C-463/98

CABLETRON

OPINION OF ADVOCATE GENERAL JACOBS delivered on 1 February 2001 1

1. This is a request for a preliminary ruling Factual, legal and procedural background from the Appeal Commissioners, Ireland, in an area already touched upon in Pea- cock, 2namely the classification for cus- toms purposes of items of equipment used to enable computers to be connected in a local area network ('LAN'). Since such equipment may operate in computer net- The nature of computer networks works extending beyond the purely local, it may be referred to more generally as 'net- work equipment'.

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had no processing capacity of their own but of these, typically covering a single building could be used by different operators to give or complex of buildings, are called LANs. instructions to the central processing unit Larger areas may be covered by MANs and obtain the relevant results. (metropolitan area networks) and WANs (wide area networks). Different networks can be connected together to allow com- munication between them and ultimately the vast majority of them (together with many home computers) are linked on a global level to form the internet. 5. The first computers were large, and some remain so. Advances in data-pro- cessing technology have meant, however, that today's large machines have very much more processing and storage capacity than their predecessors of similar size. The same advances have meant that very much smaller machines now possess considerable capacity and have become, in the developed world, a standard feature in many homes 8. The physical links between machines and workplaces. In the latter, it is common may take different forms, including infra- for each individual to have his or her red beams. Most commonly, however, some personal computer with its own processing form of cable is used — within LANs and storage capacity. usually coaxial, twisted-pair or fibre-optic cable. In order to communicate over the cable, each computer must possess a net- work card of the type considered by the Court in Peacock.

used by most computers and the analogue cable. Beyond a certain size of network, it form used at each end of a telecommunica- will no longer be practical to have literally tion link. Now, however, telecommunica- every computer broadcasting and 'listening' tion networks often use digital techniques to each of the others all of the time; it then and a modem is no longer always required. becomes desirable to have devices which divide a LAN into smaller, more manage- able, segments (often known as virtual LANs or 'VLANs', a term also used for groups of discrete networks which function as if they were one) and which will direct communications only towards the segments in which the addressees are situated. It may 10. A specific difference between telecom- also be necessary to deal with situations in munication and LAN technologies is that in which several machines on the network are the former, a 'point-to-point' link is set up attempting to communicate at once and between the two communicating parties for their messages are 'colliding' or (in parti- each communication. At the end of the cular where LANs are connected to other communication, the link is 'torn down', networks, including the internet) in which and the parties are no longer in contact. In it is undesirable that certain types of a LAN, however, all the computers forming message should enter or exit the network. part of the network are constantly con- nected. A communication from one of those machines to another is 'broadcast' over the whole network but only accepted by the designated recipient or recipients.

13. Such devices all perform different func- tions at a detailed level, but they all operate in the general area I have outlined above. Their common function may be summar- ised as that of ensuring that all authorised communications, and no others, reach the intended addressee(s) undamaged and by the most efficient route possible. They do this, using a variety of techniques, by performing a number of tasks, including verifying, correcting, regenerating and for- warding data, converting data transmis- sions from one standard to another and 15. The WCO includes a Harmonised Sys- filtering, switching, (re)directing, delaying tem Committee ('HS Committee'), on or blocking communications. The types of which the European Community, as a party equipment in issue in the present case all to the HS Convention, is represented by the fall within this broad category. Commission. The HS Committee has the role, inter alia, of proposing amendments to the HS and preparing explanatory notes thereto ('HSENs'), classification opinions, other advice on interpretation and recom- mendations to secure uniformity in inter- pretation and application of the HS. 6Such explanatory notes, classification opinions, advice and recommendations are deemed to be approved by the WCO Council auto- The customs classification of goods matically unless a contracting party requests re-examination. 7 Although not recognised as having binding authority, they are usually regarded as persuasive. 8

