C-338/95

WIENER v HAUPTZOLLAMT EMMERICH

OPINION OF ADVOCATE GENERAL JACOBS delivered o n 10 July 1997 *

1. In 1993 in Neckermann Versand1 this their appearance, are intended mainly, but Court was asked by the Hessisches Finan- not exclusively, to be worn in bed. zgericht whether certain women's garments were to be classified for customs purposes as pyjamas. The question was in essence whether, in order to be considered to be 3. The subheading in issue reads as follows: pyjamas, it was necessary that the garments in question were, to judge from their appear- ance, to be worn exclusively in bed, or whether it was sufficient that they might, in addition to other uses, also be worn in bed. '60.04 Under garments, knitted or cro- The Court's answer was to the effect that not cheted, not elastic nor rubberized: only garments which, to judge from their appearance, were to be worn exclusively in bed but also garments used mainly for that B. Other: purpose must be considered to be pyjamas.

IV. Other:

b) Of synthetic textile fibres: 2. The present case raises a related issue. The German Bundesfinanzhof (Federal Finance Court) has referred to the Court the 2. Women's, girls' and question whether the term 'nightdresses' infants': within the meaning of tariff subheading 60.04 B IV b 2 bb of the 1985 Common Cus- toms Tariff2 is to be interpreted as covering bb) Nightdresses exclusively 'other' under garments which, in j

view of their characteristics, are clearly intended only to be worn as night wear, or whether that term is to be interpreted as also covering products which, on the basis of The main proceedings

Customs Office) Emmerich. Those proceed- specialists regarded the garments, in view of ings concern imports of textile garments their characteristics or use, as being exclus- from Thailand which took place in 1985. ively or primarily nightdresses. However, Wiener declared those garments as 'women's according to the factual assessment made by nightdresses' under tariff subheading the Finanzgericht the cut and presentation 60.04 B IV b 2 bb of the Common Customs suggested that the products were also worn Tariff, and the garments were released into as leisure wear. The Finanzgericht therefore free circulation on that basis and recorded excluded customs tariff classification as against the tariff quota for nightdresses. 'nightdresses' on the ground that only gar- However, subsequent examination of the ments that are exclusively worn in bed can imports led the Hauptzollamt to the view be so classified. In so doing it relied on an that the goods were 'dresses' coming under earlier judgment of the Bundesfinanzhof 4 in tariff subheading 60.05 A II b 4 cc 22; 3 it which it was held that 'nightdresses' within therefore imposed the corresponding post- the meaning of heading 61.08 of the 1989 clearance duty, which was higher. Common Customs Tariff5 had to be clearly identifiable as being exclusively intended as night wear. Wiener's appeal to the Finanzger- icht was therefore unsuccessful.

WIENER v HAUPTZOLLAMT EMMERICH

Bundesfinanzhof asks whether the present be given to a subheading of the Common case should be resolved along the same lines Customs Tariff, incorporated in a Council in view of the fact that 'pyjamas' are listed in regulation, which is an act of one of the the Common Customs Tariff next to 'night- institutions. On numerous occasions this dresses' (even though the present case con- Court has interpreted the successive regula- cerns the tariff position in 1985 whereas tions on the Common Customs Tariff with a Neckermann Versand concerned the tariff view to achieving a uniform interpretation of position in 1988 and 1989). It therefore made their provisions, indispensable not only the present reference. because they are pieces of Community legis- lation directly applicable in all the Member States but also in order to safegu-ard the uni- form application of the Common Customs Tariff and thus to avoid deflecti-ons of trade. Indeed, by virtue of the third paragraph of Article 177 it would seem that the Bundesfi- 7. Before considering that question I pro- nanzhof was under an obliga-tion to refer pose to consi-der a general problem concern- the issue of nightdresses to this Court since ing the cooperation between national courts its judgment will not be open to appeal. The and this Court under Article 177 of the order for reference is moreover excellently Treaty. reasoned: it sets out the relevant facts and legal issues in an exemplary fashion.

Division of tasks under Article 177 of the Treaty

10. Nevertheless it is necessary in my view to address the question whether it is appro- 8. The present case in my view clearly raises priate — and especially whether it is still the broader issue of the appropriate division appropriate today, in view of developments of tasks between this Court and national which I shall mention below — for the courts. My starting-point on that issue is as Court to be asked to rule in every case follows. where a question of interpretation of Com- munity law may arise.

