C-22/76
ECLI:EU:C:1976:126
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JUDGMENT OF THE COURT 22 SEPTEMBER 1976 1
Import Gadgets, S.à.r.l. v LA.M.P., S.p.A. (preliminary ruling requested by the Tribunale di Pavia)
Case 22/76
Summary
1. Common Customs Tariff — Interpretation — Absence of Community provisions — Conventions on the Brussels Nomenclature — Explanatory Notes — Authority
2. Common Customs Tariff — Heading 97.02 B — Concept
1. In the absence of specific provisions 2. Laughing devices suitable for use of Community law, the Explanatory principally in dolls that are Notes to the Brussels Nomenclature representations of human beings are an authoritative and valid aid to come within heading 97.02 B of the the interpretation of Common Common Customs Tariff. Customs Tariff headings.
In Case 22/76
Reference to the Court under Article 177 of the EEC Treaty by the Tribunale di Pavia for a preliminary ruling in the action pending before that court between
Import Gadgets, S.À.R.L., Paris
and
L.A.M.P., S.P.A., Pavia
on the interpretation of headings 97.02 and 97.03 of the Common Customs Tariff,
1 — Language of the Case: Italian.
JUDGMENT OF 22.9. 1976 - CASE 22/76
THE COURT
composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A.M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, Lord Mackenzie Stuart and F. Capotorti, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
Gives the following
JUDGMENT
Facts
The order making the reference and the On the latter occasion, the French written observations submitted under Customs found that the devices in Article 20 of the Protocol on the Statute question bore the inscription, partly of the Court of Justice of the EEC may deleted, 'made in Japan', refused them be summarized as follows: Community treatment, ordered them to be confiscated and imposed a fine of FF 10 000. Subsequently, the Customs I — Facts and procedure declared that the first consignment also was of Japanese origin and, holding that In February 1970 and February 1971 the appropriate tariff heading was respectively, Import Gadgets, whose heading 97.03 B and not 97.02, imposed registered office is in Paris, bought from a further fine of FF 5 000 on Import L.A.M.P., whose registered office is in Gadgets. Pavia, 2 000 and 1 600 'laughing devices' for use in the manufacture of talking Import Gadgets brought an action for dolls. dissolution of the contract for sale of 1 600 devices before the Tribunale di The first consignment, which was Pavia, and for damages. accompanied by a certificate of Italian That court took the view that, before the origin issued by the Pavia Chamber of Commerce and declaring that they came case could be decided, it was necessary to under tariff subheading 97.02 B (parts obtain a preliminary ruling on the and accessories of dolls), was, on arrival interpretation of customs heading 97.02 and 97.03 since at the material time the in Paris, declared under the same subheading. French Republic had taken protective measures within the meaning of Article The second consignment, which left Italy 115 of the EEC Treaty only in respect of under the same conditions as the first, the second heading. It therefore stayed was, however, on arrival in Paris declared the proceedings and, by order of 22 under subheading 97.03 B (other toys; January 1976, referred to the Court of working models of a kind used for Justice under Article 177 of the EEC recreational purposes). Treaty the question:
IMPORT GADGETS v LAMP.
'Do laughing devices constitute '... parts and accessories which are mechanisms capable of being used by suitable for use solely or principally with themselves as toys (97.03) or, on the articles falling within any heading of this other hand, do they merely constitute Chapter are to be classified with those parts of dolls (97.02 B)?' articles',
The order of the Tribunale di Pavia was lays emphasis on the 'normal' or 'natural' entered at the Court Registry on 5 March use of the parts and accessories, which 1976. must not necessarily be the exclusive but may be merely the principal use. The Observations were submitted by the actual use to which the importer or defendant in the main action and by trader puts the product is not a decisive the Commission of the European factor. Communities in accordance with Article 20 of the Protocol on the Statute of the Under the description 'Other toys, Court of Justice of the EEC. working models of a kind used for recreational purposes', heading 97.03 On hearing the report of the embraces a large number of different toys Judge-Rapporteur and the views of the because it covers items not included Advocate-General, the Court decided to under the two headings which precede it: open the oral procedure without any 97.01 (Dolls' prams and dolls' preparatory inquiry. push-chairs) and 97.02 (dolls).
