C-80/96

1 — OJ 1994 L 198, p. 103. * Original language: English. 2 — Presumably 'Set put up for retail sale' was intended.

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OPINION OF MR FENNELLY — CASE C-80/96

and the leg; parts are also in raschel Regulation (EC) No 1966/94 of 28 July lace' 1994 concerning the classification of cer­ tain goods in the combined nomencla­ ture (OJ 1994 L 198 of 30 July 1994, p. 103), is that classification valid, inas­ much as it thereby conflicts with Rule 3(b) of the general rules for the interpre­ is to be classified as two separate items, to tation of the combined nomenclature? wit, the brassière under CN code 6212 10 00, and the briefs under CN code 6108 21 00. The following reasons are given: '[Classifica­ tion] is determined by the provisions of the general rules 1 and 6 for the interpretation of the combined nomenclature and by the (b) If the answer to Question (a) is in the wording of CN codes 6108, 6108 21 00, 6212 negative: and 6212 10 00'.

nary ruling on the ground that Item 6 of the 7. Clearly, the defendant relied upon the Annex to the Regulation only classified bras­ Regulation in issuing that classification. It is sières composed of 65 % polyamide and 35 % hardly surprising, in the light of the letter cotton, while those at issue in the main pro­ from the services of the Commission to the ceedings are composed of 90% polyamide Federal Ministry of Finance of 4 October and 10% thanelast. It therefore suggested 1994, which describes the contested measure that the Regulation did not apply to the facts as a 'Framework Regulation', and the legisla­ of the present case. tive history of the Regulation set out in the letter, that the national authorities should have taken this view, notwithstanding the apparently limited terms of Item 6 of the Annex thereto. The issue underlying the ref­ erence is, in reality, the correctness of the binding classifications provided by the national authority, as appears from a close reading of the first question. In these circum­ stances, although the Court has not been informed of the precise reasons which led the national authorities to rely upon the Regulation, I am of the opinion that the 6. The Court has consistently held that 'it is questions referred are relevant and admis­ solely for the national courts before which sible, and that in dealing with them it is the dispute has been brought, and which appropriate to examine the validity of the must bear the responsibility for the subse­ Regulation. quent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the rel­ evance of the questions which they submit to the Court ... since the questions submitted by the national courts concern the interpre­ tation of Community law, the Court is in 3 principle obliged to give a ruling'. More­ over, 'a request for a preliminary ruling from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of 8. Should the Court decide that it is not 4 the main action'. competent to examine the validity of the Regulation, the goods at issue would, in any case, fall to be classified in accordance with 3 — Case C-130/95 Giloy [1997] ECR I-4291, paragraphs 20 the relevant provisions of the General Rules and 21 of the judgment; Case C-28/95 Leur-Bloem [1997] of Interpretation, which is the object of the ECR I-4161, paragraphs 25 and 26; Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, para- second question from the national court, the graphs 34 and 35. admissibility of which the Commission does 4 — Case C-62/93 BP Supergas v Greek State [1995] ECR I-1883, paragraph 10 of the judgment. not contest.

(b) Legal background not relevant here, '[Each Contracting Party undertakes] to apply the General Rules for the interpretation of the Harmonised System and all the Section, Chapter and Subheading Notes, and shall not modify the scope of the Sections, Chapters, headings or subheadings of the Harmonised System'. 9. The Regulation cited by the national court was adopted in accordance with Article 9 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (hereinafter 'Regulation No 2658/87'). 5 Article 9(1 )(a) enables the Commission, acting under the management 11. The Court has consistently recognised committee procedure laid down in that by virtue of Article 9 of Regulation Article 10, 6 to adopt, inter alia, measures No 2658/87 the Commission enjoys 'a broad concerning the 'application of the combined discretion to define the subject-matter of tar­ nomenclature ... concerning in particular ... iff headings falling to be considered for the the classification of goods ....' classification of particular goods'. 8It follows from both the third recital in the preamble to that Regulation and Article 3(1 )(a)(ii) of the International Convention that in exercising its discretion the Commission may not 'alter the subject-matter of the tariff headings which have been defined on the basis of the 10. According to the third recital in the harmonised system established by the Con­ preamble to Regulation No 2658/87, the vention whose scope the Community has combined nomenclature 'must be established undertaken, under Article 3 thereof, not to 9 on the basis of the harmonised system', modify'. which had been laid down by the Interna­ tional Convention on the Harmonised Commodity Description and Coding System (hereinafter 'the International Convention'), done at Brussels on 14 June 1983. The International Convention was approved on behalf of the Community by Council 7 12. By the same token, in adopting the con­ Decision 87/369/EEC of 7 April 1987. tested Regulation, where the wording of the Article 3(1)(a)(ii) of the Convention provides relevant tariff headings and subheadings do that, subject to certain exceptions which are not determine the classification of the goods at issue, the Commission was bound to

