61992J0108

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Common Customs Tariff ° Tariff headings ° Thermorecorder which converts measurements already carried out by other instruments ° Classification under headings 9030 and 9030 81 90 of the Combined Nomenclature ° Exclusion

The Combined Nomenclature should be interpreted as meaning that a thermorecorder which picks up electrical input signals corresponding to values measured by other pieces of apparatus, converts them by means of a analogue/digital converter, renders them visible and records them on thermal paper, does not fall within heading 9030, or, more specifically, subheading 9030 81 90. Only apparatus whose very purpose is to carry out measurements of or checks on electrical quantities can be regarded as apparatus for measuring or checking electrical quantities.

In Case C-108/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof for a preliminary ruling in the proceedings pending before that court between

Astro-Med GmbH

and

Oberfinanzdirektion Berlin,

on the interpretation of subheading 9030 81 90 of the Common Customs Tariff, 1990 Combined Nomenclature,

THE COURT (Third Chamber),

composed of: M. Zuleeg, President of the Chamber, J.C. Moitinho de Almeida and F. Grévisse, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Administrator,

after considering the written observations submitted on behalf of:

° Astro-Med, by Dirk Krueger, Rechtsanwalt of Frankfurt am Main,

° the Commission of the European Communities, by Angela Bardenhewer, of its Legal Service, acting as Agent, assisted by Hans-Juergen Rabe, Rechtsanwalt of Hamburg,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 10 June 1993,

gives the following

Judgment

1 By order of 21 January 1992, received at the Court on 2 April 1992, the Bundesfinanzhof (Federal Finance Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of subheading 9030 81 90 of the Common Customs Tariff, 1990 Combined Nomenclature.

2 The question was raised in proceedings between Astro-Med GmbH ("Astro-Med") and the Oberfinanzdirektion (Principal Revenue Office) Berlin concerning the tariff classification of a "Thermoschreiber" (thermorecorder).

3 According to the official notice of tariff classification issued by the Oberfinanzdirektion, this particular piece of apparatus (casing with inter alia an analogue/digital converter) converts electrical input signals, records them as a curve and serves for the display and recording of measured values. It was considered to be (other) "apparatus for measuring electrical quantities with recording device" and was classified under subheading 9030 81 90 of the Combined Nomenclature.

4 The 1990 Combined Nomenclature was laid down in Commission Regulation (EEC) No 2886/89 of 2 August 1989 amending Annex I of the Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1989 L 282, p. 1). Heading 9030 of this Nomenclature is as follows:

"Oscilloscopes, spectrum analysers and other instruments and apparatus for measuring or checking electrical quantities; instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionizing radiations:

° Other instruments and apparatus:

9030 81 ° ° With a recording device:

9030 81 10 ° ° ° For use in civil aircraft

9030 81 90 ° ° ° Other".

5 Astro-Med objected to this classification on the ground that the apparatus in question does not carry out measurements within the meaning of heading 9030 and that it merely renders visible quantities which have already been measured. According to Astro-Med, the thermorecorder should be classified under heading 8479 covering "machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter".

6 The dispute was brought before the Bundesfinanzhof which referred the following question to the Court for a preliminary ruling:

"Is the Common Customs Tariff (1990 Combined Nomenclature) to be interpreted as meaning that a 'Thermoschreiber' (thermorecorder) such as described in the grounds, which picks up electrical input signals corresponding to certain measured values of non-electrical quantities, converts them by means of an analogue/digital converter (value adjustment), renders them visible and records them on thermal paper, is to be classified as (other) 'apparatus for measuring electrical quantities' under subheading 9030 81 90?"

7 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the facts, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8 In Case C-218/89 Shimadzu Europa v Oberfinanzdirektion Berlin [1990] ECR I-4391, the Court stated that, apart from instruments and apparatus for measuring or detecting radiations, heading 9030 of the Combined Nomenclature only covers, according to its very wording, instruments and apparatus for measuring or checking electrical quantities. In the same judgment, the Court ruled that the content of that heading should be interpreted by reference to the purpose of the apparatus in question: only apparatus whose very purpose is to carry out measurements of or checks on electrical quantities can be regarded as apparatus for measuring or checking such quantities.

9 According to the information supplied by the national court, a thermorecorder receives from other instruments electrical input signals, which correspond to certain measured values, which it converts by means of an analogue/digital converter in order to record them as a curve on thermal paper. Although this piece of apparatus uses electrical signals, it is not specifically intended to carry out measurements of electrical quantities itself but to convert or adjust measurements which have already been made by other instruments in order to render them visible or to display them.

10 However, in the order for reference the Bundesfinanzhof expresses doubt by reason of the similarity which may exist between this piece of apparatus and certain oscillographs mentioned, by way of example, in the Explanatory Notes to the Combined Nomenclature on heading 9030 and subheading 9030 81 90, under the description of oscillographs or visible or UV radiation recorders and also double-wire oscillographs.

11 A thermorecorder cannot properly be compared with such apparatus. According to the details in the Explanatory Notes, those pieces of apparatus record electrical quantities as measurements on light sensitive paper. But, as Astro-Med and the Commission rightly point out, it appears from the same details that, unlike the piece of apparatus in issue, those do not work in conjunction with other instruments of measurement, but carry out measurements of electrical quantities themselves which they display immediately.

12 Accordingly the reply to the national court' s question is that the Combined Nomenclature must be interpreted as meaning that a thermorecorder which picks up electrical input signals corresponding to values measured by other pieces of apparatus, converts them by means of an analogue/digital converter, renders them visible and records them on thermal paper, does not fall within heading 9030 or, more specifically, subheading 9030 81 90.

Costs

13 The costs incurred by the Commission of the European Communities, 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 (Third Chamber),

in answer to the question referred to it by the Bundesfinanzhof, by order of 21 January 1992, hereby rules:

The Combined Nomenclature must be interpreted as meaning that a thermorecorder which picks up electrical input signals corresponding to values measured by other pieces of apparatus, converts them by means of an analogue/digital converter, renders them visible and records them on thermal paper, does not fall within heading 9030 or, more specifically, subheading 9030 81 90.