Though submitted as parts or accessories II — Summary of the obser of toys, the devices cannot work on their vations own and do not constitute toys within the meaning of heading 97.03 but must be classified under subheading 97.02 B. The defendant in the main action points If submitted as finished products, namely out that it manufactures only dolls parts as incorporated in a toy, the appropriate and accessories which cannot be used for heading would be that applicable to the any purpose other than the construction toy: 97.02 A if the toy is a laughing doll, of dolls. As these component parts 97.03 B if the toy is a laughing teddy cannot be submitted as or in the form of bear and 97.05 if the toy is a 'novelty' separate toys, they must be classified such as a jack-in-the-box used for under tariff subheading 97.02 B. practical jokes or amusement (which would mean that the classification The first point made by the Commission problem in the present case is largely with regard to the facts is that the one of the relation between headings dispute with the French Customs was, in 97.02 and 97.05). the case of the second consignment imported, concerned solely with the The reply must therefore be that, when origin of the imported products but, in submitted as parts and accessories the case of the first consignment recognizable as being exclusively or imported, also with the tariff mainly for use for dolls under tariff classification which was unsupported by heading 97.02, the products in dispute any statement of reason or assessment. are classified under subheading 97.02 B of the Common Customs Tariff. Note No 4 of Chapter 97 of the Common Customs Tariff (1972 Although the court making the reference numbering) concerning subheading has not in so many words submitted 97.02 B of heading 97.02 (dolls) which questions involving the intra-Community reads system of trade in force at the material
JUDGMENT OF 22.9. 1976 - CASE 22/76
time, the Commission points out that the 17 July 1970, JO L 171, p. 23) and for liberalization of imports into the the period from 30 September 1971 — Community from third countries in 31 March 1972 (Decision of 30 respect of products coming under September 1971, JO L 232, p. 40), that is heading 97.02 came into force on 1 to say, outside the period when the January 1969 and that no derogation has disputed imports occurred. Moreover, been allowed from the principle of free contrary to the provisions of Article 30 circulation. et seq. of the EEC Treaty, France subjected the imports of the products in If a Member State to which products in free circulation are in transit were to question, admitted to free circulation in Italy, to the compulsory advance licence demand a certificate of origin this would system. breach the principle prohibiting measures having an effect equivalent to The foregoing considerations should be quantitative restrictions. sufficient to clarify, for the court making Only products coming under tariff the reference, the question whether '... there were measures in force in France heading 97.03 have not been liberalized for importation from third countries. restricting free circulation'. Under the commercial agreement of 14 The plaintiff in the main action, May 1963, which continues in force, represented by Mr Camerini, of the France limits the importation of toys Milan Bar, and the Commission of the from Japan; it is therefore possible to European Communities, represented by have recourse to protective measures its Legal Adviser, Mr Abate, acting as under Article 115 of the EEC Treaty only Agent, submitted oral observations at the for toys of Japanese origin coming under hearing on 29 June 1976. heading 97.03. But France received authorization only for the period from 17 The Advocate-General delivered his July to 31 December 1970 (Decision of opinion on 14 July 1976.
Law
1 By order of 22 January 1976, which reached the Court on 5 March 1976, the Tribunale di Pavia referred under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of headings 97.02 and 97.03 of the Common Customs Tariff.
2 This question was raised in connexion with a dispute concerning the importation into France by the plaintiff in the main action of 'laughing devices' which it had purchased in Italy from the defendant in the main action for use in the manufacture of talking dolls.
3 2 000 of these devices, dispatched in February 1970, accompanied by a certificate of Italian origin declaring that they came under tariff subheading 97.02 B (parts and accessories of dolls), were, on arrival in Paris, declared under the same subheading.
IMPORT GADGETS v LAMP.
1 600 of these devices, dispatched in February 1971 under the same conditions as the previous ones, were on arrival in Paris declared under subheading 97.03 B (other toys; working models of a kind used for recreational purposes).
4 The French Customs found that the devices in question bore the inscription, partly deleted, 'made in Japan', refused them Community treatment, ordered them to be confiscated and imposed a fine on the plaintiff in the main action.
In consequence, Import Gadgets, the plaintiff in the main action, brought an action for dissolution of the contract of sale before the Tribunale di Pavia and
for damages.
5 The question is asked whether the laughing devices constitute mechanisms capable of being used by themselves as toys (97.03) or, on the other hand, whether they merely constitute parts of dolls (97.02 B).
6 Note 3 to Chapter 97 of the Common Customs Tariff (1972 numbering) reads: 'In heading 97.02 the term "dolls" is to be taken to apply to such articles as are representations of human beings'. Note 4 provides that 'parts and accessories which are suitable for use solely or principally with articles falling within any heading of this Chapter are to be classified with those articles'.
7 The Explanatory Notes to the Brussels Nomenclature which, in the absence of specific provisions of Community law, are an authoritative and valid aid to the interpretation of the Common Customs Tariff headings, contain the following clarification of heading 97.02:
The term "dolls" is to be taken to apply only to such articles as are representations of human beings (including those of a caricature type).
Parts and accessories of dolls falling within this heading include: heads, bodies, limbs; wigs; voice and other mechanisms; dolls' clothing, shoes and hats; dolls' eyes whether or not mounted on moving mechanisms, but unmounted dolls' eyes of glass are excluded (heading 70.19)'.
8 On the other hand, the long list of examples of toys falling within heading 97.03 given by the Notes does not include anything resembling laughing
JUDGMENT OF 22.9. 1976 - CASE 22/76
devices, nor are the latter included in the list of examples of novelty jokes falling within heading 97.05.
This justifies the conclusion that 'voice and other mechanisms' are suitable for use, if not solely, at least principally, in dolls which are representations of human beings, notwithstanding that they may be suitable also for other uses.
9 In consequence, the reply to the question submitted by the Tribunale di Pavia must be that laughing devices suitable principally for use in dolls that are representations of human beings come within heading 97.02 B of the Common Customs Tariff.
Costs
10 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Tribunale di Pavia, costs are a matter for that court.
On those grounds,
THE COURT
in answer to the question referred to it by the Tribunale di Pavia by order of 22 January 1976 hereby rules:
Laughing devices suitable for use principally in dolls that are representations of human beings come within heading 97.02 B of the Common Customs Tariff.
Lecourt Kutscher O'Keeffe Donner Mertens de Wilmars
Pescatore Sørensen Mackenzie Stuart Capotorti
Delivered in open court in Luxembourg on 22 September 1976.
A. Van Houtte R. Lecourt
Registrar President