C-276/00

TURBON INTERNATIONAL

OPINION OF ADVOCATE GENERAL MISCHO delivered on 11 September 2001 1

1. Turbon International GmbH, formerly 2. According to Turbon, the cartridges fall Kores Nordic Deutschland ('Turbon'), is within the scope of heading 8473 'Parts and challenging before the Hessisches Finanz- accessories (other than covers, carrying gericht (Finance Court), Hessen, (the 'Fi- cases and the like) suitable for use solely nanzgericht') the decision of the German or principally with machines of heading customs authorities, represented by the Nos 8469 to 8472' of the CN, since they Oberfinanzdirektion Koblenz (the 'Oberfi- consist of a part or accessory for a printer nanzdirektion'), to classify under heading whose classification under heading 8471 is 3215 'Printing ink, writing or drawing ink unchallenged. and other inks, whether or not concen- trated or solid' of the combined nomen- clature (the 'CN') ink cartridges without integrated print head, for Epson Stylus Colour ink-jet printers. Those goods con- sist of an ink cartridge (consisting in turn of a cuboid plastic casing of approximately 3. Considering that the action raised ques- 2.7 x 6.4 x 4.2 cm, cellular material, metal tions of interpretation of Community law screen, seals, tape seal, and labels, with a and being concerned to preserve the uni- total value of approximately DEM 4), ink formity of that law, taking account, in (approximately 35 ml) valued at DEM 0.35 particular, of the existence of binding tariff and packing materials consisting of a information issued by other Member cardboard box inside which is a sealed States, the Finanzgericht decided, by order grey plastic bag. It can only be used in ink of 21 February 2000, to stay the proceed- jet printers of the abovementioned make, ings and to refer the following question to the cartridge and the ink being specially the Court of Justice for a preliminary designed for that type of printer. ruling:

— Printing ink:

— is that compatible ink-jet cartridge a 3215 1100 Black part or accessory of a printer that is assigned to CN heading No 8471 as an essential unit of an automatic datapro- cessing machine, and therefore covered by CN heading No 8473?' 3215 19 00 Other

3215 90 — Other:

4. In the version of the Combined Nomen- clature which was in force at the time when the dispute in the main proceedings arose, that is to say the version in Commission 3215 90 10 — Writing or drawing ink Regulation (EC) No 1734/96 of 9 Septem- ber 1996 amending Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomen- clature and on the Common Customs 3215 90 80 Other'. Tariff, 2 heading 3215, inserted into Chapter 32 ('Tanning or dyeing extracts; tannins and their derivatives; dyes, pig- ments and other colouring matter; paints 5. Headings 8471 and 8473, inserted into Chapter 84 ('Nuclear reactors, boilers, 2 — OJ 1996 L 238, p. 1. machinery and mechanical appliances;

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TURBON INTERNATIONAL

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World Customs Organisation, must be (b) mixtures, composite goods consisting applied. of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character in so far 8. Amongst the general rules for the inter- as this criterion is applicable.' pretation of the combined nomenclature, rules 3 and 5 merit particular attention in light of the question which we are asked.

10. Under rule 5: 9. Under rule 3:

'When by application of rule 2(b) or for 'In addition to the foregoing provisions, the any other reason, goods are prima facie following rules shall apply in respect of the classifiable under two or more headings, goods referred to therein: classification shall be effected as follows:

(1) are specially shaped or fitted to contain a specific article or set of articles, i.e. they are designed specifically to accom- 11. Footnote (1) states: 'The terms "pack- modate the article for which they are ing materials" and "packing containers" intended. Some containers are shaped mean any external or internal containers, in the form of the article they contain; holders, wrappings or supports other than transport devices (e.g. transport con- tainers), tarpaulins, tackle or ancillary transport equipment. The term "packing containers" does not cover the containers referred to in general rule 5(a)'. (2) are suitable for long-term use, i.e. they are designed to have a durability com- parable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during the transport or storage, for example). These criteria enable them to be distinguished from simple packages; 12. In the explanatory notes to the har- monised system, a distinction is made as between notes on the general rules and notes on particular headings. The former include, first of all, the note on rule 3(b) under which 'the factor which determines essential character will vary as between (3) are presented with the articles for different kinds of goods. It may, for which they are intended, whether or example, be determined by the nature of not the articles are packed separately the material or component, its bulk, quan- for convenience of transport. Presented tity, weight or value, or by the role of a separately the containers are classified constituent material in relation to the use of in their appropriate headings;

