Judgment;Summary — ECLI:EU:C:2019:667
Date: 2019-09-05
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-559/18 — 1 
Case C-559/18 
Request for a preliminary ruling 
Date lodged: 
4 September 2018 
Referring court or tribunal: 
Finanzgericht Baden-Württemberg (Germany) 
Date of the decision to refer: 
19 June 2018 
Applicant: 
TDK-Lambda Germany GmbH 
Defendant: 
Hauptzollamt Lörrach 
  
FINANZGERICHT BADEN-WÜRTTEMBERG 
(FINANCE COURT OF BADEN-WÜRTTEMBERG) 
Order 
[...] 
In the financial dispute 
TDK-Lambda Germany GmbH 
[...] Achern 
- Applicant - 
[...] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 6. 2018 — CASE C-559/18 
 
2  
Anonymised version 
v 
Hauptzollamt Lörrach 
[...] 
- Defendant —  
in relation to import duties (European customs duty) 
the 11th Chamber of the Finance Court of Baden-Württemberg [...] 
ordered as follows on 19 June 2018: 
I. The following question is referred to the Court of Justice of the European 
Union (CJEU) for a preliminary ruling under Article 267 of the Treaty on the 
Functioning of the European Union (TFEU): 
Is the Combined Nomenclature set out in Annex I to Council Regulation (EEC) 
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the 
Common Customs Tariff, as amended by Implementing Regulation (EU) 
No 1218/2012 [of the European Parliament and of the Council] of 12 December 
2012 amending Annex I to Council Regulation [Or. 2] (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2012 
L 351, pp. 36 — 39), to be interpreted as meaning that static converters such as 
those in the present case are to be classified under subheading 8504 4030 only if 
they are used principally with telecommunication apparatus, automatic data-
processing machines and units thereof, or is it sufficient, for the purpose of 
satisfying the characteristic ‘of a kind used’, if the converters can also, in view of 
their objective characteristics, be used with telecommunication apparatus, 
automatic data-processing machines and units thereof, in addition to other 
applications? 
II. The proceedings are stayed pending a preliminary ruling from the CJEU on 
the question referred. 
[...] [Or. 3] 
Grounds 
I. 
1 The parties are in dispute over the correct tariff classification of power supplies 
(‘Stromversorgungseinheiten’). 
2 The applicant is a fully-owned subsidiary of the TDK-Lambda Corporation, 
Tokyo, Japan, the corporate activity of which is the development, manufacture, 
marketing and servicing of electronic devices and components, in particular of 
power supplies. Between 2 April 2013 and 4 February 2014, it imported power 
TDK-LAMBDA GERMANY 
 
3 
Anonymised version 
supply units of the HFE, FPS and RFE series in 75 instances and declared them 
for release for free circulation and home use under code number 8504 4030 90 0 
of the Combined Nomenclature as set out in Annex I to Council Regulation (EEC) 
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the 
Common Customs Tariff (OJ 1987 L 256, p. 1; the Combined Nomenclature — 
CN), as amended by Regulation (EU) No 1218/2012 of 12 December 2012 (OJ 
2012 L 351, pp. 36 — 39). In accordance with the declarations, these importations 
were initially exempted from duty (third-country-rate duty: ‘free’). The applicant 
obtained the power supply units produced at Wuxi TDK-Lambda Electronics Co. 
in China from TDK-Lambda Ltd., Israel, which is affiliated with the applicant. 
3 All the power supply units at issue operate with output voltages of 12 V, 24 V, 
32 V or 48 V and are capable of converting both alternating current into direct 
current — for which the devices are also primarily used on account of the 
alternating current that is generally available in electricity networks — and direct 
current into direct current with a different voltage level. All the devices supply 
stabilised output voltages in so far as they all have values in the millivolt region 
for ripple and noise as well as for line regulation and load regulation; they also 
have a so-called ‘power-good signal’, which ensures a back-up of energy in the 
event of a power failure (for the technical data in detail, cf. pp. 90 — 129 of the 
Finance Court file as well as the annex to the minutes of the hearing of 19 June 
2018). [Or. 4] There is no difference between the FPS, RFE and HFE series in 
terms of the properties relevant to tariff classification. The HFE model is merely 
the further developed successor product of the FPS series; the RFE model is a 
non-pluggable installation variant of the FPS or HFE series. The power supply 
units — in so far as they are supplied to end customers by the applicant — are to a 
certain extent used in the field of telecommunications and data processing, but are 
also used in mechanical engineering and medical technology ([…]). The use of the 
goods supplied by the applicant to intermediaries is unknown and cannot be 
determined either. 
4 In the context of a customs inspection conducted in 2015, the inspector assumed, 
on the basis of corresponding information provided by the Bildungs- und 
Wissenschaftszentrum der Bundesfinanzverwaltung (Training and Science Centre 
of the Federal Revenue Administration, BWZ), that the power supply units were 
static converters that were not ‘of a kind used with telecommunication apparatus, 
automatic data-processing machines and units thereof’ and therefore could not be 
classified under the code number used by the applicant, 8504 4030 90 0 (third-
country duty: ‘exempt’). As they were intended for use in devices of different 
applications, the inspected static converters of the HFE series were not primarily 
of a kind used with telecommunication apparatus, automatic data-processing 
machines and units thereof and were therefore covered by code number 
8504 4082 90 0 (third-country rate of duty of 3.3%). According to the technical 
data sheets, the FPS and RFE series and the HFE series came within the same 
tariff classification. Therefore, those two series were likewise covered by code 
number 8504 4082 90 0. 
REQUEST FOR A PRELIMINARY RULING OF 19. 6. 2018 — CASE C-559/18 
 
