Tomy UK Ltd v HM Revenue & Customs [2007] EWHC 1889 (Ch)

[2007] EWHC 1889 (Ch)Case No CH/2007/APP/84
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 July 2007
Before
THE CHANCELLOR OF THE HIGH COURT
Between
TOMY UK LTDClaimantHM REVENUE & CUSTOMSDefendant
DR PAUL LASOK QC (instructed by Hassan Khan & Co) for ClaimantDR IAN HUTTON (instructed by HM Revenue & Customs) for DefendantHearing Hearing date: 25 July 2007
JudgmentThe Chancellor:Introduction
[1]In July 2002 Tomy (UK) Ltd wished to import a quantity of ‘one-way’ baby monitors from China. Such monitors (“One-Way Monitors”), which I shall describe in greater detail later, comprise two units: a baby unit which transmits and a parent unit which receives. On 22nd July 2002 Tomy applied to HM Customs and Excise (“HMRC”) for Binding Tariff Information under Nomenclature Code 8527 90 92. On 7th August 2002 HMRC sent to Tomy three Binding Tariff Notifications but under Combined Nomenclature Code 8527 90 98 because of the provisions of Regulation (EC) 305/2001 (“the Classification Regulation”). The difference between the two Codes is that the former does not carry any liability to Customs Duty but the latter does at the rate of 9.3%. The conclusion of HMRC was confirmed by a formal departmental review on 4th October 2002 and by the decision of the VAT and Duties Tribunal (Dr Avery Jones and Mrs Farquharson) (“the Tribunal”) released on 19th December 2006. This is the appeal of Tomy from that decision.

The relevant legislation

[2]The European Union is a customs union and liability to customs duty of goods imported from third countries into the United Kingdom depends on the provisions of Council Regulation (EEC) 2658/87 and Commission Regulation (EC) 1832/2002. The Council Regulation recited that the International Convention on the Harmonised Commodity Description and Coding System, to which the EU was a signatory, required the establishment of a combined nomenclature based on that of the harmonised system. By Article 1.1 a goods nomenclature, to be called ‘the combined nomenclature’ or ‘CN’ for short was established to meet the requirements of both the Common Customs Tariff and the external trade statistics of the Community. Its terms were set out in Annex I thereto. Article 9 requires the Commission to make further regulations relating to the classification of certain goods and to publish explanatory notes. Article 12 requires the Commission by regulation to adopt in each year a complete version of the Combined Nomenclature as amended since the previous year’s version.[3]At all times material to this appeal the Combined Nomenclature was in the form annexed to the Commission regulation to which I have referred. Section 1 of Annex I contains certain general rules for the interpretation of the Combined Nomenclature. So far as material it is in the following terms: “Classification of goods in the Combined Nomenclature shall be governed by the following principles: “1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, 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 following provisions. [2...] 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. [4... 5...]

[8526 Radar apparatus....]

