C-798/79
ECLI:EU:C:1980:202
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JUDGMENT OF 11. 7. 1980 — CASE 798/79
In Case 798/79
REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof [Federal Finance Court] for a preliminary ruling in the action pending before that Court between
HAUPTZOLLAMT KÖLN-RHEINAU [Principal Customs Office Cologne-Rheinau]
and
CHEM-TEC, Inhaber [proprietor] B. H. Naujoks, Koblenz,
on the interpretation of the expression "breathing appliances (including gas masks and similar respirators)" appearing in heading 90.18 of the Common Customs Tariff,
T H E COURT (First Chamber)
composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,
Advocate General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts giving rise to the case, the I — Facts and written procedure course of the procedure and the obser- vations presented under Article 20 of the Statute of the Court of Justice of the On 29 June 1972 8 500 filter masks from EEC may be summarized as follows : the United States received customs
HAUPTZOLLAMT KÖLN-RHEINAU v CHEM-TEC
clearance from the competent office at "Must the concept of 'breathing Cologne-Rheinauhafen for the account appliances (including gas masks and of the undertaking, Chem-Tec. The similar respirators)' within the meaning customs office classified the goods under of tariff heading 90.18 of the Common tariff heading 90.18 of the Common Customs Tariff be interpreted as Customs Tariff: meaning that it also includes simple filter masks which cover only nose and mouth, provide protection from poisonous Mechano-therapy appliances; massage chemicals, dust, smoke and fog, and are apparatus; psychological aptitude-testing intended to be used once?" apparatus; artificial respiration, ozone therapy, oxygen therapy, aerosol therapy or similar apparatus; breathing appliances (including gas masks and similar respir- Owing to the oval shape which fits the ators). curves of the face, to their side-straps and to a metal clip intended to be pressed down on the bridge of the nose, By a corrective classification decision of these appliances are easy to wear, let the 8 August 1973 the customs office air through easily and therefore ensure classified the masks in question under easy breathing. According to Chem- tariff heading 59.03: Tec's statements they are a crude type of filter masks for protection against dust, "Bonded fibre fabrics, similar bonded consisting of a sheet of long-fibred, yarn fabrics, and articles of such fabrics, multiple-ply paper and are intended to whether or not impregnated or coated" be used once only; they are thrown away once their filtering power is exhausted (after eight hours at the most). and required Chem-Tec to pay customs duty of DM 1 517.20, the rate being higher for goods coming under heading 59.03 than for those under heading The order making the reference was 90.18. registered at the Court on 9 November 1979. Chem-Tec's objection to the corrective classification decision was rejected on In accordance with Article 20 of the 23 November 1973 and Chem-Tec then Protocol on the Statute of the Court of brought an action before the Finanz- Justice of the EEC Chem-Tec, gericht [Finance Court] Düsseldorf, represented by Harald Ditges of the which ruled in its favour. On 10 June Bonn Bar, and the Commission of the 1977 the Hauptzollamt Köln-Rheinau European Communities, represented by lodged an appeal on a point of law with Manfred Beschel, a member of its Legal the Bundesfinanzhof. Department, acting as Agent, submitted written observations. The Bundesfinanzhof took the view that the outcome of the dispute depended on the interpretation of provisions of Upon hearing the report of the Judge- Community law and more especially of Rapporteur and the views of the the Common Customs Tariff and by an Advocate General, the Court decided to order of 16 October 1979 decided to open the oral procedure without any stay the proceedings and to refer the preparatory inquiry and to assign the following question to the Court of case to the First Chamber in accordance Justice under Article 177 of the EEC with Article 95 of the Rules of Treaty for a preliminary ruling: Procedure.
JUDGMENT OF 11. 7. 1980 — CASE 798/79
II — Summary of the written — The article must have a specific observations submitted to function, either to permit or to faci- the Court litate breathing;
— It must present the features of an 1. Observations submitted by Chem-Tec appliance within the meaning of the tariff classification.
Chem-Tec explains why in its view, as acknowledged by the Finanzgericht According to the wording of tariff Düsseldorf, there is nothing to prevent heading 90.18 in the different language the articles in question being classified versions all appliances not having any under tariff heading 90.18. other specific description applied to them and whose function is to permit or to facilitate breathing must be classified The fact that the cloth masks used by under this heading. That does not surgeons and nurses while operating on contradict the Explanatory Notes to the and treating patients are not regarded as Nomenclature of the Customs Co- breathing appliances or gas masks is no operation Council; the expressions bar. Those masks are intended in fact to "breathing appliances" and "gas masks" protect not the person wearing them, but do not have any particular classificatory the patient. value.
