61988J0153

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Common commercial policy - Rules governing imports of products originating in non-member countries which are parties to the Multifibre Arrangement - System of generalized tariff preferences for developing countries - Importation of tents from South Korea - Application of tariff preference ceilings and quantitative limits - Inclusion of accessories in the weight of the tents for the calculation of the tonnage imported

( Council Regulations Nos 3589/82 and 3378/82 )

With regard to tents imported from South Korea during the period of application of Regulation No 3589/82 on imports of products originating in non-member countries which are parties to the Multifibre Arrangement and Regulation No 3378/82 applying generalized tariff preferences to textile products originating in developing countries, the weight of the tents must be calculated by taking account of their accessories such as poles or pegs both for the determination of the quantitative limits and for the determination of the tariff preference ceilings .

In Joined Cases C-153/88 to C-157/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Eighth Chamber of the cour d' appel ( Court of Appeal ), Versailles ( France ), for a preliminary ruling in the criminal proceedings against

G . Fauque

party bearing civil liability : Tramar SNTC

Jao Chang Thomas Shin

party bearing civil liability : Daewoo SARL

Jacques Desombre

party bearing civil liability : Tramar SNTC

Alain Diome

party bearing civil liability : Kuehne et Nagel

Fritze Schultze

party bearing civil liability : Kuehne et Nagel

Civil plaintiff : direction nationale des enquêtes douanières ( National Customs Investigation Directorate ),

on the interpretation of Council Regulations Nos 2894/79 of 10 December 1979, 3589/82 of 23 December 1982 and 3762/83 of 19 December 1983 on the importation of textile products originating in developing countries,

THE COURT ( Fourth Chamber )

composed of : C . N . Kakouris, President of Chamber, T . Koopmans and M . Diez de Velasco, Judges,

Advocate General : F . G . Jacobs

Registrar : B . Pastor, Administrator

after considering the observations submitted on behalf of

the defendants in Cases C-156/88 and C-157/88, by Mireille Famchon, avocat à la Cour,

the Government of the French Republic, by Edwige Belliard, acting as Agent,

the Commission of the European Communities, by Guido Berardis, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the parties in Case C-154/88, represented by M . Menant, of the parties in Case C-156/88 and C-157/88, represented by Mireille Famchon, avocat à la Cour, and of the Commission at the hearing on 10 October 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 21 November 1989,

gives the following

Judgment

1 By judgments of 13 June 1988, which were received at the Court on 27 June 1988, the cour d' appel de Versailles referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Council Regulation ( EEC ) No 2894/79 of 10 December 1979 ( Official Journal L 332, p . 1 ), Council Regulation ( EEC ) No 3589/82 of 23 December 1982 ( Official Journal L 374, p . 106 ) and Council Regulation ( EEC ) No 3762/83 of 19 December 1983 ( Official Journal L 380, p . 1 ) on the importation of textile products originating in developing countries .

2 Those questions arose in five cases in which the French customs authorities summoned several importers to appear before the tribunal correctionnel ( Criminal Court ), Nanterre, charged with the offence of making false declarations or engaging in fraudulent practices in regard to imports, the effect of which was to evade restrictive measures and payment of customs duties, value-added tax and other taxes, which occurred in regard to the importation of camping tents from South Korea in 1983 .

3 The main proceedings were concerned with the fact that under the Community regulations there were quantitative limits and ceilings in respect inter alia of camping tents . Those limits and ceilings were expressed in terms of weight ( tonnes ). Consequently, if the accessories which normally accompany the fabric of a camping tent, namely the poles, pegs, ropes or other accessories, were included in the calculation, the quantitative limits and ceilings would be reached more quickly . Thus, quantities in excess of those limits could not be imported and those in excess of the ceilings would be admitted only at the normal rate of customs duty .

4 By judgment of 25 June 1987, the tribunal correctionnel de Nanterre, decided to stay the proceedings in the five cases . On 2 July 1987, the direction nationale des enquêtes douanières, the civil plaintiff, brought an appeal against that judgment before the cour d' appel de Versailles, which, in an interlocutory judgment in Shin Case 154/88, referred to the Court a question ( in addition to the question already referred to the Court by the tribunal correctionnel de Nanterre ) as to "whether, for the determination of customs duty payable on the import of tents originating in Korea, account should be taken only of the weight of the textile material or the total weight of the textile material together with the accessories ".

