Important legal notice

61993C0035

European Court reports 1994 Page I-02655

Opinion of the Advocate-General

Mr President, Members of the Court, 1. The Finanzgericht (Finance Court) Baden-Wuerttemberg has submitted a number of questions to the Court of Justice on the interpretation of the general rules on classification in the Common Customs Tariff. Those questions arose in proceedings between the firm Develop Dr Eisbein and the Hauptzollamt (Principal Customs Office) Stuttgart-West. The case concerns the point whether kits for complete photocopiers consisting of 200 parts are to be classified under the tariff as "finished articles" or as "parts".

There is on the other hand a subdivision in the Nomenclature of Goods for External Trade Statistics of the Community and Statistics of Trade between Member States (NIMEXE), where the code corresponding to subheading 90.10A of the Common Customs Tariff in the years in question (3) was subdivided as follows: "90.10-22 Apparatus" and "90.10-28 Parts and Accessories".

4. Develop Eisbein is a firm in Germany which produces photocopiers. It is apparent from the order for reference that from 1 November 1985 until 30 April 1987 it imported containers from Japan "with kits containing approximately 200 individual parts of (complete) photocopiers with optical systems". On the basis of Develop Eisbein' s customs declaration, the Hauptzollamt Stuttgart-West classified the goods under subheading 90.10A of the Common Customs Tariff, corresponding to NIMEXE code 90.10-28, and cleared the goods into free circulation as parts of photocopiers.

Following an inspection, however, that classification was amended in so far as the Hauptzollamt considered the goods to be "unassembled" photocopiers which were properly to be classified under subheading 90.10A of the Common Customs Tariff, corresponding to NIMEXE code 90.10-22 (Apparatus). As a result there was a demand for anti-dumping duty of some DM 3 million.

"Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as imported, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this Rule), imported unassembled or disassembled". (5)

7. The Hauptzollamt maintained its view whereupon Develop Eisbein brought proceedings before the Finanzgericht Baden-Wuerttemberg.

8. The Finanzgericht inspected Develop Eisbein' s assembly plant and commissioned an expert' s report. It is apparent from the file on the case that in August 1992 the expert and the Finanzgericht' s Judge-Rapporteur observed the assembly of a similar photocopier. The Finanzgericht inclines to the view that the assembly of the machines involves the application of skilled techniques and that the operations cannot be described as simple. In particular it points out that the technically advanced adjustment, measuring and testing procedures must be regarded as being part of the assembly process in so far as those processes must be carried out before the subsequent step in the assembly can be undertaken.

10. The Finanzgericht is inclined to consider that the first of those interpretations of the tariff rule is the right one. It points out that the starting point for the Hauptzollamt' s view is that the assembly is fundamentally a "simple assembly operation" so long as further processing of the parts is not required. The court does not share the Hauptzollamt' s view that the tariff rule does not exclude technically complicated assembly methods. But it held that a question should be referred for a preliminary ruling on the matter since that view, which is also put forward in the legal literature, cannot be regarded as clearly wrong.

11. It is appropriate to state first that Develop Eisbein and the Commission, which are the only ones to have submitted observations on the case, agree that the third possible interpretation referred to in the question ° the large number of individual components ° cannot constitute the applicable classification criterion. It is plain from the order for reference that the Finanzgericht included that possible interpretation because it is apparent from a declaration from an English lawyer, submitted by Develop Eisbein, that in cases such as this the United Kingdom customs authorities apply that criterion.

It is clear from the order for reference that the Finanzgericht included that possible interpretation because it is apparent from a declaration from an English lawyer, submitted by Develop Eisbein, that in cases such as this the United Kingdom customs authorities apply that criterion. I consider it plain that the number of individual components cannot be the sole conclusive criterion for tariff classification. There is no basis for that either in the wording of the tariff rule or the explanatory notes of the Customs Cooperation Council. But if the decisive criterion should prove to be whether the assembly method applied is simple or complex, the number of individual components may be of some significance.

12. There can hardly be any doubt that the correct interpretation of the classification provision is either that put forward by the Commission or that put forward by Develop Eisbein.

13. The Commission considers that the tariff rule should be interpreted as meaning that goods are to be regarded as being presented unassembled where all the parts of the finished product are presented to the customs at the same time. In the Commission' s view, therefore, it is irrelevant how the assembly is carried out or how complicated the assembly method is.

