1 BY AN ORDER OF 16 OCTOBER 1979 RECEIVED AT THE COURT ON 9 NOVEMBER 1979 THE BUNDESFINANZHOF REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING A QUESTION ON THE INTERPRETATION OF THE EXPRESSION ' ' BREATHING APPLIANCES ( INCLUDING GAS MASKS AND SIMILAR RESPIRATORS ) ' ' OCCURRING IN HEADING 90.18 OF THE COMMON CUSTOMS TARIFF .
2 THAT QUESTION AROSE DURING THE COURSE OF A DISPUTE OVER THE CLASSIFICATION OF A CONSIGNMENT OF 8 500 FILTER MASKS FROM THE UNITED STATES , CLEARED THROUGH CUSTOMS ON 29 JUNE 1972 BY THE COMPETENT OFFICE AT KOLN-RHEINAUHAFEN FOR THE ACCOUNT OF THE UNDERTAKING CHEM-TEC . AT FIRST THE CUSTOMS OFFICE CLASSIFIED THE GOODS UNDER TARIFF HEADING 90.18 : MECHANO-THERAPY APPLIANCES ; MASSAGE APPARATUS ; PSYCHOLOGICAL APTITUDE-TESTING APPARATUS ; ARTIFICIAL RESPIRATION , OZONE THERAPY , OXYGEN THERAPY , AEROSOL THERAPY OR SIMILAR APPARATUS ; BREATHING APPLIANCES ( INCLUDING GAS MASKS AND SIMILAR RESPIRATORS ). THEN , BY A CORRECTIVE DECISION OF 8 AUGUST 1973 THE CUSTOMS OFFICE CLASSIFIED THE MASKS IN QUESTION UNDER TARIFF HEADING 59.03 : BONDED FIBRE FABRICS , SIMILAR BONDED YARN FABRICS , AND ARTICLES OF SUCH FABRICS , WHETHER OR NOT IMPREGNATED OR COATED AND DEMANDED PAYMENT FROM CHEM-TEC OF THE SUM OF DM 1 517.20 AS CUSTOMS DUTY , THE RATES BEING HIGHER FOR GOODS COMING UNDER HEADING 59.03 THAN FOR THOSE UNDER HEADING 90.18 .
3 THE OBJECTION WHICH CHEM-TEC MADE AGAINST THE CORRECTIVE CLASSIFICATION DECISION WAS REJECTED AND CHEM-TEC THEN BROUGHT AN ACTION BEFORE THE FINANZGERICHT DUSSELDORF , WHICH RULED IN ITS FAVOUR , HOLDING THAT THE TARIFF CLASSIFICATION WAS DETERMINED BY THE FUNCTION OF THE MASKS , SO THAT TARIFF HEADING 90.18 WAS THE CORRECT HEADING . THE HAUPTZOLLAMT KOLN-RHEINAU LODGED AN APPEAL ON A POINT OF LAW BEFORE THE BUNDESFINANZHOF AGAINST THE JUDGMENT OF THE FINANZGERICHT .
4 THE QUESTION REFERRED TO THE COURT BY THE BUNDESFINANZHOF IS WORDED AS FOLLOWS : ' ' MUST THE CONCEPT OF ' BREATHING APPLIANCES ( INCLUDING GAS MASKS AND SIMILAR RESPIRATORS ) ' WITHING THE MEANING OF TARIFF HEADING 90.18 OF THE COMMON CUSTOMS TARIFF BE INTERPRETED AS MEANING THAT IT ALSO INCLUDES SIMPLE FILTER MASKS WHICH COVER ONLY NOSE AND MOUTH , PROVIDE PROTECTION FROM POISONOUS CHEMICALS , DUST , SMOKE AND FOG , AND ARE INTENDED TO BE USED ONCE? ' '
5 OWING TO THEIR OVAL SHAPE WHICH FITS THE CURVES OF THE FACE , TO THEIR SIDE-STRAPS AND TO A METAL CLIP INTENDED TO BE PRESSED DOWN ON THE BRIDGE OF THE NOSE , THE MASKS IN QUESTION CONSTITUTE APPLIANCES WHICH ARE EASY TO WEAR , LET THE AIR THROUGH EASILY AND THEREFORE ENSURE EASY BREATHING . ACCORDING TO CHEM-TEC ' S STATEMENTS THEY ARE A CRUDE TYPE OF FILTER MASKS FOR PROTECTION AGAINST DUST , CONSISTING OF A SHEET OF LONG-FIBRED , MULTIPLE-PLY PAPER AND ARE INTENDED TO BE USED ONCE ONLY ; THEY ARE THROWN AWAY ONCE THEIR FILTERING POWER IS EXHAUSTED ( AFTER EIGHT HOURS AT THE MOST ).
