Opinion of the Advocate General — ECLI:EU:C:2001:68
Date: 2001-02-01
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Ireland

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 heading 8517, those regulations embodied a manifest error in the interpretation of the HS, such goods being classifiable under heading 8471 by reference to their physical description and functionality. The Revenue Commissioners contended that their classifications were not the result of any manifest error and should be upheld as consistent with Regulations No 1638/94 and No 1165/95, the Common Customs Tariff and European Community customs practice. At a hearing which apparently lasted eight days, both parties adduced expert evidence in favour of the classification they favoured. 49. The Appeal Commissioners have made findings of fact and expressed an opinion on the legal issues, evincing in both cases a position favourable to Cabletron. Essentially, after hearing all the expert evidence, they accept that all the goods in issue are designed and manufactured solely for use in LANs, and that LANs, which operate as distributive computer systems, are ADP machines in the form of a system for the purposes of Note 5(B) to Chapter 84 of the CN. Each of the types of equipment in issue meets the definition of a unit within the meaning of that note but is incapable of being used in a telecommunications environment, where different techniques are used. 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 following questions: 1. Is Regulation No 1638/94 valid in so far as it classifies under CN code 8517 82 90 the goods respectively described at items 1, 2 and 3 of the annex to the said regulation? 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 regulation? 3. Is the Combined Nomenclature to be interpreted as requiring that the goods set out in the schedule attached hereto be classified as 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 specified or included under tariff heading 8471 either (i) post 1 January 1996 or (ii) between 28 April 1993 and 31 December 1995 or (iii) for both periods of time? 4. If the answer to any part of question 3 is in the negative in respect of one or more of the goods set out in the schedule attached hereto, is the Combined Nomenclature to be interpreted as requiring such goods to be classified, ante 1 January 1996, as Electrical apparatus for line telephony or line telegraphy, including such apparatus for carrier-current line systems under tariff heading 8517 or, post 1 January 1996, as Electrical apparatus 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 under tariff heading 8517? 51. The schedule referred to in the order for reference lists 58 items (18) which are named, but not described. Cabletron, with its observations to the Court, has submitted copies of the binding tariff information issued in respect of those items, which contain a brief description, together with copies of more complete descriptions of 20 of them. The Information Technology Agreement 52. The Agreement on Trade in Information Technology Products ('ITA), (19) the parties to which include the European Community and together account for some 90% of world trade in information technology products, was concluded in Singapore on 13 December 1996 and came into effect in 1997. 53. Under it, all customs duties on information technology products are to be eliminated as between the parties by 1 January 2000, with progressive reductions in 1997, 1998 and 1999. The Community has therefore reduced to zero theconventional duty on all subheadings of headings 8471 and 8517 since 1 January 2000. 54. The ITA covers, on the one hand, HS headings 8471 and 8517 and their subheadings (20) and, on the other hand, inter alia, all 'Network equipment: local area network (LAN) and wide area network (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 processor units, data storage devices and input or output - including adapters, hubs, in-line repeaters, converters, concentrators, bridges and routers and printed circuit assemblies for physical incorporation into automatic data-processing machines and units thereof, wherever classified in the HS. (21) The judgment in Peacock 55. On 19 October 2000, after the close of the written procedure in the present case, the Court ruled that Note 5(B) to Chapter 84 of the CN (as it stood before 1 January 1996) (22) did not preclude the classification of network cards designed to be installed in ADP machines under heading No 8471, and that between July 1990 and May 1995 those cards were therefore to be classified under heading No 8471 as units of machines of that type. 56. The Court found, in particular, that 'network cards are designed solely for automatic information processing machines, they are directly connected to those machines and their function is to supply and accept data in a form which those machines can use. Network cards are thus comparable with any other medium whereby an automatic information processing machine accepts or delivers data in the sense that they have no function which they would be capable of performing without the assistance of such a machine. They could thus not be excluded from heading 8471 by the last paragraph of Note 5(B) to Chapter 84 of the CN, since they did not perform a specific function. (23) They did, however, satisfy all the conditions relating to 'units set out in that note, 'since they can be connected to the central unit and are specifically designed as parts of an automatic data-processing system. (24) The 26th session of the HS Committee 57. I have already referred to two amendments to the HSENs effected by the WCO's HS Committee at its 26th session in November 2000, shortly before the hearing in this case. A number of other decisions relevant to the classifications in issue here were also taken during that session, and were discussed at the hearing. 