61993J0395

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Common Customs Tariff ° Tariff headings ° Women' s or girls' knitted pyjamas within the meaning of heading 61.08 of the Combined Nomenclature ° Set of two garments which, according to their appearance, are intended mainly to be worn in bed ° Included ° Possibility of such use ° Insufficient factor to justify classification as pyjamas

Heading 61.08 ("women' s or girls' ... pyjamas, ..., knitted or crocheted") of the Combined Nomenclature of the Common Customs Tariff, as amended by Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and Regulation No 3174/88 amending Annex I to the latter regulation, must be interpreted as meaning that not only sets of two knitted garments which, according to their outward appearance, are intended to be worn exclusively in bed but also sets used mainly for that purpose must be considered to be pyjamas. However, the mere fact that it is possible to wear in bed a set of two knitted garments, according to the generally accepted practice in the Member State concerned at the time when the goods are there cleared through customs, is not sufficient to justify classification under that heading.

In Case C-395/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hessisches Finanzgericht (Germany) for a preliminary ruling in the proceedings pending before that court between

Neckermann Versand AG

and

Hauptzollamt Frankfurt am Main-Ost

on the interpretation of heading 61.08 of the Combined Nomenclature of the Common Customs Tariff, as amended by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) and by Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1988 L 298, p. 1),

THE COURT (First Chamber),

composed of: D.A.O. Edward, President of the Chamber, R. Joliet and G.C. Rodríguez Iglesias (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

after considering the written observations submitted on behalf of the Commission of the European Communities by Francisco de Sousa Fialho, of its Legal Service, acting as Agent, assisted by Hans-Juergen Rabe, of the Hamburg and Brussels Bars,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 June 1994,

gives the following

Judgment

1 By order of 28 July 1993, received at the Court on 3 September 1993, the Hessisches Finanzgericht (Finance Court of the Land Hessen) (Germany) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of heading 61.08 of the Combined Nomenclature of the Common Customs Tariff, as amended by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) and by Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1988 L 298, p. 1), and, in particular, on the classification of women' s or girls' knitted garments (pyjamas).

2 Those questions arose in a dispute between the company Neckermann Versand and the Hauptzollamt (Principal Customs Office) Frankfurt am Main-Ost concerning a supplementary demand for duty in respect of certain items of clothing imported during 1988 and 1989. Those garments, which had been declared as pyjamas, were reclassified by the German authorities as upper garments and trousers and, in one case, as an ensemble, with the result that a higher rate of customs duty was chargeable.

3 The plaintiff company in the main proceedings contested the decision to reclassify the goods before the Hessisches Finanzgericht, which decided to submit the following questions to the Court of Justice for a preliminary ruling:

"1. Is heading 61.08 of the Combined Nomenclature to be interpreted to the effect that only sets of two knitted garments which, according to their outward appearance, are to be worn exclusively in bed must be considered to be pyjamas?

2. If Question 1 is answered in the negative:

Is it sufficient, in order for garments of the type mentioned to be classified as pyjamas, for example, under CN Code 6108 3190 0000, that according to the generally accepted view in trade in the Member State concerned at the time of customs clearance the goods in question may, in addition to other uses, also be worn in bed?"

The first question

4 In order to reply to this question, it is important to note that the versions of the Common Customs Tariff in force in 1988 and 1989 for the classification of goods in the Combined Nomenclature were those embodied in Regulations No 2658/87 and No 3174/88, cited above.

5 It is settled case-law that, in the interests of legal certainty and ease of verification, 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 (judgment in Case 40/88 Weber v Milchwerke Paderborn-Rimbeck [1989] ECR 1395, paragraph 13). Likewise, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (judgment in Case 200/84 Daiber v Hauptzollamt Reutlingen [1985] ECR 3363, paragraph 14).

6 The wording of heading 61.08 of the Common Customs Tariff ("women' s or girls' ... pyjamas, ... , knitted or crocheted") does not provide a definition. Nor is a definition of pyjamas to be found in the Explanatory Notes on the Common Customs Tariff or in the Explanatory Notes to the Nomenclature of the Customs Cooperation Council.

7 In the absence of such a definition, the objective characteristic of pyjamas, which is capable of distinguishing it from other ensembles, can be sought only in the use for which pyjamas are intended, that is to say to be worn in bed as nightwear.

8 If that objective characteristic can be established at the time of customs clearance, the fact that it may also be possible to envisage another use for the garments will not preclude them from being classified for legal purposes as pyjamas.

9 It follows that, for a garment to be classified as pyjamas for customs purposes, it does not have to be solely or exclusively meant to be worn in bed. It suffices if that is the main use for which it is intended.

10 This interpretation is corroborated by several factors mentioned by the Commission in its observations.

11 First, the Explanatory Notes of the Customs Cooperation Council relating to heading 61.12 ("track suits") describe those goods as knitted articles consisting of two pieces, not lined but sometimes with a raised inner surface (nap), which because of their general appearance and of the nature of the fabric are clearly meant to be worn exclusively or mainly in the pursuit of sporting activities. By analogy, a similar criterion applies to the classification of pyjamas.

12 Second, the criteria used by the Commission in a variety of regulations on the tariff classification of pyjamas ° especially Commission Regulation (EEC) No 1176/91 of 6 May 1991 concerning the classification of certain goods in the combined nomenclature (OJ 1991 L 114, p. 27), Commission Regulation (EEC) No 1911/92 of 9 July 1992 concerning the classification of certain goods in the combined nomenclature (OJ 1992 L 192, p. 23) and, in particular, Commission Regulation (EEC) No 893/93 of 13 April 1993 concerning the classification of certain goods in the combined nomenclature (OJ 1993 L 93, p. 5) ° make it clear that only garments which, because of their general appearance and the nature of the fabric, are meant to be worn exclusively or mainly as nightwear may be classified as pyjamas.

13 Third, the Commission' s Committee for Tariff and Statistical Nomenclature (textiles sector) introduced into the Explanatory Notes on the Combined Nomenclature, at its session on 12 and 13 October 1993, a definition which includes all the abovementioned criteria when it decided that heading 61.08 applies to women' s or girls' pyjamas, knitted or crocheted, which, because of their general appearance and the nature of the fabric, are clearly meant to be worn exclusively or mainly as nightwear.

14 The answer to the first question submitted must therefore be that heading 61.08 of the Combined Nomenclature of the Common Customs Tariff, as amended by Regulations No 2658/87 and No 3174/88, must be interpreted as meaning that not only sets of two knitted garments which, according to their outward appearance, are to be worn exclusively in bed but also sets used mainly for that purpose must be considered to be pyjamas.

The second question

15 It follows from the answer to the first question that a knitted ensemble must be classified as pyjamas if it is meant to be worn exclusively or mainly in bed. Accordingly, the mere fact that a garment is capable of being worn in bed is insufficient.

16 The answer to the second question submitted must therefore be that the fact that it is also possible to wear in bed a set of two knitted garments, according to the generally accepted practice in the Member State concerned at the time of customs clearance, is not sufficient for it to be classified as pyjamas.

Costs

17 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Hessisches Finanzgericht, by order of 28 July 1993, hereby rules:

1. Heading 61.08 of the Combined Nomenclature of the Common Customs Tariff, as amended by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff and by Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, must be interpreted as meaning that not only sets of two knitted garments which, according to their outward appearance, are to be worn exclusively in bed but also sets used mainly for that purpose must be considered to be pyjamas.

2. The fact that it is also possible to wear in bed a set of two knitted garments, according to the generally accepted practice in the Member State concerned at the time of customs clearance, is not sufficient for it to be classified as pyjamas.