Opinion of Mr Advocate General Geelhoed delivered on 23 January 2001. - VauDe Sport GmbH & Co. KG v Oberfinanzdirektion Koblenz. - Reference for a preliminary ruling: Hessisches Finanzgericht, Kassel - Germany. - Common customs tariffs - Tariff headings - Classification in the Combined Nomenclature - Child carrier. - Case C-288/99.



European Court reports 2001 Page I-03683



Opinion of the Advocate-General

1. This case concerns the tariff classification of a product described as a child carrier. The national court is seeking to ascertain in particular whether the term similar containers in CN heading 4202 of the Common Customs Tariff is to be interpreted as including the product described as a child carrier, or whether it is to be classified pursuant to General Rule 3(b) among other made up textile articles of woven fabric under CN heading 6307, or whether the aforementioned product is covered by another heading - in particular CN heading 9401 or 7616.

I - Relevant provisions

2. In the view of the national court the relevant provisions of the Common Customs Tariff are contained in Commission Regulation (EC) No 1359/95 of 13 June 1995 amending Annex I and II to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (the Combined Nomenclature - hereinafter: the CN), and repealing Regulation (EEC) No 802/80 (OJ 1995 L 142, p. 1).

3. The tariff headings considered by the national court in the main proceedings, in so far as they are relevant, read as follows:

4. CN heading 4202

4202 Trunks, suit-cases, vanity-cases, executive-cases, brief-cases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling-bags, toilet bags, rucksacks, handbags, shopping-bags, wallets, purses, map-cases, cigarette-cases, tobacco-pouches, tool bags, sports bags, bottle-cases, jewellery boxes, powder-boxes, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanised fibre or of paperboard, or wholly or mainly covered with such materials or with paper.

- Trunks, suit-cases, vanity-cases, executive-cases, brief-cases, school satchels and similar containers;

...

4202 92 - - With outer surface of plastic sheeting or of textile materials

...

- - - Of textile materials

4202 92 91 - - - - Travelling-bags, toilet bags, rucksacks and sports bags

4202 92 98 - - - - Other

4202 99 00 - - Other.

5. CN heading 6307

6307 Other made-up articles, including dress patterns:

6307 10 - Floor-cloths, dish-cloths, dusting cloths and similar cleaning cloths:

...

6307 20 00 - Life-jackets and life-belts

6307 90 - Other:

6307 90 10 - - Knitted or crocheted

- - Other

6307 90 91 - - - Of felt

6307 90 99 - - - Other.

6. CN heading 7616

7616 Other articles of aluminium:

7616 10 00 - Nails, tacks, staples, screws, bolts, nuts, screw hooks, rivets, cotters, cotter-pins, washers and similar articles

7616 90 - Other:

7616 90 10 - - Knitting needles and crochet hooks

7616 90 30 - - Cloth, grill, netting and fencing

- - Other:

7616 90 91 - - - Cast

7616 90 99 - - - Other.

7. CN heading 9401

9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:

9401 10 - Seats of a kind used for aircraft

...

9401 20 00 - Seats of a kind used for motor vehicles

9401 30 - Swivel seats with variable height adjustment:

...

9401 40 00 - Seats other than garden seats or camping equipment, convertible into beds

9401 50 00 - Seats of cane, osier, bamboo or similar materials

- Other seats, with wooden frames:

...

- Other seats, with metal frames:

9401 71 00 - - Upholstered

9401 79 00 - - Other

9401 80 00 - Other seats

9401 90 - Parts.

8. The general rules of the CN relevant to the present case, which are set out in Title I(A) of Part I thereof, read as follows:

Classification of goods in the combined nomenclature 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.

2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

3. When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;

(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character in so far as this criterion is applicable;

(c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

...

6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and mutatis mutandis to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule the relative section and chapter notes also apply, unless the context otherwise requires.

9. Furthermore, the following notes to the sections and chapters of the CN, in the version applicable to the present case, are relevant in answering the question referred to the Court:

10. Note 7 to Section XI entitled Textiles and textile articles provides as follows:

For the purposes of this section, the expression "made up" means:

...

