1 By order of 25 June 1992, received at the Court on 20 July 1992, the Bundesfinanzhof (Federal Finance Court) (Germany) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Category 161 of Annex II to Council Regulation (EEC) No 3563/84 of 18 December 1984 applying generalized tariff preferences for 1985 to textile products originating in developing countries (OJ 1984 L 338, p. 98, hereinafter "the Regulation").
2 That question was raised in proceedings between Lloyd-Textil Handelsgesellschaft (hereinafter "Lloyd-Textil") and Hauptzollamt (Principal Customs Office) Bremen-Freihafen (hereinafter "the Hauptzollamt") relating to the importation by Lloyd-Textil in 1985 of a consignment of men' s linen windcheaters from China and South Korea. The Hauptzollamt took the view that customs duties were payable on imports of those products; Lloyd-Textil disagreed, contending that the imported products qualified for suspension of duties pursuant to the Regulation.
3 Under Article 1 of the Regulation customs duties are suspended in respect of textile products from developing countries imported into the Community in 1985.
4 The products qualifying for the suspension are listed in the Annexes to the Regulation, under the Nimexe code assigned to them in the Community customs nomenclature, the 1985 edition of which is contained in Commission Regulation (EEC) No 3529/84 of 14 December 1984 amending the nomenclature of goods for the external trade statistics of the Community and statistics of trade between Member States (Nimexe) (OJ 1984 L 337, p. 1).
5 In the Regulation the products are divided into two groups, depending on the material from which they are made:
° products manufactured from wool, cotton or man-made fibres, listed in Annex I to the Regulation, qualifying for suspension of duties up to a quantitative limit set for each country of origin;
° other products, referred to in Annex II to the Regulation, for which duties are suspended only up to an overall quantitative limit set for the countries of origin as a whole.
6 Lloyd-Textil claims that the windcheaters it has imported from China and South Korea should be classified in Category 161 of Annex II to the Regulation, entitled: "Outer garments for men".
7 The Hauptzollamt states that the linen windcheaters correspond to Nimexe code 61.01-32 in the Community customs nomenclature and that this code is mentioned neither in Category 161 referred to by Lloyd-Textil nor in any other category in Annex II. It also points out that since the windcheaters imported by Lloyd-Textil are made of linen they cannot fall within Annex I, which is restricted to products made of wool, cotton or man-made fibres. On the basis of those two points it concludes that the imported windcheaters cannot qualify for suspension of duty.
8 In those circumstances the Bundesfinanzhof submitted the following question for a preliminary ruling:
"Is Category 161 of Annex II to Council Regulation (EEC) No 3563/84 applying generalized tariff preferences for 1985 to textile products originating in developing countries to be construed as covering 'men' s linen windcheaters' (imported from China and South Korea), even though it does not expressly include such textile products?"
9 Reference is made to the Report for the Hearing for a fuller account of the facts, 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.
10 The first point to be noted in considering the Bundesfinanzhof' s question is the unanimous conclusion in the observations to the Court that the windcheaters imported by Lloyd-Textil cannot fall within Annex I to the Regulation, since they are made of linen and Annex I is restricted to products manufactured from wool, cotton or man-made fibres.
11 Secondly, as was stated by the Bundesfinanzhof and has not been disputed before this Court, the linen windcheaters correspond to Nimexe code 61.01-32 in the customs nomenclature that applied in the Community in 1985 and, as the Hauptzollamt has pointed out, that code is not referred to in any category in Annex II to the Regulation; in particular, it does not appear in Category 161, within which Lloyd-Textil claims the windcheaters fall.
12 According to footnote (a) to both Annex I and Annex II to the Regulation, the suspension of customs duties is dependent upon the Nimexe code corresponding to the imported product being referred to in one of those two annexes. That footnote states:
"... the wording for the designation of the products is to be considered as having no more than an indicative value, the preferential scheme being determined by the application of the numbers in the Nimexe".
13 Accordingly, since linen windcheaters from developing countries do not fall within Annex I to the Regulation and, furthermore, their code is not specified in Annex II, they cannot in principle qualify for suspension of customs duties.
14 The German Government argues that the suspension of customs duties is granted to all textile products from developing countries and that the absence from Annex II of the code corresponding to the products in dispute is simply an omission due to an oversight on the part of the Council which the Court should rectify.
15 It should be noted that under Article 28 of the EEC Treaty any autonomous alteration or suspension of duties in the Common Customs Tariff is to be decided by the Council; it therefore falls to the Council and not to the Court to identify, on the basis of criteria determined by it, the products qualifying for suspension of duties.
16 The German Government also points out that customs duties have been suspended on linen windcheaters imported in the years following 1985, from which it concludes that the Council always intended to grant the suspension sought.
17 According to the case-law of the Court (see Case 58/85 Ethicon v Hauptzollamt Itzehoe [1986] ECR 1131), the amendment of a provision in a regulation does not mean that earlier versions of that provision must be construed in conformity with that amendment. Therefore the suspension of customs duties on a product in certain years does not mean that the suspension must be applied to that product for the preceding year or years.
18 Furthermore, just as it falls to the Council to determine products qualifying for suspension of duties, it is for the Council to correct any mistakes made in determining those products and to rectify any omissions in the Regulation.
19 In this regard it should be noted that a request for the inclusion of linen windcheaters in Annex II to the Regulation was made on 7 May 1985 but when the Council granted that request it did so only for the years subsequent to 1985 and did not mention imports effected in the course of that year.
20 The answer to the question submitted for a preliminary ruling should therefore be that men' s linen windcheaters imported from China and South Korea do not fall within Category 161 of Annex II to Council Regulation (EEC) No 3563/84 of 18 December 1984 applying generalized tariff preferences for 1985 to textile products originating in developing countries.
Costs
21 The costs incurred by the German Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Second Chamber),
in answer to the question referred to it by the Bundesfinanzhof, by order of 25 June 1992, hereby rules:
Men' s linen windcheaters imported from China and South Korea do not fall within Category 161 of Annex II to Council Regulation (EEC) No 3563/84 of 18 December 1984 applying generalized tariff preferences for 1985 to textile products originating in developing countries.