16. The CN and the HS refer to computers as 'automatic data-processing machines', also abbreviated to 'ADP machines'. 19. Until the end of 1995, heading 8517 was for: 'Electrical apparatus for line telephony or line telegraphy, including such apparatus for carrier-current line systems'. Subheading 8517 82 90 was for telegraphic apparatus other than facsimile machines and other than for carrier-current line systems. 17. CN heading 8471 is worded as follows: 'Automatic data-processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere speci- fied or included'. 20. Since 1 January 1996, the wording of heading 8517 has been: 'Electrical appar- atus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunication apparatus for carrier-current line systems or for digital line systems; videophones'. The subheading most closely equivalent to the former 18. Since the issue in this case is essentially subheading 8517 82 90 is now 8517 50 that of the correct tariff heading for 90, which covers apparatus (other than customs classification, I do not consider it telephone sets, videophones, fax machines, necessary to set out the various subhead- teleprinters or telephonic or telegraphic ings in detail. Moreover, a substantial switching apparatus) for digital line sys- revision of the HS and the CN took place tems. as from 1 January 1996, 9 during the course of the period material to the present case, and the subheadings before and after that date are not identical. Suffice it to say that for both periods there are categories for, inter alia, digital ADP machines, digital processing units, input or output units, 21. A final heading, not originally envis- aged by the parties, the national court or 9 — See Commission Regulation (EC) No 3009/95 of the Commission, has been suggested during 22 December 1995 amending Annex 1 to Council Regula- the course of the procedure before the tion No 2658/87, OJ 1995 L 319, p. 1. That regulation reflected a similarly substantial revision of the HS. Court, following a decision taken by the

23. Rule 1 provides that '... for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, — Section and chapter notes provided such headings or notes do not otherwise require, according to the follow- ing provisions'. Of those 'following provi- sions', Rules 3 and 4 may be borne in mind although, as will become apparent, I do not consider that they need apply in the present 27. Each section and, within each section, case. each chapter of the nomenclature is pre-

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faced by a number of more specific notes. 10 (3) performing arithmetical com- The headings in issue in this case fall within putations specified by the user; Chapters 84 and 85, which in turn form and part of Section XVI. The notes to Section XVI and to Chapter 85 do not appear to be decisive for present purposes, but Note 5 to Chapter 84 has been extensively debated.

(4) executing, without human intervention, a processing pro- 28. That note read, prior to 1996: gram which requires them to modify their execution, by logical decision during the pro- cessing run;

'(A) For the purposes of heading No 8471, the expression "automatic data-pro- cessing machines" means:

(b) it is specifically designed as part of units. Subject to paragraph (E) below, such a system (it must, in particu- a unit is to be regarded as being a part lar, unless it is a power supply unit, of a complete system if it meets all of be able to accept or deliver data in the following conditions: a form (code or signals) which can be used by the system).

(a) it is of a kind solely or principally used in an automatic data pro- Such units presented separately are also cessing system; to be classified within heading No 8471.

(b) it is connectable to the central processing unit either directly or through one or more other units; Heading No 8471 does not cover and machines incorporating or working in conjunction with an automatic data- processing machine and performing a specific function. Such machines are classified in the headings appropriate to their respective functions or, failing that, in residual headings.' (c) it is able to accept or deliver data in a form (codes or signals) which can be used by the system.

29. From 1 January 1996, the wording of Note 5 to Chapter 84 was amended. Whilst paragraph (A) remains unchanged, the (C) Separately presented units of an auto- remainder of the note now reads: matic data processing machine are to be classified in heading No 8471.

'(B) Automatic data-processing machines may be in the form of systems consist- (D) Printers, keyboards, X-Y coordinate ing of a variable number of separate input devices and disk storage units

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they convert the output signals that Binding tariff information result from the processing carried out by the machine into signals which can be used externally.

34. In order to provide a uniform measure of legal certainty as to the customs classi- fication of goods for traders throughout the Community, there is a system of binding tariff information, at present governed by Article 12 of the Community Customs Code. 11

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ity, the regulation may lay down the period matic data-processing machines within within which it may still be relied upon. a digital network that works at 10 Mbps (megabits per second).

The relevant classification regulations 2. A link adapter in its own housing ...

37. A power to adopt regulations concern- ing the classification of goods in the CN is conferred on the Commission by Articles 9 and 10 of Regulation No 2658/87. 12 The apparatus digitally links two net- works having different characteristics and so provides for the transmission of data.

