(2)

If question 1 is answered in the negative : Are the terms ‘representations of human beings’ in Note 3 to Chapter 97 of the Common Customs Tariff, and ‘dolls’ in Heading No 97.02 A of the Common Customs Tariff to be interpreted as meaning that a figure may be regarded as a representation of a human being and therefore as a doll within the meaning of that heading even if it displays animal as well as human features? Under what conditions, in the presence of animal features as well as those suggesting the representation of a human being, can the figure in question nevertheless be regarded as a doll? The court's decision to refer these questions is supported by the fact that, as this Court is told, the French customs authorities take the same view as the German customs authorities, in other words that they are animals and not human figures, but that the Belgian customs authorities, like the French Customs Conciliatory and Advisory Committee, consider that they are dolls. The notes, to which I have made reference, defining what may be a doll are supported by the notes which are to be found to Heading No 97.03. Those notes specifically say that the heading includes, as Item 1, ‘Toy animals’. So an animal is not a doll. The notes to Heading No 97.02 also reflect the ordinary meaning of the word as, for example, to be found in Collins English Dictionary, which defines a doll as a ‘small model or dummy of a human being’, and, in the French dictionary, Petit Robert, which defines a doll as a ‘figurine humaine servant de jouet d'enfant’. The first question which arises is whether it is proper to look at the Monchhichi with or without clothing or accessories. It seems clear, in this case, that the Monchhichi can be and is imported and sold without clothes. It seems to me to follow from Note 4 of the Notes to Chapter 97 of the Common Customs Tariff, that the separate accessories are to be looked at separately. Accordingly, in my view, the Monchhichi figures should be looked at without clothing and accessories to decide under which heading they come. If those accessories or clothing were fixed or an integral part of the doll or toy, the position would be different. But, even if that is wrong, and it is right to look at the Monchhichi dressed, it must still be right to have regard to what is to be found underneath, including the fact that this body is covered in what looks like animal fur. The second question is: How do the customs authorities decide whether a figure is a representation of a human being. That decision, as counsel have stressed, is largely for the customs authorities, and not for this Court. But to ensure, as far as possible, consistency between Member States, some guidance must be given. If the parameters are too wide there are bound to be undesirable divergencies on a subjective basis between the Member States: there should be as little room for doubt as possible. Counsel for the company has proposed that the right test is that a figure may also be classified as a representation of a human being and therefore as a doll for customs tariff purposes if it displays, in addition to human features, also animal features. The presence of animal features in addition to human features does not affect the classification if, after careful consideration of all the characteristics of the figure, the characteristically human features still predominate over the animal-like features. He contends also that the accessories and presentation of the figure must be taken into account. It seems to me, that his proposed definition still leaves a considerable margin of discretion to the customs authorities, which would lead to wide variations. Is 55% or 65% enough to constitute the predominance of human over animal features? In my view it is not. In my opinion, the right approach is to ask the question whether the figure represents clearly and without doubt a human being and not some other creature or a hybrid of the two. For that purpose it does not have to be an exact reproduction of the human body; it does not cease to be a doll if there are minimal divergencies from the human body, or if human characteristics are exaggerated or caricatured. On the other hand if substantial characteristics of the figure are not those of the human body, the figure is not a doll for customs purposes. Although in this case the ultimate decision on the facts is for the customs authorities, it seems to me that the facts that a particular object has a long tail and is covered with fur (even if its face and hands, and even its arms and legs, represent human features) are important considerations against the contention that it is a doll within the meaning of the Common Customs Tariff. The facts that the object wears human clothes, and is apparently fitted into human situations, do not seem to me to be conclusive or even important factors. ‘Paddington Bear’ is perhaps as well-known a children's toy as any other. That is clearly a bear with animal features and yet it wears human clothes. It is not a human representation.