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Lowlands Design Holding BV, by G. van Slooten, belastingadviseur,

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the Netherlands Government, by C.M. Wissels and M.A.M. de Ree, acting as Agents,

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the European Commission, by L. Bouyon and F. Wilman, acting as Agents,

1

This reference for a preliminary ruling concerns the interpretation of the Combined Nomenclature forming Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1) (‘the CN’), in particular subheadings 6209 20 00 and 6211 42 90.

2

The reference has been made in proceedings between Lowlands Design Holding BV (‘Lowlands Design’) and the Minister van Financiën (Minister for Finance) concerning the tariff classification of romper bags (trappelzakken).

3

The international convention which establishes the Harmonised Commodity Description and Coding System (‘HS’), concluded in Brussels on 14 June 1983, and the Protocol of Amendment thereto of 24 June 1986 (‘the HS Convention’) were approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1).

4

The Customs Cooperation Council, now the World Customs Organisation (WCO), established by the convention creating that council, which was concluded in Brussels on 15 December 1950, approves, in accordance with the conditions laid down in Article 8 of the HS Convention, the explanatory notes and classification opinions adopted by the HS Committee, a body the organisation of which is governed by Article 6 of the HS Convention. Under Article 7(1) of the HS Convention, the functions of that committee are to include proposing amendments to that convention and preparing explanatory notes, classification opinions and other advice as guides to the interpretation of the HS.

5

In its 2005 version, applicable to the facts at issue in the main proceedings, Note 6(a) of Chapter 61 of the HS nomenclature, entitled ‘Articles of apparel and clothing accessories, knitted or crocheted’, states, inter alia, that, for the purposes of the interpretation of heading 61.11, ‘[t]he expression “babies’ garments and clothing accessories” means articles for young children of a body height not exceeding 86 cm; it also covers babies’ napkins’.

6

According to Note 4 of Chapter 62 of the HS, entitled ‘Articles of apparel and clothing accessories, not knitted or crocheted’:

‘For the purposes of heading 62.09:

7

The HS explanatory note relating to heading 62.09 is worded as follows:

‘62.09 – Babies’ garments and clothing accessories.

6209,10 – Of wool or fine animal hair

6209,20 – Of cotton

6209,30 – Of synthetic fibres

6209,90 – Of other textile materials

In accordance with Chapter Note 4(a) the expression “babies’ garments and clothing accessories” applies to articles for young children of a body height not exceeding 86 cm. It also covers babies’ napkins (diapers).

This heading includes, inter alia, matinée coats, pixie suits, rompers, infants’ bibs, gloves, mittens and mitts, tights and babies’ bootees without an outer sole glued, sewn or otherwise affixed or applied to the upper, not knitted or crocheted.

It should be noted that articles which are, prima facie, classifiable both in heading 62.09 and in other headings of this Chapter are to be classified in heading 62.09 (see Chapter Note 4(b)).

This heading does not cover napkins (diapers) for babies, of paper, cellulose wadding or webs of cellulose fibres (heading 48.18) or of textile wadding (heading 56.01). Nor does it cover babies’ bonnets (heading 65.05) or babies’ clothing accessories covered more specifically by other Chapters of the Nomenclature.’

8

Under the general rules for the interpretation of the CN, which are set out in Section I A of Part One of Annex I to Regulation No 2658/87:

‘Classification of goods in the [CN] shall be governed by the following principles:

...

...

9

In Part Two of the CN, Section XI relates to textiles and textile articles and contains Chapters 61 and 62, respectively entitled ‘Articles of apparel and clothing accessories, knitted or crocheted’ and ‘Articles of apparel and clothing accessories, not knitted or crocheted’. Chapter 62 of the CN includes the following headings and subheadings:

‘6209 Babies’ garments and clothing accessories:

...

6209 20 00 ‐ Of cotton

...

6211 Tracksuits, ski suits and swimwear; other garments:

...

...

6211 42 – – Of cotton:

...

6211 42 90 – – – Other

...’

10

Note 1 of Section XI of the CN states:

‘This section does not cover:

...

11

Chapter 62 also contains the following notes:

...

...

12

Chapter 94 is in Section XX of the CN. That section is entitled ‘Miscellaneous manufactured articles’. Chapter 94, entitled ‘Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; lamps and lighting fittings, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like; prefabricated buildings’, contains heading 9404, which is worded as follows:

‘9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:

9404 10 00 ‐ Mattress supports

9404 21 ‐ ‐ Of cellular rubber or plastics, whether or not covered:

...

9404 29 ‐ ‐ Of other materials:

...

9404 30 00 ‐ Sleeping bags’.