4  
Anonymised version 
5 On the basis of the findings of this inspection, the defendant Hauptzollamt 
(Principal Customs Office; HZA) issued an import duty notification on 
10 February 2016, by means of which it imposed import duties of € 18 935.51 by 
way of post-clearance recovery pursuant to Article 220 of Council Regulation 
(EEC) No 2913/92 of 12 October 1992 establishing the Community Customs 
Code (CC) for 75 imports of electrical static converters of the HFE, FPS and RFE 
series. By decision of 30 August 2016 on the objection, the HZA dismissed the 
applicant’s objection as unfounded. By its action brought on 23 September [Or. 5] 
2016, the applicant continues to challenge the — in its view — incorrect 
classification of static converters of the HFE, FPS and RFE series. 
6 The hearing in the case was held on 19 June 2018. 
II. 
7 The present Chamber stays the proceedings and refers the question set out in the 
operative part of this order to the CJEU for a preliminary ruling pursuant to 
Article 267 TFEU. 
8 Legal context 
9 Subheading 8504 40 of the Harmonised System (HS) and the other subheadings of 
the CN and the TARIC that are germane to the present case are worded as 
follows: 
8504 40 Static converters 
8504 4030 Of a kind used with telecommunication apparatus, 
automatic data-processing machines and units thereof 
… Other 
8504 4055 Accumulator chargers 
… Other 
8504 4082 Electric rectifier: 
8504 4082 10  For use in civil aircraft 
8504 4082 20 Electric rectifier, with a capacity of not more than 1 kVA,... 
8504 4082 30 Power supply boards for use in the manufacture ... 
8504 4082 40 Printed circuit board equipped with a bridge rectifier circuit 
and... 
8504 4082 50  Electric rectifier: 
TDK-LAMBDA GERMANY 
 
