C-92/83

In Case 92 / 83

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

3M DEUTSCHLAND GMBH , Neuss ,

and

OBERFINANZDIREKTION [ Principal Revenue Office] FRANKFURT AM MAIN ,

on the interpretation of headings Nos 58.02 and 59.03 of the Common Customs Tariff,

JUDGMENT

Facts and Issues

The order making the reference, the In its binding customs tariff notification course of the procedure and the obser­ of 7 April 1982, the Oberfinanzdirektion vations submitted pursuant to Article 20 classified the article under subheading of the Protocol on the Statute of the 58.02 A 11(b) of the Common Customs Court of Justice of the EEC may be Tariff as "carpets, carpeting, rugs, mats summarized as follows: and matting other than knotted carpets, other than coir mats and matting and other than tufted carpets, not woven, of synthetic textile fibres".

B. 'Kelem', 'Schumacks' and 'Kara- The Oberfinanzdirektion considers that manie' rugs and the like". the "mat for trapping dirt" satisfies the conditions for classification as a "carpet" or " rug " within the meaning of Note 2 The plaintiff in the main proceedings to Chapter 58 and of tariff heading No lodged an objection to that classification 58.02. In everyday speech and usage, and claimed that the article should be "carpets" or "rugs" are taken to mean a classified under heading No 59.03, which floor covering or wall hanging made of is worded as follows: textile material and manufactured by various methods. According to the "59.03 Bonded fibre fabrics, similar Explanatory Notes to the Customs bonded yarn fabrics, and articles of such Cooperation Council Nomenclature for fabrics, whether or not impregnated or tariff heading No 58.02, the articles coated". classified under that heading as carpets or rugs "are sufficiently thick, stiff and By decision of 19 August 1982, the strong to be used as floor coverings". Oberfinanzdirektion dismissed the ob­ The plaintiff in the main proceedings jection, relying upon Notes 1 and 2 to stated that the "mat for trapping dirt" is Chapter 58 of the Common Customs to be regarded as a floor covering Tariff. Those notes provide as follows: designed to trap dirt for industrial and outdoor purposes. Moreover, the pro­ " 1 . The headings of this Chapter are to duct is sufficiently thick, stiff and strong be taken not to apply to coated or to be used as a floor covering. impregnated fabrics, elastic fabrics or elastic trimmings, machinery belting or other goods falling within Chapter 59. However, embroidery 2. The plaintiff in the main proceedings on any textile base falls within then submitted an appeal to the Bun­ heading No 58.10. desfinanzhof for reclassification of the goods under heading No 59.03 of the Common Customs Tariff. 2. In headings Nos 58.01 and 58.02, the words 'carpets' and 'rugs' are to be taken to extend to similar articles In support of its application, the plaintiff having the characteristics of floor claims that by virtue of Note 1 to coverings but intended for use for Chapter 58 "The headings of this other purposes. These headings are chapter are to be taken not to apply to to be taken not to apply to felt ... other goods falling within Chapter carpets, which fall within Chapter 59". Consequently, articles of bonded 59". fibre fabric or similar bonded yarn fabric cannot be classified under Chapter 58. According to the Oberfinanzdirektion, it is apparent from the first note that an According to the plaintiff Note 2 to article of bonded fibre fabric or of Chapter 58 does not take precedence similar bonded yarn fabric in principle over Note 1. By laying down that a falls outside Chapter 58. According to product such as a felt carpet or rug; the first sentence of Note 2, however, which can certainly serve as a floor floor coverings and similar articles are covering, may not be classified as a floor classified in principle under Chapter 58. covering within the meaning of Chapter With regard to floor coverings, Note 2 58, Note 2 attributed only limited is more specific and therefore takes significance to the intended use of an precedence over Note 1. article as a floor covering. It is the

