CELEX: 62007CJ0362
Language: en
Date: 2008-12-11
Title: Judgment of the Court (Third Chamber) of 11 December 2008.#Kip Europe SA and Others (C-362/07) and Hewlett Packard International SARL (C-363/07) v Administration des douanes - Direction générale des douanes et droits indirects.#Reference for a preliminary ruling: Tribunal d’instance du VIIe arrondissement de Paris - France.#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.#Joined cases C-362/07 and C-363/07.

Joined Cases C-362/07 and C-363/07
      Kip Europe SA and Others 
      and
      Hewlett Packard International SARL 
      v
      Administration des douanes – Direction générale des douanes et droits indirects
      (References for a preliminary ruling from the Tribunal d’instance du VIIe arrondissement de Paris)
      
      (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)
      Summary of the Judgment
      1.        Common Customs Tariff – Tariff headings – Machines performing a ‘specific function’ within the meaning of Note 5(E) to Chapter
            84 of the Combined Nomenclature – Meaning 
      (Council Regulation No 2658/87, Annex I; Commission Regulation No 1719/2005)
      2.        Common Customs Tariff – Tariff headings – Multi-function apparatus consisting of a a laser printer and a digital electronic
            scanner module, with a copier function 
      (Council Regulation No 2658/87, Annex I; Commission Regulation No 1719/2005)
      3.        Common Customs Tariff – Tariff headings – Multi-function apparatus capable of printing, digital electronic scanning and copying,
            in accordance with Heading 9009 of the Combined Nomenclature
      (Commission Regulation No 400/2006)
      1.        Note 5(E) to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No 2658/87 on the tariff and statistical
         nomenclature and on the Common Customs Tariff, as amended by Regulation No 1719/2005, 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’. It follows that machines comprising, in
         a single housing, a laser printer module and a scanner module, including, in addition to the copying function, which is not
         data processing, printing and electronic scanning functions, do not perform such a ‘specific function’. 
      
      (see paras 35-36, operative part 1)
      2.        Machines characterised by the fact, firstly, that they perform printing and electronic scanning functions in connection, directly
         or over a network, with automatic data-processing machines and, secondly, that the copying function which they have is used
         autonomously are likely simultaneously to meet the three requirements laid down in Note 5(B)(a) to (c) to Chapter 84 of the
         Combined Nomenclature, constituting Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the
         Common Customs Tariff, as amended by Regulation No 1719/2005, for them to be considered units forming part of an automatic
         data-processing system, that is to say to be of a kind used solely or principally in an automatic data-processing system,
         capable of connection to the central processing unit and receiving or supplying data in a form usable by that system.
      
      It is, however, for the referring court to assess, taking into account the objective characteristics of those machines such
         as the print and reproduction speeds, the existence of an automatic page feeder for originals to be photocopied or the number
         of paper feeder trays, whether the copying function is secondary in relation to the other two functions or whether, on the
         contrary, it is equivalent in importance. 
      
      If the copying function is secondary in relation to the printing and electronic scanning functions, those machines must be
         considered units of automatic data-processing machines within the meaning of Note 5(B) to Chapter 84 of the combined nomenclature,
         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 that nomenclature.
      
      However, if the importance of that copying function is equivalent to that of the other two functions, those machines could
         not be considered units of automatic data-processing machines because they do not meet the condition laid down in Note 5(B)(a)
         to Chapter 84 of the Combined Nomenclature, that is to say, that they be ‘of a kind solely or principally used in an automatic
         data-processing system’. Accordingly, those machines must be classified, by application of General Rule 3(b) for the interpretation
         of that nomenclature, under the heading corresponding to the module which gives those machines their essential character,
         provided that such determination is possible. Should that be impossible, they must be classified under heading 9009 in accordance
         with General Rule 3(c).
      
      (see paras 40-41, 46-48, 56, operative part 2)
      3.        In the interpretation of a classification regulation, in order to determine its scope, account must be taken inter alia of
         the reasons given. With regard to point 4 of the Annex to Regulation No 400/2006 concerning the classification of certain
         goods in the Combined Nomenclature, it follows from the second paragraph of the reasons for that point that it applies only
         in the event that none of the functions performed by the machine to be classified gives it its essential character. 
      