(e) assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded);

11. Note 1 to Chapter 63 entitled Other made-up textile articles; sets; worn clothing and worn textile articles, which forms part of the abovementioned Section XI of the CN, states:

Sub-chapter I applies only to made-up articles, of any textile fabric.

12. Note 2 to Chapter 94 of the CN entitled Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; lamps and lighting fittings, not elsewhere specified or included; illuminated signs, illuminated name-plates and the like; prefabricated buildings, which forms a sub-chapter of Section XX Miscellaneous manufactured articles, reads as follows:

The articles (other than parts) referred to in heading Nos 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground. The following are, however, to be classified in the abovementioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:

...

(b) seats and beds.

13. Some of the explanatory notes to the harmonised commodity description and coding system of the World Customs Organisation (hereinafter: HS explanatory notes) can also be taken into consideration in answering the question referred to the Court. This applies in particular to the following explanatory notes.

14. General Rule 3(a), HS explanatory note (IV)(b):

If the goods answer to a description which more clearly identifies them, that description is more specific than one where identification is less complete.

15. General Rule 3(b), HS explanatory note (VIII):

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

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

principally covers articles of leather or composition leather; however, headings 42.01 and 42.02 also include certain articles characteristically of the leather trade but made from other materials.

17. According to paragraph 17 of the HS explanatory notes to heading 6307, that heading includes:

Carry cots, portable cradles and similar carriers for children.

18. As the general HS explanatory notes to Chapter 94 of the CN state, for the purposes of that chapter furniture means:

Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, ..., motor vehicles, ... or similar means of transport.

19. According to the HS explanatory notes to heading 9401 of the CN, that heading also covers inter alia children's seats, including special vehicle seats.

20. Commission Regulation (EC) No 1529/1999 of 13 July 1999 concerning the classification of certain goods in the combined nomenclature (OJ 1999 L 178, p. 10) was introduced after the appeal in the main proceedings was already pending.

21. This regulation provides as follows:

Article 1

The goods described in column 1 of the annexed table are now classified within the Combined Nomenclature under the appropriate CN codes indicated in column 2 of the said table.

Article 2

Subject to the measures in force in the Community relating to double checking systems and to prior and retrospective Community surveillance of textile products on importation into the Community, binding tariff information in the matter of classification of goods in the Combined Nomenclature issued by the customs authorities of the Member States which no longer conform to this Regulation may continue to be invoked in accordance with the provisions of Article 12(6) of Regulation (EEC) No 2913/92 for a period of 60 days.

Article 3

This Regulation shall enter into force on the 21st day following its publication in the Official Journal of the European Communities.

22. This regulation was published on 14 July 1999.

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

>lt>0

II - Factual and procedural context

A - Facts and question referred for a preliminary ruling

24. The files show that the plaintiff in the main proceedings (VauDe Sport GmbH & Co. KG - hereinafter the plaintiff) applied to the competent German customs authorities for binding tariff information in respect of a product which it describes as follows:

collapsible comfort child carrier with height-adjustable tergoform carrying system and integrated rucksack.

25. In Binding Tariff Information of 20 September 1995, the Oberfinanzdirektion Koblenz, ZuVA-Außenstelle Frankfurt am Main (hereinafter the Oberfinanzdirektion) classified the product under CN subheading 6307 9099 0990, describing it as follows:

Other made up textile articles of woven fabric, known as "comfort child carriers"

- support frame made of steel tubing (this was subsequently amended to aluminium tubing) and woven fabric made of synthetic fibres sewn together,

- essentially comprising a seat for a child, padded on the sides and up to head height, and fitted out with safety belts, made from textile,

- there is a zipped compartment for storing small items under the seat,

- with padded shoulder straps and a textile waist band,

- not handmade,

- the parts made of woven fabric are determinant features by bulk and value and in the light of their role in relation to the use of the product.

