C-35/93
ECLI:EU:C:1993:948
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DEVELOP DR EISBEIN
OPINION OF ADVOCATE GENERAL GULMANN delivered on 16 December 1993 *
Mr President, 3. In the relevant years in this case subhead 2 Members of the Court, ing 90.10A of the Common Customs Tariff, was worded as follows: 'A. Photo-copying apparatus incorporating an optical system'. That subheading was thus not further subdi vided but it is apparent from the introduc tory notes to Chapter 90 that 'parts or acces sories' to apparatus referred to in that chapter are generally to be classified under 1. The Finanzgericht (Finance Court) the same heading as the apparatus in ques Baden-Württemberg has submitted a number tion. of questions to the Court of Justice on the interpretation of the general rules on classifi cation in the Common Customs Tariff. Those questions arose in proceedings between the firm Develop Dr Eisbein and the Hauptzollamt (Principal Customs There is on the other hand a subdivision in Office) Stuttgart-West. The case concerns the the Nomenclature of Goods for External point whether kits for complete photo Trade Statistics of the Community and Sta copiers consisting of 200 parts are to be tistics of Trade between Member States classified under the tariff as 'finished articles' (NIMEXE), where the code corresponding or as 'parts'. to subheading 90.10A of the Common Cus 3 toms Tariff in the years in question was subdivided as follows: '90.10-22 Apparatus' and '90.10-28 Parts and Accessories'.
2. The background to the case is as follows: at the end of August 1986 the European As can be seen, parts and accessories for Community introduced first a provisional photocopiers incorporating an optical system anti-dumping duty and subsequently a defin are not caught by the anti-dumping levy itive anti-dumping duty for photocopiers because they fall under NIMEXE code incorporating optical systems 'falling within subheading 90.10A of the Common Cus 90.10-28. toms Tariff, corresponding to NIMEXE code 90.10-22 and originating in Japan'. 1 2 — The versions in question are set out in Council Regulation No 3400/84, OJ 1984 L 320, p. 1, Council Regulation No 3331/85, OJ 1985 L 331, p. 1, and Council Regulation No 3618/86, OJ 1986 L 345, p . 1. * Original language: Danish. 3 — The versions in question are set out in Commission Regula 1 — See Commission Regulation No 2640/86, OJ 1986 L 239, tion No 3529/84, OJ 1984 L 337, p. 1, Commission Regula p. 5, and Council Regulation No 535/87, OJ 1987 L 54, tion No 3631/85, OJ 1985 L 353, p. 1 and Commission p. 12. Regulation No 3840/86, OJ 1986 L 368, p. 1.
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4. Develop Eisbein is a firm in Germany 'Any reference in a heading to an article shall which produces photocopiers. It is apparent be taken to include a reference to that article from the order for reference that from 1 incomplete or unfinished, provided that, as November 1985 until 30 April 1987 it imported, the incomplete or unfinished art imported containers from Japan 'with kits icle has the essential character of the complete containing approximately 200 individual or finished article. It shall also be taken to parts of (complete) photocopiers with optical include a reference to that article complete or systems'. On the basis of Develop Eisbein's finished (or falling to be classified as com customs declaration, the Hauptzollamt plete or finished by virtue of this Rule), 5 Stuttgart-West classified the goods under imported unassembled or disassembled'. subheading 90.10A of the Common Cus toms Tariff, corresponding to NIMEXE code 90.10-28, and cleared the goods into free circulation as parts of photocopiers.
Following an inspection, however, that clas 6. Develop Eisbein contested the Hauptzol- sification was amended in so far as the lamt's view arguing in particular that the Hauptzollamt considered the goods to be general tariff rule was not applicable in the 'unassembled' photocopiers which were present instance since the assembly of the properly to be classified under subheading non-assembled parts involved complicated 90.10A of the Common Customs Tariff, cor operations. The assembly was carried out by responding to NIMEXE code 90.10-22 highly trained and specialized staff in techni (Apparatus). As a result there was a demand cally advanced modern production work for anti-dumping duty of some DM 3 mil shops using special tools and very specialized lion. know-how. After each operation in the assembly process adjustments and checks were carried out by mechanics or by electro- mechanics or engineers. In this connection Develop Eisbein referred to the explanatory notes from the Customs Cooperation Coun 6 cil on the general tariff rule. Those notes state that 'articles presented unassembled or 5. The Hauptzollamt based its amended disassembled' means articles the components view on the second sentence of Rule 2(a) of the Rules for the Interpretation of the Nomenclature of the Common Customs 4 5 — The German version refers only to the concept of 'zerlegt' Tariff. That rule states: which covers the terms 'disassembled or unassembled' in the English version, 'adskilt eller ikke samlet' in the Danish ver sion and 'démonté ou non monté' in the French version. 6 — The Customs Cooperation Council was set up under the Brussels Convention of 15 September 1950 on Nomenclature 4 — See Part I, Section I, A of the Common Customs Tariff. for the Classification of Goods in Customs Tariffs and has According to the information before the Court that provi the task of ensuring the uniform interpretation and applica sion was introduced by Council Regulation (EEC) No 1/72 tion of the Convention, in particular as regards the applica of 20 December 1971 (Journal Officiel 1972 L 1, p. 1). tion of the nomenclature.
