C-395/93
ECLI:EU:C:1994:243
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NECKERMANN VERSAND v HAUPTZOLLAMT FRANKFURT AM MAIN-OST
OPINION OF ADVOCATE GENERAL JACOBS delivered on 9 June 1994 *
My Lords, analogy of two Commission regulations con cerning the customs classification of certain goods (Commission Regulations (EEC) 2 No 548/89 1 and No 812/89 ), which stated that certain garments could not be classified as nightdresses because they were not clearly identifiable as being intended for wearing exclusively as nightwear.
1. The plaintiff in the main proceedings (Neckermann Versand AG, hereafter 'Neck- ermann') operates throughout the Federal Republic of Germany numerous department stores and other retail businesses, and in par ticular carries out mail order transactions. For those purposes it imports, inter alia, tex tiles. 3. Neckermann challenged the decision to reclassify the goods before the Hessisches Finanzgericht, which has requested a prelim inary ruling on the following questions:
2. In 1988 and 1989 Neckermann imported articles of clothing which it declared as pyja mas. The defendant customs authority (Hauptzollamt Frankfurt am Main-Ost) decided subsequently, as a result of an audi tor's report, that the goods in question '(1) Is heading 6108 of the Combined should have been classified as upper gar Nomenclature to be interpreted to ments and trousers and, in one case, as an the effect that only sets of two knitted ensemble. Since that classification entailed garments which, according to their the application of a higher rate of duty, the outward appearance, are to be worn customs authority made a supplementary exclusively in bed must be considered to demand for duty. The customs authority be pyjamas? based its view partly on the application by
1 — OJ 1989 L60, p. 31. * Original language: English. 2 — OJ 1989 L 86, p. 25.
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(2) If Question 1 is answered in the nega both regulations. I will quote the relevant tive: part:
Is it sufficient, in order for garments of '6108 Women's or girls' slips, petticoats, the type mentioned to be classified as briefs, panties, nightdresses, pyjamas, nég pyjamas, for example under CN ligés, bathrobes, dressing gowns and similar Code 6108 3190 0000, that according to articles, knitted or crocheted: the generally accepted view in trade in the Member State concerned at the time of customs clearance the goods in question may, in addition to other uses, also be worn in bed?' — Slips and petticoats:
4. The Combined Nomenclature for the Common Customs Tariff was laid down in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff. 3Under Article 12 of that — Briefs and panties: regulation the Commission adopts each year by means of a regulation 'a complete version of the Combined Nomenclature together with the corresponding autonomous and conventional rates of duty of the Common Customs Tariff, as it results from measures adopted by the Council or by the Commis sion'. In the period in which the disputed importations took place the applicable ver — Nightdresses and pyjamas: sions of the Combined Nomenclature were contained in the original Regulation No 2658/87 and in Annex 1 to Commission Regulation (EEC) No 3174/88 of 21 Septem 4 ber 1988. 6108 31 — Of cotton:
5. The wording of heading 6108 of the 6108 31 10 — Nightdresses Combined Nomenclature was the same in
3 — OJ 1987 L 256, p. 1. 4 — OJ 1988 L 298, p. 1. 6108 31 90 — Pyjamas
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6108 32 — Of man-made fibres: their objective characteristics and properties as defined by the wording of the relevant heading of the Common Customs Tariff and the notes relating to the relevant sections or 5 chapters thereof.
— Of synthetic fibres:
8. Heading 6108 refers to 'women's or 16108 3211 —Nightdresses girls'... pyjamas... knitted or crocheted'. According to ordinary usage, pyjamas are garments that are suitable for wearing in bed. The essential issue that arises in these pro ceedings is whether, in order to be classified as pyjamas, a garment must be wholly and 6108 3219 — Pyjamas exclusively suitable for wearing in bed or whether it suffices that that should be the primary purpose of the garment.
6108 3290 — Of artificial fibres
9. As the Commission points out, the Explanatory Notes of the Customs Cooper ation Council may be used as an aid to the 6108 3400 — Of other textile materials'. interpretation of the Combined Nomencla 6 ture. Reference may also be made to the Explanatory Notes to the Combined Nomenclature of the European Community.