      Accordingly, since it classifies machines capable of performing printing, electronic scanning and reproduction operations
         under subheading 9009 12 00 by application of General Rules 1, 3(c) and 6 for the interpretation of the Combined Nomenclature,
         of Note 5(E) to Chapter 84 of the Combined Nomenclature and of the wording of heading and subheading 9009 and 9009 12 00,
         on the ground that none of the functions corresponding to those operations can be regarded as giving those machines their
         essential character, without, in principle, requiring all machines having those three functions to be classified as photocopiers,
         Regulation No 400/2006 is valid.
      
      (see paras 60-62, operative part 3)
JUDGMENT OF THE COURT (Third Chamber)
      11 December 2008 (*)
      
      (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)
      In Joined Cases C‑362/07 and C‑363/07,
      REFERENCES for a preliminary ruling pursuant to Article 234 EC from the Tribunal d’instance du VIIe arrondissement de Paris (France), made by decision of 24 July 2007, received at the Court on 2 August 2007, in the proceedings
      
      Kip Europe SA and Others (C-362/07),
      
      Hewlett Packard International SARL (C‑363/07)
      
      v
      Administration des douanes – Direction générale des douanes et droits indirects,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, A. Ó Caoimh, J.N. Cunha Rodrigues, U. Lõhmus (Rapporteur) and A. Arabadjiev,
         Judges,
      
      Advocate General: P. Mengozzi,
      Registrar: M.-A. Gaudissart, Head of Unit,
      having regard to the written procedure and further to the hearing on 5 June 2008,
      after considering the observations submitted on behalf of:
      –        Kip Europe SA and Others, by F. Goguel and F. Foucault, avocats,
      –        Hewlett Packard International SARL, by F. Goguel and F. Foucault, avocats,
      –        the French Government, by G. de Bergues and A.-L. During, acting as Agents,
      –        the Netherlands Government, by C.M. Wissels and D.J.M. de Grave, acting as Agents,
      –        the Polish Government, by T. Nowakowski, acting as Agent,
      –        the Commission of the European Communities, by G. Wilms, acting as Agent, and by F. Tuytschaever, advocaat,
      after hearing the Opinion of the Advocate General at the sitting on 17 July 2008,
      gives the following
      Judgment
      1        The references for a preliminary ruling concern the interpretation of the combined nomenclature constituting 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 (OJ
         1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1; ‘the CN’),
         and the validity of Commission 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).
      
      2        These references have been made in the context of two disputes between, on the one hand, Kip Europe SA and Others (‘Kip and
         Others’) and, on the other, Hewlett Packard International SARL (‘Hewlett Packard’) and the Administration des douanes – direction
         générale des douanes et droits indirects (Customs Administration – Directorate-General of Customs and Indirect Taxes) (‘the
         administration des douanes’) concerning the tariff classification, with effect from July 2006, of multi-function machines
         imported into the European Community under different trade names.
      
       Legal context
      3        The CN, established by Regulation No 2658/87, is based on the international Harmonised Commodity Description and Coding System
         (‘the HS’) drawn up by the Customs Cooperation Council, now the World Customs Organisation, and established by the International
         Convention concluded at Brussels on 14 June 1983 and approved on behalf of the Community by Council Decision 87/369/EEC of
         7 April 1987 (OJ 1987 L 198, p. 1). The CN takes six-digit headings and subheadings from the HS, only the seventh and eighth
         digits forming subdivisions that are specific to it.
      
      4        In accordance with the first subparagraph of Article 2 of Regulation No 1719/2005, which introduced a new version of the CN,
         that regulation entered into force on 1 January 2006. It was impliedly repealed, with effect from 1 January 2007, by Commission
         Regulation (EC) No 1549/2006 of 17 October 2006 amending Annex I to Regulation No 2658/87 (OJ 2006 L 301, p. 1).
      
