62003CC0495_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
Table of contents
I –  Introduction
II –  Legal Framework
A – Classification in the Combined Nomenclature
B – Binding tariff information
1. The Customs Code
2. The implementing regulation
III –  Facts and procedure
IV –  Answers to the questions referred
A – The first question
1. Summary of the submissions of the interested parties
2. Legal Assessment
a) Introductory remarks
i) Overview of the obligation for national courts to make a reference for a preliminary ruling
ii) Determination of the issues arising from the question referred
b) Is there an obligation to make a reference for a preliminary ruling in accordance with the rule in Foto-Frost?
c) Is there an obligation for a court of last instance to make a reference for a preliminary ruling in the light of the judgment in Cilfit?
i) General observations on the judgment in Cilfit
ii) Post Cilfit?
iii) The specific characteristics of this case – is there an automatic obligation to make a reference for a preliminary ruling?
iv) Is there an obligation to make a reference for a preliminary ruling by virtue of the principle of equal treatment?
v) Conclusions for this case arising from the judgment in Cilfit
B – The second question
1. Summary of the submissions of the interested parties
2. Assessment
V –  Conclusion
I – Introduction
1. The key question which must be answered in this reference for a preliminary ruling, made by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) by a judgment of 21 November 2003 and received at the Court Registry on 24 November 2003, is whether a national court is required to refer a question to the Court of Justice for a preliminary ruling in a case where a party to a dispute invokes a classification, given in a binding tariff information issued by a customs authority of another Member State to a third party in respect of a similar product, which the national court considers to be at variance with the Combined Nomenclature (hereinafter ‘the CN’) and from which it therefore intends to depart.
2. The referring court also asks whether vehicles such as those at issue in the main proceedings must be classified under heading 8709 of the CN contained in 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, (2) as amended by Commission Regulation (EC) No 2261/98 of 26 October 1998. (3)
3. These questions have been raised in an appeal on a point of law before the Hoge Raad der Nederlanden in which Intermodal Transports B.V. of Amsterdam, a company incorporated under Netherlands law (hereinafter ‘Intermodal’), is appealing against a judgment by which the Gerechtshof te Amsterdam (Regional Court of Appeal, Amsterdam) upheld the customs classification under subheading 8701 20 10 of the CN, made by the Netherlands customs authorities and disputed by Intermodal, of certain motor vehicles described as ‘Magnum ET-120 Terminal Tractors’.
II – Legal Framework
A – Classification in the Combined Nomenclature
4. For tariff and statistical purposes, products in the Community are subject to classification under the CN, introduced by Regulation No 2658/87, which, in turn, is based on the International Harmonised Commodity Description and Coding System (4) (hereinafter ‘the HS’).
5. Chapter 87 of the CN, which is relevant to this case, concerns ‘vehicles other than railway or tramway rolling-stock, and parts and accessories thereof’.
6. Pursuant to Note 2 to that chapter, ‘“tractors” means vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilisers or other goods’.
7. Heading 8701 of the CN refers to ‘[t]ractors (other than tractors of heading No 8709)’; it includes, inter alia, the following subheadings:
8701 20 – Road tractors for semi-trailers:
– 8701 20 10 − new
– 8701 20 90 − used
8. Heading 8709 of the CN concerns, inter alia, ‘[w]orks trucks, self-propelled, not fitted with lifting or handling equipment, of the type used in factories, warehouses, dock areas or airports for short distance transport of goods …’.
9. The Explanatory Notes to the Harmonised Commodity Description and Coding System on which the CN is based (hereinafter ‘the HS Explanatory Notes’), contain, inter alia, the following clarifications with regard to heading 8709:
‘… The main features common to the vehicles of this heading which generally distinguish them from the vehicles of heading 87.01, 87.03 or 87.04 may be summarised as follows:
(1) Their construction and, as a rule, their special design features make them unsuitable for the transport of passengers or for the transport of goods by road or other public ways.
(2) Their top speed when laden is generally not more than 30 to 35 km/h.
(3) Their turning radius is approximately equal to the length of the vehicle itself.
Vehicles of this heading do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform on which he stands to steer the vehicle. Certain types may be fitted with a protective frame, metal screen, etc., over the driver’s seat.
The vehicles of this heading may be pedestrian controlled. …
Tractors of the type used on railway station platforms are designed primarily to tow or push other vehicles, e.g., small trailers. They do not themselves carry goods, and are generally lighter and less powerful than the tractors of heading 87.01. Tractors of this type may also be used on wharfs, in warehouses, etc. …’
B – Binding tariff information
10. The issuing of ‘binding tariff information’ by the national customs authorities is governed by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, (5) as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (6) (hereinafter ‘the Customs Code’), and by Commission Regulation (EEC) No 2454/93 of 2 July 1993 (7) laying down provisions for the implementation of the Customs Code (hereinafter ‘the implementing regulation’), as amended by Commission Regulation (EC) No 12/97 of 18 December 1996. (8)
1. The Customs Code
11. Article 4 of the Customs Code reads, inter alia, as follows:
‘For the purposes of this Code, the following definitions shall apply …:
5. “Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons; this term covers, inter alia, binding information within the meaning of Article 12; …’.
12. Article 12(1) to (5) of the Customs Code provides, inter alia:
‘1. The customs authorities shall issue binding tariff information or binding origin information on written request, acting in accordance with the committee procedure.
2. Binding tariff information or binding origin information shall be binding on the customs authorities as against the holder of the information only in respect of the tariff classification or determination of the origin of goods.
...
4. Binding information shall be valid for a period of six years in the case of tariffs and three years in the case of origin from the date of issue. By way of derogation from Article 8, it shall be annulled where it is based on inaccurate or incomplete information from the applicant.
5. Binding information shall cease to be valid:
(a) in the case of tariff information:
(i) where a regulation is adopted and the information no longer conforms to the law laid down thereby;
(ii) where it is no longer compatible with the interpretation of one of the nomenclatures referred to in Article 20(6):
– at Community level, by reason of amendments to the explanatory notes to the combined nomenclature or by a judgment of the Court of Justice of the European Communities,
…
(iii)	where it is revoked or amended in accordance with Article 9, provided that the revocation or amendment is notified to the holder.
The date on which binding information ceases to be valid for the cases cited in (i) and (ii) shall be the date of publication of the said measures …
...’
2. The implementing regulation
13. Title II of the implementing regulation contains a series of provisions specifying the legal effect of binding tariff information and the procedure to be applied in relation to such information.
14. Article 9(1) thus provides for cases of inconsistencies in binding information:
‘Where different binding information exists:
– the Commission shall, on its own initiative or at the request of the representative of a Member State, place the item on the agenda of the Committee for discussion at the meeting to be held the following month or, failing that, the next meeting,
– in accordance with the Committee procedure, the Commission shall adopt a measure to ensure the uniform application of nomenclature or origin rules, as applicable, as soon as possible and within six months following the meeting referred to in the first indent.’
15. Pursuant to Article 10(1) of the implementing regulation, binding information may be invoked only by the holder. Article 10(3)(a) states that in tariff matters the holder of binding information may use it in respect of particular goods only where it is established to the satisfaction of the customs authorities that the goods in question conform in all respects to those described in the information presented.
16. Finally, Article 11 of the implementing regulation provides that binding tariff information supplied by the customs authorities of a Member State since 1 January 1991 is to become binding on the competent authorities of all the Member States under the same conditions.
III – Facts and procedure
17. On 1 March 1999, in Amsterdam, Intermodal declared eight motor vehicles referred to as ‘Magnum ET-120 Terminal Tractors’ under subheading 8709 11 90 of the CN.
18. According to the findings of the referring court, a Magnum ET-120 Terminal Tractor is a four-wheel motor vehicle, equipped with a diesel engine having an output of 132 kilowatts at 2 500 revolutions per minute and full automatic transmission with four forward gears and one reverse gear. It has a closed driving cab with air suspension and an air-suspended driver’s seat. The chassis is equipped with what is known as a fifth wheel with a lift height of 60 centimetres and a maximum carrying capacity of 32 000 kilograms. The fifth wheel is used for coupling a trailer.
19. In a brochure submitted by Intermodal, the vehicle in question is described as follows: ‘[t]he Magnum ET-120 with rear-wheel drive has been specifically designed for handling trailers in distribution centres and wholesale stores. The extra low chassis also enables it to handle what are known as Mega or Jumbo trailers. With its small turning circle (the best on the market), even the manipulation of trailers with the largest overhang becomes extremely simple.’
20. The referring court considers that a distinguishing characteristic of the vehicle in question is its specific function, in the sense that it was designed and intended to be able to move semi-trailers efficiently over short distances on industrial premises and inside industrial buildings. This vehicle as such was not designed or intended for the transport of goods.
21. The customs authorities which checked the declaration reached the conclusion that the vehicles should be classified not under subheading 8709 11 90 of the CN, as assumed by Intermodal, but under subheading 8701 20 10 of the CN, and demanded from Intermodal the payment of the higher duty corresponding to that classification.
