C-288/99

I — Relevant provisions '4202 Trunks, suit-cases, vanity- cases, executive-cases, brief- cases, school satchels, specta- cle cases, binocular cases, cam- era cases, musical instrument 2. In the view of the national court the cases, gun cases, holsters and relevant provisions of the Common Cus- similar containers; travelling- toms Tariff are contained in Commission bags, toilet bags, rucksacks, Regulation (EC) No 1359/95 of 13 June handbags, shopping-bags, wal- 1995 amending Annex I and II to Council lets, purses, map-cases, cigar- Regulation (EEC) No 2658/87 on the tariff ette-cases, tobacco-pouches, and statistical nomenclature and on the tool bags, sports bags, bottle- Common Customs Tariff (the Combined cases, jewellery boxes, powder- Nomenclature — hereinafter: 'the CN'), boxes, cutlery cases and simi- and repealing R e g u l a t i o n (EEC) lar containers, of leather or of No 802/80 (OJ 1995 L 142, p. 1). composition leather, of sheet- ing of plastics, of textile mater- ials, of vulcanised fibre or of 1 — Original language: Dutch. paperboard, or wholly or

I - 3685

OPINION OF MR GEELHOED — CASE C-288/99

mainly covered with such 4202 92 98 — — — — Other materials or with paper.

— Trunks, suit-cases, vanity- 4202 99 00 — — Other.' cases, executive-cases, brief-cases, school satchels and similar containers;

5. CN heading 6307

6307 90 — Other: 7616 90 — Other:

6307 90 10 — — Knitted or crocheted

7616 90 10— — Knitting needles and crochet hooks

— — Other

6307 90 91 — — — Of felt 7616 90 30 — —Cloth,grill, netting and

6307 90 99 — — — Other.'

OPINION OF MR GEELHOED — CASE C-288/99

7. CN heading 9401 9401 50 00 — Seats of cane, osier, bam- boo or similar materials

'9401 Seats (other than those of heading 9402), whether or — Other seats, with wooden not convertible into beds, and frames: parts thereof:

9401 10 — Seats of a kind used for aircraft

— Other seats, with metal frames:

9401 71 00 — — Upholstered 9401 20 00 — Seats of a kind used for motor vehicles

8. The general rules of the CN relevant to be classified as complete or fin- the present case, which are set out in Title ished by virtue of this rule), pre- 1(A) of Part I thereof, read as follows: sented unassembled or disassem- bled.

(b) Any reference in a heading to a 'Classification of goods in the combined material or substance shall be nomenclature shall be governed by the taken to include a reference to following principles: mixtures or combinations of that material or substance with other materials or substances. Any refer- ence to goods of a given material or substance shall be taken to include a reference to goods con- sisting wholly or partly of such material or substance. The classifi- cation of goods consisting of more 1. The titles of sections, chapters and sub- than one material or substance chapters are provided for ease of refer- shall be according to the principles ence only; for legal purposes, classifi- of rule 3. cation 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. 3. When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more head- ings, classification shall be effected as follows:

2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete (a) the heading which provides the most or unfinished, provided that, as specific description shall be preferred presented, the incomplete or unfin- to headings providing a more general ished article has the essential char- description. However, when two or acter of the complete or finished more headings each refer to part only article. It shall also be taken to of the materials or substances con- include a reference to that article tained in mixed or composite goods complete or finished (or falling to or to part only of the items in a set put

VAUDE SPORT

(e) assembled by sewing, gumming or Section XX 'Miscellaneous manufactured otherwise (other than piece goods con- articles', reads as follows: sisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); 'The articles (other than parts) referred to in heading Nos 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.

The following are, however, to be classified in the abovementioned headings even if they are designed to be hung, to be fixed to 11. Note 1 to Chapter 63 entitled 'Other the wall or to stand one on the other: made-up textile articles; sets; worn clothing and worn textile articles', which forms part of the abovementioned Section XI of the CN, states:

'Sub-chapter I applies only to made-up articles, of any textile fabric.' (b) seats and beds.'

