Revenue and Customs v Epson Telford Ltd

On 4 May 2007 Mr Justice Henderson allowed an appeal by the Commissioners for HM Revenue and Customs from a decision of the VAT and Duties Tribunal (Elsie Gilliland, chairman, and Gillian Pratt) released on 19 May 2006. The Tribunal had allowed an appeal by Epson Telford Limited (“Epson”) from decisions of HM Commissioners of Customs and Excise, dated respectively 15 October 2004 and 31 January 2005, as to the classification of second and third generation Epson ink printer cartridges for the purposes of customs duties on goods imported from outside the European Union. Put shortly, the question in dispute was whether the relevant cartridges should be classified as ink (as the Commissioners had ruled) or as parts of printers (as Epson contended). If classified as ink, the cartridges were liable to customs duty at 6.5%: if classified as parts of printers, they could be imported free of duty.

Epson sought permission to appeal from the judge’s order. Its appellant’s notice included an application for an order that the matter be referred to the Court of Justice, under CPR 68 and article 234 of the EC Treaty, for a preliminary ruling on questions of Community law on which it was said that, notwithstanding that Court’s decision in TurbonII, yet further guidance was required. On 6 November 2007 this Court (Lord Justice Mummery and Lord Justice Lloyd) adjourned those applications with a direction that they be listed for hearing on notice, with the appeal to follow forthwith if permission were granted. We have heard full argument on the applications and on the appeal.

Customs duties are levied on goods imported into the European Community in accordance with the rules and provisions of the Common Customs Tariff established by Council Regulation (EEC) 2658/87 of 23 July 1987. In particular, the level of customs duties is determined at Community level on the basis of the combined nomenclature established by article 1 of Regulation 2658/87 and article 20.3 of Regulation 2913/92. The combined nomenclature – or, in abbreviated form, “CN” - is reissued annually. It is in three Parts: Part One – Preliminary Provisions; Part Two –Schedule of Customs Duties; and Part Three – Tariff Annexes. Part Two is divided into Sections; which are, in turn, divided into Chapters and sub-divided into headings and sub-headings.

In the present context, the relevant Sections, Chapters and headings in Part Two of the combined nomenclature reissued as Annex 1 to Commission Regulation (EC) 1810/2004 are (i) Section VI (Products of the chemical and allied industries), Chapter 32 (Tanning or dyeing extracts . . . inks), heading 3215 (Printing ink, writing or drawing ink and other inks, whether or not concentrated or solid) and (ii) Section XVI (Machinery and mechanical appliances . . . ), Chapter 84 (Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof), headings 8471 (Automatic data-processing machines and units thereof . . . ) and 8473 (Parts and accessories . . . suitable for use solely or principally with machines of headings 8469 to 8472).

It is common ground between the parties that the Epson printers in connection with which the ink cartridges relevant in the present proceedings are used are classified under heading 8471: they are within the sub-group CN code 8471.60.40 (Printers). The issue is whether the ink cartridges are properly to be classified under heading 3215 - that is to say, under one or other of the sub-groups CN code 3215.11.00 (Printing ink – Black) and CN code 3215.19.00 (Printing ink – Other); or under heading 8473 – that is to say, under one or other of the sub-groups CN code 8473.30.10 (Parts and accessories of the machines of heading 8741 –Electronic assemblies) or 8473.30.09 (Parts and accessories of the machines of heading 8471 – Other).

Part One of the combined nomenclature contains, at subsection A of Section I, General Rules for Interpretation (“GRIs”). The GRIs have the force of law. GRI 1 provides that 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 provisions which follow. GRI 2(b) is in these terms:

“2(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.”

GRI 3 requires that:

“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:

(a)

the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;

(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;

(c)

when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.”

GRIs 4 and 5 are in these terms:

“4

Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.

5

In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:

(a)

camera cases, musical instrument cases, gun cases, drawing-instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

(b)

subject to the provisions of rule 5(a), packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.”

As the judge observed, at paragraph [21] of his judgment, [2007] EWHC 1045 (Ch), GRIs 1 to 4 provide a hierarchical, or sequential, set of principles: if the classification can be ascertained by the application of a prior principle it is unnecessary (and impermissible) to proceed to the application of a later principle. That is emphasised, in the case of GRI 3, by explanatory note (I) to that rule:

“(I)

This Rule provides three methods of classifying goods which, prima facie, fall under two or more headings, either under the terms of Rule 2(b) or for any other reason. These methods operate in the order in which they are set out in the Rule. Thus Rule 3(b) operates only if Rule 3(a) fails in classification, and if both Rules 3(a) and (b) fail, Rule 3(c) will apply. The order of priority is therefore (a) specific description; (b) essential character; (c) heading which occurs last in numerical order.”

The explanatory notes to GRI 3(b) include the following:

“(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.”

As I have said, GRI 1 provides that it is only if “the terms of the headings and any relative section or chapter notes . . . do not otherwise require” that classification is to be determined in accordance with the provisions of GRIs 2 to 5. That is emphasised by explanatory note (II) to GRI 3: “The Rule can only take effect provided the terms of headings or Section or Chapter Notes do not otherwise require”. Note 2 to Section XVI in Part Two of the CN provides, so far as material, that parts of machines (other than parts which are themselves goods included in certain specified headings):

“(b)

. . . if suitable for use solely or principally with a particular type of machine or with a number of machines of the same heading . . . are to be classified with machines of that kind or in heading . . . 8473 . . . as appropriate. . . .”

The explanatory notes to the Harmonised System (“HSENs”) published by the World Customs Organisation (which do not have the force of law) include a heading note in respect of CN 3215. It concludes:

“This heading does not include:

(a)

Developers consisting of a toner . . . used in photocopying machines (heading 37.07)

(b)

Refills for ball point fountain pens comprising the ball point and ink reservoir (heading 96.08). On the other hand mere ink filled cartridges for ordinary fountain pens remain in this heading.