58. First, a decision was taken to classify LAN repeaters under heading 8543 - which is for electrical machines and apparatus having individual functions not specified or included elsewhere in Chapter 85 - following a discussion during which the delegates of the United States and of the European Community maintained opposing views as to whether the repeaters used in computer networks could be distinguished from those used in telecommunications. The committee decided, by 16 votes to 13, to classify LAN repeaters outside heading 8471. The view was then expressed, and apparently accepted without 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 heading. 59. Secondly, it was unanimously agreed that 'Communications controllers or routers (including LAN bridges), 'Synchronous-Network-Architecture (SNA) cluster controllers (including remote control units), 'Multistation access units, which are passive local area network (LAN) hubs and 'Optical fibre converters used in LANs were all to be classified under subheading 8471 80 pursuant to Note 5(B) to Chapter 84, Note 5(E) not being applicable. Similar decisions had previously been taken, by a majority, in 1997 and 1998, but the Commission had on those occasions entered a reservation on behalf of the Community, preventing them from taking effect. In November 2000, however, the decision appears to have been unanimous. 60. Finally, a decision was taken by 25 votes to 5 to classify the 'ENW-9500-Fast Ethernet Adapter under subheading 8471 80. Such items are of a kind similar to those classified by the Court under heading 8471 in Peacock. Procedure before the Court 61. Written observations have been submitted by the parties to the main proceedings, the Netherlands Government and the Commission. Cabletron, the Revenue Commissioners and the Commission presented oral argument at the hearing. Analysis 62. It must be said at the outset that this Court cannot rule on the precise nature of each of the 58 items in issue. The Appeal Commissioners have heard extensive evidence in that regard and have made certain findings of fact. Various representations have been made during the present proceedings, but it is not the proper role of the Court to determine such matters. The nature of the items to be classified must remain a question for the national court alone. 63. However, it was made clear at the hearing that Cabletron, the Revenue Commissioners and the Commission all accepted the Appeal Commissioners' finding that all the products in issue were designed for use in a LAN (25) and no objection was voiced to Cabletron's assertion that there was also agreement on the finding that a LAN was an ADP machine in the form of a system. 64. I shall base my analysis on that assumption. 65. Furthermore, it was common ground that - with a few possible exceptions which might fall under heading 8543 following the recent decision of the HS Committee on the classification of repeaters - the disputed items must be classified either all under heading 8471 or all under heading 8517. I shall address the issue on that basis, leaving the question of heading 8543 in abeyance for the moment. 66. The view originally put forward by the Revenue Commissioners, the Netherlands Government and the Commission was essentially that the items in issue, although they met all the criteria for units of ADP machines in the form of a system as laid down in Note 5(B) to Chapter 84, were none the less excluded from heading 8471 by the last paragraph of that note (or by Note 5(E) after 1 January 1996) because they performed a specific function (other than data processing), namely telecommunication in the form of data transmission. 67. That was before the judgment in Peacock. 68. Since that judgment, it is clear that network equipment which meets the definition of 'units in Note 5(B) is not to be regarded as performing a 'specific function excluding it from heading 8471 when it has no function that it would be capable of performing without the assistance of an ADP machine. 69. At the hearing, both the Revenue Commissioners and the Commission accepted that to be the case at least prior to the entry into force of Regulation No 1638/94 but argued that those regulations were not vitiated by a manifest error and should not be declared invalid. The Commission put forward in addition the view that the amendment to the wording of heading 8517 as from 1 January 1996, by including a reference to apparatus for digital line systems, changed the contentof that heading to include digital data transmission equipment; as a result, it was no longer the case that network equipment was excluded from heading 8471 by Note 5(E) to Chapter 84 but rather that such equipment was specifically included under heading 8517 so that heading 8471, Note 5(E) and the ruling in Peacock were no longer relevant. The correct classification prior to the adoption of the regulations 70. There can in fact be no challenge to the classification applied to Cabletron's goods during this period since Cabletron was issued with binding tariff information classifying 43 products under CN heading 8471, on which it was entitled to rely until withdrawn or, in so far as it conflicted with either of the regulations in issue, until three months after the entry into force of that regulation. (26) However, it is useful to begin by verifying whether that classification was 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 central processing unit either directly or through one or more other units, that they are specifically designed as part of a system and that they are able to accept or deliver data in a form which can be used by the system. Nor is it contested that, in accordance with the judgment in Peacock, they have no function that they would be capable of performing without the assistance of an ADP machine. 