Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. In these cases, the referring court has asked the Court of Justice to interpret certain provisions of the tariff nomenclature. The specific questions raised concern ‘multifunctional’ apparatus: in that context, however, the Court is asked to provide a number of clarifications of wider scope.

II – Legislative background

A – The provisions of the combined nomenclature

2. The combined nomenclature applicable to the facts of these cases is the one for 2006, contained in Regulation (EC) No 1719/2005 (2) (‘the 2006 CN’).

3. Title I of the first part of the 2006 CN, entitled ‘General Rules’, provides as follows:

‘1. The titles of sections, chapters and sub-chapters 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.

…

3. When … 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. …

(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.

(c) When goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

…’

4. Section XVI of the 2006 CN, headed ‘Machinery and mechanical appliances; electrical equipment; parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles’, is introduced by the following ‘Notes’:

‘1. This section does not cover:

...

(m) articles of Chapter 90;

...

3. Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

...’

5. Section XVI contains Chapter 84, entitled ‘Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof’, introduced by the following ‘Notes’:

‘…

5.

...

(B) Automatic data-processing machines may be in the form of systems consisting of a variable number of separate units. Subject to paragraph E below, a unit is to be regarded as being a part of a complete system if it meets all of the following conditions:

(a) it is of a kind solely or principally used in an automatic data-processing system;

(b) it is connectable to the central processing unit either directly or through one or more other units; and

(c) it is able to accept or deliver data in a form (codes or signals) which can be used by the system.

…

(D) Printers, keyboards, Y-X coordinate input devices and disk storage units which satisfy the conditions of paragraphs (B)(b) and (B)(c) above are in all cases to be classified as units of heading 8471.

(E) Machines performing a specific function other than data processing and incorporating or working in conjunction with an automatic data-processing machine are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.

…’

6. Customs heading 8471 of the 2006 CN is worded as follows:

‘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 60 − − input or output units, whether or not containing storage units in the same housing:

8471 60 20 − − Printers

8471 60 60 − − Keyboards

8471 60 80 − − Other

...’.

7. Section XVIII of the 2006 CN, entitled ‘Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; clocks and watches; musical instruments; parts and accessories thereof’, contains the following subheadings in Chapter 90:

‘9009 Photocopying apparatus incorporating an optical system or of the contact type and thermo-copying apparatus:

– Electrostatic photocopying apparatus:

...

9009 12 00 − − Operating by reproducing the original image via an intermediate onto the copy (indirect process).’

B – Regulation No 400/2006

8. Regulation (EC) No 400/2006, (3) by which the Commission took a position regarding the headings of the Combined Nomenclature in which those goods should be classified, in the relevant part assigned a product, defined as follows, to subheading 9009 12 00:

‘4. A multifunctional apparatus capable of performing the following functions: scanning, laser printing, laser copying (indirect process). The apparatus, which has several paper feed trays, is capable of reproducing up to 40 A4 pages per minute. The apparatus operates either autonomously (as a copier) or in conjunction with an automatic data processing machine or in a network (as a printer, a scanner and a copier).’

9. The reasons given for that choice are as follows:

‘Classification is determined by General Rules 1, 3(c) and 6 for the interpretation of the Combined Nomenclature, Note 5(E) to Chapter 84 and the wording of CN codes 9009 and 9009 12 00. The apparatus has several functions none of which are considered to give the product its essential character.’

III – The main proceedings and the questions referred for a preliminary ruling

10. The two cases before the national court in which the questions on which the Court is asked to give a preliminary ruling were raised concern the ‘KIP 3000’ apparatus in one instance and, in the other, three different models of Hewlett Packard (‘HP’) multifunction printers (Laserjet CM 1015 MFP, Laserjet M 1017 MFP and Laserjet M 1005 MFP).

11. The products in question differ from each other to some extent. In particular, the KIP 3000 is a large-format printer/scanner essentially intended for professional architects and engineers, which incorporates within it an entire Windows-based computer. The HP products, on the other hand, are mainly intended for family use or for small offices.

12. The common feature of the products in question is the fact that they have both a printing module and a scanning module: such a combination of a printer and a scanner enables the products to perform copying functions, in addition to printing and scanning. In particular, copying can be carried out without the need for the apparatus to be connected to a computer.