[6]For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule the relative section and chapter notes also apply, unless the context requires otherwise.”(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.[4]Section XVI of Annex I deals with amongst other goods “...Electrical Equipment; Parts thereof”. Note 4 provides:
“Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or 85, then the whole falls to be classified in the heading appropriate to that function.”
[5]Chapter 85 (which is the second chapter of Section XVI) covers “Electrical Machinery and Equipment and Parts thereof; Sound Recorders and Reproducers, Television Image and Sound Recorders and Reproducers, and Parts and Accessories of such articles”. Goods of various more specific descriptions within that class are then set out in tabular form of which column 1 is the CN Code, column 2 the description of the goods and column 3 the conventional rate of duty. The CN code is in digital form in which four digits comprise a heading, six a sub-heading and eight a sub-sub-heading, though the categories of sub-sub-heading are treated as sub-headings. Thus CN Code 8501 deals with electric motors, 8525 transmission apparatus and 8527 reception apparatus. Columns 1 and 2 of those with which this appeal is directly concerned are the following:
“8525 Transmission apparatus for radio-telephony, radio-telegraphy, radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras; 8525 10 -Transmission apparatus… 8525 20 -Transmission apparatus incorporating reception apparatus…. [8525 20 10...] [8525 20 91...] 8525 20 99 - - - Other [8526 Radar apparatus....] 8527 Reception apparatus for radio-telephony, radio-telegraphy or radio-broadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock: [8527 12, 13, 19, 21, 29, 31 32, 39] 8527 90 -Other apparatus: 8527 90 10 - - For radio-telephony or radio- telegraphy, for use in civil aircraft - - Other: 8527 90 92 - - -Portable receivers for calling, alerting or paging 8527 90 98 - - -Other”
In the case of 8525 10 80 the rate of duty specified in the third column is 3.6% and in the case of 8527 90 98 it is 9.3%. In all the other cases shown above there is no duty payable. [8526 Radar apparatus....] - - Other:[6]The Explanatory Notes required to be published by the Commission pursuant to Article 9.1 of the Council Regulation provide in relation to CN Codes 8525 20 10 to 8525 20 99:
“These subheadings include apparatus consisting of all the elements required for transmission and reception, in one cabinet or housing. Such is the case, for example, with walkie-talkies, which contain the batteries or accumulators required for their operation, or with transmitter-receiver apparatus, the power supply unit of which would be separate and connected to the apparatus by cable only. These subheadings also include units in which the transmitter and receiver elements are located in different furniture units or housing, provided they constitute a functional unit. In order to be regarded as constituting a functional unit, transmitter-receiver apparatus must be installed near each other (for example, in the same premises or on the same vehicle) and have certain elements in common, such as the aerial.”
[7]On 12th February 2001 the Commission promulgated the Classification Regulation under Article 9.1 of the Council Regulation concerning the classification of certain goods in the Combined Nomenclature. It recited that:
“Pursuant to the said general rules, the goods described in column 1 of the table annexed to the present Regulation must be classified under the CN codes indicated in column 2, by virtue of the reasons set out in column 3.”
[8]The third item in the table relates to goods described as:
“A product described as a baby-monitoring device, put up in a set for retail sale, consisting of - a transmitter for radio telephony, with a built-in microphone - a portable receiver for radio-telephony combined with a loudspeaker in a housing - two mains adaptors Both the transmitter and the receiver can operate using either batteries or mains adaptors The device serves to transmit noises made by a baby in the vicinity of the transmitter and is used to monitor babies with a range of roughly 300 metres.”

Both the transmitter and the receiver can operate using either batteries or mains adaptors

[9]Such goods were given the CN Code 8527 90 98. Accordingly goods within that description would bear customs duty at the rate of 9.3%. The reason given in the third column for that attribution is:
“Classification is determined by the provisions of General Rules 1, 3(c) and 6 for the interpretation of the Combined Nomenclature, and the wording of CN codes 8527, 8527 90 and 8527 90 98. Neither the transmitter nor the receiver gives the product its essential character.”
[10]Thus the dispute between Tomy and HMRC is whether One-Way Monitors may be imported duty free as “portable receivers for calling, alerting or paging” under CN code 8527 90 92, as Tomy contends, or would bear duty at the rate of 9.3% as “other” goods under CN Code 8527 90 98, whether by force of the Combined Nomenclature as interpreted in accordance with the general rules or in consequence of the Classification Regulation.

