C-62/77

2. Common Customs Tariff — Tariff beading 49.01 — Interpretation

3. Common Customs Tariff — Description of goods — Tariff heading 49.03 — Note 5 to Chapter 49 — Interpretation

1. The decisive criterion for the attention of the reader. A publication classification of goods for customs having as its salient features purposes is in general to be sought in 'illustrations' or 'pictures' accordingly their characteristics and objective does not correspond to the wording of proporties as defined in the wording heading 49.01. of the relevant heading of the 3. Tariff heading 49.03 and Note 5 to Common Customs Tariff and of the Chapter 49 must be interpreted as notes to the sections or chapters. referring to children's picture books 2. The wording of tariff heading 49.01, bound otherwise than in paper in where it refers without further which the pictures cover almost the qualification to 'books', must be whole page and constitute the interpreted as meaning publications essential means by which the in which the text in prose or verse meaning is conveyed whilst the short conveys the information or narrative captions serve merely a simply which it is intended to bring to the explanatory purpose.

In Case 62/77

Reference to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) of the Federal Republic of Germany for a preliminary ruling in the action pending before that court between

1 - Language of the Case: German.

composed of: M. Sørensen, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges,

Advocate-General: F. Capotorti Registrar: H. J. Eversen (Deputy Registrar)

gives the following

JUDGMENT

Facts and issues

The facts and the arguments put forward relates to books for children entitled by the parties in the course of the written 'Teddybär, Teddybär' ('Teddy Bear, Teddy and oral procedures may be summarized Bear'), 'Kindergarten fur Tiere' as follows: ('Kindergarten for Animals'), 'Die Mausuhr ('The Mouse Clock') and 'Meine Freunde' ('My Friends'). In its opinion of I — Facts and Procedure 30 March 1973 the Oberfinanzdirektion classified the goods as bound children's The order making the reference indicates picture books under tariff heading 49.03. that on 26 February 1973 Carlsen Verlag, the plaintiff in the main action, The plaintiff in the main action then requested the Oberfinanzdirektion, the submitted a complaint against this defendant in the main action, to issue an opinion in so far as it related to the official tariff classification opinion on books entitled 'Teddybär, Teddybär', 'Die 'children's books'. The present case Mausuhr' and 'Meine Freunde'. It

submitted various arguments on the facts. or to the child, conveys their intrinsic In particular, the copies produced show meaning. The plaintiff lodged a number that the three books which still of expert opinions which in each case constitute the subject-matter of the emphasize the special significance and dispute are bound books of 12 pages with independence of the texts which are the large illustrations and printed text, each principal feature of the books whilst the consisting of fine tear-resistent sheets of illustrations merely constitute a

Tick, tack, tock, the oral procedure within a month. It mouse looks at the clock. Breakfast time! appears that in the course of that The table is laid. How hungry the procedure Carlsen submitted three expert children are again today! What's the opinions (which were summarized as time?'. The illustrations in the book follows by the Commission): 'Meine Freunde' have captions such as: 'I see another friend. He is a fireman. Professor Giehrl considers that the When there is a fire people telephone characteristic feature of the books is 'a

Hamburg of 25 June 1973. The relevant tell the time from the clock face. The books are printed matter featuring a text text gives a succinct and expressive and intended for educational and interpretation of the pictures. The third recreational reading which, according to book, 'Meine Freunde', is stated to be the official explanatory notes, in 'meaningless without the text or consequence come under tariff heading comprehensible only in parts'. She states 49.01. An impartial observer would later that 'one's general impression of instinctively classify them as books for children's books differs appreciably from children and not as picture books. The the definition given in heading 49.03 of extensive text of the books, to be read by the Common Customs Tariff.

