Order — ECLI:EU:T:2005:113
Date: 2005-03-18
Language of the case: English
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Concepts: Costs
Procedure: Action for annulment;Application as to costs
Origin: United Kingdom

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Customs classification regulation — Applicant 
'directly concerned' — Criteria 
(Art. 230, fourth para., EC; Council Regulation No 2658/87, Art. 9(1)(a), first indent) 
2. Common Customs Tariff — Tariff headings — Classification of goods — Commis­
sion's regulatory power — Scope — Limits 
(Council Regulation No 2658/87, Art. 9(1)(a), (b), (d) and (e)) 
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SUMMARY — CASE T-243/01 
3. Common Customs Tariff — Tariff headings — Classification of goods — Crite­
ria — Objective characteristics and properties of the product 
4. Common Customs Tariff — Tariff headings — Reliance on the World Customs 
Organisation's Harmonised System Explanatory Notes — Limits 
5. Common Customs Tariff — Tariff headings — 'Video games of a kind used with a 
television receiver' within the meaning of subheading No 9504 10 00 of the Combined 
Nomenclature — Game console intended to be used mainly for playing video 
games — Covered 
(Commission Regulation No 1400/2001) 
6. Acts of the institutions — Statement of reasons — Obligation — Scope — Customs 
classification regulation — Insufficient to refer to a general rule of interpretation 
(Art. 253 EC) 
7. Common Customs Tariff — Tariff headings — 'Video games of a kind used with a 
television receiver' within the meaning of subheading No 9504 10 00 of the Combined 
Nomenclature — Inclusion by the Commission of a game console, having regard to 
the function which gives it its essential character — Classification on the basis of 
General Interpretation Rule 3(b) of the Combined Nomenclature — Inadmissible 
(Commission Regulation No 1400/2001) 
1. Although it is true that the regulations 
for classifying specific goods in the 
Combined Nomenclature, adopted by 
the Commission pursuant to the first 
indent of Article 9(1)(a) of Regulation 
No 2658/87 on the tariff and statistical 
nomenclature and on the Common 
Customs Tariff, are of general appli­
cation, since they concern all products 
of the type described, regardless of 
their individual characteristics and ori­
gin, and they take effect, in the interests 
of the uniform application of the 
Common Customs Tariff, in relation 
to all customs authorities in the Com­
munity and all importers, such a meas­
ure of general application may, how­
ever, in certain circumstances, be of 
direct and individual concern to some 
economic operators and, therefore, 
may be challenged by them under the 
fourth paragraph of Article 230 EC. 
This is so with respect to individual 
concern when an undertaking which 
imports a given product has triggered 
the administrative procedure which led 
to the adoption of the contested regu­
lation and that procedure has con­
cerned specifically the tariff classifi­
cation of that product, when that 
undertaking is the only party whose 
legal position is affected as a result of 
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SONY COMPUTER ENTERTAINMENT EUROPE v COMMISSION 
adoption of the regulation, when the 
contested regulation focuses specifi­
cally on the classification of the prod­
uct imported by the undertaking in 
question and there are no other prod­
ucts with identical features, it being 
borne in mind that a possible appli­
cation by analogy to similar products 
would not preclude the undertaking 
from being individually concerned, 
when the undertaking is the sole auth­
orised importer of that product into the 
Community. 
(see paras 58-59, 63-64, 
69, 71, 74-75) 
2. The Council has conferred upon the 
Commission, acting in cooperation 
with the customs experts of the 
Member States, a broad discretion to 
define the subject-matter of tariff head­
ings falling to be considered for the 
classification of particular goods. 
However, the Commission's power to 
adopt the measures mentioned in 
Article 9(1)(a), (b), (d) and (e) of 
Regulation No 2658/87 on the tariff 
and statistical nomenclature and on the 
Common Customs Tariff does not 
authorise it to alter the subject-matter 
of the tariff headings which have been 
defined on the basis of the Harmonised 
System established by the 1983 Inter­
national Convention on the Harmon­
ised Commodity Description and 
Coding System whose scope the Com­
munity has undertaken not to modify 
under Article 3 thereof. 
(see para. 103) 
3. The decisive criterion for the customs 
classification of goods must be sought 
generally in their objective character­
istics and qualities, as defined in the 
relevant heading of the Common Cus­
toms Tariff and in the notes to the 
sections or chapters. 
(see para. 104) 
4. It is true that the Harmonised System 
Explanatory Notes published by the 
Word Customs Organisation constitute 
an important means of ensuring the 
uniform application of the Common 
Customs Tariff by the customs auth­
orities of the Member States and as 
such may be considered a valid aid to 
the interpretation of the tariff. How­
ever, those notes do not have legally 
binding force so that, where appropri­
ate, it is necessary to consider whether 
their content is in accordance with the 
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SUMMARY — CASE T-243/01 
actual provisions of the Common Cus­
toms Tariff and whether they alter the 
meaning of such provisions. 