One-Way Monitors

[11]The VAT and Duties Tribunal heard oral evidence from the designer of the One-Way Monitors Tomy wished to import, Mr Perran Newman. He demonstrated how they worked. In addition there was evidence from Mr Gaikwad a former policy adviser to HMRC called by Tomy and an expert witness, Mr Bevan Clues, called on the behalf of HMRC. In the light of all that evidence the Tribunal described the various One-Way Monitors in the following terms:
“(1) The [One-Way Monitors] comprise three models of baby monitor, the Walkabout Classic, the Walkabout Digital and the Walkabout Premier, to which we shall refer as the Classic, Digital and Premier. All three comprise a baby unit that contains a microphone which picks up the baby’s sound and transmits it by radio-telephony to a parent unit that receives the radio signals and reproduces them via a built-in loudspeaker. All three also have a bar graph visual display with increasing numbers of lights illuminating as the volume of the sound increases, the first five lights being green and the last three red, which can be used at the same time as, or instead of the sound. The lights might typically be used if the parents were watching television and might not hear the sound. The [One-Way Monitors] can be set to output sound only or sound plus lights; on the Classic the sound can be muted so that only the lights show, and the Digital and Premier have a volume control. All three enable two different channels to be selected with a view to minimise interference from other similar products in the vicinity. Both units of all the [One-Way Monitors] have an on/off switch with a light showing when it is on. The parent unit is portable. Both units may be used with batteries or from the mains. (2) The Classic model transmits the sound continuously (but the sound can be muted). The Digital and Premier [One-Way Monitors] have voice activation (“VOX”) under which nothing is transmitted until the sound reaches one of two pre-determined settings of 55 and 65 dBA, after which it transmits the sound continuously so long as the sound continues. At the higher setting the baby will be crying loudly before transmission of sound begins. (3) The Digital and Premier [One-Way Monitors] have the following additional features: a night light on the baby unit; detection that the baby unit is transmitting; a temperature display of the temperature in the baby’s room which is displayed either digitally on the Premier [One-Way Monitors] or on the moving light display for the Digital [One-Way Monitors] (including an alarm if the temperature falls outside set limits); a battery low signal for each unit (with different alarm signals depending on which unit has the low battery); and an identifying code setting enabling 16 different combinations to be set to match the other unit so that the parent unit does not receive transmission from another unit in the vicinity set to the same channel. Each of these features give a different signal so that the nature of the problem can be identified. The temperature and low battery signals operate by telemetric signals, by which signals pass between the units but are inaudible. The Premier has a compact parent unit which can be separated from the rest of the parent unit and carried by the parent. When this is removed only the sound can be used as the lights are on the remainder of the unit.”
[12]Tomy relies on three specific aspects of these monitors. First, in the case of all three models sound may be muted with the result that only the flashing light shows. Second, the Digital and Premier models are sound/voice activated so that sound below a particular level is not transmitted. Third, the Digital and Premier models also transmit additional information such as the ambient temperature of the baby unit. As will be seen Tomy contends that the consequence of these additions is that the Classification Regulation is inapplicable to these One-Way Monitors.[13]For completeness I should mention that there are two-way baby monitors on the market. In those cases both baby and parent unit both transmit and receive. Further there is a separate classification regulation (Commission Regulation (EC) 646/2001) which deals with them. It classifies them as within CN Code 8525 20 99. This appeal is not directly concerned with them.

The Decision of the Tribunal

[14]After setting out the legislation and their findings of fact to which I have already referred the Tribunal commented (para 9(4)) on evidence adduced by Tomy as to the nature of the one-way baby monitors considered by the Committee which produced the Classification Regulation and various papers produced by the representatives of member states. They then considered the opinions of Mr Clues and Mr Newman (paras 10 and 11) as to the meaning of the words “calling, alerting or paging” within CN code 8527 90 92 and various technical dictionary meanings of them (para 12).[15]After setting out the rival submissions of counsel (paras 13 and 14) they concluded (para 15) that the Classification Regulation did apply to the One-Way Monitors because:
“The features set out in the Regulation are present in all of the [One-Way Monitors]. It is unclear whether the Goods classified by the Regulation also had a visual display. We do not consider that additional features, whether or not, as in the case of the visual display, the feature can be used instead of sound, means that the Regulation is inapplicable to the [One-Way Monitors].”
Tomy disputes that conclusion.[16]The Tribunal then considered (paras 16 to 19) the submission of counsel for Tomy to the effect that the Classification Regulation was prima facie invalid but, as they had no power to set it aside, they should refer its validity to the European Court of Justice for that Court to inquire into the matter and make such order as it thought fit. They concluded (para 20) that no sufficient case of invalidity had been made out so as to justify them in making such a reference. On the basis that the Classification Regulation did apply, the proper classification of One-Way Monitors was under CN Code 8527 90 98 and the appeal should be dismissed. Tomy contends that that conclusion was wrong as well.[17]Finally, the Tribunal considered (paras 22 and 23) the proper classification of One-Way Monitors on the alternative bases that either the Classification Regulation did not apply or it was invalid. In that connection they considered a further ground which Tomy had raised in its amended grounds of appeal submitted on 20th September 2006 to the effect that the proper classification of One-Way Monitors is under CN Code 8525 20 99, namely as “transmission apparatus incorporating reception apparatus” “other” than those described in CN Codes 8525 20 10 or 8525 20 91. They concluded (para 22) that 8527 rather than 8525 was the appropriate heading because:
“Note 4 [para 4 above] does not apply because one cannot find the combined clearly defined function of transmitting and receiving in heading 8525 because the reference to transmission apparatus incorporating reception apparatus is explicable as meaning something like a walkie-talkie which does both as one end of communication, and not something where the transmitter unit transmits only to the receiver unit; we appreciate that the transmitter unit may be transmitting to someone else’s unit, and the receiver unit may be receiving from someone else’s unit but this is an unwanted function for which it contains features to help prevent happening.”
[18]Having thus concluded that the proper heading was 8527 they went on to consider under which sub-heading these monitors fell. On this issue they did not agree. The Chairman (para 24) did not consider that One-Way Monitors were “for calling, alerting or paging” so as to be within CN Code 8527 90 92 with the consequence that they inevitably fell into the residual class of “other” and were within CN Code 8527 90 98. On the other hand Mrs Farquharson, based at least in part on her personal experiences, considered (para 25) that they were “for calling [etc]” and should be classified as CN Code 8527 90 92. At this point (para 26) the Chairman exercised his casting vote in favour of his own conclusion thereby avoiding the need for, at least, Mrs Farquharson to reconsider their conclusion on the validity of the Classification Regulation. Tomy contends that Mrs Farquharson was right and the Chairman wrong.[19]Accordingly there are three issues:(1) Does the Classification Regulation apply to One-Way Monitors? If so(2) Is the Classification Regulation prima facie invalid so as to necessitate a reference to the European Court of Justice? In any event(3) What is the proper CN code for One-Way Monitors? The Tribunal dealt with them in the order I have set them out. I propose to consider Issue (3) first as the answer to that question may largely determine Issue (2) and obviate the need to consider Issue (1).