(c)

Inked ribbons for typewriters or ink-pads (heading 96.12)”

As I have said, the present proceedings relate to the classification of second and third generation (“G2” and “G3”) Epson ink printer cartridges. The proceedings before the Court of Justice in Turbon I and Turbon II related to the classification of an earlier, first generation (“G1”), Epson ink printer cartridge. There were a number of differences between G1 cartridges, on the one hand, and G2 and G3 cartridges, on the other hand. Those are set out in detail in the decision of the Tribunal in the present proceedings; and are summarised by the judge at paragraphs [48] and [49] of his judgment. I shall need to refer to them later in this judgment. At this stage it is sufficient to note that the printer cartridges under consideration by the Court of Justice in Turbon I and Turbon II were not the same as the printer cartridges under consideration in the present proceedings. Whether the differences are material in the context of classification under the combined nomenclature is an issue which it is necessary for this Court to decide.

In Case C-276/00 (Turbon I)the Court of Justice concluded, on a reference for a preliminary ruling by the Hessisches Finanzgericht, that G1 cartridges were to be classified as ink under heading 3215. The reasoning which led the Court to that conclusion is contained in paragraphs 23 to 34 of its judgment; and is accurately summarised by the judge at paragraphs [29] to [34] of his judgment. That summary is not, I think, contentious and I gratefully adopt it:

“[29] First, the Court pointed out that the cartridges were not explicitly covered either by the wording of the CN headings or by the notes to the CN sections and chapters. In this respect, the cartridges were unlike refills for ball point fountain pens comprising the ball point and ink-reservoir and inked ribbons for typewriters or ink pads, which were all covered by specific tariff headings.

[30] Next, the Court referred to GRI 3(b) and said it was settled case-law that in order to identify from among the materials of which a product is composed which is the one that gives it its essential character, it is necessary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it: see Case C-288/99 VauDe Sport [2001] ECR I-3683 at paragraph 25. The Court then continued:

‘27. In this case the element which gives the cartridge its essential character is the ink which it contains. The essential function of the cartridge consists in containing the ink and supplying the printer so as to enable the printer to transcribe on to paper work done with the aid of a computer.

28.

That finding is not called into question by the national court’s observation that the cartridge can be refilled. The fact that this attribute gives the plastic casing a longer life does not alter the cartridge’s intrinsic function, which is to contain ink and supply the ESC printer.’

[31] The Court then moved on to consider whether the cartridge should rather be regarded as a part or accessory of a printer and classified under heading 8473, in view of the fact that it was specifically designed for, and could only be used by, a particular type of printer, and the further fact that it included ‘a technically sophisticated mechanism ensuring a controlled flow of ink during the printing process’ (paragraph 29).

[32] The Court observed in paragraph 30 that the word ‘part’ within the meaning of CN heading 8473 implies a whole for the operation of which the part is essential: see Case C-339/98 Peacock AG v Hauptzollamt Paderborn [2000] ECR I-8947 (‘Peacock’) at paragraph 21. The Court then said that the cartridge did not satisfy this test, because although a printer could not carry out its intended functions without an ink cartridge, the mechanical and electronic functioning of the printer in itself was not in any way dependent on such a cartridge. Accordingly,

‘The inability of the printer, in the absence of an ink-cartridge, to transcribe on to paper the work produced with the aid of a computer is caused by lack of ink rather than a malfunctioning of the printer.’

[33] Having thus decided that the cartridge could not be regarded as part of a printer, the Court went on in paragraph 32 to reject the alternative argument that it could be classified as an accessory, and in paragraph 33 stated its conclusion in the following terms:

‘It follows from the foregoing considerations that goods such as those at issue in the main proceedings should, pursuant to general rule 3(b), be classified under heading 3215 of the Combined Nomenclature.’

[34] Finally, in paragraph 34 the Court found corroboration for this conclusion in the HSEN for heading 3215, which includes mere ink-filled cartridges for fountain pens:

‘As the Advocate General rightly points out at point 59 of his Opinion, such cartridges are to fountain pens what the cartridges at issue in the main proceedings are to ESC printers, since their function is both to hold the ink and to release a regular flow of ink necessary for the use of an instrument designed to print on paper and they have a format, which varies according to brand, such as to allow them to fit inside the pen for which they are designed.’”

The judge observed, at paragraph [35] of his judgment, that there was a certain illogicality in that reasoning: in that, having begun by considering (at paragraphs 25 to 28) the position under GRI 3(b) which (as he pointed out) presupposed that it had not been possible to classify the cartridges under any of the previous principles, the Court then went on (at paragraph 33) to conclude that the cartridges could not be regarded as part of a printer. If that were right, “GRI 3 did not come into play at all, because it applies only where goods are prima facie classifiable under two or more headings”. Thus “the logical consequence of saying that the cartridges cannot qualify as part of a printer is that they must be classified as ink pursuant to GRI 1 and 2(b), and not, as the Court expressly said in paragraph 33, that this result is reached pursuant to GRI 3(b)”. Nevertheless, in the judge’s view, that apparent illogicality did not detract from the force of the point made by the Court of Justice in paragraphs 27 and 28 of its judgment “that the element which gives the cartridge its essential character is the ink which it contains” As he said (at paragraph [36] of his judgment): “It is implicit in this finding that the ink element prevails, for the purposes of GRI 3(b), over any other material or component comprised in the cartridge, or any other rival classification heading which might apply”.

At paragraph 30 of its judgment in Turbon I the Court of Justice had made the assumption that “although a printer could not carry out its intended functions without an ink cartridge, the mechanical and electronic functioning of the printer in itself was not in any way dependent on such a cartridge”. When the main proceedings resumed in the national court, the plaintiff (Turbon International GmbH) challenged that assumption. That challenge was successful: the national court was satisfied, after hearing evidence, that the printer did not function in the absence of an ink cartridge. On the basis of that finding, the national court made a further reference to the Court of Justice, seeking a preliminary ruling on the question whether, notwithstanding (and contrary to) the earlier ruling in Turbon I, “should not the ink cartridge described [in that ruling] in fact be classified as a part or accessory of a printer under CN heading 8473 because the mechanical and electronic functioning of the printer is dependent upon the presence of a cartridge of that kind”.

