Joined Cases C‑435/15 and C‑666/15
GROFA GmbH
v
Hauptzollamt Hannover
and
XandGoPro Coöperatief UA
v
Inspecteur van de Belastingdienst/Douane kantoor Rotterdam Rijnmond
(Requests for a preliminary rulingfrom the Finanzgericht Hamburg and Rechtbank Noord-Holland)
(References for a preliminary ruling — Common Customs Tariff — Tariff headings — Classification of goods — Video Camera Recorders — Combined Nomenclature — Subheadings 8525 80 30, 8525 80 91 and 8525 80 99 — Explanatory notes — Interpretation — Implementing Regulations (EU) Nos 1249/2011 and 876/2014 — Interpretation — Validity)
Summary — Judgment of the Court (Ninth Chamber), 22 March 2017
Customs union—Common Customs Tariff—Tariff headings—Products with the characteristics of the three camera models in the GoPro Hero 3 Black Edition range—No application by analogy of Implementing Regulation No 1249/2011—Insufficient similarity of the goods—Application by analogy of Implementing Regulation No 876/2014—Classification under subheading 8525 80 99 of the Combined Nomenclature—Invalidity of the regulation
(Commission Regulations No 1249/2011 and No 876/2014)
Customs union—Common Customs Tariff—Tariff headings—Recording of at least 30 minutes of a single piece of video footage within the meaning of the Explanatory Notes to the Combined Nomenclature concerning subheadings 8525 80 30, 8525 80 91 and 8525 80 99—Meaning—Video footage of more than 30 minutes recorded in separate files each lasting less than 30 minutes—Included
(Commission Regulation No 2658/87, Annex I, subheadings 8525 80 30, 8525 80 91 and 8525 80 99)
Customs union—Common Customs Tariff—Tariff headings—Video camera recorder capable of recording signals from external sources without being able to reproduce them through a television set or external monitor—Video camera recorder being able to play on an external screen or monitor only files which it has itself recorded through its lens—Classification under tariff subheading 8525 80 99 of the Combined Nomenclature—Precluded
(Commission Regulation No 2658/87, Annex I, subheading 8525 80 99)
Commission Implementing Regulation (EU) No 1249/2011 of 29 November 2011 concerning the classification of certain goods in the Combined Nomenclature must be interpreted as meaning that it does not apply by analogy to products with the characteristics of the three camera models in the GoPro Hero 3 Black Edition range at issue in Case C‑435/15.
Those cameras are not identical to ‘pocket sized video recorders’ covered by that regulation, since, as the referring court notes, those products differ, inter alia, in respect of their capacity to take photographs and by the fact that they do not have a digital zoom, loudspeaker or a built-in internal memory.
As the cameras at issue in Case C‑435/15 are not sufficiently similar to the products which are classified under Implementing Regulation No 1249/2011, that regulation does not apply to them.
Commission Implementing Regulation (EU) No 876/2014 of 8 August 2014 concerning the classification of certain goods in the Combined Nomenclature must be interpreted as meaning that it is applicable by analogy to products with the characteristics of the three camera models in the GoPro Hero 3 Black Edition range at issue in that case, but that it is invalid.
In the present case, Implementing Regulation No 876/2014 classifies, under subheading 8525 80 99 of the CN, ‘action cameras’, without requiring that those cameras may be used independently to record external video signals, that is to say, without relying on external materials or software with which they were not originally equipped. Such an independent recording capacity is a prerequisite for the classification of goods under tariff subheading 8525 80 99 of the CN. Failing that, the products must be classified not under subheading 8525 80 99 but rather under subheading 8525 80 91 of the CN (judgment of 5 March 2015, Vario Tek, C‑178/14, not published, EU:C:2015:152, point 32).
It follows that Implementing Regulation No 876/2014, in so far as it classifies ‘action cameras’ under subheading 8525 80 99 of the CN without specifying that they must, for the purpose of that classification, be capable of recording independently from external video signals, is incompatible with the scope of that subheading.
(see paras 36, 42, 43, 50, 51, 53, operative part 1 and 2)
Subheadings 8525 80 30, 8525 80 91 and 8525 80 99 of 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 (EU) No 1006/2011 of 27 September 2011, from Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012 and from Commission Implementing Regulation (EU) No 1001/2013 of 4 October 2013, must be interpreted, having regard to the Explanatory Notes to the CN concerning those subheadings, as meaning that video footage of more than 30 minutes recorded in separate files each lasting less than 30 minutes must be considered to be a recording of at least 30 minutes of a single piece of video footage, irrespective of whether the user is unable to perceive the transition from one file to the next during the playback of those files or, conversely, whether he must, in principle, during that playback, open each of the files separately.
(see para. 60, operative part 3)
The Combined Nomenclature set out in Annex I to Regulation No 2658/87, in the versions resulting, successively, from Implementing Regulations No 1006/2011, No 927/2012 and No 1001/2013, must be interpreted as meaning that a video camera recorder which is capable of recording from signals from external sources, without, however, being able to reproduce them by means of an external television receiver or monitor, that video camera recorder being able to play on an external screen or monitor only files which it has itself recorded through its lens, cannot be classified under tariff subheading 8525 80 99 of that Combined Nomenclature.
(see para. 67, operative part 4)