), reminded the court making the reference that these notes serve merely as a supplementary aid to interpretation, helping to clarify the content of the tariff headings or subheadings, without in any way modifying the wording thereof. In the present case, however, I think there is justification for having recourse to the Notes, for even the interpretation of the word “Scherstaub” adopted by the Principal Customs Office on the basis of the meaning and scope which it has from the purely linguistic point of view has led, as we have seen, to conclusions which are, to say the least, arguable. As the plaintiff in the main action has said, the Notes describe how the flock and dust (tontisses) are made or manufactured. They distinguish between three types, the first two of which are known in English as “textile flock”, as opposed to the third which alone is described as “textile dust”. The fibres involved in this dispute can only be flock of the second type because that covers fibres “produced by cutting textile filaments or fibres into very short lengths”, which was, as we saw at the outset, the way in which they were made. In contrast “textile dust is obtained... by grinding textile fibres to a powder”. Lastly, the plaintiff has provided an even more convincing argument, perhaps, in its commentary on the following clause: “These products [flock and dust] are used for a wide variety of purposes (e.g. for blending with other fibres and spinning into yarns... as a basis for face powder and ‘make-up’)”. For making powder or make-up obviously the powder-like material must be used, whereas it is equally certain that to make yam it must be in the form of fibres. That is because only material in the form of fibres can be worked on a machine and incorporated into other fibres, for any attempt to incorporate a dust-like substance into the spinning process would inevitably result in the dust falling to the floor where nothing could be done with it except to sweep it up. The conclusion to be reached from those considerations is clearly, I believe, that the term “tontisses” [flock and dust] within the meaning of subheading 59.01 B does not refer exclusively to powder-like material, contrary to the opinion of the Commission and the Principal Customs Office.