14. There can be no doubt that, in principle, that approach is wholly sound. It is conso­ nant with the spirit of cooperation between this Court and the. national courts, with the 13. However, the Court's approach to that Court's task of adjudicating rather than giv­ distinction is pragmatic; it is not character­ ing non-binding legal opinions, and with the ized by excessive formalism. Frequently, for requirement of uniformity in the interpreta­ example, a national court asks the Court tion and application of Community law. whether a particular rule of national law is compatible with Community law, a question which the Court cannot answer as such, but 7 — See, as recent examples, Case C-250/95 Futura Particitation which it will normally reformulate as a ques­ v Administration des Contributions [1997] ECR 1-2471 and Case C-329/95 VAG Sverige [1997] ECR 1-2675. 8 — See, inter alia, Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo v Circostel [1993] ECR 1-393, paragraph 6 of the judgment; Case C-157/92 Pretore di 6 — Joined Cases 28/62, 69/62 and 30/62 Da Costa v Neder­ Genova v Bandiera [1993] ECR 1-1085, paragraphs Case landse Belastingadministratie [1963] ECR 31, at p. 38. See, in C-378/93 La Pyramide [1994] ECR 1-3999, paragraph 14 and the area of customs classification, Case 12/71 Henck v Case C-458/93 Saddik [1995] ECR 1-511, paragraph 12. Hauptzollamt Emmerich [1971] ECR 743, paragraphs 2 and 9 — See also Case 244/80 Foglia v Novello [1981] ECR 3045 and 3 of the judgment. Case 83/91 Medičke v ADV/ORGA [1992] ECR 1-4871.

15. None the less, the Court's approach has were to be so called upon it would collapse the drawback of attracting a virtually infinite under its case-load. number of questions of interpretation. Any 'application' of a rule of law can be regarded as raising a question of 'interpretation' — even if the answer to the question of inter- pretation may seem obvious. , 0 Every national court confronted with a dispute turning on the application of Community law can refer a question which, if more or less properly phrased, this Court is bound to answer after the entire proceedings have taken their course. That will be so even where the question is similar in most respects to an earlier question; the referring court (or the parties' lawyers) may always seek to distinguish the facts of the cases.

H o w - law in any court or tribunal in any of the ever, the fact that there is now such an inter- Member States. It is plain that if the Court pretation does not preclude new disputes. I n turn, those disputes could always be charac- terized as raising a new question of interpre- tation. Parties might for example raise the question: 'Is it significant in assessing whether certain sets of garments are clearly intended to be worn mainly in bed as pyja- mas that those garments carry pictures or drawings suggesting beach and holiday 10 — 'Before a provision con be applied to a specific case, it is scenes?' The national court might be per- always necessary, from a logical and practical point of view, to determine its meaning and scope, failing which it is suaded to refer that question to this Court as impossible to establish whether it is applicable to the case in question or to infer from its terms all the implications for a further question of interpretation of the that case. It may tentatively be stated that when a provision sub-heading 'pyjamas'. On the approach is applied its interpretation and application are interwoven and merge, but it is inconceivable for a provision to be which it has hitherto adopted, the Court applied without there being any need to interpret it, unless the meaning of the word "interpretation" is distorted in would attempt to give a specific reply to that such a way as to suggest that some difficulty is necessarily

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17. Confronted with this problem, I do not 20. Where a court is not a court of last consider that it is appropriate, or indeed pos­ instance and has a discretion to refer, this sible, for the Court to continue to respond Court has consistently held that the exercise fully to all references which, through the cre­ of that discretion is a matter for the referring ativity of lawyers and judges, are couched in court alone, and this Court will not normally terms of interpretation, even though the ref­ question whether the reference is appropri­ erence might in a particular case be better ate. It is however clear that the appropriate­ characterized as concerning the application ness of a reference can be assessed in the of the law rather than its interpretation. light of the object of Article 177, which is to However, to declare more references inad­ ensure that Community law is the same in all missible would not be the right answer. Member States. 1 3 A reference will be most Where a referring court has duly translated a appropriate where the question is one of Community law point into a question of general importance and where the ruling is interpretation the Court is in principle likely to promote the uniform application of bound to reply. the law throughout the European Union. A reference will be least appropriate where there is an established body of case-law which could readily be transposed to the facts of the instant case; or where the ques­ tion turns on a narrow point considered in the light of a very specific set of facts and the ruling is unlikely to have any application beyond the instant case. Between those two extremes there is of course a wide spectrum of possibilities; nevertheless national courts 18. It seems to me that the only appropriate themselves could properly assess whether it solution is a greater measure of self-restraint is appropriate to make a reference, and the on the part of both national courts and this Court of Justice, even if it continued to Court. maintain that the decision to refer was exclusively within the discretion of the national courts, could perhaps give some informal guidance and so encourage self- restrainž by the national courts in appropri­ ate cases.

