C-67/95
ECLI:EU:C:1996:490
- Súd
- Súdny dvor Európskej únie
- IČS
- 61995CC0067
- Zdroj
- eur-lex.europa.eu ↗
RANK XEROX v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 12 December 1996 *
I — Introduction by means of a scanner which records the data of the document to be reproduced and memorizes them in the form of digital units. The data thus stored can be retrieved for the purpose of printing on paper.
1. In these proceedings, the Tariefcommissie seeks a ruling from the Court on the correct classification in the Common Customs Tariff of machines which combine the functions of photocopiers and fax machines and use a 3. The plaintiff subsequently objected to its digital process for that purpose. own declaration, with a view to securing classification of the apparatus in question under subheading 8472 90 90 of the Com- mon Customs Tariff.
II — The facts
However, on 2 July 1992 the defendant, by the decision contested in the main proceed- ings, confirmed the earlier classification. The 2. According to the order for reference, in plaintiff then commenced proceedings January 1992 the plaintiff in the main pro- against that decision before the Tariefcom- ceedings imported the machines at issue in missie. That court seeks a preliminary ruling this case — namely Xerox 3010 and Xerox from the Court of Justice on the following 3010 Editor machines — specifying heading question: 9009 21 00 for the purpose of customs classi- fication. The order for reference indicates that those machines can both send faxes and make photocopies. The Xerox 3010 Editor can also process the pictures obtained. Both the machines at issue photocopy the image
' H o w is the Common Customs Tariff, as * Original language: Italian. amended by Regulation (EEC) N o 2587/91,
I - 5403
OPINION OF MR LA PERGOLA — CASE C-67/95
to be interpreted for the purposes of the tar- wrapping machines, pencil- iff classification of the Xerox 3010 and Xerox sharpening machines, perforat- 3010 Editor machines described in the body ing or stapling machines): of the present reference?'
8472 10 00 — Duplicating machines
Ill — The relevant legislation
Commission Regulation (EEC) N o 2587/91 of 26 July 1991 amending Annex I to Coun- cil Regulation (EEC) N o 2658/87 on the tar- 8472 90 — Other: iff and statistical nomenclature and on the Common Customs Tariff ' (hereinafter 'Regulation N o 2587/91') contains the fol- lowing headings: 8472 90 10 Coin-sorting, coin- counting or coin- wrapping machines
4. 'Section XVI 8472 90 90 Other
» ... Chapter 84 ...
5. Regulation N o 2587/91 also includes the following: 8472 Other office machines (for example, hectograph or stencil duplicating machines, address- ing machines, automatic bank- note dispensers, coin-sorting 'Section XVIII machines, coin-counting or
1 — OJ 1991 L 259, p. 1. ... Chapter 90 ...
I - 5404
RANK XEROX v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
9009 Photocopying apparatus incor- 9009 22 Of the contact type: porating an optical system or of the contact type and thermo- copying apparatus:
— Electrostatic photocopying apparatus:
9009 30 00 — Thermo-copying apparatus'.
9009 11 00 Operating by reproduc- ing the original image directly onto the copy (direct process)
6. The general rules laid down by Regu- lation N o 2658/87 (hereinafter 'the general rules'), which also apply to Regulation N o 2587/91, provide as follows:
9009 12 00 Operating by reproduc- ing the original image via an intermediate onto the copy (indirect process)
'A. General rules for the interpretation of the combined nomenclature
— Other photocopying appara- tus:
1. The tides of sections, chapters and sub- chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the 9009 21 00 Incorporating an optical headings and any relative section or chapter system notes and, provided such headings or notes
I - 5405
OPINION OF MR LA PERGOLA — CASE C-67/95
do not otherwise require, according to the sale, those headings are to be regarded as following provisions. equally specific in relation to those goods, even if one of them gives a more complete or precise description of the 2. (a) Any reference in a heading to an goods. article shall be taken to include a ref- erence to that article incomplete or unfinished, provided that, as pre- (b) Mixtures, composite goods consisting of sented, the incomplete or unfinished different materials or made up of differ- article has the essential character of ent components, and goods put up in the complete or finished article. It sets for retail sale, which cannot be clas- shall also be taken to include a refer- sified by reference to 3(a), shall be clas- ence to that article complete or fin- sified as if they consisted of the material ished (or falling to be classified as or component which gives them their complete or finished by virtue of this essential character in so far as this crite- rule), presented unassembled or disas- rion is applicable. sembled.