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of which are to be assembled either by 9. The first of the national court's questions means of simple fixing devices (screws, nuts, is as follows: bolts, etc.) or by rivetting or welding, for example provided only simple assembly 7 operations are involved.
'1 . (a) Is the second sentence of Rule 2(a) of the Rules for the Interpretation of the Nomenclature of the Com mon Customs Tariff to be inter preted as meaning that an article is disassembled or, to the same effect, unassembled, where the assembly of its component parts supplied 7. The Hauptzollamt maintained its view together does not require a compli whereupon Develop Eisbein brought pro cated procedure, or ceedings before the Finanzgericht Baden- Württemberg.
(b) Does it depend solely on whether the component parts to be assem bled are processed or transformed before assembly, or
8. The Finanzgericht inspected Develop Eis- bein's assembly plant and commissioned an expert's report. It is apparent from the file on the case that in August 1992 the expert (c) Does the large number of compo and the Finanzgericht's Judge-Rapporteur nents inevitably lead to the conclu observed the assembly of a similar photo sion that the individual components copier. The Finanzgericht inclines to the do not constitute an article pre view that the assembly of the machines sented unassembled?' involves the application of skilled techniques and that the operations cannot be described as simple. In particular it points out that the technically advanced adjustment, measuring and testing procedures must be regarded as being part of the assembly process in so far 10. The Finanzgericht is inclined to consider as those processes must be carried out before that the first of those interpretations of the the subsequent step in the assembly can be tariff rule is the right one. It points out that undertaken. the starting point for the Hauptzollamt's view is that the assembly is fundamentally a 'simple assembly operation' so long as fur ther processing of the parts is not required. 7 — Originally paragraph VI, now paragraph VII, of the Explan atory Notes to the General Rules on Classification. The court does not share the Hauptzollamt's
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view that the tariff rule does not exclude 12. There can hardly be any doubt that the technically complicated assembly methods. correct interpretation of the classification But it held that a question should be referred provision is either that put forward by the for a preliminary ruling on the matter since Commission or that put forward by Develop that view, which is also put forward in the Eisbein. legal literature, cannot be regarded as clearly wrong.
13. The Commission considers that the tariff rule should be interpreted as meaning that goods are to be regarded as being presented unassembled where all the parts of the fin 11. It is appropriate to state first that ished product are presented to the customs Develop Eisbein and the Commission, which at the same time. In the Commission's view, are the only ones to have submitted observa therefore, it is irrelevant how the assembly is tions on the case, agree that the third poss carried out or how complicated the assembly ible interpretation referred to in the question method is. — the large number of individual compo nents — cannot constitute the applicable classification criterion.
Develop Eisbein, on the other hand, believes that the provision must be interpreted as meaning that goods are to be regarded as presented unassembled if the assembly of the It is plain from the order for reference that individual components does not necessitate the Finanzgericht included that possible the application of a complicated assembly interpretation because it is apparent from a method. declaration from an English lawyer, submit ted by Develop Eisbein, that in cases such as this the United Kingdom customs authorities apply that criterion. 14. It is not altogether easy to determine which of those interpretations is the right one. The difficulties stem, as will become apparent hereinafter, in particular from the question of the significance of the explana tory note of the Customs Cooperation I consider it plain that the number of indi Council and the difficulty of determining the vidual components cannot be the sole con object of the relevant tariff rule. clusive criterion for tariff classification. There is no basis for that either in the word ing of the tariff rule or the explanatory notes of the Customs Cooperation Council. But if the decisive criterion should prove to be 15. It may be expedient to point out first whether the assembly method applied is sim that I consider that it would be wrong in ple or complex, the number of individual interpreting the tariff rule to take account of components may be of some significance. the particular circumstances which have
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made the interpretation necessary in this interpretation given by the Court will be case. In the light of the order for reference conclusive for the application of the provi there can hardly be any doubt that Develop sion in connection with the general problems 8 Eisbein must pay anti-dumping duty if the arising with the classification of products in Commission's interpretation is upheld but the Common Customs Tariff and the starting will not have to pay any duty if Develop point for that interpretation must be the Eisbein's interpretation is accepted. wording of the provision seen in the light of its structure and purpose and taking account of any explanatory notes.
