222/85 · GlobalLawDB

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Judgment of the Court (Fourth Chamber)10 July 1986^noteIn Case 222/85REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof [Federal Finance Court] for a preliminary ruling in the proceedings pending before that court betweenHauptzollamt OsnabrückandKleiderwerke Hela Lampe GmbH & Co. KGTHE COURT (Fourth Chamber)composed of: T. Koopmans, President of Chamber, C. Kakouris and G. C. Rodriguez Iglesias, Judges,Advocate General: J. MischoRegistrar: K. Riechenberg, acting as Administratorafter considering the observations submitted on behalf ofKleiderwerke Hela Lampe GmbH & Co. KG, the defendant in the main proceedings, by Hans E. Heyn, Rechtsanwalt at Hamburg,the Commission of the European Communities, by its Legal Adviser Peter Kalbe,after hearing the Opinion of the Advocate General delivered at the sitting on 29 May 1986,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By an order of 24 April 1985, which was received at the Court on 22 July 1985, the Bundesfinanzhof referred a question to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of headings Nos 61.01 and 61.02 of the Common Customs Tariff.

2The question was raised in proceedings between the Hauptzollamt [Principal Customs Office] Osnabrück and Kleiderwerke Hela Lampe GmbH & Co. KG, Hamburg, and concerns the classification by the Hauptzollamt of traditional-style jeans under heading No 61.01 of the Common Customs Tariff.

3On 23 December 1975 Hela Lampe imported from a nonmember country traditional-style jeans, which it declared as women's jeans coming under heading No 61.02 of the Common Customs Tariff. At the material time there was a tariff quota for women's jeans which provided for exemption from customs duty. By notice of assessment of 22 November 1977 the Hauptzollamt demanded the payment of customs duty in the amount of DM 10196.60 on the ground that the imported goods were men's jeans which were to be classified under heading No 61.01 of the Common Customs Tariff because they were front-fastening from left to right.

4Hela Lampe brought an action before the Finanzgericht Hamburg against that notice, contending that the classification should be based on the prevalent view amongst interested circles (Verkehrsanschauung). It argued that since traditional-style jeans were worn by women as well as by men it was not possible to identify them as garments for women or for men at the time of importation. Furthermore, jeans almost invariably had a front fastening from left to right whether they were worn by women or by men. Consequently, the jeans in question should be classified as women's outer garments within the meaning of the Common Customs Tariff.

5The Finanzgericht annulled the Hauptzollamt's decision claiming the payment of customs duty, whereupon the latter appealed on a point of law to the Bundesfinanzhof on the ground that the generally prevalent view was not decisive for the purposes of classification and that fastening from left to right was traditionally a characteristic of men's trousers.

6The Bundesfinanzhof considered that, according to the Explanatory Notes to the Customs Cooperation Council Nomenclature, trousers generally were considered to be men's garments when they had a front closure from left to right. However, it was necessary to inquire whether account should not be taken of the characteristics of jeans as a specific category of trousers, rather than of the characteristics of trousers in general, on the ground that jeans were to be viewed as ‘unisex’ articles to which the habitual criteria for the classification of garments cannot be applied.

7The Bundesfinanzhof therefore stayed the proceedings and referred the following question to the Court for a preliminary ruling:On 23 December 1975 was the Common Customs Tariff to be interpreted to the effect that traditional-style jeans with a front fastening from left to right were to be classified under tariff heading No 61.01 as men's outer garments?

The applicable rules

8The Common Customs Tariff distinguishes, as regards articles of apparel and clothing accessories of textile fabric, between ‘men's and boys outer garments’ (heading No 61.01) and ‘women's, girls’ and infants outer garments (heading No 61.02). Within each of these two headings there is a subheading for ‘trousers’. Similarly, there are separate headings for undergarments for men and boys (No 61.03) and women's, girls and infants undergarments (No 61.04).