22. Intermodal brought an action against that decision before the Gerechtshof te Amsterdam (hereinafter ‘the Gerechtshof’).
23. In the proceedings before the Gerechtshof, Intermodal relied on a binding tariff information issued by the Finnish customs authorities on 14 May 1996 to a third party, Sisu Terminal Systems Oy, Tampere (Finland), which classified vehicles referred to as ‘Sisu-Terminaaltraktori’ under heading 8709 of the CN. According to Intermodal, those vehicles are at least similar to the vehicles which it declared. It is not contested that that tariff information was still valid at the time when the vehicles were declared by Intermodal.
24. The Gerechtshof, however, by reference to the settled case-law of the Court of Justice relating to the decisive criteria for classifying goods for customs purposes under the CN, upheld the classification by the Netherlands customs authority of the vehicles at issue under subheading 8701 20 10 of the CN. The Gerechtshof based its ruling on the consideration that classification under heading 8709 of the CN was not possible because the vehicles were not designed or intended to transport goods independently and were also unsuitable for towing railway‑station platform trolleys.
25. The Gerechtshof held that classification of the contested vehicles under subheading 8701 20 10 of the CN was so obvious that it did not see any reason to make a reference for a preliminary ruling and that the fact that the Finnish customs authorities had issued to a third party, in respect of a similar product, a binding tariff information which differed from that classification did not change anything in this regard.
26. Intermodal brought an appeal on a point of law against that judgment before the referring court, citing three grounds of appeal.
27. In the order for reference, the referring court stated that there can be no reasonable doubt that, under the provisions of Community law, only the holder of a binding tariff information may derive rights from it with regard to the classification of the products for which the information was issued, and that the second and third grounds of appeal, which started from a different premiss, were therefore untenable.
28. However, the referring court considers that it is not readily apparent what a national court should do in cases where a party to a dispute concerning classification in the CN invokes a binding tariff information issued to a third party and the court in question takes the view that that binding tariff information is at variance with the CN. Should the court refer questions to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of the CN, even if it considers the binding tariff information to be incorrect beyond any reasonable doubt? The referring court states that one argument in favour of answering that question in the affirmative is that this would ensure both the correct, and uniform, application of the CN within the Community, inasmuch as binding tariff information ceases to be valid where it is no longer compatible with the interpretation of the CN by reason of a judgment of the Court of Justice (first indent of Article 12(5)(a)(ii) of the Customs Code).
29. Furthermore, the referring court asks whether heading 8709 should be interpreted restrictively, with the result that the vehicles at issue cannot be classified under it because they are not vehicles which transport goods independently and they are not tractors used for towing luggage trolleys or the like, or whether classification under that heading is possible after all, since – in the referring court’s view – the HS Explanatory Notes allow a broader interpretation in so far as they state that the heading relates to tractors which do not transport goods independently but are used for hauling or pushing other vehicles not only in railway stations but also on wharfs and in warehouses, etc.
30. In the light of those considerations, the Hoge Raad der Nederlanden referred the following questions to the Court of Justice for a preliminary ruling:
1. Should a national court refer questions on the interpretation of the CN to the Court of Justice of the European Communities for a preliminary ruling where a party to a dispute brought before it concerning classification in the CN of a certain product invokes a decision by a customs authority laid down in a binding tariff information issued to a third party in respect of a similar product and the national court takes the view that that binding tariff information is at variance with the CN?
2. Must heading 8709 of the CN be interpreted as covering vehicles such as those in issue in the present case?
IV – Answers to the questions referred
A – The first question
31. By its first question, the referring court seeks to ascertain whether a national court is required to refer a question on the interpretation of the CN to the Court of Justice for a preliminary ruling in a case where a party to a dispute invokes a classification, given in a binding tariff information issued by a customs authority of another Member State to a third party in respect of a similar (in the Dutch original ‘soortgelijk’) product, which the national court considers to be at variance with the CN and from which it therefore intends to depart.
1. Summary of the submissions of the interested parties
32. The Commission, the Netherlands and Austrian Governments and Intermodal have submitted observations on the first question. Their views can be summarised as follows.
33. The Commission and the Netherlands Government refer to the distinction which must be made under Article 234 EC between courts other than those of last instance, which are, in principle, free to make a reference for a preliminary ruling, and courts of last instance, which are, in principle, required to make a reference.
34. The Commission examines the legal nature of a binding tariff information by reference to the implementing regulation and takes the view that it is not a Community measure which, in accordance with the rule in Foto-Frost, (9) gives rise to an obligation to make a reference for a preliminary ruling even for courts other than those of last instance.
35. With regard to courts of last instance, the Commission and the Netherlands Government refer to the judgment in Cilfit, (10) under which a court of that kind may refrain from requesting a preliminary ruling from the Court of Justice if the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. The Netherlands Government considers that that condition does not automatically fail to be satisfied because of the existence of divergent tariff information in respect of a similar product. In the circumstances to which the national court refers, the latter proceeds on the premiss that the tariff information is unquestionably at variance with the CN and that there is therefore no obligation to make a reference for a preliminary ruling in this case.
36. The Austrian Government also submits that the first question should be answered in the negative. It substantiates this view principally by reference to the separation of executive and judicial functions, which means that a court cannot be bound by the decision of a customs authority when ruling on the same issue. Furthermore, it contends, the uniform interpretation of the CN is also ensured by the possibilities for revocation etc. provided for in the Customs Code.
37. The Commission, on the other hand, submits that, in accordance with the judgment in Cilfit, the question whether a matter is ‘ acte clair ’ must be assessed against a strict criterion. It takes the view that the existence of a divergent tariff information is bound to give rise to doubts on the part of the national court and that the question whether courts of last instance have an obligation to make a reference for a preliminary ruling must therefore be answered in the affirmative.
38. Finally, Intermodal substantiates the obligation to make a reference for a preliminary ruling by relying on the first indent of Article 12(5)(a)(ii) of the Customs Code, according to which binding tariff information ceases to be valid where it is no longer compatible with the interpretation of the CN by reason of a judgment of the Court of Justice. In its view, that provision, in conjunction with the principle of equal treatment, would indicate that the exceptions to the obligation to make a reference for a preliminary ruling established in the judgment in Cilfit
are inapplicable.
2. Legal Assessment
a) Introductory remarks
i) Overview of the obligation for national courts to make a reference for a preliminary ruling
39. It is for all the authorities of the Member States, including the national courts, to ensure observance and implementation of Community law within the sphere of their competence. (11) In particular, the national courts must protect the rights that Community law confers directly on individuals. (12)
40. By means of the procedure for referring a question on the interpretation or validity of a provision of Community law provided for by Article 234 EC, the EC Treaty has created a system of cooperation between the national courts – as the courts responsible for applying Community law – and the Court of Justice, the purpose of which is to ensure the correct application and uniform interpretation of Community law in all the Member States. (13)
41. While, in principle, that mechanism of judicial cooperation, which is aimed at ensuring uniformity in the application and interpretation of Community law in a decentralised system of legal protection, encompasses all national courts within the meaning of the concept of ‘court or tribunal’ used in a manner specific to Community law, it nevertheless makes a well-known distinction between a ‘court or tribunal of a Member State’ within the meaning of the second paragraph of Article 234 EC (hereinafter ‘courts other than those of last instance’), on the one hand, and a court or tribunal of a Member State ‘against whose decisions there is no judicial remedy under national law’ within the meaning of the third paragraph of Article 234 EC (hereinafter ‘a court of last instance’), on the other.
42. Pursuant to the third paragraph of Article 234 EC, only courts of last instance are in principle required to refer to the Court of Justice any question on the interpretation or validity of a Community act raised before them. The obligation to make a reference for a preliminary ruling incumbent on national courts against whose decisions there is no judicial remedy under national law is intended, in particular, to prevent questions on the interpretation or validity of Community law from finishing up in a domestic cul-de-sac, so to speak, or, as the Court has consistently held, to prevent ‘a body of national case-law that is not in accordance with the rules of Community law from coming into existence in any Member State’. (14)
43. However, that obligation on national courts of last instance to make a reference for a preliminary ruling may be waived in exceptional circumstances in accordance with the conditions laid down in case-law, more specifically, when the question raised is the same as a question which has already been the subject of a reference for a preliminary ruling in an identical or similar case (15) or, as the Court held in Cilfit, when the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. (16)
44. Courts other than those of last instance on the other hand are, pursuant to the second paragraph of Article 234 EC, entitled, but in principle not required, to refer a question to the Court of Justice for a preliminary ruling. An exception to that rule, however, can be found in the judgment in Foto-Frost, according to which national courts have no jurisdiction themselves to declare that acts of Community institutions are invalid. (17) It is for the Court of Justice alone to declare acts of the Community institutions invalid. This follows above all from the need to ensure that Community law is applied uniformly, which is particularly imperative when the validity of a Community act is in question. (18)
45. However, national courts may consider the validity of a Community act and, if appropriate, conclude that the measure is completely valid. (19) For such a declaration of validity does not impair the uniform application of the Community legal order itself or the fundamental requirement of legal certainty.