What is the proper CN Code for One-Way monitors?

[20]General Rule 1 states that “for legal purposes, classification shall be determined according to the terms of the headings...and any relative...section notes...”. Thus the starting point must be to consider the submission of counsel for Tomy that the proper heading for the classification of One-Way Monitors is 8525 and not 8527. In that connection the relative section note is Note 4 quoted in paragraph 4 above. Counsel for Tomy also relies on the Explanatory Notes set out in paragraph 6 above.[21]Counsel for Tomy submits that One-Way Monitors fall within Note 4 on the basis that the baby and parent units are “intended to contribute together to a clearly defined function..”. He contends that such function is that of transmitting and receiving. He argues that the function of transmitting and receiving falls squarely within the heading 8525 as “Transmission apparatus for..radio-telegraphy...whether or not incorporating reception apparatus”. He relies on the Explanatory Notes as demonstrating that the combined function may arise from physical proximity. He suggests, by contrast, that heading 8527 cannot apply because it is limited to “reception apparatus for...radio-telegraphy...”.[22]The submission for HMRC is to the effect that Note 4 does not apply for the reasons given by the Tribunal. Consequently headings 8525 and 8527 are equally applicable, depending on which unit you consider, as either transmission apparatus or reception apparatus. As neither General Rule 3(a) nor 3(b) can resolve the issue General Rule 3(c) requires the application of heading 8527.[23]In my judgment Note 4 does not apply to One-Way Monitors. I accept that the baby and parent units are capable of being individual components comprising a machine or combination of machines. I will assume that if some element of connection is required even between separate components, as envisaged by the Explanatory Notes, it is provided by wireless radio connectivity. Then the question is whether the units as individual components are intended to contribute together “to a clearly defined function covered by one of the headings in Chapter...85”.[24]It is at this point that, in my judgment, the argument of counsel for Tomy breaks down. The clearly defined function he relies on is “transmitting and receiving”. But, as the Tribunal clearly explained in the passage from their decision I have quoted in paragraph 17 above, the heading 8525 envisages that the transmission apparatus should incorporate the reception apparatus. And, unless it does, then for the purposes of Note 4 there can be no clearly defined function covered by any of the headings in Chapter 85.[25]For these reasons I reject the submission for Tomy that heading 8525 applies. I did not understand there to be any dispute that in those circumstances the relevant heading is 8527. So the issue then becomes which sub-sub-heading, 8527 90 92 or 8527 90 98, applies to One-Way Monitors. This is the issue on which the Tribunal was not agreed.[26]Tomy agrees that, assuming, as I have held, 8525 is not the appropriate heading, then “8527 90 – Other apparatus:” is the appropriate sub-heading. Tomy contends that the One-Way Monitors are “Portable receivers for calling, alerting or paging”. There is no dispute that they are portable. On the issue of what they are “for” counsel for Tomy relies on the decision of the European Court of Justice (Third Chamber) in Shimadzu Europa GmbH v Oberfinanzdirektion Berlin [1990] ECR I-4391.[27]That case concerned the correct classification of apparatus imported by Shimadzu comprising a data processor (which included a control panel, central processor, converter, electrical interfaces and electronic components) and a printer linked together by a cable. The relevant authority in Berlin considered them to be “apparatus for measuring..electrical quantities” within CN code 9030. Shimadzu objected to this classification on the ground that the apparatus was used in chromatography and was not intended for measuring electrical quantities. The court upheld the objection. It stated: “9. It should be noted that apart from instruments and apparatus for measuring or detecting radiations, Heading 9030 of the Combined Nomenclature only covers, according to its very wording, instruments and apparatus for measuring or checking electrical quantities.[10]In its judgment in Case 19/88 ICT and Others v Direction générale des douanes et droits indirects [1989] ECR 577, with regard to the provisions of subheading 90.28 A II (a) of the Common Customs Tariff, the Court ruled that apparatus for measuring electrical quantities was apparatus specifically intended to carry out such measurement.[11]The same interpretation, based on the purpose of the apparatus in question, must also be applied to define the content of Heading 9030 of the Combined Nomenclature, the provisions of which are in this respect similar to those of subheading 90.28 A II (a) of the Common Customs Tariff.[12]Accordingly only apparatus whose very purpose is to carry out checks on electrical quantities can be regarded as apparatus for checking such quantities.