5 Reference is made to the Report for the Hearing for a fuller account of the facts and of the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

6 The main proceedings are concerned essentially with the question whether or not, in calculating the weight which determines the import quota and the customs duties upon importation, the accessories which normally accompany the textile part of a camping tent are to be included . Kuehne et Nagel, the party bearing civil liability in Cases C-156/88 and C-157/88, and Daewoo SARL, the party bearing civil liability in Case C-154/88, maintain that since the import rules at issue come within the ambit of the Multifibre Arrangement, the decisive factor is the weight of the textile material involved and not that of the non-textile accessories . On the other hand, the Commission considers that, in determining the quantitative limits and the ceilings for tariff preferences, account must be taken of accessories in calculating the weight of the tents . The French Government puts forward a similar view .

7 It should be observed in that regard that at the time when the imports took place, that is to say, in February 1983, the situation was governed, on the one hand, by Council Regulation No 3589/82 of 23 December 1982 on common rules for imports of certain textile products originating in third countries and, on the other, by Council Regulation ( EEC ) No 3378/82 of 8 December 1982 applying generalized tariff preferences for 1983 to textile products originating in developing countries ( Official Journal L 363, p . 92 ). Consequently, although the question referred to the Court does not mention it, the latter regulation must also be interpreted .

8 It should first be noted that neither Regulation No 3589/82 nor Regulation No 3378/82 contains specific provisions as to whether account is to be taken of accessories in calculating the weight of tents . However, it follows from the provisions of those regulations that the definition of a product for the purposes of applying the quantitative limits and tariff preference ceilings must be carried out by reference to the nomenclature of the Common Customs Tariff and to the nomenclature of goods for the external trade statistics of the Community and the statistics of trade between Member States ( Nimexe ).

9 The customs nomenclature in force at the time when the products at issue were imported must therefore be interpreted . In the version of the Common Customs Tariff then in force, laid down in Council Regulation ( EEC ) No 3000/82 of 19 October 1982, amending Regulation ( EEC ) No 950/68 ( Official Journal L 318, p . 1 ), tents fell under subheading 62.04 B II of the Common Customs Tariff and, in Commission Regulation ( EEC ) No 3407/82 of 16 December 1982 amending the nomenclature of goods for the external trade statistics of the Community and the statistics of trade between Member States ( Official Journal L 366, p . 1 ), under code 62.04-73, neither of those subheadings providing a definition of the term "tents ".

10 It should be pointed out that the Court considers that 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 ( see the judgments of 8 December 1977 in Case 62/77 Carlsen-Verlag GmbH v Oberfinanzdirektion Koeln (( 1977 )) ECR 2343 and of 23 March 1972 in Case 36/71 Henck v Hauptzollamt Emden (( 1972 )) ECR 187 ).

11 Rule 3(b ) of the General Rules for the interpretation of the Common Customs Tariff provides that "mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets ... shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable ". It should next be observed that a tent normally consists of not only of a piece of fabric but also of accessories such as poles, pegs or ropes, without which it would be impossible to put it up or use it . Those components are complementary to each other and together they form a whole the components of which it would be difficult to sell separately . Since the material which gives the goods their essential character is the textile part of the tent, they were classified under subheading 62.04 B II of the Common Customs Tariff, which does not exclude accessories from the concept of a tent .

12 It should be added that in negotiating the agreements on trade in textile products the Community took account of the actual volume of imports, in accordance with statistics drawn up on the basis of the Nimexe nomenclature and the nomenclature of the Common Customs Tariff . It follows that the quantities laid down in the agreements for fixing the quotas took account of the weight of the accessories .

13 The answer to the questions referred to the Court should therefore be that both for the determination of the quantitative limits laid down in Regulation No 3589/82 and for the determination of the tariff preference ceilings laid down in Regulation No 3378/82 concerning tents imported from South Korea, the weight of the tents must be calculated by taking account of their accessories .

Costs

14 The costs incurred by French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since 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 .

On those grounds,

THE COURT ( Fourth Chamber ),

in answer to the questions submitted to it by the Eighth Chamber of the cour d' appel, Versailles, by judgment of 13 June 1988, hereby rules :

Both for the determination of the quantitative limits laid down in Council Regulation ( EEC ) No 3589/82 and for the determination of the tariff preference ceilings laid down in Council Regulation ( EEC ) No 3378/82 concerning tents imported from South Korea, the weight of the tents must be calculated by taking account of their accessories .