That further reference came before the Court of Justice in Case C-250/05 (Turbon II). The Opinion of the Advocate General contains a careful and illuminating analysis of the reasoning in the judgment in Turbon I. She concluded, at paragraph 42 of her Opinion that “on the approach taken by the Court in its first judgment, the requirements for applying general rule 3(b) of the CN – which the Court relied on as the essential basis of its judgment – are not satisfied”. As she explained:

“43

Specifically, general rule 3(b) of the CN may be applied only if the goods are primafacie classifiable under two headings. It is apparent from paragraph 25 of its first judgment that the Court assumed that the ink-cartridges were prima facie classifiable under both CN heading 3215 and CN heading 8473. However, in paragraphs 30 to 33 it explained that the conditions for classification under CN heading 8473 were not satisfied.

44

Accordingly, classification under CN heading 3215 was required by general rule 1 of the CN in conjunction with general rule 2(b) of the CN or general rule 5 of the CN, and not because of general rule 3 of the CN. The scheme of the general rules 2 to 5 of the CN are applicable only if it is not otherwise possible to make a clear-cut classification. Thus the reasoning in paragraphs 30 to 33 of the first judgment was decisive, and not the criteria in general rule 3 of the CN.

As appears from those paragraphs, the Advocate General identified the same “illogicality” in the judgment of the Court of Justice in Turbon I as Mr Justice Henderson noted, subsequently, at paragraph [35] of his judgment in the present proceedings.

On the basis of her own analysis of the position, the Advocate General reached the conclusion that the ink cartridges should be classified under CN 8473. In the circumstances that, unusually, the Court of Justice differed from the Advocate General, it is, I think, pertinent to examine her analysis (on which Epson places some reliance) rather more closely than might otherwise be necessary. That analysis may, I think, fairly be summarised as follows:

The critical step in that reasoning, in the present context, is that to which I have referred in the third sentence of sub-paragraph (9) of the previous paragraph: that neither of the two components – ink or cartridge – could be said to give the ink cartridge its essential character. It is, I think, necessary to set out, in full, the reasoning which led the Advocate General to that conclusion. It is found at paragraphs 93 to 99 of her Opinion:

“93

In its first judgment the Court assumed that the ink gave the ink-cartridges their essential character. In making this assumption the Court supposed that the cartridge was a simple ink container, similar to an ink filled cartridge for a fountain pen, and did not play any further role in the operation of the printer.

94

This assumption can no longer be maintained. Having regard to the dual purpose of the cartridge – namely to contain the ink and to form a functional unit with the printer – it is no longer possible to hold that the ink gives the whole of the ink-cartridge its essential character.

95

As paragraph VIII of the explanatory note to general rule 3(b) of the HS states, the factor which determines the essential character of the goods can vary between different kinds of goods, for example, it may be the nature of the material of the component, its bulk, quantity, weight or value, or the role of the material in relation to the use of the goods.

96

The nature of the two components of the ink-cartridges is a combination of a functional unit with the printer and consumable material. Both components are of equal importance for the use of the goods. It is not possible to use the ink without the cartridges, which have been specially designed for the printer. Although the cartridges may be used without the ink, if they are empty they do not fulfil the purpose of the print process. Given this point, questions as to the bulk, quantity, weight and value of the two components become less important.

97

It is settled case-law that to answer the question as to whether a component of goods gives them their essential character, it is necessary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it.

98

The national court has found that the essential characteristics of the ink-cartridges is that they are designed to supply ink which is suitable for the system to the print head as part of a print system in which all the elements depend on one another. As held above, however, neither of the two components gives this character without the other component.

99

It follows that neither of the two components alone gives the ink-cartridge its essential character. . . .”

The Court of Justice agreed with the Advocate General’s view that the ink cartridges could not be classified under GRIs 2 or 3(a). It said this:

“19

. . . An ink cartridge, such as that in issue in the main proceedings, is thus made up of two elements which, when considered separately, may each be classified under one heading, namely subheadings 3215 90 80 or 8473 30 90 of the CN, but neither of those headings covers the goods as a whole.

20

Since the product at issue is composed of different materials and neither of the two subheadings mentioned above is more specific than the other, the sole provision to which recourse may be had for the purpose is general rule 3(b) (see to the effect, Case 253/87 Sportex [1988] ECR 3351, paragraph 7).”

The Court explained the basis of classification under GRI 3(b) in terms which differ in substance from those used by the Advocate General only in one respect:

“21.

Under that general rule [GRI 3(b)], in carrying out the tariff classification of goods it is necessary to identify, from among the materials of which they are composed, the one which gives them their essential character. This may be done by determining whether the goods would retain their characteristic properties if one or other of their constituents were removed from them (Sportex, paragraph 8; see also VauDe Sport [2001] ECR I-3683, paragraph 25, and Turbon International . . .

22

In the same way, as stated by paragraph VIII of the explanatory note to the HS on general rule 3(b), the factor which determines the essential character of the goods may, depending on the type of goods, be determined for example, by the nature of the material or component, its bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods.”

The difference can be seen by comparing paragraph 97 of the Advocate General’s Opinion – in which she expressed the view that, to answer the question whether a component of goods gives them their essential character, “it is necessary to determine” whether the product would retain its characteristic properties if one or other of its constituents were removed from it – with the second sentence of paragraph 21 of the judgment of the Court of Justice: “This [identifying the component which gives the goods their essential character] may be done by determining whether the goods would retain their characteristic properties if one or other of their constituents were removed from them”.