14. It is not altogether easy to determine which of those interpretations is the right one. The difficulties stem, as will become apparent hereinafter, in particular from the question of the significance of the explanatory note of the Customs Cooperation Council and the difficulty of determining the object of the relevant tariff rule.

15. It may be expedient to point out first that I consider that it would be wrong in interpreting the tariff rule to take account of the particular circumstances which have made the interpretation necessary in this case. In the light of the order for reference there can hardly be any doubt that Develop Eisbein (8) must pay anti-dumping duty if the Commission' s interpretation is upheld but will not have to pay any duty if Develop Eisbein' s interpretation is accepted.

There has been nothing in this case to show that the tariff rule was introduced in order to limit the risk of circumvention of the Community rules on the anti-dumping duty. The interpretation given by the Court will be conclusive for the application of the provision in connection with the general problems arising with the classification of products in the Common Customs Tariff and the starting point for that interpretation must be the wording of the provision seen in the light of its structure and purpose and taking account of any explanatory notes.

In essence the Commission' s view is therefore that the provision must apply if all the individual components of an article are presented to customs at the same time (regardless of whether there are two or 2 000 individual components). There is nothing in the provision regarding the method of assembly and therefore the question whether the assembly process is simple or complicated cannot be taken into account.

17. The Commission' s arguments do undoubtedly have some force. If components are presented in the form of a kit for the purposes of assembly into a finished article, it is on the face of it logical to assume that they represent a non-assembled article within the meaning of the tariff rule. The despatcher designed and produced the parts with a view to creating a unit; it is that unit which the recipient wants; the dispatcher provides the necessary guidance for assembly in the form of instruction diagrams, manuals, etc.; the kit contains all the necessary components; actual manufacture of individual components is not envisaged.

18. The Commission has further pointed out that the Court has consistently held that having regard to legal certainty and the possibility of review, classification should as far as possible be on the basis of objective characteristics and qualities of goods and that reference may be made to the methods of production only where there is particular justification therefor. (11) At first sight it would appear to be in line with that case-law for articles which are presented in kit form to be classified as the finished article to which the kit relates, without it being necessary for the customs authorities to assess the complexity of the assembly method.

In those circumstances it does not seem reasonable to interpret the provision narrowly. (14) This also suggests that the interpretation advocated by the Commission is the right one.

As mentioned above, that note states that "articles presented unassembled or disassembled" means articles "the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolts, etc.) or by rivetting or welding, for example, provided only simple assembly operations are involved". It is that explanatory note which is the main argument in support of Develop Eisbein' s interpretation and which also forms the basis for the Finanzgericht' s view that it is most appropriate to interpret the tariff rule as meaning that reference should be made to whether the method of assembly is simple or complex.

21. Against that the Commission contends first that it is apparent from the Court' s case-law that the explanatory notes are not binding for the purposes of interpretation and that it is necessary to examine whether they are in accordance with the actual provisions of the Common Customs Tariff. Secondly the Commission states that the object of the explanatory note is to make it clear that the tariff rule is not rendered inapplicable by insignificant alterations to the substance of the components which result from simple assembly processes but that the provision does not apply if those components must be subject to comprehensive processing before assembly.

22. On that basis it is first necessary to decide whether any significance at all is to be attached to the explanatory note. It is clear from the case-law of the Court that reference must be made to the explanatory notes of the Customs Cooperation Council in interpreting the Community' s customs tariff. But the Court has also held that they must not be taken into account if they are incompatible with the wording of the heading concerned or go manifestly beyond the discretion conferred on the Customs Cooperation Council. (15) But I consider that notwithstanding what has just been said regarding the most appropriate construction of the provision, it is not possible to hold that its wording is so clear that the explanatory note is to be regarded as incompatible with it.

23. The key word in the tariff rule is "unassembled". The Court has held: "In ordinary language, the concept of assembly is taken to mean the operation whereby the components (of a mechanism, a device or a complex object) are assembled in order to render it serviceable or to make it function". (16) It is not possible to hold, without more, that there is no need to clarify the requirements that must be met by a given process for it to be the relevant link between the non-assembled parts and the finished article.

It may in any event be noted that the members of the Customs Cooperation Council were agreed that it was appropriate to draw up an explanatory note in order to facilitate the application of the tariff rule and thus to ensure that it was applied in a uniform manner. There has been nothing to suggest that the EC institutions or Member States considered it necessary to object to the existence of that explanatory note. Accordingly the explanatory note should be applied in order to determine the significance of the tariff rule.

