Deutsche Nichimen GmbH v Hauptzollamt Düsseldorf (C-201/99)

Contents

Judgment of the Court (Second Chamber)5 April 2001^noteIn Case C-201/99,REFERENCE to the Court under Article 234 EC by the Finanzgericht Düsseldorf (Germany) for a preliminary ruling in the proceedings pending before that court betweenDeutsche Nichimen GmbHandHauptzollamt Düsseldorf,THE COURT (Second Chamber),composed of: V. Skouris, President of the Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges,Advocate General: EG. Jacobs,Registrar: H. von Holstein, Deputy Registrar,after considering the written observations submitted on behalf of:— Deutsche Nichimen GmbH, by H. Nehm, Rechtsanwalt,— the Commission of the European Communities, by J.C. Schieferer, acting as Agent, and M. Núñez Müller, Rechtsanwalt,having regard to the Report for the Hearing,after hearing the oral observations of Deutsche Nichimen GmbH and the Commission at the hearing on 19 September 2000,after hearing the Opinion of the Advocate General at the sitting on 9 November 2000,gives the following

Judgment

1By order of 19 May 1999, received at the Court on 26 May 1999, the Finanzgericht (Finance Court) Düsseldorf referred to the Court two questions for a preliminary ruling under Article 234 EC on the interpretation of the Combined Nomenclature (‘CN’) of the Common Customs Tariff as set out in 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 the Annexes to Commission Regulation (EEC) No 2886/89 of 2 August 1989 (OJ 1989 L 282, p. 1), Commission Regulation (EEC) No 2472/90 of 31 July 1990 (OJ 1990 L 247, p. 1) and Commission Regulation (EEC) No 2587/91 of 26 July 1991 (OJ 1991 L 259, p. 1).

2Those questions were raised in proceedings between Deutsche Nichimen GmbH (‘Deutsche Nichimen’) and the Hauptzollamt (Principal Customs Office) Düsseldorf (‘the Hauptzollamt’) concerning the CN classification of a product described as a satellite television receiver.

3According to the information provided by the court of reference, receivers of this type are devices mounted in separate housings which convert the signals received down to the frequencies of terrestrial aerials, so that the signals may be processed by any television or radio apparatus via the aerial input. They possess incorporated videophonic syntonisers, otherwise known as ‘tuners’, which allow their users to choose between several programmes or channels. At the output, the receivers do not produce a red, green and blue colour video signal but PAL (PALG or PALI) signals at a particular frequency, so that the tuner of the television or radio apparatus only has to be tuned to that frequency once in order to be able to use the satellite receiver. However, before the satellite television receivers can receive the signals of programmes broadcast by satellite, the frequencies of which lie between 4 and 20 GHz, those signals must be received by aerials, usually in the form of a reflector or a parabolic mirror, and transformed by converters. Such converters both amplify the signals received and convert the frequencies to the input frequencies of the satellite receivers, between 950 and 1750 MHz.

Legal framework

4The wording of the CN tariff headings referred to by the questions referred to the Court and of the tariff heading relied on before the court of referral do not differ in substance, as regards the answer to those questions, in the versions amended by Regulations Nos 2886/89, 2472/90 and 2587/91. In the version amended by Regulation No 2587/91, the tariff headings are worded as follows:8528 | Television receivers (including video monitors and video projectors), whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus:852810 | — Colour:...— — Other:— — — With integral tube, with a diagonal measurement of the screen:...— — — Other:85281080 | — — — — With screen— — — — Without screen:85281091 | — — — — —Video tuners85281098 | — — — — —Other... |8529 | Parts suitable for use solely or principally with the apparatus of heading Nos 8525 to 8528:852910 | — Aerials and aerial reflectors of all kinds; parts suitable for use therewith:...— — Other— — — Aerials:85291020 | ...— — — —Outside aerials for radio or television broadcast receivers85291031 | — — — — — For reception via satellite... |8543 | Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter:...854380 | — Other machines and apparatus:...85438020 | — — Aerial amplifiers85438080 | — — Other.

5The general rules for the interpretation of the CN, which are set out in Section 1, Title I, A, thereof, provide, in particular:‘Classification of goods in the Combined Nomenclature shall be governed by the following principles....4. Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin....’

6The parties are agreed that, since the entry into force of Commission Regulation (EC) No 884/94 of 20 April 1994 concerning the classification of certain goods in the Combined Nomenclature (OJ 1994 L 103, p. 10), satellite television receivers, such as those at issue in the main proceedings, are to be classified under tariff subheading 8528 10 91.

Main proceedings and questions referred to the Court

7In 1991 and 1992, Deutsche Nichimen on a number of occasions put satellite television receiving devices into free circulation. For that purpose, the devices had been classified under CN tariff subheading 85438020. The rate of customs import duty applicable to that tariff subheading was 7 %.

8By decision of 19 June 1992, the Hauptzollamt amended the tax assessments under which the goods put into free circulation during the period in question had been cleared for the public warehouse and reclassified the devices in question under tariff subheading 85281091. The rate of customs import duty applicable to that subheading was 14 %. Deutsche Nichimen lodged a complaint against that decision within the prescribed period.

9By an initial adjustment decision of 24 June 1992, the Hauptzollamt proceeded to recover customs duty of DEM 264386. By decision of 10 December 1993, that amount was increased to DEM 264836.75. Deutsche Nichimen also lodged complaints against those decisions.

10By decision of 13 December 1993, the Hauptzollamt rejected Deutsche Nichimen's complaints as unfounded.

