62000J0276

Common Customs Tariff - Tariff headings - Ink-cartridge without integrated print head which can only be used in a particular type of printer - Classification under sub-heading No 3215 90 80 of the Combined Nomenclature

$$Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1734/96, must be interpreted as meaning that an ink-cartridge without integrated print head, consisting of plastic casing, foam, a metal screen, seals, tape seal, labels, ink and packing material, is to be classified, pursuant to general rule 3(b) for the interpretation of the Combined Nomenclature, under sub-heading No 3215 90 80 of the Combined Nomenclature. The element which gives the cartridge its essential character is the ink which it contains.

The fact, moreover, that the product in question can only be used, as regards both the cartridge and the ink, in a particular type of printer does not mean that it can be described as a part or accessory of a printer within the meaning of heading 8473 of the Combined Nomenclature, in so far as the cartridge plays no particular role in the actual mechanical functioning of the printer and merely enables it to fulfil its usual function.

( see paras 27, 31-32, 35, operative part )

In Case C-276/00,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) from the Hessisches Finanzgericht, Kassel (Germany), for a preliminary ruling in the proceedings pending before that court between

Turbon International GmbH, acting in its capacity as successor to Kores Nordic Deutschland GmbH,

and

Oberfinanzdirektion Koblenz,

on the interpretation of headings 3215 and 8473 of the Combined Nomenclature 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 1734/96 of 9 September 1996 (OJ 1996 L 238, p. 1),

THE COURT (Fourth Chamber),

composed of: D.A.O. Edward, acting for the President of the Chamber, A. La Pergola and C.W.A. Timmermans (Rapporteur), Judges,

Advocate General: J. Mischo,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- Turbon International GmbH, by H. Brüning-Sudhoff, Steuerberater,

- the Oberfinanzdirektion Koblenz, by Trendler, acting as Agent,

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

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 11 September 2001,

gives the following

Judgment

1 By order of 21 February 2000, received at the Court on 12 July 2000, the Hessisches Finanzgericht (Finance Court of the Land of Hessen), Kassel, referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of headings 3215 and 8473 of the Combined Nomenclature (the CN) in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1734/96 of 9 September 1996 (OJ 1996 L 238, p. 1).

2 That question arose in proceedings between Turbon International GmbH (Turbon International), established in Hattingen (Germany), and the Oberfinanzdirektion Koblenz (Germany) concerning the tariff classification of ink cartridges without an integrated print head for use in Epson Stylus Colour ink-jet printers (ESC printers).

Legislative background

The CN

3 The CN, established by Regulation No 2658/87, is intended to meet the requirements, at one and the same time, of the Common Customs Tariff and the Community's external trade statistics. It is based on a harmonised commodity description and coding system (the HS) devised by the Council for Customs Cooperation (now the World Customs Organisation) which was established by international convention concluded at Brussels on 14 June 1983 and approved on behalf of the Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4 The version of the CN applicable at the material time in the case in the main proceedings which is the version set out in Annex I to Regulation No 1734/96, included in particular:

- in Chapter 32 of Section VI, entitled Tanning or dyeing extracts; tannins and their derivatives; dyes, pigments and other colouring matter; paints and varnishes; putty and other mastics; inks, the headings:

3215 Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid:

- Printing ink:

3215 11 00 - - Black

3215 1900 - - Other

3215 90 - Other:

3215 90 10 - - Writing or drawing ink

3215 90 80 - - Other

and

- and in Chapter 84 of Section XVI, entitled Nuclear reactors, boilers, machinery and mechanical appliances, the headings:

8471 Automatic data processing machines and units therof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included:

...

8471 60 - Input or output units, whether or not containing storage units in the same housing:

8471 60 10 - - For use in civil aircraft

...

- - Other

8471 60 40 - - - Printers

8471 60 50 - - - Keyboards

8471 60 90 - - - Other

...

and

8473 Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of heading Nos 8469 to 8472:

...

8473 - Parts and accessories of the machines of heading No 8471:

8473 30 10 - - Electronic assemblies

8473 30 90 - - Other

...