5 
Anonymised version 
 - with an input AC voltage of 100-240 V … 
8504 4082 90 Other 
 
10 The decisive criterion for the classification of goods for customs purposes is in 
general to be found in their objective characteristics and properties as defined in 
the wording of the relevant heading or subheading and in the notes to the sections 
or chapters of the CN (CJEU, judgments of 7 February [Or. 6] 2002, Turbon 
International, C-276/00, EU:C:2002:88, paragraph 21; of 4 March 2004, Krings, 
C-130/02, EU:C:2004:122, paragraph 28; of 19 July 2012, Rohm & Haas 
Electronic Materials CMP Europe and Others, C-336/11, EU:C:2012:500, 
paragraph 31). In addition, the Explanatory Notes on the Harmonised System 
drawn up by the Customs Cooperation Council and the Explanatory Notes on the 
CN drawn up by the Commission constitute an important aid to the interpretation 
of the scope of the various tariff headings, although they do not have legally 
binding force (CJEU, judgments of 7 February, Turbon International, C-276/00, 
EU:C:2002:88, paragraph 22; of 4 March 2004, Krings, C-130/02, 
EU:C:2004:122, paragraph 28). By contrast, technical standards that concern only 
the definition of goods, independently of their classification for customs purposes, 
cannot be used as a criterion (CJEU, judgment of 2 August 1993, Jepsen Stahl, 
C-248/92, EU:C:1993:347, paragraph 13). The intended use of a product may 
constitute an objective criterion for classification if it is inherent to the product, 
and that inherent character must be capable of being assessed on the basis of the 
product’s objective characteristics and properties (cf. CJEU, judgments of 26 May 
2016, Invamed Group and Others, C-198/15, EU:C:2016:362; of 1 June 1995, 
Thyssen Haniel Logistic, C-459/93, EU:C:1995:160, paragraph 13; of 5 April 
2001, Deutsche Nichimen, C-201/99, EU:C:2001:199, paragraph 20, and of 
18 July 2007, Olicom, C-142/06, EU:C:2007:449, paragraph 18). However, the 
intended use of a product is a relevant criterion only where the classification 
cannot be made on the sole basis of the objective characteristics and properties of 
the product (CJEU, judgments of 28 April 2016, Oniors Bio, C-2[3]3/15, 
EU:C:2016:305, paragraph 33, and of 16 December 2010, Skoma-Lux, C-339/09, 
EU:C:2010:781, paragraph 47). 
11 Arguments of the parties: 
12 The applicant asserts that the static converters at issue should be classified under 
CN subheading 8504 4030. Neither the customs tariff itself nor the explanatory 
notes thereto, it argues, contain a precise definition as to what ‘of a kind used with 
telecommunication apparatus, automatic data-processing machines and units 
thereof’ is supposed to mean in the context of 8504 4030 CN [Or. 7]. Only the 
explanatory notes to the CN in relation to CN subheading 8504 4030 indicate, in 
points 20.1 to 22.1, that static converters for telecommunication apparatus or for 
automatic data-processing machines and units thereof generally have stabilising 
circuits and an output voltage that is typical for those devices, of for example 3.3, 
REQUEST FOR A PRELIMINARY RULING OF 19. 6. 2018 — CASE C-559/18 
 
6  
Anonymised version 
5, 12, 24, 48 or 60 volts. All of the devices imported by it — the applicant — 
operate with the typical output voltages. The term ‘stabilising circuits’ is a term 
derived from the nomenclature and is not a technical term, meaning that it is not 
used in its data sheets either. It is clear from the specification for ripple and noise, 
line regulation and load regulation, however, that the output voltages provided by 
its devices are stabilised (more accurately: regulated) voltages. 
13 As the tariff classification must in principle take place on the basis of the objective 
characteristics and properties of the goods as defined in the wording of the 
relevant heading of the CN and of the notes to the sections or chapters, the 
question of what is the ‘primary’ use of power supply units cannot be relevant in 
the present case. The intended use of a product may constitute an objective 
criterion for classification only if it is inherent to the product, and that inherent 
character must be capable of being assessed on the basis of its objective 
characteristics and properties. In addition, the applicant submits, it is settled case-
law of the Court that the intended use of a product is a relevant criterion only 
where the classification cannot be made on the sole basis of the objective 
characteristics and properties of the product. 
14 Accordingly, the wording ‘of a kind used’ constitutes a highly objective criterion, 
which — contrary to the view taken by the HZA — is independent of the actual or 
primary use. Were this to be viewed differently, account would be taken of a use 
subsequent to the importation of the goods, which is completely irrelevant to the 
tariff classification in the relevant period. 
15 The fact that all the devices imported by it — the applicant — complied with the 
standard EN60950-1 DIN EN 60950-1:2014-08; VDE 0805- 1:2014-08 [Or. 8] — 
Information technology equipment — is also an indication that the power supply 
units should be classified under CN subheading 8504 4030. Although the 
technical specifications or standards do not constitute a decisive factor in the tariff 
classification of goods subject to this subheading of the CN, they do constitute an 
essential indication. In so far as even stricter requirements were also satisfied, for 
example the standard EN60601 ‘Medical electrical equipment’, this does nothing 
to change the objective quality of the static converters as being ‘of a kind used 
with telecommunication apparatus, automatic data-processing machines and units 
thereof’. 
16 By contrast, the defendant HZA takes the view that the goods at issue should be 
classified as ‘other’ rectifiers under code number 8504 4082 90 0. Classification 
under CN subheading 8504 4030 is, it argues, excluded, as the term ‘of a kind 
used with’ (‘von der verwendeten Art’) used in this subheading would have to be 
construed in conjunction with ‘principally’ (‘hauptsächlich’). CN subheading 
8504 4030 is therefore based on the principal use of the static converters with 
telecommunication apparatus, automatic data-processing machines and units 
thereof. The mere ability to be used, in principle, in telecommunication apparatus, 
automatic data-processing machines and units thereof is not sufficient for 
classification under CN subheading 8504 4030, however. In this respect, the HZA 
TDK-LAMBDA GERMANY 
 