There has been nothing in this case to show that the tariff rule was introduced in order to limit the risk of circumvention of the Com munity rules on the anti-dumping duty. The
8 — Develop Eisbein was in fact taken over in May 1986 by the 16. The starting point taken by the Commis Japanese company Minolta (see recital 74 in the preamble to Council Regulation No 535/87). That information is con sion for its interpretation is indeed the word firmed in the documents in the main proceedings. The background to the decision taken by the Commission ing of the tariff rule. It believes that the and the Council that the anti-dumping duty should apply answer to the question before the Court is only to finished articles and not to components is apparent inter alia from recital 97 in the preamble to Council Regula plain from the clear wording of the rule.
It tion No 535/87 and recital 101 in the preamble to Commis sion Regulation No 2640/86. They state that a large propor points out that according to the Court's tion of European manufacturers produce photocopiers from case-law the tariff rule can be applied only if Japanese components and that it is not reasonable to exclude products with Japanese components from the benefits of all the components necessary for assembling anti-dumping measures merely because those goods may have a relatively low added value in the Community. the finished article are put forward simulta If in specific situations a danger arises of evasion of anti
9 neously for customs clearance. It also con dumping rules, that may be countered by specific provisions in the relevant anti-dumping regulations, like those which tends that if all the components are pre have in fact been adopted in connection with the anti dumping duty in question here (see Council Regulation sented at the same time, it may be presumed No 1761/87 of 22 June 1987 amending Regulation No 2176/84 on protection against dumped or subsidized that all those components can be used for imports from countries not members of the European Eco only one purpose, namely the assembly of nomic Community — OJ 1987 L 167, p. 9).
The following 10 explanation of the background to and content of that regu the finished article. According to the lation is given in its preamble: Commission, goods which are presented in 'Experience gained from the implementation of Regulation (EEC) No 2176/84 has shown that assembly in the Commu kit form normally constitute complete art nity of products whose importation in a finished state is sub icles since they have all the essential charac ject to anti-dumping duty may give rise to certain difficulties;
. . . in particular: teristics of the article apart from the actual — where assembly or production is carried out by a party which is related or associated to any of the manufacturers functioning which is not significant for tariff whose exports of the like product are subject to an anti classification. Since they do not require pro dumping duty, and — where the value of the parts or materials used in the cessing in order to be assembled, they are assembly or production operation and originating in the country of origin of the product subject to an anti finished products. dumping duty exceeds the value of all other parts or materials used, such assembly or production is considered likely to lead to circumvention of the anti-dumping duty;
. . . in order to prevent circumvention it is necessary to pro vide for the collection of an anti-dumping duty on products 9 — See the judgment in Case 183/73 Osram [1974] ECR 477. thus assembled or produced'. 10 — See the judgment in Case 295/81 IFF [1982] ECR 3239.
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In essence the Commission's view is there would appear to be in line with that case-law fore that the provision must apply if all the for articles which are presented in kit form individual components of an article are pre to be classified as the finished article to sented to customs at the same time (regard which the kit relates, without it being neces less of whether there are two or 2 000 indi sary for the customs authorities to assess the vidual components). There is nothing in the complexity of the assembly method. provision regarding the method of assembly and therefore the question whether the assembly process is simple or complicated cannot be taken into account.
17. The Commission's arguments do undoubtedly have some force. If components are presented in the form of a kit for the pur poses of assembly into a finished article, it is on the face of it logical to assume that they 19. It may probably be presumed that the represent a non-assembled article within the object of the tariff rule was to facilitate cus 12 meaning of the tariff rule. The despatcher toms processing. designed and produced the parts with a view to creating a unit; it is that unit which the recipient wants; the dispatcher provides the necessary guidance for assembly in the form of instruction diagrams, manuals, etc.; the kit contains all the necessary components; actual manufacture of individual components is not envisaged.