46. The rule in Foto-Frost must not, however, be understood as relating only to a ‘formal declaration of invalidity’; it also applies to cases where a national court – without a formal declaration of invalidity – intends to depart from a Community act because it considers it to be invalid. A national court cannot derogate from, or not apply, a Community act until the Court of Justice has held that Community act to be invalid, if appropriate, in preliminary reference proceedings.
47. This is apparent not least from Articles 10 and 249 EC as well as, generally, from the abovementioned obligation for national courts to apply and ensure full compliance with Community law. (20) According to the case-law of the Court, where a national court entertains serious doubts as to the validity of a Community act, it has jurisdiction to suspend enforcement of national measures adopted in implementation of that act, or to grant interim relief as a result of which that act temporarily ceases to be applied, only in certain circumstances. In order to do this, a question as to the validity of the Community act concerned must be referred to the Court of Justice. (21) ‘Only the possibility of a finding of invalidity, a matter which is reserved to the Court, can justify the granting of suspensory measures.’ (22)
48. It must therefore be concluded that – alongside the obligation to make a reference for a preliminary ruling incumbent on national courts of last instance – courts against whose decisions there is a judicial remedy under national law must likewise not derogate from, or not apply, a Community act which they consider to be invalid without referring the question as to the validity of that Community act to the Court of Justice. (23)
ii) Determination of the issues arising from the question referred
49. With regard to the first question, it is not immediately clear from the order for reference whether the referring court has in mind the proceedings before the Gerechtshof te Amsterdam – a court of lower instance – or the appeal proceedings before the Hoge Raad itself – a court of last instance; in other words, it is not clear to which type of national court it intends this question to relate.
50. In the order for reference and in the question, the Hoge Raad refers without distinction to the ‘national court’. However, in the appeal proceedings, it has to rule on the ground of appeal raised by Intermodal against the judgment of the Gerechtshof to the effect that that court should not have departed from the contested tariff information without making a reference for a preliminary ruling to the Court of Justice, which would point more towards a need for clarification of the obligation to make a reference for a preliminary ruling incumbent on courts other than those of last instance. However, the Advocaat-Generaal (Advocate General attached to the Hoge Raad), in his Opinion, which is annexed to the order for reference, considers the remedies and possibilities available generally in the tariff information system for the purposes of eliminating unequal treatment resulting from divergent customs tariff information, which is indicative rather of a need for clarification of what, if any, obligations to make a reference for a preliminary ruling are incumbent on courts at all levels.
51. Finally, the order for reference and the documents annexed to it contain references to the rule in Foto-Frost
and the rule in Cilfit, and it is clear in this regard that there is uncertainty as to the tier of procedure to which the criteria developed in each of those judgments relate. Thus, the Gerechtshof (a court other than one of last instance, it should be noted) – as the order states – refrained from making a reference for a preliminary ruling on the ground that there was no doubt as to how the CN should be interpreted – in other words, in the light of the rule in Cilfit .
52. The referring court’s comments on the need to ensure the correct and uniform interpretation of the CN and the reference to ‘questions on interpretation’ in the question likewise suggest that the situation at issue is similar to that in Cilfit
and, accordingly, that the referring court relates the question to itself; it is worth noting in this regard that – as the second question may indicate – the referring court does not necessarily seem to share the Gerechtshof’s conviction with regard to the interpretation of the CN.
53. Taken as a whole, the documents before the Court – in the context of the line of argument advanced by Intermodal – address the issue which gave rise to the main proceedings, that is to say the departure from the contested tariff information, to some extent from conflicting perspectives, considering it partly from the point of view of the ‘declaration of invalidity’ or the non-application of the tariff information, which suggests that the situation is similar to that in Foto-Frost, and partly from the point of view of the divergent interpretation of the CN, which points towards the rule in Cilfit .
54. In order to give the referring court an answer which will be helpful in either case, it is appropriate in such circumstances to examine the first question in relation both to courts other than those of last instance and to courts of last instance.
55. In the light of the obligations for national courts to make a reference for a preliminary ruling outlined above, it is therefore necessary, in order to answer the first question, to examine, first, whether a national court may give a ruling which departs from a tariff information issued by a customs authority of another Member State to a third party in respect of a similar product without referring a question to the Court of Justice for a preliminary ruling, or, alternatively, whether there is an obligation – applicable also to national courts other than those of last instance – to make a reference for a preliminary ruling in accordance with the rule in Foto-Frost .
56. It must be examined, second, whether or not, in circumstances such as those in this case, where a tariff information as described by the referring court has been issued and the national court does not agree with the interpretation of the CN given in it, the national court of last instance has an obligation to make a reference for a preliminary ruling in accordance with the rule in Cilfit .
57. The question, therefore, is whether, in those circumstances, that court of last instance may proceed on the basis that the application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. (24)
58. Finally, by way, as it were, of a tertium quid, Intermodal invoked the principle of equality, in conjunction if appropriate with Article 12(5)(a)(ii) of the Customs Code, as justification for an obligation to make a reference for a preliminary ruling.
b) Is there an obligation to make a reference for a preliminary ruling in accordance with the rule in Foto-Frost ?
59. A binding tariff information is an individual legal act of the national customs authorities of a Member State, by means of which a trader who has made a request is informed of the tariff heading under the CN in which a product which he intends to import or export is to be classified. (25) With regard to the aims pursued by the creation of this legal device, the Court of Justice has stated that it ‘appeared necessary, in order to ensure a measure of legal certainty for traders when carrying on their activities, to facilitate the work of the customs services themselves and secure more uniform application of Community customs law, to establish rules which oblige customs authorities to provide information which is binding on the administration under certain well-defined conditions’. (26)
60. With regard to the question whether the rule in Foto-Frost
can be applied here, it must be pointed out first that, if only in the light of the scope of the binding tariff information at issue, this case does not concern a situation in which the national court could, in accordance with that rule, be required to refer a question to the Court of Justice. For, even if it is assumed, as the referring court does, that the contested tariff information relates to products at least similar to those the classification of which is at issue in the main proceedings, that information is certainly not applicable ratione personae .
61. It is clear from Article 12(2) of the Customs Code in conjunction with Article 10(1) of the implementing regulation that only the holder, that is to say the person to whom the tariff information has been issued by the customs authorities, may invoke that information. In other words, if, as in this case, a national court gives a ruling in favour of a classification different from that given in a tariff information issued to a third party, it does not thereby ‘derogate from’, ‘set aside’ or ‘declare invalid’ that tariff information, because the latter does not apply to the third party invoking it before the national court in the first place.
62. Secondly, it must be emphasised that the obligation, under the rule in Foto-Frost, to submit a question regarding validity to the Court of Justice is restricted to acts of Community institutions.
63. It is clear from both subparagraph (b) of the first paragraph of Article 234 EC and the first paragraph of Article 230 EC that the jurisdiction of the Court of Justice to review the legality of an act under those articles is determined by the author of that act and not by the legal basis on which the act was adopted. As the Court of Justice has held, the reference for a preliminary ruling concerning validity, together with the action for annulment under Article 230 EC and the plea of inapplicability under Article 241 EC, thus forms part of a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the Community institutions, a review entrusted to the Community judicature. Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such Community acts before the Community judicature under Article 241 EC, or to do so before the national courts and to ask them, since they have no jurisdiction themselves to declare those measures invalid, to make a reference to the Court of Justice for a preliminary ruling on validity. (27)
64. Accordingly, jurisdiction to rule on the validity of acts of the Community institutions lies exclusively with the Court of Justice, whereas review of measures attributable to a national authority is a matter for the national courts alone, even where those measures have been adopted in implementation of Community law. (28)
65. Moreover, not even the rule in Dzodzi (29) leads to a different conclusion. It is true that, in accordance with that rule, references for preliminary rulings are permitted in cases where national law makes – direct or indirect – reference to provisions of Community law or where national law has declared Community law to be applicable to domestic situations. (30) Here too, however, the Court of Justice confines itself to considering the provisions of Community law to which reference is made. (31)
66. A binding tariff information, on the other hand, is an act of a national customs authority and is not therefore, as the Commission has correctly stated, a Community act the legality of which the Court of Justice has jurisdiction to review. The fact that that act is based on Community law – formally on the Customs Code and the implementing regulation, and substantively on the CN – characterises it as an implementing measure, but does not in any way alter its classification as an act of a Member State.
67. The fact that a binding tariff information, in terms of the conditions governing its validity, is determined in several respects by legal bases under Community law likewise does not make it an act of a Community institution on the validity of which the Court of Justice alone must rule and which, pursuant to the rule in Foto-Frost, may therefore be derogated from only on the basis of a preliminary ruling on validity. This view is also supported by the fact that, under Article 10 of the Customs Code, the validity of binding tariff information must be assessed not only against the conditions for validity laid down by Community law but also in accordance with national provisions, for example, the laws governing administrative procedure in force in the Member State concerned.
