OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 24 MARCH 1983 ( 1 )

Mr President,

Members of the Court,

The facts of the present case, a reference for a preliminary ruling on a customs tariff classification, are as follows:

In 1980, the plaintiff in the main action, Kaffee-Contor Bremen GmbH & Co. KG (hereinafter called “Kaffee-Contor”), whose registered office is in Bremen, imported 20000 so-called jewellery boxes from Thailand and put them into free circulation as packaging, containers and similar goods under tariff heading 39.07 B V (d) of the Common Customs Tariff. The jewellery boxes in question are receptacles measuring 9.4 cm by 7.6 cm by 3.4 cm, normally used as display cases for objects on sale or as containers for keeping items of jewellery. The boxes, which are fitted with hinged lids, are made of polystyrene manufactured by the injection-moulding process and are wholly covered on the outside with varnished paper. The lid is lined with textile fabric and the floor of the box is covered with a kind of velvet cushion. In its customs declaration Kaffee-Contor took the view that the jewellery boxes could be imported dutyfree by virtue of a preference.

On checking the customs declaration the Hauptzollamt Bremen-Nord, which was the competent customs office, came to the conclusion, on the basis of an expert report by the Zollehranstalt [Customs Training College] Bremen, that the receptacles fell within tariff heading 42.02 B of the Common Customs Tariff and demanded payment of DM 2549.90 by way of customs duty in a corrective notice issued on 10 September 1980. Tariff heading 42.02 B covers, inter alia, cases or boxes for jewellery and similar containers, of leather, composition leather, vulcanized fibre, artificial plastic sheeting, paperboard or textile fabric, and imposes different duties according to whether such containers are made of artificial plastic sheeting (subheading A) or of other materials (subheading B).

Both in its action challenging that decision and in the complaint which preceded it Kaffee-Contor expressed the view that the receptacles in question fell not within tariff heading 42.02 but within tariff heading 39.07 of the Common Customs Tariff. They were simply covered with varnished paper, which could not be compared to paperboard as a covering material. However, reference was made in tariff heading 42.02 only to paperboard and not to paper amongst the covering materials. An important difference between the two materials was their weight per unit area.

In the opinion of the defendant customs office, however, the receptacles in question fell within the group of articles covered by tariff heading 42.02 because their covering of varnished paper gave them their distinctive appearance. The weight per unit area of paperboard was irrelevant because a container covered with paper also fell within tariff heading 42.02 and not tariff heading 39.07, which covered only containers the outside surface of which was made of artificial materials.

The Second Senate of the Finanzgericht Bremen, to which the case was assigned, ordered the proceedings to be stayed and referred the following question to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty:

“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?”

My views on the question are as follows :

According to Rule 3 (a) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff the heading which provides the most specific description is to be preferred to headings providing a more general description. As cases or boxes for jewellery are expressly referred to in tariff heading 42.02 the question to be examined is whether the goods in question, which undeniably may be regarded as jewellery boxes or similar containers, are to be included in that tariff heading. If that question is answered in the affirmative, it is also provided in Note 1 (d) to Chapter 39 of the Common Customs Tariff and in Note 1 (f) to Chapter 48 thereof, which relates to the tariff classification of articles of paper, that articles falling within tariff heading 42.02 are not covered by those chapters.

However, in the opinion of both the Commission and Kaffee-Contor tariff heading 42.02 includes boxes made of artificial materials only if they are covered with materials referred to in the description of the goods in the tariff headings, which materials give them their distinctive appearance. Yet only paperboard is referred to as a covering material, and not paper. According to the Statistical Note in the Nomenclature of Goods for External Trade Statistics of the Community and Statistics of Trade between Member States (Nimexe) (Commission Regulation (EEC) No 3062/79 of 20. 12. 1979, Official Journal 1979, L 346, p. 1) and to the predominant opinion in the technical literature, a product weighing 225 grams per square metre or more is to be regarded as paperboard and a product weighing less than 225 grams per square metre is to be regarded as paper. Since the weight of the varnished paper which was used to cover the jewellery boxes was 185 grams per square metre that covering could not be regarded as “paperboard” within the meaning of tariff heading 42.02.

Consequently, Kaffee-Contor comes to the conclusion that the jewellery boxes in question fall within tariff heading 39.07 B V (d) as boxes made of artificial materials, whilst the Commission is of the opinion that the underlying artificial material of those containers does not in fact give them their distinctive appearance and that therefore they fall within tariff heading 48.16 A (boxes, bags and other packing containers, of paper or paperboard).

I cannot, however, agree with the opinion expressed by the Commission and by Kaffee-Contor. First, it must be remembered that according to Rule 3 (b) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff composite goods consisting of different materials or made up of different components are to be classified as if they consisted of the material or component which gives them their essential character. However, as the Commission rightly points out the underlying polystyrene cannot be regarded as the component which gives the boxes their essential character, even if that artificial material determines their shape, because it completely disappears under the covering material. It cannot, therefore, be recognized and could easily be replaced by other materials such as wood or metal. Consequently only the covering material, that is to say, the varnished paper, may rightly be regarded as the component which gives the boxes their essential character.

That view is supported not least by the fact that the Explanatory Notes on the Customs Cooperation Council Nomenclature state that goods falling within heading 42.02 include “articles on a foundation of wood, metal, etc., covered or mainly covered with such materials.”

That gives rise to the further question whether the containers fall outside tariff heading 42.02 on account of the fact that reference is made there, inter alia, to paperboard as a covering material but not to paper. In that connection, however, I cannot agree with Kaffee-Contor or with the Commission when they conclude from the fact that paperboard and paper are referred to in separate places in the Common Customs Tariff that only paperboard may be regarded as a component which gives goods their essential character under tariff heading 42.02. On the contrary, it must be pointed out that neither the Common Customs Tariff nor the Explanatory Notes on the Customs Cooperation Council Nomenclature contains a criterion for distinguishing between paperboard and paper and that both materials are dealt with in Chapter 48 of the Common Customs Tariff under the same tariff headings. The explanation for the reference in tariff heading 42.02 to paperboard alone must lie in the fact that the list contains only such materials as are normally and predominantly used in the manufacture of the articles referred to therein. They must give those articles a certain durability and resistance which paper could not, of itself, provide. The fact that paper, which is distinguished from paperboard in the technical literature, in trade practice and in the statistical notes of Nimexe solely on the basis of weight per unit area, is not referred to in tariff heading 42.02 at least as a covering material may be explained by the fact that, as was stated in evidence, its use in that manner is strictly limited for technical reasons.

However, if paper is used as a covering material it does become the component which gives the jewellery boxes to be classified their essential character, and as such cannot be distinguished from paperboard. In my opinion the weight per unit area, which may be ascertained only by damaging the covering and by removing any glue or varnish, cannot be decisive in that connection. The position must be the same as for the textile fabric referred to in that tariff heading, in relation to which the weight per unit area is also of no consequence.

In view of the foregoing considerations I therefore suggest that the question submitted to the Court should be answered as follows :

Jewellery boxes with hinged lids, of polystyrene and wholly covered on the outside with varnished paper, are to be classified as boxes for jewellery and similar containers under tariff heading 42.02 B of the Common Customs Tariff.

( 1 ) Translated from the German.