7 
Anonymised version 
refers to the European Commission, which used this legal interpretation in the 
132nd meeting of the Customs Code Committee — Tariff and Statistical 
Nomenclature Section — although this was not reflected in the minutes of that 
committee meeting. 
17 The basis of the inspector’s assessment, according to the HZA, is constituted by 
the technical data sheets and the information that they contain in relation to the 
use of the devices. According to the applicant’s publications (cf. https://de.tdk-
lambda.com/products/acdc-power-supplies) regarding the possible 
uses/applications of the static converters, the relevant criterion ‘of a kind used 
with telecommunication apparatus, automatic data-processing machines and units 
thereof’ may at best be seen in the application ‘communications systems’. There is 
no such use for the RFE device and only in some cases for the [Or. 9] HFE and 
FPS devices (one out of three applications and one out of five applications, 
respectively). 
18 The question referred for a preliminary ruling 
19 Together with the parties, the present Chamber takes the view that the goods at 
issue are static converters of HS subheading 8504 40. 
20 For the purposes of more specific classification, the decisive question is whether 
they are ‘of a kind used with telecommunication apparatus, automatic data-
processing machines and units thereof’. If this question should be answered in the 
affirmative, the static converters would have to be classified under CN subheading 
8504 4030 (third-country rate of duty: ‘free’). Otherwise they would be covered 
by TARIC subheading 8504 4082 90, pursuant to Note 3 to Section XVI of the 
CN (third-country duty of 3.3%). 
21 The present Chamber inclines to the view that the static converters should be 
classified under CN subheading 8504 4030. 
22 The power supply units of the HFE, FPS and RFE series at issue in these 
proceedings are static converters that, on the basis of their objective characteristics 
and properties, can be used in telecommunication apparatus or automatic data-
processing machines and units thereof as well as in other electrically-operated 
apparatus (e.g. printing machines, medical apparatus). Although not a decisive 
factor with regard to tariff classification, in the main proceedings the applicant 
also stated, with regard to the static converters of the HFE and FPS series in 2013 
by way of example, that a certain number of its customers also use them solely in 
telecommunications apparatus and automatic data-processing machines. 
23 CN subheading 8504 4030 includes all static converters ‘of a kind used with 
telecommunication apparatus, automatic data-processing machines and units 
thereof’, without that use having to be the ‘principal’ use according to the wording 
of the subheading. [Or. 10] The fact that, elsewhere in the Combined 
Nomenclature (e.g. HS heading 8503 and CN subheading 8528 5210), the 
legislature expressly refers to the ‘sole’ or ‘principal’ use of a product and uses 
REQUEST FOR A PRELIMINARY RULING OF 19. 6. 2018 — CASE C-559/18 
 
