Joined Cases C-362/07 and C-363/07: Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunal d'instance du VIIe arrondissement de Paris — France) — Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07) v Administration des douanes — Direction générale des douanes et droits indirects (Common Customs Tariff — Combined Nomenclature — Tariff classification — Multi-function apparatus — Apparatus combining the functions of laser printer and a digital electronic scanner module, with a copier function — Heading 8471 — Heading 9009)
Date: 2008-12-11
Institutions: Court of Justice
Subjects: Combined Nomenclature, common customs tariff, customs inspection, information processing, interpretation of the law, printer

C 32/6

EN

Official Journal of the European Union

7.2.2009

Re:

Parties to the main proceedings

Appeal against the judgment of the Court of First Instance (Fifth
Chamber, Extended Composition) of 3 May 2007 in Case
T-357/02 Freistaat Sachsen v Commission by which the Court
annulled in part Commission Decision 2003/226/EC of
24 September 2002 on an aid scheme which the Federal
Republic of Germany is planning to implement — ‘Guidelines
on assistance for SMEs — Improving business efficiency in
Saxony’: Subprogrammes 1 (Coaching), 4 (Participation in fairs),
5 (Cooperation) and 7 (Design promotion)
(OJ 2003 L 91,
p. 13) — Applicability of Commission Regulation (EC)
No 70/2001 of 12 January 2001 on the application of Arti-
cles 87 and 88 of the EC Treaty to State aid to small and
medium-sized enterprises
for aid projects notified to the
Commission before the entry into force of that regulation

Operative part of the judgment

The Court:

1. Sets aside the judgment of

the
European Communities of 3 May 2007 in Case T-357/02 Freis-
taat Sachsen v Commission;

the Court of First

Instance of

2. Refers the case back to the Court of First Instance of the European

Communities;

3. Reserves costs.

(1) OJ C 223, 22.9.2007.

Judgment of the Court (Third Chamber) of 11 December
2008 (reference for a preliminary ruling from the Tribunal
d'instance du VIIe arrondissement de Paris — France) —
Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax
GmbH (C-362/07), Hewlett Packard International SARL
(C-363/07) v Administration des douanes — Direction
générale des douanes et droits indirects

(Joined Cases C-362/07 and C-363/07) (1)

classification — Multi-function

(Common Customs Tariff — Combined Nomenclature —
Tariff
apparatus —
Apparatus combining the functions of laser printer and a
digital electronic scanner module, with a copier function —
Heading 8471 — Heading 9009)

(2009/C 32/10)

Language of the case: French

Referring court

Tribunal d'instance du VIIe arrondissement de Paris

Applicants: Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV,
Utax GmbH (C-362/07), Hewlett Packard International SARL
(C-363/07)

Defendant: Administration des douanes — Direction générale des
douanes et droits indirects

Re:

Reference for a preliminary ruling — Tribunal d'instance du
VIIème arrondissement de Paris (France) — 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), in the version applicable at the
material time, and validity of Regulation (EC) No 400/2006 of
8 March 2006 concerning the classification of certain goods in
the Combined Nomenclature (OJ 2006 L 70, p. 9) — Multifunc-
tional apparatus comprising a laser printer module, a scanner
module and a computer module — Whether classification
should be under tariff heading 8471 60 40 (Automatic data-
processing machines) on the basis of General Rule 3(b) for the
interpretation of the CN (printing function giving the apparatus
its ‘essential character’) or under heading 9009 12 00 (photoco-
pying apparatus) pursuant to Note 5(E) to Chapter 84 of the CN
function —
autonomously fulfilling a
(apparatus
copying — other than data-processing)

specific

Operative part of the judgment

1. Note 5(E) to Chapter 84 of the combined nomenclature consti-
tuting 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 by Commission Regulation
(EC) No 1719/2005 of 27 October 2005, is to be interpreted as
meaning that only machines incorporating an automatic data-
processing machine or working in conjunction with such a machine,
whose function is not data processing, perform ‘a specific function
other than data processing’;

