C-119/99
ECLI:EU:C:2001:33
- Súd
- Súdny dvor Európskej únie
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- 61999CC0119
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- eur-lex.europa.eu ↗
HEWLETT PACKARD
OPINION OF ADVOCATE GENERAL MISCHO delivered on 18 January 2001 1
1. The companies in the Hewlett Packard customs authorities had not been amended Group import into the Community a multi- or revoked, the Hewlett Packard Group function machine known as the 'HP Office decided to seek a fresh binding tariff Jet' which combines the functions of a information for its range of multi-function printer, photocopier, facsimile machine and machines, in order to confirm their classi- scanner. Between 1995 and 1997 they fication as printers. obtained binding tariff information from the Italian, British and French customs authorities classifying the machines under heading 8471 92 20 (now 8471 60 40) (printers). This classification entailed the application of a customs duty of 1.5%, which was due to disappear with effect 4. Having received that application, and in from 1 January 1998. the light of Regulation No 2184/97, the customs authorities issued a binding tariff information on 2 April 1998 classifying the machine at issue under heading 8517 21 00 (facsimile machines).
2. In 1997 Commission Regulation (EC) No 2184/97 of 3 November 1997 concern- ing the classification of certain goods in the combined nomenclature 2 was adopted, classifying a machine with the same four 5. Hewlett Packard then lodged an appeal functions as the Hewlett Packard Group's against this binding tariff information to machines under heading 8517 21 00 (fac- the tribunal d'instance (District Court) simile machines), which had a rate of Paris 7, (France). customs duty of 3.8%.
6. That court considered, contrary to the 3. Although the Binding Tariff Information arguments advanced by Hewlett Packard, relating to its products issued by the French that Regulation No 2184/97 did cover the 'HP Office Jet' machines, so that it was correct to classify them under heading 8517 1 — Original language: French. 21 00, but it was doubtful about the 2 — OJ 1997 L 299, p. 6. validity of the regulation, which led it to
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decide in its judgment of 30 March 1999 to machines), thus excluding the possibility of refer the following question for a prelimin- determining the dominant function of each ary ruling: machine on a case-by-case basis and laying down the principle that the printing device is of secondary importance, whatever the machine, provided that it falls within the category described?'
'Under the Common Customs Tariff, facsi- mile machines and printers do not fall under the same tariff heading. When a single machine is designed to perform several functions, the tariff heading is determined according to the principal func- 7. Before considering the reply to this tion. question, I set out the relevant Community legislation.
In point 3 of Regulation No 2184/97 was the Commission therefore entitled to decide that all multi-function facsimile machines essentially consisting of: The Combined Nomenclature
— a modem 8. The Combined Nomenclature in Annex 1 to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, 3as amended by — a scanner C o m m i s s i o n R e g u l a t i o n (EEC) No 2086/97 of 4 November 1997, 4con- tains inter alia the following headings:
—· a printing device
'8471 A u t o m a t i c data processing machines and units thereof; mag-
and operating either in autonomous form or in conjunction with a computer, fall 3 — OJ 1987 L 256, p. 1. under tariff heading 8517 21 00 (facsimile 4 — OJ 1997 L 312, p. 1.
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netic or optical readers, machines and, for transcribing data onto data media in coded form and machines for processing such data, not else- where specified or included:
'8517 Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and tel- ecommunication apparatus for carrier-current line systems or for digital line systems; video- phones: 8471 60 — Input or output units, whether or not containing storage units in the same housing:
8517 21 00 Facsimile machines'
Other: Regulation No 2184/97
8471 60 40 Printers 9. Article 1 of Regulation No 2184/97 pro- vides that:
'The goods described in column 1 of the annexed table are now classified within the Combined Nomenclature under the appro- priate CN codes indicated in column 2 of 8471 60 90 Other' the said table.'
