Opinion of the Advocate General — ECLI:EU:C:2024:66
Date: 2024-01-18
Language of the case: German
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

summary study entitled ‘Height and body-mass index trajectories of 
school-aged children and adolescents from 1985 to 2019 in 200 countries and 
territories: a pooled analysis of 2 181 population-based studies with 65 million 
participants’, published in The Lancet, Volume 396, 2020, pp 1511-1524). The 
‘group hutch’, the largest calf hutch at issue, is 183 cm high. Even the dimensions 
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of the group hutch do not, in the Chamber’s view, provide sufficient standing 
room, which the referring Chamber would set at a minimum of 190 cm in the 
present context, for users of the article who are of average height – and the other 
hutches are significantly lower. This is because standing room requires a certain 
amount of headroom, and, for the articles at issue, there is the additional factor 
that the bedding required for their usual use takes up a material part of their free 
height. 
33 aa) The fact that it does not clearly follow from the wording of the relevant 
provisions that people must be able to enter ‘prefabricated buildings’ and that, as 
explained above, it is difficult to define exact demarcation criteria in this respect 
supports the applicant’s view. 
34 bb) The fact that all of the prefabricated buildings under CN heading 9406 that are 
listed by way of example in Note 4 to Chapter 94 of the CN can be entered by 
persons of average height, and are also intended to be entered by them, supports 
the HZA’s view. If people enter and stay in a building, they usually do so in an 
upright position and with headroom above them, which militates in favour of the 
concept of a building requiring accessibility and, moreover, such accessibility 
being affirmed only if the building provides sufficient standing room. 
35 cc) The referring Chamber is inclined to the interpretation that an article can be a 
prefabricated building within the meaning of CN heading 9406 only if people of 
average height can enter it and it has at least one space with standing room for 
such people for this purpose. The articles at issue would appear not to qualify as 
buildings because they are too low for this purpose. In the opinion of the 
Chamber, a physical structure is only a building if it can be entered and used by a 
typical human user – i.e. not just by children or people of below-average height – 
in an upright position. This requires standing room for people of average height in 
at least one part of the building. Buildings have this property according to the 
ordinary meaning of the term, and the examples of buildings mentioned in Note 4 
to Chapter 94 of the CN also have this characteristic in common. 
36 The example of greenhouses, which are imported into the customs territory of the 
European Union in very different sizes, also demonstrates that classifying articles 
as ‘prefabricated buildings’ for tariff purposes depends on, inter alia, their height 
and whether people are able to enter them. They qualify as ‘greenhouses’ under 
CN subheading 9406 0031, and therefore as ‘prefabricated buildings’ within the 
meaning of CN heading 9406, only if they are high enough for a person to be able 
to enter them. This follows, for example, from the classification of a mini-
greenhouse (with dimensions of 50 cm x 24 cm x 25 cm) pursuant to Commission 
Regulation (EC) No 1655/2005 of 10 October 2005 concerning the classification 
of certain goods in the Combined Nomenclature (OJ 2005 L 266, p. 50) as falling 
under CN heading 4421. An explanatory note states that, because of its size, such 
a product cannot be considered as a prefabricated building of CN heading 9406. 
The [European Commission’s] explanatory note to the CN 02.0 regarding CN 
heading 9406 also supports the argument that prefabricated buildings require 
REQUEST FOR A PRELIMINARY RULING OF 23. 8. 2022 – CASE C-104/23 
 
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standing room: it states that, for poly tunnels used in horticulture to be classified 
as ‘prefabricated buildings’, they have to be of a size that a person can enter. 
37 In addition, this criterion would require further elaboration in borderline cases. 
Specifically, it would require clarification as to whether appropriate accessibility 
requires a minimum dimension of standing room for people of average height in at 
least one area or whether it is sufficient for entry to be possible in any case for 
smaller people or for people of average height but in a bent-over position. The 
interpretation of the EU law that is relevant in this case is therefore not so obvious 
as to leave no scope for any reasonable doubt.