(c) When goods cannot be classified by ref- (b) Any reference in a heading to a mate- erence to 3(a) or (b), they shall be classi- rial or substance shall be taken to fied under the heading which occurs last include a reference to mixtures or in numerical order among those which combinations of that material or equally merit consideration. substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods 4. Goods which cannot be classified in consisting wholly of partly of such accordance with the above rules shall be clas- material or substance. The classifica- sified under the heading appropriate to the tion of goods consisting of more than goods to which they are most akin. one material or substance shall be according to the principles of rule 3.
» 3. When by application of rule 2(b) or for any other reason, goods are prima facie clas- sifiable under two or more headings, classifi- cation shall be effected as follows: 7. The notes to section XVI of the Customs Tariff contained in Regulation N o 2587/91 state: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or ' 1 . This section does not cover: more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail
I - 5406
RANK XEROX v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
(m) Articles of C h a p t e r 90; p u r p o s e of p e r f o r m i n g t w o o r m o r e c o m p l e - m e n t a r y o r alternative functions are t o be classified as if consisting only of that c o m p o - n e n t o r as being that machine w h i c h per- forms t h e principal function.
j
2. ...
8. T h e annex t o C o m m i s s i o n Regulation 3. U n l e s s t h e context otherwise requires, ( E E C ) N o 3417/88 of 31 O c t o b e r 1988 c o n - c o m p o s i t e machines consisting of t w o o r cerning the classification of certain goods in m o r e machines fitted together to form a t h e c o m b i n e d n o m e n c l a t u r e 2 (hereinafter w h o l e and o t h e r machines adapted for the ' R e g u l a t i o n N o 3417/88') states:
Description of the goods Classification C N code Reasons
(1) (2) (3)
2. Electronic system for printing 8472 90 Classification is determined by the provi- from digital data sions of general rule 1 and the texts of C N codes 8472 and 8472 90 90. A laser beam discharges selectively a pre- charged electro-sensitive surface corre- sponding to the required image. Nega- tively charged particles of dry ink are then applied to the photoreceptor where they adhere to the positive area to form the desired image. This image is then trans- ferred onto a positively charged sheet of paper, and subsequently fixed by heat. Heading 9009 does not apply as the print is produced directly from digital data and not by means of an original document.
2 — OJ 1988 L 301, p. 8.
I - 5407
O P I N I O N OF MR LA PERGOLA — CASE C-67/95
9. T h e annex t o C o m m i s s i o n R e g u l a t i o n c o m b i n e d n o m e n c l a t u r e 3 (hereinafter ' R e g u - ( E C ) N o 1165/95 of 23 M a y 1995 c o n c e r n - lation N o 1165/95'), states: ing t h e classification of certain g o o d s in the
Classification Reason Description of goods C N code
9009 12 00 Classification is determined by the 6. A laser copier comprising mainly a provisions of General Rules 1 and 6 device for scanning (scanner), a digital for the interpretation of the com- image processing device and a printing bined nomenclature and by the device (laser printer), contained in a hous- wording of C N codes 9009 and ing. 9009 12 00
The scanning device uses an optical system, consisting of a lamp, mirrors, lenses and photocells to scan the original image line by line.