13. The French customs authorities classified the apparatus in question under CN subheading 9009 12 00, basically regarding them as being in fact photocopiers. It should be observed in that connection that the above classification means that a duty of 6% is levied. Conversely, classification in subheading 8471 60, as suggested by the importing companies, gives rise to no customs duty at all. The abolition of customs duties on ‘data-processing’ products is the result of an agreement to that effect reached within the World Trade Organisation (WTO) and resulting from the Ministerial Declaration of 13 December 1996 on trade in information technology products. That agreement was adopted by the Council in Decision 97/359/EC of 24 March 1997 concerning the elimination of duties on information technology products. (4)

14. Confronted with this problem, the national court referred the following questions to the Court of Justice for a preliminary ruling: (5)

‘(1) Does the copy function of a multifunction apparatus of the kind described in these proceedings, designed to operate through a direct connection or a network with one or more computers, but capable, as regards the copying function only, of operating autonomously, constitute a “specific function other than data processing” within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature?

(2) In the event of an affirmative answer to the first question, does the existence of that specific function, which is expressly acknowledged not to give the product its essential character, mean that classification in Chapter 84, pursuant to Note 5(E), is to be excluded, despite the existence of printing and scanner functions associated with data processing?

(3) If that is the case, and in relation to equipment made up of three materially distinct modules (printer, scanner and computer), should the classification not be made on the basis of General Rule 3(b)?

(4) More generally, on a correct interpretation of the Harmonised System and of the Combined Nomenclature, must printers of the kind described in this procedure be classified under subheading 8471 60 or 9009 12 00?

(5) Is it not the case that Commission Regulation (EC) No 400/2006 of 8 March 2006 is invalid, in particular because it is contrary to the Harmonised System, to the Combined Nomenclature and to Rules 1 and 3(b) of the General Rules for the Interpretation of the Harmonised System and the Combined Nomenclature, in so far as it relies on the concept of a “function that gives the apparatus its essential character” and its effect would be to classify printers of the kind described under subheading 9009 12 00?’

IV – The questions submitted

15. It should be observed that, in practice, the customs classification of multifunctional apparatus of the kind at issue in these proceedings should not raise any problems in the future, since the 2007 version of the CN no longer contains heading 9009 and the products in question should be classified under heading 8443, which now comprises ‘[p]rinting machinery used for printing …; other printers, copying machines and facsimile machines, whether or not combined’. In particular, subheading 8443 31 includes, in the version for 2008 at present in force, (6) ‘[m]achines which perform two or more of the functions of printing, copying or facsimile transmission, capable of connecting to an automatic data-processing machine or to a network’.

16. It should be noted, however, that one of the essential problems at the heart of this case, namely the interpretation of Note 5(E) to Chapter 84 of the CN, remains relevant, since that provision is still included in the CN text.

A – The first four questions, concerning the interpretation of the CN

1. Preliminary considerations

17. The first four questions submitted by the national court may, in my view, be considered together. By asking those questions, the Court of Justice is asked to interpret the CN provisions relevant to this case, in order to enable the apparatus described above to be classified.

18. More specifically, the problem lies in determining, first, which provisions for the interpre tation of the CN must be applied to the present case and, secondly, how they are to be construed.

2. Arguments of the parties

19. The companies KIP Europe and Hewlett-Packard, the claimants in the main proceedings, represented by the same lawyers, have submitted identical observations, seeking to show that the apparatus in question must be classified under subheading 8471 60.

20. The claimants maintain first of all that classification under subheading 8471 60 should be based on General Rule 3(b), taking the view that the printing module (or, in the alternative, the two printing and scanning modules taken together) is what endows those apparatus with their ‘essential character’.

21. The position could not be otherwise, according to those parties, in view of the ‘function’ performed by the apparatus, in so far as that element is not indicated in the text of General Rule 3(b). The criterion of the ‘principal function’ appears only in Note 3 to Section XVI, and that note is not applicable where the products may be classified, in the abstract, also under headings not in section XVI (as is the case here). (7)

22. The claimant companies consider in that regard that, in its Rank Xerox judgment, (8) the Court erred in using the ‘function’ test, rather than that of the ‘material’ or the ‘component’, in order to apply General Rule 3(b). (9)

23. As regards, next, Note 5(E) to Chapter 84 of the CN, on which the reasoning of the French customs administration relies, that note was, in their view, misapplied. That provision is merely intended to exclude the possibility of the classification as data-processing products of wholly different apparatus which are not intended for the processing of information but which, for reasons relating to their construction or use, incorporate within them a computer or are connectable to a computer. (10)