12. Note 2 to Chapter 94 of the CN 13. Some of the explanatory notes to the entitled 'Furniture; bedding, mattresses, harmonised commodity description and mattress supports, cushions and similar coding system of the World Customs stuffed furnishings; lamps and lighting Organisation (hereinafter: 'HS explanatory fittings, not elsewhere specified or in- notes') can also be taken into consideration cluded; illuminated signs, illuminated in answering the question referred to the name-plates and the like; prefabricated Court. This applies in particular to the buildings', which forms a sub-chapter of following explanatory notes.

'The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.' 18. As the general HS explanatory notes to Chapter 94 of the CN state, for the purposes of that chapter 'furniture' means:

16. According to the general HS explana- tory notes to Chapter 42 of the CN, that chapter:

'Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential 'principally covers articles of leather or characteristic that they are constructed for composition leather; however, headings placing on the floor or ground, and which

I - 3692

VAUDE SPORT

are used, mainly with a utilitarian purpose, Article 2 to equip private dwellings, ..., motor vehicles, ... or similar means of transport.'

23. The annex to the regulation can, in so far as it is relevant to this case, be summed up as follows.

Classification Grounds Description CN code (1) (2) (3)

1.... 2.... 3. Carrying device made of aluminium tube 6307 90 99 Classification is determined by General and pieces of knitted or woven fabric Rules 1, 3(b) and 6 for the interpretation (synthetic fibres) sown together, consisting of the Combined Nomenclature. Note 7(e) of a seat for a child with padding at the side to Section XI, Note 1 to Chapter 63, Note 2 and at head height, retention and carrying to Chapter 94 and CN codes 6307, 6309 90 straps and, underneath, storage space for and 6307 90 99. small objects. The surface of the seat (including the seat This product does not have the character- back), the integral hood, the small pocket- istics of a sack and similar containers of like receptacle under the seat and the carry- heading 4202, it is designed for carrying ing, lap and other straps are made of textile children. material. See also the Explanatory Notes to the Harmonised System relating to heading 6307. (Other made-up textile articles of woven fabric — baby carrier)

I I— Factual and procedural context applied to the competent German customs authorities for binding tariff information in respect of a product which it describes as follows:

A — Facts and question referred for a preliminary ruling

24. The files show that the plaintiff in the 'collapsible comfort child carrier with main proceedings (VauDe Sport GmbH & height-adjustable tergoform carrying sys- Co. KG — hereinafter 'the plaintiff') tem and integrated rucksack'.

I - 3695

OPINION OF MR GEELHOED — CASE C-288/99

28. In its decision of 17 June 1996 the fabric under CN subheading 6307 9099 Oberfinanzdirektion stood by its original 0990 position. Classification under CN heading 4202 was not possible because that would result in an impermissible extension of the material scope of that heading. or

29. The plaintiff lodged an appeal against that decision on 17 July 1996. In its order is the aforementioned product covered by for reference the Hessisches Finanzgericht another heading?' set out in detail the views of the parties and the reasons which led it to refer the following question for a preliminary ruling:

B — Proceedings before the national court

35. The Oberfinanzdirektion requests that the application be dismissed. It maintains its tariff classification. Essentially, it states that the child carrier is precisely not a carrying device for the transportation of 33. However, the carrier may also be inanimate objects, but that it is clear upon classifiable as a child seat which may either examining it that it is for the safe transport be placed on the ground or floor or carried of small children. It cannot be classified on a person's back. This equates the carrier under CN code 4202 because the wording with a child car seat even though it differs of that heading does not contain the from a car seat on account of its special requisite reference to child carriers. carrying device and its main purpose, namely to carry a child on a person's back on walks and so on. The fact that the support frame of the child carrier includes a folding stand enabling it to be placed safely on the floor or ground indicates, in the view of the plaintiff, that it should be classified as a child seat under CN heading 36. The proceedings were stayed since the 9401. defendant had referred the problem of how to classify child carriers to the Customs Tariff and Statistical Nomenclature Com- mittee of the European Commission. The abovementioned committee then dealt with the question during its 171st session on 12 and 13 November 1998. According to the minutes, when a poll was taken, six of the nine Member States represented voted for 34. If the child carrier at issue is to be classification under heading 6307. After classified by the material used, then the proceedings had been reopened by order of focus must be on the value and function of 17 December 1998, the defendant each of the materials used. The aluminium informed the national court that the Cus- support frame is of particular significance toms Code Committee had agreed by 14

