Olicom A/S v Skatteministeriet.
Date: 2007-07-18
16. It is settled case-law that, 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‑339/98 Peacock  [2000] ECR I‑8947, paragraph 9; Case C‑396/02 DFDS  [2004] ECR I‑8439, paragraph 27; Case C‑495/03 Intermodal Transports  [2005] ECR I‑8151, paragraph 47; and Case C‑311/04 Algemene Scheeps Agentuur Dordrecht  [2006] ECR I‑609, paragraph 26).
17. Both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council 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; and Peacock , paragraph 10).
18. Finally, for the purposes of classification under the appropriate heading, 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‑459/93 Thyssen Haniel Logistic  [1995] ECR I‑1381, paragraph 13, DFDS , paragraph 29, and Case C‑183/06 RUMA  [2007] ECR I‑0000, paragraph 36).
19. It should be noted first of all that, in paragraph 23 of its judgment in Peacock , the Court held that, between July 1990 and May 1995, network cards designed to be installed in automatic data-processing machines were to be classified under heading No 8471 as units of machines of that type.
20. The Court also held, in paragraphs 16 to 20 of the judgment in Peacock , that network cards are designed solely for automatic information processing machines, that they are directly connected to those machines and that their function is to supply and accept data in a form which those machines can use.  From this it inferred that network cards are comparable to any other medium whereby an automatic data processing machine accepts or delivers data in the sense that they have no function which they would be capable of performing without the assistance of such a machine.  Accordingly, the final subparagraph of Note 5(B) to Chapter 84 of the CN, in the version in force prior to 1 January 1996, could not preclude them from being classified under heading No 8471, given that they do not perform any specific function.  Furthermore, network cards satisfy the conditions relating to ‘units’ set out in that note, since they can be connected to the central unit and are specifically designed as parts of an automatic data-processing system.
21. That interpretation was confirmed in paragraphs 16 and 17 of the judgment in Cabletron , in which the Court also made clear, in paragraph 27, that the network cards referred to in point 4 of the Annex to Regulation No 1165/95, that is to say cards for incorporation in cable-linked digital computers enabling the exchange of data over a local network without using a modem, were to be classified under heading No 8471 of the CN both before and after 1 January 1996.
30. Secondly, 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’.  Since the combined cards are designed to transfer data between a number of computers and, in order to do so, render incoming external signals comprehensible to the computer and transform outgoing signals processed by it into signals usable externally, regardless of whether the signal received or emitted is analogue or digital, the function which they perform consists of data-processing.  It follows that such cards do not perform a ‘specific function’ within the meaning of that note.
31. Thirdly, although it is true that, at the time of the facts at issue in the main proceedings, the explanatory notes to the Harmonised System of the World Customs Organisation relating to heading No 8517 expressly included modulator-demodulator apparatus amongst telecommunication apparatus for carrier-current line systems or for digital line systems, the fact remains that, according to established case-law, those explanatory notes are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force.  The content of those notes must therefore be compatible with the provisions of the CN and may not alter the scope of those provisions (see, inter alia, Intermodal Transports , paragraph 48; Case C‑445/04 Rossehl Erzkontor  [2005] ECR I‑10721, paragraph 20; and Case C‑500/04 Proxxon  [2006] ECR I‑1545, paragraph 22).