26. The grounds for the decision on classification refer to various notes and to General Tariff Rule 3(b). The decision also states that the product cannot be classified under heading 4202, as the plaintiff argued, since it is not a rucksack and heading 4202 covers only expressly listed goods and does not mention child carriers. The decision suggests 7326 9097 as a further possible heading.

27. In the appeal proceedings against that binding tariff information, the plaintiff reiterated its view that the child carrier should be classified under CN heading 4202 because the purpose of the child carrier and the characteristics thereof are comparable to those of a rucksack. In both cases the purpose is to carry a load as comfortably and safely as possible on a person's back.

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

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

30. Is the term "similar containers" in CN heading 4202 of the Common Customs Tariff to be interpreted as including a product described as a child carrier consisting essentially of a support frame made of aluminium tubing and woven fabric made of synthetic fibres - assembled by being sewn together - in which a child may be carried in a seated position on a person's back and small items stored under the seat,

or

is the aforementioned product to be classified pursuant to General Rule 3(b) among other made up textile articles of woven fabric under CN subheading 6307 9099 0990

or

is the aforementioned product covered by another heading?

B - Proceedings before the national court

31. The plaintiff takes the view that, pursuant to General Rule 3(a), the heading which provides the most specific description of the product is to be preferred to headings providing a more general description. Since a description of the intended purpose is always more specific than a description in terms of material, consideration must be given in this case to whether the product at issue displays the objective qualities listed in CN heading 4202 or heading 9401. Only if it does not do so should consideration be given to classifying it according to its material characteristics.

32. In its view, the child carrier may indeed be regarded as a container similar to a rucksack. The tariff does not define the term container. Therefore consideration must be given when interpreting it here to the view of the trade in the relevant commercial circles. The child carrier may certainly be compared with a rucksack in the light of the characteristic property of this particular child carrier, namely the expensive rucksack-carrying device which is the same as that used by the plaintiff for specialist trekking rucksacks. It is the carrying device which turns a container into a rucksack, regardless of whether or not objects or people can be carried therein. This indicates that it should be classified under CN heading 4202.

33. However, the carrier may also be classifiable as a child seat which may either be placed on the ground or floor or carried on a person's back. This equates the carrier with a child car seat even though it differs from a car seat on account of its special carrying device and its main purpose, namely to carry a child on a person's back on walks and so on. The fact that the support frame of the child carrier includes a folding stand enabling it to be placed safely on the floor or ground indicates, in the view of the plaintiff, that it should be classified as a child seat under CN heading 9401.

34. If the child carrier at issue is to be classified by the material used, then the focus must be on the value and function of each of the materials used. The aluminium support frame is of particular significance here because it determines the essential character thereof. The comparative value of the component parts cannot be regarded as crucial. If the child carrier is to be classified according to its material characteristics, therefore, it is classifiable under CN heading 7616 (other articles of aluminium).

35. The Oberfinanzdirektion requests that the application be dismissed. It maintains its tariff classification. Essentially, it states that the child carrier is precisely not a carrying device for the transportation of inanimate objects, but that it is clear upon examining it that it is for the safe transport of small children. It cannot be classified under CN code 4202 because the wording of that heading does not contain the requisite reference to child carriers.

36. The proceedings were stayed since the defendant had referred the problem of how to classify child carriers to the Customs Tariff and Statistical Nomenclature Committee of the European Commission. The abovementioned committee then dealt with the question during its 171st session on 12 and 13 November 1998. According to the minutes, when a poll was taken, six of the nine Member States represented voted for classification under heading 6307. After proceedings had been reopened by order of 17 December 1998, the defendant informed the national court that the Customs Code Committee had agreed by 14 votes to 1 at its 187th session (textiles) on 29 and 30 April 1999 in Brussels concerning the classification of child carriers that a framework regulation should be drafted. Under that regulation, such carriers are to be classified, pursuant to General Rules 1 and 6, General Rule 3(b) and other specified notes, under CN subheading 6307 9099.

