Opinion of the Advocate General — ECLI:EU:C:2008:432
Date: 2008-07-17
Language of the case: French
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: France

summary of the positions taken by the parties, the intervening governments and the Commission consider that the provision just referred to is not applicable, it being impossible in this case to identify an element which endows the multifunctional apparatus at issue with a specific essential character. (32) Consequently, General Rule 3(c) must now be applied. 78. For their part, the claimants in the main proceedings attach importance to the difference they perceive between General Rule 3(b), on the one hand, and Note 3 to Section XVI, on the other. In particular, the concept of ‘principal function’ contained in the latter rule should be carefully distinguished from those of the ‘material’ and ‘component’ characterising a product within the meaning of General Rule 3(b). 79. The claimants’ position is based on the view that the ability of the apparatus in question independently to make photocopies may be a ‘function’ but certainly cannot be identified in a material component of those products. The multifunctional apparatus in question are in fact the combination of a printing module and a scanning module, which are the only two physically identifiable elements. The ability to make photocopies is, so to speak, merely a ‘collateral effect’ of the combination of the two modules mentioned. 80. According, therefore, to the claimants’ arguments, the ability to make photocopies, as a mere ‘function’, should not be a factor that may be taken into account for the purposes of classification within the meaning of General Rule 3(b). Because the reasoning relied on should be based solely on the material components of the product, and because those components are classifiable only in Chapter 84 of the CN, classification in Chapter 90 is impossible. 81. However, that position does not seem to me to be tenable. Just as the reasoning of the intervening governments and the Commission regarding the possibility of applying Note 5(E) to Section XVI to this case would overstretch the legislative fabric of the CN, in the same way the rigorously literal interpretation of General Rule 3(b) suggested by the claimants would be liable to lead to equally unacceptable results. 82. To consider only the material elements which make up a multi-use product such as the multifunctional apparatus in question in this case, completely disregarding the functions performed by those products, seems to me to represent a rather short-sighted interpretative approach – all the more so at a time when, with an ever-increasing number of electronic apparatus, miniaturisation and a trend towards the manufacture of products combining various functions, in the name of so-called ‘technological convergence’, the possibility of considering only the external or material elements of a product to be classified seems increasingly less satisfactory. 83. It seems to me therefore that, far from being the result of a drafting error, as suggested at the hearing by the claimants in the main proceedings, the interpretation upheld by the Court of Justice in Rank Xerox remains fully valid and that the criticisms levelled against it (33) cannot be upheld. 84. In the case in which that judgment was delivered, the Court was called on to rule as to the customs classification of a multifunction fax/photocopier. In the course of its reasoning, the Court excluded the possibility of applying General Rule 3(b) ‘since the apparatuses in question display no feature enabling their essential character to be determined’ (34) (emphasis added). In other words, in the Court’s view, where to do so seems necessary in view of the technical characteristics of the specific product, it is possible to consider its function also for the purposes of applying General Rule 3, even though the text of that provision does not use the term ‘function’, but only the terms ‘material’ and ‘component’. ii) Application of General Rule 3 to the present case 85. Turning to the application of General Rule 3 to the products at issue in this case, I would point out first of all that, in principle, recourse to paragraph (b) or, on the other hand, paragraph (c), of General Rule 3 must necessarily be based on a case-by-case assessment. 86. That, however, gives rise to a further problem. 87. If it is considered that – as seems to me to be probable – the principal functions of the multifunctional apparatus in question are the printing and scanning functions, and that the copying function is secondary, the problem arises of determining whether the classification must be made in accordance with paragraph (b) or paragraph (c). 88. Also, even if it were conceded that the functions of printing, scanning and copying are of equal importance, the fact would nevertheless remain that, together, the printing and scanning functions, both classifiable as ‘data-processing’ functions within the meaning of the 2006 CN, constitute the greater part of the functions of the apparatus in question (two thirds of the functions performed). 89. If there were only one main function, there is no doubt that the provisions of paragraph (b) would have to be applied. Where, on the other hand, it is not possible to identify a characterising feature, recourse must be had to the provisions of paragraph (c). In the present case, however, we are confronted with a dual ‘principal function’ (printing and scanning, which are both functions within Chapter 84) and a single ‘secondary function’ (copying, a function within Chapter 90). Does the impossibility of identifying a single principal function necessarily mean that paragraph (c) must be applied, with the products in question being classified, as a result, in Chapter 90? 