The Court’s approach to the task of identifying the component which gave the goods their essential characteristic led it to differ from the Advocate General’s view that in the case of G1 ink cartridges neither of the two components – ink or cartridge – could be said to provide a basis for classification under GRI 3(b). The Court held that the ink cartridges could be classified under that rule. The reasoning is found at paragraph 23 of its judgment:

“23.

Even if an ink cartridge, such as that at issue in the main proceedings, is constructed in such a way that the printer does not function in the absence of that cartridge, the fact remains that the ink contained in the cartridge is the most important factor for the purpose of using the goods at issue. In fact, the ink cartridge is not inserted in the printer in order to make the printer itself function but specifically to supply it with ink. Therefore, the ink must be regarded as determining the essential character of an ink cartridge, such as that at issue in the main proceedings.”

The Court answered the question referred to it in Turbon II in these terms (so far as material):

“Annex I to Council Regulation (EEC) No 2658/87 . . . must be interpreted as meaning that an ink cartridge without an integrated print head . . . which, as regards both the cartridge and the ink, can be used in a printer with the same characteristics as Epson Stylus Color inkjet printers, must be classified under subheading 3215 90 80 of the Combined Nomenclature.”

It is important to note – as Epson has properly emphasised in argument - that, in terms, that answer is specific to the first generation or G1 cartridges which were under consideration in both Turbon I and Turbon II. In the course of its judgment in Turbon II the Court had said this:

“24.

That interpretation is not affected by the argument of the defendant in the main proceedings, according to which ink cartridges with an integrated print head are classified under heading 8473 of the CN. Since such ink cartridges are composed of materials other than those at issue in the main proceedings, the tariff classification of the former does not necessarily determine the tariff classification of the latter.”

The substantive question in the present proceedings, as I have said, is whether the reasoning of the Court of Justice in Turbon II leads to the conclusion that, notwithstanding the differences between G1 cartridges, on the one hand, and G2 and G3 cartridges, on the other hand, , G2 and G3 cartridges should also be classified under CN heading 3215 rather than under CN heading 8473.

The Tribunal’s detailed findings of primary fact are set out at paragraphs 22 to 39 of its decision, [2006] UKVAT (Customs) C00217. The judge noted that, before him, none of those findings was challenged by the Commissioners. He identified what he saw as the salient points amongst those findings at paragraph [48] of his judgment:

“(a)

The cartridges consist of a moulded injection plastic main body within which the ink is contained. In the case of the G2 cartridges, the ink is contained within a specially designed sponge, or foam, into which the ink is injected under pressure during the manufacturing process. In the case of the G3 cartridges, the ink fills a complex series of channels, reservoirs and veins within the body of the cartridge and there is no sponge, although there is a special valve.

(b)

The flow of ink to the delivery port in the G2 cartridges is regulated by the characteristics of the sponge and by a series of narrow sinuous channels in the top of the cartridge colloquially known as a ‘snake road’ through or along which air can flow at an appropriate rate. The flow of ink in the G3 cartridges is regulated by a smart valve, and there is again a ‘snake road’ designed to relieve any vacuum.

(c)

Unlike the G1 cartridges, both G2 and G3 cartridges are designed to be removable at the option of the user.

(d)

The G2 and G3 cartridges also differ from the G1 cartridges in that they each have a printed circuit board and electronic chip permanently fixed to them. The electronic chip is a memory device, with both read and write functions. The circuit board and the chip are the subject of a European patent which was filed in 1999 and published in May 2000. The main function of the chip, so far as the user is concerned, is to store information as to the amount of ink in the cartridge which has been used, and how much is still available for future use. Because the cartridge is removable, and can be used in more than one printer, the chip can be read in any other compatible Epson printer. The printer reads the information stored on the cartridge, and thus ascertains the amount of ink still remaining in it.

(e)

The provision of information on the amount of ink remaining within the cartridge serves two main purposes. First, it enables the user to judge whether there is enough ink left for the job which he wishes to carry out. Secondly, it is an important safety feature which can prevent damage occurring to the print head if it attempts to print when there is not enough ink in the cartridge. Dry printing, or dry firing as it is sometimes called, can cause damage to the print head.

(f)

As well as information about the amount of ink remaining, the chip also contains a quantity of ‘service information’ which can be accessed by the manufacturer of the cartridge if it has to be returned to it under warranty or for service. For example, the chip records such matters as the date and time of manufacture, the storage life of the ink, the frequency of cleaning of the print head, the type of ink and other similar information.

(g)

Although it is possible to re-fill a used G2 or G3 cartridge, this is not recommended by Epson and the cartridges are intended to be disposed of once the ink within them has been used.

(h)

When the printer reads from the chip that the level of ink remaining in the cartridge becomes low, a warning triangle will be flashed up on the screen of the user’s personal computer accompanied by an exclamation mark. If printing continues, a red circle with a cross in it will eventually appear on the user’s screen. Mr Sykes described this as being ‘a bit like an oil warning light in your car’, but it does more than merely give a warning because in these circumstances the printer will not print at all. The Tribunal were satisfied from Mr Sykes’ evidence

‘that the printer will not actually print a document unless after communicating with the chip it is satisfied that there is sufficient ink left in the cartridge to enable printing to be carried out without the risk of dry firing occurring and consequent damage being caused to the print head. We are also satisfied that if no cartridge is present in the printer or if the chip is defective printing cannot proceed.’

By contrast, with the G1 cartridges considered in Turbon I it was possible for the printer to go through the whole printing process, even if there was no ink in the cartridge. In the case of the G2 and G3 cartridges, dry firing is not possible and it cannot be said that the only reason why an image does not appear on the paper which is fed into the machine is because there is no ink in the cartridge.”