37. The national court states that the product concerned is not referred to specifically in the description of goods under heading 4202. A child carrier can therefore only be classified here if it is a similar container to one of the expressly named products. The HS explanatory notes set out those goods which are to be regarded as similar containers within the meaning of the second part of the heading. This list given is not, as is apparent from the insertion of the term etc., exhaustive.

38. On the basis of the similarities and differences between a rucksack and a child carrier, the national court concludes that the similarities between the two goods could support classification as requested by the plaintiff. However, arguments against that classification may be found in the not inconsiderable differences between the two goods and in the fact that, according to the wording of the headings and to the goods described in the explanatory notes as being similar, all such goods are closed or at least capable of being closed and are in each case intended for the storage of inanimate objects. Extending the term similar containers to cover the child carrier at issue might therefore constitute an unauthorised extension of the tariff heading.

39. The national court doubts whether the child carrier can be classified under heading 9401. Note 2 to Chapter 94 and the HS explanatory notes to that chapter point out that it covers articles which are designed for placing on the floor or the ground and which are used primarily with a utilitarian purpose, to equip private dwellings, ..., motor vehicles, ... or similar means of transport.

That description cannot apply to the child carrier because it is not designed for placing on the floor or on the ground and is not to equip any of the abovementioned buildings or means of transport.

40. If the child carrier at issue is not classifiable under CN heading 4202 and 9401, it must be dealt with according to General Rule 2(b) whereby, since the goods consist of more than one material, they must be classified according to the principles of General Rule 3.

General Rule 3(a) does not apply to these facts because there is no general or specific heading for child carriers. Therefore, consideration must be given to the application of General Rule 3(b).

41. This general rule means that it is necessary to determine whether it is immediately apparent that the textile parts of the child carrier give it its essential character so that it is classifiable under heading 6307 among other made up articles. In addition, it is clear from the HS explanatory note to heading 6307 that carry cots and similar pieces of equipment are intended to be classified under this heading.

42. On the other hand, it must be borne in mind, in the view of the national court, that this general rule provides for three methods for classifying goods which initially are classifiable under more than one heading. In that connection it refers to the HS explanatory notes to General Rule 3(b).

43. With reference to Sportex, the national court then considers which of the materials of which the child carrier is composed gives it its essential character. It concludes that both the parts consisting of textile and the aluminium support frame determine the characteristic properties of the child carrier. The resultant equal value of the constituent parts may indicate that the child carrier is classifiable pursuant to General Rule 3(c) under subheading 7616 9099 0900.

III - Observations submitted to the court

44. The plaintiff in the main proceedings and the Commission submitted written observations. They were heard at the hearing on 16 November 2000.

45. The plaintiff essentially reiterates the views which it advanced vis-à-vis the Oberfinanzdirektion and before the national court. In its view, it follows from the HS explanatory note to General Rule 3(a) that the heading which provides the most precise and complete description of the goods under consideration must always be regarded as the most specific definition. Since in this regard the intended purpose of the product is more specific than the indications provided by its composition, it must first be determined whether the child carrier at issue is classifiable under heading 4202 or under heading 9401 before considering the possibility of classification by the composition of the product pursuant to General Rule 3(b).

46. The plaintiff agrees with the national court where it points to the similarity between the child carrier and the containers included under heading 4202. However, it does not share the court's concerns as to the risk of an unauthorised extension of the scope of this heading. The plaintiff argues that, pursuant to the general HS explanatory note to Chapter 42, it, as a manufacturer of rucksacks, belongs to a sector allied to the leather trade. The plaintiff developed the child carriers at issue in connection with the manufacture of rucksacks, in particular on the basis of a carrying system for rucksacks which had been tried and tested over many years. Although the main purpose of the child carrier is to transport a young child, it is also designed to carry objects on a person's back in the storage space attached to the carrier.