6 THE COMMISSION IS OF THE OPINION THAT IN ORDER TO COME WITHIN TARIFF HEADING 90.18 AN ARTICLE MUST NOT ONLY HAVE A SPECIFIC FUNCTION , THAT OF PERMITTING OR FACILITATING BREATHING , BUT ALSO CONSTITUTE AN ' ' APPLIANCE ' ' WITHIN THE MEANING OF THE TARIFF CLASSIFICATION .
7 IT RELIES ON CHAPTER 90 OF THE EXPLANATORY NOTES TO THE NOMENCLATURE OF THE CUSTOMS COOPERATION COUNCIL , ACCORDING TO WHICH THE CHAPTER ' ' . . . COVERS A WIDE VARIETY OF INSTRUMENTS AND APPARATUS WHICH ARE , AS A RULE , CHARACTERIZED BY THEIR HIGH FINISH AND HIGH PRECISION . MOST OF THEM ARE USED MAINLY FOR SCIENTIFIC PURPOSES ( LABORATORY RESEARCH WORK , ANALYSIS , ASTRONOMY , ETC .), FOR SPECIALIZED TECHNICAL AND INDUSTRIAL PURPOSES ( MEASURING AND CHECKING , OBSERVATION , ETC .) OR FOR MEDICAL PURPOSES . . . . THERE ARE CERTAIN EXCEPTIONS TO THE GENERAL RULE THAT THE INSTRUMENTS AND APPARATUS FALLING WITHIN THIS CHAPTER ARE HIGH PRECISION TYPES . FOR EXAMPLE , THE CHAPTER ALSO COVERS ORDINARY GOGGLES ( HEADING 90.04 ), SIMPLE MAGNIFYING GLASSES AND NON-MAGNIFYING PERISCOPES ( HEADING 90.03 ), DIVIDED SCALES AND SCHOOL RULES ( HEADING 90.16 ) AND FANCY HYGROSCOPES IRRESPECTIVE OF THEIR ACCURACY ( HEADING 90.23 ) ' ' .
8 IT IS EVIDENT BOTH FROM THE WORDING OF TARIFF HEADING 90.18 AND FROM THE EXPLANATORY NOTES ABOVE THAT THE CRITERION OF SIMPLICITY CANNOT BE ADOPTED TO EXCLUDE AN APPLIANCE FROM CHAPTER 90 OF THE COMMON CUSTOMS TARIFF .
9 THIS CONCLUSION IS SUPPORTED BY A READING OF THE EXPLANATORY NOTES ON TARIFF HEADING 90.18 AS THEY EXISTED BEFORE OCTOBER 1979 , WHICH STATE THAT THAT HEADING COVERS NOT ONLY TYPICAL GAS MASKS , BUT ALSO BREATHING APPLIANCES ' ' OF ALL KINDS ' ' , ADDING : ' ' A MORE SIMPLE TYPE PROTECTS ONLY THE MOUTH AND THE NOSE ; IT CONSISTS OF A SHEATH HELD IN PLACE BY ONE OR MORE ELASTIC RIBBONS , AND CONTAINS A FILTERING OR ABSORBENT MATERIAL ( ASBESTOS WOOL , SPONGE RUBBER , COTTON WADDING , ETC ., WHICH MAY BE IMPREGNATED OR NOT ) EASILY REPLACED AFTER USE ' ' .
