Case C‑91/15

Kawasaki Motors Europe NV

v

Inspecteur van de Belastingdienst/Douane

(Request for a preliminary ruling

from the Gerechtshof Amsterdam)

‛Reference for a preliminary ruling — Assessment of validity — Regulation (EC) No 1051/2009 — Common Customs Tariff — Tariff classification — Combined Nomenclature — Heading 8701 — Tractors — Subheadings 8701 90 11 to 8701 90 39 — Agricultural tractors (excluding pedestrian-controlled tractors) and forestry tractors, wheeled, new — Light four-wheeled all terrain vehicles designed to be used as tractors’

Summary– Judgment of the Court (Eighth Chamber), 22 September 2016

1. Questions referred for a preliminary ruling — Assessment of validity — Validity of a tariff classification regulation applicable by analogy to goods which are sufficiently similar to those covered by that regulation — Admissibility

   (Art. 267 TFEU)

2. Customs union — Common Customs Tariff — Tariff headings — New all terrain four-wheeled vehicles able to push twice their own weight or more — Regulation No 1051/2009 — Included in subheading 8701 90 90 of the Combined Nomenclature — Invalidity of paragraph 2 of the annex to that regulation

   (Commission Regulations No 1051/2009, Annex, point 2, and No 948/2009)

3. Customs union — Common Customs Tariff — Tariff headings — Interpretation — Explanatory notes to the combined nomenclature — No binding force — Prominence of the terms of the headings and any relative section or chapter notes of that nomenclature

   (Commission Regulation No 948/2009, General Rules 1, 3(a) and 6)

1.  Where a national court has doubts as to the validity of a classification regulation which it must apply by analogy to goods which are sufficiently similar to those covered by that regulation, it is justified for that court to submit a request for a preliminary ruling to the Court to assess the validity of that regulation.

   (see para. 39)

2.  Paragraph 2 of the annex to Regulation No 1051/2009 concerning the classification of certain goods in the Combined Nomenclature is invalid in so far as it classifies the vehicle described in that paragraph under subheading 8107 90 90 of that Combined Nomenclature, as amended by Commission No 948/2009, and not under one of subheadings 8701 90 11 to 8701 90 39 of that Combined Nomenclature, which correspond to the engine power of that vehicle.

   New all terrain four-wheeled vehicles with one seat only, fitted with Ackerman steering controlled by a handlebar, equipped with a towing hitch and the technical characteristics of which enable them to push twice their own weight or more, must be classified in subheading 8701 90 of the combined nomenclature, classification of those vehicles in eight-digit subheadings being determined by their engine power. In that regard, only eight-digit subheadings 8701 90 11 to 8701 90 39 of the combined nomenclature are relevant, relating to agricultural tractors and forestry tractors, new.

   (see paras 41, 46, 48, 62, 63, operative part)

3.  The Explanatory Notes of the Combined Nomenclature for the classification of goods contributes to the interpretation of the scope of the various tariff headings, even though they do not have legally binding force. In that regard, in accordance with General Rule 1, for legal purposes, the classification is to be determined according to the terms of the headings and any relative section or chapter notes, in addition to other general rules, provided such headings or notes do not otherwise require. General Rule 6 provides that the classification of goods in the subheadings of a heading is to be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, according to the other general rules. Furthermore, it follows from General Rule 3(a), that where goods are prima facie classifiable under two headings, the most specific description is to be preferred to headings providing a more general description. Finally, the intended use of a product may also constitute an objective criterion for classification if it is inherent in the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties.

   (see paras 52-54, 56)