Case C-472/12, Panasonic Italia – imported computer monitors or just EU-dumped plasma-TV screens?

When an object is described as a computer monitor screen for the purposes of EU anti-dumping law, should that object really be classified as a plasma-TV screen when it can be easily used to receive television signals and it can also be attached to DVD players or satellite receivers?

Facts
Between 2001 and 2004, the Italian branch of Panasonic was importing plasma screens into the EU from non-EU countries. The imports meant they were governed by the EU’s anti-dumping measures. Accordingly, Panasonic Italia declared to the Italian customs authority in Milan that the imported screens fell under ‘heading 8471’ (which is for monitors used exclusively for the display of images coming from a computer). As a result, the monitors were free from import tax but they were subject to 20% VAT.

The Italian customs authority in Milan disagreed with Panasonic Italia’s designation of the imported screens. Here was a screen that was used for colour images. The screen measured 106.6cm across the diagonal. The screen had two in-built loudspeakers. The screen was even operated by remote control. Equally, the housing of the screen was also furnished with an aperture. Into the aperture, a video card could be inserted. Inserting a cheap video card, the likes of which were widely available in Europe, would allow the purchaser of the screen to receive and process audiovisual signals. Moreover, the purchaser could also attach a whole panoply of electronic equipment to the screen, and thus allow the screen to be used in combination with DVD players, video cameras and even satellite receivers. In light of all this, the Italian customs authority declared the screens as not falling under the heading reserved for computer monitors but rather as screens falling under the heading 8528. Accordingly, Panasonic Italy was deemed to have imported plasma-TV screens, and these were subject to a 14% import tax.

Panasonic Italia stood its ground and the matter went to court. It pointed out that at the moment when the screens were imported there was no video card in the model or the box. At the moment when they were imported, the screens could only be used to display images coming from a computer.

In reply, the Italian customs authority referred the national court to Panasonic’s Instruction Manual, which alerted users to the possibility of introducing a video card into the system so that the product and card could be used for television.

Questions Referred
According to the Official Journal of the EU (OJ [2012] C399), the Italian Court of Cassation has asked:

1. Primarily — was it necessary, before the entry into force of Regulation (EC) No 754/2004, […] to classify under heading 8471, or under heading 8528, a plasma colour monitor with a diagonal measurement of the screen of 106,6 centimetres, equipped with two loudspeakers and a remote control, and with an input device designed for the insertion of a video card (very inexpensive and easy to find and insert) which was not imported with the screen, but which, once inserted, meant that the monitor was capable of receiving composite AV video signals and could be connected, not only to automatic data-processing machines, but also to recording and reproducing apparatus, DVD players, video cameras and satellite receivers?

2. If the answer to Question 1 is in the negative, the Court of Justice is asked to assess and determine whether Regulation No 754/2004 actually requires a monitor of that type to be classified under heading 8528;

3. If the answer to Question 2 is affirmative, the Court is asked whether or not the provisions laid down in that regard by Regulation No 754/2004 have to be regarded as interpretative and, as such, as having retroactive effect save where earlier specific provisions to the contrary apply.

Comment
The mention of 106,6 centimetres in the Official Journal should read 106.6 centimetres.

Update – 17 November 2013
The hearing is scheduled to take place on 11 December 2013.

Update – 25 June 2014
The CJEU’s judgment is expected to be handed down on 17 July 2014.


Update – 6 August 2014
Judgment

A version of the CJEU’s judgment in Case C-472/12, Panasonic Italia ECLI:EU:C:2014:2082 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

JUDGMENT OF THE COURT (Tenth Chamber)

17 July 2014 ()

(Reference for a preliminary ruling — Regulation (EEC) No 2658/87 — Common Customs Tariff — Tariff classification — Combined Nomenclature — Headings 8471 and 8528 — Plasma screens — Function as computer screen — Potential function as a television screen, after insertion of a video card)

In Case C‑472/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Corte suprema di cassazione (Italy), made by decision of 13 January 2012, received at the Court on 22 October 2012, in the proceedings

Panasonic Italia SpA,

Panasonic Marketing Europe GmbH,

Scerni Logistics Srl

v

Agenzia delle Dogane di Milano,

THE COURT (Tenth Chamber),

composed of E. Juhász, President of the Chamber, A. Rosas and C. Vajda (Rapporteur), Judges,