90. That does not seem to me to be acceptable because it would lead to a classification based on a secondary and relatively marginal aspect of the product to be classified. I consider, in contrast, that, where a single product has several ‘principal functions’ (or, from the physical point of view, more than one distinctive element) which nevertheless fall within the scope of a single chapter or a single section of the CN, it is necessary to classify the product in question in that chapter or that section, possibly applying the introductory notes for that section or chapter in order to define precisely the heading under which it is to be classified. 91. I consider therefore that, on the basis also of the information that became available at the hearing, the most suitable CN heading for classification of the apparatus in question is within Chapter 84, subheading 8471 60, as also indicated by the referring court. e) Partial conclusion 92. On the basis of the considerations set out above, I propose that the Court answer the first four questions as follows: (1) The copying function of multifunctional apparatus of the kind described in the present proceedings is a ‘specific function other than data processing’ within the meaning of Note 5(E) to Chapter 84 of the CN. (2) The existence of that specific function excludes classification of the aparatus in question as data-processing products in Chapter 84, in accordance with Note 5(E) thereto, only where that function is the only function performed by the apparatus to be classified. (3) Within the scope of the 2006 CN, the classification of multifunctional apparatus which perform printing, scanning and copying functions must be made on the basis of General Rule 3. Where it is possible to identify a single predominant function, or a set of predominant functions assignable to the same section or the same chapter of the CN, the classification should be made on the basis of General Rule 3(b), possibly in accordance with the notes preceding the section or chapter in question. Otherwise, General Rule 3(c) will have to be applied. (4) Multifunctional apparatus of the kind at issue in the present proceedings must be classified under subheading 8471 60 of the 2006 CN. B – The validity of Regulation No 400/2006 1. Arguments of the parties 93. The claimant companies insist that it is necessary to declare that Regulation No 400/2006 is invalid. As we have seen, in that regulation the Commission classified under subheading 9009 12 00 a multifunctional apparatus capable of performing scanning, laser printing and copying functions. In particular, that classification was based on application of the rules set out above, in that ‘[t]he apparatus has several functions none of which are considered to give the product its essential character’. 94. According to those companies, however, the product considered by the Commission in that regulation should be classified in Chapter 84 of the CN, in line with what those parties propose for the products at issue in the present case. That follows from application of the same logic and the same interpretative approach as those set out above. 95. The Commission considers, on the other hand, that, on the basis of the answers it suggests for the first four questions, it is unnecessary to answer the fifth. (35) 96. The French Government and the Netherlands Government for their part propose that, on the basis of reasoning that for the most part coincides, the Court should declare that Regulation No 400/2006 is valid. (36) The Polish Government, which considers the question in more detail, expresses a view to the same effect, (37) also indicating that, if it were to decide on the other hand to annul the regulation in question, it would be appropriate for the Court to make appropriate directions to limit the effects of its ruling in time. (38) 2. Assessment 97. Although the various parties to these proceedings appear to take for granted a parallelism between, on the one hand, the Court’s decision on the classification of the multifunctional apparatus in question and, on the other, the validity of Regulation No 400/2006, it seems to me that the two issues should be kept well apart. 98. As the Court has clearly stated, a classification regulation applies only where the products to be classified in the case in question in fact conform with those considered in the regulation itself. That, in particular, implies the need not only that they should have the same functions but also, where they perform various different functions, that their principal function should be the same. (39) 99. In that regard, particular importance attaches to the statement of reasons given in the classification regulation itself. (40) 100. However, it does not seem to me that the multifunctional apparatus at issue in this case can be regarded as similar to the apparatus considered in Regulation No 400/2006. 101. I would observe in the first place that, among the reasons relied on for classifying the product covered by Regulation No 400/2006 in CN subheading 9009 12 00, particular importance was attached, by the Commission itself in the reasoning of the regulation, to the fact that none of the functions performed by that product could be regarded as predominant. In the present case, however, as has been seen, the printing and scanning functions appear to be predominant. 