British Sky Broadcasting Group plc (C-288/09) and Pace plc (C-289/09) v The Commissioners for Her Majesty’s Revenue & Customs.
Date: 2011-04-14
60. In that regard, it should be borne in mind that, according to settled case-law, in the interests of legal certainty and for 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 the notes to the sections or chapters (see, in particular, Case C-339/98 Peacock [2000] ECR I-8947, paragraph 9; Case C-495/03 Intermodal Transports  [2005] ECR I-8151, paragraph 47; Case C‑142/06 Olicom  [2007] ECR I‑6675, paragraph 16; and Case C‑376/07 Kamino International Logistics [2009] ECR I‑1167, paragraph 31).
63. It should be recalled that, according to the Court’s case-law, the explanatory notes drawn up, as regards the CN, by the Commission and, as regards the HS, by the World Customs Organisation may be an important aid to the interpretation of the scope of the various headings but do not have legally binding force (see Case C-35/93 Develop Dr Eisbein  [1994] ECR I‑2655, paragraph 21; Case C‑400/05 B.A.S. Trucks [2007] ECR I‑311, paragraph 28; and Case C‑403/07 Metherma  [2008] ECR I‑8921, paragraph 48).
64. The content of the Explanatory Notes to the CN, which do not take the place of those of the HS but should be regarded as complementary to them (see, to that effect, Case C‑486/06 Van Landeghem  [2007] ECR I‑10661, paragraph 36), and consulted jointly with them, must accordingly be consistent with the provisions of the CN and may not alter their scope (see, in particular, Kamino International Logistics , paragraph 48).
65. Accordingly, where it is apparent that they are contrary to the wording of the headings of the CN and the section or chapter notes, the Explanatory Notes to the CN must be disregarded (see Case C-229/06 Sunshine Deutschland Handelsgesellschaft  [2007] ECR I-3251, paragraph 31; Case C‑312/07 JVC France [2008] ECR I-4165, paragraph 34; and Kamino International Logistics , paragraphs 49 and 50).
67. Heading 8528 covers, inter alia, reception apparatus for television, whether or not incorporating sound or video recording apparatus. Subheading 8528 71 13 covers apparatus for television, whether or not incorporating sound or video recording apparatus, which are not designed to incorporate a video display or screen, with a microprocessor incorporating a modem for gaining access to the internet, and having a function of interactive information exchange, capable of receiving television signals.
68. It should be noted that, as the Commission acknowledged at the hearing, the expressions ‘video reception’ and ‘television reception’ refer to two identical concepts.
76. It should be recalled that the intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see Case C-309/98 Holz Geenen [2000] ECR I-1975, paragraph 15; Case C‑201/99 Deutsche Nichimen  [2001] ECR I‑2701, paragraph 20; and Case C‑183/06 RUMA  [2007] ECR I‑1559, paragraph 36).
77. In that regard, as the Commission acknowledged at the hearing, it is necessary to take into account what consumers would consider to be ancillary or principal.
83. Furthermore, it should be borne in mind that, according to settled case-law, even though the provisions of a treaty such as the ITA are not such as to create rights upon which individuals may rely directly before the courts under European Union law, where the European Union has legislated in the field in question, the primacy of international agreements concluded by the European Union over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements (see, to that effect, Case C‑61/94 Commission  v Germany  [1996] ECR I‑3989, paragraph 52, and Case C‑428/08 Monsanto Technology  [2010] ECR I-0000, paragraph 72).
89. It should be noted that, according to settled case-law, even though, strictly speaking, the national court has directed its reference to the interpretation of Article 12(5)(a)(ii), first indent, of the Customs Code concerning the behaviour of customs authorities in the event that there is a change to the Explanatory Notes to the CN, the Court is not thereby precluded from providing the national court with all those elements for the interpretation of Community law which may be of assistance in adjudicating on the case pending before it, whether or not that court has specifically referred to them in its questions (see, inter alia, Case C-321/03 Dyson  [2007] ECR I-687, paragraph 24; Case C-392/05 Alevizos [2007] ECR I-3505, paragraph 64 and case-law cited; and Case C-229/08 Wolf  [2010] ECR I-0000, paragraph 32). It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of European Union law which require interpretation, having regard to the subject-matter of the dispute (see Wolf , paragraph 32).
92. However, as was observed in paragraph 63 of this judgment, the Explanatory Notes to the CN, whilst they constitute an important means of ensuring the uniform interpretation of the CN by the customs authorities of the Member States, do not have legally binding force (see Develop Dr Eisbein , paragraph 21, and Case C-259/97 Clees  [1998] ECR I-8127, paragraph 12).