Advocate General: Y. Bot,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2013,

after considering the observations submitted on behalf of:

–        Panasonic Italia SpA, Panasonic Marketing Europe GmbH and Scerni Logistics Srl, by P. Vander Schueren, advocaat, and by G. Cambareri and L. Pierallini, avvocati,

–        the Italian Government, by G. Palmieri, acting as Agent and G. Albenzio, avvocato dello Stato,

–        the European Commission, by L. Keppenne, D. Recchia and B.-R. Killmann, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        The request for a preliminary ruling concerns the interpretation of the Combined Nomenclature (‘the CN’) set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), in the versions resulting successively from Commission Regulation (EC) No 2388/2000 of 13 October 2000 (OJ 2000 L 264, p. 1), Commission Regulation (EC) No 2031/2001 of 6 August 2001 (OJ 2001 L 279, p. 1), Commission Regulation (EC) No 1832/2002 of 1 August 2002 (OJ 2002 L 290, p.1), and Commission Regulation (EC) No 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1).

2        That request has been made in proceedings between Panasonic Italia SpA, Panasonic Marketing Europe GmbH and Scerni Logistics Srl and the Agenzia delle Dogane di Milano (Customs Office of Milan, ‘the Agenzia’) concerning the tariff classification of plasma screens in the CN.

 Legal context

 The Harmonised Commodity Description and Coding System.

3        The Customs Cooperation Council, now the World Customs Organisation (‘WCO’), established by the convention creating that council, which was concluded in Brussels on 15 December 1950. The Harmonised Commodity Description and Coding System (‘the HS’) was drawn up by the WCO and established by the International Convention on the Harmonised Commodity Description and Coding System (‘the HS Convention’) concluded in Brussels on 14 June 1983 and approved, with its amending protocol of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4        Under Article 3(1) of the HS Convention, each Contracting Party undertakes to ensure that its customs tariff and statistical nomenclatures will be in conformity with the HS, to use all of the headings and subheadings of the HS without addition or modification, together with their related codes, and to follow the numerical sequence of that system. Each Contracting Party also undertakes to apply the General Rules for the interpretation of the HS and all the section, chapter and subheading notes of the HS, and not to modify their scope.

5        The WCO is to approve, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee.

6        In the version adopted in 2002, the Explanatory Notes to the HS relating to Heading 8471 were drafted as follows:

‘1.      Automatic data-processing machines and units thereof;

D.      Separately Presented Units

A unit is to be regarded as being a part of a complete data processing system, if it performs a data processing function and satisfies the following conditions:

(a)      It is of a kind solely or principally used in an automatic data processing system;

(b)      It is connectable to the central processing unit either directly or through one or more other units; and

(c)      It is able to accept or deliver data in a form (codes or signals) which can be used by the system.

If the unit performs a specific function other than data processing, it is to be classified in the heading appropriate to that function or, failing that, in a residual heading (see Note 5 (E) to this Chapter).

Among the constituent units included are display units of automatic data-processing machines which provide a graphical representation of the data processed. They differ from the video monitors and television receivers of heading 8528 in several ways, including the following:

(1)      Display units of automatic data processing machines are capable of accepting a signal only from the central processing unit of an automatic data processing machine and are therefore not able to reproduce a colour image from a composite video signal whose waveform conforms to a broadcast standard (NTSC, SECAM, PAL, D-MAC, etc.). They are fitted with connectors characteristic of data processing systems (e.g., RS-232C interface, DIN or SUB-D connectors) and do not have an audio circuit. They are controlled by special adaptors (e.g., monochrome or graphics adaptors) which are integrated in the central processing unit of the automatic data processing machine.

(2)      These display units are characterised by low electromagnetic field emissions. Their display pitch size starts at 0.41 mm for medium resolution and gets smaller as the resolution increases.

(3)      In order to accommodate the presentation of small yet well-defined images, display units of this heading utilise smaller dot (pixel) sizes and greater convergence standards than those applicable to video monitors and television receivers of heading 8528. (Convergence is the ability of the electron gun(s) to excite a single spot on the face of the cathode-ray tube without disturbing any of the adjoining spots.)

