Avis juridique important

61999J0479

European Court reports 2001 Page I-04391

Keywords

Common Customs Tariff - Tariff headings - Computer sound cards - Cards with no specific function within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature - Classification under heading 8471 of the Combined Nomenclature

Summary

Electronic circuit boards which enable automatic data-processing equipment and units thereof to process audio signals (sound cards), and which have no specific function within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature, are to be classified under heading 8471 of the Combined Nomenclature, as amended by Regulation No 1153/97 amending Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff.

(see paras 27-28 and operative part)

Parties

In Case C-479/99,

REFERENCE to the Court under Article 234 EC by the Finanzgericht Düsseldorf (Germany) for a preliminary ruling in the proceedings pending before that court between

CBA Computer Handels- und Beteiligungs GmbH, formerly VOBIS Microcomputer AG,

Hauptzollamt Aachen,

on the interpretation of headings 8471, 8473 and 8543 of the Combined Nomenclature of the Common Customs Tariff, 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 Commission Regulation (EC) No 1153/97 of 24 June 1997 (OJ 1997 L 168, p. 35), and the validity of Regulation No 1153/97 and Commission Regulation (EC) No 2086/97 of 4 November 1997 amending Annex I to Council Regulation No 2658/87 (OJ 1997 L 312, p. 1),

THE COURT (Fifth Chamber),

composed of: A. La Pergola, President of the Chamber, D.A.O. Edward (Rapporteur), P. Jann, L. Sevón and C.W.A. Timmermans, Judges,

Advocate General: A. Tizzano,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- CBA Computer Handels- und Beteiligungs GmbH, by H. Brüning-Sudhoff, Steuerberater,

- the Commission of the European Communities, by J.-C. Schieferer, acting as Agent, assisted by M. Núñez Müller, Rechtsanwalt,

having regard to the Report for the Hearing,

after hearing the oral observations of CBA Computer Handels- und Beteiligungs GmbH, represented by J. Metzner, Steuerberater, and the Commission, represented by J.-C. Schieferer, assisted by M. Núñez Müller, at the hearing on 11 January 2001,

after hearing the Opinion of the Advocate General at the sitting on 22 February 2001,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a case-by-case examination;

thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

a description of the physical characteristics of the whole project and, where relevant, of demolition works;

a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

the expected residues and emissions and the production of waste, where relevant;

the use of natural resources, in particular soil, land, water and biodiversity.

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

all forms of deliberate capture or killing of specimens of these species in the wild;

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

deliberate destruction or taking of eggs from the wild;

deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

26 It is common ground that sound cards, like the graphics cards which were at issue in Techex, are designed, first, to convert external analogue signals into digital data, enabling them to be processed by the machine, and, secondly, to convert digital data used by certain software into analogue signals. The Commission, despite objecting to classifying sound cards under heading 8471 of the Combined Nomenclature, admitted at the hearing that there is no substantial difference, either in use or in modus operandi, between the two types of card as regards their classification according to the Combined Nomenclature.

27 Sounds and images are data, irrespective of the form they may take, and the processing of either constitutes data processing. For that reason, as well as for those set out by the Advocate General in points 31 to 39 of his Opinion, the sound cards at issue in the present case, like the graphics cards at issue in Techex, have no specific function within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature, as worded at the material time for the main proceedings, and must therefore be classified under heading 8471.

28 The reply to the first question must therefore be that electronic circuit boards which enable automatic data-processing equipment and units thereof to process audio signals (sound cards) are to be classified under heading 8471 of the Combined Nomenclature, as worded in Regulation No 1153/97.

The second question

29 By its second question, the national court asks whether Regulations Nos 1153/97 and 2086/97, in so far as they provide that the sound cards at issue in the main proceedings are to be classified in heading 8543 of the Combined Nomenclature, are valid.

30 In that regard, as is apparent from the wording of subheading 8543 89 79 of the Combined Nomenclature in Regulation No 1153/97, the tariff classification in that regulation does not concern sound cards as such, but only sound cards which are part of upgrade kits for automatic data-processing machines and units thereof. Since the tariff classification of such kits is not at issue in the main proceedings, it does not seem, in the absence of any further explanation by the national court, that the validity of Regulation No 1153/97 is called in question in the present case.

31 On the other hand, Regulation No 2086/97 provides for the classification of sound cards as such. None the less, it is not disputed that that regulation entered into force after the material time for the main proceedings and that it was not given retroactive effect. Moreover, even if Regulation No 2086/97 was only intended to clarify the tariff classification of sound cards without amending its substance, as the Hauptzollamt claims, a regulation specifying the conditions for classification in a tariff heading or subheading is of a legislative nature and cannot have retroactive effect (see Case 158/78 Biegi [1979] ECR 1103, paragraph 11). Consequently, the issue of the validity of Regulation No 2086/97 is likewise not germane to the main proceedings.

32 There is therefore no need to reply to the second question.

Decision on costs

Costs

33 The 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 action, 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 (Fifth Chamber),

in answer to the questions referred to it by the Finanzgericht Düsseldorf by order of 8 December 1999, hereby rules:

Electronic circuit boards which enable automatic data-processing equipment and units thereof to process audio signals (sound cards) are to be classified under heading 8471 of the Combined Nomenclature, as amended by Commission Regulation (EC) No 1153/97 of 24 June 1997 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff.