1 BY AN ORDER OF 19 APRIL 1977 , WHICH WAS RECEIVED AT THE COURT ON 17 MAY 1977 , THE BUNDESFINANZHOF REQUESTED PURSUANT TO ARTICLE 177 OF THE EEC TREATY AN INTERPRETATION OF NOTE 5 TO CHAPTER 49 OF THE COMMON CUSTOMS TARIFF .
THAT REQUEST FOR AN INTERPRETATION WAS MADE IN THE CONTEXT OF A DISPUTE CONCERNING THE TARIFF CLASSIFICATION OF BOOKS FOR CHILDREN ENTITLED ' TEDDYBAR , TEDDYBAR ' , ' DIE MAUSUHR ' AND ' MEINE FREUNDE ' , IMPORTED FROM JAPAN INTO THE FEDERAL REPUBLIC OF GERMANY .
BY AN OPINION OF 30 MARCH 1973 , THE OBERFINANZDIREKTION KOLN CLASSIFIED THESE BOUND BOOKS , EACH OF WHICH CONSISTS OF FIVE TEAR-RESISTENT SHEETS OF PAPERBOARD ALMOST ENTIRELY COVERED BY COLOURED ILLUSTRATIONS ACCOMPANIED BY CAPTIONS OR SHORT PASSAGES OF TEXT , UNDER TARIFF HEADING 49.03 , WHICH IS WORDED AS FOLLOWS : ' CHILDREN ' S PICTURE BOOKS AND PAINTING BOOKS ( BOUND OTHERWISE THAN IN PAPER ) ' .
THE IMPORTER HAS CONTESTED THIS CLASSIFICATION AND MAINTAINS THAT THE BOOKS IN QUESTION ARE PUBLICATIONS THE SALIENT FEATURE OF WHICH IS THE TEXT , WHICH ARE INTENDED TO PROVIDE EDUCATIONAL AND RECREATIONAL READING MATERIAL AND WHICH COME UNDER TARIFF HEADING 49.01 : ' PRINTED BOOKS , BOOKLETS , BROCHURES , PAMPHLETS AND LEAFLETS ' .
2 ACCORDING TO NOTE 5 TO CHAPTER 49 : ' FOR THE PURPOSES OF HEADING NO 49.03 , THE EXPRESSION ' CHILDREN ' S PICTURE BOOKS ' MEANS BOOKS FOR CHILDREN IN WHICH THE PICTURES DOMINATE AND ARE SUBSIDIARY TO THE TEXT ' .
3 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 .
4 THE WORDING OF HEADING 49.01 MUST BE UNDERSTOOD AS MEANING THAT A PRODUCT DISPLAYING THE CHARACTERISTICS OF THE PRODUCT IN DISPUTE CANNOT BE CLASSIFIED UNDER THE HEADING ' BROCHURES ' , WHICH CONSIST OF A SMALL NUMBER OF PAGES OF TEXT ALONE , UNLESS , THEY ARE DESCRIBED AS ' ILLUSTRATED ' , OR THE HEADING ' IMPRIMES SIMILAIRES ' ( SIMILAR PRINTED MATERIAL ).
THAT WORDING , WHERE IT REFERS WITHOUT FURTHER QUALIFICATION TO ' BOOKS ' , MUST BE INTERPRETED AS MEANING PUBLICATIONS IN WHICH THE TEXT IN PROSE OR VERSE CONVEYS THE INFORMATION OR NARRATIVE WHICH IT IS INTENDED TO BRING TO THE ATTENTION OF THE READER .
THE SALIENT FEATURE OF A PUBLICATION OF THE TYPE IN QUESTION , NAMELY THAT IT IS AN ' ILLUSTRATED ' OR ' PICTURE ' BOOK , ACCORDINGLY DOES NOT CORRESPOND TO THE WORDING OF HEADING 49.01 .
5 TARIFF HEADING 49.03 REFERS TO ' CHILDREN ' S PICTURE BOOKS ( BOUND OTHERWISE THAN IN PAPER ) ' .
THE INTERPRETATION OF THIS WORDING CORRESPONDS TO THE CHARACTER OF A PUBLICATION SUCH AS THAT WHICH IS IN DISPUTE , WHICH CLEARLY FALLS WITHIN THE DEFINITION OF ' CHILDREN ' S PICTURE BOOKS ( BOUND OTHERWISE THAN IN PAPER ) ' .
THE INTERPRETATION OF THE WORDING OF TARIFF HEADING 49.03 , READ IN ISOLATION , IS ACCORDINGLY NOT SUCH AS TO RAISE DOUBTS AS TO THE CLASSIFICATION OF THE PRODUCT IN QUESTION UNDER THAT HEADING .
6 THE COMPLICATION IN THIS CASE IS CAUSED BY THE WORDING OF NOTE 5 TO CHAPTER 49 ON THE INTERPRETATION OF HEADING 49.03 .
