EN Official Journal of the European Union C 26/10

Judgment of the Court (Sixth Chamber) of 22 November 2012 (references for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — DIGITALNET OOD (C-320/11 and C-383/11), Tsifrova kompania OOD (C-330/11), M SAT CABLE AD (C-382/11) v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

(Joined Cases C-320/11, C-330/11, C-382/11 and C-383/11) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Apparatus capable of receiving television signals and incorporating a modem for gaining access to the internet and having a function of interactive information exchange)

2013/C 26/18

Language of the cases: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicants: DIGITALNET OOD (C-320/11 and C-383/11), Tsifrova kompania OOD (C-330/11), M SAT CABLE AD (C-382/11)

Defendant: Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

Re:

References for a preliminary ruling — Administrativen sad — Varna — Interpretation of 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), as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2008 L 291, p. 1) — Subheading No 8528 71 13 of the Combined Nomenclature (Apparatus with a microprocessor-based device incorporating a modem for gaining access to the internet, and having a function of interactive information exchange, also capable of receiving television signals (‘set-top boxes with communication function’)) or No 8521 90 00 (Other video recording or reproducing apparatus, whether or not incorporating a video tuner) — Apparatus capable of receiving television signals or serving as a modem for gaining access to the internet and having a function of interactive information exchange — Meaning of the concepts ‘internet’, ‘modem’ and ‘modulation and demodulation’ having regard to the Explanatory Notes to the Combined Nomenclature

Operative part of the judgment

1. 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, respectively, by Commission Regulation (EC) No 1214/2007 of 20 September 2007, by Commission Regulation (EC) No 1031/2008 of 19 September 2008, and by Commission Regulation (EC) No 948/2009 of 30 September 2009, must be interpreted as meaning that, for the purposes of classification of goods under subheading 8528 71 13, a modem for gaining access to the internet is a device which, alone and without the intervention of any other apparatus or mechanism, is capable of accessing the internet and of ensuring interactivity and an exchange of information in both directions. It is solely the capacity to gain access to the internet, and not the technique used to achieve this, that is relevant for the purposes of classification under that subheading.

2. That Combined Nomenclature must be interpreted as meaning that the reception of television signals and the presence of a modem allowing access to the internet are two equivalent functions that apparatus must perform in order to be classified under subheading 8528 71 13. In the absence of one or other of those functions, that apparatus must be classified under subheading 8528 71 19.

3. Article 78(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that ex post inspection of goods and the subsequent change in their tariff classification may be made on the basis of written documents without the customs authorities being required to physically check those goods.

(1) OJ C 252, 27.8.2011.

OJ C 298, 8.10.2011.