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10. Point 3 of the annex to the regulation is as follows:
Classification Reason Description CN Code (1) (2) (3)
3. Multifunction facsimile machine essen- 8517 21 00 Classification is determined by the provi- tially consisting of: sions of general rules 1 and 6 for the — a modem interpretation of the Combined Nomencla- — a scanner ture, note 3 to Section XVI and by the — a printing device wording of CN codes 8517 and 8517 21 00. The apparatus operates either in an auton- The telecommunication (facsimile) function omous form (fax-transmitting or receiving) is the principal function of this item of or in conjunction with a computer (as equipment. printer, scanner or fax machine). The apparatus also includes a document copying function (2 to 3 pages per minute) available in autonomous mode.
General rules for the interpretation of the do not otherwise require, according to the Combined Nomenclature following provisions.'
11. General rules 1 and 6 for the interpre- tation of the Combined Nomenclature provide:
'For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related sub- heading notes and mutatis mutandis to the 'The titles of sections, chapters and sub- above rules, on the understanding that only chapters are provided for ease of reference subheadings at the same level are compar- only; for legal purposes, classification shall able. For the purposes of this rule the be determined according to the terms of the relative section and chapter notes also headings and any relative section or chapter apply, unless the context otherwise notes and, provided such headings or notes requires.'
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12. According to note 3 of Section XVI of that it was not open to it to take the specific the Combined Nomenclature, '[u]nless the characteristics of the 'HP Office Jet' into context otherwise requires, composite account and classify it under a different machines consisting of two or more heading. machines fitted together to form a whole and other machines adapted for the pur- pose of performing two or more comple- mentary or alternative functions are to be classified as if consisting only of that component or as being that machine which 16. It is the confusion of the national court, performs the principal function'. faced with an apparently absolute prohibi- tion on conducting an assessment of the facts, which led it to doubt the validity of the regulation and to have recourse to the procedure under Article 234 EC.
13. From reading the order for reference, it appears that the national court has inter- preted Regulation No 2184/97 as requiring classification under heading 8517 21 00 of 17. I will say at the outset that if Regula- all machines which could fall within the tion No 2184/97 were intended to preclude 'Description' in the left hand column of the the actual characteristics of any given annex. multi-function machine from being taken into account, I could not but share the national court's confusion.
14. The national court has, it appears, 18. We would have, indeed, a regulation taken the 'Reason' contained in the right which, while appearing to have applied hand column, namely that '[t]he telecom- note 3 of Section XVI of the Combined munication (facsimile) function is the prin- Nomenclature, would be claiming to estab- cipal function of this item of equipment', to lish a rule that multi-function machines mean that for all multi-function machines combining a facsimile, a printer, a scanner matching the description in the left hand and a photocopier, and fitting the descrip- column the Community legislature has tion in the left hand column of the Annex, decided that the principal function can necessarily have the facsimile function as only be that of a facsimile machine. their principal function.
19. I am persuaded, however, that this is 15. From this reading of the regulation, the not the correct reading of Regulation national court has drawn the conclusion No 2184/97, and all the more so since the
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Commission, the author of it, proposes a together both the individual case and the quite different interpretation in its observa- general rule, by reference to three argu- tions, in terms which are particularly clear ments: and convincing.
20. It should be borne in mind that a '•— It is essential to maintain a consistent classification regulation is adopted, as the interpretation of the Combined Commission points out, on the advice of Nomenclature, and reasoning by ana- the Customs Code Committee when the logy contributes to this consistency. classification of a particular product is such as to give rise to difficulty or to be a matter for dispute.
— It is desirable to maintain equality of treatment between undertakings, which would be lost if similar situa- 21. It is thus not an abstract classification, tions were not dealt with in the same since the purpose is to resolve the problem way. to which a particular product gives rise. But, as the Commission points out, the classification regulation has general impli- cations, in so far as it does not apply to a given undertaking or to a particular trans- action, but, in general, to products which are the same as that examined by the •— Finally, if reasoning by analogy did not Customs Code Committee. extend to goods such as those contem- plated by the Commission regulation, it would encourage undertakings to cir- cumvent that classification by making marginal modifications to the charac- teristics of their products for the pur- 22. The classification regulation constitutes pose only of escaping the consequences the application of a general rule to a of an economically unfavourable clas- particular case, and thus contains guidance sification.' on the interpretation of the rule which can be applied by the authority responsible for the classification of an identical or similar product.
