OPINION OF ADVOCATE GENERAL

My Lords,

In 1978 Bienengräber & Co. cleared for release into free circulation in the Federal Republic clothing and accessories for a figure which is called a ‘Monchhichi’, or in some countries, apparently, a ‘Kiki’. Both the company and the customs authorities are agreed that the classification of these items of clothing depends on the classification of the Monchhichi figure itself, under Chapter 97 of the Common Customs Tariff. The title of that Chapter is ‘Toys, Games and Sports Requisites, Parts Thereof ’ and Note 4 to the Chapter reads: ‘Subject to Note 1 above, parts and accessories which are suitable for use solely or principally with articles falling within any heading of this Chapter are to be classified with those articles.’ The question therefore is: Under which heading of the Common Customs Tariff does the Monchhichi fall?

Bienengräber entered the goods under Heading No 97.02 — Dolls. The customs authorities said that they fell under Heading No 97.03 — Other Toys. The latter attracted a higher rate of duty, and the Court has been told that substantial sums have been involved in the number of Monchhichis which have been imported into the Federal Republic.

It is permissible, in construing the headings of the Common Customs Tariff, to look at the Explanatory Notes and also at the Explanatory Notes which are drawn up by the Customs Cooperation Council, both the English and the French languages being authoritative (Case 74/79 Hako Schuh v Hauptzollamt Frankfurt am Main-Ost [1980] ECR 311 at p. 318).

Note 3 in the heading to Chapter 97 of the Common Customs Tariff reads: ‘In Heading No 97.02 the term “dolls’ is to be taken to apply to such articles as are representations of human beings.’ One finds exactly the same idea expressed in equivalent language in the French text, and, as I understand it, in the German text.

In the ‘Explanatory Notes’ of the Customs Cooperation Council, there is in the general chapter notes, a similar provision: ‘In Heading No 97.02 the term “dolls” is to be taken to apply only to such articles as are representations of human beings.’ The equivalent is to be found in the French text.

On the other hand, the specific notes to Heading No 97.02 read in English: ‘The term “dolls” is to be taken to apply only to such articles as are representations of human beings (including those of a caricature type).’ The French version is perhaps a little more explicit: ‘Par poupées, il y a lieu d'entendre uniquement des articles représentant l'être humain, même s'il s'agit de sujets difformes’, and then in brackets ‘(polichinelles, pantins)’, which I understand to include Mr Punch and puppets.

The dispute in this case was taken before the Finanzgericht (Finance Court) by Bienengräber. On the basis of a representative opinion poll by a market research organisation, which found that 71% of the mothers interviewed thought that the Monchhichi represented an animal rather than a human being, and on the basis of the expert opinion of the Customs Laboratory and Training College in Hamburg, the Finanzgericht found that the Monchhichi was not a doll. It found that it had, as the Court has seen, some human features: hands and eyes and a mouth, perhaps arms and legs, but not a human nose. On the other hand, it had a long tail and was covered in fur, like an animal, over the whole body except the face, the hands and the feet.

The matter came on appeal before the Bundesfinanzhof (Federal Finance Court), which was told that, contrary to the view of the German experts, the French Customs Conciliatory and Advisory Committee thought that these were dolls under Heading No 97.02. Accordingly, that court has referred to the Court two questions for it to answer. Those questions read as follows :

(1) Is Note 3 to Chapter 97 of the Common Customs Tariff to be interpreted as meaning that a figure is only to be regarded as a representation of a human being, and therefore as a doll within the meaning of Heading No 97.02 A of the Common Customs Tariff, if it displays only such features as correspond to the natural appearance of human beings, albeit in a distorted form?

(2) If question 1 is answered in the negative : Are the terms ‘representations of human beings’ in Note 3 to Chapter 97 of the Common Customs Tariff, and ‘dolls’ in Heading No 97.02 A of the Common Customs Tariff to be interpreted as meaning that a figure may be regarded as a representation of a human being and therefore as a doll within the meaning of that heading even if it displays animal as well as human features? Under what conditions, in the presence of animal features as well as those suggesting the representation of a human being, can the figure in question nevertheless be regarded as a doll?

