Wiener S.I. GmbH v Hauptzollamt Emmerich.

• Jurisdiction: European Union
• Celex Number: 61995CC0338
• ECLI: ECLI:EU:C:1997:352
• Docket Number: C-338/95
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 10 July 1997

Important legal notice

|

61995C0338

Opinion of Mr Advocate General Jacobs delivered on 10 July 1997. - Wiener S.I. GmbH v Hauptzollamt Emmerich. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Tariff heading - Nightdress. - Case C-338/95.

European Court reports 1997 Page I-06495

Opinion of the Advocate-General

1 In 1993 in Neckermann Versand (1) this Court was asked by the Hessisches Finanzgericht whether certain women's garments were to be classified for customs purposes as pyjamas. The question was in essence whether, in order to be considered to be pyjamas, it was necessary that the garments in question were, to judge from their appearance, to be worn exclusively in bed, or whether it was sufficient that they might, in addition to other uses, also be worn in bed. The Court's answer was to the effect that not only garments which, to judge from their appearance, were to be worn exclusively in bed but also garments used mainly for that purpose must be considered to be pyjamas.

2 The present case raises a related issue. The German Bundesfinanzhof (Federal Finance Court) has referred to the Court the question whether the term `nightdresses' within the meaning of tariff subheading 60.04 B IV b 2 bb of the 1985 Common Customs Tariff (2) is to be interpreted as covering exclusively `other' under garments which, in view of their characteristics, are clearly intended only to be worn as night wear, or whether that term is to be interpreted as also covering products which, on the basis of their appearance, are intended mainly, but not exclusively, to be worn in bed.

3 The subheading in issue reads as follows:

`60.04 Under garments, knitted or crocheted, not elastic nor rubberized:

... B. Other: ... IV. Other: ... b) Of synthetic textile fibres: ... 2. Women's, girls' and infants': ... bb) Nightdresses ...'.

The main proceedings

4 The question is raised in proceedings between Wiener S.I. GmbH (hereinafter `Wiener') and the Hauptzollamt (Principal Customs Office) Emmerich. Those proceedings concern imports of textile garments from Thailand which took place in 1985. Wiener declared those garments as `women's nightdresses' under tariff subheading 60.04 B IV b 2 bb of the Common Customs Tariff, and the garments were released into free circulation on that basis and recorded against the tariff quota for nightdresses. However, subsequent examination of the imports led the Hauptzollamt to the view that the goods were `dresses' coming under tariff subheading 60.05 A II b 4 cc 22; (3) it therefore imposed the corresponding post-clearance duty, which was higher.

5 Wiener appealed against that decision to the Finanzgericht (Finance Court), which established that the goods in issue were lightweight knitted garments (mixed cotton fabric; 65% polyester, 35% cotton; cotton) intended to cover the upper body, broad cut, `submarine' neckline, short-sleeved or sleeveless, extending down to the knee or thigh, sometimes bearing particular printed images and sometimes belted. Independent specialists regarded the garments, in view of their characteristics or use, as being exclusively or primarily nightdresses. However, according to the factual assessment made by the Finanzgericht the cut and presentation suggested that the products were also worn as leisure wear. The Finanzgericht therefore excluded customs tariff classification as `nightdresses' on the ground that only garments that are exclusively worn in bed can be so classified. In so doing it relied on an earlier judgment of the Bundesfinanzhof (4) in which it was held that `nightdresses' within the meaning of heading 61.08 of the 1989 Common Customs Tariff (5) had to be clearly identifiable as being exclusively intended as night wear. Wiener's appeal to the Finanzgericht was therefore unsuccessful.

6 Wiener then lodged an appeal on a point of law with the Bundesfinanzhof, which indicates in the order for reference that it would be inclined to confirm the decision of the Finanzgericht were it not for this Court's judgment in Neckermann Versand. There, as mentioned above, the Court ruled that the heading in question `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 Bundesfinanzhof asks whether the present case should be resolved along the same lines in view of the fact that `pyjamas' are listed in the Common Customs Tariff next to `nightdresses' (even though the present case concerns the tariff position in 1985 whereas Neckermann Versand concerned the tariff position in 1988 and 1989). It therefore made the present reference.