6. In my view, the questions raised by the Hessisches Finanzgericht are not difficult to answer. The essential elements are to be found in the observations of the Commis sion. 10. The Commission observes that, although the Explanatory Notes of the Customs Cooperation Council do not contain any express definition of the term 'pyjamas', the
7. As the Commission points out, the Court has consistently held that the decisive crite 5 — See, for example, Case 145/81 Hauptzollamt Hamburg-Jonas rion for the classification of goods for cus v Wünsche [1982] ECR 2493, paragraph 12 of the judgment. 6 — Case C-265/89 Vismans Nederland [1990] ECR I-3411, para toms purposes must in general be sought in graph 18 of the judgment.
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notes on the interpretation of the term 'track pyjamas because they are not 'exclusively or suits' in heading 6112 may be applied by mainly for use as nightwear'. analogy. According to the Explanatory Notes, that heading includes:
12. Moreover, the Commission's Nomencla ture Committee (textile sector) decided, at its 'Track suits ... which, because of their general session on 12 and 13 October 1993, to intro appearance and the nature of the fabric, are duce a similar definition of pyjamas into the clearly meant to be worn exclusively or Explanatory Notes on the Combined mainly in the pursuit of sporting activities.' Nomenclature of the European Community. The note on heading 6108 now states that the heading applies to crocheted or knitted women's or girls' pyjamas which, because of their general appearance and the nature of the fabric, are clearly meant to be worn exclusively or mainly as nightwear. The Commission states that the amendment of the Explanatory Notes has a purely declara The Commission observes that, if that for tory function; it does not change the law, but mulation is applied by analogy, it is possible simply clarifies the existing legal position to deduce that pyjamas are garments which, and thus constitutes an aid to interpretation because of their general appearance and the which is relevant even as regards the classifi nature of the fabric, are clearly meant to be cation of goods imported in 1988 and 1989. worn exclusively or mainly in bed.
13. I am in full agreement with the Commis 11. According to the Commission, that def sion's observations, as summarized above, inition of pyjamas is confirmed by a number and consider therefore that the expression of classification regulations adopted by the 'women's or girls'... pyjamas' in head Commission, in particular Regulation (EEC) ing 6108 of the Combined Nomenclature 7 No 893/93, where it is stated (in an annex) should be interpreted as applying to gar that certain goods cannot be classified as ments which, because of their general appearance and the nature of the fabric, are clearly meant to be worn exclusively or 7 — OJ 1993 L 93, p. 5. mainly in bed.
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14. There is one final point of general inter into the Community should be subject to the est that is perhaps worth addressing. The same rate of duty regardless of the Member national court refers in question (2) to the State of importation. Hence it is important possibility of classifying goods on the basis when interpreting the tariff headings of the of the generally accepted view in trade in the Combined Nomenclature to avoid using any Member State of importation. That seems to criteria that might lead to a different classifi imply that the classification of goods might cation depending on the country of importa vary depending on the point of entry into tion. In the present case, for example, the the customs territory of the Community. It suitability of a garment for wearing in bed is for example conceivable that a garment must be assessed in the light of the habits, might, as a result of climatic and cultural dif not of one Member State, but of the Com ferences in the Member States, be considered munity as a whole. Obviously it may be dif suitable for outdoor wear in one country but ficult in practice for national authorities to fit only for wearing in bed in another coun make such an assessment, but it is none the try. However, the very concept of a common less worth stressing that the attempt must be customs tariff implies that goods imported made.
Conclusion
15. Accordingly, I am of the opinion that the questions referred to the Court by the Hessisches Finanzgericht should be answered as follows:
The expression 'women's or girls'... pyjamas' in heading 6108 of the Combined Nomenclature for the Common Customs Tariff, in the versions laid down in Annex 1 to Council Regulation (EEC) No 2658/87 and in Annex 1 of Commission Regulation (EEC) No 3174/88, must be interpreted as applying to garments which, because of their general appearance and the nature of the fabric, are clearly meant to be worn exclusively or mainly in bed.
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