24. To apply Note 5(E) to the present case would be tantamount to regarding the copying function alone as decisive, whilst disregarding the printing and scanning functions, which are without doubt data-processing functions. In the claimant companies’ view, Note 5(E) was drawn up solely with reference to apparatus which perform only one function. (11)

25. If the logic followed by the French customs authorities were applied, the claimants consider that the absurd result might follow that a computer could be classified as a timing device, since it also performs a timing function. (12)

26. The claimants consider, moreover, that the copying function itself could be regarded as a form of data processing, so that the possibility of applying Note 5(E) to Chapter 84 would be automatically excluded. (13)

27. The French Government, the Netherlands Government and the Polish Government, and also the Commission, consider on the other hand that the apparatus should be classified under subheading 9009 12 00.

28. Notwithstanding the diversity of the arguments put forward, the basic reasoning of those parties may be summarised as follows.

29. Classification under subheading 9009 12 00 derives, first, from the application of Note 5(E) to Chapter 84 of the CN. The fact that the multifunctional apparatus in question may perform copying functions independently without even being connected to a computer is sufficient to render the abovementioned provision applicable and therefore to lead to classification of the products under the heading corresponding to that specific function (that is to say, specifically, subheading 9009 12 00 of the 2006 CN). (14)

30. In the alternative, the same classification could be arrived at on the basis of General Rule 3(c), since General Rule 3(b) is not applicable owing to the impossibility of identifying any element endowing the products with their ‘essential character’. (15)

3. Assessment

a) General remarks

31. I consider that the particular interest of the present case lies in the fact that the Court is called on not so much to give specific guidance as to how to classify a specific product but rather to give its views on the interpretation of certain basic rules governing customs classification. I refer in particular – as will become apparent in the reasoning that follows – to Note 5 to Chapter 84 of the CN and to General Rule 3.

32. It should, of course, also be remembered that the law applicable to the present case derives in part from international agreements entered into by the Community.

33. I refer first, needless to say, to the Harmonised System drawn up within the World Customs Organisation, on which the CN is based. (16) Nor should the possible importance to the present case of the WTO agreement on trade in information technology products be overlooked. (17) The possible importance of those international provisions in this case will be discussed below. (18)

34. It must also be borne in mind that, according to settled case-law, the customs classification of goods must be based on criteria which are as objective as possible, referring to the text of the CN headings and the objective characteristics and qualities of the goods to be classified. (19) For their part, the explanatory notes provided by the Customs Cooperation Council and the Commission are very important interpretative factors, even if they are not legally binding. (20)

35. In the present case the national court is called on to decide whether the multifunctional apparatus described above must be classified under heading 8471 of the CN (which is in Chapter 84, Section XVI) or under heading 9009 (in Chapter 90, Section XVIII).

36. In general, the CN provisions clearly show that the interpreter is required to take account as a matter of priority of the specific and detailed rules, only having recourse to the more General Rules where classification on the basis of the former is not possible. That is clear, in particular, from General Rule 1 for the interpretation of the CN, which provides, in particular, that the General Rules are to apply only in case of need, and in any event subject to the terms of the individual headings of the CN and the relative section or chapter notes. Moreover, General Rule 3(a) provides that ‘the heading which provides the most specific description shall be preferred to headings providing a more general description’,

37. Following that logic, I consider that in the present case it is therefore necessary first to examine Note 5 to Chapter 84 of the CN in order to determine its scope and possible applicability to the present case. Next it will be necessary, if appropriate, to look at Note 3 to Section XVI and finally, possibly, at General Rule 3.

b) Note 5 to Chapter 84 of the CN

38. As we have seen, Note 5(E) to Chapter 84 states that ‘[m]achines incorporating or working in conjunction with an automatic data-processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings’.

39. In the present case, it is the French and Netherlands Governments which have maintained that, in accordance with that rule, the products in question fall outside the scope of Chapter 84 because their ability to make photocopies without the need for connection to a computer means that they should be classified in Chapter 90.

40. An assessment of the applicability of that provision to this case must be carried out in three successive stages. First, the question must be asked whether Note 5(E) can, in the abstract, be used to classify a specific product elsewhere than in the chapter to which that note is attached, in other words outside Chapter 84. If the answer is yes, it is next necessary to verify whether the photocopying function of the products in question constitutes a ‘specific function other than data processing’. Finally, if that question is also answered in the affirmative, it will be necessary to consider whether that note can be specifically applied to the present case.

i) The applicability of Note 5(E) in the abstract

41. We must first consider the possibility of using Note 5(E) for the purpose of classifying a product outside Chapter 84, to which that note relates.