The copies are produced electrostatically via a drum on the laser printer using the indirect process. The laser copier has sev- eral additional features for altering the original image, e. g. reduction, enlarge- ment, shading
I V — Analysis of the dispute p r e t a t i o n 4 of R e g u l a t i o n N o 2 5 8 7 / 9 1 . R e g u - lation N o 1165/95 is i n t e n d e d t o clarify t h e
3 — OJ 1995 L 117, p. 15. 4 — According to the preamble to Regulation N o 1165/95, the reason for its adoption is that 'Regulation (EEC) N o 2658/87 has set down the general rules for the interpretation of the combined nomenclature and those rules also apply to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is 10. I n m y view, t h e a n s w e r t o t h e q u e s t i o n established by specific Community provisions, with a view referred t o t h e C o u r t b y the national c o u r t is to the application of tariff and other measures relating to trade in goods; ... pursuant to the said general rules, the t o be f o u n d in Regulation N o 1165/95 itself: goods described in column 1 of the table annexed to the present regulation must be classified under the appropriate a l t h o u g h a d o p t e d after t h e material time, it C N codes indicated in column 2, by virtue of the reasons set m a y be regarded as p r o v i d i n g a reliable inter- out in column 3'.
I - 5408
RANK XEROX v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
classification of certain goods, including the should therefore be regarded as falling machines in question, in the Common Cus- within heading 8472 90. toms Tariff. The provisions of that regu- lation, having been adopted by the legislature in order to provide an authentic interpreta- tion, are in turn binding on anyone inter- preting the Treaty and Community law. O n the basis of Regulation N o 1165/95, the machines whose specification is in dispute in this case are therefore to be classified under subheading 9009 12 00. 12. According to the plaintiff, the machines in question cannot be regarded as optical reproduction systems since they are not tra- ditional photocopying machines. Machines like the Xerox 3010, says the plaintiff, con- vert the image into new digital data and can- not therefore be treated in the same way as 11. In the event of the Court not accepting the systems used by normal photocopying that Regulation N o 1165/95 provides an machines. authentic interpretation of Regulation N o 2587/91, I shall now set out further reasons for reaching the conclusion given above regarding classification of the machines at issue.
To my mind, that view cannot be upheld. Moreover, as the Commission has pointed out, heading 9009 covers not only photo- The plaintiff's arguments focus essentially on copiers incorporating an optical system and two points. It alleges first that the machines direct reproduction, like those covered by in question cannot be regarded as photocopi- subheading 9009 11 00 but also others which ers incorporating an optical system, with the achieve that result by means of an intermedi- result that they cannot, in view of their pho- ate, which are classified under subheading tocopying function, be treated as apparatus 900912 00. The latter subheading covers as of the kind covered by heading 9009. instruments which can reproduce a docu- ment by means of an indirect process. In this case, the intermediate stage in the reproduc- tion process consists of conversion of the image into digital data. It is irrelevant that the indirect process employed by the Xerox 3010 and Xerox 3010 Editor machines uses The second argument is that the characteris- very advanced technology since, as the Court tics of the machines in question correspond has made clear elsewhere, 5 the application of to those of subheading 8472 90. According to the plaintiff, it follows that general rule for interpretation 3(c) cannot be applied to 5 — See Case 122/80 Analog Devices v HauptzoUamt München- this case. The machines to be classified Mitte and HauptzoUamt München-West [1981] ECR 2781.
I - 5409
OPINION OF MR LA PERGOLA — CASE C-67/95
technological innovations does not in itself to which the Xerox machines at issue are put change the customs classification of the appear in any way similar to that covered by product concerned. heading 8472.