47. As regards heading 9401, the plaintiff stresses, contrary to the view of the national court, that the child carrier at issue can be regarded as a child seat also in accordance with objective criteria. On the one hand, seats are, according to the subparagraph (b) pertaining to the second sentence of Note 2 to Chapter 94 of the CN, classifiable under headings 9401 to 9403 even if they are designed to be hung. On the other hand, the wording of the general HS explanatory note to Chapter 94 indicates, contrary to the view of the national court, that the seats covered by Chapter 94, including seats of heading 9402, must only principally be used, mainly with a utilitarian purpose, to equip private dwellings, ..., motor vehicles, ... or similar means of transport.

48. Only if the child carrier is not classifiable by its intended use, should consideration be given to classifying it by the material used, either under heading 6307 or heading 7616. Pursuant to General Rule 3(b), the component which characterises the child carrier as such is the expensive aluminium carrying device. Therefore, in the view of the plaintiff, consideration should be given only to classification under heading 7616 of the CN. Since the national court reaches the same conclusion by application of General Rule 3(c), the plaintiff supports the relevant considerations set out in the order for reference.

49. The plaintiff further observes that it asked the national court, by letter of 26 July 1999, to refer a supplementary question regarding the validity of Commission Regulation (EC) No 1529/1999 of 13 July 1999. The order for reference refers expressly to this regulation on page 11. In the event that the Court of Justice considers that the second part of the question referred to it must be answered in the negative, the plaintiff claims that it should declare the abovementioned regulation invalid in so far as it concerns the goods referred under section 3 of the annex thereto.

50. The Commission considers that in principle there the four possible headings for the disputed product: 4202, 9401, 7616 and 6307.

51. In the view of the Commission, classification under heading 4202 must be ruled out. First of all, heading 4202 does not refer to such goods, unless they are regarded as similar containers within the meaning set out therein. The Commission points out that it is settled case-law that, in the interests of legal certainty and effective verification, the decisive criterion for the classification of goods is in general to be sought in their characteristics and objective properties as defined in the wording of the relevant heading. The child carrier does not answer the description in heading 4202. Even though it is carried on a persons back like a rucksack, it differs from a rucksack in that it has an open seat whose sole function is to transport a child. The presence of a closed storage space for transporting small items under the seat is a minor factor and of little importance in terms of classification. Heading 4202 covers goods which are intended to transport objects. Furthermore, all the containers to which this heading relates are closed or capable of being closed. The child carrier has neither of these characteristics.

52. The Commission considers that classification under heading 9401 must likewise be ruled out. On the one hand, the child carrier is, contrary to the first sentence of Note 2 to Chapter 94 of the CN, designed solely to be carried on a persons back even though it may also be placed on the floor or ground like any other object. The foldable underframe performs only a purely minor function. It makes it easier to place the child in the carrier and prevents it from falling over. Furthermore, the child carrier also fails to satisfy the second cumulative condition of the abovementioned note since it is not used to equip private dwellings and means of transport as referred to therein.

53. Since there is no tariff heading under which child carriers can be classified as such, classification must be effected in accordance with General Rule 2(b). Since the child carrier concerned is a composite product made up primarily of woven fabric and aluminium tubing, General Rule 2(b) refers to General Rule 3. Since General Rule 3(a) does not apply, classification must be effected in accordance with General Rule 3(b) on the basis of the material and/or component which gives the product - in this case the child carrier - its essential character. Possible decisive factors in that respect are the nature of the material or component, its bulk, weight or value, or the role of a constituent material in relation to the use of the product. Furthermore, according to the case-law of the Court of Justice, in answering the question which of the composite goods or materials give the product its essential character, it is necessary to determine whether the product would retain its characteristic properties if one or other of its constituents were removed from it.

54. The Commission considers that at first glance the aluminium support frame could be regarded as decisive in respect of the essential character of the product concerned because it lends the child carrier stability. However, in actual fact a baby can be transported on a person's back using the fabric alone. The aluminium support frame provides stability, support and comfort, but it is not essential for transporting a child. As regards the criteria of the bulk, weight and value of the various materials, the Commission considers that the fabric and not the aluminium support frame is decisive.