68. One of the provisions of Community law concerning the validity of binding tariff information is the first indent of Article 12(5)(a)(ii) of the Customs Code, which is addressed separately by both Intermodal and the referring court, and under which binding tariff information ceases to be valid where it is no longer compatible with the interpretation of the CN by reason of a judgment of the Court of Justice.
69. As the Court held in Timmermans Transport and Hoogenboom Production, a binding tariff information is indeed dependent on the correctness of the interpretation by the national customs authorities, as set out in that information, of the relevant provisions concerning classification, a fact which finds expression in the description in Article 12(5)(a) of the Customs Code of the three situations in which binding tariff information ceases to be valid. (32) However, it cannot be concluded from the fact that the validity of binding tariff information is, inter alia, dependent on compatibility with the case-law of the Court of Justice that the Court of Justice has jurisdiction to give a ruling on the validity of the binding tariff information issued by the national customs authority.
70. It must be added that the validity of the Community acts on which the binding tariff information is based may, where appropriate, be contested before the national court. In such cases, if the national court considers that a Community act on which the binding tariff information is based is invalid, it must refer the question on the validity of that Community act to the Court of Justice. (33)
71. In this case, however, the validity of the CN, the Customs Code or the implementing regulation is not called into question.
72. In view of the foregoing, it must therefore be concluded that, in the light of the rule in Foto-Frost, a national court may give a ruling which departs from a tariff information issued to a third party by the customs authority of another Member State in respect of a similar product without making a reference to the Court of Justice for a preliminary ruling. In so far as it relates to a court other than a court of last instance, the first question must therefore be answered in the negative.
c) Is there an obligation for a court of last instance to make a reference for a preliminary ruling in the light of the judgment in Cilfit ?
73. It is now necessary to examine whether, in the light of the rule in Cilfit, a court of last instance is obliged to make a reference to the Court of Justice in circumstances such as those underlying the reference for a preliminary ruling in this case.
74. In the judgment in Cilfit, the Court of Justice, on the basis of the judgment in Da Costa, exempted courts of last instance within the meaning of the third paragraph of Article 234 EC from their obligation to make a reference for a preliminary ruling not only where the question of Community law raised in a case is irrelevant but also where the Community provision in question has already been interpreted by the Court in any type of proceedings (‘acte éclairé’) or where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt (‘acte clair’).
75. To answer the question of interest to us here, that is to say whether in a situation such as that underlying these proceedings, which is characterised above all by a difference in interpretation between a national court of one Member State and a national authority of another Member State, there can be assumed to be an ‘acte clair’ within the meaning of the judgment in Cilfit, it is necessary first of all to make some observations on the background to that judgment and the criteria laid down there.
i) General observations on the judgment in Cilfit
76. In the proceedings which gave rise to that judgment, before the Corte Suprema di Cassazione (Supreme Court of Cassation), a court of last instance, the Italian Ministry of Health had submitted that the answer to the question raised in those proceedings, which concerned the interpretation of a Community regulation, was so obvious as to rule out the possibility of there being any interpretative doubt and thus obviated the obligation to make a reference for a preliminary ruling. Against that background, the Corte Suprema di Cassazione asked whether, and if so within what limits, the obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC is conditional upon there being ‘reasonable interpretative doubt’. (34)
77. In its judgment, the Court of Justice essentially accepted that exception to the obligation to make a reference for a preliminary ruling, albeit, as the Commission rightly points out in the present case, subject to restrictive conditions.
78. For the exception concerns only cases where ‘the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’. (35)
79. The national court of last instance may, however, assume that there is ‘no doubt’, or in other words that there is ‘certainty’, as to the correct application of Community law only ‘where it is convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice’. (36)
80. Moreover, the question whether the conditions to be satisfied in order for there to be no obligation to make a reference for a preliminary ruling obtain must be assessed ‘on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise’. (37)
81. In this regard, the Court of Justice emphasised three characteristics of Community law and its interpretation which must be taken into consideration. (38)
82. First, the interpretation of a provision of Community law requires a comparison of the different language versions of that provision, which are all equally authentic. Even where those language versions are entirely in accord with one another, it must be borne in mind, second, that Community law uses terminology which is peculiar to it and that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States. Third, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and its state of evolution at the date on which the provision in question is to be applied.
83. The precise meaning of the judgment in Cilfit
and of the criteria laid down in it has always been the subject of different interpretations, ranging from the view that, in that judgment, the Court adopted the ‘acte clair’ doctrine particularly common in the French legal system, to the view that it rejected that doctrine and, in reality, used it as a ‘tactical move’ to reduce the discretion of national courts of last instance practically to nothing. (39)
84. Here too, the truth probably lies somewhere in the middle, in the sense that the judgment establishes a particularly subtle compromise, (40) a fact which also explains the blurredness of that judgment.
85. First of all, the fact that the Court avoids the term ‘interpretation’ and refers instead to the ‘correct application ’ of Community law in the judgment’s decisive passage (41) seems to be an acceptance of the ‘acte clair’ doctrine, at least in so far as the doctrine is based on the idea that a clear provision does not require interpretation (‘in claris non fit interpretatio’) and can therefore be applied without being interpreted. (42)
86. However, the question is whether, on the basis of that maxim, the Court, in its judgment in Cilfit, had in mind only the application of provisions of Community law, in accordance with the traditional division of functions between the Court of Justice and the national courts, (43) or whether it conferred jurisdiction on national courts – albeit to a limited extent – to rule on questions of interpretation. (44)
87. However, as Advocate General Capotorti stated in his Opinion in Cilfit, the application of any provision, even one which seems ‘unambiguous’ or ‘clear’, in principle requires prior interpretation. Determining whether or not a provision is ‘clear’ is itself the result of an interpretation, which means that the aforementioned Latin maxim ‘in claris non fit interpretatio’ is based on a petitio principii . (45) However, this must be distinguished from the question whether the interpretation of a provision requires a significant commitment of argument and intellect, that is to say it is ‘difficult’ or ‘problematic’, or whether the provision’s meaning is immediately apparent and obvious, as it were, that is to say the interpretation is ‘easy’ or ‘unproblematic’.
88. The application of a provision is therefore, ultimately, directly linked to its interpretation, and references by the Court of Justice in its judgment in Cilfit
to the ‘correct application’ must always be read, in this context, as meaning the ‘correct interpretation’ giving rise to the correct application. After all, the judgment in Cilfit
is specifically concerned with the scope of the obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC in relation to questions concerning the interpretation of Community law. (46)
89. Consequently, in its judgment in Cilfit, the Court did not draw a dividing line between Community acts which require interpretation and those which do not, but rather gave national courts of last instance the right, to some extent, to ‘take upon [themselves] the responsibility’ for interpreting Community law. (47)
90. At the same time, however, the Court was at pains to limit the discretion exercised by national courts – in view of the objective of ensuring the uniform interpretation and application of Community law pursued by means of the obligation to make a reference for a preliminary ruling laid down in the third paragraph of Article 234 EC – and, through the imposition of strict conditions, to prevent as far as possible any misuse of that possibility by national courts. (48)
91. To that end, the Court of Justice first of all gave a strict definition of interpretative doubt (‘so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’).
92. The requirement under which the national court may be certain of the answer to the question raised before it only where it is convinced that the matter would be equally obvious to the courts of the other Member States and to the Court of Justice, and the requirement that account be taken of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise are intended to lend some objectivity to the limits of the discretion enjoyed by national courts of last instance. The national court must therefore, first, consider the meaning of a provision of Community law to be unambiguous not only from its own perspective, and, second, make a finding as to whether the interpretation of a provision is beyond any reasonable doubt, both in its own eyes and in the eyes of the courts of the other Member States and the Court of Justice, not only on the basis of the wording of that provision as presented to it. (49)
93. However, is that attempt at objectivity actually successful? On closer inspection, it is clear that those requirements only appear to impose objective limits on the discretion of national courts of last instance, or impose them to a limited extent. (50)
94. Ultimately, the national court can only rely on its own judgment; it – obviously – cannot actually convince itself that the decision on the question of interpretation raised before it ‘is equally obvious to the courts of the other Member States and to the Court of Justice’.
95. Furthermore, the question also arises as to which courts the national court must consider – all courts in all Member States, only courts of last instance, equivalent courts in the relevant field, etc. – and, an issue which will be examined in this case, to what extent, if any, this includes national administrative authorities. (51)
96. Since, in any event, the national court can ultimately apply no criteria other than its own, it is only reasonable to ask, in cases where it has itself concluded that the matter in question is obvious, to what extent it would be able to assume that another court or the Court of Justice would take a view different from its own with regard to the question of interpretation raised before it. (52)
97. However, in view of the specific linguistic characteristics of Community law and the particular difficulties to which its interpretation gives rise, which must be taken into consideration in accordance with the judgment in Cilfit, the national court may doubt that the matter in question is equally obvious to other courts or to the Court of Justice. In this regard, it is to take into account in particular the fact that other language versions might give rise to a different interpretation and that, even where those other language versions are consistent with its own, legal concepts with which it is itself familiar in national law may not necessarily have the same or a similar meaning in the various other national legal systems and in Community law.