as

amended

2. If the copying function performed by the machines at issue in the
main proceedings is secondary in relation to the printing and elec-
tronic scanning functions, they must be considered units of auto-
matic data-processing machines within the meaning of Note 5(B)
to Chapter 84 of the combined nomenclature constituting Annex I
by Regulation
to Regulation No 2658/87,
No 1719/2005, which units, by application of Note 5(C) to that
chapter, if they are presented in isolation, fall within heading 8471.
In such a case, the relevant subheading must be determined in
accordance with Note 3 to Section XVI of the said nomenclature.
However, if the importance of that copying function is equivalent to
that of the other two functions, those machines must be classified,
by application of General Rule 3(b) of the General rules for the
interpretation of
the heading corre-
sponding to the module which gives those machines their essential
character. If such identification proved impossible, they must be
classified under heading 9009 in accordance with General
Rule 3(c);

that nomenclature, under

7.2.2009

EN

Official Journal of the European Union

C 32/7

3. Examination of the fifth questions referred has not raised any factor
liable to affect the validity of point 4 of the Annex to Commission
Regulation (EC) No 400/2006 of 8 March 2006 concerning the
classification of certain goods in the Combined Nomenclature.

(1) OJ C 269, 10.11.2007.

Judgment of the Court (Fourth Chamber) of 11 December
2008 (reference for a preliminary ruling from the Vestre
Landsret — Denmark) — Danfoss A/S, AstraZeneca A/S v
Skatteministeriet

(Case C-371/07) (1)

(Sixth VAT Directive — Article 6(2) — Supplies of services
carried out free of charge by a taxable person for purposes
other than those of his business — Right to deduct VAT —
Second subparagraph of Article 17(6) — Member States'
option to retain exclusions from the right to deduct which
were provided for under their national laws when the Sixth
Directive came into force)

laws of the Member States relating to turnover taxes — Common
system of value added tax: uniform basis of assessment, must be
interpreted as precluding a Member State from applying, after the
entry into force of the Sixth Directive, an exclusion from the right
to deduct input value added tax on expenditure in respect of meals
provided by company canteens free of charge to business contacts
and staff in the course of work meetings, where, at the moment
when the Sixth Directive entered into force, that exclusion was not
actually applied to that expenditure because of an administrative
practice of taxing services provided by company canteens at cost
price, that is to say, the price of the raw materials plus the cost of
wages for preparation and sale of the food and drinks and the
administration of the canteens, in return for the right to deduct
input value added tax in full;

2) Article 6(2) of Sixth Directive 77/388 must be interpreted in such
a way that, on the one hand, it does not cover the provision, free of
charge, of meals in company canteens to business contacts in the
course of meetings held on the company premises where objective
evidence indicates — this being a matter for the referring court to
determine — that those meals are provided for strictly business-
related purposes. On the other hand, Article 6(2) applies in prin-
ciple to the provision, free of charge, of meals by a company to its
staff on its premises, unless — this likewise being a matter for the
referring court to determine — the needs of the company, such as
the need to ensure that work meetings are run smoothly and
without interruptions, require the employer to ensure that meals are
provided.

(2009/C 32/11)

Language of the case: Danish

(1) OJ C 247, 20.10.2007.

Referring court

Vestre Landsret

Parties to the main proceedings

Applicants: Danfoss A/S, AstraZeneca A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Vestre Landsret — Inter-
pretation of Article 6(2) and the second subparagraph of
Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added
tax: uniform basis of assessment (OJ L 145, p. 1) — Right to
deduct tax relating to meals provided free of charge to staff and
clients in a company canteen — Possibility for the Member
States to maintain their legislation excluding the right to deduct
on the date of entry into force of the Directive

Judgment of the Court (Second Chamber) of 11 December
2008 (reference for a preliminary ruling from the Tribunale
di Ancona — Italy) — MI.VER Srl, Daniele Antonelli v
Provincia di Macerata

(Case C-387/07) (1)

(Waste — Concept of
‘temporary storage’ — Directive
75/442/EEC — Decision 2000/532/EC — Possibility of
mixing together items of waste covered by different codes —
Concept of ‘mixed packaging’)

(2009/C 32/12)

Language of the case: Italian

Operative part of the judgment

Referring court

1) The second subparagraph of Article 17(6) of Sixth Council Direc-
tive 77/388/EEC of 17 May 1977 on the harmonisation of the

Tribunale di Ancona