An importer who imports all the compo 18. The Commission has further pointed out nents necessary to produce a finished article that the Court has consistently held that is afforded the possibility of having the com having regard to legal certainty and the pos ponents classified as the finished article, that sibility of review, classification should as far is to say the parts are not classified in the tar as possible be on the basis of objective char iff headings relating to parts and accessories acteristics and qualities of goods and that reference may be made to the methods of production only where there is particular 1 justification therefor. 1 At first sight it 12 — The tariff rule was inserted in the Common Customs Tariff with effect from 1 January 1972 as a result of a recommen dation adopted on 9 June 1970 by the Customs Coopera tion Council which was approved by the Community Member States by a decision of the Council of 21 June 1971
11 — See for example Case C-338/90 Hamlin [1992] ECR I-2333, (Journal Officiel 1971 L 137, p. 10). No further details of the object of the provision have been put forward in this paragraph 8. case.
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for the article in question — if such headings ly. This also suggests that the interpreta exist — or in the tariff headings which the tion advocated by the Commission is the 13 components would otherwise fall under. right one.
It may be presumed that one of the aims of 20. If I nonetheless still have considerable the provision was to afford importers the doubts as to whether that result is correct, possibility of thereby simplifying customs that is due to the existence of the Customs processing. Of course the provision must be Cooperation Council's explanatory note. applied if the relevant conditions are met — whether or not that is advantageous for the importer from the customs point of view — but since, as mentioned above, one condition for its application is that the components must be presented at the same time, it must be acknowledged that in practice it may be As mentioned above, that note states that difficult to prevent importers from avoiding 'articles presented unassembled or disassem the application of the provision. bled' means articles 'the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolts, etc.) or by rivetting or welding, for example, provided only simple assembly operations are involved'.
In those circumstances it does not seem rea sonable to interpret the provision narrow
13 — See the judgment in Case 165/78 IMCO [1979] ECR 1837 in which the Court held: It is that explanatory note which is the main 'With regard to Questions 1 and 2, tariff heading 98.03 cov argument in support of Develop Eisbein's ers on the one hand complete articles such as fountain-pens and stylograph pens, and, on the other, "parts and fittings". interpretation and which also forms the basis It is clear from the general plan of that heading and from the very concept of "parts and fittings" that that tariff cat for the Finanzgericht's view that it is most egory implies the existence, even if possibly only in the appropriate to interpret the tariff rule as future, of a complete article of which such pieces are fittings or parts. It follows that, given the existence of the constit meaning that reference should be made to uent parts, disassembled or not yet assembled, of a com plete article, such parts cannot be classified as "parts and fittings", within the meaning of subheading 98.03 C II, in respect of the complete article of which they form the total ity of the components. The reply to the first two questions submitted by the 14 — Develop Eisbein has claimed that the tariff rule should be national court must therefore be that General Rule 2(a) for interpreted restrictively in so far as it represents a deroga the Interpretation of the Nomenclature of the Common tion from an alleged general rule that only finished articles Customs Tariff covers articles not yet assembled as well as are covered by the individual headings of the customs tariff. articles which have been disassembled and to the extent to I have some doubt as to whether that view is correct. The which the parts not yet assembled allow of the assembly of tariff rule specifies in general terms what is covered by a complete article they are covered by the provisions gov headings of the customs tariff. It is inappropriate to erning that article even though the Common Customs Tar describe it as a derogation from a rule of general applica iff contains a specific heading for parts and fittings (para tion. It should be interpreted on the basis of the principles graphs 7 and 8).' of interpretation referred to above.
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whether the method of assembly is simple or beyond the discretion conferred on the Cus complex. toms Cooperation Council.
But I consider that notwithstanding what has 21. Against that the Commission contends just been said regarding the most appropriate first that it is apparent from the Court's construction of the provision, it is not poss case-law that the explanatory notes are not ible to hold that its wording is so clear that binding for the purposes of interpretation the explanatory note is to be regarded as and that it is necessary to examine whether incompatible with it. they are in accordance with the actual provi sions of the Common Customs Tariff. Sec ondly the Commission states that the object of the explanatory note is to make it clear that the tariff rule is not rendered inapplica ble by insignificant alterations to the sub stance of the components which result from 23. The key word in the tariff rule is 'unas simple assembly processes but that the pro sembled'. The Court has held: 'In ordinary vision does not apply if those components language, the concept of assembly is taken to must be subject to comprehensive processing mean the operation whereby the components before assembly. (of a mechanism, a device or a complex object) are assembled in order to render it 16 serviceable or to make it function'. It is not possible to hold, without more, that there is no need to clarify the requirements that must be met by a given process for it to be the relevant link between the non- assembled parts and the finished article. 22. On that basis it is first necessary to decide whether any significance at all is to be attached to the explanatory note.
