The Dutch Supreme Court puts aside the WCO classification opinions and upholds the CN-classification of toner cartridges under heading 3707
On 29 May 2009, the Supreme Court delivered a judgment referring to the classification in the Combined Nomenclature (“CN”) of toner cartridges for photocopying apparatus. The Supreme Court ruled that the toner cartridge in question is to be classified under CN heading 3707 and furthermore explicitly stipulated that the classification opinions of the World Customs Organisation (“WCO”) are to be set aside as far as these are incompatible with the wording of the concerned heading of the CN or if they go manifestly beyond the discretion conferred on the WCO.
The matter concerned the CN classification of a toner cartridge containing a chemical substance (i.e. toner) necessary for the photographic process in specific photocopying apparatus.
In specific, the toner cartridge in question has the following objectives and characteristics:
“The product is a toner cartridge, comprising of a plastic housing in the form of a cylinder (approximate measurements: length of 23 cm and cross-cut of 9 cm), filled with powder i.e. the toner. The upper side of the product has a conical form and a narrow filling opening at its end, which can be sealed by a screw top. The under side of the product is fitted on the outside and breadthwise with agigator ramps which ensure that the toner can flow from the cartridge. The product can solely be used in specific copying apparatus of Ricoh. Inside the copying apparatus, a green bracket holds the cartridge firmly to the copying apparatus. Due to an electrical motor in the copying apparatus, the cartridge is able to move clockwise enabling it to equally disparage the toner on to the magnetic roll.”
The complainant classified the stated toner cartridge under CN heading 9009 90 00 (as being parts and accessories of photocopying apparatus), comprising a zero tariff duty in the year 2000. Due to an examination by the tax/customs authorities, the inspector concluded that the toner cartridge was to be classified under CN heading 3707 90 30 (as being chemical substances for photographic use), comprising a duty of 6%, and accordingly issued a demand for payment of customs duties. The Dutch Regional Court of Appeal ruled in favour of the inspector by confirming classification of the toner cartridge under CN heading 3707 90 30.
The Supreme Court
The complaints put forward at the Supreme Court referred among others to the fact that the Regional Court of Appeal, while basing its judgment, did not take into consideration the cited classification opinions of the WCO related to CN heading 9009 which refer to (toner) cartridges similar to those in question.
With that regard, the Supreme Court stipulated that the notes and opinions of the WCO are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding effect to the contracting parties. These notes and opinions are to be put aside, as far as these are incompatible with the wording of the concerned heading of the CN or if they go manifestly beyond the discretion conferred on the WCO.
Moreover, the Supreme Court referred to the judgments of the European Court of Justice (“ECJ”) in the Turbon-cases, ruling that the stated classification reasoning in those judgments, by classifying ink cartridges under CN heading 3215, is equally applicable to the toner cartridges in question. This reasoning is applicable although the ECJ judgments in the Turbon-cases concern a different product (ink instead of toner) and different CN headings. Therefore, the Supreme Court concludes that the WCO classification opinions, which are dated before the ECJ judgments in the Turbon-cases, do not carry sufficient weight for the Supreme Court to rule otherwise.
The Supreme Court draws a clear line on the force in law of a classification opinion of the WCO in connection with the classifying of a product in the CN. In that regard, it can be concluded that an opinion issued by the WCO, on the classification of a certain product in its Harmonised System has no legally binding force and is no more than an indication assisting in the interpretation of the scope of the various tariff headings of the CN. If such a classification opinion is contrary to the wording of the heading in the CN, it must therefore be disregarded.