Opinion of Mr Advocate-General Capotorti

Mr President,

Members of the Court,

1. The proceedings pending before the Bundesfinanzhof of the Federal Republic of Germany which have given rise to the present case concern the tariff classification of illustrated books essentially intended for children of less than school age. The books in question each consist of 12 tear-resistent pages of paperboard containing illustrations which almost entirely fill the pages and which are accompanied by captions consisting of a few lines. The latter describe or comment on the pictures above, supplementing them in certain cases with details or ideas which are not directly supplied by the pictures themselves. Certain of these publications also have an educational purpose: for instance, to teach the child to read the face of a clock or to help it to understand the usefulness to society of certain jobs.

2. As we know, the notes to the Common Customs Tariff, decided upon by the Council, are an integral part of the headings to which they relate and have the same binding effect whether they constitute an authentic interpretation of the headings or whether they supplement them (cf. in this connexion the judgment of the Court of 19 November 1975 in Case 38/75, Nederlandse Spoorwegen [1975] ECR 1439). It will accordingly be understood that the interpretation of such notes is of decisive weight in properly establishing the scope of the individual tariff headings. At the time when the dispute pending before the national court arose the Italian version of Note 5 to Chapter 49 of the Common Customs Tariff was worded as follows: For the purposes of heading 49.03, the expression children's picture books means books for children in which the pictures or illustrations constitute the principal interest and the essential character of the publication, whilst the text, if any, serves a simple explanatory purpose. Although the note, thus worded, emphasizes the condition that the picture should be of greater interest than the text (the pictures constitute the principal interest), it was such as to give rise to doubts as to whether, when the text, instead of merely providing an explanation of the picture, adds details or information not included therein, the publication must fall outside the scope of the special heading 49.03 and come under the general heading 49.01.

3. The observations submitted in the course of the present procedure by the undertaking Carlsen and by the Commission have further helped to clarify the principal point to be settled: whether illustrated children's books in which the pictures are clearly more important than the text from the point of view of quantity and of their interest for the young reader fall outside the special tariff heading 49.03 and come under the general heading 49.01 if the text does not merely describe the pictures or emphasize details which are already visually apparent, but is to a certain degree independent in that it supplements the pictures with additional information or ideas.

4. For these reasons I suggest in conclusion that the Court should reply to the request for a preliminary ruling on the interpretation of Note 5 to Chapter 49 of the Common Customs Tariff submitted to it by Order of the Bundesfinanzhof of 19 April 1977 with a ruling to the effect that in establishing whether pictures constitute the principal interest of a publication for children for the purposes of tariff classification under heading 49.03 the authorities may rely upon a presumption made according to quantitative criteria on a visual basis, which may be rebutted only if it is clear that the text forms the principal interest, that is, that it has intrinsic value independently of the pictures.

1 Translated from the Italian.