'This heading does not include:

16. The first relates to the features of the cartridges. These are in the form of a plastic casing specially designed for Epson Stylus

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TURBON INTERNATIONAL

Colour printers. The casing comprises a cally adapted for the cartridge, ink and piece of cellular material which, after fill- printer in question. Turbon notes, on ing, absorbs ink in its capillary system, the that point, that the regular supply to diameter of the capillaries being specifically the print head is endangered where calculated on the basis of the cartridge and there is compensation which is too the surface tension of the ink used in order weak while compensation which is to prevent leaks and to ensure that the print too strong produces, by contrast, an head has the necessary quantity of ink in ink leak. order to print.

17. In the light of those features, the item in question cannot, according to Turbon, be — The interior of the plastic casing is deemed to be a mere container. Plainly, the fitted, upstream of the exit opening, cartridges do not only hold ink, but are with a metallic screen preventing lumps designed and fitted to ensure an optimal of ink from reaching the print head and supply of ink to the print head and are to clogging it up. accord with the characteristics of the print head, and they must therefore be deemed to form part of a printer.

20. However, even if that classification as a 24. On that point, Turbon seeks to rely on part of a printer had to be set aside, the judgments in ELBA, 3in which preference classification under heading 8473 still was given to the heading taking into applies since it should at least be classified account the purpose of the goods on the as an accessory to a printer. ground that it was more specific, over a heading based on the materials from which the goods were made, in Thyssen Hantel Logistic, 4in which the intended purpose was also held to be decisive, and in VOBIS Microcomputer, 5 in which the essential character was determined on the basis of the value and importance of the constituent materials for the purpose of the use of the 21. It is indeed an interchangeable part or goods. In the light of the latter judgment, device designed to adapt a machine for a the ratio of 10 to 1 between the value of the particular operation, in this case for print- casing and that of the ink contained ing, within the meaning of the explanatory excludes classification of the cartridges as note to the harmonised system concerning ink. heading 8473 of the CN.

25. The fourth argument concerns the meaning of a part of a printer. According 22. The second of Turbon's arguments to Turbon, that classification cannot be relates to the unchallenged classification reserved to parts of a printer performing of toner cartridges for photocopiers under the essential functions in the operation of the same heading as photocopiers. Accord- such a machine, that is to say in the ing to Turbon, the ink cartridges in ques- printing process, since, on that argument, tion play exactly the same role in a printer classification as printer parts would be as toner cartridges in a photocopier. refused to numerous parts of it, for example, to its cover, which are in no way necessary to the actual printing pro- cess.

29. Thirdly, it finds that the container, namely the casing, and its content, namely 33. The Oberfinanzdirektion challenges the ink, are not separable in the light of the those arguments, in addition to a circular function assigned to the cartridge. by the Germans Customs authorities, by three arguments in support of classification under heading 3215. First of all, it argues that the product to be classified is the ink contained in the cartridge. The ink is a product indispensable to the operation of the printer rather than the cartridge itself, 30. It therefore appears to the national which is only a necessary container in the court that the classification of the plastic case of a liquid product. It goes on to stress casing as a mere container is not in that since a liquid product is involved and accordance either with general rule 5(a), the printer is complete even without the ink to the extent that it is specifically the casing cartridge the contested cartridges cannot which determines the essential character of readily be deemed to constitute printer the whole, or with general rule 5(b), since parts.

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34. Only those products which are necess- operation of which the part is essential', ary for the assembly of a machine or are and that is not so in the present case, since obtained on dismantling it can be desig- the Epson Stylus Colour printer can operate nated as parts of machines under Note 2(b) perfectly both from the mechanical and to Section XVI of the CN. The Oberfi- electronic points of view, without the nanzdirektion contends that the item con- contested ink cartridges. cerned cannot be in the nature of an accessory. Ink cartridges, it contends, do not enable the printer to carry out a particular operation, since the printing process which they facilitate is, by defini- tion, the normal function of a printer. 38. Even without a cartridge, the printer can receive signals issued by a computer, convert them and transmit them to the print head.

