THE DUTCH SUPREME COURT's RULING ON TONER CARTRIDGES

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THE DUTCH SUPREME COURT’s RULING ON TONER CARTRDIGES
Dutch Supreme Court-Toner Cartridges Customs Classification
The
Dutch Supreme Court puts aside the WCO classification opinions and
upholds the CN-classification of toner cartridges under heading 3707
(toner).
JULY 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.

Factual background
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.[1]Moreover, the Supreme Court referred to the judgments of the
European Court of Justice (“ECJ”) in the Turbon-cases[2], 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.

Conclusion
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.

[Author]

July 14, 2009 at 11:34 AM