The court's decision to refer these questions is supported by the fact that, as this Court is told, the French customs authorities take the same view as the German customs authorities, in other words that they are animals and not human figures, but that the Belgian customs authorities, like the French Customs Conciliatory and Advisory Committee, consider that they are dolls.

The notes, to which I have made reference, defining what may be a doll are supported by the notes which are to be found to Heading No 97.03. Those notes specifically say that the heading includes, as Item 1, ‘Toy animals’. So an animal is not a doll. The notes to Heading No 97.02 also reflect the ordinary meaning of the word as, for example, to be found in Collins English Dictionary, which defines a doll as a ‘small model or dummy of a human being’, and, in the French dictionary, Petit Robert, which defines a doll as a ‘figurine humaine servant de jouet d'enfant’.

The first question which arises is whether it is proper to look at the Monchhichi with or without clothing or accessories. It seems clear, in this case, that the Monchhichi can be and is imported and sold without clothes. It seems to me to follow from Note 4 of the Notes to Chapter 97 of the Common Customs Tariff, that the separate accessories are to be looked at separately. Accordingly, in my view, the Monchhichi figures should be looked at without clothing and accessories to decide under which heading they come. If those accessories or clothing were fixed or an integral part of the doll or toy, the position would be different.

But, even if that is wrong, and it is right to look at the Monchhichi dressed, it must still be right to have regard to what is to be found underneath, including the fact that this body is covered in what looks like animal fur.

The second question is: How do the customs authorities decide whether a figure is a representation of a human being. That decision, as counsel have stressed, is largely for the customs authorities, and not for this Court. But to ensure, as far as possible, consistency between Member States, some guidance must be given. If the parameters are too wide there are bound to be undesirable divergencies on a subjective basis between the Member States: there should be as little room for doubt as possible.

Counsel for the company has proposed that the right test is that a figure may also be classified as a representation of a human being and therefore as a doll for customs tariff purposes if it displays, in addition to human features, also animal features. The presence of animal features in addition to human features does not affect the classification if, after careful consideration of all the characteristics of the figure, the characteristically human features still predominate over the animal-like features. He contends also that the accessories and presentation of the figure must be taken into account.

It seems to me, that his proposed definition still leaves a considerable margin of discretion to the customs authorities, which would lead to wide variations. Is 55% or 65% enough to constitute the predominance of human over animal features? In my view it is not.

In my opinion, the right approach is to ask the question whether the figure represents clearly and without doubt a human being and not some other creature or a hybrid of the two. For that purpose it does not have to be an exact reproduction of the human body; it does not cease to be a doll if there are minimal divergencies from the human body, or if human characteristics are exaggerated or caricatured. On the other hand if substantial characteristics of the figure are not those of the human body, the figure is not a doll for customs purposes.

Although in this case the ultimate decision on the facts is for the customs authorities, it seems to me that the facts that a particular object has a long tail and is covered with fur (even if its face and hands, and even its arms and legs, represent human features) are important considerations against the contention that it is a doll within the meaning of the Common Customs Tariff. The facts that the object wears human clothes, and is apparently fitted into human situations, do not seem to me to be conclusive or even important factors. ‘Paddington Bear’ is perhaps as well-known a children's toy as any other. That is clearly a bear with animal features and yet it wears human clothes. It is not a human representation.

Accordingly, in my view, the questions posed by the Bundesfinanzhof should be answered on the basis that Heading No 97.02 of the Common Customs Tariff is to be interpreted as including only those figures which clearly and without doubt are representations of human beings even if in a distorted form and which do not have substantial features, or a substantial feature, not possessed by human beings.

The costs of the company fall to be dealt with by the national court; the costs of the Commission are not recoverable.