The conclusions which the Tribunal drew from its primary findings of fact are set out at paragraphs 43 to 47 of its decision. The judge incorporated those paragraphs under paragraph [49] of his judgment:

“43

The first matter to consider is what are the objective characteristics and properties of the cartridges. The 2^nd and 3^rd generation Epson cartridges are more than mere containers or receptacles for holding or storing ink until the ink can be used by the printer. It is undoubtedly the case that the cartridges do perform the function of preserving and storing the ink until it is used by the printer but they also process the ink so that the cartridge delivers the ink at the right flow rate and at the right pressure to the delivery port and valve which interfaces with the mating device on the printer and through which ink is drawn by the printer to the printhead. The piezo-electric printheads operate by depositing droplets in varying sizes on the paper. This part of the process requires precise control of surface tensions and this is achieved by the use of negative pressures in the printhead. This aspect of the process is regulated by a piezo electric control contained in the printhead.

44

The cartridges however process the ink until it leaves the cartridge at the appropriate pressure and flow rate. It is not the case that the ink simply flows by gravity to the delivery port. If that were the case the pressure and rate of flow would diminish as the amount of ink remaining in the cartridge decreases. In the case of the 2^nd generation cartridges the ink is drawn to the delivery port and the valve at the appropriate rate and pressure by capillary action through the sponge. In the case of the 3^rd generation cartridges this function is performed by the smart valve which senses changes in pressure and opens or closes as appropriate. There is also a mixing function referred to as agitation. In both types of cartridge the appropriate rates of flow and pressure are maintained until the amount of ink in the cartridge is too low to permit the safe operation of the printhead.

45

The ingress of air into the cartridges to enable the vacuum which would otherwise be created when ink passes from the cartridge into the printhead to be avoided is also controlled by the design of the snake road and in the case of the 3^rd generation cartridges also by the air push valve at the side of the cartridge. Thus it is not correct simply to describe the cartridges as ink. They also are a system whereby ink is delivered to the printhead at the correct rate of flow and pressure. If the correct rate of flow and pressure is not maintained this will impact upon the piezo-electric droplet control.

46

As well as regulating the rate of flow and pressure of the ink as it leaves the cartridge the 2^nd and 3^rd generation cartridges are also in direct mechanical and electrical contact with printer. The chip in the cartridge does not itself produce the necessary information. The position is that information has been placed in the chip memory on the manufacture of the cartridge. This includes the amount of ink in the cartridge when full. When the cartridge is inserted into the printer this information is read by the electronics in the printer and as printing is carried out the printer calculates or estimates the amount of ink used and transfers or communicates this information to the chip on the cartridge so that the cartridge always has written in it the estimated amount of ink remaining in the cartridge. This information is thus as we have already said read by the printer whenever the cartridge is in the printer. The cartridge contains a running record of the estimated amount of ink remaining in it. Simply to categorise the essential characteristics and properties of the cartridge as a container to hold ink fails to give any weight to the fact that it is also a system for the delivery of the ink to the printhead at the correct rate of flow and pressure and also moreover is a system which contains information about the estimated amount of ink in the cartridge which can be read electronically by the printer. The cartridge is clearly in our view more than ink and it performs functions other than that of a receptacle for ink.

47

The ink filled cartridge is not itself properly described simply as ink in the ordinary sense of that term nor is the cartridge merely a container which holds ink. The control of the rate of flow and of the pressure of the ink and the ability for information as to ink amounts to be read by the printer are also important characteristics and properties of the cartridge and cannot be relegated to the status of minor or peripheral characteristics. The fact that if the printer detects that the ink levels are too low for the continued safe operation of the printhead and the printer then ceases to print (or cannot begin to print) is also an important characteristic of the cartridge.”

The Tribunal took the view that the ink cartridges under consideration (G2 and G3 cartridges) were capable of classification under GRI 3(a). It said this:

“52

In our judgment the heading which provides the most specific description is 8473. Heading 3215 does not in our view accurately describe the essential characteristics of the cartridges in question. It describes only one element of the ink filled cartridge. The presence in the printer however of a cartridge containing ink is in fact essential if the printer is to operate as a device or means for printing a document which is in our view the principal or essential purpose for which the printer has been designed. It is not just the case that the printer cannot produce an image on the paper which has been loaded on the printer because there is no ink for the printhead to apply to the paper. The design of the cartridges is such that the printing process cannot take place unless there is both a cartridge in the printer and sufficient ink in the cartridge to permit the printer to operate without risking damage to the printhead by dry firing. The printer simply does not attempt to print an image on the paper. Even if it is correct that the printer may be said to be operating when it cannot in fact go through the printing process and can only give a warning that printing cannot proceed, this being something which the printer has been designed to do when there is not a cartridge inserted containing sufficient ink, nevertheless that is in our view a purely secondary or ancillary function of the printer and one which is intended to warn the user that if the document is to be printed action must be taken to ensure that another cartridge containing sufficient ink is inserted into the printer. The essential or primary purpose of a printer is to print, not to give warnings that it cannot print. ”

The Tribunal reached that conclusion without the benefit of the analysis in the Advocate General’s Opinion in Turbon II – which was delivered some three weeks after the decision had been released. Epson does not seek to rely on the reasoning in paragraph 52 of the Tribunal’s decision; and I intend no discourtesy in taking the view that it is unnecessary, in the context of this appeal, to say more than that the reasoning is inconsistent with the analysis of both the Advocate General and the Court in Turbon II.

The Tribunal considered what its view would have been if it were wrong in its conclusion that the cartridges were capable of classification under GRI 3(a). It rejected classification under GRI 3(b):

“53

. . . GRI 3(b) would not in our view support the view that 3215 is the appropriate heading. The essential characteristic of the cartridge is not simply that it is ink. The plastic housing and the attachments thereto are different from the ink and they are the means by which the ink is delivered to the port at the correct rate of flow and pressure and thence to the printhead. Further, the chip on the cartridge holds information which is continually updated by the printer as printing takes place and which the printer reads and uses to determine whether printing should proceed. In our view these components are as important as the ink to the proper functioning of the printer as an instrument for printing an image on paper. The essential characteristic of the cartridge consists in our view of both the presence of the ink and the means for the delivery of the ink at the correct rate and pressure to the printhead and the safety device intended to prevent damage to the printhead by dry firing. Rule 3(b) does not determine the matter. ”

As the Tribunal observed, that left rule 3(c) for consideration. It concluded that the effect of that rule, also, would be to classify the cartridges under CN heading 8473 (parts of printers) on the ground that that was numerically the later heading.