98. However, even the (linguistic) characteristics of Community law and the particular difficulties connected with its interpretation to which the Court of Justice refers are merely – as a form of caveat – to be taken into consideration
by the national court and are surely not matters of which that court itself has to have a full ‘appreciation’.
99. Accordingly, I take the view that the judgment in Cilfit
cannot be intended to mean that the national court is required, for example, to examine a provision of Community law in every one of the official Community languages. (53) That would place a practically intolerable burden on the national courts and would de facto reduce the – albeit limited – delegation to national courts of last instance of questions of Community law which can be answered ‘unequivocally’ in accordance with the judgment in Cilfit to a lip service or a ‘tactical move’. (54)
100. It must therefore be concluded that the requirements set out in Cilfit
cannot be regarded as a type of instruction manual on decision-making for national courts of last instance which is to be rigidly adhered to and on the basis of which an objective and clear dividing line can be drawn between questions of interpretation which may exceptionally be resolved by such courts themselves and questions of interpretation which must be referred to the Court of Justice. Those requirements cannot be used as a benchmark for establishing ‘objectively’ when the meaning of a Community provision is so obvious as to leave no scope for any reasonable doubt as to its interpretation. (55)
101. This is connected with the fact that a legal provision cannot ‘per se’ be unambiguous, clear or of unequivocal meaning. (56) As I have already stated in this connection, the interpretation of a provision always involves a process of understanding which, as such, cannot be turned into a mathematical formula (57) – this is particularly true of Community law, with its many variables of interpretation, which themselves include the dynamic evolution of that system of law. (58) However, it is precisely because it is ultimately impossible, or possible only to a limited extent, to determine objectively when the interpretation of a provision is so obvious as to leave no scope for any reasonable doubt, (59) that that finding must ultimately be left to the discretion of the national court before which that question is raised. (60)
102. The requirements laid down in the judgment in Cilfit
are intended, however, to encourage the national court not to assume rashly – that is to say not simply from its own perspective and on the basis of the wording of the provision submitted to it – that the interpretation of a Community provision is ‘unequivocal’. They are intended to alert the national court to the specific characteristics of Community law, thus cautioning it against hasty or one-sided conclusions and, therefore, steering it towards a ‘considered certainty’. (61) This ‘certainty’ is to be that of an expert who approaches the examination of the question of Community law as one acquainted with the fundamental characteristics of that law. (62)
ii) Post Cilfit ?
103. Accordingly, the rule in Cilfit
could be called into question in its entirety. In view of the difficulties involved in applying that rule, it certainly seems appropriate to make a few brief observations in this regard, even though the interested parties have not taken these proceedings as an opportunity fundamentally to call that rule into question.
104. While the Cilfit
criteria discussed above may be imprecise in terms of their specific meaning, it is likely to be to difficult to define, on the basis of the Treaty, a more practicable or more objective ‘filter system’ for questions of interpretation which should be referred to the Court of Justice, on the one hand, or left to the national courts of last instance, on the other. For example, the proposal put forward by Advocate General Jacobs in Wiener, that the ‘conditions’ referred to in the judgment in Cilfit
should apply only where there is a general question and where there is a genuine need for uniform interpretation, (63) is undoubtedly aimed at the type of questions which first and foremost require clarification by the Court of Justice. In my view, however, determining the importance of a question and the need for uniform interpretation for the purposes of Community law creates additional difficulties from the point of view of national courts of last instance and blurs even further the scope of their discretion.
105. However, even if the Court of Justice succeeded in formulating criteria in relation to the obligation of courts of last instance to make a reference for a preliminary ruling which were clearer than those set out in the judgment in Cilfit, permitting national courts of last instance to rule independently on questions of interpretation would inevitably still entail a degree of discretion, in other words an element of subjectivity. The only way to tell with certainty whether an interpretation which a national court of last instance has given to a particular measure and regards as being ‘beyond doubt’ is ‘correct’ is, ultimately, by reference to (its conformity with) a judgment, if any, of the Court of Justice. That situation has been all the more precarious since the Court held in Köbler
that infringement of the obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC is one of the factors which must be taken into account in relation to the question – to be determined by the competent national courts – of State liability for damage caused by a decision of a national court of last instance which is contrary to Community law. (64)
106. While the fact that national courts of last instance always retain a degree of discretion could, on the one hand, be taken to perhaps the extreme logical conclusion that such courts should therefore ultimately be exempt from liability, on the other hand – and as an alternative to the Cilfit
system in its present or an amended form – it would be conceivable to revert to an unconditional obligation on national courts of last instance to make a reference for a preliminary ruling. (65) The latter point is apposite not least given that the possibility, provided for in Article 104(3) of the Rules of Procedure of the Court of Justice, for the Court, in simplified proceedings, to give its decision on a question referred for a preliminary ruling by reasoned order, means that the Court now has available to it a ‘filter system’ which in essence reflects the criteria set out in Da Costa
and Cilfit .
107. From a practical point of view, however, it must be borne in mind – although this ought not to be decisive – that even the simplified processing of references for preliminary rulings by the Court of Justice in dialogue with the national courts takes up time proceedings. Moreover, despite all the misgivings and the fact that the ‘ Cilfit
system’ is open to challenge in principle, the question must be raised whether the Court of Justice can fulfil its task of enforcing the law in the interpretation and application of the Treaty, in a Union of 25 Member States which has an ever‑growing Community acquis, without trusting the judgment – in the truest sense of the word – of the national courts, at least within certain limits, even though such a division of functions can lead to difficulties in practice.
108. I shall therefore now examine how the questions raised in the main proceedings are to be answered on the basis of the existing rule in Cilfit .
iii) The specific characteristics of this case – is there an automatic obligation to make a reference for a preliminary ruling?
109. It is important to bear the foregoing observations in mind when answering the question, raised in this case, whether a national court of last instance can be said to be faced with a Cilfit
situation, that is to say one in which the interpretation of the measure in question is unequivocal, where a national customs authority of another Member State has given an interpretation in a binding tariff information with which that court disagrees. The Commission is of the opinion that this question should be answered in the negative, whilst the other interested parties contend – with varying emphasis in their submissions – that such a tariff information does not automatically warrant a doubt as to interpretation on the part of the national court.
110. First, it must be noted that the ‘obviousness’ of a correct interpretation is not generally contradicted by the fact that a provision can clearly be read in ‘two’ ways, because, as I have already stated, a provision can never ‘per se’ be unambiguous and clear; an element of decision-making or judgment, in other words an element of subjectivity, is to varying degrees inherent in the act of interpretation.
111. It may be, for argument’s sake, that the interpretation adopted by a national customs authority is such as to cause the national court to see the measure in question in a new light and thus to cast doubt on its own interpretation. On the other hand, however, as the Netherlands Government has submitted, it may be clear to the national court of last instance that the interpretation of the national customs authority is incorrect, in other words that the authority has made a mistake.
112. This is true of course not only in cases where a national court is faced with an interpretation adopted by a national authority which is at variance with its own, but also, in principle, in cases of interpretations adopted by national courts which are at variance with each other. In the latter situation, however, pursuant to the judgment in Cilfit, courts of last instance are subject to the requirement that they must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice.
113. As I have already stated, that is a caveat, a ‘mental check’, for the court of last instance, not a factor that can actually be empirically established by that court. On the other hand, however, it seems to me that the conviction that the matter is ‘equally obvious’ ‘to the courts of the other Member States’ is, at least in principle, rebutted where the national court of last instance is actually
faced with an interpretation adopted by such a court
which is at variance with its own interpretation.
114. In this case, however, that issue can remain unresolved – as can the question whether the foregoing applies to all types or only certain types of court of the other Member States, or even, under certain circumstances, to courts of the same Member State, since the interpretation at issue here emanates in any event from a customs authority
of a Member State.
115. In my opinion, the fact such an authority has issued a binding tariff information containing an interpretation of the CN with which the national court of last instance does not concur does not ipso facto have to shake the conviction of that court that the correct interpretation of the CN would be equally obvious to the courts of the other Member States.
116. In this connection, it must also be pointed out that the operative part of the judgment in Cilfit
does not repeat the requirement for conviction that that matter is equally obvious to the courts of the other Member States, but refers instead to the ‘risk of divergences in judicial decisions within the Community’. That risk becomes clearly apparent where a national court of last instance departs from or intends to depart from a judicial decision of a national court of another Member State which has been raised before it. On the other hand, as regards tariff information issued by a national customs authority of a Member State, it is not necessarily the case that, should the situation arise, a national court of that Member State would concur with the interpretation of the customs authority and that therefore – if a national court of another Member State departed from that interpretation – there would be a risk of divergences in judicial decisions. In other words, it is the Court of Justice and the national courts, not national administrative authorities, which take part in the debate as to the interpretation of Community law under the system of cooperation provided for in Article 234 EC.
