Case C-206/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Chancery Division, by order of that court dated 7 December 2000, in the case of Commissioners of Customs and Excise against SmithKline Beecham plc
Date: 2003-07-05
Institutions: Court of Justice
Subjects: customs regulations, interpretation of the law, smoking, tariff nomenclature, toxic substance

C 158/16

EN

Official Journal of the European Union

5.7.2003

employment of female workers, which came into force
on 1 August 2001. In that regulation exceptions from
the employment prohibition are made merely for women,
inter alia, in managerial positions, and trainees.

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Chancery Division, by order
of that court dated 7 December 2000, in the case of
Commissioners of Customs and Excise against SmithKline
Beecham plc

The directive does indeed itself contain certain restrictions
treatment
concerning the prohibition of unequal
(Article 2(2) and (3) of the directive), but in the present
case they cannot be applied in order to justify the
prohibition of employment in issue. Although activities
carried out underground in the mining industry are
physically and mentally extremely demanding, they are
not activities which can be carried out only by men. It is
not therefore possible to rely on the argument that, by
reason of the nature or context in which they are carried
out, the sex of the worker constitutes a determining
factor. The dangers to which women are exposed by
working in mines are generally, in essence, no different
from those to which men are also exposed. These dangers
do not therefore justify any different treatment of men
and women. Inasmuch as the Austrian Government refers
simply to the generally weaker constitution of women in
comparison with men, the Commission cannot accept
that argument. It cannot be ruled out that there are
female workers for whom employment in mining under-
ground is less oppressive than for a comparable male
worker with a lesser physical constitution. A general
prohibition of employment of women in mining under-
ground is therefore disproportionate.

Moreover, it is necessary to adjust the Austrian rules to
the directive even if the mining industry is in decline;
otherwise the practical effect of
the prohibition of
discrimination under Community law would be impaired.

Finally, the Austrian Government misses the point in
arguing that it is bound by the ILO Convention concern-
ing the Employment of Women in Underground Work
and Mines of 1937 and that
therefore Community
law does not preclude the employment prohibition
in question. The Republic of Austria must, however,
denounce that Convention.

— The prohibition of employment of women in work

involving compressed air and diving:

As regards the rules on the employment of women in
work involving compressed air and diving, a general
prohibition of the employment of women, without any
examination of the individual case, cannot be justified by
the alleged special need for the protection of women.

( 1) OJ 1976 L 39, p. 40.

(Case C-206/03)

(2003/C 158/27)

Justice of the
Reference has been made to the Court of
European Communities by an order of
the High Court
of Justice (England and Wales), Chancery Division, dated
7 December 2000, which was received at the Court Registry
on 14 May 2003, for a preliminary ruling in the case of
Commissioners of Customs and Excise and SmithKline Beech-
am plc on the following questions:

1)

Is Heading 3004 of annex I
to Council Regulation
No 2658/87 (1), as amended, to be interpreted as includ-
ing a product in the form of a nicotine patch to be used
to assist when trying to stop smoking, consisting of an
adhesive-plaster impregnated with nicotine which is
absorbed through the skin/presented in a foil pack?

2)

In circumstances where

(a)

(b)

a customs authority of a Member State has given
binding tariff information pursuant to article 12 of
Council Regulation 2913/92 (2) (the Customs Code)
in respect of a product;

the binding tariff information in question is consist-
ent with a classification opinion previously pub-
lished by the World Customs Organisation and
referred to in a communication by the Commission
pursuant to article 12(5) of the Customs Code;

(c)

the importer appeals to a national tribunal pursuant
to article 243 of the Code; and

(d)

the tribunal disagrees with the classification opinion;

is article 12(5) of the Code to be interpreted as requiring or
to annul the customs authority’s
permitting the Tribunal
decision without
information
inconsistent with the classification opinion of the World
Customs Organisation but declaring that the product
is
properly classifiable otherwise than in accordance with that
opinion?

-substituting binding tariff

(1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs
Tariff OJ L 256, 7.9.1987, p. 1.

(2) Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code OJ L 302, 19.10.1992,
p. 1.