Avis juridique important

Judgment of the Court (Fourth Chamber) of 12 July 1990. - Gerlach & Co. BV v Inspecteur der Invoerrechten en Accijnzen. - Reference for a preliminary ruling: Tariefcommissie - Netherlands. - Common Customs Tariff - Apparatus for transcribing computerized data onto microfilm. - Case C-43/89. European Court reports 1990 Page I-03219

Summary Parties Grounds Decision on costs Operative part

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Common Customs Tariff - Tariff headings - Apparatus for transcribing onto microfilm or microfiche computerized data mainly originating from a central computer - Classsification under subheading 84.53 B

Apparatus the purpose of which is to transcribe in legible characters on microfilm or microfiche decoded computerized data mainly originating from a central computer, constitutes a unit of an automatic data-processing machine and must be classified, in view of note 3(B ) to Chapter 84 of the Common Customs Tariff, under subheading 84.53 B of the Common Customs Tariff .

In Case C-43/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tariefcommissie ( administrative court of last instance in revenue matters ), Amsterdam, for a preliminary ruling in the proceedings pending before that court between

Gerlach & Co . BV

and

Inspecteur der Invoerrechten en Accijnzen,

on the interpretation of certain provisions of the Common Customs Tariff and of Commission Regulation ( EEC ) No 551/81 of 25 February 1981 on the classification of goods within subheading 90.07 A of the Common Customs Tariff ( Official Journal 1981 L 56, p . 20 ) for the purpose of the tariff classification of apparatus described as an "Aris II COM-Recorder",

THE COURT ( Fourth Chamber )

composed of : C . N . Kakouris, President of Chamber, M . Díez de Velasco and P . J . G . Kapteyn, Judges,

Advocate General : W . Van Gerven

Registrar : J . A . Pompe, Deputy Registrar,

after considering the written observations submitted on behalf of

Gerlach & Co . BV, by N . P . J . Ooyevaar, of the Amsterdam Bar,

the Commission of the European Communities, by René Barents, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing,

having heard oral argument from Gerlach & Co . BV and the Commission at the hearing on 2 May 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 6 June 1990,

gives the following

Judgment

1 By order dated 12 December 1988 which was received at the Court on 20 February 1989, the Tariefcommissie referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of certain provisions of the Common Customs Tariff, in the version resulting from Council Regulation ( EEC ) No 3400/84 of 27 November 1984 ( Official Journal 1984 L 320, p . 1 ) and of Commission Regulation ( EEC ) No 551/81 of 25 February 1981 on the classification of goods within subheading 90.07 A of the Common Customs Tariff ( Official Journal 1981 L 56, p . 20 ).

2 The question arose in proceedings between the Dutch undertaking Gerlach & Co . BV (" Gerlach ") and the Inspecteur der Invoerrechten en Accijnzen ( Inspector of Customs and Excise ) concerning the tariff classification of apparatus described as an "Aris II COM-Recorder", originating in the United States, which Gerlach imported into the Netherlands in 1983 .

3 Gerlach claimed that the apparatus should be classified under subheading 84.53 B of the Common Customs Tariff ( automatic data-processing machines ) or, in the alternative, under subheading 84.54 B ( other office machines ), whilst the Inspecteur der Invoerrechten en Accijnzen, regarding himself as bound by the aforementioned Commission Regulation No 551/81, classified it under subheading 90.07 A ( photographic cameras ).

4 Gerlach appealed against that decision to the Tariefcommissie ( Administrative court of last instance in revenue matters ), Amsterdam, which stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling :

"Under which heading ( subheading ) of the Common Customs Tariff must the COM-Recorder, described in the body of the reference, be classified?"

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the Community legislation at issue and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

6 The national court seeks essentially to establish by means of its question whether a piece of apparatus such as the Aris II COM-Recorder, the purpose of which is to transcribe in legible characters on microfilm or microfiche, decoded computerized data mainly originating from a central computer, is caught by Commission Regulation No 551/81 and therefore must be classified under subheading 90.07 A of the Common Customs Tariff or whether it must be classified under subheading 84.53 B .

7 According to the description given in the order of the national court, the apparatus in question consists of the following components : a control unit, a microcomputer, an acoustic modem, two disk drives, a control panel, a film-holder, a camera, a lens, a slide device, an optical laser system, a developer and a keyboard/printer . Its full description is as follows :

"ARIS II Recorder 220 V, 50 Hz

Controller

plus 42 X lens/Software/KSR/Cables

1600/6250 ( STC ) Tape Drive-Standalone ".