117. Consequently, where, as in this case, a party to proceedings before a national court of last instance invokes a binding tariff information issued by a national authority of another Member State that is at variance with the interpretation of the CN which the national court of last instance considers to be correct, that court is not in any event automatically obliged to refer a question on the interpretation of the CN to the Court of Justice. Rather, it must judge for itself whether it can be certain of the correct interpretation of the CN. In this regard, the interpretation contained in the binding tariff information and the arguments, if any, on which it is founded, may strengthen or weaken the certainty of the court – as indeed may any other information relevant to the question of interpretation at issue.
118. Strictly speaking, the concept of the separation of powers referred to by the Austrian Government has no place in the context of this case because what is at issue is clearly not whether a national court is bound by the legal opinion of a national authority, but only to what extent that – other – legal opinion creates an obligation to refer the question of interpretation raised to the Court of Justice for an – independent – ruling.
119. For the sake of completeness, consideration must also be given to the aim – pursued by means of the preliminary ruling procedure provided for in Article 234 EC and, in particular, by obligation to make a reference for a preliminary ruling laid down in the third paragraph of that article – of ensuring the uniform interpretation and application of Community law, to which some interested parties have rightly referred.
120. In this regard, it is important to make the point that complete uniformity could be ensured only if every (relevant) question of interpretation arising before a national court of last instance were in fact required to be referred to the Court of Justice. Even then, however, the system would not be perfect so long as the national court – in accordance with settled case-law – is permitted to determine itself whether a question of Community law is relevant to the national main proceedings, (66) for that determination too requires some understanding of the content and scope of a provision of Community law on which a party may have relied. (67)
121. Thus, every division of functions between the Court of Justice and national courts in the context of Community legal protection affects to some extent the degree of uniformity in the interpretation and application of Community law. The question is merely where and how to draw the limits in accordance with the provisions of the Treaty and on the basis of the judgment in Cilfit .
122. For the reasons set out above, I therefore take the view in this case that the existence of a binding tariff information issued by a national customs authority of another Member State does not deprive a national court of last instance of the possibility of deciding the question of interpretation raised before it on its own responsibility, in accordance with the rule in Cilfit .
iv) Is there an obligation to make a reference for a preliminary ruling by virtue of the principle of equal treatment?
123. Finally, Intermodal submitted that, in accordance with the principle of equal treatment, the CN must be applied in an identical manner to identical situations and, for that reason at least, the national court cannot depart from the binding tariff information without referring a question to the Court of Justice for a preliminary ruling in order to ensure the identical and uniform application of the CN.
124. First, it is in the nature of individual legal acts such as the binding tariff information that, in principle, only the person to whom the act is addressed may invoke it. This, of course, does not rule out the possibility that a third party may be the subject of a decision the purport of which is at odds with that of the legal act and that, from that point of view, there may be a risk that a third party will receive treatment ‘unequal’ with that of the holder of a particular binding tariff information in relation to the classification of his products. The Community legislature could alternatively have entrusted the national customs authorities with the task of issuing generally binding tariff information which could therefore be invoked by all persons declaring similar products in a Member State. However, such generally applicable tariff information would amount to a customs classification regulation, the adoption of which is a matter for the Commission alone, and, moreover, was wisely not intended to be decentralised or assigned to individual national customs authorities.
125. In its current form, binding tariff information at least increases legal certainty and – through the measures to be adopted by the Commission, such as the adoption of a classification regulation – contributes to greater uniformity in the application of Community customs law, even though such uniformity is not completely guaranteed.
126. For that reason, I do not at this stage take the view – albeit that no such question has been raised in this case – that the existing binding tariff information mechanism, as such, infringes the principle of equal treatment.
127. In any event, however, I do not think that the fact that that system – for the time being at least – permits inequalities resulting, for example, from different interpretations on the part of a national customs authority and a national court respectively can justify a change to the scope of the obligation for national courts of last instance to make a reference for a preliminary ruling, as laid down in the third paragraph of Article 234 EC and interpreted in the judgment in Cilfit . (68)
v) Conclusions for this case arising from the judgment in Cilfit
128. Having regard to the foregoing observations and in the light of the rule in Cilfit, the following conclusions can be drawn in relation to the first question.
1. Where a party to a dispute before a national court of last instance concerning classification in the CN of a certain product invokes the view expressed by a national customs authority in a binding tariff information issued to a third party in respect of a similar product, and the interpretation of the CN which the national court considers to be correct is different from that given in the binding tariff information, that court is not automatically obliged to refer a question on the interpretation of the CN to the Court of Justice.
2. The national court of last instance concerned may resolve the question concerning the interpretation of the CN on its own responsibility where, despite the different opinion of the national customs authority, it is certain that its own interpretation is correct.
3. In so doing, however, it must bear in mind the characteristic features of Community law and the particular difficulties to which its interpretation gives rise and – taking into account, where appropriate, the interpretation given in the binding tariff information and the arguments on which that interpretation is based – arrive at the conviction that, in the light of those considerations, the interpretation of the CN would be equally obvious to the courts of the other Member States and to the Court of Justice.
4. The principle of equal treatment does not require a change to be made to the scope, thus defined, of the obligation of national courts of last instance to make a reference for a preliminary ruling.
B – The second question
129. The second question asks whether heading 8709 of the CN is to be interpreted as covering vehicles with properties and characteristics such as those of the vehicles at issue in this case.
1. Summary of the submissions of the interested parties
130. On the question of classification, submissions have been made by the Commission, the Netherlands Government and Intermodal.
131. In the Commission’s view, the decisive factor in this case is, above all, the phrase in the HS Explanatory Notes to heading 8709 to the effect that ‘tractors of this type may also be used on wharfs, in warehouses, etc.’ In its submission, it is settled case-law that the intended use of a product may be an objective criterion for classification. The Commission refers to the fact that the vehicles at issue here were specifically designed for handling trailers in distribution centres and wholesale stores. The Netherlands Government essentially concurs with the view taken by the Gerechtshof and the observations of the Advocaat-Generaal in the main proceedings to the effect that vehicles such as those at issue should not be classified under heading 8709 of the CN. According to the observations of the Advocaat-Generaal, that heading relates, first, to a particular type of vehicle which itself transports goods and, second, to a particular type of tractor. Since their fifth wheel is used only for coupling trailers, the vehicles at issue here are not vehicles for the transport of goods for the purposes of the HS Explanatory Notes to heading 8709. Nor can they be tractors within the meaning of that heading because these are used without exception to tow small trailers or luggage trolleys, for which the vehicles at issue here are not suitable. Intermodal takes the view that the only argument against classification under heading 8709 of the CN is that the vehicles at issue are no less powerful than the tractors to which heading 8701 of the CN relates. However, since, according to the text of the HS Explanatory Notes, that difference applies only generally, that factor does not overall preclude classification under heading 8709 of the CN.
2. Assessment
132. It is important first of all to recall the settled case-law of the Court of Justice to the effect that, 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 of the notes to the sections or chapters. (69)
133. In this connection, the explanatory notes to the CN drawn up by the Commission and the HS Explanatory Notes drawn up by the Customs Cooperaton Council contribute considerably to the interpretation of the scope of the various tariff headings, but are not legally binding. (70)
134. First, it must be noted that heading 8701 of the CN relates generally to ‘tractors’, which, as the corresponding HS Explanatory Notes make clear, may mean not only agricultural tractors but also others, such as tractors used in industry, which have been designed to pull varying loads and which at most have only a modest loading surface; they may also have a driving cab and a lifting device for coupling work tools or loads.
135. From these must be distinguished those tractors which, in accordance with the title of heading 8701 of the CN, form a category separate from the general category for tractors and appear under heading 8709 of the CN, which itself comprises various types of ‘works trucks’.
136. On the basis of the HS Explanatory Notes to heading 8709 of the CN, it must be concluded that the vehicles which fall under that heading are, generally speaking, a type of ‘small’ tractor such as those used in factories, warehouses, dock areas or railway stations. They can be distinguished from other tractors, inter alia, by their low speed, which normally does not exceed 30 to 35 km/h, and their small turning radius. Furthermore, tractors of this kind do not usually have a driving cab and even include pedestrian-controlled vehicles.
137. As the Netherlands Government has remarked, the HS Explanatory Notes to heading 8709 of the CN relate, first, to tractors which have their own loading surface and on or in which goods may be loaded, and, second, to tractors of the type used on railway station platforms, and also on wharfs and in warehouses, to pull smaller trailers. Since, according to the description given by the referring court, the vehicles at issue in the present proceedings have only a fifth wheel used for coupling trailers, the appropriate reference type would appear to be not tractors which transport goods but tractors of the latter type referred to.
