JUDGMENT OF 8. 12. 1977 - CASE 62/77 CARLSEN-VERLAG v OBERFINANZDIREKTION KOLN

In Case 62/77 Reference to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) of the Federal Republic of Germany for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber) composed of: M. Sørensen, President of Chamber, Lord Mackenzie Stuart and A. Touffait, Judges, Advocate-General: F. Capotorti Registrar: H. J. Eversen (Deputy Registrar)

gives the following

JUDGMENT

Facts and issues

I — Facts and Procedure

II — Summary of the written observations

Ill — Oral procedure

Decision

Costs

I —. Facts and Procedure

II —. Summary of the written observations

5. For the purposes of heading No 49.03, the expression children's picture books means books for children in which the pictures form the principal interest and the text is subsidiary.

Ill —. Oral procedure

1. By an Order of 19 April 1977, which was received at the Court on 17 May 1977, the Bundesfinanzhof requested pursuant to Article 177 of the EEC Treaty an interpretation of Note 5 to Chapter 49 of the Common Customs Tariff.

2. According to Note 5 to Chapter 49: For the purposes of heading No 49.03, the expression children's picture books means books for children in which the pictures dominate and are subsidiary to the text.

3. The decisive criterion for the classification of goods for customs purposes is in general to be sought in their characteristics and 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.

4. The wording of heading 49.01 must be understood as meaning that a product displaying the characteristics of the product in dispute cannot be classified under the heading brochures, which consist of a small number of pages of text alone, unless, they are described as illustrated, or the heading imprimés similaires (similar printed material).

5. Tariff heading 49.03 refers to children's picture books [bound otherwise than in paper].

6. The complication in this case is caused by the wording of Note 5 to Chapter 49 on the interpretation of heading 49.03.

7. It is clear from the wording of this question that it is concerned to establish whether a publication intended for children of less than school age in which the pictures cover almost the whole page and constitute the dominant interest may be classified under the general heading 49.01 and not under the special tariff heading 49.03 if the text does not merely emphasize elements which may be apprehended visually but supplements the picture with ideas which the latter alone does not suggest.

8. It is clear from the wording of Note 5 to Chapter 49 that the written text could exclude a children's picture book, bound otherwise than in paper, from heading 49.03 only if it were in the form of a continuous narrative and not merely episodic and if it contained pictures illustrating events dealt with in the narrative itself.

9. It is clear from the wording of tariff heading 49.03, supplemented by Note 5 to Chapter 49, that children's picture books, bound otherwise than in paper, must be excluded from that heading only if it is clear that the text is of inherent interest, is fully valid of itself and is self-sufficient independently of the illustrations.

10. Although a court may have regard only to provisions in force at the time of the events giving rise to the dispute, it is not without interest, although the point cannot form part of the foregoing reasoning, that on grounds of linguistic harmonization Note 5 to Chapter 49 was amended by a corrigendem of 23 June 1976 in such a way as to confirm the decision which has been reached.

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

On those grounds, THE COURT (Second Chamber) In answer to the questions submitted to it by the Bundesfinanzhof by an Order of 19 April 1977, hereby rules:

1 Translator's note: In order adequately to convey the sense of the original, literal translations are given of the Common Customs Tariff wherever that sense does not emerge from the official English version.