24. But these considerations, which are entirely legitimate, do not (as the Commis- sion points out) imply at all that the 23. The Commission justifies this dialecti- approach adopted by a classification reg- cal approach, which is designed to bring ulation for a particular product may un-
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hesitatingly and automatically be adopted because it had been established in the in the case of a similar product. On the particular case that the facsimile was the contrary, as always, where reasoning by principal function, that heading 8517 21 00 analogy is employed great care is called for. had been selected, even though it may not be clear from the regulation why the Commission reached that conclusion. In any event, the regulation does not state in any way that the fact that facsimile is one of the functions of a multi-function machine necessarily calls for the conclusion 25. It does not therefore follow that the that that function is the most important classification adopted in Regulation and determines the classification. No 2184/97 is valid for every multi-func- tion machine which has the same functions, regardless of its particular characteristics.
29. Moreover, if that were the case, the 26. It must also be noted that what appears regulation would contain an internal con- in the right hand column of the Annex as tradiction since, while claiming to apply the 'Reason' has to be read in its context. It note 3 of Section XVI, it would deprive the is provided that '[classification is deter- examination which that rule requires of any mined by the provisions of general rules 1 purpose. and 6 for the interpretation of the Com- bined Nomenclature, note 3 to Section XVI and by the wording of CN codes 8517 and 8517 21 00'.
30. Finally, it may be noted that a later regulation, Commission Regulation No 517/1999 of 9 March 1999 concerning 27. The classification under heading 8517 the classification of certain goods in the 21 00 is thus made by applying, inter alia, Combined Nomenclature, 5to which both note 3 of Section XVI which requires the Hewlett Packard and the Commission draw identification of the principal function of attention, would confirm, were there any the machine. need, that Regulation No 2184/97 never intended to provide in every case that the facsimile function in multi-function machines combining a scanner, printer, facsimile and photocopier should be regar- ded as the most important one.
28. There is therefore no reason to doubt the Commission's assertion, that it was 5 — OJ 1999 L 61, p. 23.
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31. Point 2 of the Annex to this regulation is as follows:
Classification Reason Description CN code (1) (2) (3) 2. A multifunctional apparatus (so-called 9009 12 00 Classification is determined by the provi- digital copier) capable of performing the sions of General Rules 1, 3c and 6 for the following functions: interpretation of the Combined Nomencla- — scanning, ture, note 5.E to Chapter 84 and the wording — printing, of CN codes 9009, 9009 12 and 9009 12 00. — faxing, — photocopying (indirect process). The apparatus which has several paper feed The apparatus has several functions none of trays is capable of reproducing up to 30 A4 which are considered to give the product its pages per minute. essential character. The apparatus operates either in an auton- omous form (as a copier, printer and fax machine) or in conjunction with a computer or in a computer network (as a printer, scanner, fax machine and a copier).