It may in any event be noted that the mem bers of the Customs Cooperation Council were agreed that it was appropriate to draw up an explanatory note in order to facilitate It is clear from the case-law of the Court the application of the tariff rule and thus to that reference must be made to the explana ensure that it was applied in a uniform man tory notes of the Customs Cooperation Council in interpreting the Community's customs tariff. But the Court has also held 15 — See Case 38/75 Nederlandse Spoorwegen [1975] ECR 1439, that they must not be taken into account if paragraphs 24 and 25, Case C-233/88 Kolk [1990] ECR they are incompatible with the wording of I-265, paragraphs 9 and 19, and Case 200/84 Daiber [19851 ECR 3363, paragraph 14. the heading concerned or go manifestly 16 — Case 295/81 IFF [1982] ECR 3239.
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ner. There has been nothing to suggest that condition is that 'only simple assembly oper the EC institutions or Member States con ations are involved'. sidered it necessary to object to the existence of that explanatory note. Accordingly the explanatory note should be applied in order to determine the significance of the tariff rule. 26. Support is also to be found in the case- law of the Court for opting for the interpre tation of the explanatory note which Develop Eisbein and the Finanzgericht con sider is the right one, namely that application of the tariff rule is precluded if assembly necessitates the use of complicated assembly 24. It is therefore necessary to decide how methods. the explanatory note is to be construed. As mentioned above the Commission seeks to interpret it in such a way that it has a con tent which is consistent with the Commis sion's interpretation of the tariff rule. The Commission is interpreting the explanatory 27. The Court referred to the explanatory 19 note on the basis of the rule which that note note in its judgments in Osram and in the 20 is intended to interpret. The result obtained IFF case. In paragraph 7 of the judgment by the Commission is that the explanatory in Osram the Court held: note gives the tariff rule a very broad scope, namely so as to embrace to some extent also assembly of components even if the compo nents are subject to processing.
'Account should further be taken of the Explanatory Note to the Brussels Nomen clature relating to this provision, according to which a disassembled article is any article
25. I do not believe that the explanatory 18 — In the Danish, 'samlingen kun kræver enkle arbejdsfunk note can be understood in the manner tioner', in the French version 'qu'il s'agisse bien de simples argued for by the Commission. It uses opérations de montage' and in the German translation 'wenn es sich dabei tatsächlich um einfaches Zusam expressions which show that account is mensetzen handelt'. taken of the nature of the actual method of 19 — Case 183/73 Osram [1974] ECR 477. 20 — Case 295/81 IFF [1982] ECR 3239; the Court held: 'that assembly and not whether or not the compo interpretation is moreover confirmed by paragraph VI of nents are processed. Expressions are used the Explanatory Notes to the Customs Cooperation Coun cil Nomenclature, according to which articles whose vari like 'to be assembled by means of simple fix ous components are intended to be assembled either by 17 simple means (nuts, bolts and the like) or, for example, by ing devices', and it is stressed that one rivetting or welding, must be regarded as unassembled or disassembled'. In his Opinion on that case Advocate Gen eral Sir Gordon Slynn cited the explanatory note and stated: 'Whether, as I think, the reference to simple assem bly operations refers to the application of simple fixing devices and to rivetting and welding, or only to the rivet- 17 — In the Danish, 'samles ved hjælp af simple samleanord- ting and welding, it seems to me that the essential idea is ninger', in the French version 'être assemblés ... à l'aide de clear. What is required is a simple mechanical means of fit moyens simples' and in the German translation 'durch ein ting together'. fache Hilfsmittel'.
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"the components of which are to be assem Develop Eisbein claims that those words bled either by means of simple fixing devices show that the tariff rule is not intended to (...) or by rivetting or welding, for example, cover situations where the import is made provided that only simple assembly opera with a view to the processing of individual tions are involved"; it is for the national components. It would seem that there is court to decide whether the welding of some force in that argument but it is not lenses to the reflectors in question in fact ful conclusive. fils these requirements'.
31. The judgment of the Court in 21 Case 26/88 Brother International GmbH is relevant to a decision by the Court on the question referred to it by the Finanzgericht for a number of reasons. 28. I do not believe that the other arguments set out in the observations can lead to any other result.