38. On the basis of the similarities and differences between a rucksack and a child carrier, the national court concludes that 40. If the child carrier at issue is not the similarities between the two goods classifiable under CN heading 4202 and could support classification as requested 9401, it must be dealt with according to by the plaintiff. However, arguments General Rule 2(b) whereby, since the goods against that classification may be found in consist of more than one material, they the not inconsiderable differences between must be classified according to the princi- the two goods and in the fact that, accord- ples of General Rule 3. ing to the wording of the headings and to the goods described in the explanatory notes as being 'similar', all such goods are closed or at least capable of being closed and are in each case intended for the storage of inanimate objects. Extending General Rule 3(a) does not apply to these the term 'similar containers' to cover the facts because there is no general or specific child carrier at issue might therefore con- heading for child carriers. Therefore, con-

I - 3698

VAUDE SPORT

sideration must be given to the application The resultant equal value of the constituent of General Rule 3(b). parts may indicate that the child carrier is classifiable pursuant to General Rule 3(c) under subheading 7616 9099 0900.

41. This general rule means that it is necessary to determine whether it is imme- diately apparent that the textile parts of the I I I— Observations submitted to the court child carrier give it its essential character so that it is classifiable under heading 6307 among 'other made up articles'. In addi- tion, it is clear from the HS explanatory note to heading 6307 that carry cots and 44. The plaintiff in the main proceedings similar pieces of equipment are intended to and the Commission submitted written be classified under this heading. observations. They were heard at the hearing on 16 November 2000.

between the child carrier and the containers 48. Only if the child carrier is not classifi- included under heading 4202. However, it able by its intended use, should considera- does not share the court's concerns as to the tion be given to classifying it by the risk of an unauthorised extension of the material used, either under heading 6307 scope of this heading. The plaintiff argues or heading 7616. Pursuant to General Rule that, pursuant to the general HS explana- 3(b), the component which characterises tory note to Chapter 42, it, as a manufac- the child carrier as such is the expensive turer of rucksacks, belongs to a sector aluminium carrying device. Therefore, in allied to the leather trade. The plaintiff the view of the plaintiff, consideration developed the child carriers at issue in should be given only to classification under connection with the manufacture of ruck- heading 7616 of the CN. Since the national sacks, in particular on the basis of a court reaches the same conclusion by carrying system for rucksacks which had application of General Rule 3(c), the plain- been tried and tested over many years. tiff supports the relevant considerations set Although the main purpose of the child out in the order for reference. carrier is to transport a young child, it is also designed to carry objects on a person's back in the storage space attached to the carrier.

51. In the view of the Commission, classi- function. It makes it easier to place the fication under heading 4202 must be ruled child in the carrier and prevents it from out. First of all, heading 4202 does not falling over. Furthermore, the child carrier refer to such goods, unless they are re- also fails to satisfy the second cumulative garded as 'similar containers' within the condition of the abovementioned note since meaning set out therein. The Commission it is not used to equip private dwellings and points out that it is settled case-law that, in means of transport as referred to therein. the interests of legal certainty and effective verification, the decisive criterion for the classification of goods is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading. The child carrier does not answer the description in heading 4202. Even though it is carried on a person's back 53. Since there is no tariff heading under like a rucksack, it differs from a rucksack in which child carriers can be classified as that it has an open seat whose sole function such, classification must be effected in is to transport a child. The presence of a accordance with General Rule 2(b). Since closed storage space for transporting small the child carrier concerned is a composite items under the seat is a minor factor and product made up primarily of woven fabric of little importance in terms of classifica- and aluminium tubing, General Rule 2(b) tion. Heading 4202 covers goods which are refers to General Rule 3. Since General intended to transport objects. Furthermore, Rule 3(a) does not apply, classification all the containers to which this heading must be effected in accordance with Gen- relates are closed or capable of being eral Rule 3(b) on the basis of the material closed. The child carrier has neither of and/or component which gives the pro- these characteristics. duct — in this case the child carrier — its essential character. Possible decisive factors in that respect are the nature of the material or component, its bulk, weight or value, or the role of a constituent material in relation to the use of the product. Furthermore, according to the case-law of the Court of Justice, in answering the question which of the composite goods or materials give the product its essential character, it is neces- sary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it. 52. The Commission considers that classi- fication under heading 9401 must likewise be ruled out. On the one hand, the child carrier is, contrary to the first sentence of Note 2 to Chapter 94 of the CN, designed solely to be carried on a person's back even though it may also be placed on the floor or ground like any other object. The foldable 54. The Commission considers that at first underframe performs only a purely minor glance the aluminium support frame could