24. It is therefore necessary to decide how the explanatory note is to be construed. As mentioned above the Commission seeks to interpret it in such a way that it has a content which is consistent with the Commission' s interpretation of the tariff rule. The Commission is interpreting the explanatory note on the basis of the rule which that note is intended to interpret. The result obtained by the Commission is that the explanatory note gives the tariff rule a very broad scope, namely so as to embrace to some extent also assembly of components even if the components are subject to processing.

25. I do not believe that the explanatory note can be understood in the manner argued for by the Commission. It uses expressions which show that account is taken of the nature of the actual method of assembly and not whether or not the components are processed. Expressions are used like "to be assembled by means of simple fixing devices", (17) and it is stressed that one condition is that "only simple assembly operations are involved". (18)

26.Support is also to be found in the case-law of the Court for opting for the interpretation of the explanatory note which Develop Eisbein and the Finanzgericht consider is the right one, namely that application of the tariff rule is precluded if assembly necessitates the use of complicated assembly methods.

27.The Court referred to the explanatory note in its judgments in Osram (19) and in the IFF case. (20) In paragraph 7 of the judgment in Osram the Court held:

"Account should further be taken of the Explanatory Note to the Brussels Nomenclature relating to this provision, according to which a disassembled article is any article 'the components of which are to be assembled either by means of simple fixing devices (...) or by rivetting or welding, for example, provided that only simple assembly operations are involved' ;

it is for the national court to decide whether the welding of lenses to the reflectors in question in fact fulfils these requirements".

28.I do not believe that the other arguments set out in the observations can lead to any other result.

29.The Commission has disputed that it should be of any significance for the interpretation of the provision that in certain circumstances, for example in the event of any differences in the customs burden for finished articles and parts for the production of finished articles, it might be appropriate to give some protection to undertakings in the Member States which assemble imported components and thus give them added value.

30.Develop Eisbein has referred to paragraph V of the Customs Cooperation Council' s explanatory notes on the second part of Rule 2(a) which states inter alia that when goods are presented disassembled, it is usually for reasons such as requirements or convenience of packing, handling or transport.

31.Develop Eisbein claims that those words show that the tariff rule is not intended to cover situations where the import is made with a view to the processing of individual components. It would seem that there is some force in that argument but it is not conclusive.

31.The judgment of the Court in Case 26/88 Brother International GmbH (21) is relevant to a decision by the Court on the question referred to it by the Finanzgericht for a number of reasons.

32.In Brother the Court interpreted Article 5 of Council Regulation No 802/68 of 27 June 1968 on the common definition of the concept of origins of goods. Article 5 of that regulation provides: "a product in the production of which two or more countries were concerned shall be regarded as originating in the country in which the last substantial process or operation that is economically justified was performed, having been carried out in an undertaking equipped for the purpose, and resulting in the manufacture of a new product or representing an important stage of manufacture".

33.The Court was asked to rule to what extent assembly processes can be regarded as substantial processes or operations. In paragraph 17 of its judgment the Court held:

"' Simple assembly operations' means operations which do not require staff with special qualifications for the work in question or sophisticated tools or specially equipped factories for the purposes of assembly. Such operations cannot be held to be such as to contribute to the essential characteristics or properties of the goods in question."

34.33. Develop Eisbein relies on that judgment in support of its view as to the answer to be given to the Finanzgericht' s first question and states that there are grounds for also applying the criteria set out in Brother in the present case.

34.The Finanzgericht' s second and third questions also take the judgment in Brother as their starting point. In its second question the Finanzgericht asks, in the event that the answer to Question 1 is negative, that is to say if none of the three criteria mentioned is applicable, whether the tariff provision is to "be interpreted as meaning that an article is deemed to be presented unassembled where the assembly of its individual parts, supplied together, does not require staff with special qualifications for the work in question or sophisticated tools or specially equipped factories for the purposes of assembly".

35.In its third question the Finanzgericht asks whether, in the event that Question 1(a) is answered in the affirmative, the criteria mentioned in Question 2 may be used in addition.