(4)      In these display units, the video frequency (bandwidth), which is the measurement determining how many dots can be transmitted per second to form the image, is generally 15 MHz or greater, whereas, in the case of video monitors of heading 8528, the bandwidth is generally no greater than 6 MHz. The horizontal scanning frequency of these display units varies according to the standards for various display modes, generally from 15 kHz to over 155 kHz. Many are capable of multiple horizontal scanning frequencies. The horizontal scanning frequency of the video monitors of heading 8528 is fixed, usually 15.6 or 15.7 kHz depending on the applicable television standard. Moreover, the display units of automatic data-processing machines do not operate in conformity with national or international broadcast frequency standards for public broadcasting or with frequency standards for closed-circuit television.

(5)      Display units covered by this heading frequently incorporate tilt and swivel adjusting mechanisms, glare-free surfaces, flicker-free display, and other ergonomic design characteristics to facilitate prolonged periods of viewing at close proximity to the unit.

…’

7        In the version adopted in 2002, the Explanatory Notes to the HS relating to Heading 8528 were worded as follows:

‘This heading covers television receivers (including video monitors and video projectors), whether or not incorporating radio‑broadcast receivers or sound or video recording or reproducing apparatus.

The heading includes:

(1)      Television receivers of the kind used in the home (table models, consoles, etc.) including coin‑operated television sets. They include LCD and plasma televisions.

This heading does not cover:

(a)      Separately presented units of an automatic data-processing machine are to be classified under heading No 8471.

…’

 The CN

8        Regulation No 2658/87 established the CN, which is based on the HS, from which it takes the six-digit headings and subheadings, only the seventh and eighth digits forming subdivisions specific to the combined nomenclature.

9        Under Article 12(1) of that regulation, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16), the European Commission is required to adopt each year a regulation reproducing the complete version of the CN and the rates of customs duty, as they result from measures adopted by the Council of the European Union or by the Commission. They are to apply from 1 January of the following calendar year.

10      The versions of the CN applicable at the material time, from 2001 to 2004, are those resulting from Regulations No 2388/2000, No 2031/2001, No 1832/2002 and No 1789/2003. The relevant provisions of the CN, which are those set out below, are worded in an identical manner in each of those versions.

11      The general rules for the interpretation of the CN, which are set out in Part One, Title I A, provide:

‘Classification of goods in the [CN] shall be governed by the following principles:

2.      (a)   Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

…’

12      The second part of the CN includes Section XVI, entitled ‘Machinery and Mechanical Appliances; Electrical Equipment; Parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles’.

13      Notes 3 and 5 to Section XVI of the CN are worded as follows:

‘3.      Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

5.      For the purposes of these notes, the expression “machineˮ means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of Chapter 84 or 85.’

14      Section XVI of the CN includes Chapter 84, entitled ‘Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof’.

15      Note 5 to Chapter 84 is worded as follows:

‘B.      Automatic data-processing machines may be in the form of systems consisting of a variable number of separate units.  Subject to paragraph E below, a unit is to be regarded as being a part of a complete system if it meets all of the following conditions:

(a)      it is of a kind solely or principally used in an automatic data-processing system;

(b)      it is connectable to the central processing unit either directly or through one or more other units;

and

(c)      it is able to accept or deliver data in a form (codes or signals) which can be used by the system.

C.      Separately presented units of an automatic data-processing machine are to be classified under heading No 8471.

E.      Machines performing a specific function other than data processing and incorporating or working in conjunction with an automatic data-processing machine are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.’

16      Note 7 to Chapter 84 of the CN is worded as follows:

‘Subject to note 2 to this chapter and note 3 to Section XVI, a machine the principal purpose of which is not described in any heading or for which no one purpose is the principal purpose is, unless the context otherwise requires, to be classified in heading No 8479.

…’

17      Heading 8471 of the CN reads as follows:

‘8471 Automatic data-processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included:

8471 60 – Input or output units, whether or not containing storage units in the same housing

8471 60 10 –      –      For use in civil aircraft 8471 60 10

–      –      Other:

8471 60 40      –      –      –      Printers

8471 60 50      –      –      –      Keyboards

8471 60 90       –      –      –      Other

…’

18      Section XVI of the CN also includes Chapter 85, entitled ‘Electrical Machinery and Equipment and Parts thereof; Sound Recorders and Reproducers, Television Image and Sound Recorders and Reproducers, and Parts and Accessories of Such Articles’.