[13]It follows that pieces of apparatus like those at issue in the main proceedings, which, according to the information supplied by the Bundesfinanzhof, are intended not to measure or check electrical quantities but, on the basis of measuring and checking an electrical quantity, namely voltage, to present and process chromatograms, cannot be classified as "instruments and apparatus for measuring or checking electrical quantities".[14]The answer to the Bundesfinanzhof's question should therefore be that the Combined Nomenclature should be interpreted as meaning that apparatus which measures or checks electrical quantities only for the purpose of collecting, evaluating and processing data in the field of chromatography does not fall within Heading 9030.”[28]Thus it is necessary to ascertain the specific or ‘very’ purpose of the One-Way Monitors. It is not suggested that the specific purpose of One-Way Monitors is for the baby to ‘call’ or ‘page’ anyone. Nor is the fact that they may have the effect of ‘alerting’ one at the parent unit end sufficient. Counsel for Tomy submits that it is the specific or ‘very’ purpose of One-Way Monitors to alert those at the parent unit end. He relies on the conclusion of Mrs Farquharson in paragraph 25 that:
“...at least the Digital and the Premier Products are receivers for calling, alerting or paging because effectively that is their main purpose. She did not, and she considers that other parents do not, in practice use the Products in order to be able to listen continuously to the baby, but in order to be alerted when the baby needs attention. Those Products are therefore a “receiver for calling, alerting or paging” because that is the purpose for which they are used in practice.”
[29]That conclusion is disputed by counsel for HMRC. He contends that One-Way Monitors are listening devices such as a “bug”. He uses the analogy of a torch. It may be used to ‘alert’ another but that is not its purpose. He relies on the decision of the Chairman in paragraph 24. The Chairman considered that the main feature of One-Way Monitors is to convey electronically the sound of the baby whether in sound or light. The paragraph continues:
“The Chairman does not consider that where the lower setting operates [Digital and Premier Models] and in all cases with the Classic that there is any calling, alerting or paging. Any sound is being transmitted and the parent has to decide whether to do anything. This goes beyond the act of making contact and so the receiver (since in heading 8527 we are concerned with the receiver) is not for calling, alerting or paging; it is mainly for other purposes. This is so even though he accepts that parents are likely in practice to use the Products, and in particular the Digital and Premier ones, so that they operate to alert them when the baby needs attention.”
[30]This conclusion is criticised by counsel for Tomy. At the hearing he had relied on various Communications Dictionaries for the proposition that alert means “the indication of a change of state”. He submitted that that is what a One-Way Monitor does, that is why people buy them and that should be recognised as their specific purpose.[31]I prefer the conclusion of the Chairman and the submissions of counsel for HMRC. The question is one of the proper interpretation of the CN Code 8527 90 in circumstances where none of the General Rules provides any additional guidance. I do not think that the evidence from Mr Clues or Mr Newman to which the Tribunal referred in paragraphs 10 and 11 was either admissible or relevant to the issue of construction. Moreover the question is not technical so that the meaning of ‘alert’ should not be limited to the technical meaning of an indication of a change of state to the exclusion of the more general meaning of “warn”.[32]The question of interpretation arises in the context of the heading 8527 applicable to reception apparatus as opposed to transmission apparatus to which heading 8525 relates. The purpose of the apparatus is to receive. A “receiver for calling, alerting or paging” necessarily subsumes at least part of the purpose of the transmitter. The purpose of “calling” or “paging” necessarily involves the purpose of the person initiating the transmission. The insertion of “alerting” between those two indicates that the transmitter should be able to have that purpose too. But in the same way that the baby cannot “call” or “page” so it cannot “alert” in the sense that that word is used in sub-sub-heading 8527 90 92.[33]I do not doubt that, as Mrs Farquharson considered, the listener to the parent unit is concerned to know whether she or he should take any particular action in the light of what she or he hears or sees. Nor do I doubt but that is why she or he bought the One-Way Monitor in the first place. But I do not think that the purpose of the buyer or listener, as opposed to that of the transmitter, can so alter the specific or ‘very’ purpose of the apparatus as apparatus for listening so as to constitute it “a..receiver for...alerting...”.[34]For these reasons, in agreement with the Chairman, I conclude that One-Way Monitors do not fall within CN code 8527 90 92. Accordingly they necessarily fall into CN Code 8527 90 98 and, on import from third countries, attract customs duty at the rate of 9.3%.