32. In Brother the Court interpreted Ar icle 5 of Council Regulation No 802/68 of 27 June 1968 on the common definition of the concept of origins of goods. Article 5 of that regulation provides: 'a product in the pro duction of which two or more countries 29. The Commission has disputed that it were concerned shall be regarded as originat should be of any significance for the inter ing in the country in which the last substan pretation of the provision that in certain cir tial process or operation that is economically cumstances, for example in the event of any justified was performed, having been carried differences in the customs burden for fin out in an undertaking equipped for the pur ished articles and parts for the production of pose, and resulting in the manufacture of a finished articles, it might be appropriate to new product or representing an important give some protection to undertakings in the stage of manufacture'. Member States which assemble imported components and thus give them added value.
The Court was asked to rule to what extent assembly processes can be regarded as sub stantial processes or operations. In para graph 17 of its judgment the Court held:
30. Develop Eisbein has referred to para graph V of the Customs Cooperation Coun cil's explanatory notes on the second part of "'Simple assembly operations" means opera Rule 2(a) which states inter alia that when tions which do not require staff with special goods are presented disassembled, it is usu ally for reasons such as requirements or con venience of packing, handling or transport. 21 — Case 26/88 Brother International [1989] ECR 4253.
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qualifications for the work in question or 35. The Commission points out that its sophisticated tools or specially equipped fac answer to that question renders any reply to tories for the purposes of assembly. Such Questions 2 and 3 superfluous. It further operations cannot be held to be such as to observes that the difference between the contribute to the essential characteristics or objects underlying the rules on origin and properties of the goods in question.' the objects underlying the tariff provision is so great that the interpretation by the Court of the rules on origin is not relevant to the interpretation of the tariff rule.
33. Develop Eisbein relies on that judgment in support of its view as to the answer to be given to the Finanzgericht's first question and states that there are grounds for also applying the criteria set out in Brother in the present case.
36. It is appropriate to set out the comments made by the Finanzgericht on this issue in its order for reference. It states: 'the tariff clas sification, on the one hand, and the determi nation of origin, on the other, serve different 34. The Finanzgericht's second and third purposes. Essentially the rules conferring questions also take the judgment in Brother origin serve the purpose of determining the as their starting point. In its second question country in which the last substantial process the Finanzgericht asks, in the event that the or operation took place (country of origin) answer to Question 1 is negative, that is to .... Rule 2(a) seeks to simplify tariff classifica say if none of the three criteria mentioned is tion of a large number of individual compo applicable, whether the tariff provision is to nents of an article supplied simultaneously; 'be interpreted as meaning that an article is the "simple assembly operations" criterion deemed to be presented unassembled where results in the application of a single tariff the assembly of its individual parts, supplied heading for all individual components. This together, does not require staff with special divergence in the objectives pursued can, qualifications for the work in question or however, but need not, entail the conse sophisticated tools or specially equipped fac quence that the concept of "simple assembly tories for the purposes of assembly'. operations" as applied by the Court of Jus tice of the European Communities in regard to the rules on origin may not have the same substantive meaning as the same term in regard to tariff classification. Those are not legal concepts whose content is influenced by the objective pursued by the relevant In its third question the Finanzgericht asks rules but they are in each case purely factual whether, in the event that Question 1(a) is concepts. Their components "simple" and answered in the affirmative, the criteria men "assembly" are not predetermined in accor tioned in Question 2 may be used in addi dance with their objective, but both in the tion.
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explanatory notes of the Customs Coopera order to determine whether the interpreta tion Council on Rule 2(a) and in the judg tion argued for by the Commission or that ment of the Court are explicitly interpreted argued for by Develop Eisbein is correct. in accordance with general linguistic usage. This is a reason for drawing on at any rate paragraph 17 of the judgment of the Court in the interpretation of the second sentence of Rule 2(a)'. However, if the interpretation put forward by Develop Eisbein is the right one — which, as mentioned above, I believe to be the case in the light of the content of the 37. It must in my view be presumed that the explanatory note — there are strong grounds objects of the rules on origin and those of for holding that in determining whether the tariff rule at issue here are different. No complex assembly methods are involved, conclusive arguments may therefore be account is also to be taken of the factors drawn from the judgment in Brother in referred to in the judgment in Brother.
Conclusion
38. I therefore propose that the Court give the following answer to the questions referred to it:
The second sentence of Rule 2(a) is to be interpreted as meaning that an article is presented unassembled if the technical means which must be applied in assembling the components do not necessitate a complex method of assembly. In determining whether a simple or complex assembly method is involved, account may be taken inter alia of whether the assembly of the components requires staff with special qualifications for the work in question, sophisticated tools or specially equipped factories for the purposes of assembly.
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