38. Regulation No 1638/94 13 was adopted on 5 July 1994 and entered into force on 28 July 1994. It classified the following goods under CN subheading 8517 82 90 (telegraphic apparatus other than facsimile 3. A transceiver in its own housing ... machines and other than for carrier-current line systems):

42. Under Article 2 of both Regulation No 1638/94 and Regulation No 1165/95, 40. Regulation No 1165/95 14 was adopted binding tariff information previously issued on 23 May 1995 and entered into force on by customs authorities but not in conform- 14 June 1995. It classified under heading ity with the classifications which they enact 8517 82 90, for the same reasons as those could continue to be relied upon for a cited above in Regulation No 1638/94: period of three months.

'4. An adapter card for incorporation in Background to the main proceedings cable linked automatic data-processing (ADP) machines enabling the exchange of data over a local area network (LAN) without using a modem. 43. Cabletron Systems Ltd ('Cabletron'), the appellant in the main proceedings, imports into Ireland, from outside the Community, equipment of the types to which I have referred in paragraph 12 above.

With such a card, an ADP-machine can be used as an input-output device for another machine or a central pro- cessing unit. 44. In 1993, the Revenue Commissioners, the Irish authority responsible for customs matters and the respondents in the main

15 — Cited in note 2. Following the 1996 amendments to the HS and the CN, and to deal with discrepancies between the new structure and existing classification regulations, 5 Commission Regulation (EC) No 936/1999 of 27 April 1999 amending or repealing certain regulations on the classification of goods in the Combined Nomenclature (OJ 1999 L 117, p. 9) was adopted. It entered into force on 6 May 1999. With regard to the classifications relevant 14 — Commission Regulation (EC) No 1165/95 of 23 May to this case, that regulation replaced the references to 1995 concerning the classification of certain goods in the subheading 8517 82 90 by references to subheading 8517 50 90 (other apparatus, for digital line systems). combined nomenclature, OJ 1995 L 117, p. 15.

47. The rate of customs duty being at that time appreciably higher under heading 8517 than under heading 8471, 17 Cable- tron appealed against the Revenue Com- 45. Following the adoption of Regulations missioners' classifications to the Appeal No 1638/94 and No 1165/95, the Revenue Commissioners. Commissioners withdrew that binding tar- iff information and replaced it with other information classifying the goods in ques- tion under CN heading 8517 82 90 (elec- trical apparatus for line telegraphy, other than facsimile machines). The justification given for the change was the last paragraph of Note 5(B) to Chapter 84 16 and the The request for a preliminary ruling wording of the regulations. In some cases, the goods were explicitly covered by the regulations whilst in others they were considered sufficiently similar by the Rev- enue Commissioners to warrant the same 48. Before the Appeal Commissioners classification by analogy. Cabletron argued, in summary: (i) that many of the products in issue did not fall within the definitions given in Regulations No 1638/94 and No 1165/95 but fell to be classified under heading 8471; and (ii) that by classifying adapters, link adapters, transceivers and network cards under head- ing 8517, those regulations embodied a 46. In 1996, following the revision of the manifest error in the interpretation of the CN, the Revenue Commissioners reclassi- HS, such goods being classifiable under fied the goods under the new heading 8517 heading 8471 by reference to their physical 50 90 (other apparatus for digital line description and functionality. The Revenue systems). Later that year, they responded Commissioners contended that their classi- to Cabletron's request for classification of fications were not the result of any manifest 22 further types of equipment by issuing error and should be upheld as consistent binding tariff information classifying 16

2. Is Regulation No 1165/95 valid in so far as it classifies under CN code 8517 82 90 the goods described at item 4 of the annex to the said 49. The Appeal Commissioners have made regulation? findings of fact and expressed an opinion on the legal issues, evincing in both cases a position favourable to Cabletron. Essen- tially, after hearing all the expert evidence, they accept that all the goods in issue are designed and manufactured solely for use in 3. Is the Combined Nomenclature to be LANs, and that LANs, which operate as interpreted as requiring that the goods distributive computer systems, are ADP set out in the schedule attached hereto machines in the form of a system for the be classified as "Automatic data-pro- purposes of Note 5(B) to Chapter 84 of the cessing machines and units thereof; CN. Each of the types of equipment in issue magnetic or optical readers, machines meets the definition of a unit within the for transcribing data onto data media meaning of that note but is incapable of in coded form and machines for pro- being used in a telecommunications envir- cessing such data, not elsewhere speci- onment, where different techniques are fied or included" under tariff heading used. 8471 either (i) post 1 January 1996 or (ii) between 28 April 1993 and 31 December 1995 or (iii) for both periods of time?

