Action brought on 16 October 2012 - Wojciech Gęsina Firma Handlowa Faktor B. i W. Gęsina v Commission

(Case T-468/12)

Language of the case: Polish

Parties

Applicant: Wojciech Gęsina Firma Handlowa Faktor B. i W. Gęsina (Warsaw, Poland) (represented by: H. Mackiewicz, legal adviser)

Defendant: European Commission

Form of order sought

annul Commission Implementing Regulation (EU) No 554/2012 of 19 June 2012 concerning the classification of certain goods in the Combined Nomenclature;

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1. The first plea concerns adoption of the contested regulation by the Commission in breach of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, ² in particular through an incorrect interpretation of the explanatory notes to heading CN 9505, which finds expression in the determination that, as the decorative article does not contain any festive imprints, ornaments, symbols or inscriptions, it has not been exclusively designed and manufactured as a festive article and is not recognised as such.

In the applicant's view, the content of heading CN 9505 and of the explanatory notes thereto shows that, in order for an article to be recognised as a festive article, it does not need to have specific imprints, ornaments, symbols or inscriptions directly referring to a particular festivity.

The question whether an article is exclusively designed, manufactured and recognised as a festive article must be assessed in the light of the festivity-related symbolism attaching to a given article in a Member State and of the article's connection with the festive tradition and culture in that State. Where such an article is recognisable in a given cultural circle as a festive article, it need not (but can) have additional symbols ornaments or inscriptions underlining its connection with a particular festivity.

2. The second plea concerns adoption of the contested regulation by the Commission in breach of the Explanatory Notes to the Combined Nomenclature of the European Communities  concerning heading CN 9505, through an incorrect interpretation of the notes which consists in the determination that, as the decorative article does not contain any festive imprints, ornaments, symbols or inscriptions, it has not been exclusively designed and manufactured as a festive article and is not recognised as such.

The Explanatory Notes to the Combined Nomenclature clearly indicate that products classified under heading CN 9505 are according to their construction and design (imprints, ornaments, symbols or inscriptions) intended to be used for a specific festivity. The words in brackets define merely by way of example what a product's 'construction and design' might cover. In other words, the Combined Nomenclature does not exclude the situation where a product (as such) is a symbol of specific festivities in a particular cultural circle although the product does not bear any imprints, ornaments, symbols or inscriptions.

3. The third plea concerns breach by the Commission of the principle of equal treatment by acceptance of a situation in which one category of products (artificial flowers and plants used for a festivity) is denied classification as festive articles because of a lack of festive imprints, ornaments, symbols or inscriptions, whereas other categories are so classified under heading CN 9505 even though the articles do not have such festive imprints, ornaments, symbols or inscriptions.

In the course of trade in the European Union, binding tariff information issued by individual Member States exists that specifies classification under heading CN 9505 for articles (including artificial flowers) which do not bear particular symbols, designs or ornaments. This confirms that an article in itself, without inscriptions or ornaments, can be a symbol of specific festivities in the cultural circle of a particular Member State and is accordingly recognised, designed and manufactured there as a festive article.

Neither the notes on Chapter 95 of the Combined Nomenclature nor the commentary in the Explanatory Notes to the Combined Nomenclature show that, in order for a product to acquire the status of a festive article, it must be recognised as festive throughout the European Union. Such an interpretation of 'festive article' would lead to a situation where only a few products would meet these criteria. More than 500 million citizens with different traditions and cultures and differing faiths live in the European Union. Therefore, not only is there no common festive tradition in the European Union but also the list of holidays in individual Member States differs. Finally, some products directly classified under heading 9505 are festive in nature only in some Member States and the corresponding tradition is not known, or is not very popular, in the other Member States.

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¹ - OJ 1987 L 256, p. 1.

² - OJ 2008 C 133, p. 1.