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 goods all appear to be covered by the broad definitions in items (4) and (5) of Note I(D) to heading 8471 in the HSENs, (27) as 'control and adaptor units such as those to effect interconnection of the central processing unit to other digital data processing machines, or to groups of input or output units, 'channel to channel adaptors used to connect two digital systems to each other or 'signal converting units used on input and output. 73. Indeed, the matter is made even clearer by the recently-agreed amendments to the HSENs, which included 'routers, bridges and hubs used to control and direct communications between the machines in local area networks (LANs) and channel to channel adaptors used to connect two digital systems (e.g. LANs) to each other. 74. Admittedly those amendments were made only very recently and some considerable time after the period material to the present case. However, theywere made by way of 'corrigendum, which suggests that they were not modifying the tenor of the previous less explicit version, and they were approved unanimously, which indicates that the Community authorities were in full agreement with them. 75. It may therefore be accepted in my opinion that the items in issue were properly to be classified under heading 8471 prior to the adoption of Regulation No 1638/94 or Regulation No 1165/95, as the case may be. The validity of the regulations - General considerations 76. Clearly it is desirable that in cases of doubt there should be some mechanism for specifying the classification of goods in the CN, and the Commission has a power to adopt regulations for that purpose. (28) 77. The principles governing its exercise have been set out by the Court as follows: '... 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 headings falling to be considered for the classification of particular goods ... However, the Commission's power ... 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 Convention whose scope the Community has undertaken, under Article 3 thereof, not to modify. It must therefore be considered whether the Commission ... has in fact amended [the relevant heading] of the combined nomenclature, thus exceeding the limit of the powers conferred upon it ... (29) 78. In GoldStar Europe, (30) the Court approached that question by examining whether the Commission had committed a 'manifest error of assessment in the classification made. 79. At the hearing in the present case, there was discussion as to what is necessary, where it is agreed that a classification was made in error, to render that error 'manifest and thus to vitiate the regulation. 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 Commission's words - at the time of adoption of the regulation in issue. 81. However, that does not address the question of the requisite degree of 'manifestness. 82. I would suggest that the Court should not be reluctant to review the Commission's assessment in a case such as the present. 83. Where there is real doubt, it is important that the Commission should be able to 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 regulation must be qualified by the need to control the exercise of that power where it brings the Community into conflict with the uniform international practice which the HS seeks to achieve. 84. What is at issue here is the correct classification of the goods in accordance with the Community's obligation to comply with the HS Convention. Closer scrutiny is I consider justified in such cases, where the dispute is between headings or subheadings whose content is established at that higher level and which fall only to be interpreted for Community purposes, than where the Commission enjoys a fuller discretionary power, for example as regards the determination of the correct eight-digit sub-subheading, which is a matter of Community law alone. In the former case (as here), a regulation may be invalid by reason of its failure to comply with the Community's international obligations; in the latter, it will not be invalid unless the classification was manifestly at odds with the CN. - The present case 85. The Revenue Commissioners and the Commission submit essentially that, because of the degree of uncertainty prevailing internationally in the mid-1990s over the proper classification of network equipment, any error made by the Commission 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 that it was manifestly erroneous to apply to them what was then the last paragraph of Note 5(B) to Chapter 84. 86. Cabletron's view appears highly persuasive to me. A computer network meets the definition of a 'system consisting of a variable number of separately housed units 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 equipment used to transfer it not only forms part of the system but in the transfer process performs no function which does not serve the purpose of data processing. 87. That view is supported by the wording of headings 8471 and 8517. The former is clearly intended for data-processing equipment, the latter for telephony and telegraphy equipment. The transfer of data for the exclusive purposes of an automatic data-processing machine seems a function much more closely related to data processing than to telephony or telegraphy. The terms used in the HS and the CN cannot necessarily always be interpreted on a commonsense basis as having their everyday meaning, but there must be some convincing reason for departing from that meaning. 