50. However, the Appeal Commissioners take the view that issues of Community law are central to the proceedings, and have sought a preliminary ruling on the follow- 4. If the answer to any part of question 3 ing questions: is in the negative in respect of one or more of the goods set out in the schedule attached hereto, is the Com- bined Nomenclature to be interpreted as requiring such goods to be classified, ante 1 January 1996, as "Electrical apparatus for line telephony or line '1. Is Regulation No 1638/94 valid in so telegraphy, including such apparatus far as it classifies under CN code for carrier-current line systems" under

54. The ITA covers, on the one hand, HS headings 8471 and 8517 and their sub- headings 20 and, on the other hand, inter alia, all 'Network equipment: local area network (LAN) and wide area network The Information Technology Agreement (WAN) apparatus, including those products dedicated for use solely or principally to permit the interconnection of automatic data-processing machines and units thereof for a network that is used primarily for the sharing of resources such as central pro- 52. The Agreement on Trade in Informa- cessor units, data storage devices and input tion Technology Products ('ITA'), 19 the or output — including adapters, hubs, in- parties to which include the European line repeaters, converters, concentrators, Community and together account for some bridges and routers and printed circuit 90% of world trade in information tech- assemblies for physical incorporation into nology products, was concluded in automatic data-processing machines and units thereof', wherever classified in the HS. 21 18 — Numbered 1 to 66, with the omission of numbers 8, 9, 13 to 15, 17, 19 and 47. 19 — Approved on behalf of the Community by Council Decision 97/359/EC of 24 March 1997 concerning the elimination of duties on information technology products, 20 — See Attachment A to the Annex to the ITA. OJ 1997 L 155, p. 1. 21 — See Attachment B to the Annex to the ITA.

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The judgment in Peacock be connected to the central unit and are specifically designed as parts of an auto- matic data-processing system'. 24

22 — See paragraph 28 above. 23 — See paragraphs 16 and 17 of the judgment. 24 — Paragraph 20 of the judgment.

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heading 8471. The view was then Procedure before the Court expressed, and apparently accepted with- out a vote, that since they could not be used in line telephony or line telegraphy such repeaters must be classified under the residual heading 8543, and the residual subheading 8543 89 ('other') within that 61. Written observations have been sub- heading. mitted by the parties to the main proceed- ings, the Netherlands Government and the Commission. Cabletron, the Revenue Com- missioners and the Commission presented oral argument at the hearing.

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designed for use in a LAN 2 5 and no they performed a specific function (other objection was voiced to Cabletron's asser- than data processing), namely telecommun- tion that there was also agreement on the ication in the form of data transmission. finding that a LAN was an ADP machine in the form of a system.

67. That was before the judgment in Peacock. 64. I shall base my analysis on that assump- tion.

68. Since that judgment, it is clear that 65. Furthermore, it was common ground network equipment which meets the defin- that — with a few possible exceptions ition of 'units' in Note 5(B) is not to be which might fall under heading 8543 regarded as performing a 'specific function' following the recent decision of the HS excluding it from heading 8471 when it has Committee on the classification of re- no function that it would be capable of peaters — the disputed items must be performing without the assistance of an classified either all under heading 8471 or ADP machine. all under heading 8517. I shall address the issue on that basis, leaving the question of heading 8543 in abeyance for the moment.

The correct classification prior to the adoption of the regulations 72. It is true that Peacock concerned only one type of network equipment. However, not only is it agreed that the goods in issue here all meet the criteria on which the Court based its ruling in that case but those 70. There can in fact be no challenge to the goods all appear to be covered by the broad classification applied to Cabletron's goods definitions in items (4) and (5) of Note 1(D) during this period since Cabletron was to heading 8471 in the HSENs, 27 as issued with binding tariff information clas- 'control and adaptor units such as those sifying 43 products under CN heading to effect interconnection of the central 8471, on which it was entitled to rely until processing unit to other digital data pro- withdrawn or, in so far as it conflicted with cessing machines, or to groups of input or either of the regulations in issue, until three output units', 'channel to channel adaptors months after the entry into force of that used to connect two digital systems to each regulation. 26 However, it is useful to begin other' or 'signal converting units' used on by verifying whether that classification was input and output. in principle correct.

