ECJ CFI: Appeal Apple against EU Classification Regulation is inadmissable

25 April 2008

Classification regulations are issued where there are differences in classification by EU Member State customs admininstrations of similar or identical items. Mostly, such regulations follow deliberations by the EU Customs Code Committee (Classification Section) which advises the EU Commission. Such regulations are most commonly issued where that Committee fails to decide unanimously. They concern a particular product only. Appeals against such regulations by the manufacturer of that product are, however, very difficult.

The criteria for admissability is if the manufacturer is individually and directly affected by the regulation. However, such regulations are considered as general, and this test is not easily passed. As the European Court of Justice, Court of First Instance, says:

"Thus, according to settled case-law, natural and legal persons may not, as a rule, bring actions under the fourth paragraph of Article 230 EC for annulment of tariff classification regulations. In spite of the apparent specificity of the descriptions which they contain, such measures are none the less of entirely general application, since they concern all products of the type described, regardless of their individual characteristics and origin, and they take effect, in the interests of the uniform application of the Common Customs Tariff, in relation to all customs authorities in the Community and all importers (see Case 40/84 Casteels v Commission [1985] ECR 667, paragraph 11, and Sony Computer Entertainment Europe v Commission, paragraph 58, and the case-law cited)."

An exception is the Sony-Playstation case, where the ECJ held that due to the unique circumstances of that case, Sony's appeal against a classification regulation was admissable. In that case the regulation was annulled. Even though Apple could demonstrate that the subject EU regulation followed from its own application for a Binding Tariff Information, the ECJ held that its appeal was inadmissable:

"It must, however, be made clear that the single fact that the applicant is or is not the sole authorised importer of the product concerned into the Community constitutes a relevant factor for the assessment of the applicant's individual concern 'having regard to the other aspects discussed above', but it is not sufficient, in itself, to establish that the applicant is individually concerned by the contested regulation (see, to that effect, Sony Computer Entertainment Europe v Commission, paragraph 75). In that regard, the applicant does not claim to be the exclusive importer of the LCD monitors in question and makes no mention of any right entitling it to have imports of those products into the European Economic Area prevented. It is concerned by the contested regulation solely in its objective capacity as an actual or potential importer of the 20" LCD monitors. As regards the description of the product which is the object of the classification in question, it is a very general description. In addition, no photography, no logo nor any other sign of an Apple trade mark appears in the table annexed to the contested regulation."

This recent judgment (we do not know yet if there is or will be an appeal) proves again that resolving classification disputes through referral to the Customs Code Committee can be problematic where following classification regulations may not be subject to a direct challenge by the manufacturer of the relevant product.

Read the full judgment in the Apple case here.