32. As the Commission points out, this similarity is not sufficient to justify classi- regulation exists alongside Regulation fication by analogy with the earlier regula- No 2184/97 and obviously leads to a tion. classification different 6from that adopted in Regulation No 2184/97 for a multi- function machine which appears to resem- ble that classified in that regulation and the equipment in the 'HP Office Jet' range because actual examination revealed that the product in question was not identical to that classified in 1997. It is a case therefore of similarity but not of identity where the
33. Moreover, and notwithstanding the opinion of the French government to the contrary, I do not consider that point 1 of Regulation No 517/1999 supports the view that any machine with a facsimile function should automatically be considered to have 6 — Namely under heading 9009 12 00, corresponding to a particular type of photocopier. that as its principal function. In that case,
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there was in fact a machine capable of likewise gives a number of reasons why, performing, in addition to the functions of even without Regulation No 2184/97, a facsimile, scanner, printer and photo- these products fall within heading 8517 copier, the functions of line telephony and 21 00. telephone answering. It would thus have been inconceivable for it to be classified under heading '8471 — Automatic data processing machines and units thereof...'. This machine could only fall within head- ing '8517 — Electrical apparatus for line telephony or line telegraphy...'. 37. By contrast, the Commission does not really deal with the question, contenting itself with the observation that machines in the 'HP Office Jet' range have essential differences, which it lists very briefly, from the machine which was the subject of the classification in Regulation No 2184/97. That caution is entirely understandable, 34. There is therefore no doubt that, where given that the order for reference alone machines are not identical, it is the exam- does not provide sufficient details of the ination of the actual characteristics of each characteristics of these machines. one which determines its classification, and not one of its functions which is arbitrarily accorded pre-eminence a priori.
38. It should be noted also that the uncer- tainty of the national court, as it appears in the order for reference, does not relate to the way in which the classification of the 35. In the case of machines in the 'HP products in the 'HP Office Jet' range should Office Jet' range, the national court does be undertaken; on the contrary, the not, as Hewlett Packard had suggested, ask national court's reasoning demonstrates under what heading the goods should be that it is well aware of the procedure to classified, and it does not seem appropriate be followed, but is uncertain whether it that the Court should undertake that task. should be embarked upon in the light of Regulation No 2184/97.
36. It is true that, in its submissions, 39. That is why I have no doubt that, once Hewlett Packard draws attention to many the judgment of the Court has made it clear factors which appear to it to be relevant to that the obstacle which the national court classification, and the French Government believed the regulation to be does not exist,
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the classification of these products can This regulation — in so far as it classifies proceed without great difficulty. under heading 8517 21 00 multi-function machines whose principal function is in fact the facsimile function, and was not intended to lay down that all machines combining the functions of printer, photo- copier, facsimile and scanner, should in principle be classified as facsimile 40. It will be appropriate to determine the machines — is perfectly valid. principal function of the machines at issue by examining carefully what they provide in terms of performance of the various functions which they can carry out, and comparing such performance with that of machines which are specifically designed for those different functions, 7 having regard to their degree of independence from the computer to which they are designed to be connected and to the significance or otherwise of the absence of a fax card at the time of importation.
41. Certain factors highlighted by Hewlett Packard, which form no part of the classi- 43. Certainly, there could be some reserva- fication criteria in the Combined Nomen- tions about the way in which the reasons clature, should, on the other hand, be for the classification made by this regula- disregarded, such as the usual business of tion are expressed, since, as the order for this company. reference illustrates, they do not entirely preclude the risk of a mistaken interpreta- tion. It would be very much preferable if the reasons for regarding the facsimile function as pre-eminent were more explicit, which would have demonstrated that that pre-eminence had become clear following 42. Although it is thus not necessary to an actual examination. But the fact that the classify the machines in the 'HP Office Jet' reasoning in this case is not all it might be, range, I must nonetheless suggest a reply to is not, in my opinion, sufficient to affect the the question about validity posed by the validity of the regulation at issue, all the national court. In view of what seems to me more so since, as I believe I have shown, a to be the correct interpretation of Regula- careful reading of the reason in the right tion No 2184/97, the reply is self-evident. hand column of the annex makes it clear, by the reference to note 3 of Section XVI, that the classification is the result of an 7 — Inter alia, the 'definition' of the speed of the printer function actual examination. and the capacity to print in colour.
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Conclusion
44. In view of all the considerations discussed above, I propose that the Court should reply to the tribunal d'instance, Paris 7, that examination of the question it has referred has disclosed no ground for questioning the validity of point 3 of the annex to Commission Regulation (EC) No 2184/97 of 3 November 1997 concerning the classification of certain goods in the Combined Nomenclature.
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