Report of the Judge-Rapporteur in Case C-108/92

I — Relevant Community provisions

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

Chapter 90 of Section XVIII of the Nomenclature describes heading 9030 as covering 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'. Within this heading, which includes a number of specified instruments and pieces of apparatus, is subheading 90308190 which covers ‘other’ (unspecified) instruments and apparatus, which have a recording device and which are not intended for use in civil aircraft.

Moreover, Chapter 84 of Section XVI of the Combined Nomenclature includes heading 8479 which covers ‘machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter (84)’. Subheading 84798980 covers machines and appliances ‘other’ than those mentioned in preceding subheadings.

II — Facts and Procedure

1. On 9 May 1990 the Oberfinanzdirektion Berlin issued Astro-Med GmbH (‘Astro-Med’) with an official notice of a tariff classification under subheading 90308190 for a thermorecorder of a particular kind (casing with inter alia an analogue/digital converter), described as a piece of apparatus which converts electrical input signals, records them as a curve and serves for the display and recording of measured values. Astro-Med objected to this classification essentially on the ground that this piece of apparatus did not carry out measurements within the meaning of heading 9030 of the Common Customs Tariff and that it simply rendered values which had already been measured visible. According to Astro-Med, the thermorecorder should be classified under heading 8479 of the Combined Nomenclature. Having failed to receive a satisfactory response, Astro-Med finally asked the Bundesfinanzhof to annul the notice of classification issued by the Oberfinanzdirektion Berlin.

2. By order of 21 January 1992 the Bundesfinanzhof referred the following question to the Court for a preliminary ruling: In its order the Bundesfinanzhof points out that, although the apparatus in question appears to lack the measurement function within the meaning of the case-law of the Court (Case C-218/89 Shimadzu Europa [1990] ECR I-4391), it has a certain similarity with other pieces of apparatus, such as certain oscillographs which, according to the Explanatory Notes to the Combined Nomenclature on heading 9030, fall within subheading 90308190. The court making the reference adds that as Astro-Med has asked only for the notice of classification to be annulled it is unnecessary, if this classification is incorrect, to determine the heading under which the thermorecorder should be classified.

‘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 90308190?’

3. The order of the Bundesfinanzhof was registered at the Court Registry on 2 April 1992. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Astro-Med, represented by Dirk Krüger, Rechtsanwalt of Frankfurt am Main, and by the Commission of the European Communities, represented by Angela Bardenhewer, of its Legal Service, acting as Agent, assisted by Hans-Jürgen Rabe, Rechtsanwalt of Hamburg. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, after notifying the parties and not receiving a request from either party to present oral observations, to dispense with an oral part. On 8 February 1993 the Court decided, pursuant to Article 95(1) and (2) of the Rules of Procedure, to assign the case to the Third Chamber.

III — Summary of written observations submitted to the Court

1. Astro-Med considers that the reply to the question should be in the negative. It states that thermorecorders display the results of measurements which they pick up by means of an integrated electroluminescent display and, on paper, record the measured values as a curve or in digital form. They can only work in conjunction with other pieces of apparatus and their uses are very diverse: in the medical field, pharmaceutical or chemical research, air or space navigation, the car industry, etc ... Astro-Med questions whether the classification of this piece of apparatus in the Combined Nomenclature can be made on the basis of positive provisions or on the basis of rules of exclusion. In this respect Section XVI of the Nomenclature, which principally covers machinery, mechanical appliances and electrical equipment, contains a note 4 which is a positive standard of classification for machines or combinations of machines consisting of individual components ‘intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or 85’, which are part of this section. But this positive standard cannot be applied to thermorecorders. At the actual time of their importation it is not possible to specify clearly one function to which they are intended to contribute together with other apparatus, covered by one of the headings of the chapters mentioned above, because these recorders are able to function with many pieces of apparatus which fall within different headings. Note 1 (m) of the same Section XVI excludes from the section articles falling under Chapter 90 (of Section XVIII), which covers, in particular, optical, photographic or cinematographic instruments or apparatus, instruments or apparatus for measuring, checking or clarifying. However, thermorecorders cannot immediately be classified as one of the articles falling under Chapter 90. In those circumstances, Astro-Med considers that these pieces of apparatus should be classified according to their purpose. The Court of Justice has already interpreted the field of application of heading 9030, which covers instruments and apparatus for the measurement or control of electrical quantities, in such as way as to make it clear that only apparatus whose very purpose is to determine electrical quantities can be included in this heading and not apparatus which fulfils other functions (Cases 19/88 ICT and BFI Electronique [1989] ECR 577 and Shimadzu Europa, cited above). According to Astro-Med, the thermorecorder, with or without a converter, is not intended to carry out measurements, but to display results obtained by a piece of measuring apparatus. Even assuming that the thermorecorder takes part in a measurement process, its main purpose does not lie in this operation, but in the display of results which have already been obtained and picked up. According to Astro-Med, it is therefore wrong for the defendant to compare the thermorecorder to the oscillographs mentioned in paragraphs 03.0 to 05.0 of the Explanatory Notes to the Combined Nomenclature on heading 9030. These instruments actually include an integrated measuring device and are used independently. Furthermore, Astro-Med maintains that, contrary to what certain national customs authorities seem to think, thermorecorders cannot be classified under heading 9033 either, which covers ‘Parts and accessories (not specified or included elsewhere in this chapter) for machines, appliances, instruments or apparatus of Chapter 90’. As this piece of apparatus has an individual function, viz. ‘to display different physical quantities by means of a process of thermal impression’, it cannot be classified amongst parts or accessories. To sum up, Astro-Med considers that thermorecorders are pieces of apparatus which fall within Section XVI, Chapter 84 (‘Nuclear Reactors, Boilers, Machinery and Mechanical Appliances’) and which, not having been included in one of the specific headings of this Chapter, should be classified under residual subheading 84798980, which covers machines and mechanical appliances having individual functions, not specified or included elsewhere.

2. The Commission also thinks that the reply to the question should be in the negative. First of all, it observes that heading 9030 of the Combined Nomenclature covers only instruments and apparatus for measuring or checking electrical quantities and apparatus for measuring or detecting ionizing radiations. According to the case-law of the Court (see the judgments mentioned above), the decisive criterion for classification under this heading is the purpose of the apparatus: it covers only instruments which measure electrical quantities and immediately render them visible. According to the Bundesfinanzhofs description, the thermorecorder receives from other instruments of measurement electrical input signals which represent certain specific values of non-electrical quantities and converts them by means of an analogue/digital converter in order to record them on thermal paper. This apparatus does not therefore measure the electrical quantities itself in order to display them, but merely renders quantities already measured by other pieces of apparatus visible. In the Commission's view, the fact that the thermorecorder begins by processing a ‘measurement’ of electrical quantities which it has picked up cannot warrant classification under heading 9030. These electrical measurements are not displayed immediately but are converted into non-electrical values and it is the display of those values which constitutes the ‘very purpose’ of the instrument within the meaning of the case-law of the Court. Furthermore, according to the Commission and contrary to the order for reference, the apparatus in issue cannot validly be compared to certain oscillographs mentioned in the Explanatory Notes to the Combined Nomenclature on subheading 90308190 (paragraphs 03.0 to 05.0 of the German Federal Ministry of Finance edition). According to the description in paragraph 05.0, those pieces of apparatus carry out measurements of electrical quantities themselves which they record immediately without subsequent conversion or processing.

F. Grévisse

Judge-Rapporteur

1 Language of the case: German.