37.36. It is appropriate to set out the comments made by the Finanzgericht on this issue in its order for reference. It states: "the tariff classification, on the one hand, and the determination of origin, on the other, serve different purposes. Essentially the rules conferring origin serve the purpose of determining the country in which the last substantial process or operation took place (country of origin) ... . Rule 2(a) seeks to simplify tariff classification of a large number of individual components of an article supplied simultaneously; the 'simple assembly operations' criterion results in the application of a single tariff heading for all individual components. This divergence in the objectives pursued can, however, but need not, entail the consequence that the concept of 'simple assembly operations' as applied by the Court of Justice of the European Communities in regard to the rules on origin may not have the same substantive meaning as the same term in regard to tariff classification. Those are not legal concepts whose content is influenced by the objective pursued by the relevant rules but they are in each case purely factual concepts. Their components 'simple' and 'assembly' are not predetermined in accordance with their objective, but both in the explanatory notes of the Customs Cooperation Council on Rule 2(a) and in the judgment of the Court are explicitly interpreted in accordance with general linguistic usage. This is a reason for drawing on at any rate paragraph 17 of the judgment of the Court in the interpretation of the second sentence of Rule 2(a)".

38.37. It must in my view be presumed that the objects of the rules on origin and those of the tariff rule at issue here are different. No conclusive arguments may therefore be drawn from the judgment in Brother in order to determine whether the interpretation argued for by the Commission or that argued for by Develop Eisbein is correct.

39.However, if the interpretation put forward by Develop Eisbein is the right one ° which, as mentioned above, I believe to be the case in the light of the content of the explanatory note ° there are strong grounds for holding that in determining whether complex assembly methods are involved, account is also to be taken of the factors referred to in the judgment in Brother.

Conclusion

40.38. I therefore propose that the Court give the following answer to the questions referred to it:

The second sentence of Rule 2(a) is to be interpreted as meaning that an article is presented unassembled if the technical means which must be applied in assembling the components do not necessitate a complex method of assembly. In determining whether a simple or complex assembly method is involved, account may be taken inter alia of whether the assembly of the components requires staff with special qualifications for the work in question, sophisticated tools or specially equipped factories for the purposes of assembly.

(*) Original language: Danish.

(1) - See Commission Regulation No 2640/86, OJ 1986 L 239, p. 5, and Council Regulation No 535/87, OJ 1987 L 54, p. 12.

(2) - The versions in question are set out in Council Regulation No 3400/84, OJ 1984 L 320, p. 1, Council Regulation No 3331/85, OJ 1985 L 331, p. 1, and Council Regulation No 3618/86, OJ 1986 L 345, p. 1.

(3) - The versions in question are set out in Commission Regulation No 3529/84, OJ 1984 L 337, p. 1, Commission Regulation No 3631/85, OJ 1985 L 353, p. 1 and Commission Regulation No 3840/86, OJ 1986 L 368, p. 1.

(4) - See Part I, Section I, A of the Common Customs Tariff. According to the information before the Court that provision was introduced by Council Regulation (EEC) No 1/72 of 20 December 1971 (Journal Officiel 1972 L 1, p. 1).

(5) - The German version refers only to the concept of zerlegt which covers the terms disassembled or unassembled in the English version, adskilt eller ikke samlet in the Danish version and démonté ou non monté in the French version.

(6) - The Customs Cooperation Council was set up under the Brussels Convention of 15 September 1950 on Nomenclature for the Classification of Goods in Customs Tariffs and has the task of ensuring the uniform interpretation and application of the Convention, in particular as regards the application of the nomenclature.

(7) - Originally paragraph VI, now paragraph VII, of the Explanatory Notes to the General Rules on Classification.

(8) - Develop Eisbein was in fact taken over in May 1986 by the Japanese company Minolta (see recital 74 in the preamble to Council Regulation No 535/87). That information is confirmed in the documents in the main proceedings.

The background to the decision taken by the Commission and the Council that the anti-dumping duty should apply only to finished articles and not to components is apparent inter alia from recital 97 in the preamble to Council Regulation No 535/87 and recital 101 in the preamble to Commission Regulation No 2640/86. They state that a large proportion of European manufacturers produce photocopiers from Japanese components and that it is not reasonable to exclude products with Japanese components from the benefits of anti-dumping measures merely because those goods may have a relatively low added value in the Community.