      5        Part One of the CN contains preliminary provisions. In that part, Section I, which contains general rules, subsection A, entitled
         ‘General rules for the interpretation of the [CN]’ (‘the general rules’), provides: 
      
      ‘Classification of goods in the [CN] shall be governed by the following principles: 
      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, 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)      …
      (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. 
      
      …’
      6        Part Two of the CN, which contains the table of customs duties, includes Section XVI, 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’.
      
      7        Under Note 3 to Section XVI:
      
      ‘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.’ 
      
      8        Section XVI contains Chapters 84 and 85. The first includes nuclear reactors, boilers, machinery and mechanical appliances,
         and parts thereof. The second concerns 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.
      
      9        Under Note 5 to Chapter 84:
      
      ‘(A)      For the purposes of heading 8471, the expression “automatic data-processing machines” means:
      …
      (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.
      (C)      Separately presented units of an automatic data-processing machine are to be classified in heading 8471 [of the CN (‘heading
         8471’)].
      
      (D)      Printers, keyboards, X-Y 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.’ 
      
      10      Tariff heading 8471 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 80 − − Other
      …’
      11      Section XVIII of the CN includes, inter alia, Chapter 90, which concerns optical, photographic, cinematographic, measuring,
         checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof.
      
      12      Tariff heading 9009 of the CN (‘Heading 9009’) is worded as follows:
      
      ‘9009 Photocopying apparatus incorporating an optical system or of the contact type and thermo-copying apparatus:
      ...
      9009 12 00 − − Operating by reproducing the original image via an intermediate onto the copy (indirect process)
      …’ 
      13      At the time material to the main proceedings, the rate of customs duties on imports applicable to tariff subheading 9009 12 00
         was 6%, while machinery coming under tariff subheading 8471 60 20 was exempt from duty. 
      
      14      The Commission of the European Communities adopted Regulation No 400/2006 in order to ensure uniform application of the CN
         in respect of the goods referred to therein. 
      
      15      Under point 4 of the Annex to that regulation:
      
      
               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).
               
            
            
               9009 12 00
            
            
               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. 
            
          The actions in the main proceedings and the questions referred for a preliminary ruling
       Case C-362/07
      16      Kip and Others imported into France apparatus comprising, in a single housing, a large-format-document laser printer module,
         a large format digital scanner module (‘the scanner module’) and a computer running on the Windows operating system, connectable
         to all kinds of network environments. Each apparatus incorporates all the hardware and software elements needed to perform
         the various functions, which may be purchased in part or in their entirety by the customer, to whom a code is attributed by
         reference to the option chosen, an option that can be extended at any time by the attribution of a different code. 
      
      17      It is apparent from the observations of Kip and Others that those machines are intended for use by undertakings drafting plans,
         such as design offices, architects and surveyors. It enables those undertakings, working with specific software, to print
         plans on the printer linked to their computer over their local network or to digitalise existing plans in order to enter them
         in computers on their local network and work on them. However, the idea of using those machines as stand-alone photocopiers
         is purely marginal. 
      
       Case C-363/07
      18      Hewlett Packard imported into France a number of models of multi-function colour and monochrome printers comprising, in a
         single housing, a laser printer module and a scanner module having the functional capabilities of printing, digitalisation
         and copying. Those machines are connectable to computers and receive and process signal code data which are used in the data-processing
         environment. 
      
      19      It is apparent from Hewlett Packard’s observations that those multi-functional printers are intended for home use and for
         small and medium-sized enterprises and that they are basically intended to be connected either directly or via a network to
         one or a number of computers.
      
       Facts common to the cases
      20      By six binding tariff opinions (‘BTOs’) issued, respectively, on 21 July 2006 at the request of Kip and Others and on 30 October
         2006 at the request of Hewlett Packard, the administration des douanes took the view that the various machines mentioned above
         constituted electrostatic photocopying apparatus operating by reproducing the original image via an intermediate onto the
         copy, which were to be classified in tariff subheading 9009 12 00. The customs duties on imports applicable to that tariff
         subheading were 6%.
      