55. Although the Commission is aware that its view differs from that of the national court which is inclined, by application of General Rule 3(c), towards classification of 59. Since in the present case consideration the child carrier under heading 7616, it can be given only to headings 6307 and considers that the product is covered by 7616, the essential question in choosing heading 6307 in accordance with General between the two headings is, in the view of Rule 3(b) and on account of the fact that the Commission, whether a child can be the woven material is the decisive factor in transported in a child carrier which has no view of its importance to the use of the metal frame. Having regard to Regulation product. No 1529/1999, which is based on an analysis in which 14 Member States con- curred with the reasoning of the Commis- sion in a procedure provided for in Art- icle 10(1) of Regulation No 2658/87, and to paragraph 17 of the HS explanatory 56. Moreover, this classification is sup- notes to heading 307, the answer must be ported by paragraph 17 of the HS expla- in the affirmative. natory notes to heading 6307 which places 'carry cots, portable cradles and similar carriers for children' under this heading.

60. The Commission is aware that the 57. A similar analysis underlies Regulation national court is inclined to answer the No 1529/1999 which classifies a product abovementioned essential question in the identical to that at issue in the main negative.

I - 3702

VAUDE SPORT

61. Consequently, it proposes that the IV — Appraisal Court answer to the question referred to it as follows:

64. In the clear grounds of the order for reference the national court sets out in detail why, in its view, justified doubts arise as to the correctness of a possible classifi- If, on the other hand, the national court cation of the child carrier under heading concludes that such is not the case, the 4202 and heading 9401. It obviously child carrier must be classified under head- considers that the arguments against clas- ing 7616 by application of General Rule sification under heading 9401 are so strong 3(c).' that it limits the first part of the question

I - 3703

OPINION OF MR GEELHOED — CASE C-288/99

referred to the Court to possible classifica- the objective properties and characteristics, tion of the product at issue under heading which are in principle common to all the 4202. goods covered by this list, would become diluted.

I - 3704

VAUDE SPORT

72. The HS explanatory notes to the term constitutes 'a similar container' within the 'similar containers' are of the same tenor. meaning of the description in heading 4202 They too relate almost exclusively to goods no connection need be sought precisely in which are or can be closed and are designed the characteristics of the goods referred to for the storage and/or transportation of individually under that heading, but in the objects. According to the settled case-law objective characteristics which all the of the Court, they are important means of goods referred to therein have in common. ensuring the uniform application of this tariff and may therefore be regarded as a valuable aid to the interpretation thereof. 4