for the Court to reply fully to all requests in Self-restraint and customs classification the future, it may be doubted whether that will continue to be desirable. In some areas of Community law, where there is already an established body of case-law, increasing refinement of the case-law is likely to lead to less legal certainty rather than to more. In such areas the Court could, I think, declare that it has substantially performed its task of uniform interpretation, in that the essential principles or rules of interpretation have 22. What would the suggested approach been set out sufficiently to enable national mean in the area of customs classification, 14 courts to decide matters themselves. The cus- and what would be the effects of self- toms classification of goods is, as I will restraint on the application of the Common attempt to show below, a good example of Customs Tariff? such an area; there are however, as I shall also suggest, other areas where the Court might usefully adopt a similar approach. Such a declaration of self-restraint would not lead to a decision of inadmissibility. It would be couched in terms of a reply to the refer- ring court's questions, but the reply would not be specific. It would merely recall the principles and rules of interpretation devel- 23. An examination of the Court's case-law oped by the previous case-law, and would on customs classification shows that there leave it to the national court to decide the are essentially three types of case with •which particular issue with which it is confronted. the Court has been confronted. The Court might also make it clear that it was delivering a general judgment, which was not intended to deal solely with the spe- cific case in issue but could be regarded by other national courts as authority for decid- ing future cases and for considering whether a further reference should be made. The judgment would not preclude national courts from sending new references in the particular area where the Court has engaged in self- 24. One type of case is on the validity of restraint. New references would not be inad- specific classification regulations adopted missible, but unless it were shown that a novel issue of principle was raised the Court would not consider the particular merits of 14 — On customs classification sec generally J.-R Nassiet, La such references; it would simply recall its réglementation douanière européenne, 1988, pp. 44 to 53; D. Lasok, The Customs Law of the European Economic existing case-law. And ways could probably Community, Second edition, 1990, Deventer, pp. 194 to 216; P. Vander Schueren, 'Customs classification: One of be found to do that very speedily. the cornerstones of the Single European market, but one which cannot be exhaustively regulated', 28 CMLRev (1991X o. 855; E. Vermulst, 'EC customs classification rules: Should ice cream melt?', 15 Michigan Journal of Interna- tional Law (1994), p. 1241; P. Witte and H.-M. Wolffgang, Lehrbuch des europäischen ZoUrechts, Second edition, 1995, Berlin, pp. 319 to 353; C. J. Berr and H. Trémeau, Le droit douanier. Fourth edition, 1997, Paris, pp. 106 to 113.

The validity of such measures can be subject to doubt because, whilst in such matters the (b) amendments to the combined nomen- Council has conferred upon the Commis- clature to take account of changes in sion, acting in cooperation with the customs requirements relating to statistics or to experts of the Member States, a broad discre- commercial policy; tion to define the subject-matter of tariff headings, the Commission's power to adopt those measures does not authorize it to alter the subject-matter of the tariff headings which have been defined on the basis of the harmonized system established by the Inter- national Convention on the Harmonized Commodity Description and Coding Sys- 15 — See, for example, Case 158/78 Biegi v HauptzoUamt tem 17 whose scope the Community has Bochum [1979] ECR 1103; Case C-233/88 Van de Kolk undertaken, under Article 3 thereof, not to [1990] ECR 1-265; Case 265/89 Vismans Nederland [1990] ECR 1-3411; Case C-194/91 Krohn v HauptzoUamt modify. l s Hamburg-Jonas [1992] ECR 1-6661; Case C-401/93 Gold- star Europe [1994] ECR 1-5587 and Case C-143/93 Van Es Douane Agenten v Inspecteur der Invoerrechten en Accijn- zen [1996] ECR 1-431. 16 — Council Regulation (EEC) N o 2658/87 of 23 July 1987, cited in note 5. See previously Article 3 of Council Regu- 17 — Done at Brussels on 14 June 1983 and approved on behalf lation (EEC) N o 97/69 of 16 January 1969 on measures to of the Community by Council Decision 87/369/EEC of 7 be taken for the uniform application of the nomenclature of April 1987 (OJ 1987 L 198, p. 1). the Common Customs Tariff, OJ English Special Edition 18 — Case C-267/94 France v Commission [1995] ECR 1-4845, 1969 (I), p. 12. paragraphs 19 and 20 of the judgment.

