Joined Cases C‑320/11, C‑330/11, C‑382/11 and C‑383/11

Digitalnet OOD and Others

v

Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

(Reference for a preliminary ruling from the Administrativen sad – Varna)

‛Common Customs Tariff — Tariff classification — Combined Nomenclature — Apparatus capable of receiving television signals and incorporating a modem for gaining access to the internet and having a function of interactive information exchange’

Summary — Judgment of the Court (Sixth Chamber), 22 November 2012

1. Customs union — Common Customs Tariff — Tariff headings — Apparatus capable of receiving television signals and incorporating a modem for gaining access to the internet and having a function of interactive information exchange — Classification under subheading 8528 71 13 of the combined nomenclature — Criteria — Concept of a modem for gaining access to the internet

   (Council Regulation No 2658/87, as amended by Regulations Nos 1214/2007, 1031/2008 and 948/2009, Annex I)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Classification of goods under the tariff headings of the Common Customs Tariff

   (Art. 267 TFEU)

3. Customs union — Customs declarations — Ex post inspection — Change to the tariff classification — Change made on the basis of written documents — Obligation to physically check the goods — No obligation to physically check the goods

   (Council Regulation No 2913/92, Art. 78(2))

1.  The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended, respectively, by Regulations Nos 1214/2007, 1031/2008 and 948/2009 must be interpreted as meaning that, for the purposes of classification under subheading 8528 71 13, apparatus must satisfy two conditions: it must be able to receive television signals and have a modem for gaining access to the internet. In the absence of one or other of those functions, that apparatus must be classified under subheading 8528 71 19.

   Moreover, for the purposes of classification of such apparatus under subheading 8528 71 13, a modem for gaining access to the internet is a device which, alone and without the intervention of any other apparatus or mechanism, is able to access the internet and to ensure interactivity.

   The intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties.

   Therefore, by excluding from the concept of a ‘modem’ devices which fulfil similar functions to a modem because of technical considerations, whereas only the objective of the capacity for gaining access to the internet is relevant for the purpose of classification, the Explanatory Notes of 7 May 2008 regarding subheading 8528 71 13 have restricted the meaning of that term. Those notes therefore contradict the combined nomenclature on that point and must be disregarded.

   (see paras 30, 43, 45, 48, 59, operative parts 1, 2)

2.  See the text of the decision.

   (see point 61)

3.  Article 78(2) of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that ex post inspection of goods and the subsequent change in their tariff classification may be made on the basis of written documents without the customs authorities being required to physically check those goods.

   (see para. 67, operative part 3)

Joined Cases C‑320/11, C‑330/11, C‑382/11 and C‑383/11

Digitalnet OOD and Others

v

Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

(Reference for a preliminary ruling from the Administrativen sad – Varna)

‛Common Customs Tariff — Tariff classification — Combined Nomenclature — Apparatus capable of receiving television signals and incorporating a modem for gaining access to the internet and having a function of interactive information exchange’

Summary — Judgment of the Court (Sixth Chamber), 22 November 2012

1. Customs union — Common Customs Tariff — Tariff headings — Apparatus capable of receiving television signals and incorporating a modem for gaining access to the internet and having a function of interactive information exchange — Classification under subheading 8528 71 13 of the combined nomenclature — Criteria — Concept of a modem for gaining access to the internet

   (Council Regulation No 2658/87, as amended by Regulations Nos 1214/2007, 1031/2008 and 948/2009, Annex I)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Classification of goods under the tariff headings of the Common Customs Tariff

   (Art. 267 TFEU)

3. Customs union — Customs declarations — Ex post inspection — Change to the tariff classification — Change made on the basis of written documents — Obligation to physically check the goods — No obligation to physically check the goods

   (Council Regulation No 2913/92, Art. 78(2))

1.  The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended, respectively, by Regulations Nos 1214/2007, 1031/2008 and 948/2009 must be interpreted as meaning that, for the purposes of classification under subheading 8528 71 13, apparatus must satisfy two conditions: it must be able to receive television signals and have a modem for gaining access to the internet. In the absence of one or other of those functions, that apparatus must be classified under subheading 8528 71 19.

   Moreover, for the purposes of classification of such apparatus under subheading 8528 71 13, a modem for gaining access to the internet is a device which, alone and without the intervention of any other apparatus or mechanism, is able to access the internet and to ensure interactivity.

   The intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties.

   Therefore, by excluding from the concept of a ‘modem’ devices which fulfil similar functions to a modem because of technical considerations, whereas only the objective of the capacity for gaining access to the internet is relevant for the purpose of classification, the Explanatory Notes of 7 May 2008 regarding subheading 8528 71 13 have restricted the meaning of that term. Those notes therefore contradict the combined nomenclature on that point and must be disregarded.

   (see paras 30, 43, 45, 48, 59, operative parts 1, 2)

2.  See the text of the decision.

   (see point 61)

3.  Article 78(2) of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that ex post inspection of goods and the subsequent change in their tariff classification may be made on the basis of written documents without the customs authorities being required to physically check those goods.

   (see para. 67, operative part 3)