JUDGMENT OF 14.7.1981 — CASE 205/80 ELBA v HAUPTZOLLAMT BERLIN-PACKHOF

In Case 205/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court] Berlin for a preliminary ruling in the action pending before that court between

THE COURT (Second Chamber), composed of: P. Pescatore, President of Chamber, O. Due and A. Chloros, Judges, Advocate General: G. Reischl Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

III — Replies to the question posed by the Court

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

A. Of regenerated cellulose

B. Of vulcanized fibre

C. Of hardened proteins

D. Of chemical derivatives of rubber

E. Of other materials:

II —. Written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community

III —. Replies to the question posed by the Court

IV —. Oral procedure

1. By order of 29 September 1980 which was received at the Court of Justice on 20 October 1980, the Finanzgericht [Finance Court] Berlin, Seventh Senate, submitted to the Court the following question for a preliminary ruling on the interpretation of tariff headings 97.05 and 39.07 of the Common Customs Tariff:

2. This question was raised in the course of an action between ELBA Elektroapparate and the Hauptzollamt [Principal Customs Office] Berlin-Packhof [hereinafter referred to as the Hauptzollamt] concerning the question whether the light circles which ELBA on 20 December 1978 sought to have released into free circulation, must be classified, as they were initially, under tariff heading 97.05 of the Common Customs Tariff or, as was finally decided by the Hauptzollamt, under tariff heading 39.07 of the Common Customs Tariff.

3. Tariff heading 97.05 covers the following goods:

4. According to the version of the text in force at the date of importation, tariff heading 39.07 of the Common Customs Tariff covered the following goods:

5. As may be seen from the grounds of the order of the Finanzgericht referring the matter to the Court, the Hauptzollamt, the defendant in the main action, took the view in its decision of 25 January 1980 given on the objection to the classification that the goods were put up in sets and should be classified as if they consisted of the component which gave them their essential character. That character was determined by the components made of plastic, so that the flashing light circles, as units, should be considered as other goods made of plastic under tariff subheading 39.07 E IV of the Common Customs Tariff.

6. ELBA contends that the flashing light circles are not goods which are put up in sets and that the components which give them their essential character are the light bulbs and not the plastic parts, which fulfil only a subsidiary function. It further maintains that these are goods which were manufactured for the American market as Christmas-tree decorations.

7. The Hauptzollamt admits that the flashing light circles may be used as Christmas-tree decorations but believes that in Germany they are used mainly as decorative lights for other purposes. It recognizes, however, that their principal use within the European Communities may possibly be different and determinative.

8. In its written observations and oral argument the Commission considers that, in view of the presentation of the flashing light circles and taking into account especially the fact that they are decorated with silver tinsel in the form of fir-tree branches and equipped with a casing enabling them to be attached to the top of a fir tree and that, as is apparent from the brochure attached to the sample which forms part of the Court file, the manufacturer had in fact such use in mind, it cannot be ruled out that these goods were designed by the manufacturer to be used as Christmas-tree decorations.

9. The Commission believes, however, that the flashing light circles can be used in fact only occasionally as Christmas-tree decorations. In view of the way in which the article is put up, at least on the European market, it is generally used as decoration at parties.

10. In this regard the Commission submits that the goods in question are not covered by any of the specific tariff headings of the Common Customs Tariff and, as composite, goods, must be classified according to Rule 3 (b) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff as if they consisted of the component which gives them their essential character. Since the goods consist of a plastic frame with synthetic decoration and electrical fittings in which are fixed candle-shaped incandescent light bulbs without holders, it is, in the Commission's view, clear that their essential character is determined by the part made of plastic.

11. Furthermore, according to the Commission, the possibility of classifying the goods concerned under tariff heading 97.05 as Carnival articles; entertainment articles (for example, conjuring tricks and novelty jokes) must be excluded owing to the fact that this heading, according to the Explanatory Notes to the Customs Co-operation Council Nomenclature (Paragraph A of the Note on heading 97.05), covers articles which, being flimsy and of simple construction, are intended for ephemeral use and are not to be confused with articles in ordinary use of which they are an imitation.

12. According to the Commission, it follows that the flashing light circles are lighting appliances which are used as decorations and which are so made as to be intended for use over a period of time either continuously or at repeated intervals. This means that they may not be regarded as novelty jokes or the like under the first part of tariff heading 97.05 of the Common Customs Tariff.

13. In the opinion of the Commission, the external appearance of the goods and their function, which consists of lighting up at regular intervals when the electricity is switched on, thereby producing a decorative effect, lead to the conclusion that it is the plastic lighting equipment which must be considered as the component which gives the goods their essential character. The Commission therefore proposes that the goods should be classified under tariff subheading 39.07 E IV.

14. According to Rule 3 (a) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff, the heading which provides the most specific description shall be preferred to headings providing a more general description. There is no doubt that tariff heading 39.07 which, according to the Explanatory Notes to the Customs Co-operation Council Nomenclature covers articles made of material falling within headings 39.01 to 39.06 (plastic materials or other) provided that these articles are not specified or included in other headings of Chapter 39 or in other more specific headings of the Nomenclature, is a generic heading of a residual nature (judgment of 1 May 1974 Osram GmbH ν Oberfinanzdirektion Frankfurt am Main [1974] ECR 477) and that as such its scope is less specific than that of heading 97.05 of the Common Customs Tariff.

15. Furthermore, it follows from the external appearance of the goods in question and from their function, as contemplated by the manufacturer or objectively determined by their own structure, that they are essentially intended to produce a decorative effect by means of light-play, whatever may be their precise use for a particular decorative purpose.

16. The flimsy and... simple construction in conjunction with ephemeral use, which according to the Commission, is a condition for classification under the first part of heading 97.05, does not constitute an absolute requirement in this regard. According to the Explanatory Notes to the Customs Cooperation Council Nomenclature, it is only in general and usually that articles to be classified under heading 97.05 are characterized by being flimsy and of simple construction, corresponding to the light materials of which they are made. It is clear from the explanatory note on heading 97.05 that the materials used as well as the construction of the articles concerned may confer on them a longer life and the possibility of extended use. The classification of the flashing light circles under heading 97.05 should not, therefore, be excluded.

17. Furthermore, it cannot be argued that the essential character of the article within the meaning of Rule 3 (b) of the General Rules for the Interpretation of the Nomenclature of the Common Customs Tariff is determined by the materials used. The essential character of the article is in this case determined by its intended purpose as a decorative lighting appliance regardless of the material used for its frame.

18. It follows that the essential character of the goods complies with the conditions for classification under heading 97.05. The goods concerned may therefore be classified under heading 97.05 and there is no need to determine whether they constitute carnival... [and] entertainment articles or Christmas-tree decorations, since each of these descriptions falls within the wording of the heading concerned.

19. The reply to the question submitted to the Court should therefore be that flashing light circles consisting of a circular plastic frame, to which are attached incandescent light bulbs of various colours which flash when switched on, are to be classified under tariff heading 97.05 of the Common Customs Tariff.

On those grounds, THE COURT (Second Chamber) in answer to the question referred to it by the Finanzgericht Berlin, Seventh Senate, by order of 20 October 1980, hereby rules:

1 Translator's note: The words flimsy and of simple construction and are not to be confused with articles in ordinary use of which they are an imitation are a translation of passages in the authentic French text of the Note in question. Equivalent passages do not appear in the authentic English text of the Note.

2 Translator's note: See footnote on page 2104 in regard to the phrase flimsy and of simple construction. The phrase in general does not appear in the authentic English text of the Note on heading 97.05 whereas the word généralement does appear in the authentic French text.