19      Heading 8528 of the CN is worded as follows:

‘8528 Reception apparatus for television, whether or not incorporating radio broadcast receivers or sound or video recording or reproducing apparatus; video monitors and video projectors:

–        Video monitors:

8528 21 –       –       Colour:

8528 21 90       –      –      –      Other

…’

 Regulation (EC) No 754/2004

20      Commission Regulation (EC) No 754/2004 of 21 April 2004 concerning the classification of certain goods in the Combined Nomenclature (OJ 2004 L 118, p. 32), which entered into force after the imports at issue in the main proceedings, set out the classification in the CN of certain colour plasma-screens with a diagonal measurement of the screen of 106 cm, with the characteristics described in the annex to that regulation.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

21      From 2001 to 2004, the applicants in the main proceedings imported into Italy from countries outside the European Union, plasma screens with the characteristics described by the national court as follows:

–        those screens are colour monitors with a diagonal screen measurement of 106.6 centimetres;

–        in the state in which they are imported, those screens are capable of reproducing only data generated by an automatic data-processing system;

–        however, with the insertion of a video card into the appropriate slot with which the screen is equipped they are also able to receive composite AV video signals and thus also to be connected to sound and image recording and reproducing apparatus, DVD players, video cameras and television satellite receivers;

–        the screens in question are not supplied with a video card at the time of importation, but such a card can easily be purchased separately and at very low cost, and can easily be inserted into the appropriate slot provided for that purpose;

–        at the time of importation, the screens are equipped with two loudspeakers and a remote control, and that those parts could be used only if the screen is used to receive composite AV video signals if a video card is inserted; and

–        the user manual for those screens refers specifically to the product’s audiovisual capabilities and to the possibility of inserting a video card in order to activate reception of television signals.

22      For the purpose of making customs declarations, the applicants in the main proceedings classified the screens imported under heading 8471 60 90 of the CN, as screens exclusively intended for the transmission of images generated by a computer, with the result that those goods were exempt from customs duties and the payment of value added tax at the rate of 20%.

23      However, the Agenzia took the view that those screens should have been classified under heading 8528 of the CN, which refers inter alia to reception apparatus for television and video monitors, with the result that customs duties at a rate of 14% were applicable.

24      The applicants in the main proceedings brought actions before the Commissione tributaria provinciale di Milano (Provincial Tax Court, Milan), which rejected those actions on the ground that the possibility to programme the screen to receive composite video signals simply by inserting a video card meant that the apparatus could not be classified under tariff heading 8471 of the CN, because it no longer met the condition that the screen had to be used principally or predominantly in an automatic data-processing system.

25      The applicants in the main proceedings appealed against the judgments at first instance before the Commissione tributaria regionale di Milano (Regional Tax Court, Milan). That court confirmed the classification of the imported screens under tariff heading 8528 of the CN, but held that the administrative penalties imposed were to be annulled, given that objective uncertainties of interpretation existed.

26      Both the applicants in the main proceedings and the Agenzia brought appeals in cassation against the judgments delivered in the appeal. In their appeal, the applicants in the main proceedings maintained their position, according to which the imported screens must be classified under subheading 8471 60 90 of the CN since, at the time of importation, they were without video cards and, therefore, could only be used to transmit images generated by a computer. The Agenzia restated its argument that the classification of those screens under heading 8528 of the CN was well-founded and challenged the annulment by the court of appeal of the administrative penalties imposed.

27      The referring court considers that the imported screens must be classified under heading 8528 of the CN, which refers, inter alia, to reception apparatus for television and video monitors, for the following reasons. First, the reception of composite video signals is one of the intrinsic characteristics of those screens even before the insertion of a video card, given the slot expressly provided for that purpose. Second, no economic or technological reason justifies the design of those screens, which are able to receive composite video signals only after the insertion of a video card, so that the only conceivable explanation remains the desire to unfairly profit from the more favourable customs treatment provided for computer screens.

28      The referring court also asks about the possibility to apply the provisions of Regulation No 754/2004 retroactively, under which the imported screens should be classified under heading 8528 of the CN.