Stylus Colour printer, as is their complex that, if the metal screen in the contested technical design, owing to their capillary cartridge, the purpose of which is not system and cover shape. stated in the order for reference, is a mechanical or electronic element indispens- able to the printing process, the classifi- cation under heading 8473, as a part for a printer, should be envisaged. 42. Classification as an accessory under heading 8473 is similarly excluded, accord- ing to the Commission, in view of the explanatory note to the harmonised system concerning that heading, since ink car- tridges are not designed to enable the 46. The Commission's observations appear printer to perform a particular operation to be particularly relevant, both in relation and do not allow it to increase its range of to the impossibility of classifying as a part operations. or accessory of a printer the contested cartridges and in relation to the grounds for their classification under heading 3215.

paradoxical, but none the less precise. It is could have made a different technical at first sight surprising to read that a printer choice from that which they decided on. I operates perfectly well without an ink guess it ought to be possible to manufacture cartridge, the only problem with that mode printers supplied with an ink reservoir, of operating being that the results of the which the user would have to replenish at machine's operations cannot be seen, in regular intervals. In that case, the reservoir other words, that the printer produces a would undoubtedly be delivered with the blank sheet. printer and would clearly form a part of it and the ink would be supplied in packag- ing, the format of which would be imma- terial, provided that filling the tank was easy. That is not the case for Epson Stylus Colour printers which must be supplied with ink in cartridges which are sold 49. One can imagine the reaction of the separately and which, once empty, have proud proprietor of such a machine when a to be replaced. technician called upon to remedy the failure to print assures him that, notwith- standing that nothing has been printed, the machine is operating perfectly.

it is possible to refill that ink cartridges may proportioned in such a way that the flow of not be classified as consumable products the drink enables a glass to be filled with which the printer must, as also in the without overflowing. It is also true of jars case of paper, be supplied to carry out the of spices, which are designed differently tasks which may be expected of it. according to whether they are intended to hold thyme or cayenne pepper, since a cook seasoning a dish does not intend the cayenne pepper to come out of the jar in the same quantity as the thyme. It is also true, and this is the last example, of boxes of artificial sweeteners designed to release, 53. It is also clear from Turbon's observa- by simply pressing a button, one unit at a tions that Epson Stylus Colour printers time. Therefore there are no grounds for only have one position for ink cartridges considering that the contested cartridges or, and, consequently, if users wish to change more specifically, the casing containing the from one print colour to another, they must printing ink, may not, in any case, be change the cartridge for the essential classified as packaging on the basis of the element to reach the print head to obtain way in which they are constructed. the desired result, namely ink of the chosen colour. One cannot make it clearer than that the cartridge provides the essential element and therefore it is characterised by the ink which it holds, and not the plastic casing in which it is stored.

57. Furthermore, in relation to the value 59. Classifying the contested cartridges ratio between the ink and the casing, I note under that heading is not contradictory that there are certainly many other prod- given the classification, under another ucts which, because they are packaged in a heading, either in the case of toners for format corresponding to the preferences of photocopiers, which include a mechanical consumers, who wish to be able to con- element, or printer cartridges including a sume them immediately, without any hand- print head, an essential element in the ling and without having to transport a operation of a printer, or of ball point pens cumbersome and heavy container, are sold linked to their reservoir, which perform the in small quantities, with the result that the function of writing, since they are designed value of the product contained in the for printing on paper with ink held in the packaging may be lower than the value of reservoir. It is wholly compatible with, the packaging, but still without the customs under the same heading, ink cartridges for classification no longer being that appli- fountain pens which are to those pens what cable to the contents. the contested cartridge is to the printer, since their purpose is both to hold the ink and to release, regularly, a flow of ink necessary for the use of an instrument designed to print on paper and have a format, which varies according to the brand, allowing them to be inside the pen for which they are designed, as the Com- mission rightly observed.

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