27. An example is Develop Dr Eisbein. 2 0 In that case questions were referred in connec­ tion with the classification of photocopiers. Those questions did not however relate to 29. The third type of case is by far the most the particular heading or subheading on pho­ frequent one. A large majority of cases con­ tocopiers. They related to Rule 2(a) of the cern the classification of a specific product, Rules for interpretation of the nomenclature and in effect require the Court itself to of the Common Customs Tariff,21 on classify the product. One recent judgment illustrates that particularly well. In Colin and Dupré23 the Cour d'Appel, Bourges, 19 — Case 314/85 Foto-Frost v HauptzoUamt Lübeck-Ost [1987] ECR 4199. 20 — Case C-35/93 [1994] ECR 1-2655. 21 — Sec Part L Section I, A of the Annex to Regulation (EEC) 22 — Sec also Case 28/75 Baupla v Oberfinanzdirektion Kőin N o 950/68 of the Council of 28 June 1968 on the Common [1975] ECR 989; Case 165/78 Imco-Michaelis v Customs Tariff (OJ English Special Edition 1968(1), p. 275), Oberfinanzdirektion Berlin [1979] ECR 1837; Case 248/80 as amended by Regulation (EEC) N o 1/72 of the Council Gtunz v HauptzoUamt Hamburg-Waltershof [1982] of 20 December 1971 (OJ 1972 L 1, p. 1). See at present ECR 197 and Case 295/91 IFF v HauptzoUamt Bad Part One, Section I, A of Annex I to Regulation N o Reichenhall [1982] ECR 3239. 2658/87, cited in note 5, as amended. 23 — Joined Cases C-106/94 and C-139/94 [1995] ECR 1-4759.

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'Having regard to their composition, presen- tation and purpose, pastilles such as red Pul- moll pastilles fall under heading 17.04 of the C o m m o n Customs Tariff.'

Again that was a case on the classification of a particular product and, although couched in terms of interpretation, one fails to see the difference from a case such as Colin and Dupré. As one author puts it, 'Legal impera- 30. In other cases the referring court takes tives aside, tariff classification is in essence a more care to couch its question in terms of matter of factual evaluation in view of the interpretation. In 3M Medica, Ά for example, features and properties of the products to be classified'. 26

24 — At paragraph 12 of the judgment 25 — Case C-148/93 [1994] ECR 1-1123. 26 — P. Vander Schueren, op. cit., at p. 856.

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WIENER v HAUPTZOLLAMT EMMERICH

31. An examination of those cases shows present called 'Nomenclature Committee', that the Court, in deciding them, employs a see Article 7 of Regulation N o 2658/87), 2 9 limited number of principles and rules of and classification opinions of the Nomencla- interpretation. It is to those principles which ture Committee. 30 However, it is also clear I now turn; by recalling them in its judgment that those instruments do not have legally in the present case the Court could give gen- binding force and thus cannot prevail over eral guidance which should permit national the actual provisions of the Common Cus- courts to deal with the great majority of par- toms Tariff. 31 ticular classification cases.