29      In those circumstances the Corte suprema di cassazione decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Was it necessary, before the entry into force of [Regulation No 754/2004], to classify under heading 8471, or under heading 8528 of the CN, a plasma colour screen with a diagonal measurement of the screen of 106.6 centimetres, equipped with two loudspeakers and a remote control, and with an input device designed for the insertion of a video card (very inexpensive and easy to find and insert) which was not imported with the screen, but which, once inserted, meant that the screen was capable of receiving composite AV video signals and could be connected, not only to automatic data-processing machines, but also to recording and reproducing apparatus, DVD players, video cameras and satellite receivers?

(2)      If the answer to the above question is in the negative … does Regulation No 754/2004 actually require a screen of that type to be classified under heading 8528 of the CN, and, if the answer to that question is affirmative … do the provisions of Regulation No 754/2004 have to be regarded as interpretative and, as such, as having retroactive effect save where earlier specific provisions to the contrary apply.’

 The questions referred for a preliminary ruling

 The first question

30      By its first question, the referring court wishes to know whether the screens at issue in the main proceedings should be classified under heading 8471 of the CN or heading 8528 thereof.

31      It must be observed that the wording of heading 8471 of the CN refers, inter alia, to automatic data-processing machines and their units, whereas the wording of heading 8528 of the CN, relates, inter alia, reception apparatus for television and video monitors. Subheading 8471 60 90 includes in particular data entry or production units other than printers and keyboards which may contain units of memory in the same housing, while subheading 8528 21 90 includes colour video monitors (Kamino International Logistics C‑376/07, EU:C:2009:105, paragraph 33).

32      However, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event the national court is in a better position to do so (Lohmann and Medi Bayreuth, C‑260/00 to C‑263/00 EU:C:2002:637, paragraph 26; Digitalnet and Others, C‑320/11, C‑330/11, C‑382/11 and C‑383/11, EU:C:2012:745, paragraph 61; X, C‑380/12, EU:C:2014:21, paragraph 34).

33      It will thus be for the referring court to classify the products at issue in the main proceedings in the light of the answers provided by the Court to the questions it has referred (X EU:C:2014:21, paragraph 35).

34      Therefore, the first question must be reformulated so that the referring court asks the Court of Justice about the criteria to be applied in order to determine whether the screens at issue in the main proceedings are to be classified under heading 8471 of the CN or, if not, under heading 8528 thereof.

35      It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, RUMA, C‑183/06, EU:C:2007:110, paragraph 27, and Medion and Canon Deutschland, C‑208/06 and C‑209/06, EU:C:2007:553, paragraph 34).

36      The decisive criterion for the customs classification of goods under the common customs tariff must be sought in the objective characteristics and properties of the products at the time of their presentation for customs clearance. The objective characteristics and properties of products must be capable of being assessed at the time of customs clearance (Foods Import, C‑38/95, EU:C:1996:488, paragraph 17, and Medion and Canon Deutschland EU:C:2007:553, paragraph 36).

37      In that connection, it is clear from the objective characteristics set out in paragraph 21 of the present judgment that, at the time of their importation, the screens at issue in the main proceedings can only reproduce data from an automatic data-processing machine but, following the insertion in the slot provided for that purpose of a video card, sold separately and very inexpensively, those screen are also capable of reproducing composite video signals.

38      It is also clear from those objective characteristics that those screens are equipped with two loud speakers and a remote control which may only be used if those screens are used for the reception of composite video signals, and that their user manual expressly mentions the audiovisual functions of the product and the possibility to insert a video card in order to activate the reception of television signals.

39      According to settled case-law, the intended use of a product may also 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 (see RUMA EU:C:2007:110, paragraph 36, and X EU:C:2014:21, paragraph 39).

40      According to that case-law, for the purposes of the customs classification of the screens at issue in the main proceedings, account must be taken of their inherent intended purpose, defined on the basis of their objective characteristics. In the light of the objective characteristics which have been described by the referring court, the inherent intended purpose of the screens at issue in the main proceedings consists in reproducing data from an automatic data-processing machine and composite video signals.