138. On the other hand, it is significant in this case that the HS Explanatory Notes refer to ‘small trailers’ or ‘luggage trolleys’ in connection with the latter type of tractor. They also state that tractors within the meaning of heading 8709 of the CN are generally lighter and less powerful than the tractors of heading 8701 of the CN.
139. However, vehicles such at those at issue in this case exhibit, inter alia, the following features: they are, as Intermodal itself has stated, as powerful as tractors within the meaning of heading 8701 of the CN, they have a closed driving cab and they are not – like tractors – used to transport smaller trailers such as luggage trolleys, but large or articulated trailers which can even include Mega or Jumbo trailers.
140. A vehicle with those features does not match the type description of ‘smaller’ or load-carrying tractors corresponding to heading 8709 of the CN, as previously outlined by me on the basis of the HS Explanatory Notes.
141. Consequently, the answer to the second question must be that heading 8709 of the CN is to be interpreted as not covering vehicles with properties and characteristics such as those exhibited by the vehicles at issue.
V – Conclusion
142. In the light of the foregoing, I propose that the Court of Justice answer the questions referred as follows:
(1) In proceedings before a national court in which a party invokes a classification, given in a binding tariff information issued to a third party by a customs authority of another Member State in respect of a similar product, which the national court considers to be at variance with the CN:
– a national court against whose decisions there is a judicial remedy under national law is not obliged to refer a question on interpretation or – in so far as the measure concerned, as in the case of a binding tariff information, is not an act of a Community institution – on validity to the Court of Justice for a preliminary ruling;
– a national court against whose decisions there is no judicial remedy under national law is not automatically obliged to refer a question on the interpretation of the CN to the Court of Justice where the interpretation of the CN which it considers to be correct is different from that given in the binding tariff information. The court of last instance may resolve the question concerning the interpretation of the CN raised before it on its own responsibility where, despite the different opinion of the national customs authority, it is certain that its own interpretation is correct. In so doing, however, the national court must bear in mind the characteristic features of Community law and the particular difficulties to which its interpretation gives rise, and – taking into account, where appropriate, the interpretation given in the binding tariff information and the arguments on which that interpretation is based – arrive at the conviction that, in the light of those considerations, the matter in question would be equally obvious to the courts of the other Member States and to the Court of Justice.
(2) Heading 8709 of the CN must be interpreted as not covering vehicles with properties and characteristics such as those exhibited by the vehicles at issue.
(1) .
(2)  –	OJ 1987 L 256, p. 1.
(3)  –	Regulation amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1998 L 292, p. 1).
(4)  –	Harmonised Commodity Description and Coding System based on the International Convention of 14 June 1983, which was approved by the Community in Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the International Convention on the Harmonised Commodity Description and Coding System and of the Protocol of Amendment thereto (OJ 1987 L 198, p. 1).
(5)  –	OJ 1992 L 302, p. 1.
(6)  –	Regulation amending Regulation (EEC) No 2913/92 establishing a Community Customs Code (OJ 1997 L 17, p. 1).
(7)  –	Regulation laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).
(8)  –	Regulation amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1997 L 9, p. 1).
(9)  –	Case 314/85 Foto-Frost [1987] ECR 4199.
(10)  –	Case 283/81 Cilfit and Others [1982] ECR 3415.
(11)  –	See, inter alia, Case 14/83 Von Colson and Kamann
[1984] ECR 1891, paragraph 26; Case C‑8/88 Germany
v Commission
[1990] ECR I-2321, paragraph 13; and Case C‑453/00 Kühne & Heitz [2004] ECR I-0000, paragraph 20.
(12)  –	See Case 26/62 Van Gend en Loos
[1963] ECR 1, paragraph 16.
(13)  –	See, inter alia, Case C‑247/02 Sintesi
[2004] ECR I-0000, paragraph 21; Case C‑314/01 Siemens and ARGE Telekom
[2004] ECR I-2549, paragraph 33; Case C‑343/90 Lourenço Dias
[1992] ECR I-4673, paragraph 14; Joined Cases 35/82 and 36/82 Elestina
[1982] ECR 3723, paragraph 8; Case 107/76 Hoffmann-La Roche
[1977] ECR 957, paragraph 5.
(14)  –	See, inter alia, Case C‑99/00 Lyckeskog
[2002] ECR I-4839, paragraph 14; Case C‑337/95 Parfums Christian Dior
[1997] ECR I-6013, paragraph 25; and Hoffman-La Roche
(cited in footnote 13), paragraph 5.
(15)  –	See Joined Cases 28/62 to 30/62 Da Costa
[1963] ECR 31; Cilfit
(cited in footnote 10), paragraph 14; and Parfums Christian Dior
(cited in footnote 14), paragraph 29.
(16)  –	Cilfit
(cited in footnote 10), paragraphs 16 and 21.
(17)  –	Foto-Frost
(cited in footnote 9), paragraph 20.
(18)  –	See Foto-Frost (cited in footnote 9), paragraphs 15 and 17.
(19)  –	See Foto-Frost
(cited in footnote 9), paragraph 14.
(20)  –	See point 39 above.
(21)  –	Joined Cases C‑143/88 and C‑92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest
[1991] ECR I-415, paragraph 33; Case C‑465/93 Atlanta Fruchthandelsgesellschaft and Others
[1995] ECR I-3761, paragraph 30; and Case C‑334/95 Krüger
[1997] ECR I-4517, paragraph 44.
(22)  –	Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest
(cited in footnote 21), paragraph 23.
(23)  –	The question, as yet unanswered by the Court, whether and, if so, to what extent the rule in Cilfit
may in some circumstances also be applied to questions concerning validity is the subject of Case C‑461/03 Gaston Schul Douane-Expediteur, currently pending before the Court (OJ 2004 C 7, p. 24).
In those preliminary reference proceedings, the College van Beroep voor het bedrijfsleven (Netherlands Administrative Court for Trade and Industry) asks whether a court of last instance may refrain from applying provisions of a (Community) regulation without referring the question concerning the validity of those provisions to the Court of Justice for a preliminary ruling, where the Court has ruled that analogous provisions of another, comparable regulation are invalid.
(24)  –	In this case, there is no decision by the Court of Justice in identical circumstances involving classification under the CN which, in accordance with the judgment in Da Costa, would deprive of its ‘purpose’ the obligation incumbent on a court of last instance to refer to the Court of Justice the question raised before it concerning the interpretation of the CN. See point 44 above and the judgments in Da Costa
(cited in footnote 15) and Parfums Christian Dior
(cited in footnote 14), paragraph 29.
(25)  –	See Article 4(5) and Article 12(1) of the Customs Code.
(26)  –	Case C‑315/96 Lopex Export
[1998] ECR I-317, paragraph 19.
(27)  –	See Foto-Frost
(cited in footnote 9), paragraph 16, and Case 294/83 Les Verts
v Parliament
[1986] ECR 1339, paragraph 23, Case C‑50/00 P Unión de Pequeños Agricultures
[2002] ECR I-6677, paragraph 40, and Case C‑263/02 P Jégo-Quéré
[2004] ECR I-3425, paragraph 30.
(28)  –	See, inter alia, Case C‑6/99 Greenpeace France and Others
[2000] ECR I-1651, paragraph 53; and Case 96/71 Haegeman v Commission
[1972] ECR 1005, paragraphs 9 to 13.
(29)  –	Joined Cases C‑297/88 and C‑197/89 Dzodzi
[1990] ECR I-3763.
(30)  –	See also, for example, Case C‑130/95 Giloy
[1997] ECR I-4291, and Case C‑306/99 BIAO
[2003] ECR I-1, in particular paragraph 87 et seq.
(31)  –	See expressly to this effect Dzodzi
(cited in footnote 29), paragraph 42.
(32)  –	See Joined Cases C‑133/02 and C‑134/02 [2004] ECR I-0000, paragraphs 21 to 24.
(33)  –	See, for example, Case C‑119/99 Hewlett Packard
[2001] ECR I-3981; see also Greenpeace France and Others (cited in footnote 28), paragraph 55.
(34)  –	Cilfit
(cited in footnote 10), paragraphs 2 to 4.
(35)  –	Cilfit
(cited in footnote 10), paragraphs 16 and 21.
(36)  –	Ibid.
(37)  –	Cilfit
(cited in footnote 10), paragraph 17.
(38)  –	See Cilfit
(cited in footnote 10), paragraphs 18 to 20.
(39)  –	See in this regard Bebr, ‘The Rambling Ghost of “Cohn-Bendit”: Acte clair and the Court of Justice’, Common Market Law Review
20/1983, p. 439 (p. 466 et seq. and p. 471); Rasmussen, ‘The European Court’s Acte Clair Strategy in Cilfit
(Or: Acte Clair, of course! But What does it Mean?)’, European Law Review
342/1984, 342 (p. 256 et seq.); Mancini/Keeling, ‘From Cilfit
to ERT : the Constitutional Challenge facing the European Court’, Yearbook of European Law
11/1991, p. 1 (4).
