61995C0121
OPINION OF ADVOCATE GENERAL
LENZ
delivered on 12 March 1996 (
*1
)
A — Introduction
1.
In the present case the Bundesfinanzhof (Federal Finance Court) has referred to the Court of Justice the classification for customs tariff purposes of a ‘basic module’.
2.
On 13 January 1993 the competent Oberfinanzdirektion (Principal Revenue Office) issued VOBIS with a binding customs tariff notification for a ‘computer housing with built-in floppy-disk drives (compact)’. According to the description of the item in the binding customs tariff notification, it is a basic module (c. 27 χ 41 χ 15 cm; weight c. 8.1 kg) for the digital processing unit of an automatic data-processing machine, containing in a metal housing with display and operating features a power supply, two disk drives and connection cables, without the components necessary for operation as a central unit. As appears from the pleadings, the basic module is to be combined with further units to make up a complete digital data-processing machine. A central unit will be incorporated, to which the drives already contained in the basic module will be connected. The parties are in dispute as to whether the module is to be assigned as a unit or a part. The Oberfinanzdirektion takes the latter view. It assigned the basic module to subheading No 84733090 of the Combined Nomenclature. (
1
) That heading reads:
‘8473
Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of heading Nos 8469 to 8472:
...
8473 30
— Parts and accessories of the machines of heading No 8471:
8473 30 10
— — Electronic assemblies
8473 30 90
— — Other’
VOBIS does not agree with that classification. It takes the view that the basic module constitutes a unit within the meaning of the relevant provisions. VOBIS eventually brought proceedings seeking classification under subheading No 847193. That heading reads:
‘8471
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:
...
8471 20
— Digital automatic data-processing machines, containing in the same housing at least a central processing unit and an input and output unit, whether or not combined:
...
— Other:
...
8471 93
— — Storage units, whether or not presented with the rest of a system:
8471 93 10
— For use in civil aircraft
— Other:
8471 93 40
— Central storage units
— Other:
— Disk storage units:
8471 93 51
— Optical, including magneto-optical
8471 93 59
— Other
...’
VOBIS's appeal on a point of law came before the Bundesfinanzhof. As appears from the order for reference, that court is inclined to classify the basic module as a part, but cannot rule out the possibility that the item is to be regarded as a drive unit with extra features.
3.
The Bundesfinanzhof therefore referred the following questions to the Court of Justice for a preliminary ruling:
‘1.
Is the Common Customs Tariff — Combined Nomenclature 1993 — to be interpreted as meaning that a “basic module” for the assembly of a data-processing machine, consisting of a housing essentially with two disk-drives, as described in more detail in the grounds of the order for reference, is to be classified in subheading No 84719359 either directly or pursuant to General Rule 3(b) as a “storage unit”, on the basis of the drives it contains?
2.
If not:
Is it to be interpreted as meaning that a product of the type described above is to be classified under subheading No 84733090 as a “part” (of a data-processing machine)?’
4.
The classification of parts is regulated in Note 2 to Section XVI of the Combined Nomenclature. That note provides that parts of machines, where they are not expressly excluded from Section XVI, are to be classified according to the following rules:
‘(a)
Parts which are goods included in any of the headings of Chapters 84 or 85 (other than heading Nos 8485 and 8548) are in all cases to be classified within their respective headings.
...’
5.
There are also notes to Chapter 84 of the Combined Nomenclature. They contain, for example, the definition of automatic data-processing machines:
‘5.
(A)
For the purposes of heading No 8471, the expression “automatic data-processing machines” means:
(a)
digital machines, capable of
(1)
storing the processing program or programs and at least the data immediately necessary for the execution of the program;
(2)
being freely programmed in accordance with the requirements of the user;
(3)
performing arithmetical computations specified by the user; and
(4)
executing, without human intervention, a processing program which requires them to modify their execution, by logical decision during the processing run;
...
(B)
Automatic data-processing machines may be in the form of systems consisting of a variable number of separately housed units. (
2
) A unit (
3
) is to be regarded as being a part of the complete system if it meets all the following conditions:
(a)
it is connectable to the central processing unit either directly or through one or more other units;
(b)
it is specifically designed as part of such a system (it must, in particular, unless it is a power supply unit, be able to accept or deliver data in a form (code or signals) which can be used by the system).
Such units presented separately are also to be classified within heading No 8471.
Heading No 8471 does not cover machines incorporating or working in conjunction with an automatic data-processing machine and performing a specific function. Such machines are classified in the headings appropriate to their respective functions or, failing that, in residual headings.’
6.
Finally, there are also General Rules for the interpretation of the Combined Nomenclature which are also of relevance here. They concern the classification of incomplete goods and of goods which consist of different components. They provide in detail:
‘Classification of goods in the combined nomenclature shall be governed by the following principles:
1.
The titles of sections, chapters and subchapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.
2.
(a)
Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. ...
(b)
Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
3.
When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
(a)
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b)
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character in so far as this criterion is applicable.
...’
B — Opinion
Question 1
7.
Classification of the basic module as a ‘part’ presupposes, under Note 2(a) to Chapter XVI, that the basic module is not a product within a heading of Chapter 84; if it were, it would have to be assigned to that heading, regardless of what machine it was intended for. As the Bundesfinanzhof itself states, classification under heading No 8471 — automatic data-processing machines and parts thereof — also comes into consideration. According to the definition of a digital automatic data-processing machine in Note 5(A)(a) to Chapter 84, it must inter alia be capable of performing arithmetical computations specified by the user and of executing, without human intervention, a processing program which requires it to modify its execution, by logical decision during the processing run. Those tasks cannot be performed by the basic module, since the central unit has not yet been incorporated and it thus contains only two disk drives.