41      In particular, it should be noted that the manufacturer of those screens expressly designed them so as to be capable of reproducing composite video signals by incorporating elements enabling the reproduction of such signals following the insertion of a video card, which may be obtained very inexpensively, in the slot provided for that purpose, by supplying two loud speakers and a remote control which may only be used if those screens are used for the reception of composite video signals, and by mentioning that function in the user manual.

42      In that connection, the facts of the present case must be distinguished from those which gave rise to the judgment in Medion and Canon Deutschland (EU:C:2007:553), which concerned camcorders made capable, after a modification, of recording images and sounds from external video signals in addition to those from the integrated camera and microphone. It is clear from that judgment that those camcorders had not been expressly designed to fulfil that function, since they were capable of fulfilling it only after a relatively complex modification (see, to that effect, Medion and Canon Deutschland EU:C:2007:553, paragraphs 40 and 42).

43      It follows from the foregoing that, for the purpose of the tariff classification of screens with the objective characteristics at issue in the main proceedings, as described by the referring court, account must be taken of their inherent intended purpose consisting in the reproduction of data from an automatic data-processing machine and composite video signals.

44      It remains necessary to determine the method to be followed in order to make the tariff classification of such screens, capable of reproducing data from an automatic data-processing machine and composite video signals.

45      In the judgment in Kamino International Logistics (EU:C:2009:105), the Court has already had occasion to rule on the criteria to be used to carry out a tariff classification of such screens which are capable of reproducing both data from an automatic date-processing machine and from composite video signals.

46      In that judgment, the Court set out the settled case-law, according to which both the notes which head the chapters of the CN and the Explanatory Notes to the WCO Nomenclature are important means of ensuring the uniform application of the common customs tariff and, as such, may be regarded as useful aids to its interpretation (see Siemens Nixdorf, C‑11/93, EU:C:1994:206, paragraph 12, and Kamino International Logistics EU:C:2009:105, paragraph 32).

47      In the present case, Note 5 B(a) to (c) of Chapter 84 of the CN states that screens such as those at issue in the main proceedings fall within heading 8471 of the CN as units of an automatic data-processing machine if they satisfy simultaneously three conditions, namely they are of a kind solely or principally used in an automatic data-processing system; they are connectable to the central processing unit either directly or through one or more other units; and they are able to accept or deliver data in a form (codes or signals) which can be used by the system (Kamino International Logistics EU:C:2009:105, paragraph 41).

48      Nothing in the file submitted to the Court suggests that, in the case in the main proceedings, the second and third conditions set out above are not fulfilled.

49      As regards the first condition set out above, the Court has held that the mere fact that screens are able to display images coming from sources other than an automatic data-processing machine does not preclude their classification in heading 8471 of the CN, having regard to Note 5(B)(a) to Chapter 84 of the CN, which refers to units used ‘solely or mainly’ in an automatic data-processing system (Kamino International Logistics EU:C:2009:105, paragraphs 43 to 45).

50      As regards the criteria to establish whether screens such as those at issue in the main proceedings are units of a kind used ‘mainly’ in an automatic data-processing system, the Court has already had the opportunity to state that it is appropriate to refer to the Explanatory Notes relating to heading 8471 of the HS, in particular to points 1 to 5 of Part One, Chapter I(D) thereof, relating to display units of automatic data-processing machines (Kamino International Logistics EU:C:2009:105, paragraph 59).

51       It is apparent from those points that monitors used principally in an automatic data-processing system can be identified not only by the fact that they are fitted with standard sockets for connection to data-processing systems, but also by other technical characteristics, in particular by the fact that they are intended to be viewed close up, that they cannot display television signals, that they have low magnetic field emissions, that their display pitch starts at 0.41 mm for medium resolution and gets smaller as the resolution increases, that their bandwidth is 15 MHz or greater and that the dimension of the pixels on the screen is smaller than for video monitors in heading 8528 of the HS, whereas the convergence of the former is greater than that of the latter (Kamino International Logistics EU:C:2009:105, paragraph 60).

52      In that connection, the Commission has observed that certain objective characteristics of the screens at issue in the main proceedings, described in paragraph 21 of the present judgment, seem to indicate that they are not intended to be used mainly for the reproduction of data from an automatic data-processing system on account of the fact that, in particular, their substantial size corresponds to a diagonal measurement of 106.6 cm, their dot pitch is considerably greater than 0.41 and they are equipped with two loud speakers and a remote control which can only be used if the screen is used for reception of composite video signals.