      21      The importing companies brought proceedings against the administration des douanes, seeking the annulment of those BTOs. Principally,
         they submit that the machines in question should be classified under tariff subheading 8471 60 of the CN on the basis of General
         Rule 3(b), since the print module or, at the very least, the print module and the scanner module give it its essential character.
         In the alternative, they submit that the digital copy function carried out principally as an input and output unit of an automatic
         data-processing machine would as such fall within subheading 8471 60 and that, under the criterion of the principal use of
         the apparatus, it is appropriate to decide that print function is the main function and the subsidiary function is that of
         an input and output unit of an automatic data-processing machine falling as such within subheading 8471 60, which benefits
         from an exemption from duty. Furthermore, those companies take the view that Regulation No 400/2006 is unlawful in that it
         bases the classification laid down in point 4 of the Annex thereto on the premiss that the apparatus referred to does not
         have a particular function which gives it its essential character. 
      
      22      The administration des douanes takes the view that Note 5(E) to Chapter 84 excludes any possibility of classification of the
         products concerned in the main proceedings under heading 8471, in so far as those products perform a specific function other
         than data processing. It submits that General Rule 3(b) is of no use for tariff classification of the products at issue, since
         it is not possible to determine whether a material or component of those products gives them their ‘essential character’ within
         the meaning of that rule. It also submits that the European Commission made a statement to that effect in Regulation No 400/2006
         in respect of classification for similar goods. The administration des douanes based its issue of the BTOs at issue in the
         main proceedings, inter alia, on that regulation, classifying the machines concerned under subheading 9009 12 00. 
      
      23      In those circumstances, the tribunal d’instance du VIIe arrondissement de Paris decided to stay the proceedings and refer the following questions to the Court, in Case C‑362/07,
         for a preliminary ruling:
      
      ‘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 [CN]?
      
      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 [HS] and of the [CN], must printers of the kind described in this procedure
         be classified under heading 8471 60 or 9009 12 00?
      
      5.      Is it not the case that … Regulation … No 400/2006 … is invalid, in particular because it is contrary to the [HS], to the
         [CN] 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 [sub-]heading 9009 12 00?’
      
      24      With regard to Case C‑363/07, the tribunal d’instance du VIIe arrondissement de Paris also decided to stay the proceedings and refer questions to the Court for a preliminary ruling, identical
         to those set out above with the exception of the third question, which reads as follows: 
      
      ‘3.      If that is the case, and in relation to equipment made up of two materially distinct modules (printer and scanner), should
         the classification not be made on the basis of General Rule 3(b)?’
      
       The questions referred
       The first questions
      25      By those questions, the referring court asks, essentially, whether Note 5(E) to Chapter 84 of the CN is to be interpreted
         as meaning that machines such as those at issue in the main proceedings are to be deemed to be performing a ‘specific function
         other than data processing’ within the meaning of that note since, apart from the printing and electronic scanning functions
         which they carry out in connection with an automatic data-processing machine, they also have an autonomous copying function.
         
      
      26      It is appropriate to bear in mind settled case-law, in accordance with which, in the interests of legal certainty and ease
         of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in
         their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section
         or chapter notes (see, inter alia, Case C‑142/06 Olicom [2007] ECR I‑6675, paragraph 16, and the case-law cited).
      
      27      Both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the SH are important means
         of ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (see Case
         C‑11/93 Siemens Nixdorf [1994] ECR I‑1945, paragraph 12; Case C‑382/95 Techex [1997] ECR I‑7363, paragraph 12; Case C-339/98 Peacock [2000] ECR I-8947, paragraph 10; and Olicom, paragraph 17).
      
      28      In the present case, the wording of heading 8471, under which, according to both Kip and Others and Hewlett Packard, the machines
         at issue in the main proceedings fall, refers, inter alia, to automatic data-processing machines and units thereof, while
         the wording of heading 9009, under which, in the view of the French, Dutch and Polish Governments and the Commission, those
         machines should be classified, concerns photocopying apparatus incorporating an optical system or of the contact type and
         thermo-copying apparatus.
      