5 The general rules for the interpretation of the CN (the general rules) which appear in the first part of the CN, Title I, A, provide in particular:

Classification of goods in the Combined Nomenclature shall be governed by the following principles:

1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, providing such headings or notes do not otherwise require, according to the following provisions.

2. (a) ...

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character in so far as this criterion is applicable.

(c) ...

...

5. In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:

(a) camera cases, musical instrument cases, gun cases, drawing-instrument cases, necklace cases and similar cases, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

(b) subject to the provisions of rule 5(a), packing materials (1) presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repeated use.

6 The footnote to rule 5(b) states:

The terms "packing materials" and "packing containers" mean any external or internal containers, holders, wrappings or supports other than transport devices (eg transport containers), tarpaulins, tackle or ancillary transport equipment. The term "packing containers" does not cover the containers referred to in rule 5(a).

The explanatory notes to the HS

7 Under Article 6(1) of the International Convention of 14 June 1983, a committee entitled the Harmonised System Committee composed of representatives from each of the Contracting Parties was established under the auspices of the Customs Cooperation Council. Its functions include, in particular, proposing amendments to the Convention and preparing explanantory notes, classification opinions or other advice as guides to the interpretation of the Harmonised System.

8 According to paragraph VIII of the HS explanatory note relating to general rule 3(b), the factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

9 Paragraph I of the HS explanatory note relating to general rule 5(a) states:

This Rule shall be taken to cover only those containers which:

(1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article they contain;

(2) are suitable for long-term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;

(3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;

(4) are of a kind normally sold with such articles;

(5) do not give the whole its essential character.

10 According to paragraph IV of the HS explanatory note relating to general rule 5(b), [t]his Rule governs the classification of packing materials and packing containers of a kind normally used for packing the goods to which they relate. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use, for example, certain metal drums or containers or iron or steel for compressed or liquefied gas.

11 The explanatory note of the HS relating to heading 3215 states:

This heading does not include:

(a) ...

(b) Refills for ball point fountain pens comprising the ball point and ink- reservoir (heading 96.08). On the other hand, mere ink-filled cartridges for ordinary fountain pens remain in this heading.

(c) Ink ribbons for typewriters or ink-pads (heading 96.12).

12 Finally, according to the HS explanatory note relating to heading 8473, [t]he accessories covered by this heading are interchangeable parts or devices designed to adapt a machine for a particular operation, or to perform a particular service relative to the main function of the machine, or to increase its range of operations.

The main proceedings and the national court's question

13 On 27 June 1997 Kores applied for the issue of binding tariff informations for several goods including in particular an ink-cartridge without integrated print head (Ink Jet Cartridge) for use in an ESC printer. In Kores' view the ink-cartridge belonged under CN subheading 8473 30 90.

14 It is apparent from the documents before the Court, first, that the goods in question consist of an ink cartridge (comprising a parallel-piped plastic casing of approximately 2.7 x 6.4 x 4.2 cm, foam, metal screen, seals, tape seals, and labels, with a total value of approximately DEM 4), ink (approximately 35 ml) valued at DEM 0.35 and packing materials consisting of a cardboard box inside which is a sealed grey plastic bag, and, second, that they can only be used in ESC printers, the cartridge and the ink being specially designed for that type of printer.

15 On 22 August 1997 the Oberfinanzdirektion, Frankfurt am Main (Germany), classified the goods under CN code number 3215 90 80. This decision was based on the consideration that the product to be classified in this case was the ink itself, while the ink cartridge, that is, the plastic casing, merely constituted the necessary and standard container or enclosure for the printer ink. In accordance with general rule 5(b) the cartridge was therefore classified in the CN heading relating to ink.