53      It is for the national court to determine, on the basis of the objective characteristics of the screens at issue in the main proceedings and, in particular, those mentioned in the Explanatory Notes on heading 8471 of the HS, in particular those in points 1 to 5 of the part of Chapter I D of the HS concerning display units for automatic data-processing machines, if the screens at issue in the main proceedings are monitors used mainly in an automatic data-processing machine and, therefore, whether they must be classified under subheading 8471 60 90 of the CN.

54      In the light of the foregoing considerations, the answer to the first question is that, for the purpose of the tariff classification in the CN of screens with the objective characteristics at issue in the main proceedings, account should be taken of their inherent intended purpose, which consists in reproducing the data from an automatic data-processing machine and from composite video signals. Such screens must be classified under subheading 8471 60 90 of the CN if they are used solely or mainly in an automatic data-processing system, within the meaning of Note 5B(a) of Chapter 84 of the CN, or under subheading 8528 21 90 of the CN if that is not the case, which is a matter for the national court to determine on the basis of the objective characteristics of the screens at issue in the main proceedings, and in particular those mentioned in the Explanatory Notes relating to heading 8471 to the HS, in particular those in points 1 to 5 of the part of Chapter I D of the HS relating to display units for automatic data-processing machines.

 The second question

55      By its second question, the referring court asks the Court of Justice essentially whether Regulation No 754/2004 must be applied retroactively.

56      Regulation No 754/2004 requires the classification under heading 8528 21 90 of the CN of colour plasma screens with a diagonal screen measurement of 106 cm with the characteristics described in the annex to that regulation. It is apparent from the file submitted to the Court that the imports of the goods at issue in the main proceedings took place on a date prior to the entry into force of Regulation No 754/2004.

57      According to settled case-law, the principle of legal certainty precludes a regulation from being applied retroactively, regardless of whether such application might produce favourable or unfavourable effects for the person concerned, unless a sufficiently clear indication can be found, either in the terms of the regulation or its stated objectives, which allows the conclusion to be drawn that the regulation was not merely providing for the future (Duchon, C‑290/00, EU:C:2002:234, paragraph 21 and the case-law cited). In the present case, nothing in the preamble to Regulation No 754/2004, in the wording of its provisions or in its annex suggest that that regulation is to be applied retroactively.

58      In any event, the Court has already had occasion to state that a regulation specifying the conditions for classification in a tariff heading or subheading of the CN cannot have retroactive effect (see, to that effect, Siemens, 30/71, EU:C:1971:111, paragraph 8; Gervais-Danone, 77/71, EU:C:1971:129, paragraph 8; and Biegi, 158/78, EU:C:1979:87, paragraph 11).

59      Consequently, the answer to the second question is that Regulation No 754/2004 cannot be applied retroactively.

 Costs

60      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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

1.      For the purpose of tariff classification in the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting successively from Commission Regulation (EC) No 2388/2000 of 13 October 2000, Commission Regulation (EC) No 2031/2001 of 6 August 2001, Commission Regulation (EC) No 1832/2002 of 1 August 2002, and Commission Regulation (EC) No 1789/2003 of 11 September 2003 of screens with the objective characteristics at issue in the main proceedings, account should be taken of their inherent intended purpose, which consists in reproducing the data from an automatic data-processing machine and from composite video signals. Such screens must be classified under subheading 8471 60 90 of the Combined Nomenclature if they are used solely or mainly in an automatic data-processing system, within the meaning of Note 5B(a) of Chapter 84 of the Combined Nomenclature, or under subheading 8528 21 90 thereof if that is not the case, which is a matter for the national court to determine on the basis of the objective characteristics of the screens at issue in the main proceedings, and in particular those mentioned in the Explanatory Notes relating to heading 8471 of the Harmonised Commodity Description and Coding System established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983, with its amending protocol of 24 June 1986, in particular in points 1 to 5 of the part of Chapter I D relating to display units for automatic data-processing machines.

2.      Commission Regulation (EC) No 754/2004 of 21 April 2004 concerning the classification of certain goods in the Combined Nomenclature cannot be applied retroactively.

[Signatures]


Language of the case: Italian.