32. The classification of goods in the Com- mon Customs Tariff is guided by some basic principles of interpretation to which the Court consistently and constantly refers: in the interests of legal certainty and ease of verification, the decisive criterion for the 34. One such criterion is the intended use of classification of goods for customs purposes a product. In Neckermann Versand the is in general to be sought in their objective Court was faced with the difficulty that characteristics and properties, as defined in 'pyjamas' were not defined in the relevant the relevant headings of the Common Cus- heading of the Common Customs Tariff, nor toms Tariff and the notes to sections or chap- were they defined in any notes. The Court ters. 27 In addition there are some instru- held that, in the absence of such a definition, ments which are important means for the objective characteristic of pyjamas, which ensuring the uniform application of the Tar- is capable of distinguishing them from other iff and as such may be regarded as useful aids ensembles, can be sought only in the use for to its interpretation. Among those instru- which pyjamas are intended (i. e. to be worn ments are: the notes which head the chapters in bed). 3 2 The Court added that, if that of the Common Customs Tariff and objective characteristic can be established at Explanatory Notes to the Nomenclature of the time of customs clearance, the fact that it the Customs Cooperation Council, 28 classi- fication slips issued by the Committee on Common Customs Tariff Nomenclature (at 29 — Case 166/84 Thomasdünger v Oberfinanzdirektion Frank- furt am Mam [1985] ECR 3001, paragraph 14 of the judg- ment and Stanner, cited in note 27, paragraph 15. 30 — Case 42/86 Directeur Général des Douanes et Droits Indi- rects v Artimport [1987] ECR 4817, paragraph 10 of the 27 — See, for example, Case C-121/95 VOBIS Microcomputer v judgment. See also Joined Cases 69/76 and 70/76 Dittmeyer Oberfirumzdireküon München [1996] ECR 1-3047; Colin v Hauptzollamt Hamburg-Waltershof [1977] ECR 231, and Dupré, cited in note 23, paragraphs 21 and 22 of the paragraph 4. judgment; Joined Cases C-59/94 and C-64/94 Ministre des 31 — See Case 149/73 Witt v Hauptzollamt Hamburg-Ericns Finances v Pardo & Fäs and Cómicas [1995] ECR 1-3159, [1973] ECR 1587, paragraph 3 of the judgment; Dittmeyer, paragraph 10; Case C-459/93 Thyssen Haniel Logistic cited in note 30; Case 798/79 Hauptzollamt Köln-Rheinau v [1995] ECR 1-1381, paragraph 8; Case C-393/93 Stanner v Chem-Tcc [1980] ECR 2639, paragraphs 11 and 12; Artim- Hauptzollamt Bochum [1994] ECR 1-4011, paragraphs 14 port, cited in note 30 and Develop Dr Eisbein, cited in and 15; Neckermann Versand, cited in note 1, paragraph 54. note 20, paragraph 21. 28 — See cases cited in note 27. 32 — Cited in note 1, paragraphs 6 and 7 of the judgment.

may also be possible to envisage another use 35. Comparable considerations govern the for the garments 'will not preclude them use of manufacturing processes as a criterion. from being classified for legal purposes as In Jepsen Stahl v HauptzoUamt Emmerich pyjamas. 33 In Thyssen Haniel Logistic the the Court pointed out that, whilst the Com- Court similarly held that the intended use of mon Customs Tariff generally, and prefer- a product may constitute an objective crite- ably, employs criteria for classification based rion for classification if it is inherent in the on the objective characteristics and proper- product, and if that inherent character can be ties of products which may be ascertained assessed on the basis of the product's objec- when customs clearance is obtained, it refers tive characteristics. 34 It is true that in Weser- in certain cases to manufacturing processes; in those cases the manufacturing process gold the Court held that the intended use of becomes decisive. 37 The judgment in Haupt- a product can only be taken into account for zoUamt Hamburg-Jonas v 'Wünsche makes it the purpose of its tariff classification if the clear however that, where there is no refer- wording of the heading, or the note referring ence to the manufacturing process in the rel- to it, makes an express reference to that cri- evant headings or notes, that process must be terion. 35 That statement must however be disregarded. 38 read in the light of the specific facts of that case. It concerned a product composed of orange juice and sugar, intended for the pro- duction of drinks through the addition of water and/or sugar. The national court and the Commission argued that that product 36. The Court has also given general guid- could not be classified as 'fruit juice contain- ance in cases where products are a mixture of ing added sugar' because the product had different constituents and have undergone become unsuitable for direct consumption certain types of processing. In those cases the and had lost its original character of fruit product in issue must contain the essential juice. The Court rejected that argument o n constituents of the basic product in propor- the basis that the product had not lost the tions which do not differ substantially from objective characteristics and properties of those of the basic product. 39 'fruit juice containing added sugar'. The judgment therefore illustrates the point that the intended use of a product is relevant only if classification cannot take place on the mere basis of the objective characteristics and 37. Finally, the Court has also rejected some properties of the product. 36 criteria as being irrelevant for classification purposes. In Post the Court rejected an

