4.

The Court has consistently stated that ‘in the interests of legal certainty and of administration’, ‘the decisive criterion for the customs classification of goods must generally be looked for in the objective characteristics and properties of products’ (judgments of 23 March 1972 in Case 36/71, Henck v Hauptzollamt Emden, [1972] ECR 187, at paragraph 4, and of 22 November 1973 in Case 128/73, Past v Hauptzollamt Freiburg [1973] ECR 1277, at paragraph 3). Headings Nos 44.05 and 44.13 of the Common Customs Tariff are part of a nomenclature (Chapter 44) in which the wood is graded according to the degree of preparation which it has undergone. Thus Chapter 44 covers fuel wood and its products, followed by wood in the rough or wood merely stripped of its bark or roughed down, wood roughly squared or halfsquared (No 44.04), wood sawn lengthwise of a thickness exceeding 5 mm (44.05) and finally wood prepared for special purposes (Nos 44.06 to 44.19). The Chapter ends by setting out a number of articles made of wood. As the Commission's representative has stressed, the ‘philosophy’ of the Common Customs Tariff is to take into account the work carried out on the wood in order to protect employment in the Community by requiring that in principle duty should be paid in respect of any product on which work has been carried out in the exporting country which could have been carried out by workers in the importing Member State. Viewed in that light, tariff headings Nos 44.05 and 44.13 form part of a logical system, as is further confirmed at the beginning of the Explanatory Note to heading No 44.13, which provides as follows: ‘This heading covers timber, particularly in the form of boards, planks, etc., which, after sawing or squaring, has been surface worked by planing to produce smooth, flat surfaces, and generally worked along the edges to facilitate subsequent assembly’ (emphasis added), and goes on to state that: ‘Planed wood includes wood planed on one or more surfaces’. At first sight, both the wording of the two tariff headings in question and the terms of the Explanatory Notes give the impression that the objective characteristic of the wood to be used in order to choose between the two possible headings is its appearance: that is to say whether it is smooth (when heading No 44.13 will be applicable) or not (in which case heading No 44.05 applies). That approach is confirmed by the third paragraph of the Explanatory Note to heading No 44.05, which refers to rough planing which merely ‘removes excrescences and some of the saw marks’, and Classification Slip No 076, referred to above, which also mentions ‘traces of the tools used’. Although the other Classification Slip does not refer to the existence of such traces, its statement of reasons shows that that case concerned the ‘elimination of errors of dimension’. That is not an issue in this case. The appearance of the wood is therefore undoubtedly an objective characteristic which may be used as a criterion of classification for the delimitation of the two tariff headings at issue. However, the Court has always ruled that that criterion must ‘generally’ or ‘in principle’ be looked for in the objective characteristics of products (Case 128/73, cited above, paragraph 3, and Case 36/71, cited above, paragraph 4). The Court has thus acknowledged that such a criterion may prove inadequate. This ‘borderline case’, as it has been described by the Commission, appears to be a perfect example of the need which may occasionally arise to resort to a supplementary criterion. The customs authorities do not allege that any of the bundles of balsa wood imported were treated in a different way from the rest. In some bundles, the two faces were smooth in appearance, so that they were classified under heading No 44.13, whereas in others all the faces were said still to bear traces of the tools used. It would not be logical to classify under different headings identical wood which has been subject to identical treatment, on the basis solely of its appearance, and it is not consistent with the requirement of legal certainty. In similar cases, the Court has always endeavoured to reconcile the need for legal certainty with the need to supply the national court with the guidance which it needs to decide an individual case. As regards aids to interpretation, the Court has stated as follows: ‘In the absence of relevant Community provisions, the Explanatory Notes and the classification opinions provided for by the Convention on Nomenclature for the Classification of Goods in Customs Tariffs are an authoritative source for the purpose of the interpretation of the headings to the Common Customs Tariff’ (Case 35/75, cited above, at p. 1210, paragraph 2). In that regard, the Explanatory Notes to the headings in question show that, as well as being merely sawn, as referred to in heading No 44.05, and subject to the complicated operations set out in No 44.13, wood maybe subject to additional treatment — such as rough planing — which does not prevent its being classified under heading No 44.05. Such intermediate situations sometimes necessitate recourse to some additional criterion, as referred to above. In such cases, the Court has looked beyond the strict definitions in order to ascertain the purpose of the operation supplementing the basic treatment and so discover whether or not it should affect the tariff classification of the product in question. Thus in Case 128/73 it was necessary to find a criterion enabling a distinction to be drawn between sheep and lamb skin leather which was ‘not further prepared than tanned’ and leather which had had additional treatment so as to render it ready for use, when it was to be classified under ‘other’. The Court stated that it was necessary to look for the function of the additional treatment, which in that case consisted of the addition of fat to the tanning liquids. Considering the possibility that the addition of fat was indispensable in order to proceed to the second phase of treatment in the importing country the Court ruled as follows: ‘The competent national authorities must judge whether the addition in question constitutes an essential process in tanning by reason of its function of preserving the leather without rendering it ready for use’ (paragraph 6) (emphasis added). It is clear from the wording of heading No 45.05 and from the Explanatory Notes and Classification Slips thereto that wood which is merely sawn must undergo further work and that sawing does not amount to preparation (for purposes of transportation or packing or in order to facilitate work to be carried out at a later stage). On the other hand, heading No 44.13 covers operations the simplest of which is planing and whose function is to give the piece of wood, or at least the surfaces treated, a definitive form. That form is needed for the use to which the wood is ultimately to be put, which according to the Explanatory Note will generally be some kind of assembly. Heading 44.13 thus involves the idea that the wood will immediately be used in the form attained after the operations listed. It may therefore be inferred that if an operation carried out on wood has brought about a result similar to that of planing, without its being possible directly to use the wood in the form of planks with two smooth opposite surfaces, it should not necessarily be classified under heading No 44.13. In other words, if the competent national court considers that the smoothed wood, which may even be partly polished, requires further work before it may be used for its intended purpose, the smoothing does not in itself prevent the wood from being classified under heading No 44.05. However, if there is any doubt on that question, the national court may then confine itself to applying the primary objective criterion of the appearance of the wood without referring to an additional criterion.