respect the classification which would result Section XI (Textiles and Textile Articles) of from the General Rules and the Section, the CN are relevant: Chapter and Subheading Notes. Indeed, in its observations in the present proceedings, the Commission expressly acknowledges its duty to respect the General Rules. A failure '6108 Women's or girls' slips, petticoats, to respect these provisions would render the briefs, panties, nightdresses, pyjamas, Regulation ultra vires, and, in line with the negliges, bathrobes, dressing gowns approach of the Court in 'corn gluten and similar articles, knitted or cro­ 10 feed', and the wording of the questions cheted: referred to the Court, I propose to examine this matter first, rather than the other grounds of invalidity which have been raised, and in particular the adequacy of the state­ ment of reasons. To decide on the validity of the Regulation, it will be necessary to come to a view on the classification of the goods under the General Rules, and, hence, to deal Briefs and panties: with the second question referred simulta­ neously with the first.

6108 21 00 — Of cotton

(c) Proposed justification of the ReguUtion: Note 13 to Section XI

6212 Brassières, girdles, corsets, braces, sus­ penders, garters and similar articles and parts thereof, whether or not knit­ ted or crocheted:

6212 10 00 — Brassières.' 13. At the time of the facts giving rise to the main proceedings, the combined nomen­ clature was that set out in Commission Regulation (EEC) No 2551/93 of 10 August 14. A general memorandum appended to 1993 amending Annex I to Regulation the Section and Subheading Notes to 1 No 2658/87. 1The following provisions of Section XI explains that, unlike Chapters 50 to 55, Chapters 56 to 63, with the exception of headings 58.09 and 59.02, '[cover] 10 — Case C-267/94, cited above, paragraph 15 of the judgment. products without distinction, at heading 11 — OJ 1993 L 241, p. 1. level, as to the nature of the textile'. At

the material time, goods classified under proceedings. As regards Section Notes, the CN code 6108 21 00 attracted duty at a Commission has argued that it was bound conventional rate of 13 %, while the corre­ by Note 13 to Section XI to classify the sponding figure for goods under 6212 10 00 goods separately. This Note provides that was 6.5%. '[Unless] the context otherwise requires, tex­ tile garments of different headings are to be classified in their own headings even if put up in sets for retail sale'; an Additional Note 14 to this section explains that '[For] the application of Note 13 to this section, the term "textile garments" means garments of heading Nos 6101 to 6114 and 6201 to 6211'. 15. In accordance with Rule 1 of the General Rules for the Interpretation of the Harmon­ 12 ised System of the Customs Co-operation 13 Council (hereinafter 'CCC' ), '[the] titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, providing such headings or notes do not oth­ 17. It follows from the Additional Note that erwise require, according to the following Note 13 only applies to goods comprising provisions'. Rule 6 contains an equivalent two or more 'textile garments' which fall rule for the classification of goods in the within the headings specified. This is clearly subheadings of a heading. For classification not the case here, as a brassière on its own purposes, therefore, account must be taken would be classified under CN 6212 10 00, first of the terms of the headings, and then of which is not within the headings to which section or chapter notes, before the remain­ the term 'textile garments' applies. The ing general rules can come into play. Commission has further argued that Note 13 must be applied even if one of the elements, such as the brassière, is not classified in one of the headings to which the Additional Note refers; otherwise, in its view, the regime applicable to briefs would not be respected. Not only does such an argument ignore the wording of the relevant provi­ 16. In the present case, no heading or sub­ sions, but it also begs the question, by heading of the combined nomenclature spe­ assuming that the regime for a matching set cifically covers matched sets of ladies' under­ of ladies' underwear must respect the regime wear such as the goods at issue in the main which would apply for briefs considered alone. I can find no merit either in the Com­ mission's bald assertion that the application of Note 13 would only be precluded if 12 — The General Rules for the Interpretation of the Harmon­ ised System, along with their Explanatory Notes, are pub­ lished in a loose-leaf form by the CCC in English and French. In June 1994, the CCC adopted the informal work­ ing name 'World Customs Organisation'. 13 — As regards the Community, these were set out in Annex I 14 — The Additional Note has subsequently been incorporated to Regulation No 2551/93, cited in paragraph 13 and foot­ into the text of Note 13; Explanatory Notes of the CCC, note 11 above. second edition (1996), D/1996/0448/1, p. 775.