The Commissioners appealed to the High Court. The judge rejected the Tribunal’s conclusion that the cartridges could be classified under GRI 3(a), essentially for the reasons identified by the Advocate General (and endorsed by the Court of Justice) in Turbon II. He held, further, that – in the light of the Court’s decision in Turbon II – the Tribunal were wrong to take the view that the ink cartridges could not be classified under GRI 3(b). He said this:

“[66] . . . In my judgment the decision of the ECJ in Turbon II establishes the following propositions in relation to G1 cartridges:

(a)

the essential character of the cartridges should be determined by reference to the purpose for which they are used;

(b)

the purpose of inserting a cartridge into the printer is to supply it with ink, not to make the printer itself function; and

(c)

the ink is therefore the most important constituent material (paragraph 22 of the judgment), or the most important factor (paragraph 23), for the purpose of using the cartridges.

In so concluding the ECJ specifically rejected the approach of the Advocate General, who had held that the cartridges were a combination of a functional unit with the printer and consumable material, and that neither of these two components alone gave the cartridges their essential character because they were both equally indispensable.

[67] In my view the approach and reasoning of the court in Turbon II apply with equal force to the G2 and G3 cartridges. I can see no reason why the advances in design and technology incorporated into the G2 and G3 cartridges should make it any less appropriate to focus on the purpose for which the cartridges are used as providing the key to their essential character. That purpose is still to supply the printer with ink. Accordingly the ink should still be regarded as the most important constituent material or factor. If that is the correct approach, it is nothing to the point to argue, as Epson does, that the cartridges are essential to the functioning of the printer, or that they transmit and receive electronic data for various purposes. From one point of view, all that is true; but it does not impinge on the basic point that when a user places a G2 or G3 cartridge in a printer he does so in order to supply it with ink, that being one of the two key raw materials that the printer needs in order to fulfil its basic function of printing documents.

[68] In any event, as [counsel for the Commissioners] points out, it can only be true in a rather narrow sense to say that the cartridges are essential to the functioning of the printer. A printer is a highly complex piece of machinery, and in many, perhaps most, respects its mechanical operation has nothing to do with the supply of ink. If one narrows the focus to those aspects of its operation which are dependent on the insertion of ink cartridges (such as the printing of documents in response to a print command, and the prevention of dry firing when ink levels are low) the effect is to reinforce, rather than detract from, the central importance of the ink as the key component of the cartridges. In the absence of ink no printing can take place; and again it is the absence of ink which causes dry firing.

[69] Another way of making the same point is to say that the two components of the cartridges are not of equal significance when forming a judgment as to which one gives the cartridges their essential character, although they are both in their different ways indispensable. The ink is of primary and overriding importance, because it is an essential raw material in the process of printing, and the purpose of inserting a cartridge is to supply the printer with ink. The functional unit is of secondary importance because its purpose is to ensure the efficient delivery of the primary ingredient to the printer, to prevent the printer from operating if ink levels are low, and to protect the printer from the risk of dry firing. All these functions relate to the presence, or absence, of the primary ingredient, ink.”

That reasoning led the judge to hold that the G2 and G3 cartridges were properly to be classified, under GRI 3(b), as goods within CN heading 3215 (ink). Given that conclusion, GRI 3(c) was of no relevance.

The judge referred, at paragraph [66] of his judgment, to the fact that the Court of Justice had specifically rejected the approach of the Advocate General, who (as he said) had held that “the cartridges were a combination of a functional unit with the printer and consumable material, and that neither of these two components alone gave the cartridges their essential character because they were both equally indispensable”. It is, I think, pertinent to note his observations on that point in an earlier paragraph of his judgment:

“[46] It can thus be seen that the Court rejected the view of the Advocate General that the cartridge consisted of two components of equal importance, neither of which could be regarded as essential without the other. As in Turbon I, the Court fastened on the purpose for which the cartridge is inserted into the printer, namely to supply it with ink. As the Court said in paragraph 23, even if the cartridge is constructed in such a way that the printer does not function in its absence, the fact remains that the ink contained in the cartridge is the most important factor for the purpose of using the cartridge. I would add that this emphasis on the use of the cartridge is not a subjective matter, based on the motives or intentions of individual users, but rather an objective appraisal of the purpose for which a cartridge is inserted. At the simplest level, the purpose of a printer is to provide a printed hard copy of a document which would otherwise only exist electronically. In order to produce such a hard copy, two raw materials are necessary: paper and ink. The purpose of the cartridge is to provide the ink. This may sound like a statement of the blindingly obvious, but in my judgment it is important in an area as technical as this not to lose sight of the wood for the trees, and not to be distracted by technical features and refinements of the cartridges from concentration upon their basic function.”

By his order of 4 May 2007 the judge allowed the Commissioners’ appeal from the decision of the Tribunal. The effect of that order was to restore the review decisions of 15 October 2004 and 31 January 2005, classifying G2 and G3 as ink under CN heading 3215.

Epson seeks permission to appeal from the judge’s order of 4 May 2007. As I have said we have heard full argument on the application for permission and on the appeal.

Epson contends that the judge erred in his conclusion that it was the ink which gave the G2 and G3 cartridges their essential character for the purposes of GRI 3(b). It is said that the judge was wrong to take the view that the reasoning at paragraph 23 in the judgment of the Court of Justice in Turbon II required him to reach that conclusion. On a true appreciation of the facts found by the Tribunal the judge (it is said) should have held that the differences between the G1 cartridges (which were the subject of the decision in Turbon II) and the G2 and G3 cartridges (which are the subject of the present proceedings) were such that, at the least, the reasoning of the Court of Justice in Turbon II (reading paragraph 23 of the Court’s judgment with paragraph 24) led to the conclusion that it was a combination of the ink and the remainder of the cartridge which gave the G2 and G3 cartridges their essential character.