88. The HSENs define data processing as 'handling information of all kinds, in pre-established logical sequences and for a specific purpose or purposes and ADP machines as those 'which, by logically interrelated operations performed in accordance with pre-established instructions (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 exclude equipment of the kinds classified in Regulations No 1638/94 or No 1165/95; on the contrary, the items classified seem to fit well within them. 89. It is true that the HSENs also define telephony or telegraphy as 'the transmission between two points of speech or other sounds (or of symbols representing written messages, images or other data). The reference to the transmission of data is, however, very subsidiary in that definition and seems intended to prevent an item which is clearly 'apparatus for line telephony or line telegraphy from being excluded from heading 8517 simply because the content of the message transmitted does not fall within one of the listed categories. 90. The mention in those notes (31) of 'control and adaptor units such as those to effect interconnection of the central processing unit to other digital data processing machines, or to groups of input or output units, of 'channel to channel adaptors used to connect two digital systems to each other and of 'signal converting units used on input and output as falling under heading 8471, on the other hand, indicates a clear intention that items similar to those classified by Regulations No 1638/94 and 1165/95 should be categorised as units of an ADP machine in the form of a system. 91. But the Commission points to the lack of international agreement - indeed, to the existence of a certain degree of vehement 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 agreement on heading 8471. 92. The answer to that objection lies, I think, in the Commission's own observations to the effect that much of the disagreement was prompted by economic considerations. 93. Clearly, it is in the interest of traders and of exporting countries to seek classification under a heading which attracts a lower rate of duty, and in the interest of importing countries - or customs unions, such as the Community - to seek a classification entailing a higher rate. When rates were lower under heading 8471 and higher under 8517, it is interesting to note that exporting countries argued for the former and the European Community for the latter. Following the entry into force of the ITA and the elimination of all duty under both headings, it appears that the Community has for whatever reason eased its opposition to heading 8471. 94. But those considerations are, as the Commission has rightly stressed, extraneous to the question of the correct classification. 95. I am satisfied that it should have been clear to the Commission from the wording of the headings, in particular when read in conjunction with the explanatory notes as they stood at the time, that it was in error in classifying the items of network equipment covered by Regulations No 1638/94 and No 1165/95 under heading 8517. The existence of disagreement rooted in different considerations should not have clouded its view. In the light of the opinion I have expressed above in paragraphs 82 to 84, that error is in my opinion such as to vitiate the regulations. The amendment to the wording of heading 8517 96. The Commission has suggested that, regardless of Note 5(E), of the judgment in Peacock and of the regulations, network equipment should be classified, in accordance with General Rules 1 and 3(a), under heading 8517, as the heading whose wording provides the most specific description, as from 1 January 1996 when that heading was amended. (32) 97. However, the amendments made to the HS and the CN with effect from that date do not appear to me to affect the content of headings 8471 or 8517,although they do affect the way those headings are structured in terms of subheadings, a matter which is not relevant to the issue here. 98. It is true that the wording of heading 8517 was amended. However, that amendment was not in my view relevant to the type of goods with which we are concerned. It added a reference to line telephone sets with cordless handsets and to videophones, neither of which are in issue. It also, however, expanded the phrase 'including such apparatus for carrier-current line systems to 'including ... telecommunication apparatus for carrier-current line systems or for digital line systems, a modification which perhaps requires brief consideration. 99. The introduction of the term 'telecommunication apparatus - which concerned only the English version of the HS and not the French, where it was already used - was clearly necessary simply for grammatical coherence. 100. More importantly and contrary to the argument advanced by the Commission at the hearing, the new inclusion of a reference to apparatus for digital line systems does not in my opinion mean that such apparatus was previously excluded. 