amendment of a heading, which at the time into account the relevant explanatory notes, of the facts had already been proposed by in the light of the particularly swift pace of the Nomenclature Committee of the Cus- technical development in the case of pack- toms Cooperation Council, and which was ages. ** later enacted, where that Committee had made it clear that before that amendment a different type of classification was appropri- ate. 40 The Court also made it clear in that judgment that neither the alleged trade usage nor any divergent application of the rules in certain Member States could influence the interpretation of the Common Customs Tar- 38. It seems to me that those principles of iff which was based on the wording of the interpretation, together with the rules of tariff headings. 41 In Jepsen Stahl v Hauptzol- interpretation 'which the Common Customs L·mt Emmerich the defendant relied on a Tariff itself contains, 45 are sufficient for per- Euronorm for the purpose of classification mitting national courts to decide most classi- of certain steel products, but the Court fication cases autonomously.

ings. Thus, in Chem-Tec v HauptzoUamt the products in issue, and (b) the principle Koblenz the Court held that in the subhead- that the intended use of a product may con- ing 'Products suitable for use as glues put up stitute an objective criterion for classification for sale by retail as glues in packages . . .' the if it is inherent in the product and if that term 'packages' had to be interpreted, taking inherent character can be assessed on the basis of the product's objective characteris-

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I-6510

WIENER v HAUPTZOLLAMT EMMERICH

nightdresses. And if future case-law were to national court to decide, in the light of the concentrate on general issues of interpreta- facts, whether those conditions are satisfied. tion it is plain that the Court, by offering general guidance to customs authorities and national courts, would further contribute to a uniform application of the Common Cus- toms Tariff. Conversely, as I have suggested, rulings on very specific questions are liable to generate further, still more specific ques- tions, which at some stage must be left to 45. It is clear therefore that' the Court has national courts, or to the legislature, to never attempted wholly to displace national resolve. courts, and traditionally leaves certain mat- ters to be decided by the referring court. It seems to me that, if it is open to the Court t o reformulate questions and to give a reply which, in some cases, significantly diverges from the terms of the question referred in order to focus on the relevant Community lav/ issues, it must also be open to the Court to exercise self-restraint and to limit itself to more general issues of interpretation. 43. There are two further points which I will mention only briefly.

have been formulated in the case-law. The is very different, the underlying problem is stage may soon be reached when the Court similar. The Court has been confronted with will have gone as far as it can in assisting the the issue of how the taxable amount is to be national courts by providing general criteria determined in the case of transactions 50 and where it cannot usefully take its case-law involving vouchers of various kinds. further. It might then reply to future refer­ Potentially there may be an almost infinite ences relating to different goods by referring variety of such transactions which could to its past case-law and stating that it is for form the subject of future references. It may the national courts to decide on the basis of be sufficient for the Court to state the basic that case-law whether the goods in issue are principle that VAT is payable on the amount waste. actually received by the taxable person for his supplies, and to state that it is for the national courts to decide on the basis of that principle how the taxable amount is to be assessed.

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WIENER v HAUPTZOLLAMT EMMERICH

in a given case, but to give rulings of general ate. It does not follow, therefore, that simply significance. because a reference by a lower court was not appropriate, a reference by a court of last instance is not obligatory.

Self-restraint and the duty to refer for courts of last instance

54. It seems to me, however, that 'where a question of Community law is one which, on the view I take, this Court should not be called upon to decide because it should be 51. Article 177 of the Treaty makes a distinc- left to the courts and tribunals of the Mem- tion between courts and tribunals of the ber States, then a court of last instance can- Member States, which, under the second not be regarded as obliged to refer such a paragraph, are empowered to refer questions question. of Community law to the Court, and courts and tribunals of Member States against whose decisions there is no judicial remedy under national law, which, under the third paragraph, are obliged to refer such ques- tions.