The very simple make-up of the dust It is more difficult to identify with masks is equally not a bar to their being accuracy the second criterion for classi- regarded as breathing appliances. It is fication. The Explanatory Notes state in their function which is important. Their Chapter 90, under the heading "General complexity depends on their specialized Considerations" : nature. For example, there are masks for protection against irritating coarse dust, "The present Chapter covers a wide against fine inert dust, against hydro- variety of instruments and apparatus fluoric acid and fine dust, against which are, as a rule, characterized by mercury vapour and fine dust and so on. their high finish and high precision. Most The extent of the range shows the care of them are used mainly for scientific with which dust masks are made and the purposes (laboratory research work, improvement which they show as against analysis, astronomy, etc.), for specialized rubber masks. technical and industrial purposes (measuring and checking, observation, etc.) or for medical purposes". Chem-Tec annexes documents showing that in France the masks are classified under tariff heading 90.18. It follows from that that the articles covered' by Chapter 90 are for the most part technically complex rather than technically simple. 2. Observations submitted by the Commission Gas masks, which represent the typical protective breathing appliance, are in The Commission is of the opinion that general rather complex as well. the main features of tariff heading 90.18 However, apparently having regard to are twofold: the fact that the wording of tariff
HAUPTZOLIAMT KÖLN-RHEINAU v CHEM-TEC
heading 90.18 does not only refer to — Masks for protection against dust, typical gas masks but also to breathing odours etc., not equipped with a appliances "of all kinds" ', the Ex- replaceable filter, but consisting of planatory Notes state: several layers of bonded fibre fabric, "A more simple type protects only the whether or not treated with activated mouth and the nose; it consists of a carbon or having a central layer of sheath held in place by one or more synthetic fibres (heading 59.03)". elastic ribbons and contains a filtering or absorbent material (asbestos wool, The Explanatory Notes are based on the sponge rubber, cotton wadding, etc., following considerations: a filtering which may be impregnated or not) easily material, whether shaped or not, does replaced after use". not constitute an appliance within the This establishes the minimum for what is meaning of the Common Customs required for a breathing appliance from Tariff, even though it actually protects the technical point of view. According to breathing. There must be a further those notes, in fact, the following component, namely an apparatus products are not within tariff heading designed to contain a filter which may be 90.18: replaceable. — "Masks of textile materials, used by surgeons, nurses, etc., operating upon The Commission is therefore of the or attending to a patient (heading opinion that the products in question 62.05). must be classified according to their constituent material and that they come — Masks for protection against dust or within heading 59.03 of the Common particles of materials, consisting of a Customs Tariff. simple wire mesh sheath with no filtering device other than a sheet of Chem-Tec, represented by H. Ditges of gauze (Section XV). the Bonn Bar, and the Commission of — Masks for administering anaesthetics the European Communities represented (heading 90.17)." by M. Beschel, presented oral argument at the sitting held on 22 May 1980. That list of articles was later added to by the Customs Cooperation Council in The Advocate General delivered his October 1979: opinion at the sitting on 19 June 1980.
Decision
1 By an order of 16 October 1979 received at the C o u r t on 9 N o v e m b e r 1979 the Bundesfinanzhof referred to the C o u r t of Justice under Article 177 of the E E C T r e a t y 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 C o m m o n Customs Tariff.
1 — Translator's note: The English version of the tariff heading docs not in fact include these words.
JUDGMENT OF 11. 7. 1980 — CASE 798/79
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 Köln-Rheinauhafen for the account of the undertaking Chem-Tec. At first the customs office classified the goods under tariff heading 90.18:
Mechanotherapy 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 D M 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 Düsseldorf, 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 Köln-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
HAUPTZOLLAMT KÖLN-RHEINAU v CHEM-TEC
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.
JUDGMENT OF 11. 7. 1980 — CASE 798/79
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)".
1 1 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.
1 2 The same conclusion must apply in regard to the Explanatory Notes of the Customs Cooperation Council.
HAUPTZOLLAMT KÖLN-RHEINAU v CHEM-TEC
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.
Costs
15 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
T H E COURT (First Chamber)
in answer to the question submitted to it by the Bundesfinanzhof by order of 16 October 1979, hereby rules:
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
OPINION OF MR WARNER — CASE 798/79
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.
O'Keeffe Bosco Koopmans
Delivered in open court in Luxembourg on 11 July 1980.
For the Registrar J. A. P o m p e A. O'Keeffe Deputy Registrar President of the First Chamber
OPINION OF MR ADVOCATE GENERAL WARNER D E L I V E R E D O N 19 J U N E 1980
My Lords, has referred to the Court, "cover only nose and mouth, provide protection from poisonous chemicals, dust, smoke and This case comes before the Court by way fog, and are intended to be used once." of a reference for a preliminary ruling by In the body of the order for reference the Bundesfinanzhof. The appellant in the Bundesfinanzhof explains that, the proceedings before that Court is thanks to the oval shape of their nose the Hauptzollamt Köln-Rheinau. The and mouth piece, which fits the curves of respondent is a firm called Chem-Tec, the face, to their side straps and to a whose business includes the importation metal clip intended to be pressed down into the Federal Republic of Germany of on the bridge of the nose, "these disposable filter masks. The question at appliances are easy to wear, let the air issue in the proceedings is the correct through easily and therefore ensure easy tariff classification of those masks. They breathing." I need not, I think, enlarge are simple masks, which, according to on that description of the masks because the description of them given by the the Court asked to be supplied with a Bundesfinanzhof in the question that it specimen of them and, in response to