      29      In that regard, those governments and the Commission take the view that the classification of the machines at issue in the
         main proceedings under heading 8471 is impossible, having regard to Note 5(E) to Chapter 84 of the CN, because, since they
         can be used to make photocopies without being connected to an automatic data-processing machine, they perform a ‘specific
         function other than data processing’ within the meaning of that note.
      
      30      However, that argument cannot be accepted.
      
      31      Under Note 5(E) to Chapter 84 of the CN, ‘[m]achines 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’. 
      
      32      It follows from the wording of Note 5(E) to Chapter 84 of the CN that the ‘specific function’ performed by a machine working
         with an automatic data-processing machine must be a function ‘other than data processing’ (see Olicom, paragraph 30).
      
      33      Furthermore, it follows from the general scheme and purpose of that note that the expression ‘are to be classified in the
         headings appropriate to their respective functions’ does not seek to have one function take priority over others also performed
         by the apparatus to be classified and which also constitute data processing, but to prevent apparatus whose function has nothing
         to do with data processing from being classified under heading 8471 for the sole reason that they incorporate an automatic
         data-processing machine or work in connection with such a machine.
      
      34      That interpretation is confirmed by the judgment in Case C‑467/03 Ikegami [2005] ECR I‑2389, paragraphs 25 and 26, in which the Court held that a machine whose basic equipment enables it to perform
         automatic data processing must nevertheless be considered to have a specific function within the meaning of Note 5(E) to Chapter
         84 of the CN since, as equipped, it cannot be used for purposes other than the recording and reproduction of images and sounds
         in the course of video surveillance, as it lacks sufficient software.
      
      35      However, it is apparent from the documents before the Court in the present proceedings that the machines at issue in the main
         proceedings, in addition to their copying function which is not data processing, also have printing and scanning functions.
      
      36      Consequently, the answer to the first questions referred must be that Note 5(E) to Chapter 84 of the CN 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’. 
      
       The second questions
      37      It follows from the wording of those questions that they were referred in the event of it following from the answer to the
         first questions referred that the copying function of a multi-function apparatus such as that at issue in the main proceedings
         constitutes a ‘specific function other than data processing’ within the meaning of Note 5(E) to Chapter 84 of the CN. Since
         that is not the case, there is no need to answer the second questions referred.
      
       The third and fourth questions
      38      By these questions, which can be dealt with together, the referring court asks, essentially, whether machines such at those
         at issue in the main proceedings are to be classified under heading 8471, which covers, inter alia, the units of an automatic
         data-processing machine, or under heading 9009, which concerns photocopiers. In that regard, that court also asks whether
         the classification is to be made by application of General Rule 3(b). 
      
      39      In order to answer those questions, it is necessary to state, as a preliminary point, that, as is apparent from the wording
         of General Rule 1, for legal purposes, classification is determined according to the terms of the headings and any relative
         section or chapter notes, before the other provisions of the General Rules come to bear. General Rule 3 applies only when
         it is apparent that goods must be classified under a number of headings. 
      
      40      It is apparent from an examination of the characteristics of the machines at issue in the main proceedings as described by
         the referring court that they all comprise, in a single housing, a laser printer module and a scanner module. In addition,
         the machines imported by Kip and Others are equipped with a computer running on the Windows operating system and are used
         to process large-format documents, while those imported by Hewlett Packard are intended for home use and for small and medium-sized
         enterprises. Nevertheless, irrespective of their intended end-use, all the machines at issue in the main proceedings are characterised
         by the fact, firstly, that they perform printing and electronic scanning functions in connection, directly or over a network,
         with automatic data-processing machines and, secondly, that the copying function which they have is used autonomously.
      
      41      Accordingly, those machines are likely simultaneously to meet the three requirements laid down in Note 5(B)(a) to (c) to Chapter
         84 of the CN for them to be considered units forming part of an automatic data-processing system, that is to say to be of
         a kind used solely or principally in an automatic data-processing system, capable of connection to the central processing
         unit and receiving or supplying data in a form usable by that system.
      
