JUDGMENT OF THE COURT (Tenth Chamber)

26 May 2016 ( *1 )

‛Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — Section XVII — Vehicles — Chapter 87 — Vehicles other than railway or tramway rolling stock, and parts and accessories thereof — Headings 8703 and 8713 — Vehicles with battery-powered electric motors — Definition of ‘disabled persons’’

In Case C‑198/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the First-tier Tribunal (Tax Chamber) (United Kingdom), made by decision of 26 March 2015, received at the Court on 29 April 2015, in the proceedings

Invamed Group Ltd,

Invacare UK Ltd,

Days Healthcare Ltd,

Electric Mobility Euro Ltd,

Medicare Technology Ltd,

Sunrise Medical Ltd,

Invacare International SARL

v

Commissioners for Her Majesty’s Revenue & Customs

THE COURT (Tenth Chamber),

composed of F. Biltgen, President of the Chamber, A. Borg Barthet and E. Levits (Rapporteur), Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of

— Invamed Group Ltd, Invacare UK Ltd, Days Healthcare Ltd, Electric Mobility Euro Ltd, Medicare Technology Ltd, Sunrise Medical Ltd and Invacare International SARL, by G. Gillham, Tax Adviser, and J. White, Barrister,

— the Italian Government, by G. Palmieri, acting as Agent and G. Albenzio, avvocato dello Stato,

— the United Kingdom Government, by S. Simmons, acting as Agent, and K. Beal QC,

— the European Commission, by L. Flynn and A. Caeiros, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of headings 8703 and 8713 of the Combined Nomenclature of the Common Customs Tariff (‘the CN’) 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 (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) (‘Regulation No 2658/87’).

2 The request has been made in proceedings between Invamed Group Ltd, Invacare UK Ltd, Days Healthcare Ltd, Electric Mobility Euro Ltd, Medicare Technology Ltd, Sunrise Medical Ltd and Invacare International SARL and the Commissioners for Her Majesty’s Revenue & Customs (‘the Commissioners’) concerning the tariff classification of electric mobility scooters.

Legal context

EU law

3 The CN, established by Regulation No 2658/87, is based on the Harmonised Commodity Description and Coding System drawn up by the Customs Cooperation Council, now the World Customs Organisation, and established by the International Convention on the Harmonised Commodity Description and Coding System concluded at Brussels on 14 June 1983 and the Protocol of Amendment thereto, which were approved on behalf of the European Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1). It takes the headings and six-digit subheadings from the harmonised system, only the seventh and eighth digits forming subdivisions specific to the CN.

4 Part One of the CN contains ‘preliminary provisions’. In Section I of Part One, which contains general rules, subsection A, entitled ‘General rules for the interpretation of the [CN]’, provides: ‘Classification of goods in the [CN] shall be governed by the following principles. 1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions. …’

5 Part Two of the CN, Section XVII, entitled ‘Vehicles, aircraft, vessels and associated transport equipment’, contains Chapter 87, which is headed ‘Vehicles other than railway or tramway rolling stock, and parts and accessories thereof’ and includes, inter alia, the following tariff headings: ‘8703 Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars. 8703 10 ‐ Vehicles specially designed for travelling on snow; golf cars and similar vehicles: 8703 10 11 ‐ ‐ Vehicles specially designed for travelling on snow, with compression-ignition internal combustion piston engine (diesel or semi-diesel), or with spark-ignition internal combustion piston engine: 8703 10 18 ‐ ‐ Other … 8713 Carriages for disabled persons, whether or not motorised or otherwise mechanically propelled: 8713 10 00 ‐ Not mechanically propelled 8713 90 00 ‐ Other’

6 Under the second indent of Article 9(1)(a) and Article 10 of Regulation No 2658/87, the European Commission adopts explanatory notes to the CN, which are published in the Official Journal of the European Union.

7 On 4 January 2005, the following text was inserted in the Explanatory Notes to the CN, with a view to the latter’s uniform application (OJ 2005 C 1, p. 3): ‘8713 Carriages for disabled persons, whether or not motorised or otherwise mechanically propelled: 8713 90 00 Other Motorised vehicles specifically designed for disabled persons are distinguishable from vehicles of heading 8703 mainly because they have: — a maximum speed of 10 km per hour, i.e. a fast walking pace; — a maximum width of 80 cm; — 2 sets of wheels touching the ground; — special features to alleviate the disability (for example, footrests for stabilising the legs). Such vehicles may have: — an additional set of wheels (anti-tips); — steering and other controls (for example, a joystick) that are easy to manipulate; such controls are usually attached to one of the armrests; they are never in the form of a separate, adjustable steering column. This subheading includes electrically-driven vehicles similar to wheelchairs which are only for the transport of disabled people. They can have the following appearance: However, motor-driven scooters (mobility scooters) fitted with a separate, adjustable steering column are excluded from this subheading. They can have the following appearance and are classified in heading 8703: ’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 Between 2004 and 2007, the applicants made declarations for the release for free circulation of certain mobility scooters imported into the United Kingdom. Those scooters were declared under heading 8713 of the CN as ‘carriages for disabled persons, whether or not motorised or otherwise mechanically propelled’. In accordance with the classification under that heading, those scooters were released for free circulation without customs duties being levied and with import turnover tax being charged at a reduced rate.

