C-234/87

2. Thereafter the Court is asked whether (a) Digital machines having storages electronic devices which are intended prin­ capable of storing not only the cipally for calculating but also for other processing program or programs and operations, and which are programmable by the data to be processed but also a a method which is more simple to use than program for translating the formal the programming language BASIC are programming language in which the calculating machines or automatic data- programs are written into machine processing machines for the purposes of the language. These machines must have a tariff headings mentioned above. main storage which is directly accessible for the execution of a program and which has a capacity at least sufficient to store those parts of the processing 3. The main proceedings concern the classi­ and translating programs and the data fication of four types of machine imported immediately necessary for the current from Japan, named 'programmable calcu­ processing run. They must also be able lators' by the Casio company. The themselves, on the basis of the machines, which are described in the Report instructions contained in the initial for the Hearing, can carry out individual program, to modify, by logical decision, calculations and complex calculation its execution during the processing run.' processes. Apparently they can also be made to use other programs (learning programs, musical programs, etc.).

5. Commission Regulation (EEC) No 1935/84 of 4 July 1984 on the classification 4. I must state immediately that I consider of goods falling within subheading 84.53B that the distinction between calculating of the Common Customs Tariff 2 applied machines and automatic data-processing those criteria in order to classify a pocket machines must be drawn on the basis of computer, stating that: Note 3 A (a) of Chapter 84 of Council 1 — Official Journal 1 320, 10 12 1984. p 3 1 9 Original language French 2 — Official Journal 1 180, 7 7 1984, p 10

6. Before determining what tariff heading is applicable to the machines in question in 9. The type of dynamic interpretation this case it must be ascertained whether they which the Commission suggests the Court fulfil the requirements referred to in Note 3 should adopt could not be more clearly A (a), an examination which is the responsi­ ruled out. Such an interpretation would bility of the national court. In this respect it force analyses, both hazardous and neces­ is apparent that whatever their opinion on sarily impermanent, of the performance of the relevance of the definition contained in the computer languages used in order to that note the experts took the view that the define 'automatic data-processing machines'. machines, or at least some of them, could meet the criteria referred to therein.

10. I do not think it necessary to advocate that course. I prefer a solution which corre­ 7. If that is the case, I do not think it is sponds both to the requirements of legal possible to depart from the provisions of the certainty and the wording of a provision Common Customs Tariff on the ground which is devoid of any ambiguity. relied on by the Commission that the devel­ opment of programming languages as simple 3 — Judgment of 19 November 1981 in Case 122/80 [1981] as that of the machines in question could ECR 2781, at paragraph 12

CASIO COMPUTER v OBERFINANZDIREKTION MÜNCHEN

11. Consequently, I propose that the Court should rule as follows:

'The distinction between "calculating machines" within the meaning of tariff heading 84.52 and 'automatic data-processing machines' within the meaning of tariff heading 84.53 must be drawn on the basis of Note 3 A (a) of Chapter 84 of the Common Customs Tariff. A machine which meets the criteria set out in that provision must be classified as an automatic data-processing machine even if it is intended principally for calculating operations.'