10 THE COMMISSION RELIES ON THE FACT THAT THE LIST OF PRODUCTS NOT COVERED BY TARIFF HEADING 90.18 WAS ADDED TO AS FOLLOWS BY THE CUSTOMS COOPERATION COUNCIL IN OCTOBER 1979 , TO SUPPORT THE CONCLUSION THAT THE MASKS IN QUESTION COME WITHING HEADING 59.03 : ' ' MASKS FOR PROTECTION AGAINST DUST , ODOURS , ETC ., NOT EQUIPPED WITH A REPLACEABLE FILTER , BUT CONSISTING OF SEVERAL LAYERS OF BONDED FIBRE FABRIC , WHETHER OR NOT TREATED WITH ACTIVATED CARBON OR HAVING A CENTRAL LAYER OF SYNTHETIC FIBRES ( HEADING 59.03 ) ' ' .
11 HOWEVER , AS THE COURT STATED IN ITS JUDGMENT OF 15 FEBRUARY 1977 IN JOINED CASES 69 AND 70/76 ( DITTMEYER ( 1977 ) ECR AT P . 238 ), ALTHOUGH THE OPINIONS OF THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE CONSTITUTE AN IMPORTANT MEANS OF ENSURING THE UNIFORM APPLICATION OF THE COMMON CUSTOMS TARIFF BY THE CUSTOMS AUTHORITIES OF THE MEMBER STATES AND AS SUCH MAY BE CONSIDERED AS A VALID AID TO THE INTERPRETATION OF THE TARIFF , NEVERTHELESS SUCH OPINIONS DO NOT HAVE LEGALLY BINDING FORCE SO THAT , WHERE APPROPRIATE , IT IS NECESSARY TO CONSIDER WHETHER THEIR CONTENT IS IN ACCORDANCE WITH THE ACTUAL PROVISIONS OF THE COMMON CUSTOMS TARIFF AND WHETHER THEY ALTER THE MEANING OF SUCH PROVISIONS .
12 THE SAME CONCLUSION MUST APPLY IN REGARD TO THE EXPLANATORY NOTES OF THE CUSTOMS COOPERATION COUNCIL .
13 IT MAY BE SEEN FROM THE VERY WORDING OF HEADING 90.18 THAT THE EXPRESSION ' ' BREATHING APPLIANCES ' ' MUST BE UNDERSTOOD AS BEING A WIDE CATEGORY WHICH INCLUDES THE MORE RESTRICTED ONE OF ' ' GAS MASKS ' ' . IT IS TRUE THAT THE APPLIANCE IN QUESTION , OF WHICH SAMPLES HAVE BEEN SUBMITTED TO THE COURT , IS A SIMPLE DEVICE BUT ITS SIMPLICITY ALONE CANNOT EXCLUDE IT FROM THE RELEVANT HEADING PARTICULARLY SINCE IT FULFILS WELL THE SPECIFIC PURPOSE OF A BREATHING APPLIANCE , WHICH IS TO PROTECT THE MOUTH AND THE NOSE AND TO PERMIT OR TO FACILITATE BREATHING .
14 FOR THAT REASON THE ANSWER WHICH MUST BE GIVEN TO THE QUESTION REFERRED TO THE COURT BY THE BUNDESFINANZHOF IS THAT THE EXPRESSION ' ' BREATHING APPLIANCES ( INCLUDING GAS MASKS AND SIMILAR RESPIRATORS ) ' ' OCCURRING IN TARIFF HEADING 90.18 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS MEANING THAT IT ALSO INCLUDES SIMPLE FILTER MASKS WHICH , ALTHOUGH COVERING ONLY THE MOUTH AND NOSE , SERVE AS PROTECTION AGAINST TOXIC CHEMICAL PRODUCTS , DUST , SMOKE AND FOG AND WHICH ARE INTENDED TO BE USED ONCE ONLY .