JUDGMENT OF 11. 7. 1980 — CASE 798/79 HAUPTZOLLAMT KÖLN-RHEINAU v CHEM-TEC

In Case 798/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof [Federal Finance Court] for a preliminary ruling in the action pending before that Court between

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts giving rise to the case, the course of the procedure and the observations presented under Article 20 of the Statute of the Court of Justice of the EEC may be summarized as follows :

I — Facts and written procedure

On 29 June 1972 8500 filter masks from the United States received customs clearance from the competent office at Cologne-Rheinauhafen for the account of the undertaking, Chem-Tec. The customs office classified the goods under tariff heading 90.18 of the Common Customs Tariff:

Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; artificial respiration, ozone therapy, oxygen therapy, aerosol therapy or similar apparatus; breathing appliances (including gas masks and similar respirators).

By a corrective classification decision of 8 August 1973 the customs office classified the masks in question under tariff heading 59.03:

“Bonded fibre fabrics, similar bonded yarn fabrics, and articles of such fabrics, whether or not impregnated or coated”

and required Chem-Tec to pay customs duty of DM 1517.20, the rate being higher for goods coming under heading 59.03 than for those under heading 90.18.

Chem-Tec's objection to the corrective classification decision was rejected on 23 November 1973 and Chem-Tec then brought an action before the Finanzgericht [Finance Court] Düsseldorf, which ruled in its favour. On 10 June 1977 the Hauptzollamt Köln-Rheinau lodged an appeal on a point of law with the Bundesfinanzhof.

The Bundesfinanzhof took the view that the outcome of the dispute depended on the interpretation of provisions of Community law and more especially of the Common Customs Tariff and by an order of 16 October 1979 decided to stay the proceedings and to refer the following question to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling:

“Must the concept of ‘breathing appliances (including gas masks and similar respirators)’ within the meaning of tariff heading 90.18 of the Common Customs Tariff be interpreted as meaning that it also includes simple filter masks which cover only nose and mouth, provide protection from poisonous chemicals, dust, smoke and fog, and are intended to be used once?”

Owing to the oval shape which fits the curves of the face, to their side-straps and to a metal clip intended to be pressed down on the bridge of the nose, these appliances are easy to wear, let the air through easily and therefore ensure easy breathing. According to Chem-Tec's statements they are a crude type of filter masks for protection against dust, consisting of a sheet of long-fibred, multiple-ply paper and are intended to be used once only; they are thrown away once their filtering power is exhausted (after eight hours at the most).

The order making the reference was registered at the Court on 9 November 1979.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC Chem-Tec, represented by Harald Ditges of the Bonn Bar, and the Commission of the European Communities, represented by Manfred Beschel, a member of its Legal Department, acting as Agent, submitted written observations.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the case to the First Chamber in accordance with Article 95 of the Rules of Procedure.

II — Summary of the written observations submitted to the Court

1. Observations submitted by Chem-Tec

Chem-Tec explains why in its view, as acknowledged by the Finanzgericht Düsseldorf, there is nothing to prevent the articles in question being classified under tariff heading 90.18.

The fact that the cloth masks used by surgeons and nurses while operating on and treating patients are not regarded as breathing appliances or gas masks is no bar. Those masks are intended in fact to protect not the person wearing them, but the patient.

The very simple makeup of the dust masks is equally not a bar to their being regarded as breathing appliances. It is their function which is important. Their complexity depends on their specialized nature. For example, there are masks for protection against irritating coarse dust, against fine inert dust, against hydrofluoric acid and fine dust, against mercury vapour and fine dust and so on. The extent of the range shows the care with which dust masks are made and the improvement which they show as against rubber masks.

Chem-Tec annexes documents showing that in France the masks are classified under tariff heading 90.18.

2. Observations submitted by the Commission

The Commission is of the opinion that the main features of tariff heading 90.18 are twofold:

The article must have a specific function, either to permit or to facilitate breathing;

It must present the features of an appliance within the meaning of the tariff classification.

According to the wording of tariff heading 90.18 in the different language versions all appliances not having any other specific description applied to them and whose function is to permit or to facilitate breathing must be classified under this heading. That does not contradict the Explanatory Notes to the Nomenclature of the Customs Cooperation Council; the expressions “breathing appliances” and “gas masks” do not have any particular classificatory value.