'When by application of rule 2(b) or for any other reason, goods are prima facie classifi­ 19. The notes to the respective chapters do able under two or more headings, classifica­ not deal specifically with the question of sets tion shall be effected as follows: comprising an item from each chapter. Note 2(a) to Chapter 61 (Articles of apparel and clothing accessories, knitted or cro­ cheted), which includes CN code 6108 21 00 (ladies' briefs), provides that the chapter does (a) The heading which provides the most not cover 'goods of heading No 6212'. Simi­ specific description shall be preferred to larly, Note 1 to Chapter 62 (Articles of headings providing a more general

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OPINION OF MR FENNELLY — CASE C-80/96

description. However, when two or meaning of Rule 3. In accordance with its more headings each refer to part only of terms, Rule 3(b) only applies if the goods the materials or substances contained in cannot be classified by reference to Rule 3(a). mixed or composite goods or to part This appears to be the case, as no heading, only of the items in a set put up for retail general or specific, refers to a set of ladies' 15 sale, those headings are to be regarded underwear. It also follows from Rule 3(a) as equally specific in relation to those that the relevant headings, which correspond goods, even if one of them gives a more to CN codes 6212 10 00 and 6108 21 00, complete or precise description of the 'each refer ... to part only of the items of a goods. set put up for retail sale', and that as a result these headings are to be regarded as 'equally specific in relation to those goods'.

I-132

QUELLE SCHICKEDANZ v OBERFINANZDIREKTION FRANKFURT AM MAIN

24. The first method of classification, under (VII) In all these cases the goods are to be Rule 3(a), is described in Explanatory Notes classified as if they consisted of the material III to V. Notes VI, VII, VIII and X, which or component which gives them their essen­ relate to Rule 3(b), provide in relevant part tial character, insofar as this criterion is as follows (emphasis in original): applicable.

'(VI) This second method relates only to:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined (i) Mixtures. by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

(ii) Composite goods consisting of different materials.

(b) consist of products or articles put up Commission has suggested an interpretation together to meet a particular need or to of paragraph (b) which would preclude the carry out a specific activity; and application of Rule 3(b) in the present case. It admits that the goods should be consid­ ered an ensemble having regard to certain objective factors such as the quality of the goods, the material used and their external appearance, and might be so considered hav­ (c) are put up in a manner suitable for sale ing regard to the fact that the components directly to users without repacking ....' are matching. The Commission is, however, of the view that the determinant factor in the purchase of such garments is size. The cus­ tomer must be able to try on and choose each component separately before purchase; external identity of presentation is of no assistance in this regard. In its view, the pre­ sentation of the goods in question as a set does not therefore meet a clearly defined 25. The notion of 'goods put up in sets' was interpreted by the Court in Telefunken as 'particular need'. The Commission adds that, implying 'that the goods are closely linked in any case, the two elements of the goods from the marketing point of view, with the are of equal importance, that their essential result that they are not only presented character cannot be determined according to together for customs clearance but are also their nature, quality or function, and that, in normally supplied together, at the various these circumstances, it was not obliged to marketing stages and in particular at the take account of Rule 3(b) in classifying the retail stage, in a single packet in order to sat­ goods at issue. isfy a demand or to perform a specific func­ 20 tion'. The applicant's assertion that the two items of the goods in question were imported in a single package has not been challenged, and the national court has found as a matter of fact that the items are offered together for retail sale as a set.