9Note 3 (a) to Chapter 61 of the Common Customs Tariff states that articles which cannot be identified as either men's or boys' garments or as women's or girls' garments should be classified as women's or girls' garments (under headings Nos 61.02 or 61.04).

10Furthermore, the second paragraph of the Explanatory Notes to the Customs Cooperation Council Nomenclature relating to heading No 61.02 states as follows :‘Certain similar types of garments are commonly worn by either sex (e.g., trousers, raincoats and aprons), but they can usually be distinguished by the cut, the placing of the buttons, the shape of the collar or the presence of decorative trimmings.’

11On 13 September 1982, that is to say after the date on which Hela Lampe imported the garments at issue, the Commission adopted Regulation No 2496/82 of 13 September 1982 on the classification of goods under subheading 61.01 B V (e) of the Common Customs Tariff (Official Journal 1982, L 267, p. 11), which provides that, ‘Trousers, including jeans, made up of textile fabrics referred to in note 1 to Chapter 61, with an opening at the front which is fastened left over right by any means’ are to be classified in subheading 61.01 B V (e) of the Common Customs Tariff.

The question referred for a preliminary ruling

12Hela Lampe contends that, according to Note 3 (a) to Chapter 61 of the Common Customs Tariff, classification in either heading No 61.01 or heading No 61.02 of the Common Customs Tariff must be determined by the external characteristics of the garments which enable them to be identified as either men's garments or women's garments. In its view there are no such characteristics in this case; in particular, the arrangement of the front fastening from left to right is not a criterion for making a distinction. It argues that traditional-style jeans are worn as much by women as by men and there is no single prevalent view with regard to the front fastening of women's jeans.

13The Commission contends that the Common Customs Tariff classification is based solely on objective and visible characteristics, which alone can identify garments as articles for men or for women. The Commission points out that the classification must be effected at the time when the garments are imported and, as a result, cannot depend on the sex of the person who purchases them or subsequently wears them.

14As regards more specifically the classification of trousers, the Commission observes that in western countries fastening of trousers from left to right is a definite and unvarying characteristic of men's garments which transcends the vagaries of taste and fashion. Traditional-style jeans with a front fastening from left to right should as a result, even when worn by women, be classified in heading No 61.01 of the Common Customs Tariff in the absence of any objective factor which enables them to be identified as women's garments.

15That argument must be accepted. According to a previous decision of the Court (judgment of 15 May 1986 in Case 90/85 Mikx v Minister van Economische Zaken [1986] ECR 1695) the intended use of goods, which is not an inherent quality of the goods, cannot be used as an objective criterion for the purposes of its Common Customs Tariff classification at the time of importation since it is impossible at that time to determine the actual use to which the goods will be put. As a result, the actual use of goods cannot be relied on in order to determine their Common Customs Tariff classification.

16Uniform and certain implementation of the Common Customs Tariff would be impossible if garments having an objective characteristic traditionally associated with men's garments were no longer considered to be ‘identifiable’ as such on the ground that for some time those garments had also been worn by women. Although, as the Bundesfinanzhof points out, a certain fashion for ‘unisex’ clothing has developed throughout the Community, that phenomenon, which is not taken into account by Chapter 61 of the Common Customs Tariff, cannot spawn new interpretations in the field of the Common Customs Tariff.

17Accordingly, it should be ruled, in reply to the question referred by the national court, that on 23 December 1975 the Common Customs Tariff was to be interpreted to the effect that traditional-style jeans with a front fastening from left to right were to be classified under tariff heading No 61.01 as men's outer garments.

Costs

18The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Fourth Chamber),in answer to the question referred to it by the Bundesfinanzhof, by order of 24 April 1985, hereby rules: On 23 December 1975 the Common Customs Tariff was to be interpreted to the effect that traditional-style jeans with a front fastening from left to right were to be classified under tariff heading No 61.01 as men's outer garments.

Delivered in open court in Luxembourg on 10 July 1986.