55. Although the Commission is aware that its view differs from that of the national court which is inclined, by application of General Rule 3(c), towards classification of the child carrier under heading 7616, it considers that the product is covered by heading 6307 in accordance with General Rule 3(b) and on account of the fact that the woven material is the decisive factor in view of its importance to the use of the product.

56. Moreover, this classification is supported by paragraph 17 of the HS explanatory notes to heading 6307 which places carry cots, portable cradles and similar carriers for children under this heading.

57. A similar analysis underlies Regulation No 1529/1999 which classifies a product identical to that at issue in the main proceeding under heading 6307 by application of General Rule 3(b) in particular.

58. However, the Commission is aware that a regulation specifying the conditions for classification under a tariff heading is of a legislative nature and cannot have retroactive effect.

59. Since in the present case consideration can be given only to headings 6307 and 7616, the essential question in choosing between the two headings is, in the view of the Commission, whether a child can be transported in a child carrier which has no metal frame. Having regard to Regulation No 1529/1999, which is based on an analysis in which 14 Member States concurred with the reasoning of the Commission in a procedure provided for in Article 10(1) of Regulation No 2658/87, and to paragraph 17 of the HS explanatory notes to heading 307, the answer must be in the affirmative.

60. The Commission is aware that the national court is inclined to answer the abovementioned essential question in the negative.

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

As regards the classification of a product which is defined as a child carrier and consists essentially of a support frame made of aluminium tubing and woven fabric made of synthetic fibres - assembled by being sewn together - in which a child may be carried in a seated position on a person's back and small items stored under the seat, the national court is requested to determine whether, regard being had to the constituents, the aluminium support frame is in fact essential for transporting babies.

If the national court comes to the conclusion that the aluminium support frame is not absolutely essential for the purpose of the child carrier, it must be classified under heading 6307 by application of General Rule 3(b).

If, on the other hand, the national court concludes that such is not the case, the child carrier must be classified under heading 7616 by application of General Rule 3(c).

IV - Appraisal

62. Can a child carrier such as that described in the order for reference from the national court be classified by its objective characteristics and properties or must it be classified by the material or component thereof which gives it its essential character in so far as this criterion is applicable?

63. The parties in the main proceedings are divided over this question. The plaintiff takes the view that the objective characteristics and properties of the product at issue indicate that it should be classified under heading 4202 or, in the alternative, under heading 9401. The defendant, on the other hand, argues that the objective properties and characteristics of the child carrier preclude such classification because it does not answer the definition of goods set out under heading 4202 and heading 9401. It claims that classification by the material or component which gives the product its essential character requires application of heading 6307.

64. In the clear grounds of the order for reference the national court sets out in detail why, in its view, justified doubts arise as to the correctness of a possible classification of the child carrier under heading 4202 and heading 9401. It obviously considers that the arguments against classification under heading 9401 are so strong that it limits the first part of the question referred to the Court to possible classification of the product at issue under heading 4202.

65. If, like the national court, we restrict ourselves in the first instance to the possibility of classification under heading 4202, it is clear that child carrier is not referred to specifically among the goods listed in the description of the abovementioned heading.

66. Consequently, the question arises as to whether a child carrier such as that at issue can be covered by the expression and similar containers at the end of that description. Only then can it be classified under heading 4202 as a container similar to the goods specifically listed therein.

67. However, before I come to the question whether the child carrier can be regarded as such a container, certain more general comments are appropriate as regards the interpretation of terms which extend a list of a large number of heterogenous goods in a non-specific manner.

68. If the term similar were related to the particular characteristics of the individual goods or of certain groups of goods in a particular list, there would be a risk that the objective properties and characteristics, which are in principle common to all the goods covered by this list, would become diluted.

69. This is precluded by the settled case-law of the Court which ruled, inter alia in Rank Xerox, 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 relevant headings of the Common Customs Tariff and the notes to the sections or Chapters.

70. Therefore, it is necessary to consider which objective characteristics and properties the goods referred in the wording of heading 4202 have in common. On the basis thereof it can then be determined what can and cannot be covered by the expression and similar containers.