102. Next, it should be observed that, among the technical characteristics of the apparatus examined in Regulation No 400/2006, attention was drawn to the fact that ‘[t]he apparatus, which has several paper feed trays, is capable of reproducing up to 40 A4 pages per minute’. It is therefore clearly a product whose photocopying functions are particularly advanced, in all probability in conjunction with an automatic feeder for the sheets to be copied. In contrast, the apparatus at issue in the present case appear radically different in that regard, at least in that, when compared, their copying functions are entirely rudimentary. (41) 103. The only criticism that could be levelled against the regulation in question, in line with the interpretative approach for Note 5 to Chapter 84 of the 2006 CN which I have suggested above, concerns the fact that that regulation indicated, among the provisions applied for classification of the product, Note 5(E). In fact, that note would appear to be difficult to apply, as has been seen, in the case of multifunctional apparatus capable of printing, scanning and photocopying. It also seems to me to be clear that, even if that legislative reference is removed, the classification proposed in Regulation No 400/2006 could, without any problem, be based on the other provisions indicated, in particular General Rule 3(c). 104. I am therefore of the opinion that there are no grounds for considering Regulation No 400/2006 to be invalid. V – Conclusion 105. On the basis of the foregoing considerations, I propose that the Court answer in the following terms the questions submitted to it by the Tribunal d’instance du VII arrondissement de Paris: (1) The copying function of multifunctional apparatus of the kind described in the present proceedings is a ‘specific function other than data processing’ within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature contained in Commission Regulation (EC) No 1719/2005 of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff. (2) The existence of that specific function excludes classification of the apparatus in question as data-processing products in Chapter 84, in accordance with Note 5(E) thereto, only where that function is the only function performed by the apparatus to be classified. (3) Within the scope of the 2006 Combined Nomenclature, the classification of multifunctional apparatus which perform printing, scanning and copying functions must be made on the basis of General Rule 3. Where it is possible to identify a single predominant function, or a set of predominant functions assignable to the same section or the same chapter of the Customs Nomenclature, the classification should be made on the basis of General Rule 3(b), possibly in accordance with the notes preceding the section or chapter in question. Otherwise, General Rule 3(c) will have to be applied. (4) Multifunctional apparatus of the kind at issue in the present proceedings must be classified under subheading 8471 60 of the 2006 Combined Nomenclature. (5) Examination of the questions submitted has disclosed no factor of such a kind as to affect the validity of Commission Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature. 1 Original language: Italian. 2 – Commission Regulation of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2005 L 286, p. 1). 3 – Commission Regulation of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature (OJ 2006 L 70, p. 9). 4 – OJ 1997 L 155, p. 1. In May 2008, the United States lodged a formal objection with the WTO regarding the Community customs practice relating, inter alia, to multifunctional apparatus of the kind at issue in this case. At the time of writing of the present Opinion, only general newspaper reports are available on the subject, so that a precise assessment of the issue is not yet possible. 5 – The text given sets out the questions raised in Case C-362/07. The text of the questions in Case C-363/07 is essentially the same, there being only a slight variation in the third question, in which no mention is made of a computer as an additional component of the apparatus in question, which in that case thus comprises only two elements rather than three. 6 – Contained in Commission Regulation (EC) No 1214/2007 of 20 September 2007 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the common customs tariff (OJ 2007 L 286, p. 1). 7 – Written observations of the claimant companies, paragraphs 37 and 38. 8 – Case C-67/95 [1997] ECR I-5401. 9 – Ibid., paragraph 30. Conversely, the Court of First Instance did not in their view make that error in Case T-243/01 Sony Computer Entertainment Europe v Commission [2003] ECR II-4189, paragraph 124: see claimants’ written observations, paragraphs 41 to 43. 10 – Claimant companies’ written observations, paragraph 48. 11 – Ibid., paragraph 66 et seq. 12 – Ibid., paragraph 71. 13 – Ibid., paragraph 56 et seq. 14 – Observations of the Commission, paragraphs 32 to 37; of the French Government, paragraphs 23 to 27; of the Netherlands Government, paragraphs 27 and 28; and of the Polish Government, paragraph 25. 15 – See the Commission’s observations, paragraph 43 et seq.; the French Government’s observations, paragraphs 51 to 56; the Netherlands Government’s observations, paragraphs 31 to 39; and the Polish Government’s observations, paragraphs 22 to 24. 