I - 3705

OPINION OF MR GEELHOED — CASE C-288/99

and/or transportation of items. A product 82. Since the child carrier is precisely not described as a child carrier consisting designed to be placed on the floor or the essentially of a support frame made of ground, nor serves to equip private dwell- aluminium tubing and woven fabric made ings, motor vehicles or similar means of of synthetic fibres — assembled by being transport, classification under heading sewn together — in which a child may be 9401 is not possible. carried in a seated position on a person's back and items stored under the seat is devoid of the objective properties which would warrant classification under CN heading 4202.' 83. The plaintiff's argument that the child carrier has, by its objective properties, a dual purpose and can consequently be classified under heading 9401 is therefore also untenable. The fact that it is equipped with a folding underframe enabling it to be 79. In the main proceedings the question placed on the floor or the ground does not was also raised as to whether the child detract from its characteristic primary carrier could be classified as a 'seat' under purpose, that is to say to be carried on a heading 9401. person's back. The second cumulative con- dition, namely that the seat concerned must 'principally' be used to equip private dwell- ings, motor vehicles or similar means of transport, also precludes classification of the child carrier under heading 9401. 80. Both the court in the main proceedings and the Commission consider, on the basis of the same arguments, that classification of the child carrier concerned under this headings is very questionable or impossible respectively. They are correct in this view. 84. Since the court in the main proceedings has already more or less ruled out classifi- cation under heading 9401 and referred no specific question in that respect, the Court could disregard this matter.

91. On the assumption that the woven fabric determines the character of the child carrier, the Commission argues for classifi- 87. Since there is therefore no tariff head- cation under heading 6307. The plaintiff ing under which child carriers can be takes the view that the aluminium support classified, it is necessary, in order to classify frame should be the decisive factor. There- it, to consult further the general rules on fore, it opts for heading 7616. The national the interpretation of the combined nomen- court concludes that both the woven fabric clature. and the support frame determine the char- acter thereof. By application of General Rule 3(c) it is inclined towards classifica- tion under 7616.

88. In respect of products composed of various elements, such as that at issue, General Rule 2(b) refers to General Rule 3. General Rule 3(a) thereof is not applicable since it relates to classification under head- 92. The answer to the question which ings with specific descriptions. Conse- constituent material determines the char- quently, it must first be considered whether acter of the child carrier in question or not classification is possible by applica- ultimately requires a factual assessment, tion of General Rule 3(b). as the Commission correctly observes.

I - 3707

OPINION OF MR GEELHOED — CASE C-288/99

However, for that more detailed guidance abovementioned sub-chapter 1, that is to in the abstract is required. say headings 6301 to 6307.

95. In assessing whether or not an article can be classified under a heading in Chap- ter 63 of the CN, regard must be had to the 98. If in respect of these articles at least connection between note 1 to that chap- equal importance in terms of determining ter — 'Sub-chapter I applies only to made- character is attached to the supporting up articles, of any textile fabric' —, on the material, that should mean that they cannot one hand, and the description of the goods be classified under heading 6307. However, in the headings which are covered by the such a conclusion cannot be reconciled

I - 3708

VAUDE SPORT

with the scheme and wording of Chapter at issue. The plaintiff asked that the Court 63 and in particular of heading 6307, as declare it invalid. explained in the abovementioned note and the HS explanatory note.

102. This regulation entered into force 99. I therefore conclude as follows: after the events underlying the main pro- ceedings occurred. The national court did not refer thereto in its question.

'A child carrier consisting predominantly of woven material whose characteristic prop- erties are also predominantly determined 103. Therefore, it is not possible to derive by that material must be classified under from this regulation which, as the Commis- CN heading 6307 even where parts thereof sion itself noted, is merely legislative can- consisting of another material may be not have retroactive effect, any argument useful or necessary for the use thereof.' relating to the answers to be given to the questions referred to the Court for a preliminary ruling. 5

(a) The term 'similar containers' in CN heading 4202 of the Common Customs Tariff relates to goods which have the common feature that they are or can be closed and are designed for the storage and/or transportation of items. A product described as a child carrier consisting essentially of a support frame made of aluminium tubing and woven fabric made of synthetic fibres — assembled by being sewn together — in which a child may be carried in a seated position on a person's back and items stored under the seat is devoid of the objective properties which would warrant classification under CN heading 4202. The article is also devoid of the properties which would enable it to be classified under CN heading 9401 since it is not designed to be placed on the floor or the ground nor does it serve principally to equip private dwellings, motor vehicles or similar means of transport.

(b) A child carrier consisting predominantly of woven material whose character- istic properties are also predominantly determined by that material must be classified under CN heading 6307 even where parts thereof consisting of another material are useful or necessary for the use thereof.

I - 3710