CELEX: 62002CC0396
Language: en
Date: 2004-01-15 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 15 January 2004. # DFDS BV v Inspecteur der Belastingdienst - Douanedistrict Rotterdam. # Reference for a preliminary ruling: Gerechtshof te Amsterdam - Netherlands. # Common Customs Tariff - Combined Nomenclature - Tariff classification - Subheading 8704 10 - "Minitrac' for the transport and dumping of sand, earth and stones with a sophisticated tipping system. # Case C-396/02.

OPINION OF ADVOCATE GENERALSTIX-HACKLdelivered on 15 January 2004(1)
         Case C-396/02DFDS BVvInspecteur der Belastingdienst – Douanedistrict Rotterdam(Reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands))
            (Common Customs Tarriff  –  Combined Nomenclature  –  Classification  –  Dumpers)
            
      
         
      I –  Preliminary observations
        1.        This case concerns the classification for customs purposes of vehicles which are designed for off-highway use and intended
      for the transport and dumping of materials, and, in particular, are equipped for that purpose with an intricate, versatile
      and precise tipping function.
      
      
      II –  Legal framework
        2.        In the Community, goods are subject to classification for customs tariff and statistical purposes on the basis of the Combined
      Nomenclature (hereinafter: CN), which is based on the international Harmonised System 
         			(2)
         		 (hereinafter: HS). The CN is 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. 
         			(3)
         		 In the period at issue, various versions of Annex I 
         			(4)
         		 were applicable, but they remained the same as far as the tariff headings of Chapter 87, which are at issue in the present
      case, are concerned. In order to explain the individual headings and subheadings in the CN there are various other documents
      which – in so far as is relevant – will also be reproduced below.
      
      
        3.        Extracts from Annex I to the CN, in the versions relevant to the main proceedings, read as follows:
      ‘Chapter 87
      VEHICLES OTHER THAN RAILWAY OR TRAMWAY ROLLING-STOCK, AND PARTS AND ACCESSORIES THEREOF…
      
      
      CN code
               
            
            Description
               
            
         8704
            
            Motor vehicles for the transport of goods:
               
            
         8704 10
            
            Dumpers designed for off-highway use:
            
         …
               
            
                
         8704 10 19 
            
            – – – Other
               
            
         …
               
            
                
             
            – Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel):
            
         8704 21
            
            – – Of a gross vehicle weight not exceeding 5 tonnes:
            
         …
               
            
                
         8704 21 91
            
            – – – – – New
               
            
         ’
      
        4.        The general rules for the interpretation of the CN, which are set forth in Part I of Title I A thereof, provide in particular:
      
      ‘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. …
       3.       When … goods are … 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.’
      
      
        5.        Commission Regulation (EEC) No 396/92 of 18 February 1992 concerning the classification of certain goods in the combined nomenclature 
         			(5)
         		 (hereinafter: Regulation No 396/92) contains an annex in which certain goods are described and assigned to a subheading.
      Reasons are also given in each case. Extracts from the annex read as follows:
      ‘Description of goods:
       3.       A vehicle (length 180 cm, breadth 87 cm, height 100 cm) with a single-cylinder, four-stroke petrol engine (400 cm³ cylinder
      capacity), it consists essentially of a reinforced hopper with a 400 kg payload, and is equipped with manual tipping device
      and controls and rubber tracks. It has an unladen weight of 250 kg, a top speed of 6.8 km/h and develops 5.37 kW. The vehicle
      has three forward speeds and one in reverse. It is intended for transporting and dumping earth, sand, etc. mainly on building
      sites.
       Classification CN code: 
       8704 10 19
       Reasons:
       Classification is determined by the provisions of general rules 1 and 6 for the interpretation of the combined nomenclature,
      as well as the texts of CN codes 8704, 8704 10 and 8704 10 19.
       By reasons of its design, in particular the presence of both a hopper and rubber tracks, and consequent place of use, this
      vehicle cannot be considered to be covered by CN code 8709.
       Description of goods:
       4.       A new vehicle (length 255 cm, breadth 108 cm, height 128 cm) with a single-cylinder, four stroke petrol engine (400 cm³ cylinder
      capacity), consisting essentially of a reinforced hydraulically-tippable flatbed with gates at the tail and either side, it
      has a payload of 800 kg, an open driving cab with controls and rubber tracks. It has a top speed of 8.7 km/h, four forward
      speeds and three in reverse, and develops 7.46 kW. It is intended for transporting and dumping earth, sand, etc. mainly on
      building sites.
       Classification CN code: 
       8704 31 91
       Reasons:
       Classification is determined by the provisions of general rules 1 and 6 for the interpretation of the combined nomenclature,
      as well as the texts of CN codes 8704, 8704 31 and 8704 31 91.
       By reason of its design, in particular the presence of both a tippable flatbed and rubber tracks, and consequent place of
      use, this vehicle cannot be classified under heading 8709.
       The versatility and intricate construction of the tippable flatbed prevent this article being considered as a dumper covered
      by CN code 8704 10.’
      