16 – For the background to the CN provisions in the context of the harmonised system drawn up within the World Customs Organisation, see the judgment in Case C‑311/04 ASAD [2006] ECR I-609, paragraph 25 and case-law cited. 17 – See point 13 above. 18 – See point 67 et seq. below. 19 – See, inter alia, Case C-382/95 Techex [1997] ECR I-7363, paragraph 11; ASAD, cited above in footnote 16, paragraph 26; Case C-130/02 Krings [2004] ECR I‑2121, paragraph 28; and Case C-467/03 Ikegami [2005] ECR I-2389, paragraph 17. 20 – See Case 200/84 Daiber [1985] ECR 3363, paragraphs 13 and 14; Case C‑11/93 Siemens Nixdorf [1994] ECR I-1945, paragraphs 11 and 12; Techex, cited above in footnote 19, paragraph 12; Case C-142/06 Olicom [2007] ECR I‑6675, paragraph 17; and Case C-312/07 JVC France [2008] ECR I-4165, paragraph 34. 21 – This will be seen in particular below, with reference to Note 3 to Section XVI of the 2006 CN: see point 70 et seq. of this Opinion. 22 – Ikegami, cited in footnote 19. See in particular paragraph 12. 23 – Ikegami, cited above in footnote 19. For considerations concerning the arrangements for marketing and presentation of the product, and the public for which it is intended, see in particular paragraphs 21, 23 and 24 of that judgment. To the same effect, see the remarks made by Advocate General Kokott in the same case, in her Opinion delivered on 20 January 2005, point 55. See also Olicom, cited above in footnote 20, paragraph 18 and the case-law cited. 24 – Olicom, cited above in footnote 20, paragraph 30 (with reference to combined network/modem cards); Techex, cited above in footnote 20, paragraph 21 (graphic cards for computers); Case C-339/98 Peacock [2000] ECR I-8947, paragraphs 16 and 17 (network cards); Siemens Nixdorf, cited above in footnote 20, paragraph 16 (computer monitors); Case C-463/98 Cabletron [2001] ECR I‑3495, paragraph 27 (various network apparatus); and Case C-479/99 CBA [2001] ECR I‑4391, paragraph 27 (sound cards for computers). 25 – Case C-119/99 Hewlett Packard [2001] ECR I-3981. See, however, the Opinion of Advocate General Mischo in that case, delivered on 18 January 2001 (in particular points 13 to 18), in which he suggested that a regulation which, for all multifunctional apparatus including a fax machine, automatically provided for classification on the basis of the fax function, would be invalid. 26 – That is the case even though, as the Court pointed out, technological development means that the Community institutions must adjust the CN, but it does not mean that it is permissible to interpret it, before it is amended, in such a way as to change its content (Case 122/80 Analog Devices [1981] ECR 2781, paragraph 12, and Rank Xerox, cited above in footnote 8, paragraph 22). 27 – The Court has repeatedly stated that the possibility of using a WTO agreement as a parameter for assessing the lawfulness of a Community measure is subject to very strict conditions, which do not appear to be fulfilled here: see, inter alia, Case C‑94/02 P Biret & Cie v Council [2003] ECR I‑10565, paragraphs 55 and 56 and case-law cited. In that case, the Court held that ‘it is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements’, that it is possible to review the legality of a Community measure in the light of a WTO agreement. None of those conditions appears to be satisfied in the case of the CN. 28 – Regarding that obligation in general, see Case C-286/90 Poulsen and Diva Navigation [1992] ECR I‑6019, paragraph 9; Case C-61/94 Commission v Germany [1996] ECR I‑3989, paragraph 52; and Case C-341/95 Bettati [1998] ECR I-4355, paragraph 20. With specific reference to the TRIPS Agreement, which forms part of the WTO system and shares the characteristics thereof, see the judgments in Case C-53/96 Hermès International [1998] ECR I-3603, paragraph 28; Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307, paragraph 47; and Case C‑245/02 Anheuser-Busch [2004] ECR I-10989, paragraph 55. 29 – Point 36. 30 – See Rank Xerox, cited in footnote 8, paragraphs 28 and 29. 31 – I do not, moreover, regard as well founded the argument put forward in particular by the Commission to the effect that Note 1(m) to Section XVI precludes the possibility of classifying the products at issue in that section since they could also be classified in Chapter 90. I would point out, in fact, that Note 1(m) draws a clear distinction between the two sections, but does not indicate that, in the event of doubt as between Chapter 90 and a chapter in Section XVI, the former must prevail. 32 – See point 30 above. 33 – See point 22 above. 34 – Rank Xerox, cited above in footnote 8, paragraph 30. 35 – Commission observations, paragraph 51. 36 – Observations of the French Government, paragraph 58; observations of the Netherlands Government, paragraph 40. 37 – Observations of the Polish Government, paragraphs 28 to 34. 38 – Ibid., paragraph 35 et seq. 39 – Hewlett Packard, cited above in footnote 25, paragraphs 21 and 22. Although the Court accepted in general the possibility of analogous application of a classification regulation (Krings, cited above in footnote 19, paragraph 35), it does not seem to me that, in the present case, the conditions for such a course are satisfied. 40 – Hewlett Packard, cited above in footnote 25, paragraph 20. 41 – It is perhaps worth noting that, in the most recent versions of the CN, under subheading 8443 31 the copying speed of multifunctional apparatus is decisive for the purpose of their classification and the possible levying of duty.