42. In that connection, it may be pointed out that, in general, the notes relating to the various subdivisions of the CN are applicable only in relation to the part in which they appear. (21)

43. I consider, however, that that argument is not sufficient to exclude the applicability, in the abstract, of Note 5(E) to the present case.

44. First, that note is not intended to indicate a specific classification for individual products but merely to exclude a particular classification. In particular, the aim of the note is to ensure that a product cannot be classified as a ‘data-processing’ product merely because it contains a computer or works in conjunction with a computer, although the product in question carries out completely different functions. It is clear that a ‘data-processing’ classification of the products in question would be within the scope of Chapter 84 of the 2006 CN because it is in that chapter that data-processing products are included. Consequently, a note designed to exclude a ‘data-processing’ classification in such cases could not have been placed elsewhere than the place chosen, at the beginning of Chapter 84. Moreover, since products which incorporate a computer or work in conjunction with a computer but perform ‘non data-processing’ functions might have to be classified in some other chapter of the CN, the alternative to placing the note in question at the start of Chapter 84 would have been to include it among the General Rules for classification: and clearly, in view of the very abstract nature of the latter, that would seem hardly appropriate.

45. Secondly, I would also point out that, in the only case in which, to my knowledge, the Court has held that the conditions for applying Note 5(E) were fulfilled, the possible alternative to classifying the products elsewhere than in Chapter 84 was to place them within a different chapter, Chapter 85. (22) If the Court had considered Note 5(E) to be applicable only because it allowed a ‘non-data-processing’ classification within Chapter 84, it would have had, in that case, to have declined to apply that note.

46. Consequently, in my opinion, Note 5(E) is applicable, in the abstract, to the present case.

ii) The existence of a ‘specific function other than data processing’

47. It is now necessary to consider whether the photocopying function of the multifunctional product at issue in this case can be classified as a ‘specific function other than data processing’ within the meaning of Note 5(E).

48. I consider that there can be no doubt that the answer to that question must be in the affirmative.

49. At least within the scope of the 2006 CN, the function of photocopying was definitely a ‘specific function other than data processing’, since that function was included in a different chapter (and in a different section) of the CN. I refer, of course, to Chapter 90, in which the Commission and the intervening Member States wish to classify the products in question.

iii) The applicability of Note 5(E) to the present case

50. The fact that Note 5(E) is potentially applicable and that the copying function is a ‘specific function other than data processing’ does not in my opinion mean, however, that Note 5(E) must be applied to the present case.

51. I consider, first, that that provision can certainly be applied, without the need for further checks, in cases in which the ‘specific function other than data processing’ is, in practice, the only function performed by the products to be classified.

52. Secondly, where, on the other hand, one and the same product combines data processing and other functions, the possibility of applying the provision in question seems much more dubious.

53. That is the position in this case.

54. We are dealing with apparatus that combine data-processing functions – which certainly fall within the relevant CN chapter (in this case, the functions of printing and scanning) – and functions which, on the other hand, fall outside it (in this case, photocopying functions).

55. If the mere existence of a single function unconnected with data processing were sufficient to exclude absolutely, for the products under review, a classification as ‘data-processing’ products in Chapter 84 of the CN, we would be faced with what I would consider to be a paradoxical sit uation where a product was classified on the basis of a function performed by it which could be entirely secondary or indeed irrelevant.

56. Among other things, it would also be difficult to classify products that had several functions other than data processing: such a case, which is far from theoretical, is that of multifunctional products which, in addition to printing, scanning and copying, also operate as fax machines.

57. It does not seem to me that the case-law of the Court of Justice on Note 5(E) conflicts with the interpretation which I intend proposing.

58. First, the Court has held Note 5(E) to be applicable, on the basis that the product under review performed a ‘specific function’ other than data processing, in a case in which the product in question, although incorporating a computer within it, was configured and presented as a video surveillance apparatus. In other words, it was a product whose sole function in practice was not data processing. (23)

59. On the other hand, in various judgments the Court has held that the conditions were not fulfilled for a ruling that an apparatus performed a ‘specific function’ other than data processing. (24)

60. In a case very close to the present one, on the other hand, with reference to multifunctional apparatus combining a printer, a scanner and a fax machine, the Court was not, unfortunately, called on to rule as to the precise classification of the products in question because the question submitted related only to the validity of a classification regulation. (25)

61. In the present case, on the other hand, it is clear that the copying function is only one of the functions attributable to the apparatus in question, and in fact it is not even the predominant function: to exclude on a preliminary and absolute basis classification thereof under the heading of data-processing machines on the ground that those apparatus may also make photocopies would involve a genuine risk of considerable distortion of the CN.