If in specific situations a danger arises of evasion of anti-dumping rules, that may be countered by specific provisions in the relevant anti-dumping regulations, like those which have in fact been adopted in connection with the anti-dumping duty in question here (see Council Regulation No 1761/87 of 22 June 1987 amending Regulation No 2176/84 on protection against dumped or subsidized imports from countries not members of the European Economic Community ° OJ 1987 L 167, p. 9). The following explanation of the background to and content of that regulation is given in its preamble:

Experience gained from the implementation of Regulation (EEC) No 2176/84 has shown that assembly in the Community of products whose importation in a finished state is subject to anti-dumping duty may give rise to certain difficulties;

° where assembly or production is carried out by a party which is related or associated to any of the manufacturers whose exports of the like product are subject to an anti-dumping duty, and

° where the value of the parts or materials used in the assembly or production operation and originating in the country of origin of the product subject to an anti-dumping duty exceeds the value of all other parts or materials used,

such assembly or production is considered likely to lead to circumvention of the anti-dumping duty;

(9) - See the judgment in Case 183/73 Osram [1974] ECR 477.

(10) - See the judgment in Case 295/81 IFF [1982] ECR 3239.

(11) - See for example Case C-338/90 Hamlin [1992] ECR I-2333, paragraph 8.

(12) - The tariff rule was inserted in the Common Customs Tariff with effect from 1 January 1972 as a result of a recommendation adopted on 9 June 1970 by the Customs Cooperation Council which was approved by the Community Member States by a decision of the Council of 21 June 1971 (Journal Officiel 1971 L 137, p. 10).

(13) - See the judgment in Case 165/78 IMCO [1979] ECR 1837 in which the Court held:

With regard to Questions 1 and 2, tariff heading 98.03 covers on the one hand complete articles such as fountain-pens and stylograph pens, and, on the other, parts and fittings . It is clear from the general plan of that heading and from the very concept of parts and fittings that that tariff category implies the existence, even if possibly only in the future, of a complete article of which such pieces are fittings or parts. It follows that, given the existence of the constituent parts, disassembled or not yet assembled, of a complete article, such parts cannot be classified as parts and fittings , within the meaning of subheading 98.03 C II, in respect of the complete article of which they form the totality of the components.

The reply to the first two questions submitted by the national court must therefore be that General Rule 2(a) for the Interpretation of the Nomenclature of the Common Customs Tariff covers articles not yet assembled as well as articles which have been disassembled and to the extent to which the parts not yet assembled allow of the assembly of a complete article they are covered by the provisions governing that article even though the Common Customs Tariff contains a specific heading for parts and fittings (paragraphs 7 and 8).

(14) - Develop Eisbein has claimed that the tariff rule should be interpreted restrictively in so far as it represents a derogation from an alleged general rule that only finished articles are covered by the individual headings of the customs tariff. I have some doubt as to whether that view is correct. The tariff rule specifies in general terms what is covered by headings of the customs tariff. It is inappropriate to describe it as a derogation from a rule of general application. It should be interpreted on the basis of the principles of interpretation referred to above.

(15) - See Case 38/75 Nederlandse Spoorwegen [1975] ECR 1439, paragraphs 24 and 25, Case C-233/88 Kolk [1990] ECR I-265, paragraphs 9 and 19, and Case 200/84 Daiber [1985] ECR 3363, paragraph 14.

(16) - Case 295/81 IFF [1982] ECR 3239.

(17) - In the Danish, samles ved hjaelp af simple samleanordninger , in the French version être assemblés ... à l' aide de moyens simples and in the German translation durch einfache Hilfsmittel .

(18) - In the Danish, samlingen kun kraever enkle arbejdsfunktioner , in the French version qu' il s' agisse bien de simples opérations de montage and in the German translation wenn es sich dabei tatsaechlich um einfaches Zusammensetzen handelt .

(19) - Case 183/73 Osram [1974] ECR 477.

(20) - Case 295/81 IFF [1982] ECR 3239; the Court held: that interpretation is moreover confirmed by paragraph VI of the Explanatory Notes to the Customs Cooperation Council Nomenclature, according to which articles whose various components are intended to be assembled either by simple means (nuts, bolts and the like) or, for example, by rivetting or welding, must be regarded as unassembled or disassembled . In his Opinion on that case Advocate General Sir Gordon Slynn cited the explanatory note and stated: Whether, as I think, the reference to simple assembly operations refers to the application of simple fixing devices and to rivetting and welding, or only to the rivetting and welding, it seems to me that the essential idea is clear. What is required is a simple mechanical means of fitting together .

(21) - Case 26/88 Brother International [1989] ECR 4253.