71. It is common ground that all the items in issue are, in accordance with the criteria set out in Note 5(B), connectable to the 73. Indeed, the matter is made even clearer central processing unit either directly or by the recently-agreed amendments to the through one or more other units, that they HSENs, which included 'routers, bridges are specifically designed as part of a system and hubs used to control and direct com- and that they are able to accept or deliver munications between the machines in local data in a form which can be used by the area networks (LANs) and channel to system. Nor is it contested that, in accord- channel adaptors used to connect two digital systems (e.g. LANs) to each other'. 26 — Namely 28 October 1994 or 14 September 1995, as the case may be. See Article 12 of the Community Customs Code, cited in note 11. 27 — See paragraph 31 above.

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whether the Commission had committed a 83. Where there is real doubt, it is import- 'manifest error of assessment' in the classi- ant that the Commission should be able to fication made. resolve that doubt within the Community in the interests of legal certainty but it is also important that Community law should not find itself at odds with the intended tenor of the HS. The concern not to limit unduly the Commission's power to settle genuinely doubtful cases by way of regula- 79. At the hearing in the present case, there tion must be qualified by the need to was discussion as to what is necessary, control the exercise of that power where where it is agreed that a classification was it brings the Community into conflict with made in error, to render that error 'mani- the uniform international practice which fest' and thus to vitiate the regulation. the HS seeks to achieve.

80. The consensus appeared to be that it was not enough for the error to have been made manifest as a result of a subsequent decision of the Court or the HS Committee but that it must have been manifest — to an 'informed observer', in the Commis- sion's words — at the time of adoption of the regulation in issue.

— The present case 87. That view is supported by the wording of headings 8471 and 8517. The former is clearly intended for data-processing equip- ment, the latter for telephony and tele- graphy equipment. The transfer of data for the exclusive purposes of an automatic data-processing machine seems a function much more closely related to data proces- sing than to telephony or telegraphy. The 85. The Revenue Commissioners and the terms used in the HS and the CN cannot Commission submit essentially that, necessarily always be interpreted on a because of the degree of uncertainty pre- commonsense basis as having their every- vailing internationally in the mid-1990s day meaning, but there must be some over the proper classification of network convincing reason for departing from that equipment, any error made by the Com- meaning. mission in classifying such equipment under heading 8517 cannot be said to have been 'manifest'. Cabletron considers that it was just as clear in 1994 and 1995 as it is now that items of network equipment do not have, simply because they transmit data for processing within a network, a specific function separate from data processing, so 88. The HSENs define data processing as that it was manifestly erroneous to apply to 'handling information of all kinds, in pre- them what was then the last paragraph of established logical sequences and for a Note 5(B) to Chapter 84. specific purpose or purposes' and ADP machines as those 'which, by logically interrelated operations performed in accordance with pre-established instruc- tions (program), furnish data which can be used as such or, in some cases, serve in turn as data for other data processing operations'. There does not appear to be anything in those definitions which would 86. Cabletron's view appears highly per- exclude equipment of the kinds classified in suasive to me. A computer network meets Regulations No 1638/94 or No 1165/95; the definition of a 'system consisting of a on the contrary, the items classified seem to variable number of separately housed units' fit well within them. in Note 5(B). Its primary purpose is to share data processing capacity and storage capacity for the data which is to be processed. Given such an arrangement, it is clear that data must be transferred from one part of the system to another efficiently and without distortion, and that the equip- ment used to transfer it not only forms part of the system but in the transfer process 89. It is true that the HSENs also define performs no function which does not serve telephony or telegraphy as 'the transmis- the purpose of data processing. sion between two points of speech or other

94. But those considerations are, as the Commission has rightly stressed, extra- neous to the question of the correct classi- 91. But the Commission points to the lack fication. of international agreement — indeed, to the existence of a certain degree of vehe- ment disagreement — which prevailed at the time as to the correct classification of computer network equipment, and argues that it could not have been expected to anticipate the later move towards agree- 95. I am satisfied that it should have been ment on heading 8471. clear to the Commission from the wording of the headings, in particular when read in conjunction with the explanatory notes as 31 — See paragraph 31 above. they stood at the time, that it was in error