71. The goods listed under heading 4202 have in common the fact that they, almost without exception, are or can be closed and that they are designed for the storage and/or transportation of objects.

72. The HS explanatory notes to the term similar containers are of the same tenor. They too relate almost exclusively to goods which are or can be closed and are designed for the storage and/or transportation of objects. According to the settled case-law of the Court, they are important means of ensuring the uniform application of this tariff and may therefore be regarded as a valuable aid to the interpretation thereof.

73. I, like the Commission, therefore conclude that child carriers such as those at issue in the main proceedings may not be classified under heading 4202. This product is, by its objective characteristics, open and designed to transport young children. Moreover, classification thereof under heading 4202 would result in an unauthorised extension of this heading.

74. Consequently, the plaintiff's argument that the similarities between the child carrier concerned and rucksacks designed for trekking make it possible to classify the child carrier under heading 4202 is, having regard to the foregoing, also untenable.

75. Firstly, this argument fails to appreciate that in assessing whether or not a product constitutes a similar container within the meaning of the description in heading 4202 no connection need be sought precisely in the characteristics of the goods referred to individually under that heading, but in the objective characteristics which all the goods referred to therein have in common.

76. Secondly, even in accordance with this argument the child carrier does not satisfy the requirements which must be placed on a rucksack as a similar container: it cannot be closed and is not designed for the transportation of objects.

77. The fact that there is also a space under the child carrier at issue in which small items can be stored is irrelevant as regards the classification of the product concerned. The dominant objective characteristics thereof make it a child carrier and it must be classified as such.

78. I conclude that the first part of the question referred to the Court can be answered as follows:

The term "similar containers" in CN heading 4202 of the Common Customs Tariff relates to goods which have the common feature that they are or can be closed and are designed for the storage and/or transportation of items. A product described as a child carrier consisting essentially of a support frame made of aluminium tubing and woven fabric made of synthetic fibres - assembled by being sewn together - in which a child may be carried in a seated position on a persons back and items stored under the seat is devoid of the objective properties which would warrant classification under CN heading 4202.

79. In the main proceedings the question was also raised as to whether the child carrier could be classified as a seat under heading 9401.

80. Both the court in the main proceedings and the Commission consider, on the basis of the same arguments, that classification of the child carrier concerned under this headings is very questionable or impossible respectively. They are correct in this view.

81. Both note 2 to Chapter 94 and the HS explanatory notes to that chapter explicitly preclude such classification: the articles referred to in heading 9491 must in principle be designed for placing on the floor or the ground and used mainly with a utilitarian purpose, to equip private dwellings, ..., motor vehicles, ... or similar means of transport.

82. Since the child carrier is precisely not designed to be placed on the floor or the ground, nor serves to equip private dwellings, motor vehicles or similar means of transport, classification under heading 9401 is not possible.

83. The plaintiff's argument that the child carrier has, by its objective properties, a dual purpose and can consequently be classified under heading 9401 is therefore also untenable. The fact that it is equipped with a folding underframe enabling it to be placed on the floor or the ground does not detract from its characteristic primary purpose, that is to say to be carried on a person's back. The second cumulative condition, namely that the seat concerned must principally be used to equip private dwellings, motor vehicles or similar means of transport, also precludes classification of the child carrier under heading 9401.

84. Since the court in the main proceedings has already more or less ruled out classification under heading 9401 and referred no specific question in that respect, the Court could disregard this matter.

85. However, since consideration can be given only to headings 4202 and 9401 as regards the classification of the child carrier on the basis of its objective characteristics and intended purpose and both the plaintiff in the main proceedings and the Commission in its written - and oral - observations expressly raise the issue of classification under heading 9401, there are grounds for making specific reference to this in the operative part of the judgment.

86. My conclusion in this regards is as follows:

The child carrier concerned is also devoid of the properties which would enable it to be classified under CN heading 9401 since it is not designed to be placed on the floor or ground nor does it serve principally to equip private dwellings, motor vehicles or similar means of transport.

