C-43/89

GERLACH

O P I N I O N O F M R ADVOCATE GENERAL VAN GERVEN delivered on 6 J u n e 1990 *

Mr President, in question may be described as follows. It is Members of the Court, a COM-Recorder, that is to say, an instrument whereby data stored in a computer or produced by a computer can be preserved by transcribing them in legible 1. The Tariefcommissie (administrative form onto microfiches or microfilm (the court of last instance in revenue matters), acronym 'COM' stands for 'computer Amsterdam, has asked the Court to specify output microfilm'). The two other processes the heading of the Common Customs which may be used to preserve such data Tariff' under which an 'Aris II rely on recording them on magnetic tape COM-Recorder' should be classified. The (or, I presume, diskettes) or on printing apparatus in question was imported into them on paper. From the point of view of its the Netherlands in June 1983 by function, therefore, a COM-Recorder is Gerlach & Co. BV ('Gerlach'). most akin to a printer, except for the fact that the data which are made legible are fixed not on paper but on photographic In proceedings dealing with a reference for film. a preliminary ruling it is obviously not competent to the Court to give a ruling on the actual apparatus which is the subject of the main proceedings. It may, however, At the time when it was imported into the indicate to the national court the heading of Community, the COM-Recorder at issue in the Common Customs Tariff under which the main proceedings — the Aris II — was apparatus having the characteristics of an one of the most sophisticated types, using Aris II COM-Recorder ought to be an optical laser system (rather than a classified. As the Court has consistently cathode-ray tube) to transcribe the compu- held, 2 the decisive criterion for the classifi- terized data in legible form. cation of goods for customs purposes is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes According to the order of the national to the sections or chapters. court, the main components of the Aris II COM-Recorder are as follows:

The notes on Heading 84.53 make it clear that the expression 'automatic data- (vi) a keyboard/printer for the purpose of processing machines' means: communicating with the computer or computer system to which the COM-Recorder is connected and of checking program data; '3. (A) . . . Digital machines having storages capable of storing not only the processing program or programs and the data to be processed but (vii) a control panel for the user, incor- also a program for translating the porating a screen for displaying formal programming language in messages relating to the operations which the programs are written into carried out by the COM-Recorder or machine language. These machines any instructions for the user; must have a main storage which is directly accessible for the execution of a program . . . They must also be able themselves, on the basis of the (viii) disk drives to take diskettes holding instructions contained in the initial programs for controlling the program, to modify, by logical COM-Recorder. decision, its execution during the processing run;

3. The national court has identified three possible classifications : subheadings 84.53 B, 84.54 B or 90.07 A of the Common Customs Tariff. Its preference tends towards subheading 84.53 B; Gerlach and the Commission also favour that (B) Automatic data-processing machines solution. Heading 84.53 reads as follows: 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 'Automatic data-processing machines and complete system if it meets all the units thereof: magnetic or optical readers, following conditions:

(a) it is connectable to the central following result is obtained. According to processing unit either directly or the explanatory notes on Heading 84.53, through one or more other such a COM-Recorder is not an automatic units; data-processing machine because it cannot store a processing program. The machine does not a have program for translating the formal programming language in which the programs are written into machine (b) it is specifically designed as part language. Neither does it have the capability of such a system (it must, in to modify, by logical decision, the execution particular, unless it is a power of the program during the processing run. supply unit, be able to accept or Nevertheless, such a COM-Recorder does deliver data in a form (code or constitute an output unit (within the signals) which can be used by meaning of the Explanatory Notes to the the system]. Customs Cooperation Council Nomen- clature quoted above) by which data stored in an automatic data-processing machine or produced by such a machine can be transposed into legible form and recorded Such units imported separately are on microfiche. According to note 3(B) on also to be classified under Heading 84.53, such an output unit is a unit Heading 84.53.' which is to be regarded as being part of the complete system in so far as it is (a) connectable to the central processing unit and (b) specifically designed as part of that system. It therefore appears correct to The Explanatory Notes to the Customs classify it under subheading 84.53 B. Cooperation Council Nomenclature also provide some clarification. 3It is stated there that digital data-processing machines usually consist of a number of separately housed interconnected units which then form a 5. There would be no difficulty in 'system'. A complete digital data-processing answering the national court's question were system must comprise at least a central it not for Commission Regulation (EEC) processing unit (main storage, the arith- No 551/81, 4 which classifies under metical and logical units and the control Heading 90.07 of the Common Customs elements), an input unit (which receives Tariff apparatus whose characteristics and input data and converts them into signals components greatly resemble those of the which can be processed by the machine) and Aris II COM-Recorder. According to an output unit which converts the signals Article 1 of that regulation, it is concerned provided by the machine into an intelligible with the classification of apparatus form or into coded data for further use.

(iii) a cathode-ray tube for displaying the 6. According to the national court's order characters, and the observations submitted by Gerlach, that regulation resulted in the French, Belgian and Dutch customs authorities' classifying the Aris II COM-Recorder under (iv) a flashlight apparatus, subheading 90.07 A of the Common Customs Tariff, whilst the British and German customs opted for subheading 84.53 B. (v) a camera for photographing the char- acters on microfilm, The question is therefore whether Regu- lation No 551/81 does in fact mean that a (vi) a unit for developing and printing the COM-Recorder such as the Aris II must be film in the form of microfiches . . . '. classified under subheading 90.07 A. The Commission considers that this is not the case. At the hearing, the Commission representative stated that the regulation did It appears from the preamble to Regulation not set out to formulate general criteria No 551/81 that classification in Heading for the customs classification of 84.53 was considered but rejected on the COM-Recorders: its scope was limited to grounds that: (a) Heading 84.53 does not the apparatus described therein. Moreover, cover apparatus incorporating or working the Commission pointed out that the regu- in conjunction with an automatic data- lation was issued in 1981, more than two processing machine and performing a years before the apparatus at issue was specific function and (b) the processing unit imported. Such a lapse of time was in the said apparatus cannot be regarded as significant in the case of products which, the principal element of the apparatus since it may not even be used in its operation, the 5 — See the fourth recital in the preamble to Regulation No 551/81. central processing unit of an automatic 6 — See the sixth and seventh recitals in the preamble.

7. Gerlach disagrees with that reasoning and at the hearing its representative stated that if it is allowed that a COM-Recorder equipped with a tape deck (such as the 8. I take Gerlach's argument to mean that, apparatus referred to in Regulation No for the purpose of determining what is a 551/81) no longer constitutes an output unit unit which is part of a system within the on the ground that it can operate indepen- meaning of note 3(B) on Heading 84.53, dently, it is all the more clear that such a there is no essential difference between a piece of apparatus must be regarded as an COM-Recorder equipped with a tape deck automatic data-processing machine and not and a COM-Recorder which is not so a photographic camera. 8 — See the judgment of the Court in Case 234/89 Casto 7 — See the explanatory note on Heading 84.53 quoted in Computer v Oberfinanzdirektion München [1989] ECR 63, Section 3 above. paragraphs 11 to 13.

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OPINION OF MR VAN GERVEN —CASE C-43/89

9. I therefore propose that the Court should answer the question of the Tarief- commissie, Amsterdam, in the following terms:

'Apparatus which enables data coming from an automatic data-processing machine to be transposed into legible form and subsequently to be fixed on microfilm or microfiche must, whether or not it uses a photographic technique to that end, be classified under subheading 84.53 B of the Common Customs Tariff.'

9 — Regulation (EEC) No 97/69 of the Council of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (OJ, English Special Edition 1969 (I), p. 12); see in particular the second recital in the preamble.

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