16 On 17 February 1998, after its objection to the above classification had been rejected, Kores brought an action before the the Hessisches Finanzgericht, Kassel. Before that court, Kores and Turbon International (which succeeded to the rights and obligations of Kores in January 1999) argued once again that the ink-cartridge should be classified under under CN subheading 8473 30 90 on the basis that, by reason of its specific characteristics, it performs an essential technical function in the printing process, so that it is comparable with an ink cartridge with an integrated print head and can be classified as part of a printer. On the other hand, they argued that the cartridge can in any case be regarded as an accessory of a printer in the sense that, in accordance with the HS explanatory notes relating to CN heading 8473, it constitutes an interchangeable part designed to adapt a machine for a particular operation.

17 In the alternative, Kores and Turbon International argued that the classification of the cartridge under CN heading 8473 can be justified on the basis of its value in relation to the goods. As the ink contained in the cartridge is considerably less valuable than the cartridge itself, it is the cartridge which lends the product as a whole its essential character within the meaning of rule 3(b)

18 Before the Hessisches Finanzgericht, the Oberfinanzdirektion Koblenz - which took over the functions of the Customs and Excise Department, Frankfurt am Main - confirmed the classification of the goods in question under CN heading 3215 on the basis that the decisive criterion for this classification is the article printing ink, a product indispensable for the functioning of the printer, rather than the cartridge in itself, which is merely a necessary container to hold a liquid product. The classification of the goods under CN heading 8473 as a part or accessory of a printer is excluded inasmuch as, first, it is generally acknowledged that only those goods which are necessary for the assembly of a machine or are obtained on dismantling the machine are regarded as parts of that machine within the meaning of note 2(b) to section XVI of the CN and, second, the ink-cartridge is not designed to adapt the printer for a particular operation.

19 The Oberfinanzdirektion Koblenz maintains that the argument based on comparing the respective values of the plastic casing and the ink contained therein in relation to the goods is irrelevant in this case since the objective characteristics of the goods to be classified themselves constitute a clear basis for tariff classification.

20 In these circumstances, the Hessiches Finanzgericht, which was uncertain as to the correct classification of the ink-cartridge in the CN especially in the light of Article 97 of the Bürgerlisches Gesetzbuch (German Civil Code) which defines accessories as ... movables which, without being components of the principal object, are intended to serve the economic purpose and are located with it in a manner consistent with this purpose ..., and binding tariff decisions from the customs authorities in France, the Netherlands and the United Kingdom, decided to stay proceedings and refer the following question to the Court:

Is a compatible ink-jet cartridge, consisting of an ink cartridge (plastic casing, cellular material, metal screen, seals, tape seal, labels), ink and packing materials, where both the ink and the ink cartridge can be used solely in an Epson Stylus Colour printer,

- to be classified under code number 3215 90 80 as a disposable, ink-filled cartridge (without integrated print head) for ink-jet printers,

or

- is that compatible ink-jet cartridge a part or accessory of a printer that is assigned to CN heading No 8471 as an essential unit of an automatic data processing machine, and therefore covered by CN heading 8473?

Findings of the Court

21 For the purposes of the answer to be given to the national court's question, it should first be observed that it is settled case-law that, in the interests of legal certainty and 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 Common Customs Tariff and of the notes to the sections or chapters (Case C-338/95 Wiener SI [1997] ECR I-6495, paragraph 10; Case C-339/98 Peacock [2000] ECR I-8947, paragraph 9, and Case C-479/99 CBA Computer [2001] ECR I-4391, paragraph 21).

22 In addition, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (see judgments in Wiener SI, cited above, paragraph 11 and Peacock, cited above, paragraph 10).

23 In this case, unlike refills for ball-point fountain pens comprising the ball point and ink-reservoir and inked ribbons for typewriters or ink-pads which are covered by CN tariff headings 9608 and 9612 respectively, it should be observed that the cartridges at issue are not explicitly covered either by the wording of the CN headings or of the notes to the CN sections and chapters.

24 However, the general rules and the HS explanatory notes relating to those rules and to tariff headings 3215 and 8473 are a useful guide to the classification of goods such as those at issue in the main proceedings.

25 It should be observed that under general rule 3(b), which specifically covers the situation in which it appears that goods have to be classified under two or more headings, mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character in so far as this criterion is applicable.

