C-192/82

J U D G M E N T O F T H E C O U R T (SECOND CHAMBER) 19 M A Y 1983 '

Kaffee-Contor Bremen GmbH & Co. KG v Hauptzollamt Bremen-Nord (reference for a preliminary ruling from the Finanzgericht Bremen)

( C o m m o n Customs Tariff — Jewellery boxes)

Case 192/82

Common Customs Tariff— Tariff headings — Jewellery boxes and similar containers within the meaning of subheading 42.02 B — Concept — Plastic boxes covered with varnished paper— Products included in that concept

The wording of tariff heading 42.02 and Jewellery boxes with hinged lids, of the Explanatory Note of the Customs polystyrene and wholly covered on the Cooperation Council thereon indicate outside with varnished paper, must be that the decisive criteria for classifying classified as boxes for jewellery under articles falling within that heading are tariff subheading 42.02 B of the not only the materials used but both Common Customs Tariff. their external appearance and the use to which they are normally put.

JUDGMENT OF 19. 5. 1983 — CASE 192/82

on the interpretation of certain tariff headings of the Common Customs Tariff,

T H E C O U R T (Second Chamber)

composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges,

Advocate General: G. Reischl Registrar: H . A . Rühi, Principal Administrator·

gives the following

was a receptacle measuring 9.4 cm by 7.6 The plaintiff therefore brought an action cm by 3.4 cm, normally used as a display before the Finanzgericht Bremen case for objects on sale or as a container challenging the decision, and put for keeping items of jewellery. The box, forward again the argument that the fitted with a hinged lid, was made of boxes in question fell under heading polystyrene and wholly covered on the 39.07 of the Common Customs Tariff. outside with coated paper-board.

According to the fell within tariff heading 42.02. Goods of Customs Office the terms "paper-board" other materials also fell under that tariff and "paper" are not defined in either the heading if they were wholly, or chiefly, Common Customs Tariff or the Expla- covered on the outside with one of the natory Notes to the Common Customs aforementioned materials. Consequently, Tariff. In trade usage they are boxes of artificial plastic material wholly distinguished by weight per unit area covered with paper-board were to be (the borderline being 225 grams per classified under subheading 42.02 B: square metre).

The weight per unit area required for paper-board is immaterial, Accordingly the Customs Office gave the because even a paper-covered box, of goods that classification and demanded which only the inner invisible rigid payment of DM 2 549.90 as the customs framework is composed of plastic duty. material, falls within tariff heading 42.02. The plaintiff lodged a complaint against According to the Explanatory Notes, the assessment, arguing that the boxes goods of other materials not listed under did not fall under heading 42.02 but that heading are still classified there- under heading 39.07, as articles of arti- under if they are wholly or mainly ficial plastic material. In the plaintiff's covered on the outside with paper-board. view the boxes were wholly covered, not Even though paper is not referred to in with paper-board, but only with that heading, boxes covered with paper varnished paper.

Admittedly, the Explanatory Nevertheless, the Customs Office did not Notes to tariff heading 39.07 of the change its opinion.

Common Customs Tariff refer to boxes Adviser, R. Wägenbaur, assisted by and cases; but there is no indication T. van Rijn, a member of its Legal whatsoever in the heading that boxes so Department. covered remain classifiable in that heading. According to the Customs Upon hearing the report of the Judge- Office it must therefore be concluded Rapporteur and the views of the that that tariff heading embraces only Advocate General, the Court decided to boxes the outer surface of which consists open the oral procedure and invited the of plastic material. Boxes covered with Commission to answer the questions set another material, by contrast, do not fall out below under heading IV. under that tariff heading. It considers it to be significant that cases or boxes of By an order dated 15 December 1982 the artificial plastic sheeting are included in Court assigned the case to the Second heading 42.02. Furthermore, in view of Chamber. the great number of covering materials which may be used it is not possible to list them all in tariff heading 42.02 or in II — R e l e v a n t p r o v i s i o n s the Explanatory Notes. Even though certain textile fabrics are not mentioned, The General Rules for the Interpretation articles covered therewith may only be of the Nomenclature of the Common classified under heading 42.02. That is Customs Tariff provide as follows : why the plaintiff cannot deduce from the omission from the heading of a reference "... to paper as a covering material that 3. When for any reason goods are, covered boxes of artificial plastic should prima facie, classifiable under two or come within tariff heading 39.07 of the more headings, classification shall be Common Customs Tariff. effected as follows: The Finanzgericht stayed the pro- (a) The heading which provides the ceedings and referred the following ques- most specific description shall be tion to the Court for a preliminary preferred to headings providing a ruling: more general description. "Are jewellery boxes with hinged lids, of (b) Mixtures, composite goods con- polystyrene and wholly covered on the sisting of different materials or outside with varnished paper, to be made, up of different components, classified as boxes for jewellery and and goods put up in sets, which similar containers under tariff heading cannot be classified by reference 42.02 B of the Common Customs Tariff, to 3 (a), shall be classified as if or as boxes of artificial resins or plastic they consisted of the material or materials under tariff subheading 39.07 B component which gives them their V (d) of the Common Customs Tariff?" essential character, in so far as this criterion is applicable. In accordance with Article 20 of the ..." Protocol on the Statute of the Court of Justice of the EEC written observations The provisions which enter into were submitted by the plaintiff in the consideration are worded as follows : main action, Kaffee-Contor Bremen GmbH & Co. KG, represented by M. (a) "39.02 Polymerization and co- Vette, Leiter Frachtdisposition und polymerization products (for Zollwesen [manager of freight example ... polystyrene arrangements and customs], and by the . . . ): Commission, represented by its Legal