Dr Haag of the Association of German pictures hold the attention of the reader Book Dealers considers that in all the more than the short passages of text. On books the pictures and text are the other hand, if the significance of the inseparably connected. The text is not text is considered (Cf. the Explanatory secondary; on the contrary, the Notes to the Brussels Nomenclature, illustrations are subsidiary to the verse. It marginal number 1 to heading 49.03, is the text which stimulates the desired according to which the pictures must thought-process in the child. form the 'principal interest'), there is much to be said for another view. The The Bundesfinanzhof stayed the text of the book 'Meine Freunde' is procedure again and submitted a independent, goes further than a question to the Court of Justice by an description of the pictures and explains Order of 19 April 1977. It summarized the theme running through the book. It the legal aspects of the dispute is true that the text of the book 'Die emphasizing that the latter turns on the Mausuhr', does not describe anything point whether the books in question which cannot be identified in the come under heading 49.01 of the pictures, but, owing to its easily Common Customs Tariff: 'printed books, remembered verses and the repetition of booklets, brochures, pamphlets and certain words, it has a not inconsiderable leaflets', or tariff heading 49.03: educational significance for the child 'Children's picture books and painting who uses the book. Even the very short books, bound otherwise than in paper'. text of the book 'Teddybär, Teddybär' is not without significance, for it is inspired According to Note 5 to Chapter 49: 'for by an old nursery rhyme and is intended the purposes of heading No 49.03, the to explain the movements of the bear expression 'children's picture books' which are not ascertainable from the means books for children in which the pictures alone. pictures dominate and are not subsidiary to the text'. The Bundesfinanzhof states that Note 5 to Chapter 49 entails an additional In the order making the reference the requirement for assigning the books to Bundesfinanzhof expressed its doubts on heading 49.03, namely that the pictures legal and factual points as follows: 'Were should not be subsidiary to the text. If the wording of heading 49.03 alone to be those words are interpreted literally they relied upon for classifying the books for mean that the pictures are not subsidiary tariff purposes, an interpretation whenever the intrinsic meaning of the according to the ordinary meaning of the pictures is easily grasped by the ordinary words would lead to their classification reader for whom the book is intended.

Explanatory Notes to the Brussels Nomenclature (marginal numbers 2 and 3 to tariff heading 49.03). There is only a II — Summary of the written small difference of substance between observations them since they both assume that the books concerned contain a story and a The Commission first considers in detail series of pictures to illustrate incidents the facts and the course of the procedure within that story. The notes merely draw and recalls the arguments put forward by a distinction regarding the text of the the parties to the main action; it states books to be classified, that is between a that in its view there are two distinct simple caption or brief narrative for each aspects to the Bundesfinanzhof's illustration (= tariff heading 49.03) and a endeavours to obtain clarification of the continuous narrative (= tariff heading meaning in law of the tariff headings and 49.01) On this view the question whether of the explanatory note in question: the text is subsidiary accordingly does not appear to constitute a distinguishing On the one hand, it asks what factors criterion. must be taken into consideration in order to determine whether in children's

JUDGMENT OF 8. 12. 1977 - CASE 62/77

order making the reference). The mittee of the Customs Cooperation Bundesfinanzhof also considers that Council in April 1976, confirms that the there is a contradiction between the other versions were more precise, thus wording of Note 5 to Chapter 49 and the strengthening the argument of the Explanatory Notes to the Brussels Commission; this is confirmed by Nomenclature. Regulation No 2723/76 of the Council of 8 November 1976 which adopted clearer In order to reply to the question thus wording and henceforth is in accordance restated the Commission maintains in with the suggested interpretation. The particular that the following factors are Note now reads: significant: '5. For the purposes of heading No The distinction between tariff headings 49.03, the expression "children's 49.01 and 49.03 is based not on content picture books" means books for or purpose but on form: 'the salient children in which the pictures form feature of picture books is that the the principal interest and the text is information which they contain reposes subsidiary. in the pictures and is expressed through the latter'. Although the provision in force when the dispute occurred has thus been Since heading 49.03 refers to 'children's' clarified by the revision of 1976, one picture books it must be considered point remains to be settled, namely the 'what, from the point of view of the child question 'how the educational material is for whom a combination of words and conveyed to children'; it appears that, pictures is intended, constitutes the even though the explanatory function of essential informative element of the the text is important educationally, it printed matter'; the foregoing is may be considered for tariff purposes as confirmed by Note 5 which is intended 'subsidiary' to the pictures which are to supply criteria for establishing this intended to be presented to the child as point. the essential conveyer of information.

