Digitalnet OOD and Others v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna.
Date: 2012-11-22
27. 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, inter alia, 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‑376/07 Kamino International Logistics  [2009] ECR I‑1167, paragraph 31; and Joined Cases C‑288/09 and C‑289/09 British Sky Broadcasting Group and Pace [2011] ECR I‑2851, paragraph 60).
28. It is apparent from an examination of the CN that subheading 8528 71 13 covers apparatus for television, 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 ( British Sky Broadcasting Group and Pace , paragraph 67).
29. It should be noted that the expressions ‘video reception’ and ‘television reception’ refer to two identical concepts ( British Sky Broadcasting Group and Pace , paragraph 68).
33. According to the Court’s case‑law, the Explanatory Notes to the CN drawn up by the Commission may be an important aid to the interpretation of the scope of the various headings but do not have legally binding force (see, inter alia, 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 British Sky Broadcasting Group and Pace , paragraph 63).
34. The content of the Explanatory Notes to the CN must accordingly be consistent with the provisions of the CN and may not alter their scope (see, inter alia, Kamino International Logistics , paragraph 48, and British Sky Broadcasting Group and Pace , paragraph 64).
35. 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, to that effect, Case C‑229/06 Sunshine Deutschland Handelsgesellschaft [2007] ECR I‑3251, paragraph 31; Kamino International Logistics , paragraphs 49 and 50; and British Sky Broadcasting Group and Pace , paragraph 65).
38. It is settled case‑law that the meaning and scope of terms for which European Union law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they form part (see to that effect, inter alia, Case C‑336/03 easyCar  [2005] ECR I‑1947, paragraph 21 and the case‑law cited; and judgment of 5 March 2009 in Case C‑556/07 Commission  v France , paragraph 50).
39. According to equally settled case‑law, even though the provisions of an agreement 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 ( British Sky Broadcasting Group and Pace , paragraph 83 and the case‑law cited).
43. In that regard, 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 mu st be capable of being assessed on the basis of the product’s objective characteristics and properties (see, inter alia, Case C‑309/98 Holz Geenen  [2000] ECR I‑1975, paragraph 15; Case C‑183/06 RUMA [2007] ECR I‑1559, paragraph 36; and British Sky Broadcasting Group and Pace , paragraph 76).
61. It should be borne in mind that, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, in particular since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (Joined Cases C‑260/00 to C‑263/00 Lohmann and Medi Bayreuth [2002] ECR I‑10045, paragraph 26; Case C‑500/04 Proxxon [2006] ECR I‑1545, paragraph 23; and Case C‑12/10 Lecson Elektromobile  [2010] ECR I‑14173, paragraph 15).
66. According to Article 78(2) of the Customs Code, after releasing the goods, the customs authorities may ‘inspect the commercial documents and data relating to the import or export operations in respect of the goods … or to subsequent commercial operations involving those goods’ and they may also inspect the goods. It follows that ex post  inspections of the declarations may be carried out without the customs authorities being required to physically inspect the goods.
67. The answer to those questions is that Article 78(2) of the Customs Code must be interpreted as meaning that ex post inspection of goods and the subsequent change in their tariff classification may be made on the basis of written documents without the customs authorities being required to physically check those goods.
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