8 It appears from the documents before the Court that the purpose of the apparatus in question is to transcribe in legible characters on microfilm or microfiche, decoded computerized data . The apparatus incorporates a device comparable to a laser printer which transcribes in legible characters data from a central computer and a device, the microfilm part, in which the characters formed by the laser are printed on film by means of a photographic camera . The film is then developed and transcribed onto microfiches . The value of the optical system of the apparatus is negligible in relation to its total value .

9 The apparatus in question was specially designed to be connected directly to a computer and to receive data . It can also receive, outside the central processing unit, data from magnetic tape, provided that it remains connected to the central computer as it cannot function independently .

10 It also appears from the documents before the Court that the apparatus in question has been classified differently in the various Member States . The British and German customs authorities classify it under subheading 84.53 B whereas the French, Belgian and Dutch authorities, taking the view that it resembles the apparatus described in Regulation No 551/81, maintain that it must be classified under subheading 90.07 A of the Common Customs Tariff, which is worded as follows :

"Photographic cameras; photographic flashlight apparatus and flashbulbs other than discharge lamps of Heading 85.20 :

A . Photographic cameras

..."

Regulation No 551/81

1111 It must be observed that Regulation No 551/81, irrespective of any other comments which might possibly be made about it, is concerned in any event only with apparatus whose essential character, within the meaning of general rule 3(b ) for the interpretation of the nomenclature of the Common Customs Tariff, is given by its photographic camera . But it appears from the order for reference and from the case-file that the question before the Court is concerned with apparatus, such as the Aris II COM-Recorder, whose essential character is not given by its photographic camera . Consequently, Commission Regulation No 551/81 does not govern the tariff classification of apparatus such as the one at issue in the main proceedings .

Subheading 84.53 B of the Common Customs Tariff

12 It appears from the order for reference that the national court tends to favour classifying such apparatus under subheading 84.53 B . This view is shared by Gerlach and the Commission .

13 Heading 84.53 reads as follows :

"Automatic data-processing machines and units thereof : magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included :

A . Automatic data-processing machines, and units thereof, for use in civil aircraft

B . Other ."

14 Note 3(B ) to Chapter 84 of the Common Customs Tariff reads as follows :

"Automatic data-processing machines may be in the form of systems consisting of a variable number of separately housed units . A unit is to be regarded as being a part of the complete system if it meets all the following conditions :

( a ) it is connectable to the central processing unit ...

( b ) it is specifically designed as part of such a system ...

Such units imported separately are also to be classified under Heading 84.53 ."

15 Moreover, the Explanatory Note to the Customs Cooperation Council Nomenclature regarding Heading 84.53, reads as follows :

"Digital data-processing machines usually consist of a number of separately housed interconnected units . They then form a 'system' .

A complete digital data-processing system must comprise, at least :

( 1 ) a central processing unit ...

( 2 ) an input unit ...

( 3 ) an output unit which converts the signals provided by the machine into an intelligible form ( printed text, graphs, displays, etc .) or into coded data for further use ( processing, control, etc .)."

16 It is appropriate to consider that an apparatus such as the one described in the order for reference constitutes an output unit within the meaning of that note and is part of the complete system constituted by an automatic data-processing machine . Such an apparatus may be connected to the central processing unit and is specifically designed as part of the system . Even if it is imported separately it therefore still falls within Heading 84.53 of the Common Customs Tariff in view of note 3(B ) quoted above .

17 In view of the foregoing considerations, the reply to the question referred by the national court must be that the Common Customs Tariff must be interpreted as meaning that apparatus, such as the Aris II COM-Recorder, the purpose of which is to transcribe in legible characters on microfilm or microfiche decoded computerized data mainly originating from a central computer, constitutes a unit of an automatic data-processing machine and must be classified under subheading 84.53 B of the Common Customs Tariff .

Costs

18 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( Fourth Chamber ),

in reply to the question submitted to it by the Tariefcommissie, by order of 12 December 1988, hereby rules :

The Common Customs Tariff must be interpreted as meaning that apparatus, such as the Aris II COM-Recorder, the purpose of which is to transcribe in legible characters on microfilm or microfiche decoded computerized data mainly originating from a central computer, constitutes a unit of an automatic data-processing machine and must be classified under subheading 84.53 B of the Common Customs Tariff .