13

The Explanatory Notes to the Combined Nomenclature of the European Communities (OJ 2006 C 50, p. 1), published in accordance with Article 10(1) of Regulation No 2658/87, state:

‘6111 Babies’ garments and clothing accessories, knitted or crocheted

See Note 6(a) to this chapter.

This heading covers a range of garments which in general are intended for infants of less than 18 months. They include: coats, cloaks, quilted wraps, pixie suits, dressing gowns, two-piece suits, rompers, trousers, over-trousers, knickerbockers, playsuits, waistcoats, wind-jackets, dresses, skirts, boleros, jackets, anoraks, capes, tunics, blouses, shirt-blouses, shorts, etc.

Some of these garments are clearly layette articles and are therefore classified in this heading whatever their dimensions.

This heading therefore includes:

...

3.   pixie suits: garments with hoods and sleeves, forming both a coat and a bag (completely closed at the bottom);

4.   sleeping bags with sleeves or arm-holes.

Other garments are classified in this heading only when they are of a size suitable for young children of a body height not exceeding 86 cm (commercial size 86).

...

6209 Babies’ garments and clothing accessories

The Explanatory Notes to heading 6111 apply, mutatis mutandis.’

14

On 3 October 2006, Lowlands Design submitted four applications to the Netherlands customs authorities for binding tariff information relating to products described as ‘children’s sleeping bags’.

15

The products are all of the same design and have the same characteristics. There are two cotton bags (inner and outer) to be used as a set, each with a close-fitting neckline and sleeves. The upper part is cut in the form of a bodice and elasticated at the waist. The front has a large opening with a zip. At the back, in the middle, is an opening through which a safety belt can be inserted. The products differ only in size: 86 cm for those intended for babies and 110 cm for those intended for young children.

16

Lowlands Design took the view that those products all fell under subheading 9404 30 00 of the CN relating to ‘sleeping bags’ and were therefore subject to a customs duty of 3.7%.

17

By decisions of 20 and 28 November 2006, the Netherlands customs authorities took the view that the products intended for young children fell under subheading 6211 42 (‘Tracksuits, ski suits and swimwear; other garments … of cotton’) and were subject to duty at the rate of 12%, and that those for babies fell under subheading 6209 20 00 (‘Babies’ garments and clothing accessories … of cotton’) and were subject to customs duty at the rate of 10.5%.

18

After its actions were dismissed at first instance and on appeal, Lowlands Design appealed in cassation to the Hoge Raad der Nederlanden (Supreme Court of the Netherlands). It maintains that those products must be classified under subheading 9404 30 00 on account of the wording of that subheading and Note 1(s) of Section XI of the CN.

19

The referring court points out that the products at issue resemble a garment, as to the upper part, and a sleeping bag as to the lower part. In the light of those characteristics, their classification under subheading 9404 30 00 cannot be ruled out. It queries whether the articles at issue must be classified under subheadings 6209 20 00 and 6211 42 90 or whether they fall under subheading 9404 30 00.

20

In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘How should CN subheadings 6209 20 [00], 6211 42 and CN subheading 9404 30 [00] be interpreted for the purposes of the tariff classification of articles for babies or for young children such as those at issue here?’

21

By its question, the referring court asks the Court of Justice, in essence, whether the CN must be interpreted as meaning that romper bags of a size of 86 cm intended for babies and of 110 cm for young children must be classified under subheading 6209 20 00 or 6211 42 90 or, on the contrary, whether they must be classified under subheading 9404 30 00.

22

The general rules for the interpretation of the CN state that classification of goods is to be determined first according to the terms of the headings and section or chapter notes, and that the titles of sections and chapters are provided for ease of reference only.

23

In that regard, it is appropriate to bear in mind settled case-law, according to which, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, Case C-339/98 Peacock [2000] ECR I-8947, paragraph 9, and Case C-196/10 Paderborner Brauerei Haus Cramer [2011] ECR I-6201, paragraph 31).

24

Lowlands Design maintains that the main characteristic of the products at issue is that they allow the user to sleep in them, under cover and in the warmth, and are intended to be used as sleeping bags. They are thus sleeping bags within the meaning of subheading 9404 30 00 of the CN. The Netherlands Government and the European Commission, on the other hand, take the view that those products must be classified under subheadings 6209 20 00 or 6211 42 90.

25

It must be noted that, according to the explanations given by the referring court, the products concerned are, given their size and nature, exclusively designed for use by babies and young children. They have a number of the particular characteristics of garments. Thus, the cut of the upper part of those products fits the shape of the body. They have a neckline, sleeves, a zipped opening at the front and an elasticated waist. The lower part of those products is completely closed, like a sleeping bag.