It is more difficult to identify with accuracy the second criterion for classification. The Explanatory Notes state in Chapter 90, under the heading “General Considerations” :

“The present Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterized by their high finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialized technical and industrial purposes (measuring and checking, observation, etc.) or for medical purposes”.

‘It follows from that that the articles covered’ by Chapter 90 are for the most part technically complex rather than technically simple.

Gas masks, which represent the typical protective breathing appliance, are in general rather complex as well. However, apparently having regard to the fact that the wording of tariff heading 90.18 does not only refer to typical gas masks but also to breathing appliances “of all kinds” ;,the Explanatory Notes state:

“A more simple type protects only the mouth and the nose; it consists of a sheath held in place by one or more elastic ribbons and contains a filtering or absorbent material (asbestos wool, sponge rubber, cotton wadding, etc., which may be impregnated or not) easily replaced after use”.

This establishes the minimum for what is required for a breathing appliance from the technical point of view. According to those notes, in fact, the following products are not within tariff heading 90.18:

“— Masks of textile materials, used by surgeons, nurses, etc., operating upon or attending to a patient (heading 62.05). “— Masks for protection against dust or particles of materials, consisting of a simple wire mesh sheath with no filtering device other than a sheet of gauze (Section XV). — Masks for administering anaesthetics (heading 90.17).”

That list of articles was later added to by the Customs Cooperation Council in October 1979:

Masks for protection against dust, odours etc., not equipped with a replaceable filter, but consisting of several layers of bonded fibre fabric, whether or not treated with activated carbon or having a central layer of synthetic fibres (heading 59.03)”.

The Explanatory Notes are based on the following considerations: a filtering material, whether shaped or not, does not constitute an appliance within the meaning of the Common Customs Tariff, even though it actually protects breathing. There must be a further component, namely an apparatus designed to contain a filter which may be replaceable.

The Commission is therefore of the opinion that the products in question must be classified according to their constituent material and that they come within heading 59.03 of the Common Customs Tariff.

Chem-Tec, represented by H. Ditges of the Bonn Bar, and the Commission of the European Communities represented by M. Beschel, presented oral argument at the sitting held on 22 May 1980.

The Advocate General delivered his opinion at the sitting on 19 June 1980.

Decision

1. By an order of 16 October 1979 received at the Court on 9 November 1979 the Bundesfinanzhof referred to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling a question on the interpretation of the expression “breathing appliances (including gas masks and similar respirators)” occurring in heading 90.18 of the Common Customs Tariff.

2. That question arose during the course of a dispute over the classification of a consignment of 8500 filter masks from the United States, cleared through customs on 29 June 1972 by the competent office at Köln-Rheinauhafen for the account of the undertaking Chem-Tec. At first the customs office classified the goods under tariff heading 90.18: Mechanotherapy appliances; massage apparatus; psychological aptitude-testing apparatus; artificial respiration, ozone therapy, oxygen therapy, aerosol therapy or similar apparatus; breathing appliances (including gas masks and similar respirators). Then, by a corrective decision of 8 August 1973 the customs office classified the masks in question under tariff heading 59.03: Bonded fibre fabrics, similar bonded yarn fabrics, and articles of such fabrics, whether or not impregnated or coated and demanded payment from Chem-Tec of the sum of DM 1517.20 as customs duty, the rates being higher for goods coming under heading 59.03 than for those under heading 90.18.

3. The objection which Chem-Tec made against the corrective classification decision was rejected and Chem-Tec then brought an action before the Finanzgericht Düsseldorf, which ruled in its favour, holding that the tariff classification was determined by the function of the masks, so that tariff heading 90.18 was the correct heading. The Hauptzollamt Köln-Rheinau lodged an appeal on a point of law before the Bundesfinanzhof against the judgment of the Finanzgericht.

4. The question referred to the Court by the Bundesfinanzhof is worded as follows :

“Must the concept of ‘breathing appliances (including gas masks and similar respirators)’ withing the meaning of tariff heading 90.18 of the Common Customs Tariff be interpreted as meaning that it also includes simple filter masks which cover only nose and mouth, provide protection from poisonous chemicals, dust, smoke and fog, and are intended to be used once?”