An appeal from the order of 4 May 2007 is an appeal to which – at least, prima facie – section 55(1) of the Access to Justice Act 1999 and CPR 52.13 apply: that is to say, it is an appeal from a decision of the High Court which was itself made on appeal (in this case, an appeal under section 11 of the Tribunals and Inquiries Act 1990). CPR 52.13(2) provides that the Court of Appeal will not give permission for such an appeal unless it considers (a) that the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it. In seeking permission to appeal Epson accepts that the appeal would be a second appeal for the purposes of CPR 52.13 (paragraph 30 of its skeleton argument); but submits that “the stringent test for permission in CPR 52.13(2) however does not apply to a case such as this one, the outcome of which is determined by the application of EC law”. It is said that (a) refusal of permission by the Court of Appeal “would be the end of the road for Epson”, so that in considering the application for permission to appeal this Court is a court from whose decisions there is no judicial remedy (Chiron v Murex (No 8) [1995] All ER (EC) 88 and Case C-99/00 Lyckeskog v Ǻklagarkammeren i Uddevalla [2003] 1 WLR 9); (b) the Court of Appeal is in those circumstances obliged as a consequence of article 234 of the EC Treaty to give permission to appeal unless the issue is acte clair – and an issue of Community law may be considered acte clair only if (i) the answer is “so obvious as to leave no scope for any reasonable doubt as to the manner in which the question that is raised is to be resolved” and (ii) the matter is equally obvious to the courts of other Member States and to the Court of Justice; so that (c) permission to appeal may thus legitimately be refused only if this Court can say with complete confidence that Epson’s arguments of EC law are bound to fail.

As I have said, the application for permission to appeal from the order of 4 May 2007 came before this Court (Lord Justice Mummery and Lord Justice Lloyd) on 6 November 2007. The application was adjourned for hearing on notice. In his judgment, [2007] EWCA Civ 1200, with which Lord Justice Mummery agreed, Lord Justice Lloyd, after referring to the points which I have just mentioned - and to the possible perception that, if permission to appeal were granted on the basis that there was a reasonable prospect of success, that might be said to answer the question whether the issue was the subject of acte clair - said this (ibid, [7]):

“ . . . Formally speaking, it may be that the grant of permission would not technically compel the answer to the question of whether a reference was necessary, because one could grant permission on the basis that, whether or not there was a reasonable prospect, there was a compelling reason for the matter to be heard. But it seems to me that there is a more satisfactory way forward, which keeps the issue open and does not, as I see it, prejudge it in any way, which is to adjourn this application to come on before a full court of three members on notice to the Commissioners and with the appeal to follow immediately if permission is granted. That would enable a full court, with the benefit of full argument on both sides, to consider the matter both at the permission stage, and, if it considers that permission should be granted, to transform itself into being not a court of last instance, to consider the appeal and rule upon it accordingly. . . .”

To my mind, there is no basis for the submission that this Court can, or should, treat the provisions of CPR 52.13 as having no application in the present case. The true position, as it seems to me, is that the first question for the Court on this application – as on any other application to which that rule applies – is whether the appeal would raise some important point of principle or practice. If the answer to that question is “No”, then it is not open to this Court to grant permission on the ground, only, that there is a real prospect of success. If the appeal would raise no important point of principle or practice, the Court can grant permission for a second appeal only if satisfied that “there is some other compelling reason for the Court of Appeal to hear it”.

I accept, of course, that many cases – indeed, probably most cases – in which the determination turns on a point of Community law can properly be said to raise an important point of principle. In particular, where questions of classification under the common nomenclature arise in connection with the levy of customs duties by the United Kingdom, there are likely to be important points of principle in issue, affecting importers other than the individual directly concerned. But I am not persuaded that this is such a case. It seems to me that the question in the present case is specific to the Epson G2 and G3 ink cartridges – as Epson itself is concerned to emphasise in another context – and that a decision in the present case will establish no general principle which will be determinative in other cases. The principle, I think, is not in doubt: classification under GRI 3(b) requires identification of the material or component which gives the G2 and G3 cartridges their essential character. As the Court of Justice pointed out, at paragraph 24 of its decision in Turbon II, the tariff classification of ink cartridges having particular characteristics will not necessarily determine the classification of other ink cartridges having different characteristics.

For my part, however, I would grant permission to appeal on the basis that there is a compelling reason for the Court of Appeal to hear an appeal in a matter which is of great commercial importance to the applicant, Epson; and where, we are told, the customs classification adopted by the United Kingdom, giving effect to their understanding of the provisions of the common nomenclature, is inconsistent with the customs treatment of G2 and G3 cartridges outside the Community. Notwithstanding the full and careful judgment below, it seems to me desirable that Epson should have the decision of this Court on the point in dispute. If this Court were to reach the conclusion that it could not decide the point without further guidance from the Court of Justice, it would be appropriate to seek that guidance by way of a reference for a preliminary ruling. But, as I shall explain, I do not think that that is the course which we should adopt in this case.

I have in mind, of course, the appellant’s submission that the decision of the Court of Justice in Turbon II is “questionable”. That is a submission to which I shall need to return, in the context of considering whether a further reference would be appropriate in this case. At this stage, I approach the appeal that on the basis that it is not for this Court to question the decision of the Court of Justice. If the reasoning of the Court of Justice in Turbon II is clear and unambiguous,the correct approach, as it seems to me, is to apply that reasoning – with the benefit of such illumination as may be obtained from the reasoning of the Court in Turbon I and in the Opinion of the Advocate General in Turbon II itself – to the facts found by the Tribunal in respect of G2 and G3 cartridges.