7 Before considering that question I propose to consider a general problem concerning the cooperation between national courts and this Court under Article 177 of the Treaty.

Division of tasks under Article 177 of the Treaty

8 The present case in my view clearly raises the broader issue of the appropriate division of tasks between this Court and national courts. My starting-point on that issue is as follows.

9 On the one hand it is clear that, on any reading of the Court's case-law on references concerning questions of interpretation of Community law, the reference by the Bundesfinanzhof is admissible. It raises a question concerning the interpretation to be given to a subheading of the Common Customs Tariff, incorporated in a Council regulation, which is an act of one of the institutions. On numerous occasions this Court has interpreted the successive regulations on the Common Customs Tariff with a view to achieving a uniform interpretation of their provisions, indispensable not only because they are pieces of Community legislation directly applicable in all the Member States but also in order to safeguard the uniform application of the Common Customs Tariff and thus to avoid deflections of trade. Indeed, by virtue of the third paragraph of Article 177 it would seem that the Bundesfinanzhof was under an obligation to refer the issue of nightdresses to this Court since its judgment will not be open to appeal. The order for reference is moreover excellently reasoned: it sets out the relevant facts and legal issues in an exemplary fashion.

10 Nevertheless it is necessary in my view to address the question whether it is appropriate - and especially whether it is still appropriate today, in view of developments which I shall mention below - for the Court to be asked to rule in every case where a question of interpretation of Community law may arise.

11 The present case is a perfect example of a case where it may be questioned whether it is appropriate for this Court to be involved. A solution may lie in a reconsideration of the respective roles of this Court in interpreting the rules of Community law and of the national courts in applying those rules to the facts of a particular case.

12 From the very first references which the Court received it has emphasized that its jurisdiction under Article 177 of the Treaty is limited to the interpretation of the rules of Community law, and that it has no jurisdiction with respect to the facts of cases. (6) The facts (and the relevant rules of national law) must be established by the referring court, and it is that court which decides the case by applying, to the extent necessary, the interpretation which this Court has given to the relevant rules of Community law.

13 However, the Court's approach to that distinction is pragmatic; it is not characterized by excessive formalism. Frequently, for example, a national court asks the Court whether a particular rule of national law is compatible with Community law, a question which the Court cannot answer as such, but which it will normally reformulate as a question of interpretation of Community law. (7) That practice is guided by the principle that the Court should assist the referring court as much as possible, by giving a reply which will enable that court to give judgment. Further, the Court's insistence, especially in recent years, on the national court's duty to inform it of the legal and factual context of the case referred (8) is doubtless inspired by the same principle. It is not the Court's task to deliver preliminary rulings containing only abstract interpretations of Community law rules, which may be of little use for the resolution of the actual dispute. (9) It is rather the Court's task to give an interpretation which is tailored to the needs of the referring court.

14 There can be no doubt that, in principle, that approach is wholly sound. It is consonant with the spirit of cooperation between this Court and the national courts, with the Court's task of adjudicating rather than giving non-binding legal opinions, and with the requirement of uniformity in the interpretation and application of Community law.

15 None the less, the Court's approach has the drawback of attracting a virtually infinite number of questions of interpretation. Any `application' of a rule of law can be regarded as raising a question of `interpretation' - even if the answer to the question of interpretation may seem obvious. (10) Every national court confronted with a dispute turning on the application of Community law can refer a question which, if more or less properly phrased, this Court is bound to answer after the entire proceedings have taken their course. That will be so even where the question is similar in most respects to an earlier question; the referring court (or the parties' lawyers) may always seek to distinguish the facts of the cases. It will also be so even where the question could easily, and with little scope for reasonable doubt, be answered on the basis of the existing case-law; again the facts may be different, or it may be that a particular condition imposed in...