These include: Goods of these kinds fall within the (9) Carboys, bottles and flagons heading if made of leather, (including infants' feeding composition leather, vulcanized bottles) boxes, pots, jars, cases, fibre, artificial plastic sheeting, sachets and similar articles . . . paper-board or of textile fabric (including felt and non-woven fabrics), including articles on a foun- dation of wood, metal, etc., covered This heading excludes: or mainly covered with such materials." (b) Travel goods . . . boxes . . . and similar containers of heading (d) "48.16 Boxes, bags and other 42.02, of artificial plastic packing containers, of paper sheeting." or paper-board; box files, letter trays and similar articles, of paper or paper- board, of a kind commonly (c) "42.02 Travel goods (for example, used in offices, shops and the trunks, suit-cases, hat-boxes, like: travelling-bags, rucksacks), shopping-bags, handbags, A. Boxes, bags and other satchels, brief-cases, wallets, packing containers . . . purses, toilet-cases, tool- >)

JUDGMENT OF 19. 5. 1983 — CASE 192/82

(a) Goods of the kind falling within heading 42.02 The second condition mentioned under (travel goods, etc.)." heading 42.02 for an article to be classified thereunder relates to the nature (e) Nimexe, as amended by Commission of the material of which the article is Regulation (EEC) N o 3062/79 of made. There is no reason to suppose that 20 December 1979 (Official Journal, the list of materials in heading 42.02 is L 346, p. 1), contains the following other than exhaustive. The wording of Statistical Note in relation to the heading does not allow a wider Chapter 48; interpretation encompassing in addition other types of material not mentioned. "Products weighing 225 g/m 2 or That conclusion is supported by the more are to be treated as 'board' or following words of the Explanatory 'paper-board'; those weighing less Notes to the Nomenclature of the than 225 g/m 2 are to be treated as Common Customs Tariff relating to 'paper'." heading 42.02:

KAFFEE-CONTOR BREMEN v HAUPTZOLLAMT BREMEN-NORD

The note adopts the criterion which is Furthermore, the articles listed in tariff most frequently adopted in the technical heading 42.02 must be made, inter alia, literature. In the absence of criteria of of artificial plastic sheeting. It seems interpretation in the tariff itself it is probable that the box in question is not appropriate to refer to the rules of made of polystyrene sheeting but is interpretation which are to be found in manufactured in one piece. other areas of Community law. Nimexe is particularly suited for that purpose The Commission concludes that the because it is closely related to the jewellery box in question cannot be Common Customs Tariff. Accordingly, classified under heading 42.02. although the criterion adopted by some countries is less than 225 grams per Heading 39.07 B V (d) must likewise be square metre, that is the figure which excluded because the polystyrene does should be used to distinguish paper from not give the article, which is made of paper-board in the light of the Statistical different materials, its essential character. Note in Nimexe and the predominant opinion expressed in the technical literature. As neither of the two tariff headings mentioned in the question referred by

JUDGMENT OF 19. 5. 1983 — CASE 192/82

By letter of 21 January 1983 the I V — Q u e s t i o n s p u t by t h e C o u r t Commission informed the Court that the authorities of the various Member States, other than the Federal Republic or The Court asked the plaintiff to state, in Germany, had stated that the article in writing and before 25 January 1983, • question should be classified for tariff whether the box in question was made of purposes as follows: polystyrene sheeting or of a single piece Belgium of polystyrene. Greece Ireland Tariff heading It put the following question to the Luxembourg 39.07 B V (d) Commission: Netherlands United Kingdom "Is the Commission able to furnish the France Tariff heading 42.02 B Court with information, in writing and Italy before 25 January 1983, regarding the Denmark Tariff heading 48.16 or views of the authorities of the various 48.21 Member States, other than the Federal Emphasizing that the matter had not Republic of Germany, on the tariff classi- been discussed in the Nomenclature fication of the article in question or Committee, the Commission stated that similar articles?" it was not able to make a sample of the jewellery boxes in question available to Finally, the Court asked the plaintiff and the "authorities of the various Member the Commission to explain at the hearing States."

