Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. The Tariefcommissie (administrative court of last instance in revenue matters), Amsterdam, has asked the Court to specify the heading of the Common Customs Tariff under which an Aris II COM-Recorder should be classified. The apparatus in question was imported into the Netherlands in June 1983 by Gerlach & Co. BV (Gerlach).

2. On the basis of the observations submitted to the Court and of the documents appended thereto, the apparatus in question may be described as follows. It is a COM-Recorder, that is to say, an instrument whereby data stored in a computer or produced by a computer can be preserved by transcribing them in legible form onto microfiches or microfilm (the acronym COM stands for computer output microfilm). The two other processes which may be used to preserve such data rely on recording them on magnetic tape (or, I presume, diskettes) or on printing them on paper. From the point of view of its function, therefore, a COM-Recorder is most akin to a printer, except for the fact that the data which are made legible are fixed not on paper but on photographic film.

3. The national court has identified three possible classifications : subheadings 84.53 B, 84.54 B or 90.07 A of the Common Customs Tariff. Its preference tends towards subheading 84.53 B; Gerlach and the Commission also favour that solution. Heading 84.53 reads as follows:

4. If those instruments are applied to a COM-Recorder such as the Aris II the following result is obtained. According to the explanatory notes on Heading 84.53, such a COM-Recorder is not an automatic data-processing machine because it cannot store a processing program. The machine does not a have program for translating the formal programming language in which the programs are written into machine language. Neither does it have the capability to modify, by logical decision, the execution of the program during the processing run. Nevertheless, such a COM-Recorder does constitute an output unit (within the meaning of the Explanatory Notes to the Customs Cooperation Council Nomenclature quoted above) by which data stored in an automatic data-processing machine or produced by such a machine can be transposed into legible form and recorded on microfiche. According to note 3(B) on Heading 84.53, such an output unit is a unit which is to be regarded as being part of the complete system in so far as it is (a) connectable to the central processing unit and (b) specifically designed as part of that system. It therefore appears correct to classify it under subheading 84.53 B.

5. There would be no difficulty in answering the national court's question were it not for Commission Regulation (EEC) No 551/81, which classifies under Heading 90.07 of the Common Customs Tariff apparatus whose characteristics and components greatly resemble those of the Aris II COM-Recorder. According to Article 1 of that regulation, it is concerned with the classification of apparatus

6. According to the national court's order and the observations submitted by Gerlach, that regulation resulted in the French, Belgian and Dutch customs authorities' classifying the Aris II COM-Recorder under subheading 90.07 A of the Common Customs Tariff, whilst the British and German customs opted for subheading 84.53 B.

7. Gerlach disagrees with that reasoning and at the hearing its representative stated that if it is allowed that a COM-Recorder equipped with a tape deck (such as the apparatus referred to in Regulation No 551/81) no longer constitutes an output unit on the ground that it can operate independently, it is all the more clear that such a piece of apparatus must be regarded as an automatic data-processing machine and not a photographic camera.

8. I take Gerlach's argument to mean that, for the purpose of determining what is a unit which is part of a system within the meaning of note 3(B) on Heading 84.53, there is no essential difference between a COM-Recorder equipped with a tape deck and a COM-Recorder which is not so equipped. From this point of view, the fact that the apparatus referred to in Regulation No 551/81 is fitted with a tape deck is only relevant to the manner in which the computer-produced data are introduced into the machine. Whatever technique is used, an independent tape deck or connecting the COM-Recorder to a computer server, this has no bearing on the fact that, as an output device, the apparatus serves only to transpose data produced by a computer — whether or not they be introduced into the recorder independently— into legible characters (and to fix those characters on microfilm), and is hence in fact specifically designed as a part of an automatic data-processing system.

9. I therefore propose that the Court should answer the question of the Tariefcommissie, Amsterdam, in the following terms:

1 Original language: Dutch.

2 The version in question is that set out in Regulation (EEC) No 950/68 oí the Council (OJ, English Special Edition 1968 (I), p. 275, as amended by Council Regulation (EEC) No 3400/84 of 27 November 1984 (OJ L 320, p. 1).

3 See in particular the judgment in Case 62/77 Carlsen-Verlag v Oberfinanzdirektin Koln [1977] ECR 2343.

4 Sec the explanatory notes on subheading 84.53, point 1(A).

5 Commission Regulation (EEC) No 551/81 of 25 February 1981 on the classification of goods within subheading 90.07 A of the Common Customs Tariff (OJ 1981 L 56, p. 20).

6 See the fourth recital in the preamble to Regulation No 551/81.

7 See the sixth and seventh recitals in the preamble.

8 See the explanatory note on Heading 84.53 quoted in Section 3 above.

9 See the judgment of the Court in Case 234/89 Casto Computer v Oberfinanzdirektion München [1989] ECR 63, paragraphs 11 to 13.

10 Regulation (EEC) No 97/69 of the Council of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (OJ, English Special Edition 1969 (I), p. 12); see in particular the second recital in the preamble.