Opinion of Advocate General Gulmann delivered on 16 December 1993

1 Original language: Danish.

2 See Commission Regulation No 2640/86, OJ 1986 L 239, p. 5, and Council Regulation No 535/87, OJ 1987 L 54, p. 12.

3 The versions in question are set out in Council Regulation No 3400/84, OJ 1984 L 320, p. 1, Council Regulation No 3331/85, OJ 1985 L 331, p. 1, and Council Regulation No 3618/86, OJ 1986 L 345, p. 1.

4 The versions in question are set out in Commission Regulation No 3529/84, OJ 1984 L 337, p. 1, Commission Regulation No 3631/85, OJ 1985 L 353, p. 1 and Commission Regulation No 3840/86, OJ 1986 L 368, p. 1.

5 See Part I, Section I, A of the Common Customs Tariff. According to the information before the Court that provision was introduced by Council Regulation (EEC) No 1/72 of 20 December 1971 (Journal Officiel 1972 L 1, p. 1).

6 The German version refers only to the concept of zerlegt which covers the terms disassembled or unassembled in the English version, adskilt eller ikke samlet in the Danish version and démonté ou non monté in the French version.

7 The Customs Cooperation Council was set up under the Brussels Convention of 15 September 1950 on Nomenclature for the Classification of Goods in Customs Tariffs and has the task of ensuring the uniform interpretation and application of the Convention, in particular as regards the application of the nomenclature.

8 Originally paragraph VI, now paragraph VII, of the Explanatory Notes to the General Rules on Classification.

9 Develop Eisbein was in fact taken over in May 1986 by the Japanese company Minolta (see recital 74 in the preamble to Council Regulation No 535/87). That information is confirmed in the documents in the main proceedings. The background to the decision taken by the Commission and the Council that the anti-dumping duty should apply only to finished articles and not to components is apparent inter alia from recital 97 in the preamble to Council Regulation No 535/87 and recital 101 in the preamble to Commission Regulation No 2640/86. They state that a large proportion of European manufacturers produce photocopiers from Japanese components and that it is not reasonable to exclude products with Japanese components from the benefits of anti-dumping measures merely because those goods may have a relatively low added value in the Community. If in specific situations a danger arises of evasion of antidumping rules, that may be countered by specific provisions in the relevant anti-dumping regulations, like those which have in fact been adopted in connection with the antidumping duty in question here (see Council Regulation No 1761/87 of 22 June 1987 amending Regulation No 2176/84 on protection against dumped or subsidized imports from countries not members of the European Economic Community —OJ 1987 L 167, p. 9). The following explanation of the background to and content of that regulation is given in its preamble:Experience gained from the implementation of Regulation (EEC) No 2176/84 has shown that assembly in the Community of products whose importation in a finished state is subject to anti-dumping duty may give rise to certain difficulties; ... in particular: where assembly or production is carried out by a party which is related or associated to any of the manufacturers whose exports of the like product are subject to an antidumping duty, and where the value of the parts or materials used in the assembly or production operation and originating in the country of origin of the product subject to an antidumping duty exceeds the value of all other parts or materials used, such assembly or production is considered likely to lead to circumvention of the anti-dumping duty; ... in order to prevent circumvention it is necessary to provide for the collection of an anti-dumping duty on products thus assembled or produced.

10 See the judgment in Case 183/73 Osram [1974] ECR 477.

11 See the judgment in Case 295/81 IFF [1982] ECR 3239.

12 See for example Case C-338/90 Hamlin [1992] ECR I-2333, paragraph 8.

13 The tariff rule was inserted in the Common Customs Tariff with effect from 1 January 1972 as a result of a recommendation adopted on 9 June 1970 by the Customs Cooperation Council which was approved by the Community Member States by a decision of the Council of 21 June 1971 (Journal Officiel 1971 L 137, p. 10). No further details of the object of the provision have been put forward in this case.

14 See the judgment in Case 165/78 IMCO [1979] ECR 1837 in which the Court held: With regard to Questions 1 and 2, tariff heading 98.03 covers on the one hand complete articles such as fountain-pens and stylograph pens, and, on the other, parts and fittings. It is clear from the general plan of that heading and from the very concept of parts and fittings that that tariff category implies the existence, even if possibly only in the future, of a complete article of which such pieces are fittings or parts. It follows that, given the existence of the constituent parts, disassembled or not yet assembled, of a complete article, such parts cannot be classified as parts and fittings, within the meaning of subheading 98.03 C II, in respect of the complete article of which they form the totality of the components. The reply to the first two questions submitted by the national court must therefore be that General Rule 2(a) for the Interpretation of the Nomenclature of the Common Customs Tariff covers articles not yet assembled as well as articles which have been disassembled and to the extent to which the parts not yet assembled allow of the assembly of a complete article they are covered by the provisions governing that article even though the Common Customs Tariff contains a specific heading for parts and fittings (paragraphs 7 and 8).

15 Develop Eisbein has claimed that the tariff rule should be interpreted restrictively in so far as it represents a derogation from an alleged general rule that only finished articles are covered by the individual headings of the customs tariff. I have some doubt as to whether that view is correct. The tariff rule specifies in general terms what is covered by headings of the customs tariff. It is inappropriate to describe it as a derogation from a rule of general application. It should be interpreted on the basis of the principles of interpretation referred to above.

16 See Case 38/75 Nederlandse Spoorwegen [1975] ECR 1439, paragraphs 24 and 25, Case C-233/88 Kolk [1990] ECR I-265, paragraphs 9 and 19, and Case 200/84 Daiber [19851 ECR 3363, paragraph 14.

17 Case 295/81 IFF [1982] ECR 3239.

18 In the Danish, samles ved hjælp af simple samleanordninger, in the French version être assemblés ... à l'aide de moyens simples and in the German translation durch einfache Hilfsmittel.

19 In the Danish, samlingen kun kræver enkle arbejdsfunktioner, in the French version qu'il s'agisse bien de simples opérations de montage and in the German translation wenn es sich dabei tatsächlich um einfaches Zusammensetzen handelt.

20 Case 183/73 Osram [1974] ECR 477.

21 Case 295/81 IFF [1982] ECR 3239; the Court held: that interpretation is moreover confirmed by paragraph VI of the Explanatory Notes to the Customs Cooperation Council Nomenclature, according to which articles whose various components are intended to be assembled either by simple means (nuts, bolts and the like) or, for example, by rivetting or welding, must be regarded as unassembled or disassembled. In his Opinion on that case Advocate General Sir Gordon Slynn cited the explanatory note and stated: Whether, as I think, the reference to simple assembly operations refers to the application of simple fixing devices and to rivetting and welding, or only to the rivet-ting and welding, it seems to me that the essential idea is clear. What is required is a simple mechanical means of fitting together.

22 Case 26/88 Brother International [1989] ECR 4253.