Pace plc v HMRC (C-289/09)

27 October 2009

A UK tax tribunal has referred questions regarding the customs classification of certain set-top boxes incorporating a hard-disk drive and on the validity of an existing Binding Tariff Information following an update to the Combined Nomenclature.


The questions referred are:

(1) Is a set top box with a communication function (“STB”) and a hard disk drive (‘HDD”) to be classified under Combined Nomenclature (“CN”) subheading 852871 13, as set out in Commission Regulation 1549/2006 and Commission Regulation 1214/2007 amending Annex 1 to Council Regulation 2658/87, despite the Explanatory Notes to the CN (“CNEN”) adopted by the European Commission on 7 May 2008 (2008/C113/02) concerning CN subheading 8521 90 00 and subheading 8528 71 13?

(2) In the event that a STB with a HDD with the specifications of a STB-HDD were to be classified under CN subheading 8521 90 00, would the application of a positive rate of customs duty be unlawful as a matter of Community law, as a consequence of violating the Community’s obligations under the Information Technology Agreement and Article II:1 (b) of the General Agreement on Tariffs and Trade 1994 or does classification under heading 8521 entail a conclusion that the product in question falls outside the scope of the relevant part of the ITA?

(3) Are the provisions of Article 12(5)(a)(i) to be understood to mean that the BTI dated 8 April 2005 relied upon by Pace plc automatically ceased to be valid after 31 December 2006 on the basis that it no longer conformed to the law laid down in Commission Regulation 1549/2006. In particular, is Article 12(5)(a)(i) to be interpreted in such a way that Commission Regulation 1549/2006 does not fall within the concept of a “regulation” for the purposes of that Article either because it is an annual update to the CN or because it is not a specific classification regulation.

(4) Are the provisions of Article 12 (6) of the Customs Code to be understood to mean that where an annual CN update is adopted which contains no provision confirming the extent of an available grace period to BTI holders, that such holders shall not be entitled to a grace period, or should they be entitled to the usual grace period of six months for Commission classification regulations under the principle of legitimate expectation?

Keep an eye on our Latest News section for the judgement.

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