(see para. 116) 
5. It is possible to classify the game 
console described in the Annex to 
Regulation No 1400/2001 concerning 
the classification of certain goods in the 
Combined Nomenclature under CN 
Code 9504 10 00: 'video games of a 
kind used with a television receiver'. 
Thus, in the absence of a definition of 
'video games' in the wording of 
subheading 9504 10 in the section 
and chapter notes, in the Harmonised 
System Explanatory Notes (HSEN) 
published by the World Customs 
Organisation, and in the Combined 
Nomenclature explanatory notes 
drawn up by the Commission, it is 
appropriate to consider as video games 
any products which are intended to be 
used, exclusively or mainly, for playing 
video games, even though they might 
be used for other purposes, as is the 
console in question here, which, both 
by the manner in which it is imported, 
sold and presented to the public and by 
the way it is configured, is intended to 
be used mainly for playing video 
games, even though it may also be 
used for other purposes, such as play­
ing video DVDs and audio CDs, in 
addition to automatic data processing. 
In addition, since neither the wording 
of subheading 9504 10 nor the section 
and chapter notes pertaining thereto 
contain any indications, much less 
limitations, as to the operation and/or 
the composition of the products 
coming thereunder, the mere fact that 
the console may operate as an auto­
matic data-processing machine and 
that video games are only one type of 
file that it can process does not by itself 
preclude its being classified under sub­
heading 9504 10, since it is quite clear 
that it is intended mainly to be used to 
run video games. 
This finding is, moreover, not affected 
by HSEN(b) to heading 9504, which, 
in providing that that heading does not 
cover products intended to be used 
mainly for playing video games, would 
in effect modify and, more specifically, 
limit the scope of that heading and 
subheading 9504 10; this cannot be 
accepted. 
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SONY COMPUTER ENTERTAINMENT EUROPE v COMMISSION 
Lastly, the classification of an auto­
matic data-processing machine accord­
ing to the type of file processed does 
not place an undue limitation on the 
scope of heading 8471 by introducing a 
new rule expanding the 'specific func­
tion' requirement of Note 5(E) to 
Chapter 84 to include all functions 
covered by any other heading or sub­
heading of the Combined Nomencla­
ture. Although it is true that the con­
sole in question does not perform any 
'specific function other than data pro­
cessing' and that the playing of video 
games is not one of its specific func­
tions per se, the mere fact that an 
apparatus fulfils the conditions of Note 
5(A) to Chapter 84 and does not 
perform any specific function other 
than data processing for the purposes 
of Note 5(E) to that chapter does not 
by itself preclude such an apparatus 
from being classified under another 
heading. 
(see paras 109, 111-112, 
114-115, 117-119) 
6. The obligation to state reasons which is 
incumbent on the Commission when it 
adopts a customs classification regu­
lation requires it to state clearly the 
legal basis for the classification, in 
order to inform the persons concerned 
of the justification for the measure 
adopted and to enable the Community 
Court to exercise its powers of review. 
A simple reference to a general rule of 
interpretation of the Combined 
Nomenclature does not fulfil that obli­
gation. 
(see para. 131) 
7. Regulation No 1400/2001 concerning 
the classification of certain goods in the 
Combined Nomenclature is vitiated by 
an error of law in so far as it classifies 
the game console described in the 
Annex to that regulation under CN 
Code 9504 10 00 and the accompany­
ing CD-ROM under CN Code 8524 39 
90. 
Although it is true that such a console 
can be classified under heading 9504, 
the Commission committed an error of 
law by determining, on the basis of 
general rule 3(b) of interpretation of 
the Combined Nomenclature, the clas­
sification of the console, having regard 
to the function which gives it its essen­
tial character, because that rule covers 
only the classification of '[mixtures, 
composite goods consisting of different 
materials or made up of different com­
ponents, and goods put up in sets for 
retail sale', and provides for the clas­
sification of mixtures and composite 
goods according to the material or 
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SUMMARY — CASE T-243/01 
component which gives them their 
essential character. 
This interpretation of general rule 3(b) 
is confirmed by the HSEN to that rule, 
and by the principle that it is necessary, 
in carrying out the tariff classification 
of a product, to identify, from among 
the materials of which it is composed, 
the one which gives it its essential 
character, which may be done by 
determining whether the product 
would retain its characteristic prop­
erties if one or other of its constituents 
were removed from it. 
Since a possible error in the classifi­
cation of the console automatically 
entails the invalidity of the classifi­
cation of the accompanying CD-ROM, 
there is also an error in that regard. 
Accordingly, the regulation in question 
must be annulled. 
(see paras 119, 123-126, 
128, 133-134, operative part 1) 
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