9 Following a tax audit, the tax authority classified the scooters under heading 8703 as ‘motor cars and other motor vehicles, principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars’.

10 Between 24 April 2007 and 3 July 2008, the tax authority issued to those companies tax adjustments corresponding to the customs duties and turnover tax relating to the goods concerned for a total amount of GBP 6479007 (approximately EUR 9114450).

11 The applicants brought an appeal against the tax adjustments before the First Tier Tribunal (Tax Chamber) (United Kingdom). They argue that the scooters at issue must be classified under heading 8713 of the CN on the ground, in particular, that the words ‘for disabled persons’ under that heading do not mean ‘exclusively for disabled persons’.

12 According to the referring court, the scooters are driven by electric motors powered by a battery. Each model has the following features: a seat for one person (which is wider and more luxuriously padded in the larger scooters), a tiller with a wig wag, a platform connecting the front and back wheels on which to mount onto the scooter and on which the feet could be kept during a journey, and either four wheels (two driven wheels at the back and two at the front) or three wheels (two at the back and one at the front). Most seats had moveable adjustable armrests and many seats could be raised and lowered and swivelled through 360 degrees.

13 The referring court starts from the premise that key elements support the classification of the electric mobility scooters at issue under subheading 8713 of the CN. However, it expresses doubts about such a classification.

14 In those circumstances, the First-Tier Tribunal (Tax Chamber) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Do the words “for disabled persons” mean “only” for disabled persons? (2) What is the meaning of the words “disabled persons”; in particular: (a) is their meaning confined to persons who have a disability in addition to a limitation on their ability to walk or to walk easily; or does it include persons whose only limitation is on their ability to walk or to walk easily? (b) does “disabled” connote more than a marginal limitation on some ability? (c) is a temporary limitation such as results from a broken leg capable of being a disability? (3) Do the [Explanatory Notes] to the CN of 4 January 2005, in excluding scooters fitted with separate steering columns, alter the meaning of heading 8713? (4) Does the possibility of use of a vehicle by a person without a disability affect the tariff classification if it can be said that the vehicle has special features which alleviate the effects of a disability? (5) If suitability for use by non-disabled persons is a relevant consideration, to what extent should the disadvantages of such use also be a relevant consideration in determining such suitability?’

Consideration of the questions referred

The first, third and fourth questions

15 By its first, third and fourth questions, which it is appropriate to examine together, the referring court asks essentially whether heading 8713 of the CN must be interpreted as meaning that the words ‘for disabled persons’ mean that that product is intended only for disabled persons, whether the fact that a vehicle may be used by non-disabled persons is irrelevant to its classification under heading 8713 of the CN and whether, when carrying out that classification, the Explanatory Notes to the CN modify the scope of heading 8713 of the CN.

16 In that connection, it should be recalled that, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria the implementation of which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so (judgments of 7 November 2002 in Lohmann and Medi Bayreuth, C‑260/00 to C‑263/00, EU:C:2002:637, paragraph 26, and 16 February 2006 in Proxxon, C‑500/04, EU:C:2006:111, paragraph 23).

17 However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (see judgment of 22 December 2010 in Lecson Elektromobile, C‑12/10, EU:C:2010:823, paragraph 15 and the case-law cited).

18 It should also be recalled that it is settled case-law 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 found in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and of the section or chapter notes (see, in particular, judgments of 16 September 2004 in DFDS, C‑396/02, EU:C:2004:536, paragraph 27; 15 September 2005 in Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 47; and 15 February 2007 in RUMA, C‑183/06, EU:C:2007:110, paragraph 27).

19 Finally, the Explanatory Notes to the CN drawn up by the Commission are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (judgments of 26 October 2006 in Turbon International, C‑250/05, EU:C:2006:681, paragraph 16, and 20 May 2010 in Data I/O, C‑370/08, EU:C:2006:681, paragraph 30).

20 The content of those notes must therefore be in accordance with the provisions of the CN and may not alter their meaning (see judgment of 27 November 2008 in Metherma, C‑403/07, EU:C:2008:657, paragraph 48).

21 That being said, it is important to note that, as regards headings 8703 and 8713 of the CN, the Court has already held that it is apparent from the wording of those headings themselves that the difference between them results from the fact that the first covers means of transport for persons in general, whereas the second applies specifically to means of transport for disabled persons (see, judgment of 22 December 2010 in Lecson Elektromobile, C‑12/10, EU:C:2010:823, paragraph 18).

22 The intended use of a product may constitute an objective criterion for classification if it is inherent to the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, to that effect, judgments of 1 June 1995 inThyssen Haniel Logistic, C‑459/93, EU:C:1995:160, paragraph 13; 5 April 2001 in Deutsche Nichimen, C‑201/99, EU:C:2001:199, paragraph 20; and 18 July 2007 in Olicom, C‑142/06, EU:C:2007:449, paragraph 18).