87. Since there is therefore no tariff heading under which child carriers can be classified, it is necessary, in order to classify it, to consult further the general rules on the interpretation of the combined nomenclature.

88. In respect of products composed of various elements, such as that at issue, General Rule 2(b) refers to General Rule 3. General Rule 3(a) thereof is not applicable since it relates to classification under headings with specific descriptions. Consequently, it must first be considered whether or not classification is possible by application of General Rule 3(b).

89. In accordance with that general rule of interpretation, it is necessary, in carrying out the tariff classification of a product, to identify, from among the materials of which it is composed, the one which gives it its essential character. This may be done by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from it (cf. Case 253/87, cited in footnote 1, paragraph 8).

90. The plaintiff, Commission and the national court disagree as to which material gives the child carrier concerned its essential character.

91. On the assumption that the woven fabric determines the character of the child carrier, the Commission argues for classification under heading 6307. The plaintiff takes the view that the aluminium support frame should be the decisive factor. Therefore, it opts for heading 7616. The national court concludes that both the woven fabric and the support frame determine the character thereof. By application of General Rule 3(c) it is inclined towards classification under 7616.

92. The answer to the question which constituent material determines the character of the child carrier in question ultimately requires a factual assessment, as the Commission correctly observes. However, for that more detailed guidance in the abstract is required.

93. In their observations both the plaintiff and the Commission devote a great deal of attention to the function which the aluminium support frame performs in respect of the child carrier. The plaintiff seeks to demonstrate that this support frame is decisive in respect of the main properties of the carrier. The Commission, on the other hand, attempts to show that even without such a support frame a young child can be transported on a person's back in a support consisting entirely of woven material.

94. In that regard they clearly have in mind the following consideration of the Court in Sportex: This may be done by determining whether the product would retain its characteristic properties if one or other of its constituents were removed from it. However, in my view the guidelines which the Court provides in this respect must be applied in the context of the terms and descriptions of the CN.

95. In assessing whether or not an article can be classified under a heading in Chapter 63 of the CN, regard must be had to the connection between note 1 to that chapter - Sub-chapter I applies only to made-up articles, of any textile fabric -, on the one hand, and the description of the goods in the headings which are covered by the abovementioned sub-chapter 1, that is to say headings 6301 to 6307.

96. These headings describe various articles which derive their main properties from the woven material of which they are principally composed but for use generally require a metal, wooden or plastic frame either to support the woven material or to stretch it, such as Venetian blinds referred to in heading 6303 or sun umbrellas, tents and other camping goods in heading 6303.

97. According to the HS explanatory notes to headings 6307, it also covers articles which consist predominantly of woven material and derive their characteristic properties therefrom, but whose use in practice is made easier by a frame consisting of a different material, such as carry cots, portable cradles and similar carriers for children.

98. If in respect of these articles at least equal importance in terms of determining character is attached to the supporting material, that should mean that they cannot be classified under heading 6307. However, such a conclusion cannot be reconciled with the scheme and wording of Chapter 63 and in particular of heading 6307, as explained in the abovementioned note and the HS explanatory note.

99. I therefore conclude as follows:

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

100. In conclusion, I would like to make a remark concerning Regulation No 1529/1999 which is referred to by the plaintiff and the Commission. In the annex thereto this regulation provides for the classification of child carriers under CN heading 6307.

101. The Commission refers to the history of this regulation in order to support its view of the classification of the child carrier at issue. The plaintiff asked that the Court declare it invalid.

102. This regulation entered into force after the events underlying the main proceedings occurred. The national court did not refer thereto in its question.

103. Therefore, it is not possible to derive from this regulation which, as the Commission itself noted, is merely legislative cannot have retroactive effect, any argument relating to the answers to be given to the questions referred to the Court for a preliminary ruling.

104. The request for ruling on the validity of the regulation goes beyond the framework laid down by the questions referred for a preliminary ruling. According settled case-law it must be dismissed.

V - Conclusion

In the light of the foregoing considerations I propose that the Court answer the question referred by the Hessisches Finanzgericht for a preliminary ruling as follows:

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

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