C-467/93

ANALOG DEVICES

J U D G M E N T O F T H E C O U R T (Third Chamber) 1 June 1995 *

In Case C-467/93,

REFERENCE to the Court under Article 177 of the E C Treaty by the Bundesfi- nanzhof for a preliminary ruling in the proceedings pending before that court between

Hauptzollamt München-West

and

composed of: C. Gulmann, President of the Chamber, J. C. Moitinho de Almeida and J.-P. Puissochet (Rapporteur), Judges,

Advocate General: G. Tesauro, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

— Analog Devices G m b H , by Peter Schade, Rechtsanwalt, Munich,

— the Commission of the European Communities, by Francisco de Sousa Fialho, of the Legal Service, acting as Agent, assisted by Hans-Jürgen Rabe, Rechtsan- walt, Hamburg and a member of the Brussels Bar,

having regard to the report of the Judge-Rapporteur,

tation of Council Regulations (EEC) N o 3841/86 of 8 December 1986 (OJ 1986 L 362, p. 1), N o 1828/87 of 15 June 1987 (OJ 1987 L 177, p. 1), N o 3734/87 of 8 December 1987 (OJ 1987 L 358, p. 1), N o 1779/88 of 9 June 1988 (OJ 1988 L 164, p. 1), N o 3696/88 of 18 November 1988 (OJ 1988 L 329, p. 1), N o 1656/89 of 29 May 1989 (OJ 1989 L 167, p. 1) and N o 3393/89 of 16 October 1989 (OJ 1989 L 332, p. 1), temporarily suspending the autonomous Common Customs Tariff duty on certain industrial products.

2 That question was raised in proceedings between Hauptzollamt München-West (Principal Customs Office, Munich West, hereinafter 'the H2A') and Analog Devices G m b H (hereinafter 'Analog Devices') concerning the applicability of the aforementioned regulations to certain analog-to-digital converters for the calcula- tion of the average value of variable wave-forms.

3 Those regulations provided for the suspension of customs duties in respect of the following product falling within tariff heading 85.21 D II (1987), subsequently ex 8542 11 99 (1988 to 1990):

'Analogue-to-digital converter for the calculation of the average value of variable wave-forms, in the form of a monolithic integrated circuit, contained in a housing the exterior dimensions of which do not exceed 18 x 10 mm, with not more than 14 connecting pins and bearing:

— an identification marking consisting of or including the following combination of figures and letters:

A D 536 A

5 Analog Devices considered that that regulation was applicable to monolithic inte- grated circuits contained in a circular housing having a diameter of 9.4 mm with regard to which it had paid customs duties in respect of the period from 1 January 1987 and 31 January 1990 inclusive. It consequently applied to the H Z A for the repayment of those duties. Following the refusal of its application, it brought pro- ceedings in the Finanzgericht München (Finance Court, Munich), which ordered the H Z A to repay the duties in question. The H Z A then brought an appeal before the Bundesfinanzhof.

6 The Bundesfinanzhof has referred to the Court for a preliminary ruling on the fol- lowing question:

'Are the suspensions of customs duties in respect of analog-to-digital converters for the calculation of the average value of variable wave-forms, in the form of a monolithic integrated circuit, contained in a housing the exterior dimensions of

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ANALOG DEVICES

which do not exceed 10 x 18 mm (ex tariff heading 85.21 D II (1987) and subheading 8542 1199 (1988 to 1990) of the Common Customs Tariff), applied pursuant to Council Regulation (EEC) Nos 3841/86 of 8 December 1986 (OJ 1986 L 362, p. 1), N o 1828/87 of 15 June 1987 (OJ 1987 L 177, p. 1), N o 3734/87 of 8 December 1987 (OJ 1987 L 358, p. 1), N o 1779/88 of 9 June 1988 (OJ 1988 L 164, p. 1), N o 3696/88 of 18 November 1988 (OJ 1988 L 329, p. 1), N o 1656/89 of 29 May 1989 (OJ 1989 L 167, p. 1) and N o 3393/89 of 16 October 1989 (OJ 1989 L 332, p. 1), to be interpreted as meaning that the description of the goods referred to in each of those regulations also covers corre- sponding converters contained in circular housings having a diameter of 9.44 mm?'

io Moreover, the genesis of the provision at issue suggests that it applied from the outset to circular housings as well as rectangular ones. As the Commission observes, the initial version of that provision, which expressly identifies the prod- uct by the combination of numbers and letters AD 536 A, resulted from a request made by the United Kingdom delegation. It is apparent from the manufacturer's description annexed to that request that the A D 536 A is produced in three differ- ent models, which are available either in rectangular housings with fourteen con- necting pins or in circular housings with ten connecting pins.

1 1 Accordingly, it should be stated in reply to the question from the national court that Regulations N o s 3841/86, 1828/87, 3747/87, 1779/88, 3696/88, 1656/89 and 3393/89 must be interpreted as meaning that the description of the product ex tar- iff heading 85.21 D I I and subsequently ex 8542 1199, defined as an analog-to- digital converter contained in a housing the exterior dimensions of which do not exceed 1 8 x 1 0 mm, also covers converters contained in circular housings the diam- eter of which does not exceed 10 mm.

Costs

i2 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

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ANALOG DEVICES

R. Grass C. Gulmann

Registrar President of the Third Chamber

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