14. In my opinion, the plaintiff's reference to Regulation N o 3417/88 does not avail it. The classification for which that regulation It follows that those machines, at least as provides relates to electronic systems for regards the reproduction of documents (the printing from digital data, not photocopiers photocopying function), can legitimately be of documents. It is significant that that clas- included under heading 9009, and, in par- sification places emphasis on the source from ticular, under subheading 9009 12 00. which the printing derives: if it is simply from digital data and not photocopies of original documents, Regulation N o 3417/88 excludes the application of heading 9009. In other words, it is to be inferred from the note setting out the reasons for the classifica- tion that if the printing process is based, albeit with an intermediate digital stage, on photocopied original documents, the appro- priate classification is not subheading 8472 90 90 but heading 9009. Even though the description corresponding to heading 13. The second point concerns the possibil- 8472 is drafted in rather general terms, and ity of treating the machines in question as not without some ambiguity, I therefore corresponding to those classifiable under consider that machines of the kind at issue in subheading 8472 90. They are office this case cannot be included under that head- machines, with which heading 8472 is con- ing. cerned on a wholly residual basis. From the description of the apparatus covered by that heading, which is given by the Customs Tar- iff merely by way of example, it appears that such instruments are essentially mechanical in their structure and operation and there- fore do not fully display the characteristics inherent in the machines to be classified in this case. The machines at issue here are, by 15. The fax function of the machines at issue contrast, made up of electronic components should be taken into account. In view of that and, on close examination, their mechanisms function, it becomes important, although not cannot be assimilated to the simpler struc- decisive, for the Court's examination, as I ture which typifies the residual category cov- shall explain, to analyse heading 8517 which ered by heading 8472. N o r does the purpose relates to electrical apparatus for line tele-
I-5410
RANK XEROX v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
phony or line telegraphy, a category which The plaintiff considers that, by reason of includes fax machines. their composite nature, the machines in question do not fall into either of the catego- ries considered first above, relating respec- tively to photocopying machines and fax machines. In its view, subheading 8472 90 90 of the Customs Tariff is the only appropriate classification. Accordingly, in the plaintiff's opinion, it would not therefore be possible 16. Under what heading therefore should to apply general rule 3(c), as advocated by the Xerox machines at issue here be classi- the Commission, according to which, where fied? a product is capable of being classified under several headings, the last one is to be pre- ferred.
The defendant's contention can be immedi- ately disposed of: subheading 9009 21 00 relates to an exclusively optical, rather than electrostatic, photocopying process, and does not therefore cover the characteristics of the machines in question. More specifically, the plaintiff regards as applicable to this case note 3 to section XVI of the Customs Tariff, which takes account of the principal function performed by machines with more than one function; the (prevailing) characteristic of the apparatus in question is, in its view, that of office machines, not classifiable elsewhere. It therefore remains to consider which of the remaining possibilities of classification, in accordance with the provisions of the Com- munity customs nomenclature, is most appropriate here.
However, in my opinion, that tariff provi- sion is not relevant here. Paragraph l(m) of the explanatory notes to section XVI, which 17. The general rules for interpretation of includes subheading 8472 90 90 but not the Common Customs Tariff provide useful heading 9009, indicates that that section does criteria for direct classification of the not include articles of Chapter 90. Accord- machines. This applies in particular to rule ingly, as noted earlier, there is no possibility N o 3. of applying subheading 8472 90 90 to the
I-5411
OPINION OF MR LA PERGOLA — CASE C-67/95
machines in question, since they are appara- 18. Accordingly, the matter must be resolved tuses which without doubt perform photo- by reference to general rule N o 3. copying functions.
According to general rule 3, and in particular paragraph (c), the machines at issue in this case are to be classified under the last of the subheadings which appear in theory to be Moreover, it might be conceded, for the sake applicable. Thus, on the basis that the of argument, that the limiting criterion laid machines in question may, at least in part, be down in note l(m) was not applicable to this classified, as a result of their multiple func- case and that therefore, in deciding the mat- tions, either under heading 8517, which cov- ter, account could be taken of note 3. Classi- ers electrical apparatus for line telephony or fication of the machines in question would line telegraphy, a category into which fax therefore be made in accordance with the machines fall, or under heading 9009, which criterion of the principal function laid down covers photocopiers, or again, to grant the in note 3. However, note 3 to section XVI benefit of the doubt, under subheading cannot be applied here because it is impos- 8472 90 90, contended for by the plaintiff, sible, from the documents at present before recourse must in any event be had to heading the Court, to establish the prevalent function 9009, and specifically to subheading performed by the machines in question. 9009 12 00, for proper classification of the Consequently, the appropriate heading must machines at issue, since that is the last in be chosen by reference to the criterion laid numerical order of those of which account down in general rule 3. could be taken.
V — Conclusion
19. F o r the foregoing reasons, I suggest that the following answer be given to the Tariefcommissie:
X e r o x 3010 and X e r o x 3010 E d i t o r machines are t o be classified u n d e r subheading 9009 12 00 of the C o m m o n C u s t o m s Tariff, in the v e r s i o n c o n t a i n e d in Regulation (EEC) N o 2587/91.
I-5412