In my view there is little assistance to be derived from the judgment of the Court of Justice in Turbon I. As the Advocate General pointed out, in her Opinion in Turbon II (at paragraph 42), a careful analysis of that judgment compels the conclusion that – notwithstanding the statement at paragraph 33 of the judgment that “goods such as those in issue in the main proceedings should, pursuant to general rule 3(b), be classified under heading 3215 of the Combined Nomenclature” – classification under GRI 3(b) was not apposite. On the Court’s own reasoning the requirements for applying GRI 3(b) were not met. The Court had rejected the premise upon which classification under that rule is based: the potential, prima facie, for classification under both CN heading 3215 and CN heading 8473. As it said (at paragraph 31 of its judgment) “an ink cartridge . . . which . . . plays no particular role in the actual mechanical functioning of the printer cannot be regarded as part of a printer within the meaning of CN heading 8473”. So observations (at paragraphs 25 to 27 as to the basis of classification under GRI 3(b) – and, in particular the observation, at paragraph 27, that:

“25

In this case the element which gives the cartridge its essential character is the ink which it contains. The essential function of the cartridge consists in containing the ink and supplying the printer so as to enable the printer to transcribe onto paper work done with the aid of a computer”

Of much more assistance, as it seems to me, is an analysis of the basis upon which, in Turbon II, the Court of Justice differed from the Advocate General. I have set out, earlier in this judgment, paragraphs 93 to 99 of the Advocate General’s Opinion. I draw particular attention to the reasoning in paragraphs 96 to 99; and to the reference, in paragraph 97, to “settled case law” providing the test that, in determining whether a component of goods gives them their essential character, it is necessary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it. It is, I think, likely that the Advocate General had in mind paragraph 25 in the judgment of the Court of Justice in VauDe Sport: the passage had been cited by the Court at paragraph 26 of its judgment in Turbon I:

“26 In that connection [classification under GRI 3(b)], it is settled case-law that in order to identify from among the materials of which a product is composed which is the one that gives it its essential character, it is necessary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it (see, to that effect, Case C 288/99 VauDe Sport [2001] ECR I-3683 at paragraph 25.)”

There can be no doubt, therefore, that the Court of Justice, in Turbon II, were fully aware both of the test which the Advocate General thought applicable to classification under GRI 3(b) and of the reasoning which led her to the view that application of that test led to the conclusion that, in the present case, GRI 3(b) did not provide the answer.

At paragraph 21 of its judgment in Turbon II, the Court of Justice referred to the VauDe Sport test. But, as I have already pointed out, it did so in terms which suggested that that test was not seen by the Court as exclusive or mandatory. Rather, it was one (amongst other) ways in which the essential character of the goods might be determined. At the risk of unnecessary repetition, I set out the context which makes that clear :

“21.

Under that general rule [GRI 3(b)], in carrying out the tariff classification of goods it is necessary to identify, from among the materials of which they are composed, the one which gives them their essential character. This may be done by determining whether the goods would retain their characteristic properties if one or other of their constituents were removed from them (Sportex, paragraph 8; see also VauDe Sport [2001] ECR I-3683, paragraph 25, and Turbon International, paragraph 26). [emphasis added]

22.

In the same way, as stated by paragraph VIII of the explanatory note to the HS on general rule 3(b), the factor which determines the essential character of the goods may, depending on the type of goods, be determined for example, by the nature of the material or component, its bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods.”

It is, I think, plain that, in reaching its conclusion that the ink must be regarded as determining the essential character of a G1 ink cartridge, the Court chose not to apply the VauDe Sport test:

“23

Even if an ink cartridge, such as that at issue in the main proceedings, is constructed in such a way that the printer does not function in the absence of that cartridge, the fact remains that the ink contained in the cartridge is the most important factor for the purpose of using the goods at issue. In fact, the ink cartridge is not inserted in the printer in order to make the printer itself function but specifically to supply it with ink. . . .”

In my view the judge was correct when he pointed out (at paragraph [46] of his judgment) that the Court of Justice in Turbon II “fastened on the purpose for which the cartridge is inserted into the printer” as the basis for identifying that component of the G1 ink cartridges which was to be taken as giving them their essential character for the purposes of classification under GRI 3(b). It is impossible, as it seems to me, to avoid the conclusion that, the Court regarded itself as free to choose that “purpose-based” test in preference to the “dispensable constituent” test suggested by VauDe Sport; and that it regarded that “purpose-based” test as the more appropriate test in the task in which it was engaged – the classification of G1 ink cartridges.

As I have already indicated, I am not persuaded that further guidance from the Court of Justice is needed. I am not persuaded that the judgment of the Court in Turbon II is “questionable” in the sense for which the appellant contends: that is to say, that the reasoning is inconsistent with other pronouncements of Community Courts.

In stating the general rule – at paragraph 21 of its judgment in Turbon II - the Court of Justice cited as authority paragraph 8 of its judgment in Case C-253/87 Sportex GmbH & Co v Oberfinanzdirektion Hamburg [1988] ECR III3351. In that case, after stating that, given that the goods at issue were composed of different materials and that the two available subheadings were both general in scope, GRI 3(b) was the sole provision to which recourse might be had for the purpose of classifying the goods, the Court of Justice said this:

“8.

In accordance with that general rule of interpretation, it is necessary, in carrying out the tariff classification of a product, to identify, from amongst the materials of which it is composed, the one which gives it its essential character. This may be done by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from it.”

In Turbon I the Court (at paragraph 26 of its judgment) adopted the statement of the test as it had appeared in VauDe Sport: it made no reference to Sportex. In Turbon II, as I have said, the Court adopted the statement of the test as it had appeared in Sportex: it cited as authority “Sportex, paragraph 8”, but went on to add “see also to that effect C-288/99 VauDe Sport [2001] ECR I-3683, paragraph 25, and Turbon International, paragraph 26”.

I would grant permission to appeal. I would refuse the application for an order that the matter be referred to the Court of Justice for a preliminary ruling. I would dismiss the appeal

I agree.

I also agree.