C-153/88

1. This case concerns a dispute as to whether the weight of imported tents should be calculated including or excluding the accessories, such as the poles, pegs and 3. The French customs authorities appealed ropes, which usually accompany the fabric against that decision to the cour d'appel, or textile part of a tent. Versailles. That court maintained the reference of the question formulated by the tribunal de grande instance and, taking the view that the determination of the import quota and the calculation of customs duties were closely linked, added a second question relating to customs duties. The 2. A number of traders imported tents into cases have been joined and are now France from South Korea in February 1983. regarded as being references from the cour The imported tents were each packed in a d'appel, Versailles, asking this Court to rule separate bag which contained both the on the following questions: fabric part of the tent and the accessories. The importers made customs declarations stating only the weight of the fabric used in the tents, whereas the total weight with the accessories was substantially more. The (1) whether, for the determination of the French customs authorities prosecuted the import quota, account should be taken importers for making false declarations. The of the weight of the textile material or importers relied on Community law as the total weight including tent poles and justifying the declarations they had made. tent pegs; The tribunal de grande instance, Nanterre, before which the prosecutions were brought, noted that under Community law imports of textile products originating in certain countries, including South Korea, were subject to quotas determined by (2) whether, for the determination of weight and that in return customs duties customs duties payable on the import of were suspended in respect of a certain tents originating in Korea, account quantity that was also fixed by weight. It should be taken only of the weight of considered that the relevant provisions of the textile material or the total weight Community law must be interpreted in of the textile material together with the order to determine whether the weight of accessories.

7. Kühne et Nagel, the 'partie civilement 5. Regulation No 3589/82 is based on responsable' in Cases C-156/88 and agreements on trade in textile products C-157/88, observes that the regulations in between the European Community and a issue arose out of the Arrangement number of non-member supplier countries. regarding International Trade in Textiles It lays down quantitative limits for each (known as 'the Multifibre Arrangement' or supplier country in respect of imports into 'MFA') and submits that the relevant the Community of a number of products, consideration is therefore the weight of the including tents. Those quantitative limits are textiles concerned and not of any determined by weight. The limit for South non-textile accessories such as tent pegs or Korea was 1 992 tonnes for 1983: see poles. Their argument is that it would be Annex III, Group III C, Category 91. illogical to count the weight of such acces­ Regulation No 3378/82 provides that the sories against quotas laid down for the Common Customs Tariff duties shall be purpose of controlling trade in textile totally suspended, inter alia on the products products. at issue in the present case, within the framework of Community tariff ceilings: see Article 1(1). The relevant tariff ceilings were also determined by weight, and the tariff ceiling for South Korea in 1983 in 8. The Commission takes the view that the respect of the goods in question was 169.4 issue concerns tariff nomenclature rather tonnes: see Annex A, Category 91. When than the interpretation of the regulations

12. Regulation No 3378/82 does not contain express references to the Common 9. Neither Regulation No 3589/82 nor Customs Tariff or the Nimexe such as those Regulation No 3378/82 contains any just cited, but the reference thereto is specific provision on the question whether implicit in its annexes. Those annexes list the weight of tents should be calculated the products to which tariff suspensions including or excluding their accessories. apply by reference to the Common Customs However, Article 1(2) of Regulation Tariff and the Nimexe. Moreover, No 3589/82 provides: Article 11 of the regulation requires Member States to forward to the Statistical Office of the European Communities infor­ mation relating to imports of the products 'The classification of the products listed in in question in accordance with the Annex I shall be based on the nomenclature provisions of the Nimexe. of the Common Customs Tariff and on the nomenclature of goods for the external trade statistics of the Community and the statistics of trade between Member States 13. The Common Customs Tariff and the (Nimexe), without prejudice to Article 3(7). Nimexe were regularly amended until they The procedures for the application of this were replaced, as from 1 January 1988, by paragraph are laid down in Annex VI.' the Combined Nomenclature. At the time of the imports in question in this case the version of the Common Customs Tariff applicable was that laid down by Council 10. Article 1 of Annex VI to the regulation Regulation No 3000/82 of 19 October provides : 1982 (Official Journal 1982, L 318, p. 1).

Tents fell under subheading 62.04 B II in provides the most specific description shall that Tariff; and they fell under Nimexe be preferred to headings providing a more code 62.04-73. The description of the goods general description'. As the French in both cases is simply 'tents'. Government has pointed out, it would be difficult to conceive of a heading more specific than one which describes a product by its name. Thus Rule 3(a) leads to the conclusion that tents, including their acces­ sories, are to be classified under subheading 14. According to the case-law of the Court, 62.04 B II. If, however, one takes the view the 'decisive criterion for the classification that Rule 3(a) does not resolve the issue, of goods for customs purposes is in general Rule 3(b) must be applied. It provides as to be sought in their characteristics and follows: 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' (see, for example, Case 62/77 Carlsen-Verlag v 'Mixtures, composite goods consisting of Oberfinanzdirektion Köln [1977] ECR 2343, different materials or made up of different at p. 2350). If that criterion is applied to the components, and goods put up in goods in issue in the present case, namely sets ... shall be classified as if they consisted tents complete with their essential acces­ of the material or component which gives sories, it is difficult to see how they can fail them their essential character, in so far as to be classified as 'tents' under subheading this criterion is applicable.' 62.04 V II of the Common Customs Tariff. Their characteristics and objective prop­ erties are those of a tent. As the French Government has pointed out, a tent invariably consists not only of a textile sheet In my view, the material that gives the but also of the accessories without which it goods in issue their essential character is the cannot be erected and used. Indeed, if a fabric part of the tents. It follows, once trader contracted to supply tents and failed again, that those goods, including their to supply those accessories, he would, I accessories, fall to be classified under think, prima facie be in breach of contract subheading 62.04 B II. because the goods would not correspond to their description.

character as a tent. On the contrary, anyone stipulated in the agreements made allowance with even the slightest experience of for the weight of the accessories. That is camping will appreciate that a tent without confirmed by the 14th recital in the poles and pegs is of little use and hardly preamble to Regulation No 3378/82, which deserves to be called a tent. It seems logical explains that the quantities to be admitted therefore to include the weight of those into the Community free of duty were accessories when calculating the weight of determined by applying 'a certain uniform the tents. percentage to the data concerning total imports by the beneficiaries into the Community in 1977, by category of products'. Since no one has contested the 17. The argument that it is inappropriate to Commission's assertion that tents are count the weight of the tent pegs and other invariably imported together with their accessories against quotas laid down for the accessories, it can be presumed that the purpose of controlling trade in textile 1977 trade statistics included the weight of products is not without force. However, those accessories and that the duty-free that argument would lose its attraction if it quotas were calculated on that basis. Thus could be shown that the weight of the the inclusion of the weight of the acces­ accessories had been taken into account sories in circumstances such as those of the when the quotas were fixed. The present case would not represent a Commission has stated that that was indeed distortion of the system. the case, since the agreements concerning trade in textile products were negotiated by the Community on the basis of actual 18. Before concluding I would point out imports as recorded by statistics compiled in that, although I believe the interpretation accordance with the Nimexe and the advocated by the defendants in the main Common Customs Tariff nomenclature. proceedings to be mistaken, it is certainly The Commission argues that, since that not a perverse or illogical interpretation or nomenclature requires the accessories to be one that no bona fide trader could classified under the same heading as the rest reasonably entertain. That is a matter which of the tent which they accompany, it follows the national court may wish to take into that the negotiations themselves proceeded account when assessing the criminal liability on that basis and that the quantities of the defendants.