In support of its suggestion that a pre­ liminary ruling be sought from the Neither do the Explanatory Notes to the Court, the plaintiff stated that the "mats Customs Cooperation Council Nomen­ for trapping dirt" which are the subject clature make it possible to classify the of the contested binding customs tariff articles in question unequivocally. Ac­ notification and which are sold by its cording to those notes, carpets and rugs subsidiaries in the Community are falling within tariff heading No 58.02 are classified differently by the various "sufficiently thick, stiff and strong to be national customs authorities. In Italy, used as floor coverings" (Section XI , they are classified under Chapter 59 and 58.02, paragraph (A), first subpar­ by the authorities in the other Member agraph). The national court nevertheless States under Chapter 58. considers that that note does not mean that no other characteristics may also play a rôle in the interpretation of the In the proceedings before the Bun­ words "similar articles". Moreover, the desfinanzhof, the Oberfinanzdirektion Explanatory Notes relating to tariff referred to the observations set out in its heading No 59.03 indicate that carpets decision rejecting the plaintiff's ob­ and carpeting are excluded from that jection. tariff heading (Section XI , 59.03, towards the end under (c)). Finally, the Nomenclature Committee of the Customs Cooperation Council decided, 3. As is apparent from the statement of by a majority of 20 votes to 5, to classify grounds of the order making the an article which is essentially identical to

the article in question under tariff Upon hearing the report of the Judge- heading No 58.02, the minority of five Rapporteur and the views of the delegations having expressed a pref­ Advocate General, the Court decided to erence for classification under tariff open the oral procedure without ary heading No 59.03. preparatory inquiry. However, it invited the Commission to reply to the following question: 4. Since determination of the case depended upon an interpretation of Community law, the Bundesfinanzhof "Can the Commisson confirm the infor­ considered that it was obliged by virtue mation given by the national court to the of the third paragraph of Article 177 of effect that the mats for trapping dirt at the Treaty to request the Court for a issue in the main proceedings are preliminary ruling. By order of 21 April classified under Chapter 58 of the 1983, it decided to ask the Court to give Common Customs Tariff by the customs a preliminary ruling on the following authorities in the majority of the question: Member States, and that only the Italian authorities have classified the articles in question in Chapter 59?" " Must an article consisting of a fabric which is made of PVC monofil 0.9 mm thick, laid direct from a spinning nozzle in the form of coils and hardened and II — Written observations sub­ joined together by heat treatment with mitted to the Court the aid of a spray, and which is imported in strips 90 cm and 120 cm wide and 610 cm long for use as floor covering (mat for trapping dirt), be classified The plaintiff in the main proceedings under heading No 58.02 or heading No refers to the arguments which it has 59.03 of the Common Customs Tariff?" already put forward before the national court and states that the " Nomad " mat for trapping dirt, with which the The order making the reference was proceedings are concerned, is a fabric received at the Court Registry on 24 which, by contrast with carpets and rugs May 1983. strictly so-called, does not consist of a ground fabric and an upper surface of a By order of 19 October 1983, the Court, different structure (cf. paragraph L2 pursuant to Article 95 (1) and (2) of the above). Rules of Procedure, assigned the case to the First Chamber. The Commission points out in the first place that the mat for trapping dirt at Pursuant to Article 20 of the Protocol on issue is an article of bonded fibre or the Statute of the Court of Justice of the similar bonded yarn fabric, manufactured EEC, written observations were sub­ by a process corresponding to the mitted by 3M Deutschland GmbH, the filament-extrusion process described in. a plaintiff in the main proceedings, note issued by the European Disposables represented by K. Wilhelm and J. and Non-Wovens Association. The ar­ Harmsen, Rechtsanwälte of Munich, and ticle serves as a floor covering for by the Commission of the European trapping dirt, being used inter alia in Communities, represented by Christoph hospitals, at the entrance to operating Bail, a member of its Legal Department, theatres. According to the wording of acting as Agent. tariff headings Nos 58.02 and 59.03,

such a mat could be classified as either a contrario, from the second sentence of "carpet" or " rug " under heading No Note 2, which merely states that felt 58.02, in view of the use to which it is carpets fall within Chapter 59. Although put, or as bonded fibre or similar bonded it is true that that sentence is formulated yarn fabric under heading No 59.03, in as a rule of classification, that is ex view of the nature of the material used. plained by the fact that felt products displaying the characteristics of floor coverings are often used for other In that respect, the Commission points purposes, for example as coverings for out that according to Note 1 to Chapter tables, furniture or walls.