THE WORDING OF THAT NOTE IN FACT PROMPTED THE BUNDESFINANZHOF TO SUBMIT THE FOLLOWING QUESTION :
' IS THE QUESTION WHETHER THE PICTURES DOMINATE TO BE DECIDED PURELY QUANTITATIVELY ON A VISUAL BASIS OR IS THE ( FOR EXAMPLE , EDUCATIONAL ) SIGNIFICANCE OF THE PICTURES TO BE COMPARED TO THAT OF THE TEXT? IS IT THEREFORE TO BE UNDERSTOOD THAT THE PICTURES ' ' ARE NOT SUBSIDIARY TO THE TEXT ' ' ONLY IF ANY NORMAL PERSON LOOKING AT THE PICTURES CAN GRASP THEIR ESSENTIAL MEANING EASILY EVEN WITHOUT THE TEXT OR ARE THE PICTURES SUBSIDIARY TO THE TEXT WHENEVER THE TEXT MAKES IT APPRECIABLY EASIER TO UNDERSTAND THE PICTURES?
'
7 IT IS CLEAR FROM THE WORDING OF THIS QUESTION THAT IT IS CONCERNED TO ESTABLISH WHETHER A PUBLICATION INTENDED FOR CHILDREN OF LESS THAN SCHOOL AGE IN WHICH THE PICTURES COVER ALMOST THE WHOLE PAGE AND CONSTITUTE THE DOMINANT INTEREST MAY BE CLASSIFIED UNDER THE GENERAL HEADING 49.01 AND NOT UNDER THE SPECIAL TARIFF HEADING 49.03 IF THE TEXT DOES NOT MERELY EMPHASIZE ELEMENTS WHICH MAY BE APPREHENDED VISUALLY BUT SUPPLEMENTS THE PICTURE WITH IDEAS WHICH THE LATTER ALONE DOES NOT SUGGEST .
8 IT IS CLEAR FROM THE WORDING OF NOTE 5 TO CHAPTER 49 THAT THE WRITTEN TEXT COULD EXCLUDE A CHILDREN ' S PICTURE BOOK , BOUND OTHERWISE THAN IN PAPER , FROM HEADING 49.03 ONLY IF IT WERE IN THE FORM OF A CONTINUOUS NARRATIVE AND NOT MERELY EPISODIC AND IF IT CONTAINED PICTURES ILLUSTRATING EVENTS DEALT WITH IN THE NARRATIVE ITSELF .
PICTURES ARE SUBSIDIARY TO THE TEXT ONLY IF THE ESSENTIAL MEANING OF THE BOOK REPOSES IN THE TEXT WHICH THE PICTURES ARE INTENDED TO ILLUSTRATE .
9 IT IS CLEAR FROM THE WORDING OF TARIFF HEADING 49.03 , SUPPLEMENTED BY NOTE 5 TO CHAPTER 49 , THAT CHILDREN ' S PICTURE BOOKS , BOUND OTHERWISE THAN IN PAPER , MUST BE EXCLUDED FROM THAT HEADING ONLY IF IT IS CLEAR THAT THE TEXT IS OF INHERENT INTEREST , IS FULLY VALID OF ITSELF AND IS SELF-SUFFICIENT INDEPENDENTLY OF THE ILLUSTRATIONS .
IN VIEW OF THE FOREGOING , TARIFF HEADING 49.03 AND NOTE 5 TO CHAPTER 49 MUST BE INTERPRETED AS REFERRING TO CHILDREN ' S PICTURE BOOKS BOUND OTHERWISE THAN IN PAPER IN WHICH THE PICTURES COVER ALMOST THE WHOLE PAGE AND CONSTITUTE THE ESSENTIAL MEANS BY WHICH THE MEANING IS CONVEYED WHILST THE SHORT CAPTIONS SERVE MERELY A SIMPLE EXPLANATORY PURPOSE .
10 ALTHOUGH A COURT MAY HAVE REGARD ONLY TO PROVISIONS IN FORCE AT THE TIME OF THE EVENTS GIVING RISE TO THE DISPUTE , IT IS NOT WITHOUT INTEREST , ALTHOUGH THE POINT CANNOT FORM PART OF THE FOREGOING REASONING , THAT ON GROUNDS OF LINGUISTIC HARMONIZATION NOTE 5 TO CHAPTER 49 WAS AMENDED BY A CORRIGENDEM OF 23 JUNE 1976 IN SUCH A WAY AS TO CONFIRM THE DECISION WHICH HAS BEEN REACHED .
COSTS
11 THE 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 ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BUNDESFINANZHOF , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE BUNDESFINANZHOF BY AN ORDER OF 19 APRIL 1977 , HEREBY RULES :
TARIFF HEADING 49.03 AND NOTE 5 TO CHAPTER 49 MUST BE INTERPRETED AS REFERRING TO CHILDREN ' S PICTURE BOOKS BOUND OTHERWISE THAN IN PAPER IN WHICH THE PICTURES COVER ALMOST THE WHOLE PAGE AND CONSTITUTE THE ESSENTIAL MEANS BY WHICH THE MEANING IS CONVEYED WHILST THE SHORT CAPTIONS SERVE MERELY A SIMPLE EXPLANATORY PURPOSE .
