Whereas reports, recommendations and decisions made by the Dispute Settlement Body of the WTO may, in certain circumstances, be called upon with the EUCJ, they may not have a retroactive effect.
In the present case a WTO Panel (DSU1) had specified in 2006 that multifunctional machines (photocopier, printer, fax, scanner) cannot fall within the scope of subheading 9002 12 of the EU’s Combined Nomenclature .
This DSU had required2 the EU to integrate this report into its regulation within a 5 year delay, i.e by June 30th 2011.
The Commission took account of the reports of the WTO panel in adopting Implementing Regulation n° 620/2011 (entered in force on July 1st 2011, under article 2 thereof).
One operator wanted to take advantage of the antecedence of this report for multifunctional machines he had imported in April 2009.
The Court notably indicated that it cannot conduct a review of the lawfulness of the European Union measures in the light if this WTO report for facts which occured between 2006 and the enforcement of EU Regulation n° 620/11 of July 11th 2011, due to the fact that doing so would render that reasonable period, granted by the WTO to the EU to accordingly modify its regulation, ineffective.
Having discharged this piece of argumentation, the Court then imposes its point of view, based on both a detailed description of the various functions of the machines and on its own case-law (C-67/95 Rank Xerox and C-362 & 363 /07 Kip Europe) whereby multifunctional machines – had they been placed in free circulation prior to January 1st 2007- would have been classified under 9009 12 subject to a 6% customs duty (and not under one of the two mentioned positions : 9009 11 00 or 8471 60 20, both exempt).
From there, the Court easily concluded that the modification put in force as from January 1st 2007 (whereby only position 8443 31 91 subject to a 6% customs duty was available) by the Commission did not amend the applicable 6% customs duty and that consequently, by publishing its Regulation 1549/2006, the Commission has not exceeded the powers conferred on it by Article 9 of Regulation 2658/87.
- Dispute Settlement Body established as per the provisions of article 3 (2) of the « Understanding on Rules and Procedures Governing the Settlement of Disputes » (DSU) of the World Trade Orgnization (WTO). [↩]
- As per the provisions of article 21 of the « Understanding on Rules and Procedures Governing the Settlement of Disputes » (DSU) [↩]