      42      Firstly, the reference to Note 5(B) cannot be excluded in the present case because, according to its wording, it applies subject
         to the provisions of Note 5(E) since, as is apparent from paragraph 35 of the present judgment, the application of that latter
         note is excluded because, in addition to the copying function, which is not data processing, the machines at issue in the
         main proceedings are also equipped with printing and electronic scanning functions.
      
      43      Secondly, although it is true that the machines at issue in the main proceedings are not of the kind used ‘solely … in an
         automatic data-processing system’ within the meaning of Note 5(B)(a) to Chapter 84 of the CN, the fact remains that they are
         likely to be considered of the kind used ‘principally’ in such a system within the meaning of the same note.
      
      44      In the present case, it is apparent from the description of the characteristics of those machines that most of the functions
         which they perform, that is to say, printing and electronic scanning, can be used only in connection with an automatic data-processing
         machine. Accordingly, those machines are likely to be of a kind used principally in an automatic data-processing system.
      
      45      Nevertheless, the Court does not have sufficient information to enable it to evaluate the importance of the copying function
         performed by the machines at issue in the main proceedings in relation to the other two functions.
      
      46      It is therefore for the referring court to assess, taking into account the objective characteristics of those machines such
         as the print and reproduction speeds, the existence of an automatic page feeder for originals to be photocopied or the number
         of paper feeder trays, whether the copying function is secondary in relation to the other two functions or whether, on the
         contrary, it is equivalent in importance. 
      
      47      If the copying function is secondary in relation to the other two functions, those machines should be considered units of
         automatic data-processing machines within the meaning of Note 5(B) to Chapter 84 of the CN, which, if they are presented in
         isolation, fall within heading 8471, by application of Note 5(C) to the same chapter. In such a case, the relevant subheading
         within heading 8471 will have to be identified by application of Note 3 to Section XVI of the CN, in accordance with which
         ‘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’.
      
      48      However, if the copying function of the machines at issue in the main proceedings is of an equivalent importance to that of
         their other two functions, those machines could not be considered units of automatic data-processing machines because they
         do not meet the condition laid down in Note 5(B)(a) to Chapter 84 of the CN, that is to say, that they be ‘of a kind solely
         or principally used in an automatic data-processing system’.
      
      49      In such a case, machines made up of different components, that is to say either a printer module and a scanner module, or
         a printer module, a scanner module and a computer module, should be classified, by application of General Rule 3(b), according
         to the module which, of those two or three modules, is identified as determining their essential character, provided such
         identification is possible. If that is not the case, in accordance with General Rule 3(c), they are to be classified under
         the heading which occurs last in numerical order among those which equally merit consideration.
      
      50      It follows that each of the machines at issue in the main proceedings should be classified under heading 9009 only if it is
         apparent, on the basis of its objective characteristics, that it is not of a kind used principally in an automatic data-processing
         system, since the copying function is of an importance equivalent to that of the other two functions, and that it proves impossible
         to determine which, of the printing module or the scanner module or even, if applicable, the computer module, gives it its
         essential character. 
      
      51      That conclusion cannot be called into question by the argument raised as a subsidiary point by the French and Netherlands
         Governments and by the Commission that if it is possible to classify the machines at issue in the main proceedings under heading
         8471, it would also be possible to classify them under heading 9009. 
      
      52      Those parties submit that those machines should be classified under heading 9009 by application of General Rule 3(c). In that
         regard, they refer to Case C‑67/95 Rank Xerox [1997] ECR I‑5401, where the Court held that, in accordance with the version of the Combined Nomenclature applicable to the
         case which gave rise to that judgment, machines comprising a scanning device, a digital storage device and a printing device
         fall within subheading 9009 12 00.
      
      53      Nevertheless, it must be observed, firstly, that, unlike the present disputes in the main proceedings, which relate to machines
         capable of falling within heading 8471, since the conditions laid down in Note 5(B) to Chapter 84 of the CN must be taken
         into consideration in that regard, the machines at issue in the case which gave rise to the judgment in Rank Xerox could have been classified either under heading 8472 of the CN as office machinery, or under heading 8517 of the CN as telecommunications
         apparatus operating by carrier signal, or even under heading 9009 as photocopying machines. 
      