26

As regards that last characteristic, it must be noted that heading 9404 falls within Chapter 94 of the CN, entitled ‘Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; lamps and lighting fittings, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like; prefabricated buildings’. It covers ‘mattress supports; articles of bedding and similar furnishing ... fitted with springs or stuffed or internally fitted with any material ...’. Subheading 9404 30 00 covers ‘sleeping bags’ generally, and does not, in relation to that category, identify other sub-products on the basis of their characteristics.

27

By contrast, Chapter 62 of the CN, relating to ‘articles of apparel and clothing accessories, not knitted or crocheted’, refers under heading 6209 to ‘babies’ garments and clothing accessories’, and subheading 6209 20 00 relates more specifically to those of cotton. On the basis of the characteristics of the upper part of the products at issue in the main proceedings, those products must be regarded as articles of apparel falling within Section XI of the CN, and not as articles of bedding under Chapter 94 of Section XX of the CN.

28

It is apparent, moreover, from the CN explanatory note applicable to heading 6209 that, as is similarly stated in the explanatory note relating to the interpretation of heading 6209 of the HS, heading 6209 covers a certain number of articles intended for young children, including pixie suits and playsuits. Such products have characteristics which, while not identical to those of the products at issue in the main proceedings, are nevertheless similar to them. The products thus covered by the explanatory note relating to heading 6209 of the CN expressly include certain types of sleeping bags with sleeves and arm-holes, which in general are intended for infants of less than 18 months.

29

Lowlands Design submits in that regard that the CN explanatory note relating to heading 6209 is incompatible with Note 1(s) of Section XI of the CN, since that note expressly excludes from the scope of that section the products listed in Chapter 94 of Section XX of the CN, which include, under subheading 9404 30 00, sleeping bags. However, it should be noted that that section note must be understood as merely stating that the articles classified in Chapter 94 do not fall within Section XI.

30

In the light of general rule 3(a) for the interpretation of the CN, from which it is apparent that the heading which provides the most specific description is preferred to headings providing a more general description, the products at issue in the main proceedings do not fall under subheading 9404 30, but must be classified, in principle, under subheading 6209 20 00.

31

In that regard, Note 4 of Chapter 62 of the CN – like Note 4 of Chapter 62 of the HS – states that the expression ‘babies’ garments and clothing accessories’ in heading 6209 means articles for young children of a body height not exceeding 86 cm.

32

The CN explanatory note applicable to heading 6209 states that that heading covers a range of garments which in general are intended for infants of less than 18 months and that some of those garments are clearly layette articles and are therefore classified in that heading whatever their dimensions. That is so, according to that explanatory note, in the case of pixie suits and of sleeping bags with sleeves or arm-holes, other garments being classified in heading 6209 ‘only when they are of a size suitable for young children of a body height not exceeding 86 cm (commercial size 86)’.

33

It must be borne in mind that the content of the Explanatory Notes to the CN, which do not take the place of those of the HS but should be regarded as complementary to them, and consulted jointly with them, must be consistent with the provisions of the CN and may not alter their scope (Joined Cases C-288/09 and C-289/09 British Sky Broadcasting Group and Pace [2011] ECR I-2851, paragraph 64).

34

In accordance with those principles of interpretation, it must be concluded that cotton products such as those at issue in the main proceedings must be classified under subheading 6209 20 00 if, on account of their size, they are suitable for young children of a body height not exceeding 86 cm, which it is for the referring court to ascertain. If that is not the case, the wording of Note 4 of Chapter 62 of the CN precludes the classification of those products under heading 6209. In the latter situation, in the absence of a specific heading for products of that kind and in accordance with general rule 3(c) for the interpretation of the CN, it must be concluded that they fall under subheading 6211 42 90 in the ‘other’ category of ‘other garments, women’s or girls’, of cotton’.

35

Consequently, the answer to the question raised is that the CN must be interpreted as meaning that romper bags such as those at issue in the main proceedings must be classified under subheading 6209 20 00 as ‘babies’ garments and clothing accessories, of cotton’ if, on account of their size, they are suitable for young children of a body height not exceeding 86 cm. If that is not the case, those products must be classified under subheading 6211 42 90 as ‘other garments, women’s or girls’, of cotton’.

36

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

The Combined Nomenclature forming Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that romper bags such as those at issue in the main proceedings must be classified under subheading 6209 20 00 as ‘babies’ garments and clothing accessories, of cotton’ if, on account of their size, they are suitable for young children of a body height not exceeding 86 cm. If that is not the case, those products must be classified under subheading 6211 42 90 as ‘other garments, women’s or girls’, of cotton’.