OPINION OF MR ADVOCATE GGENERAL MISCHO

delivered on 29 May 1986 ( *1 )

Mr President,

Members of the Court,

Since no completely new facts or arguments have been raised in the oral procedure, I can present you with my findings today.

The Bundesfinanzhof [Federal Finance Court] has asked the Court the following question: ‘On 23 December 1975 was the Common Customs Tariff to be interpreted to the effect that traditional-style jeans with a front fastening from left to right were to be classified under tariff heading No 61.01 as men's and boys' outer garments?’

My comments are as follows:

As we have just been reminded, Note 3 (a) to Chapter 61 of the Common Customs Tariff states that articles which cannot be identified as either men's or boys' garments, or as women's or girls' garments should be classified as women's or girls' garments (under headings Nos 61.02 or 61.04).

What is more, the second paragraph of the Explanatory Notes to the Customs Cooperation Council Nomenclature regarding heading No 61.02 states as follows :

‘Certain similar types of garments are commonly worn by either sex (e. g. trousers, raincoats and aprons), but they can usually be distinguished by the cut, the placing of the buttons, the shape of the collar or the presence of decorative trimmings.’

However, it appears from the documents before the Court that by ‘traditional-style jean’(‘Jeanshosen der klassischen Machart’) the Bundesfinanzhof is referring to trousers which are not ‘identifiable’ by their cut or by the presence of decorative trimmings or by any other characteristic as women's trousers.

On the contrary, the trousers in question have a very definite distinguishing feature, commonly considered in our countries as being a characteristic of men's trousers, that is to say they fasten at the front from left to right.

On the basis of that criterion, such trousers were therefore ‘identifiable’ as men's trousers and ought to have been classified under tariff heading No 61.01.

Since the garments could be classified only in the light of their objective characteristics, it was not possible to consider that trousers having a characteristic invariably possessed by men's trousers (or at least by frontfastening men's trousers) were not ‘identifiable’ as such simply because more and more women had also begun to wear such trousers or because for some time trousers which were indisputably ‘identifiable’ as women's trousers for other reasons had also had that characteristic.

That the intended use of goods cannot be used to determine their customs tariff classification has been reaffirmed very recently in the Court's judgment of 15 May 1986 in Case 90/85 (Mikx v Minister van Economische Zaken [1986] ECR 1695). That case concerned shot-cartridges capable of being used both for hunting and target shooting but intended, according to the importer, for target shooting.

The Court held, in paragraph 15 of the judgment, that ‘the plaintiff's view that a distinction must be drawn between cartridges which are suitable for both uses on the basis of their intended use must be rejected. The intended use of cartridges, which is not one of their inherent characteristics, cannot be relied on as an objective criterion at the time of importation because it is impossible at that time to determine the actual use to which they will be put’.

In the present case it was, therefore, neither necessary nor possible to apply Note 3 (a) to Chapter 61 of the Common Customs Tariff. In any event, the outcome would have been strange, to say the least, in so far as all traditional-style jeans — originally the typical attire of the cowboy — would have been classified as women's garments until the entry into force of Commission Regulation (EEC) No 2496/82 of 13 September 1982, ( 1 ) which provides that trousers, including jeans, with an opening at the front which is fastened left over right, are to be classified in Common Customs Tariff subheading 61.01 B V (e).

It might well be asked whether, by adopting that regulation, the Commission has not gone to the other extreme, since it apparently discards all criteria for differentiation other than front fastening from left to right. However, the Court is not seized of that question today.

In conclusion, I propose that the Court should give the following answer to the question put by the Bundesfinanzhof: ‘On 23 December 1975 traditional-style jeans with a front fastening from left to right were to be classified under tariff heading No 61.01 as men's and boys' outer garments.’

( *1 ) Translated from the French.

( 1 ) Official Journal 1982, L 267, p. 11.