Nos 58.01 and 58.02. Convention of 15 December 1950 on Nomenclature for Classification of In the Commission's view, Note 2 does Goods in Customs Tariffs, there is no not constitute, in relation to Note 1, a mention of bonded fibre fabrics or "lex specialis" by virtue of which, with similar bonded yarn fabrics. At that time, the exception of felt carpets, all articles they were . little known and were displaying the characteristics of floor probably assimilated to felt, which by coverings fall within Chapter 58, even if virtue of Note 2 to Chapter 58 already their designation corresponds to that of fell within Chapter 59. goods in Chapter 59.

There was no reason to apply to carpets and rugs or floor Neither, according to the Commission, coverings of bonded fibre or similar can any different conclusion be drawn, a bonded yarn fabric a rule different from

Decision

1 By order of 21 April 1983 , which was received at the Court on 24 May 1983, the Bundesfinanzhof [Federal Finance Court ] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of the Common Customs Tariff.

2 That question was raised in the course of a dispute concerning the tariff classification of a product described as a " mat for trapping dirt " (" Schmutz- fangmatte ") which , according to the importing firm, is a product made of

JUDGMENT OF 22. 3. 1984 — CASE 92/83

bonded fibre fabric or similar bonded yarn fabric covered by tariff heading No 59.03, but which the competent customs authorities classified in a binding customs tariff notification under subheading No 58.02 A II (b).

3 Heading No 59.03 of the Common Customs Tariff comprises bonded fibre fabrics, similar bonded yarn fabrics, and articles of such fabrics, whether or not impregnated or coated. Chapter 59, to which that heading belongs, covers wadding and felt, twine, cordage, ropes and cables, special fabrics, impregnated and coated fabrics, and textile articles of a kind suitable for . industrial use.

6 The national court asks whether such a product falls under heading No 58.02 or heading No 59.03 of the Common Customs Tariff.

3M DEUTSCHUND / OBERFINANZDIREKTION FRANKPURT AM MAIN

7 Note 1 to Chapter 58 states that the chapter is not to be taken to apply to • coated or impregnated fabrics, elastic fabrics or elastic trimmings, machinery- belting or "other goods falling within Chapter 59."

8 It follows that a product which, by virtue of its composition, might be classified under Chapter 59 does not fall within the scope of Chapter 58 simply because it is used as a floor covering.

9 It is true that, according to Note 2 to Chapter 58, the words "carpets" and "rugs" in headings Nos 58.01 and 58.02 are to be taken to extend to similar articles having the characteristics of floor coverings but intended for use for other purposes. That provision, however, as the Commission has rightly pointed out, is intended to define the meaning of "carpets" and "rugs" for the purpose of interpreting headings Nos 58.01 and 58.02 and not to create an exception, in the case of carpets and rugs, to the system of clasification laid down in Note 1.

10 A further argument supporting the same conclusion is provided by the second sentence of Note 2, which states that felt carpets fall within Chapter 59. That provision makes it clear that, in classifying a floor covering, it is necessary to have regard to the nature of the product and its method of manufacture rather than to the use to which it may be put.

THE COURT (First Chamber),

in answer to the question referred to it by the Bundesfinanzhof by order of 21 April 1983, hereby rules:

A product consisting of a fabric which is made of polyvinyl chloride monofil 0.9 mm thick, laid direct from a spinning nozzle in the form of coils and hardened and joined together by heat treatment with the aid of a spray, being a bonded fibre fabric or similar bonded yarn fabric, falls under heading No 59.03 of the Common Customs Tariff, even if it is intended for use as a floor covering.

Koopmans Mackenzie Stuart Bosco

Delivered in open court in Luxembourg on 22 March 1984.

For the Registrar