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in classifying the items of network equip- 98. It is true that the wording of heading ment covered by Regulations No 1638/94 8517 was amended. However, that amend- and No 1165/95 under heading 8517. The ment was not in my view relevant to the existence of disagreement rooted in differ- type of goods with which we are con- ent considerations should not have clouded cerned. It added a reference to line tele- its view. In the light of the opinion I have phone sets with cordless handsets and to expressed above in paragraphs 82 to 84, videophones, neither of which are in issue. that error is in my opinion such as to vitiate It also, however, expanded the phrase the regulations. 'including such apparatus for carrier-cur- rent line systems' to 'including ... telecom- munication apparatus for carrier-current line systems or for digital line systems', a modification which perhaps requires brief consideration.

excluded. Indeed, subheadings 8517 81 and 8453, following a failure to agree whether 8517 82 came under the category 'other the repeaters used in computer networks apparatus', following immediately upon could be distinguished from those used in subheading 8517 40 for 'other apparatus, telecommunications. It was decided by a for carrier-current line systems', demon- small majority that LAN repeaters must be strating that they referred to apparatus not classified outside heading 8471 and then for such systems. The new reference does without a vote that, since they could not be indeed reflect changes in the predominant used in line telephony or line telegraphy, technology but the fact remains that in they should fall under the residual sub- either formulation the items listed after the heading 8543 89. word 'including' can only be construed as non-exhaustive examples.

33 — At paragraph 58 above. 34 — At paragraph 14 above.

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capable of accommodating LAN repeaters The effects of a ruling that network equip- or any other kind of network equipment, ment is to be classified under heading 8471 the first 10 all being for specified types of other equipment. The duty on goods falling under 8543 89 95 is, for the versions of the CN valid for the years 2000 and 2001, 35 3.7%. 108. At the hearing, the Commission sug- gested that a ruling on the classification of the products in issue in the present case could have economically significant reper- cussions for other types of products such as, inter alia, digital cameras, fax machines and photocopiers.

106. However, under the ITA, to which I have referred in paragraphs 52 to 54 above, the Community undertook to eliminate all customs duties completely not only on all goods classifiable under, inter alia, head- ings 8471 and 8517 but also, more gen- 109. It seems to me that such fears are erally, on all network equipment wherever unfounded. it is classified in the HS.

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Peacock, be excluded from heading 8471 justified by overriding considerations of by virtue of Note 5(E) to Chapter 84 of the legal certainty. 36 CN.

114. That step cannot, however, be taken without some substantiated representation as to the overriding considerations of legal The temporal effects of a ruling that certainty alleged, and no such representa- Regulations No 1638/94 and No 1165/95 tion has been made to the Court here. Some are invalid information has been given as to the existence of other disputes pending before national courts in several Member States (which would not be affected by the 111. At the hearing, the Revenue Commis- proposed limitation), but none as to the sioners raised for the first time a request possible number or importance of proceed- that, in the event of a ruling that the ings which might be, but have not yet been, regulations in issue were invalid, the Court brought. The Court has heard no argument should limit its retroactive effect by speci- on the question why the legal certainty of fying that it could be relied upon only by duties previously levied should prevail over persons who had initiated legal proceedings the correct interpretation of the CN, and at or raised an equivalent claim under the hearing the Commission made no national law prior to the date of judgment. comment on the Revenue Commissioners' request.

112. Where in reply to a request for a preliminary ruling the Court finds that a 115. I therefore cannot see any reason for Community measure is invalid, that ruling limiting the ex tunc effect of the finding of in principle takes effect erga omnes and ex invalidity which I propose should be made. tunc, so that any person may in any It may in any event be noted that the proceedings rely upon the invalidity of the practical effects of the ruling would con- measure. cern only the period prior to 1 January 2000 and that Article 236(2) of the Com- munity Customs Code 37 imposes a three- year time-limit on the repayment or remis- sion of customs duties not legally owed.

(2) Commission Regulation (EC) No 1165/95 is invalid in so far as it classifies the adapter cards described in item 4 of its annex under heading 8517 of the Combined Nomenclature.

(3) Items of computer network equipment which are connectable to the central processing unit either directly or through one or more other units, which are specifically designed as part of a data-processing system, which are able to accept or deliver data in a form which can be used by the system and which have no function that they would be capable of performing without the assistance of an automatic data-processing machine are to be classified under heading 8471 of the Combined Nomenclature both before and after 1 January 1996.

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