The validity of the Classification Regulation

[35]This is the second issue to which I referred in paragraph 19 above. Counsel submitted that the reason given in the third column in the table annexed to the Classification Regulation in relation to the third item did not justify the classification of CN Code 8527 90 98. He contended that in that event the Classification Regulation had been made under a mistake of law or alternatively insufficient reasons had been given. In either event, so he submitted, the European Court of Justice could set it aside and I should make an appropriate reference to enable them to do so. In this connection he relied on Firma J.Nold KG v ECSC [1959] ECR 41; Control Data v EC Commission [1983] ECR 911 and Kawasaki Motors Europe NV v Inspecteur Belastingdienst/Douane District Rotterdam Case C-15/05 27th April 2006.[36]In the light of my conclusion in respect of Issue (3) I reject the suggestion that the Classification Regulation was made on a mistaken view of the relevant law. Even if there was some deficiency or inadequacy in the reasons given in the Classification Regulation I would, as counsel for Tomy accepted, have a discretion whether or not to make a reference to the European Court of Justice. In the circumstance that I have concluded that the Classification Regulation was not made on a mistaken view of the law I would not make the suggested or any reference if there were some inadequacy in the reasons given. I do not believe that it is the purpose of the power to make references thereby to enable the European Court of Justice to exercise some disciplinary function over the Commission when exercising the power conferred on it by Article 9 of Council Regulation (EEC) 2658/87. Such a reference could have no bearing on the proper resolution of the issues between Tomy and HMRC.

Does the Classification Regulation apply to One-Way Monitors?

[37]This is the first issue to which I referred in paragraph 19 above and the first issue to be determined by the Tribunal. In the light of my conclusion on the third issue it is of academic interest only. The issue arises from the three features to which I referred in paragraph 12 above. None of them appears in the description of goods set out in the Classification Regulation. The consequence suggested by counsel for Tomy is that the Classification Regulation does not apply.[38]The Tribunal did not accept that submission and nor do I. Neither individually nor collectively do those three features negate, alter or qualify to any substantial degree the essential characteristics of the goods described in the third item in the table annexed to the Classification Regulation. Those characteristics are present in the One-Way Monitors to which this appeal relates. Accordingly, in my judgment, the Classification Regulation applies to them.

Summary of Conclusions

[39]For all these reasons I conclude that the Tribunal was right to consider that One-Way Monitors come within CN code 8527 90 98 and there is no reason to make any reference to the European Court of Justice. I dismiss this appeal.