55. Although the Court has not yet taken that view, support for it can be found in the Court's case-law. The Court has stated that:

56. The leading authority on the scope of the obligation imposed by the third para- graph of Article 177 is the CILFIT case. 5 2 However, the existence of such a possibility There the substantive issue of Community must be assessed on the basis of the charac- law was considered by the Italian court of teristic features of Community law and the last instance, the Corte Suprema di Cassazi- particular difficulties to which its interpreta- one, to be free from doubt, and the question tion gives rise. referred was whether the obligation to refer under the third paragraph of Article 177 was conditional on a prior finding by the national court of 'a reasonable interpretative doubt'. In its reply to that question the Court first recalled that a reference might To begin with, it must be borne in mind that not be necessary (although it was still per- Community legislation is drafted in several missible) where previous decisions of the languages and that the different language ver- Court had already dealt with the point of sions are all equally authentic. An interpreta- law in question. tion of a provision of Community law thus involves a comparison of the different lan- guage versions.

57. The Court then stated that:

It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. 'The correct application of Community law Furthermore, it must be emphasized that may be so obvious as to leave no scope for legal concepts do not necessarily have the any reasonable doubt as to the manner in same meaning in Community law and in the which the question raised is to be resolved. law of the various Member States. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member

58. The Court thus imposed strict condi- tions which had to be satisfied before a final court could be absolved of its obligation to 60. If an evolutionary approach is adopted refer. But the very fact that the Court to the interpretation of Article 177, then it imposed such strict conditions might suggest seems to me impossible to ignore a number that the Court again had in mind questions of developments at least some of which of law of general interest and the need to should condition the interpretation of avoid the development of 'a body of national Article 177 today. Community legislation has case-law' inconsistent with Community law. recently extended to many new fields; and In CILFIT the Court did not consider, and the volume of legislation has greatly had no need to consider, whether all ques- increased. Excessive resort to preliminary tions of Community law, however detailed rulings seems therefore increasingly likely to and specific, should be subject to the condi- prejudice the quality, the coherence, and tions laid down in that judgment; the sub- even the accessibility, of the case-law, and stantive issue in that case was a question of may therefore be counter-productive to the general importance, namely whether a health ultimate aim of ensuring the uniform appli- inspection levy was payable on imported cation of the law throughout the European wool. If the CILFIT judgment were applied Union. strictly, then every question of Community law, including all questions of tariff classifi- cation, would have to be referred by all courts of last instance.

value added tax, national courts and tribunals pretation of the obligation to refer under the are able to extrapolate from the principles influence of occasional instances where final developed in this Court's case-law. Experi- courts have not only failed to refer but have ence has shown that that case-law now pro- adopted an interpretation of Community law vides sufficient guidance to enable national which seemed clearly wrong. 53 It seems to courts and tribunals — and in particular spe- me however disproportionate to base a gen- cialized courts and tribunals — to decide eral theory of Article 177 on isolated many cases for themselves without the need instances of what might amount to its for a reference. I have sought to show above improper application. Such a theory will in how that process might be taken further in any event not resolve the problem if the the context of customs classification. national court is deliberately taking a differ- ent view. That theory would require the application of a sledge hammer without cracking the nut.

I-6516

WIENER v HAUPTZOLLAMT EMMERICH

involves a comparison of the different lan­ adopting an excessively literal approach t o guage versions'. Although the Court pre­ the interpretation of Community provisions, ceded that statement by pointing out that and for putting greater weight on the context 'the different language versions are all and general scheme of the provisions and o n equally authentic', I do not think that the their object and purpose. The reference in CIĹFIT judgment should be regarded as the CILFIT judgment would be better requiring the national courts to examine any regarded, in my view, as an essential caution Community measure in every one of the against taking too literal an approach to the official Community languages (now number­ interpretation of Community provisions and ing eleven — or twelve, if the Treaties and as reinforcing the point that they must be certain other basic texts are in issue). That interpreted in the light of their context and would involve in many cases a dispropor­ of their purposes as stated in the preamble tionate effort on the part of the national rather than on the basis of the text alone. courts; moreover reference to all the lan­ The text can be particularly misleading in the guage versions of Community provisions is a case of technical legal terms, which, as the method which appears rarely to be 'applied Court goes on to point out, may not have by the Court of Justice itself, although it is the same meaning in Community law as they far better placed to do so than the national have in the legal systems of the Member courts. In fact the very existence of many States. language versions is a further reason for not