86The applicant disputes all the arguments put forward by the defendant to demonstrate that HSEN(b) to heading 9504 is not applicable to this case. First, it contends that the defendant has not replied to the substantive arguments advanced by it in that connection, namely that freely-programmable data-processing machines cannot be classified according to the types of data files which are processed by their CPU. Second, it argues that its position on this point is confirmed by the drafting history of HSEN(b) to heading 9504 because it is apparent from the original version of the HSEN that heading 9504 is intended only to cover apparatuses dedicated exclusively to video games, for example, apparatuses which are able only to run dedicated video game programs and which are thus not freely programmable. According to the applicant, the background documents relating to the adoption of this explanatory note clearly show that it was intended to ensure that freely-programmable apparatuses are not classified as video game machines. Third, the applicant contends that the fact that the PlayStation®2 did not exist at the time when HSEN(b) to heading 9504 was adopted is irrelevant because the defendant must apply the law as it stands at the moment and cannot invoke unforeseen technological developments in order to exclude certain products from a heading. On the contrary, according to the applicant, there is case-law to the effect that if technical developments in the industrial sector in question justify the drawing-up of a new customs classification, it is for the Community institutions to take account of it by amending the Common Customs Tariff. Failing such amendment, the interpretation of the tariff cannot be adapted to changing processes (Case 122/80 Analog Devices [1981] ECR 2781; Case 234/87 Casio Computer [1989] ECR 63; and Case C-67/95 Rank Xerox [1997] ECR I-5401). Thus, according to the applicant, HSEN(b) remains valid as long as it has not been amended or repealed (Case C-120/90 Post [1991] ECR I-2391, paragraphs 22 and 23). Fourth, the applicant submits that the information supplied by the defendant concerning the discussions within the Harmonised System Committee is misleading for the Court and in fact proves that there are several misunderstandings about certain features of the PlayS-tation®2. It claims in particular that, contrary to what is indicated in the decision of 28 November 2001 of the Harmonised System Committee supplied by the defendant, the PlayStation®2 can easily be connected to an ADP monitor (and not just to a television receiver) and its CPU can run programs written in BASIC and LINUX, which are widely-used programming languages. Furthermore, according to the applicant, the decision of 28 November 2001 must be viewed in its proper context, that is, one in which the defendant, having sent a copy of the contested regulation to the Harmonised System Committee, put forward the argument that the PlayStation®2 should be classified under heading 9504 and in which there had not yet been informed discussion among all delegates on the basis of a complete set of data. Lastly, the applicant states that the defendant has not clarified why HSEN(b) to heading 9504 should not be regarded as persuasive. It submits that the mere fact that HSENs are not legally binding is not conclusive because it is established case-law that the HSENs, although not legally binding, are important tools for the interpretation of the Combined Nomenclature and may only be set aside under precisely determined circumstances.
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