Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. In October and December 1978 Firma J. Henr. Drünert (hereinafter referred to as Driinert) imported into the Federal Republic of Germany 449 bundles of balsa wood originating in Ecuador.

2. First of all, a correction must be made: from the unchallenged observations of the Commission of the European Communities and from statements made at the hearing it is clear that, contrary to what was stated in the judgment of the Finanzgericht Bremen and in the order of the Bundesfinanzhof, the balsa wood, which has the form of a parallelepiped more than 5 mm thick, had been smoothed not on the narrow sides but on the two opposite faces which, in the case of the 381 bundles in question, showed no sign of the original saw marks.

3. According to Drünert, it is not disputed that the balsa wood was bought and resold as ordinary sawn balsa wood. It states that of all the bundles subsequently inspected by the customs authorities 11.7%, though treated in the same way as the others, were smooth in appearance.

4. The Court has consistently stated that in the interests of legal certainty and of administration, the decisive criterion for the customs classification of goods must generally be looked for in the objective characteristics and properties of products (judgments of 23 March 1972 in Case 36/71, Henck v Hauptzollamt Emden, [1972] ECR 187, at paragraph 4, and of 22 November 1973 in Case 128/73, Past v Hauptzollamt Freiburg [1973] ECR 1277, at paragraph 3).

5. The second half of the question referred to the Court asks whether if the wood cannot be classified under heading No 44.05 it must inevitably fall within heading No 44.13. That question cannot be given a definite answer. As I have stressed, it is true that there is an obvious link between the two headings. However, once again it is a matter for the competent national authority to determine the nature of that link and to state in such cases which other heading of the Common Customs Tariff covers the circumstances of an individual case.

6. Consequently, I propose that the Court should answer the question referred to it by the Bundesfinanzhof as follows:

1 Translated from the French.