8  
Anonymised version 
wording to that effect (‘for use solely or principally with’) militates against such a 
restriction within the meaning of the HZA’s legal interpretation. As the legislature 
did not do so in the case of CN subheading 8504 4030, the present Chamber 
assumes that it is sufficient in this context if the imported static converters can (in 
principle) be used in telecommunications apparatus or automatic data-processing 
machines on the basis of their objective quality without this having to be the 
principle or even sole use (in this respect, see also [the decision of the] 
Unabhängiger Finanzsenat, Linz (Independent Tax Tribunal, Linz, Austria) of 
25 July 2007, [...] concerning the classification of steel pipes ‘of a kind used for 
oil or gas pipelines’ in CN subheading 7304 10). 
24 According to the explanatory notes to the CN, which can additionally be used for 
interpretation purposes, CN subheading 8504 4030 includes ‘static converters for 
telecommunication apparatus or for automatic data-processing machines and units 
thereof, which: 
— generally have stabilising circuits; 
— have a typical output voltage of, for example, 3.3, 5, 12, 24, 48 or 60 
V’ (points 19.1-22.1 of the explanatory notes to the CN). 
They serve to convert, for example, the alternating current drawn from the mains 
supply into the requisite direct current (point 23.1 of the explanatory notes to the 
CN). Used with automatic data-processing machines, a so-called Uninterruptible 
Power Supply (UPS) ensures a ‘back-up’ of energy (with a ‘power good’ signal) 
in the event of a power failure, thus preventing data loss (point 24 of the 
explanatory notes to the CN). 
25 It is already questionable whether these additional requirements are compatible 
with the wording of CN subheading 8504 4030. Irrespective of this, however, the 
present Chamber takes the view that the static converters under examination here 
do satisfy these further requirements. Firstly, it is sufficient for the assumption of 
a ‘stabilising circuit’ within the meaning of point 21.1 of the explanatory notes to 
the CN (‘Stabilisierungsschaltung’), that — as is the case here — the devices 
[Or. 11] ultimately provide a stabilised output voltage without the physical 
presence of a specific stabilising component being necessary for that purpose. 
Secondly, according to the wording of the explanatory notes to the CN 
(‘generally’/‘im Allgemeinen’), static converters do not necessarily have to satisfy 
this requirement in order to be regarded as static converters ‘of a kind used with 
telecommunication apparatus, automatic data-processing machines and units 
thereof’. The power supply units at issue also operate exclusively with the 
aforementioned typical voltages (point 22.1 of the explanatory notes to the CN), 
are generally used to convert alternating current drawn from the mains supply into 
direct current (point 23.1 of the explanatory notes to the CN) and are capable of 
ensuring a ‘back-up’ of energy (with a ‘power good’ signal) in the event of a 
power failure (point 24 of the explanatory notes to the CN). 
TDK-LAMBDA GERMANY 
 
9 
Anonymised version 
26 Even taking into account the explanatory notes to the CN, the present Chamber 
therefore assumes that the static converters at issue should be classified under CN 
subheading 8504 4030, because they can — also — be used with 
telecommunication apparatus, automatic data-processing machines and units 
thereof and are in fact used in that way in the present case, with the result that it is 
thus irrelevant whether that use constitutes the ‘principal’ or ‘sole’ use. 
27 However, the present Chamber is not unaware of the fact that the European 
Commission has patently taken a different view in several implementing 
regulations concerning the classification of certain goods in the Combined 
Nomenclature (cf. Commission Implementing Regulation (EU) No 1110/2012, OJ 
L 329 of 29 November 2012, pp. 5 and 6, and Commission Implementing 
Regulation (EU) 2016/666, OJ L 115 of 29 April 2016, pp. 25–27). Accordingly, 
in the aforementioned individual decisions, it classified a universal car charger 
and an AC/DC adapter for supplying power to a set-top box under CN subheading 
8504 4090 and CN subheading 8504 4082, respectively, and stated, as its reasons, 
that classification under CN code 8504 4030 as static converters of a kind used 
with telecommunication apparatus, automatic data-processing machines and units 
thereof was excluded as the static converters could charge/provide current to a 
variety of electrical apparatus. [Or. 12] 
28 In this sense, the [judgment] of the CJEU in Invamed Group and Others 
(C-198/15, EU:C:2016:362) could also be understood to mean that, in connection 
with the classification of vehicles with battery-powered electric motors under HS 
heading 8713, use by disabled persons must be classified as ‘the main or logical 
use’ of that type of vehicle (paragraph 23 of the judgment). On the other hand, the 
fact that electric mobility scooters may be used, where appropriate, by disabled 
persons or even may be adapted for use by disabled persons should not affect the 
tariff classification of such vehicles under CN heading 8703 if they are suitable 
for being used for a number of other activities by persons who do not suffer from 
any disability, but who for one reason or another prefer to travel short distances 
other than on foot, like golfers or persons going shopping (paragraph 25 of the 
judgment). However, the CJEU’s [judgment] relates to the interpretation of CN 
heading 8713 — specifically the characteristic ‘for disabled persons’ (‘für 
Behinderte’) — and not to that of CN subheading 8504 4030 or the wording ‘of a 
kind used with’ (‘von der verwendeten Art’). 
[...]