Kloosterboer Services BV v Inspecteur van de Belastingdienst/Douane Rotterdam.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2009:382
• Date: 18 June 2009
• Celex Number: 62008CJ0173
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-173/08

Case C-173/08

Kloosterboer Services BV

v

Inspecteur van de Belastingdienst/Douane Rotterdam

(Reference for a preliminary ruling from the Gerechtshof te Amsterdam)

(Common Customs Tariff – Tariff headings – Cooling systems for computers composed of a heat sink and a fan – Classification in the Combined Nomenclature)

Summary of the Judgment

Common Customs Tariff – Tariff headings – Cooling systems for computers composed of a heat sink and a fan

(Council Regulation No 2658/87; Commission Regulation No 1789/2003)

Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1789/2003, must be interpreted as meaning that goods made up of a heat sink and a fan and which are solely intended to be incorporated in a computer must be classified under subheading 8473 30 90 of the Combined Nomenclature in Annex I to that regulation.

Since those goods are composed of two distinct elements, namely, a heat sink and a fan, without either of the two subheadings under which those elements could be classified being more specific than the other, it is appropriate, for the purposes of classifying those goods, to have recourse to the rule in paragraph 3(b) of the general rules and to identify, from among the elements of which they are composed, the one which gives them their essential character. In that regard, the element which gives them their essential character is the heat sink, and not the fan. Since the main purpose of those goods is to absorb the heat of the processor and conduct it away, the element which allows that function to be fulfilled, and which was specially designed for that purpose, is the heat sink.

(see paras 29-34, 37-38, operative part)

JUDGMENT OF THE COURT (Fifth Chamber)

18 June 2009 (*)

(Common Customs Tariff – Tariff headings – Cooling systems for computers composed of a heat sink and a fan – Classification in the Combined Nomenclature)

In Case C‑173/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Gerechtshof te Amsterdam (Netherlands), made by decision of 10 April 2008, received at the Court on 25 April 2008, in the proceedings

Kloosterboer Services BV

v

Inspecteur van de Belastingdienst/Douane Rotterdam,

THE COURT (Fifth Chamber),

composed of M. Ilešič, President of the Chamber, A. Borg Barthet and J.‑J. Kasel (Rapporteur), Judges,

Advocate General: Y. Bot,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 1 April 2009,

after considering the observations submitted on behalf of:

– Kloosterboer Services BV, by M. Boekhoud and M. Janse, advocaten,

– the Commission of the European Communities, by M. Patakia and A. Sipos, acting as Agents, and F. Tuytschaever, advocaat,

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

gives the following

Judgment

1 This reference for a preliminary ruling concerns, first, the validity of point 2 of the table in the Annex to Commission Regulation (EC) No 384/2004 of 1 March 2004 concerning the classification of certain goods in the Combined Nomenclature (OJ 2004 L 64, p. 21) and, secondly, the interpretation, in the event that that regulation is invalid, of the subheadings relevant for the purposes of the classification of a cooling system for computers in the Combined Nomenclature (‘the CN’) 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), as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1) (‘Regulation No 2658/87’).

2 The reference has been made in the course of proceedings between Kloosterboer Services BV (‘Kloosterboer’), a company established in the Netherlands which is a customs forwarding agent, and the Inspecteur van de Belastingdienst/Douane Rotterdam (head of the Rotterdam Customs District) (‘the Inspecteur’) concerning the tariff classification of that cooling system for computers.

Legal context

3 The tariff subheadings of the CN in Regulation No 2658/87 which are relevant to the main proceedings are the following:

‘8414	Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters:
…
	–	Fans:
8414 51	– –	Table, floor, wall, window, ceiling or roof fans, with a self‑contained electric motor of an output not exceeding 125 W:
…
8414 59	– –	Other
8414 59 10	– – –	For use in civil aircraft (1)
	– – –	Other:
8414 59 30	– – – – –	Axial fans
8473	Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472:
…
8473 30	–	Parts and accessories of the machines of heading 8471:
8473 30 10	– –	Electronic assemblies
8473 30 90	– –	Other’

4 Point 2 of the table in the Annex to Regulation No 384/2004 is worded as follows:

Description of the goods	Classification (CN code)	Reasons
(1)	(2)	(3)
2. Apparatus consisting of: – an axial fan with an electrical motor and an electronic assembly for adjusting the speed of the fan; and – an aluminium heat sink. The function of the apparatus is to remove the excess heat of a central processing unit of an automatic data processing machine	8414 59 30	Classification is determined by the provisions of General Rules 1, 3(b) and 6 for the interpretation of the [CN], and by the wording of CN codes 8414, 8414 59 and 8414 59 30. The fan gives the product its essential character. It is the primary component for removing excess heat.

5 Part One of the CN contains ‘preliminary provisions’. That part, Section I, on the general rules, includes under A, paragraphs 1 to 6, ‘General rules for the interpretation of the [CN]’ (‘the general rules’), which state:

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

1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

…

3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

…

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable.

…

6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section and chapter notes also apply, unless the context requires otherwise.’

6 The sections and chapters of the CN are preceded by a certain number of section or chapter notes. In the second part of the CN, note 2 to Section XVI provides:

‘Subject to note 1 to this section, note 1 to Chapter 84 and note 1 to Chapter 85, parts of machines (not being parts of the articles of heading...