covered by the pictures, the latter certainty and respect for legitimate constituting, for children, the essential expectations. means by which the meaning is conveyed, whilst the captions merely The Commission emphasizes that the serve a simple explanatory purpose, must difficulties with which the Bundes­ be classified under tariff heading 49.03 of finanzhof and the Court of Justice are the Common Customs Tariff, even if the confronted arise in fact from the very explanatory captions or short texts are provision which was adopted in order to intended to impart to the child a establish the boundary between the two clearly-specified meaning of the pictures tariff headings and to facilitate that which has been determined for an distinction. The Commission is also of educational purpose and which could not the view that it is necessary to take into be apprehended without reference to consideration the fact that the books such captions or texts.' must be intended for children and their particular mentality. In view of this there are three possibilities: Ill — Oral procedure — either the meaning is contained in the picture and the text has no In the course of the oral procedure decisive significance; or which took place on 13 October 1977 — the two factors are to some degree Carlsen Verlag, represented by Professor equally balanced and taken together Dr Kuno Barth, and the Commission, constitute the meaning; or finally represented by its Agent, Dr M. Beschel, — the words convey the meaning, while developed the arguments expounded in the picture, as in the classic the course of the written procedure; illustrated book, fulfils a merely during the oral procedure certain points subordinate role. raised by the Court were clarified. Although this abstract division no doubt Carlsen Verlag maintained that the can indeed cause difficulties it in any question can be settled only if the point case clarifies the Common Customs of view of children and their particular Tariff itself. In practice combinations of behaviour-patterns are borne in mind. pictures and words are of necessity based Children cannot fully understand unless on the premise that the words and there is. an illustration linked to the text; pictures go together and constitute an the illustration merely serves to provide a entity; within the framework of that better explanation and its quantitative entity the point to be settled is which of significance must be disregarded. the two elements is the more important. This question must be answered in the Children's books provide information for abstract, as the Commission has children and account must be taken of suggested. this in adopting criteria, as is established by the modification of the provision applicable from 8 November 1976 The parties then replied to a number of (Regulation No 2723/76 of the Council); questions put by Members of the Court. that textual amendment should not alter the date of application of the judgment The Advocate-General delivered his to be given, in pursuance of German opinion at the hearing on 17 November constitutional principles concerning legal 1977.

2 According to Note 5 to Chapter 49: 'For the purposes of heading No 49.03, the expression 'children's picture books' means books for children in which the pictures dominate and are subsidiary to the text'.

3 The decisive criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters.

4 The wording of heading 49.01 must be understood as meaning that a product displaying the characteristics of the product in dispute cannot be classified under the heading 'brochures', which consist of a small number of pages of text alone, unless, they are described as 'illustrated', or the heading 'imprimés similaires' (similar printed material).

CARLSEN-VERLAG v OBERFINANZDIREKTION KÖLN

That wording, where it refers without further qualification to 'books', must be interpreted as meaning publications in which the text in prose or verse conveys the information or narrative which it is intended to bring to the attention of the reader.

The salient feature of a publication of the type in question, namely that it is an 'illustrated' or 'picture' book, accordingly does not correspond to the wording of heading 49.01.

7 It is clear from the wording of this question that it is concerned to establish whether a publication intended for children of less than school age in which the pictures cover almost the whole page and constitute the dominant interest may be classified under the general heading 49.01 and not under the special tariff heading 49.03 if the text does not merely emphasize elements which may be apprehended visually but supplements the picture with ideas which the latter alone does not suggest.

JUDGMENT OF 8. 12. 1977 - CASE 62/77

8 It is clear from the wording of Note 5 to Chapter 49 that the written text could exclude a children's picture book, bound otherwise than in paper, from heading 49.03 only if it were in the form of a continuous narrative and not merely episodic and if it contained pictures illustrating events dealt with in the narrative itself.

Pictures are subsidiary to the text only if the essential meaning of the book reposes in the text which the pictures are intended to illustrate.

9 It is clear from the wording of tariff heading 49.03, supplemented by Note 5 to Chapter 49, that children's picture books, bound otherwise than in paper, must be excluded from that heading only if it is clear that the text is of inherent interest, is fully valid of itself and is self-sufficient independently of the illustrations.

In view of the foregoing, tariff heading 49.03 and Note 5 to Chapter 49 must be interpreted as referring to children's picture books bound otherwise than in paper in which the pictures cover almost the whole page and constitute the essential means by which the meaning is conveyed whilst the short captions serve merely a simple explanatory purpose.

THE COURT (Second Chamber)

In answer to the questions submitted to it by the Bundesfinanzhof by an Order of 19 April 1977, hereby rules:

Tariff heading 49.03 and Note 5 to Chapter 49 must be interpreted as referring to children's picture books bound otherwise than in paper in which the pictures cover almost the whole page and constitute the essential means by which the meaning is conveyed whilst the short captions serve merely a simple explanatory purpose.

Sørensen Mackenzie Stuart Touffait

Delivered in open court in Luxembourg on 8 December 1977.

H. J. Eversen M. Sørensen