8.
The Commission refers in this connection to the Explanatory Notes of the Customs Cooperation Council on the harmonized system (hereinafter ‘the Explanatory Notes’). As the Court has consistently held, the Explanatory Notes are also to be taken into account for the tariff classification of goods. (
4
) They state that digital data-processing machines usually consist of a number of units and then form a system. Such a system must comprise at least a central unit, an input unit and an output unit. (
5
) Since the basic module does not contain the necessary components for operation as a central unit, the Commission too concludes that classification as a data-processing machine is impossible.
9.
According to Note 2(a) of the General Rules, an incomplete or unfinished article can be also classified under the heading for that article. That presupposes, however, that it already has the essential character of the complete or finished article. As the Commission rightly submits, it is the central unit which is regarded as the characteristic feature of the complete article (the data-processing machine). Since the basic module precisely does not contain a central unit, it cannot be classified as an incomplete data-processing machine either.
10.
Heading No 8471 mentions not only automatic data-processing machines, however, but also units thereof. What is to be understood by a ‘unit’ is defined in Note 5(B) to Chapter 84. A unit is to be regarded as a part of a complete system if it fulfils two conditions: it must be connectable to the central unit either directly or through one or more other units, and it must be specifically designed as part of such a system. If that definition is applied to the basic module, it cannot be regarded as a unit. The basic module is precisely not to be connected to the central unit; instead the central unit is incorporated into the basic module. It is the disk drives which are then connected to the central unit, not the whole basic module.
11.
That conclusion is unconvincing in that the basic module contains two disk drives which indisputably meet the requirements of Note 5(B) to Chapter 84 and are thus to be regarded as units. In the national court's opinion, the drives have lost their independence as a result of incorporation and have been subsumed into a new product which is to be assessed according to its own character. However, that new product is also intended to be combined with other units to make up a data-processing machine. It would be no different if the parts contained in the basic module were assembled inside a separate housing as a data-processing machine. The disk drives would then be regarded as units. In the basic module they would not be, although fulfilling the same function.
12.
VOBIS refers in this connection to a judgment of the Bundesfinanzhof which states that if machines are presented in compact form, their components are also to be regarded as units. In VOBIS's opinion, parts of compact devices which have the same technical characteristics as units of systems (see Note 5(B) to Chapter 84) must be regarded as units. The drives had not lost their independence by being incorporated. Instead they had assumed the characteristics of the other components of the basic module, since they outweighed those components both with respect to their significance for the use of the product and with respect to value. Whether the central unit was built into the basic module or the module connected to the unit was of no relevance. Moreover, it could not be deduced from Note 5(B) to Chapter 84 that every unit had to be inside a separate housing. The note merely points out that automatic data-processing machines can also occur as systems. In VOBIS's opinion, that does not mean that compact devices with several units in one housing cannot also be classified under heading No 8471.
13.
That must be accepted. Nevertheless, the basic module cannot definitely be classified as a unit of a digital data-processing machine. Classification as a part in heading No 8473 would thus also be possible.
14.
If there are two possible headings for the classification of a product, classification is effected in accordance with Rule 3 of the General Rules. Rule 3(b) is relevant in the present case. As the Commission rightly submits, the basic module is a composite product. There is no inseparable connection between the individual components. According to the Explanatory Notes, however, that is irrelevant, provided that the components are adapted one to the other, are mutually complementary, and together form a whole which would not normally be offered for sale in separate parts. (
6
) The basic module satisfies those conditions. It is therefore to be classified, under Rule 3(b), according to the component which gives it its essential character. Decisive factors here are the nature of the components, their bulk, quantity, weight or value, and their role in relation to the use of the goods. (
7
) As the Commission rightly submits, the nature, bulk, quantity and weight of the various components cannot be of any great significance in this case, since they are not important for the function of the basic module. Instead the value of the components and their role in relation to the use of the goods are decisive. As the Commission submits, the display and user elements and the connection cable and housing are of subordinate importance only. They serve either to make the drives and power supply usable for the actual purpose — the automatic processing of data — or as protection for the components which have been built in. The Commission is also right in presuming that from the point of view of value the drives are the most important components. Above all if one considers the purpose, namely automatic data processing, it is the drives, not the power supply unit, which are to be regarded as the components which determine the essential character. From that it follows that the basic module is to be classified, like the components which determine its character, namely the drives, as a storage unit in subheading No 84719359. The answer to Question 1 must therefore be that the basic module is to be classified pursuant to General Rule 3(b) as a storage unit in subheading No 84719359, on the basis of the drives it contains.
Question 2
15.
Since Question 2 only arises if the answer to Question 1 is in the negative, there is no need to answer it here.
C — Conclusion
16.
I therefore propose the following answer to the questions referred for a preliminary ruling:
The Common Customs Tariff — Combined Nomenclature 1993 — is to be interpreted as meaning that a basic module for the assembly of a data-processing machine, consisting of a housing essentially with two disk drives, is to be classified pursuant to General Rule 3(b) as a ‘storage unit’ in subheading No 84719359, on the basis of the drives it contains.
(
*1
)	Original language: German.
(
1
)	Annex I to Commission Regulation (EEC) No 2505/92 of 14 July 1992 amending Annexes I and II to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1992 L 267, p. 1).
(
2
)	My emphasis.
(
3
)	My emphasis.
(
4
)	Case C-265/89 Vismans Nederland [1990] ECR I-3411, paragraph 18.
(
5
)	Explanatory Notes, 8471, 1(A).
(
6
)	Explanatory Notes, note IX to Rule 3(b).
(
7
)	Explanatory Notes, note VIII to Rule 3(b).