KAFFEE-CONTOR BREMEN v HAUPTZOLLAMT BREMEN-NORD

VI — Oral procedure oral argument and replied to the questions put by the Court. At the sitting on 3 February 1983 the Commission, represented by R. The Advocate General delivered his Wägenbaur, acting as Agent, presented opinion at the sitting on 24 March 1983.

JUDGMENT OF 19. 5. 1983 — CASE 192/82

A. Of artificial plastic sheeting . . . B. Of other materials . . ."

In making that classification the Hauptzollamt applied one of the Expla- natory Notes of the Customs Cooperation Council which states that articles of other materials still fall within that heading if they are covered on the outside by one of the materials referred to in that heading.

5 The importer brought an action against that decision before the Finanz- gericht, claiming that the goods should be classified under subheading 39.07 B V (d).

6 The Finanzgericht stayed the proceedings and referred the following question to the Court for a preliminary ruling:

"Are jewellery boxes with hinged lids, of polystyrene and wholly covered on the outside with varnished paper, to be classified as boxes for jewellery and similar containers under tariff heading 42.02 B of the Common Customs Tariff, or as boxes of artificial resins or plastic materials under tariff sub- heading 39.07 B V (d) of the Common Customs Tariff?"

9 In the observations it submitted to the Court the Commission stated, on the contrary, that it agreed with the Hauptzollamt that it was the varnished paper covering the boxes which determined their essential character. However, it drew attention to the fact that only paper-board, and not paper, appears in the list of materials in heading 42.02 B. Since the Common Customs Tariff contains no criterion for distinguishing between those two materials, the Commission referred to a Statistical Note to Chapter 48 of the Nomenclature of Goods for External Trade Statistics of the Community and Statistics of Trade between Member States, which fixes the borderline between paper and paper-board at a weight of 225 grams per square metre. According to the information provided by the manufacturer the weight of the covering material of the boxes in question does not exceed 185 grams per square metre and the Commission concluded from that that the boxes must be classified under heading 48.16 ("Boxes, bags and other packing containers, of paper or paper-board; box files, letter trays and similar articles, of paper or paper-board, of a kind commonly used in offices, shops and the liker- io In order to determine the correct heading it is necessary to note first that it is the covering, and not the mounting, which gives the boxes the luxury appearance which is necessary to make them suitable for the display of jewellery. Thus, by virtue of Rule 3 (b) of the General Rules referred to above, it is possible to exclude heading 39.07 relating to articles of artificial plastic materials.

1 3 That interpretation is supported, moreover, by the fact that paper and paper- board are, as a general rule, included without distinction in the same headings and subheadings of the Common Customs Tariff and that neither the Common Customs Tariff nor the Explanatory Notes of the Customs Cooperation Council gives any criterion for distinguishing between paper and paper-board, which are made of the same raw materials and which may be differentiated only on the basis of their weight. That indicates that the two products were intended to be treated alike from the point of view of tariff classification unless otherwise provided. N o such contrary provision is to be found in heading 42.02. That paper-board alone, and not paper, appears in the list of materials given in the heading is attributable to the fact that the various articles listed therein cannot normally be made from that material alone. However, paper is more suitable for use as a covering material than paper-board. In the circumstances the fact that paper is not referred to in heading 42.02 may not be regarded as evidence of an intention that articles covered in paper and articles made from paper-board should not be treated in the same manner.

H For those reasons a jewellery box made of plastic material but covered with paper must be equated with a similar box made of paper-board for the purposes of tariff subheading 42.02 B.

is The reply to the question referred to the Court must therefore be that jewellery boxes with hinged lids, of polystyrene and wholly covered on the outside with varnished paper, must be classified as boxes for jewellery under tariff subheading 42.02 B of the Common Customs Tariff.

Jewellery boxes with Waged lids, of polystyrene and wholly covered on the outside with varnished paper, must be classified as boxes for jewellery under tariff subheading 42.02 B of the Common Customs Tariff.

Pescatore Due Bahlmann

Delivered in open court in Luxembourg on 19 May 1983.

For the Registrar H. A. Rühl P. Pescatore Principal Administrator President of the Second Chamber

O P I N I O N OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 24 MARCH 1983 1

Mr President, In 1980, the plaintiff in the main action, Members of the Court, Kaffee-Contor Bremen GmbH & Co. KG (hereinafter called "Kaffee- The facts of the present case, a reference Contor"), whose registered office is in for a preliminary ruling on a customs Bremen, imported 20 000 so-called tariff classification, are as follows: jewellery boxes from Thailand and put