26 In that connection, it is settled case-law that in order to identify from among the materials of which a product is composed which is the one that gives it its essential character, it is necessary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it (see, to that effect, Case C 288/99 VauDe Sport [2001] ECR I-3683, paragraph 25).

27 In this case the element which gives the cartridge its essential character is the ink which it contains. The essential function of the cartridge consists in containing the ink and supplying the printer so as to enable the printer to transcribe on to paper work done with the aid of a computer.

28 That finding is not called into question by the national court's observation that the cartridge can be refilled. The fact that this attribute gives the plastic casing a longer life does not alter the cartidge's intrinsic function, which is to contain ink and supply the ESC printer.

29 It is apparent from the documents before the Court that a cartridge such as that at issue is specifically designed for, and can only be used by, a particular type of printer. In view of that fact that the cartridge includes a technically sophisticated mechanism ensuring a controlled flow of ink during the printing process, the national court wonders whether such a cartridge should not be regarded rather as part or accessory of a printer and classified under CN heading 8473.

30 In that connection, it should be observed that the word part, within the meaning of CN heading 8473, implies a whole for the operation of which the part is essential (see Peacock, cited above, paragraph 21) and this is not so in the case of the cartridge at issue in the main proceedings. While it is true that, without an ink-cartridge, a printer is not able to carry out its intended functions, the fact remains that the mechanical and electronic functioning of the printer in itself is not in any way dependent on such a cartridge. The inability of the printer, in the absence of an ink-cartridge, to transcribe on to paper the work produced with the aid of a computer is caused by lack of ink rather than a malfunctioning of the printer.

31 For those reasons an ink-cartridge such as that at issue in the main proceedings, which, in view of its characteristics as described by Turbon International in its written observations, plays no particular role in the actual mechancial functioning of the printer, cannot be regarded as part of a printer within the meaning of CN heading 8473.

32 Equally, such a cartridge cannot be classified under heading 8473 as an accessory of the printers in question. While the cartridges are interchangeable, they are not designed to adapt the printers for a particular operation, or to perform a particular service relative to their main function, or to increase their range of operations, within the meaning of the HS explanatory note relating to heading 8473. Such cartridges merely enable ESC printers to fulfil their usual function, namely, the transcription on to paper of work produced with the aid of a computer.

33 It follows from the foregoing considerations that goods such as those at issue in the main proceedings should, pursuant to general rule 3(b), be classified under heading 3215 of the Combined Nomenclature.

34 Such classification is, moreover, corroborated by the HS explanatory note relating to heading 3215 which includes mere ink-filled cartridges for ordinary fountain pens. As the Advocate General rightly points out at point 59 of his Opinion, such cartridges are to fountain pens what the cartridges at issue in the main proceedings are to ESC printers, since their function is both to hold the ink and to release a regular flow of ink necessary for the use of an instrument designed to print on paper and they have a format, which varies according to brand, such as to allow them to fit inside the pen for which they are designed.

35 Having regard to the foregoing considerations, the answer to the national court's question must be that Annex I to Regulation No 2658/87, as amended by Regulation No 1734/96, must be interpreted as meaning that an ink-cartridge without integrated print head, consisting of plastic casing, foam, a metal screen, seals, tape seal, labels, ink and packing material, which, as regards both the cartridge and the ink, can only be used in a printer with the same characteristics as ESC printers, is to be classified under CN sub-heading 3215 90 80.

Costs

36 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 proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fourth Chamber),

in answer to the question referred to it by the Hessisches Finanzgericht, Kassel, by order of 21 February 2000, hereby rules:

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 Commission Regulation (EC) No 1734/96 of 9 September 1996, must be interpreted as meaning that an ink-cartridge without integrated print head, consisting of plastic casing, foam, a metal screen, seals, tape seal, labels, ink and packing material, which, as regards both the cartridge and the ink, can only be used in a printer with the same characteristics as ink-jet Epson Stylus Colour printers, is to be classified under sub-heading No 3215 90 80 of the Combined Nomenclature.