Case C‑545/16

Kubota (UK) Ltd and EP Barrus Ltd

v

Commissioners for Her Majesty’s Revenue & Customs

(Request for a preliminary ruling from the First-tier Tribunal (Tax Chamber))

(Reference for a preliminary ruling — Common Customs Tariff — Tariff headings — Motor vehicles for the transport of goods — Subheadings 87041010 and 87042191 — Regulation (EU) 2015/221 — Validity)

Summary — Judgment of the Court (Sixth Chamber), 22 February 2018

Customs union — Common Customs Tariff — Tariff headings — New four-wheel drive utility vehicle, weighing approximately 630 kg, with an unbraked towing capacity of 750 kg and measuring approximately 300 x 160 cm — Vehicle with an open cabin with two seats fitted with a full roll-over protection frame, a cargo bed constructed of a strong steel frame with a sturdy flat-bed tipping body, and a manual tipping mechanism and is equipped with off-road earth moving tyres, a coupling device and a front hitch — Vehicle with a limited speed of 25 km/h, and a high brake capacity — Classification under subheading 87042191 of the combined nomenclature made by Regulation 2015/221 — No alteration of the tariff headings — Validity

(Council Regulation No 2658/87, Annex I, Subheadings 87042191 and 87401010; Commission Regulation No 2015/221)

The examination of the questions referred has disclosed no factor capable of affecting the validity of Commission Implementing Regulation (EU) 2015/221 of 10 February 2015 concerning the classification of certain goods in the Combined Nomenclature.

In the present case, it is necessary to examine whether the Commission, in having proceeded to make the tariff classification of the vehicle designated in column 1 of the table in the annex to Regulation 2015/221 under subheading 87042191 and not under subheading 870410, altered the content of those two tariff subheadings.

In the present case, as is clear from the wording in column 1 of the table in the annex to Regulation 2015/221 on the subheading 87042191, the vehicle covered by it is a new, four-wheel drive utility vehicle, weighing approximately 630 kg, with an unbraked towing capacity of 750 kg and measuring approximately 300 x 160 cm. The vehicle has an open cabin with two seats fitted with a full roll-over protection frame, a cargo bed constructed of a strong steel frame with a sturdy flat-bed tipping body, and a manual tipping mechanism. The vehicle is equipped with off-road earth moving tyres, a coupling device and a front hitch and has a limited speed of 25 km/h, and a high brake capacity. The vehicle is designed for off-road use, particularly in very rough terrain. The vehicle is presented to be used for a range of functions, for example, pushing, hauling trailers, moving animals, transporting plants, boxes, water and equipment, carrying munitions and transporting feed for animals.

It must be recalled that the goods under subheading 870410 are, in accordance with the wording of that subheading, ‘dumpers designed for off-highway use’.

In that regard, it must be recalled that the subheading 870410 of the CN is a specific heading for vehicles that are specially designed for off-highway use for the transport and unloading of materials (see, to that effect, the judgment of 11 January 2007, B.A.S. Trucks, C‑400/05, EU:C:2007:22, paragraph 36) and an essential characteristic of dumpers is to have a tipping hopper or an opening bottom for the transport of those materials (see, to that effect, the judgment of 16 September 2004, DFDS, C‑396/02, EU:C:2004:536, paragraph 32).

Furthermore, according to the explanatory notes to the CN, the subheadings 87041010 to 87041090 cover, in particular, vehicles specially designed to transport sand, gravel, earth, stones, namely loose materials, and intended for use in quarries, mines or on building sites, at roadworks, airports and ports.

It is necessary therefore to examine whether the vehicle covered by Regulation 2015/221 is specially designed for such a particular use.

In that regard, the wording of that regulation itself states that such a vehicle is equipped with an open cabin and a tipping body with a capacity of 0.4 m3 or, approximately, 400 kg. The vehicle covered by Regulation 2015/221, owing to the fact that it is not very sturdy, has limited cargo capacity, its open cabin has no protection for the driver against loose materials and it is presented to be used for a range of transportation functions for various items such as plants or animals, materials, boxes or munitions.

In addition, that vehicle, given its objective technical characteristics and properties cannot be regarded as the same as the vehicles under subheading 870410 since it does not have the necessary sturdiness for use on construction sites which is inherent in dumpers (see, to that effect, the judgment of 11 January 2007, B.A.S. Trucks, C‑400/05, EU:C:2007:22, paragraph 35).

Consequently, the fact that such a vehicle is equipped with a tipper enabling it, additionally, to transport small quantities of loose material, does not call into question the well-foundedness of its classification under subheading 87042191.

(see paragraphs 24, 27, 28, 31-37, 40, operative part)