5. Owing to their oval shape which fits the curves of the face, to their side-straps and to a metal clip intended to be pressed down on the bridge of the nose, the masks in question constitute appliances which are easy to wear, let the air through easily and therefore ensure easy breathing. According to Chem-Tec's statements they are a crude type of filter masks for protection against dust, consisting of a sheet of long-fibred, multiple-ply paper and are intended to be used once only; they are thrown away once their filtering power is exhausted (after eight hours at the most).

6. The Commission is of the opinion that in order to come within tariff heading 90.18 an article must not only have a specific function, that of permitting or facilitating breathing, but also constitute an “appliance” within the meaning of the tariff classification.

7. It relies on Chapter 90 of the Explanatory Notes to the Nomenclature of the Customs Cooperation Council, according to which the Chapter ... There are certain exceptions to the general rule that the instruments and apparatus falling within this Chapter are high precision types. For example, the Chapter also covers ordinary goggles (heading 90.04), simple magnifying glasses and non-magnifying periscopes (heading 90.03), divided scales and school rules (heading 90.16) and fancy hygroscopes irrespective of their accuracy (heading 90.23)”.

“... covers a wide variety of instruments and apparatus which are, as a rule, characterized by their high finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialized technical and industrial purposes (measuring and checking, observation, etc.) or for medical purposes.

8. It is evident both from the wording of tariff heading 90.18 and from the Explanatory Notes above that the criterion of simplicity cannot be adopted to exclude an appliance from Chapter 90 of the Common Customs Tariff.

9. This conclusion is supported by a reading of the Explanatory Notes on tariff heading 90.18 as they existed before October 1979, which state that that heading covers not only typical gas masks, but also breathing appliances “of all kinds”, adding:

“A more simple type protects only the mouth and the nose; it consists of a sheath held in place by one or more elastic ribbons, and contains a filtering or absorbent material (asbestos wool, sponge rubber, cotton wadding, etc., which may be impregnated or not) easily replaced after use”.

10. The Commission relies on the fact that the list of products not covered by tariff heading 90.18 was added to as follows by the Customs Cooperation Council in October 1979, to support the conclusion that the masks in question come withing heading 59.03:

“Masks for protection against dust, odours, etc., not equipped with a replaceable filter, but consisting of several layers of bonded fibre fabric, whether or not treated with activated carbon or having a central layer of synthetic fibres (heading 59.03)”.

11. However, as the Court stated in its judgment of 15 February 1977 in Joined Cases 69 and 70/76 (Dittmeyer [1977] ECR at p. 238), although the opinions of the Committee on Common Customs Tariff Nomenclature constitute an important means of ensuring the uniform application of the Common Customs Tariff by the customs authorities of the Member States and as such may be considered as a valid aid to the interpretation of the tariff, nevertheless such opinions do not have legally binding force so that, where appropriate, it is necessary to consider whether their content is in accordance with the actual provisions of the Common Customs Tariff and whether they alter the meaning of such provisions.

12. The same conclusion must apply in regard to the Explanatory Notes of the Customs Cooperation Council.

13. It may be seen from the very wording of heading 90.18 that the expression “breathing appliances” must be understood as being a wide category which includes the more restricted one of “gas masks”. It is true that the appliance in question, of which samples have been submitted to the Court, is a simple device but its simplicity alone cannot exclude it from the relevant heading particularly since it fulfils well the specific purpose of a breathing appliance, which is to protect the mouth and the nose and to permit or to facilitate breathing.

14. For that reason the answer which must be given to the question referred to the Court by the Bundesfinanzhof is that the expression “breathing appliances (including gas masks and similar respirators)” occurring in tariff heading 90.18 of the Common Customs Tariff must be interpreted as meaning that it also includes simple filter masks which, although covering only the mouth and nose, serve as protection against toxic chemical products, dust, smoke and fog and which are intended to be used once only.

Costs

15. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As the proceedings are, in so far as the parties to the main action 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 (First Chamber) in answer to the question submitted to it by the Bundesfinanzhof by order of 16 October 1979, hereby rules:

1 Translator's note: The English version of the tariff heading docs not in fact include these words.