      54      Accordingly, since the functions performed by the latter machines are not data processing, the notes to Chapter 84 of the
         CN relating to classification of units of automatic data-processing machines did not apply to them. 
      
      55      Secondly, it is not apparent from the description of those machines that they were, like those at issue in the main proceedings
         here, made up of different components. For that reason, General Rule 3(b) would not have been applicable either for the purposes
         of classification of the machines at issue in the Rank Xerox case. 
      
      56      Consequently, the answer to the third and fourth questions referred must be that, if the copying function performed by the
         machines at issue in the main proceedings is secondary in relation to the printing and electronic scanning functions, they
         must be considered units of automatic data-processing machines within the meaning of Note 5(B) to Chapter 84 of the CN which,
         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 sub-heading must be determined in accordance with Note 3 to Section XVI of the CN. 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), under the heading corresponding to the module which gives those machines their essential character.
         If such identification is not possible, they must be classified under heading 9009 in accordance with General Rule 3(c). 
      
       The fifth questions
      57      By these questions, the referring court seeks a ruling from the Court on the validity of the classification made in point
         4 of the Annex to Regulation No 400/2006, in particular in the light of General Rules 1 and 3(b) for the interpretation of
         the HS and General Rules 1 and 3(b), 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 the machines at issue in the main proceedings under subheading 9009 12 00.
      
      58      It is apparent from the terms in which those questions are drafted that the referring court takes the view that, with regard
         to the multi-functional machines at issue in the main proceedings, it is the printing function which is decisive for the purposes
         of their classification. It refers to ‘printers of the kind described [in the present proceedings]’. In that context, that
         court doubts the validity of point 4 of the Annex to Regulation No 400/2006, which classified machines performing printing,
         electronic scanning and copying functions under subheading 9009 12 00, which covers photocopiers.
      
      59      It is apparent from case-law, firstly, that a classification regulation, such as Regulation No 400/2006, is adopted by the
         Commission when the classification in the CN of a particular product is such as to give rise to difficulty or to be a matter
         for dispute and, secondly, such a regulation is of general application in so far as it does not apply to an individual trader
         but, in general, to products identical to the one thus classified (see, to that effect, Case C‑119/99 Hewlett Packard [2001] ECR I‑3981, paragraphs 18 and 19). 
      
      60      It is also apparent from case-law that, in the interpretation of a classification regulation, in order to determine its scope,
         account must be taken inter alia of the reasons given (see Hewlett Packard, paragraph 20 and the case-law cited). 
      
      61      With regard to point 4 of the Annex to Regulation No 400/2006, it follows from the second paragraph of the reasons for that
         point that it applies only in the event that none of the functions performed by the machine to be classified gives it its
         essential character. 
      
      62      Accordingly, since it classifies machines capable of performing printing, electronic scanning and reproduction operations
         under subheading 9009 12 00 by application of General Rules 1, 3(c) and 6, of Note 5(E) to Chapter 84 of the CN and of the
         wording of heading and subheading 9009 and 9009 12 00, on the ground that none of the functions corresponding to those operations
         can be regarded as a giving those machines their essential character, without, in principle, requiring all machines having
         those three functions to be classified as photocopiers, Regulation No 400/2006 is valid.
      
      63      Consequently, it must be held that an examination of the fifth questions referred has not raised any factor liable to affect
         the validity of point 4 of the Annex to Regulation No 400/2006. 
      
       Costs
      64      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Third Chamber) hereby rules:
      1.      Note 5(E) to Chapter 84 of the combined nomenclature constituting 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’.
      2.      If the copying function performed by the machines at issue in the main proceedings is secondary in relation to the printing
            and electronic scanning functions, they must be considered units of automatic data-processing machines within the meaning
            of Note 5(B) to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No 2658/87, as amended by Regulation
            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 that nomenclature, under
            the heading corresponding 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). 
      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.
      [Signatures]
      * Language of the case: French.