62. I therefore consider that, in order to obviate clear distortions of customs classification, Note 5(E) to Chapter 84 of the CN should be applied only with reference to a specific function of a product which is the only function performed by that product. In other cases, it will be the other CN provisions that enable the classification to be made.

63. I would point out that, naturally, the fact that Note 5(E) is not applicable to a specific case does not necessarily involve classification as data-processing products, since the application of the other classification rules may lead to different results.

64. Because the copying functions are not the only functions of the products in question and, moreover, are not the principal functions, there is no possibility of resorting to Note 5(E) to Chapter 84: it is not therefore possible to exclude, on a preliminary and absolute basis, the possibility that they might be classified as ‘data-processing’ apparatus in Chapter 84 of the 2006 CN.

65. Moreover, the above considerations seem to me to be confirmed by Note 5(B) to Chapter 84, in which, albeit without prejudice to Note 5(E), it is explicitly stated that a unit is to be regarded as being part of a data-processing system if, inter alia, ‘it is of a kind solely or principally used in an automatic data-processing system’ (emphasis added). In other words, the legislature itself starts from the premiss that there may be regarded as part of a data-processing system even components which are capable, albeit on a secondary basis, of performing functions unconnected with data processing. In the event that Note 5(E) were to be interpreted, as proposed by the Commission and the intervening governments, to the effect that even a minimal ‘non-data-processing’ function of a product would not irretrievably preclude a ‘data-processing’ classification, the presence of the adverb ‘principally’ would be entirely redundant, since Note 5(B) would be applicable only to products intended exclusively for use within a data-processing system.

66. Nor can we overlook the, albeit not decisive, fact that in the more recent versions of the CN multifunctional apparatus like those at issue in this case fall within Chapter 84 and, more specifically, subheading 8443 31. (26)

67. I consider, finally, that the restrictive interpretation I suggest for Note 5(E) to Chapter 84 is further confirmed by the WTO agreement on trade in information technology products.

68. Quite apart from the question of the applicability of that agreement to this case, which has not been claimed by the parties, (27) it is clear that that agreement, seen in the light of the requirement of consistent interpretation, (28) does not appear compatible with interpretations which, like that proposed by the Commission and the intervening governments, tend to limit to the maximum the scope of the exemption from customs duties.

69. The abovementioned agreement, in fact, shows a clear bias towards free movement, unencumbered by duties, for data-processing products, which are recognised as having a ‘key role … in the development of information industries and in the dynamic expansion of the world economy’.

c) Note 3 to Section XVI

70. The possibility of applying Note 5(E) to Chapter 84 having thus been excluded, in accordance with the logic of the provisions for the interpretation of the CN indicated above, (29) we must examine the possibility of applying, for the purposes of customs classification of the products in question, Note 3 to Section XVI, according to which ‘composite machines … and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified … as being that machine which performs the principal function ’ (emphasis added).

71. However, it seems clear that in this case that provision is not applicable.

72. As I have already indicated, the possible classifications for the apparatus in question are contained in either Chapter 84 or Chapter 90. Because those two chapters are in different sections (Section XVI and XVIII respectively), a note contained in only one of those sections cannot be applicable here. (30) At the hearing, the parties too indicated that they were fully in agreement on this point.

73. I would also observe that, as if drawing a clear distinction between those two parts of the CN, Note 1 to Section XVI provides that ‘this section does not cover … (m) articles of Chapter 90’. (31)

d) General Rule 3

i) General remarks

74. On the basis of the foregoing considerations, it is therefore necessary in this case to have recourse to the General Rules for the interpretation of the CN contained in Title I thereof. In particular, the rule applied for classifying products which may fall within two or more headings is General Rule 3.

75. The first of the three paragraphs into which that rule is subdivided states that the heading which provides the most specific description is to be preferred to headings providing a more general description. That principle, which is consistent with the general characteristics of the CN classification system, is not however helpful in this case, since the possible classifications of the products in question are both equally specific and are found in different chapters and sections.

76. General Rule 3(b) provides, on the other hand, that ‘mixtures’ are to be classified ‘as if they consisted of the material or component which gives them their essential character’.

77. As is apparent from a 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) .

(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.