Opinion of Mr Advocate General Lenz delivered on 23 September 1987. - Directeur général des douanes et droits indirects v Artimport and others. - Reference for a preliminary ruling: Cour de cassation - France. - Tariff classification: Suitcases and attaché cases. - Case 42/86.



European Court reports 1987 Page 04817



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . The proceedings pending before the Cour de cassation of the French Republic which have given rise to this request for a preliminary ruling are concerned with the tariff classification of "suitcases and attaché cases made from plastic sheeting composed of styrene resin, butadiene and acrylo-nitril made rigid by moulding or pressing and not by means of a rigid foundation", imported in May 1979 from Taiwan .

2 . According to the arguments which have been made the applicable heading may be 42.02 B : "Travel goods ( for example, trunks, suitcases, hat-boxes, travelling bags, rucksacks ), shopping bags, handbags, satchels, briefcases, 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 paperboard or of textile fabric : ... B Of other materials ". Alternatively, it is possible to consider subheading 39.07 E IV ( articles of materials of the kinds described in headings 39.01 to 39.06 other than those referred to in heading 39.07 A - D .

3 . The respondent in the main proceedings, certain French lower courts and other authorities and the Secretariat of the Nomenclature Committee of the Customs Cooperation Council in a preparatory report to a classification opinion ( to which I shall return in a moment ) support classification under heading 42.02 B . The Spanish Government and the Commission of the European Communities, on the other hand, advocate classification under subheading 39.07 E IV . Although there was reference in the request for a preliminary ruling to a third alternative, I should say at once that there does not appear to be any such possibility .

B - Opinion

This dispute, particulars of which are set out in the Report for the Hearing, calls for the following remarks .

4 . 1 . First of all, it must be pointed out that it is not a question of the interpretation of Regulation No 1/71, which was referred to in the request for a preliminary ruling, but - in view of the importation date -- Regulation No 2800/78, ( 1 ) which contains the customs tariff which applied at the time .

5 . 2 . As you know, the Spanish Government and the Commission cite in support of their opinion a classification opinion of 29 April 1967, adopted by the abovementioned Nomenclature Committee by a large majority, according to which goods of the kind in question should be classified under heading 39.07 on the ground that as far as plastic material is concerned heading 42.02 refers only to sheeting, which excludes articles which are manufactured by a process in which the sheeting is heated and moulded or vacuum-shaped (" formage sous vide "). They go on to point out that that point of view is supported by a unanimous decision of the Committee on Common Customs Tariff Nomenclature of September 1978 in respect of those goods, confirmed in 1980 in considering a decision to the same effect of the Dutch Tariefcommissie .

6 . Such decisions are of particular importance in cases such as this . The Court has repeatedly held that both the Explanatory Notes on Nomenclature of the Customs Cooperation Council and classification slips issued by the Committee on Common Customs Tariff Nomenclature are valid aids to the interpretation of the Common Customs Tariff ( 2 ) because, as was stated in the judgment in Case 237/81 ( 3 ) in respect of the Community Explanatory Notes, they supply the element of certainty needed to ensure the uniform application of the Common Customs Tariff .

7 . Although such opinions are not binding in law ( as was emphasized in the judgment in Case 798/79 ( 4 )), they are to be disregarded as an aid to interpretation only if they alter the scope of the Common Customs Tariff and are therefore incompatible with it ( judgment in Case 798/79; in the judgment in Case 37/75, ( 5 ) in relation to a Commission regulation on interpretation it is stated that the text of the tariff may not be amended ).

8 . The key issue in the present case is thus whether there is anything in the wording and scheme of the Common Customs Tariff to indicate that those classification opinions are inaccurate . In my opinion, in view of all the submissions that have been made it would be difficult to say that there is .

9 . It cannot be said that there are compelling reasons in the wording and scheme of the tariff which argue against assignment of the suitcases in issue to heading 39.07 . As well as the articles referred to under subheadings E I to III it covers other articles of materials of the kinds described in headings 39.01 to 39.06, and it is significant that the Explanatory Notes of the Customs Cooperation Council state in that connection that the heading covers a wide variety of other articles, in particular articles which are shaped, that is to say, produced by a manufacturing process which was used for the articles at issue in the main proceedings .

10 . Furthermore, it cannot be said that the wording of heading 42.02 compels one to the conclusion that it includes products such as those in issue here . With regard to the material used, it should not be overlooked that this very detailed heading ( the Explanatory Notes state that it covers only the articles specifically named therein and similar containers ) mentions only artificial plastic sheeting . Sheets, as is clear from note 3 ( d ) to Chapter 39, are to be distinguished from plates . If it should be necessary to go further, however, it is clear from the meaning of the words that sheets are thin plates and therefore flexible products . It follows that articles made of such material are also flexible ( or soft ), and if they are stiff that is due to the presence of a rigid foundation ( as is stated in the Explanatory Notes, to which in that respect there can be no objection ).

11 . Although the material used to make the articles in issue was originally plastic sheets, it is clear that as a result of the process described above they became rigid and it can no longer be said that they are composed of sheets; there is hence no compelling reason to assign them to heading 42.02 contrary to the recommendations in the classification opinions referred to .

12 . 3 . The arguments put forward by Artimport against that clearly well-founded thesis are not conclusive .