11Deutsche Nichimen then brought an action before the Finanzgericht Düsseldorf challenging the latter decision, claiming that, having regard to the Explanatory Notes to the Harmonised Commodity Description and Coding System published by the Customs Cooperation Council (hereinafter ‘the Explanatory Notes to the Harmonised System’) and the Explanatory Notes on the CN, the devices at issue in the main proceedings came within CN tariff subheading 85438080 or, in the alternative, tariff subheading 85291031. The rate of duty applicable would have been 7 % in the former case and 7.2 % in the latter case.

12Before that court, the Hauptzollamt contended that the devices at issue in the main proceedings came within CN tariff heading 8528, on the ground that the function of a satellite television receiver is comparable to that of a videophonic signal receiver. The devices could not be classified under CN tariff heading 8529 since they were not designed to be incorporated in television receivers and did not constitute parts of an aerial installation, but received the signals on their own. Likewise, they could not be classified under CN tariff heading 8543 because of their autonomous function.

13The Finanzgericht Düsseldorf states in its order for reference that there is no need to determine the CN tariff subheading under which the devices at issue in the main proceedings must be classified, since an indication of the correct tariff heading is all that is necessary in order to resolve the dispute pending before it. Although the national court considers it possible that the devices could be classified under CN tariff heading 8528, it none the less observes that, having regard, first, to the Explanatory Notes to the Harmonised System and to the CN and, second, to the fact that Regulation No 884/94 is not applicable to the dispute before it, it is uncertain as to the correct CN classification of the devices.

14It was in those circumstances that the Finanzgericht Düsseldorf decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:1. Is the definition of television receivers in heading No 8528 of the Combined Nomenclature in the version in force from 1990 to 1992 to be interpreted as including devices such as the satellite receivers more precisely described in the grounds of this order, even though with those devices television programmes can be made visible and audible only with television receivers of domestic type?2. If Question 1 is answered in the negative: Is the definition of parts in heading No 8529 of the Combined Nomenclature or in Note 2(b) to Section XVI of the Combined Nomenclature in the version in force from 1990 to 1992 to be interpreted as including devices such as the satellite receivers more precisely described in the grounds of this order, and are those devices then to be classified under heading No 8529 of the Combined Nomenclature despite Note 2(b) to Section XVI of the Combined Nomenclature?’

Question 1

15By Question 1, the court of referral is asking essentially whether the CN must be interpreted as meaning that satellite television receivers such as those at issue in the main proceedings came within tariff heading 8528 between 1990 and 1992.

16Deutsche Nichimen proposes that the question should be answered in the negative. It maintains that it is impossible to answer the question without examining the subheadings of CN tariff heading 8528. Within that heading, only subheadings 85281091, ‘Video tuners’, and 85281098, ‘Other’, might conceivably be appropriate for the classification of the devices at issue in the main proceedings.

17As regards the first of those tariff subheadings, it is apparent, in particular, from note 3 of the Explanatory Notes to the Harmonised System, which relates to subheading 85281091, that in order to be eligible for classification as a video tuner, a device must produce ‘signals capable of being used by video recording or reproduction apparatus or by video monitors’. That specifically does not apply to the devices at issue in the main proceedings and, accordingly, they cannot come within that subheading.

18As regards the tariff heading ‘Other’, Deutsche Nichimen considers that, having regard to note 4 of the current version of the Explanatory Notes to the Harmonised System, devices that are ‘similar to video tuners’ cannot by definition be classified as video tuners. Furthermore, devices coming within subheading ‘Other’ should also produce an output signal ‘suitable for display on a video monitor’, a condition that the devices at issue in the main proceedings do not fulfil. Moreover, since pursuant to Regulation No 884/94, which was not applicable at the material time, those devices were to be classified under the tariff subheading ‘Video tuners’, they cannot come within the subheading ‘Other’.

19In order to answer Question 1, it should be recalled that it is settled case-law that, 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 (see, in particular, Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 13).

20In addition, the intended use of a product may constitute an objective criterion for classification if it is inherent in the product, and that inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties (see, in particular, Case C-309/98 Holz Geenen [2000] ECR I-1975, paragraph 15).

21In that regard, as stated in paragraph 3 of this judgment, satellite television receivers are devices designed to convert television signals previously broadcast by satellite, received by aerials and processed by converters, so that they can be treated, generally by a television receiver, in order to become visible on screen. They also allow users to choose between several programmes or channels.

22Owing to that intended use, inherent in the devices at issue in the main proceedings and linked with their objective characteristics and properties, satellite television receivers correspond to the television receivers referred to in CN tariff heading 8528, which, as is clear from the wording of the subheadings of that heading, receive signals designed to be viewed on a screen even though they do not necessarily have a screen.

23It follows that the devices at issue in the main proceedings must be classified under the same tariff heading as television receivers.

24That finding is not affected by the arguments put forward by Deutsche Nichimen, which cannot be upheld for the reasons stated by the Advocate General in points 36 to 38 and 40 of his Opinion.

25In those circumstances, the answer to Question 1 must be that the CN must be interpreted as meaning that between 1990 and 1992 satellite television receivers such as those at issue in the main proceedings were to be classified under tariff heading 8528.

Question 2

26In the light of the answer to Question 1, there is no need to answer Question 2.

Costs

27The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Second Chamber),in answer to the questions referred to it by the Finanzgericht Düsseldorf by order of 19 May 1999, hereby rules: The Combined Nomenclature of the Common Customs Tariff as set out in 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 the Annexes to Commission Regulation (EEC) No 2886/89 of 2 August 1989, Commission Regulation (EEC) No 2472/90 of 31 July 1990 and Commission Regulation (EEC) No 2587/91 of 26 July 1991, must be interpreted as meaning that between 1990 and 1992 satellite television receivers were to be classified under tariff heading 8528.

Delivered in open court in Luxembourg on 5 April 2001.