29. The Commission further relies on the CCC Explanatory Note to heading 6212, which provides in part that '[This] heading 28. The Commission's view regarding con­ covers articles of a kind designed for wear as sumer choice may or may not be correct; I body-supporting garments', to show that it do not consider it necessary or proper to is only the optimal fit of the garments, and make any recommendation to the Court on not their external appearance, which consti­ this matter, even if that were possible on the tutes a particular demand. In the first place, basis of the documents in the case-file. The this Explanatory Note does not apply either applicants have explained at length that the to CN heading 6108 or to goods which, in goods are offered to the consumer in a single accordance with Rule 3(b), must be consid­ package, that the sets allow the customer to ered as being 'prima facie classifiable under choose one of three brassière sizes for each two or more headings' and 'put up in sets for size of briefs, but that the customer may not retail sale'. Furthermore, even if it were rel­ mix items from different sets. Furthermore, evant, an Explanatory Note is at best only an it has provided some evidence of the exist­ aid to interpretation, and may not defeat the ence of a market demand in a number of application of a binding rule of law, such as Member States for sets of undergarments Rule 3 of the General Rules for the Interpre­ such as those at issue in the present proceed­ tation of the Harmonised System. ings. This is not the general demand for bras­ sieres and briefs, but a particular demand for a range of exactly matching brassières and briefs offered for sale under particular retail

31. Unfortunately, that conclusion does not resolve the issue, since I find it difficult to see, without indulging in an inappropriate degree of subjective speculation, how either 33. The Court's judgment in Sportex pro­ of the components could be said to give the vides a useful criterion for the application of set its essential character. While expressly this aspect of Rule 3(b). There the Court recognising the difficulty of this matter in its found that the identification of the essential observations, the applicant has argued that character of the goods may be effected 'by the brassière should be considered as giving determining whether the product would the set its essential character because it is retain its characteristic properties if one or more complex to manufacture and requires other of its constituents were removed from more work and more material, and because it 22 it'. It seems tolerably clear to me, particu­ weighs and costs more than the briefs. The larly in the light of the arguments relied national court has taken the view that 'the upon by the applicants in the present case to brassière ... gives the set its essential charac­ show that the goods must be treated as a set ter as regards both the value of the set and rather than as individual items of clothing, the cost of the manufacturing process'. that the characteristic property of the set would be taken away if one of the compo­ nents were removed, and that this is as true of the briefs as of the brassière.

have not provided a determination of the proceedings under separate CN code num­ tariff classification, Rule 3(c) comes into play. bers, the Commission failed to respect the In accordance with this Rule, the goods in classification of these goods which arises question should be classified under the head­ from the application of the General Rules of ing which occurs last in numerical order Interpretation of the Harmonised Commod­ among those which equally merit consider­ ity Description and Coding System. Having ation, to wit CN code 6212 10 00. been adopted in breach of Article 3(1)(a)(ii) of the International Convention on the Har­ monised Commodity Description and Cod­ ing System, the Regulation is ultra vires and should be declared invalid. The same conclu­ sion would follow if the Court were to hold 35. It follows from the foregoing that, in that the brassière gives the set its essential classifying the goods at issue in the main character.

III — Conclusion

36. The questions submitted by the Hessisches Finanzgericht by order of 7 March 1996 should be answered as follows:

Commission Regulation ( EC ) No 1966/94 of 28 July 1994 concerning the classifi­ cation of certain goods in the combined nomenclature is invalid in so far as, in Item 6 of the Annex thereto , it classified goods put up in sets for retail sale, com­ prising a brassière and briefs, separately under tariff subheadings 6108 21 00 and 6212 10 00. The Common Customs Tariff, in the version established in Annex I to Commission Regulation ( EEC ) No 2551 / 93 of 10 August 1993 amending Annex I to Council Regulation ( EEC ) No 2658 / 87 on the tariff and statistical nomenclature and on the Common Customs Tariff, must be interpreted as meaning that goods such as those at issue in the main proceedings should be classified under subhead­ ing 6212 10 00.