13(a ) That is true first of all of the contention that heading 42.02 lists not only articles of soft material (" akin to leather", as the Spanish Government not very aptly said ), but also, as the mention of vulcanized fibre and paperboard shows, articles of rigid material ( a point made in the judgment of the cour d' appel, Rouen ). Although the correctness of that statement is not in doubt ( and accordingly the French version of the Explanatory Notes is open to objection when it states that "ces articles peuvent être souples, en raison de l' absence de support rigide ... ou rigide, du fait de l' existence d' un support ..."), it must be recalled that in relation to plastic there is mention only of sheeting, that is to say articles which according to the system of the Common Customs Tariff, as I have shown, are to be described as soft .

14(b ) It is also true of the point that the Explanatory Notes to Chapter 39 also mention products which contain reinforcement (" contenant ... une armature ou un réseau de renforcement; intercalation d' un réseau de renforcement ...; intercalation de matières telles que feuilles métalliques, carton ..."). Although it may be inferred from that that the Explanatory Notes to heading 42.02 are open to objection ( in so far as they speak of a rigid foundation ), it does not mean that plastic suitcases which are rigid solely because they are shaped should be classified under heading 42.02 contrary to its wording ( which refers to "sheeting ").

15(c ) The following arguments must also be rejected : the reference to paragraph A 4 of the General Rules (" Goods not falling within any heading of the tariff shall be classified under the heading appropriate to the goods to which they are most akin "); the contention that no support for classifying suitcases under Chapter 39 of the Common Customs Tariff is to be found in the Nomenclature of goods for the external trade statistics of the Community and statistics of trade between Member States ( Nimexe ); and the argument based on the requirements of legal certainty, which it is said would be adversely affected if products such as those in issue were in future to be classified under heading 39.07 .

16 . Recourse cannot be had to paragraph A 4 of the General Rules because there is a heading under which the goods in issue precisely fall . Furthermore, the Nimexe nomenclature is a Commission regulation concerned with statistics for foreign trade and as such can provide no binding guide to the interpretation of the Common Customs Tariff, which is a measure adopted by the Council . In view of the unambiguous classification opinions referred to above and the fact that the practice in most Member States is consistent with them, considerations of legal certainty would seem to support the classification advocated by the Commission .

17 . Finally, no different conclusion is to be drawn from the reference to the Carlsen ( 6 ) and Cleton ( 7 ) judgments . Both those judgments support the principle of interpretation according to which the criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters .

18 . The classification in the present case is based on the assessment of those objective characteristics . The function of the goods and what they are made of represent objective characteristics . It is true that a conflict is conceivable should the function of the goods, on the one hand, and the material of which they are made, on the other, suggest classification under different headings, but that is a purely theoretical consideration . In the present case the function of the goods is relevant only after their physical nature ( artificial plastic sheeting ) has first been determined .

19 . Since, as I have already stated, the goods cannot be classified as being made of "artificial plastic sheeting", their function as "travel goods" is not decisive .

20 . 4 . It is thus clear how the question from the Cour de cassation of the French Republic should be answered, but in closing I should deal briefly with Artimport' s suggestion that it should be stated in the judgment that the ruling is to have effect only for the period after delivery of the judgment .

21 . I can see no grounds for acceding to that suggestion . Apart from the fact that application by way of analogy of the second paragraph of Article 174 ( that is basically what it amounts to ) in the preliminary ruling procedure has until now been contemplated only with regard to questions of validity ( the present case is concerned with the interpretation of Regulation No 2800/78 and thus the determination of its scope since its adoption ), in my view the ruling in the present case should not be denied retrospective effect ( as far as 1979 ) because in fact the matter is not now being clarified for the first time; it was settled by a classification opinion as early as 1967 with which the practice of most Member States is consistent .

C - Conclusion

5 . To summarize, I propose that the question put by the Cour de cassation should be answered as follows :

22 . Regulation No 2800/78 is to be interpreted as meaning that suitcases and attaché cases made from plastic sheeting composed of styrene resin, butadiene and acrylo-nitril made rigid by moulding or pressing and not by means of a rigid foundation fall under heading 39.07 E IV of the Common Customs Tariff .

(*) Translated from the German .

( 1 ) Official Journal 1978, L 335, p . 1 .

( 2 ) See, for example, the judgment of 15 February 1977 in Joined Cases 69 and 70/76 Dittmeyer v Hauptzollamt Hamburg-Waltershof (( 1977 )) ECR 231, paragraph 4 at p . 238, and the judgment of 26 September 1985 in Case 166/84 Thomasdoenger GmbH v Oberfinanzdirektion Frankfurt am Main (( 1985 )) ECR 3001 .

( 3 ) Judgment of 23 September 1982 in Case 237/81 Almadent v Hauptzollamt Mainz (( 1982 )) ECR 2981, paragraph 9 at p . 2989 .

( 4 ) Judgment of 11 July 1980 in Case 798/79 Hauptzollamt Koeln-Rheinau v Chem-Tec (( 1980 )) ECR 2639 .

( 5 ) Judgment of 11 November 1975 in Case 37/75 Bagusat v Hauptzollamt Berlin-Packhof (( 1975 )) ECR 1339 .

( 6 ) Judgment of 8 December 1977 in Case 62/72 Carlsen Verlag v Oberfinanzdirektion Koeln (( 1977))ECR 2343, paragraph 3 at p . 2350 .

( 7 ) Judgment of 4 October 1979 in Case 11/79 Cleton v Inspecteur der Invoerrechten en Accijnzen (( 1979 )) ECR 3069, paragraph 14 at p . 3081 .