Official Journal of the European Union

C 171/9

(Case C-165/07)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Heading 6403 - Footwear with uppers of leather - Heading 6404 - Footwear with uppers of textile materials)

(2008/C 171/15)

Language of the case: Danish

Referring court

Parties to the main proceedings

Applicant: Skatteministeriet

Defendant: Ecco Sko A/S

Re:

Reference for a preliminary ruling — Vestre Landsret — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 2388/2000 (formerly No 2263/2000) of 13 October 2000, amending Annex I to Council Regulation (EEC) No 2658/87 — Compatibility of Additional Note 1 to Chapter 64 of the Combined Nomenclature, which was incorporated by Commission Regulation No 3800/92 of 23 December 1992 amending Council Regulation No 2658/87, with Note 4(a) to that same Chapter — Footwear with outer soles of rubber, plastics, leather or composition leather — Classification under Combined Nomenclature heading 6403 (footwear with uppers of leather) or under heading 6404 (footwear with uppers of textile materials)

Operative part of the judgment

1.The Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 2388/2000 of 13 October 2000, must be interpreted as meaning that a sandal such as that in question in the main proceedings, with an outer sole of rubber, whose upper is made up of two leather sections glued to the inner sole and linked to each other by leather fastening straps covered with Velcro strips, with the leather making up around 71 % of the upper's external surface area and the elastic textile material underneath the leather remaining exposed in places, falls within:

—heading 6404 of the Combined Nomenclature if the textile material of the upper of the sandal, without the leather sections, fulfils the purpose of an upper, that is to say, provides sufficient support for the foot to enable the wearer to walk in the sandal;

—heading 6403 of the Combined Nomenclature if the textile material of the upper of the sandal, without the leather sections, does not fulfil the purpose of an upper, that is to say, does not provide sufficient support for the foot to enable the wearer to walk in the sandal.

2.Additional Note 1 to Chapter 64 of the Combined Nomenclature, inserted by Commission Regulation (EEC) No 3800/92 of 23 December 1992 amending Regulation No 2658/87, is compatible with Note 4(a) to that chapter.

(1) OJ C 129, 9.6.2007.