101. The basic category covered by the heading remains as before that of 'electrical apparatus for line telephony or line telegraphy. The fact that until 31 December 1995 only apparatus for carrier-current line systems was included by name does not mean that other types of system were excluded. Indeed, subheadings 8517 81 and 8517 82 came under the category 'other apparatus, following immediately upon subheading 8517 40 for 'other apparatus, for carrier-current line systems, demonstrating that they referred to apparatus not for such systems. The new reference does indeed reflect changes in the predominant technology but the fact remains that in either formulation the items listed after the word 'including can only be construed as non-exhaustive examples. 102. Electrical apparatus for line telephony or line telegraphy thus remains classifiable under heading 8517 after 1 January 1996 as it was before, whether it is for digital line systems or not. Furthermore, equipment which meets the criteria for units of an ADP machine in the form of a system for the purposes of heading 8471 is not transferred to heading 8517, either before or after that date, simply by virtue of using cables and digital techniques. Possibility of classification under heading 8543 103. As I have stated, (33) in November 2000 the WCO's HS Committee decided to classify LAN repeaters under heading 8453, following a failure to agree whetherthe repeaters used in computer networks could be distinguished from those used in telecommunications. It was decided by a small majority that LAN repeaters must be classified outside heading 8471 and then without a vote that, since they could not be used in line telephony or line telegraphy, they should fall under the residual subheading 8543 89. 104. That decision appears to be a compromise and - perhaps - not an entirely satisfactory one. It is, moreover, as yet one of principle and has not become definitive. The Commission stated at the hearing that the United States were likely to enter a reservation. If and when it is finalised, it will be of only persuasive authority as far as classification under the CN is concerned, and cannot in any event have any retroactive authority as regards the items to be classified in this case. Consequently, I consider, the HS Committee's decision to classify LAN repeaters under heading 8543 may be disregarded for present purposes. There is however one aspect to which I should like to draw attention. 105. As I have noted, (34) the Community's combined nomenclature contains further subdivisions within the six-digit subheadings of the HS. There are currently 11 such subdivisions within subheading 8543 89 and of those only the final residual sub-subheading 8543 89 95 ('other) appears capable of accommodating LAN repeaters or any other kind of network equipment, 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%. 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, headings 8471 and 8517 but also, more generally, on all network equipment wherever it is classified in the HS. 107. Consequently, the Community appears to be in effect precluded by its international obligations from classifying any computer network equipment under subheading 8543 89 from 1 January 2000 and until such time as it modifies the structure of the subdivisions of that subheading and/or the rates of duty charged thereunder. It may not, in any event, charge the 3.7% duty which would at present ensue from classification under sub-subheading 8543 89 95. The effects of a ruling that network equipment is to be classified under heading 8471 108. At the hearing, the Commission suggested that a ruling on the classification of the products in issue in the present case could have economically significant repercussions for other types of products such as, inter alia, digital cameras, fax machines and photocopiers. 109. It seems to me that such fears are unfounded. 110. The approach I am advocating involves the classification under heading 8471 of all network equipment which meets the criteria set out in the Peacock judgment for units of an automatic data-processing system which are not taken out of that heading by virtue of having a specific function that they would be capable of performing without the assistance of an ADP machine. That category, according to my understanding, includes all the 58 items listed in the annex to the order for reference and all four disputed items classified by Regulations No 1638/94 and No 1165/95. Digital cameras, fax machines and photocopiers, however, clearly do have a function which is capable of being performed without the assistance of an ADP machine and such items would thus, in accordance with the judgment in Peacock, be excluded from heading 8471 by virtue of Note 5(E) to Chapter 84 of the CN. The temporal effects of a ruling that Regulations No 1638/94 and No 1165/95 are invalid 111. At the hearing, the Revenue Commissioners raised for the first time a request that, in the event of a ruling that the regulations in issue were invalid, the Court should limit its retroactive effect by specifying that it could be relied upon only by persons who had initiated legal proceedings or raised an equivalent claim under national law prior to the date of judgment. 112. Where in reply to a request for a preliminary ruling the Court finds that a Community measure is invalid, that ruling in principle takes effect erga omnes and ex tunc, so that any person may in any proceedings rely upon the invalidity of the measure. 113. The Court has, however, exceptionally made use of the possibility derived indirectly from the second paragraph of Article 174 of the EC Treaty (now Article 231 EC) to limit the retroactive effect of the finding of invalidity, where that is justified by overriding considerations of legal certainty. (36) 114. That step cannot, however, be taken without some substantiated representation as to the overriding considerations of legal certainty alleged, and no such representation has been made to the Court here. Some 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 proposed limitation), but none as to the possible number or importance of proceedings which might be, but have not yet been, brought. The Court has heard no argument on the question why the legal certainty of duties previously levied should prevail over the correct interpretation of the CN, and at the hearing the Commission made no comment on the Revenue Commissioners' request. 