23 In the light of that case-law, it is for the referring court, in the case in the main proceedings, to determine whether the vehicle at issue is intended, with regard to its characteristics and objective properties, to be used specifically by disabled persons, in which case such use must be classified as ‘the main or logical use’ of that type of vehicle.

24 As the Commission noted, the tariff classification does not take account of the possible use, but only of the intended use, determined on the basis of characteristics and objective properties of the product at the date of its import.

25 Furthermore, it should be added that the Court has already held, in relation to the interpretation of heading 8703 of the CN, that the fact that electric mobility scooters may be used, where appropriate, by disabled persons or even may be adapted for use by disabled persons does not affect the tariff classification of such vehicles, since they are suitable for being used for a number of other activities by persons who do not suffer from any disability, but who for one reason or another prefer to travel short distances other than on foot, like golfers or persons going shopping (judgment of 22 December 2010 in Lecson Elextromobile, C‑12/10, EU:C:2010:823, paragraph 25).

26 That reasoning confirms, a contrario, that the fact that the vehicles at issue in the main proceedings may, in some circumstances, be used by non-disabled persons is irrelevant to the tariff classification of such vehicles under heading 8713 of the CN, since by reason of their original purpose, those vehicles are unsuitable for other persons who do not suffer disabilities.

27 In the light of the foregoing, the answer to the first and second questions is that heading 8713 of the CN must be interpreted as meaning that: — the words ‘for disabled persons’ mean that the product is designed solely for disabled persons; — the fact that a vehicle may be used by non-disabled persons is irrelevant to the classification under heading 8713 of the CN; — the Explanatory Notes to the CN are not capable of amending the scope of the tariff headings of the CN.

The second question

28 By the second question, the referring court asks essentially whether the words ‘disabled person’ under heading 8713 of the CN, must be interpreted as meaning that they designate exclusively persons affected not only by a limitation on their ability to walk, but also other limitations, and whether that limitation on ability may be marginal or temporary.

29 In that connection, it must be observed that the words ‘disabled persons’ are not defined in Regulation No 2658/87.

30 It must be stated that, contrary to the Italian Government’s observations, the words ‘disabled persons’ under heading 8713 of the CN are not the same as ‘handicap’ within the meaning of Article 21 of the Charter of Fundamental Rights of the European Union and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

31 Following the ratification by the European Union of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35), the Court has held that the concept of ‘handicap’, within the meaning of Directive 2000/78, must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (see judgment of 18 December 2014 in FOA, C‑354/13, EU:C:2014:2463, paragraph 53 and the case-law cited).

32 Thus, the words ‘disabled persons’ used in heading 8713 of the CN must have a more specific scope which follows a uniform interpretation of EU law taking account of the context of the provision and the purpose of the relevant regulations (see, to that effect, judgments of 18 January 1984 in Ekro, 327/82, EU:C:1984:11, paragraph 11, and 9 March 2006 in Commission v Spain, C‑323/03, EU:C:2006:159, paragraph 32).

33 In that connection, it is common ground that the vehicles mentioned in heading 8713 of the CN are designed in order to be used to assist persons affected by a limitation on their ability to walk which may be classified, by its nature, as ‘non-marginal’. As the Commission observed in its submissions, the intended use of those vehicles is not dependent on other limiting factors, such as the presence of certain physical or mental attributes of persons for whom those vehicles have been designed. Likewise, the duration of that limit on capacity is not specified and must, therefore, be regarded as being irrelevant. Furthermore, a teleological interpretation of a walking aid necessarily implies that that aid may be for a limited period.

34 Having regard to the foregoing considerations, the answer to the second question is that the words ‘disabled persons’ under heading 8713 of the CN must be interpreted as meaning that they designate persons affected by a non-marginal limit on their ability to walk, the duration of that limitation and the existence of other limitations relating to the capacities of those persons being irrelevant.

The fifth question

35 In view of the answers to the third and fourth questions, there is no need to answer the first and second questions.

Costs

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

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

1. Heading 8713 of the Combined Nomenclature set out 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, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004, must be interpreted as meaning: — the words ‘for disabled persons’ mean that the product is designed solely for disabled persons; — the fact that a vehicle may be used by non-disabled persons is irrelevant to the classification under heading 8713 of the Combined Nomenclature — the Explanatory Notes to the Combined Nomenclature are not capable of amending the scope of the tariff headings of the Combined Nomenclature.

2. the words ‘disabled persons’ under heading 8713 of the Combined Nomenclature set out in Annex I to Regulation No 2658/87, as amended by Regulation No 1810/2004, must be interpreted as meaning that they designate persons affected by a non-marginal limit on their ability to walk, the duration of that limitation and the existence of other limitations relating to the capacities of those persons being irrelevant.

[Signatures]

( *1 ) Language of the case: English.