(40)  –	See Lenaerts/Arts, Europees Procesrecht, 2003, p. 88.
(41)  –	Cilfit
(cited in footnote 10), paragraph 16.
(42)  –	See the Opinion of Advocate General Capotorti in Cilfit
(cited in footnote 10), point 4; for a discussion of the meaning of that doctrine, see Bebr (cited in footnote 39), p. 440 et seq.
(43)  –	It is settled case-law that that division of functions is such that the Court of Justice confines itself to interpreting the provisions of Community law relevant to the case in question, whereas it is for the national court to apply the rules so interpreted to the specific circumstances of the case: see, inter alia, Da Costa
(cited in footnote 15), and also Joined Cases C‑260/00 to C‑263/00 Lohmann and Medi Bayreuth [2002] ECR I-10045, paragraphs 26 to 28, Joined Cases C‑223/99 and C‑260/99 Agorà and Excelsior
[2001] ECR I-3605, paragraphs 23 and 24, and Case C‑366/96 Cordelle
[1998] ECR I-583, paragraph 8.
(44)  –	This ambivalence was clearly already in evidence in the submissions of the parties to the proceedings in Cilfit .
On the one hand, it was contended that provisions which are entirely unambiguous or unequivocal do not require interpretation or will not raise any ‘question of interpretation’ and are not therefore caught by the obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC.
On the other hand, it was conceded that, although even unambiguous provisions require some interpretation, the obligation to make a reference for a preliminary ruling relates only to provisions whose interpretation is in doubt or raises ‘real and genuine problems’: see also point 78 above and the submissions of the parties to the proceedings in Cilfit
(cited in footnote 10), ECR 3420 et seq.
(45)  –	Opinion of Advocate General Capotorti in Cilfit
(cited in footnote 10), point 4; see also Pescatore, ‘Interpretation of Community Law and the Doctrine of “Acte Clair”’ in Legal Problems of an Enlarged European Community, 1972, 27 (pp. 41 and 43 et seq.).
(46)  –	See point 78 above and Cilfit
(cited in footnote 10), paragraphs 2 and 3.
(47)  –	Cilfit
(cited in footnote 10), paragraph 16.
(48)  –	By way of background to the judgment in Cilfit, see also, for example, the comments made by Advocate General Tizzano in his Opinion in Lyckeskog
(cited in footnote 14), point 56 et seq.
(49)  –	See Bebr (cited in footnote 39), p. 469.
(50)  –	See, inter alia, the Opinion of Advocate General Capotorti in Cilfit
(cited in footnote 10), point 9; and Pescatore (cited in footnote 45), p. 42.
(51)  –	See in this regard point 116 et seq. below.
(52)  –	An examination critical of that condition which contains numerous examples is carried out by Wattel, ‘ Köbler, Cilfit
and Welthgrove : We Can’t Go On Meeting Like This’, Common Market Law Review
2004, p. 177 (p. 179).
(53)  –	See the Opinion of Advocate General Jacobs in Case C‑338/95 Wiener
[1997] ECR I-6495, paragraph 65, and the Opinion of Advocate General Tizzano in Lyckeskog
(judgment cited in footnote 14), point 75.
(54)  –	See to this effect Rasmussen (cited in footnote 39), p. 242.
(55)  –	It is of course the experience of anyone applying the law that there are some provisions the meaning of which is either immediately clear or which, at any rate after a process of interpretation, have a meaning which commends itself or even have only one reasonably possible meaning. The problem, however – and this is the very problem which underlies the judgment in Cilfit
– is that the process of interpretation which allows a judge to reach such a conclusion cannot be made objective and, therefore, cannot be provided for in advance either.
(56)  –	In ‘Preliminary Rulings – Evolution of the System’, in 1952 – 2002: 50th Anniversary of the Court of Justice of the European Communities (Conference on cooperation between the Court of Justice and the national courts), 3 December 2002, p. 17 (p. 27), Pierre Pescatore stated that, ‘in our legislative world, nothing is ever entirely what it seems, since all legal concepts are caught in the polysemy of a system in constant motion’.
(57)  –	The reason for this lies in the nature of law itself, which is intrinsically bound by the possibilities of linguistic expression and is therefore as imprecise and imperfect as language itself.
A legal finding is by definition not an ‘objective finding’ in a scientific sense (although, even in a scientific context, that term must be used with caution).
Case-law is therefore hardly ever a matter of findings alone or a mechanical process of categorisation but also involves an element of decision-making, a fact, moreover, which is very neatly expressed in the judicial formula ‘hat für Recht erkannt’/‘dit pour droit’. See in this regard Larenz and Canaris, Methodenlehre der Rechtswissenschaft, third edition 1995, p. 28 et seq.; Schübel-Pfister, Sprache und Gemeinschaftsrecht: die Auslegung der mehrsprachig verbindlichen Rechtstexte durch den Europäischen Gerichtshof, 2004, pp. 112, 113.
(58)  –	See Cilfit
(cited in footnote 10), paragraph 20.
(59)  –	Permitted methods of interpretation can of course be indicated, and, in the context of Community law, the Court of Justice sets these out in its judgment in Cilfit . However, even the application of these methods does not, strictly speaking, lead to a single right answer.
Even a ranking of various criteria for interpretation cannot obviate the need for a degree of discretion.
The starting point and – the subject of conflicting legal methodologies – the end point of the process of interpretation is generally the language text in which the law finds its expression.
However, between those two points lies a vast field capable of being crossed by various paths.
Anyone who, for reasons not least of methodology or on grounds relating to the theory of
(legal) knowledge, refuses to subscribe to this view must at least concede that interpretation – in particular in Community law – is a process involving many variables, and that, consequently, two courts, even if they take into the most careful consideration the characteristics of Community law and the methods of interpretation appropriate to those characteristics, are likely to arrive at different interpretations.
(60)  –	In this respect, Pescatore, for example, correctly pointed out in connection with the ‘acte clair’ doctrine that the finding by a judge that a legal provision is ‘clear’ is in fact a means of ending and resolving a discusssion on interpretation, whereby the judge in fact simply applies his own interpretation of that legal provision: see Pescatore (cited in footnote 45), p. 41.
(61)  –	See also the Opinion of Advocate General Tizzano in Lyckeskog
(cited in footnote 14), point 75.
(62)  –	See Timmermans, ‘Over de prejudiciële procedure en “acte clair”’ in Mok-aria: opstellen aangeboden aan prof. Mr M.R. Mok ter gelegenheid van zijn 70e verjaardag, 2002, p. 349 (p. 354); Dauses, Vorabentscheidungsverfahren, second edition 1995, p. 113; Holoubek, ‘Vorlageberechtigung und Vorlageverpflichtung’ in Das EuGH-Verfahren in Steuersachen, 2000, p. 45 (p. 61).
(63)  –	Opinion of Advocate General Jacobs in Wiener
(cited in footnote 53), paragraph 64.
(64)  –	Case C‑224/01 Köbler
[2003] ECR I-10239, paragraph 55; see in this regard the critical assessment by Wattel (cited in footnote 52), p. 178 et seq.
(65)  –	And thus leave the ‘filtering’ of questions of interpretation entirely to the Court of Justice.
(66)  –	See Cilfit
(cited in footnote 10), paragraph 10, and, inter alia, Case 180/83 Moser
[1984] ECR 2539, paragraph 6, Case 247/86 Alsatel
[1988] ECR 5987, paragraph 8, Case C‑127/92 Enderby
[1993] ECR I-5535, paragraph 10, Case C‑30/93 AC‑ATEL Electronics Vertriebs
[1994] ECR I-2305, paragraph 19, and Case C‑415/93 Bosman
[1995] ECR I-4921, paragraph 59.
(67)  –	Nor can one overlook that, as demonstrated by the judgment in Cilfit
itself, judgments also require interpretation – their transposability to another case or meaning is often decisive in the resolution of questions of Community law – and that, consequently, even in the case of an ‘acte éclairé’, national courts sometimes retain a significant degree of discretion.
See in this regard Kanninen, ‘La marge de manoeuvre de la juridiction suprême nationale pour procéder à un renvoi préjudiciel à la Cour de Justice des Communautés européennes’ in Colneric et al (editor), Une communauté de droit: Festschrift für Gil Carlos Rodríguez Iglesias, 2003, p. 611 (p. 616).
(68)  –	Moreover, the same applies correspondingly – a fortiori it might be said – to the question whether national courts other than those of last instance have an obligation to make a reference for a preliminary ruling.
(69)  –	See inter alia Case C‑276/00 Turbon International [2002] ECR I-1389, paragraph 21, and Lohmann and Medi Bayreuth
(cited in footnote 43), paragraph 30.
(70)  –	See Case C‑405/97 Mövenpick Deutschland
[1999] ECR I-2397, paragraph 18.