115. I therefore cannot see any reason for limiting the ex tunc effect of the finding of invalidity which I propose should be made. It may in any event be noted that the practical effects of the ruling would concern only the period prior to 1 January 2000 and that Article 236(2) of the Community Customs Code (37) imposes a three-year time-limit on the repayment or remission of customs duties not legally owed. Conclusion 116. I therefore consider that the Court should give the following answers to the questions raised by the Appeal Commissioners in the present case: (1) Commission Regulation (EC) No 1638/94 is invalid in so far as it classifies the adapters, link adapters and transceivers described in items 1 to 3 of its annex under heading 8517 of the Combined Nomenclature. (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. 1: Original language: English. 2: - Judgment of 19 October 2000 in Case C-339/98 Peacock v Hauptzollamt Paderborn; Opinion delivered on 28 October 1999. 3: - Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L 256, p. 1, as amended. 4: - I am particularly indebted to the informative web pages maintained by Kyungsan System, NetReference Inc. of the Burton Group and the 116th Bomber Wing of the Georgia Air National Guard. 5: - The Harmonised Commodity Description and Coding System, introduced by the International Convention of 14 June 1983, approved for the Community by Council Decision 87/369/EEC of 7 April 1987, OJ 1987 L 198, p. 1. 6: - See the HS Convention cited in note 4, Article 7. 7: - Ibid., Article 8. 8: - The Court has consistently held the HSENs to be a valuable aid to the interpretation of the CN. See, for example, the judgments in Case C-67/95 Rank Xerox v Inspecteur der Invoerrechten en Accijnzen [1997] ECR I-5401, paragraph 17, and Case C-382/95 Techex v Hauptzollamt München [1997] ECR I-7363, paragraph 12, and Peacock, cited in note 1. However, at paragraphs 22 to 24 of its judgment in Case C-280/97 ROSE Elektrotechnik v Oberfinanzdirektion Köln [1999] ECR I-689, it declined to follow the HSENs on the ground that 'they are contrary to the actual wording of heading 8536 and alter its meaning. 9: - See Commission Regulation (EC) No 3009/95 of 22 December 1995 amending Annex I to Council Regulation No 2658/87, OJ 1995 L 319, p. 1. That regulation reflected a similarly substantial revision of the HS. 10: - Like the HSENs, these notes have been held by the Court to be a valuable aid for interpretation; see, for example, Rank Xerox and Techex, cited in note 7. 11: - Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ 1992 L 302, p. 1, as amended with effect from 1 January 1997 by Article 1(3) of Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 amending Regulation (EEC) No 2913/92 establishing a Community Customs Code, OJ 1997 L 17, p. 1. 12: - Cited above in note 2. 13: - Commission Regulation (EC) No 1638/94 of 5 July 1994 concerning the classification of certain goods in the combined nomenclature, OJ 1994 L 172, p. 5. 14: - Commission Regulation (EC) No 1165/95 of 23 May 1995 concerning the classification of certain goods in the combined nomenclature, OJ 1995 L 117, p. 15. 15: - Cited in note 1. Following the 1996 amendments to the HS and the CN, and to deal with discrepancies between the new structure and existing classification regulations, 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 to this case, that regulation replaced the references to subheading 8517 82 90 by references to subheading 8517 50 90 (other apparatus, for digital line systems). 16: - See paragraph 28 above. 17: - According to Cabletron, the tariff on its products rose from 3.9% to 7.5% in 1995. 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, OJ 1997 L 155, p. 1. 20: - See Attachment A to the Annex to the ITA. 21: - See Attachment B to the Annex to the ITA. 22: - See paragraph 28 above. 23: - See paragraphs 16 and 17 of the judgment. 24: - Paragraph 20 of the judgment. 25: - With the possible proviso that, as pointed out by the Commission, one product appears to be designed also for WANs. 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 10. 27: - See paragraph 31 above. 28: - See paragraph 37 above. 29: - Case C-267/94 France v Commission [1995] ECR I-4845, at paragraphs 19 to 21 of the judgment; see also, more recently, Case C-309/98 Holz Geenen v Oberfinanzdirektion München [2000] ECR I-197, paragraph 13. 30: - Case C-401/93 Goldstar Europe [1994] ECR I-5587, paragraph 20 of the judgment. 31: - See paragraph 31 above. 32: - See paragraphs 19 and 20 above. 33: - At paragraph 58 above. 34: - At paragraph 14 above. 35: - See Commission Regulation (EC) No 2204/1999 of 12 October 1999, OJ 1999 L 278, p. 1, and Commission Regulation (EC) No 2263/2000 of 13 October 2000, OJ 2000 L 264, p. 1, both amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. 36: - See, for example, Case 112/83 Produits de Maïs v Administration des Douanes et Droits Indirects [1985] ECR 719, paragraphs 16 to 18 of the judgment; Joined Cases C-38/90 and C-151/90 Lomas and Others [1992] ECR I-1781, paragraphs 23 to 30; Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Another [1996] ECR I-389, paragraphs 54 to 66. 37: - Cited in note 10.