      
        6.        Extracts from the Explanatory Notes to the Combined Nomenclature of the European Communities (hereinafter: CN Explanatory Notes), 
         			(6)
         		 published by the Commission, read as follows: 
      ‘8704 10 11 to 8704 10 90 Dumpers designed for off-highway use 
       1.       These subheadings mainly cover vehicles fitted with a front or rear tipping body or a bottom-opening body that have been specially
      designed to transport sand, gravel, earth, stones etc., and are intended for use in quarries, mines or on building sites,
      at roadworks, airports and ports. Examples illustrating various types of dumper are given at the end of these notes.
       2.       These subheadings also cover smaller vehicles of the type used on construction sites for carrying earth, rubble, fresh cement
      and concrete, etc. These have a fixed or articulated chassis and two- or four-wheel drive, the dumper hopper being located
      above one axle and the driver’s seat above the other. The driver’s seat is not usually inside the cab.’
       These descriptions are followed by drawings of two motor vehicles for the transport of goods that are described as ‘typical’
      and four other types of special dumper.
      
      
        7.        Under Article 6(1) of the International Convention of 14 June 1983, a committee entitled the Harmonised System Committee,
      composed of representatives from each of the Contracting Parties, was established under the auspices of the Customs Cooperation
      Council. Its functions include, in particular, preparing explanatory notes, classification opinions or other advice as guides
      to the interpretation of the HS. Extracts from the Explanatory Notes to the Harmonised Commodity Description and Coding System (hereinafter: HS Explanatory Notes), published by the Customs Cooperation Council, read as follows:
       Heading 87.04.
      ‘This heading also covers:
       1.       Dumpers; sturdily built vehicles with a tipping or bottom opening body, designed for the transport of excavated or other materials.
      These vehicles, which may have a rigid or articulated chassis, are generally fitted with off-the-road wheels and can work
      over soft ground. Both heavy and light dumpers are included in this group; the latter are sometimes characterised by a two-way
      seat, two seats facing in opposite directions or by two steering wheels, to enable the vehicle to be steered with the driver
      facing the body for unloading.’
       Subheading 87.04.10
      ‘These dumpers can generally be distinguished from other vehicles for the transport of goods (in particular tipping lorries)
      by the following characteristics:
      
        
      –
         the dumper body is made of very strong steel sheets: its front part is extended over the driver’s cab to protect the cab;
            the whole or part of the floor slopes upwards towards the rear;
         
      
      
      …
       It should be noted, however, that certain dumpers are specially designed for working in mines or tunnels, for example, those
      with a bottom-opening body. These have some of the characteristics mentioned above, but do not have a cab or extended protective
      front part of the body.’
      
      
      III –  Facts and main proceedings
        8.        According to the referring court, in 1995 and 1996 the plaintiff in the main proceedings, DFDS BV (hereinafter: DFDS), lodged
      with the defendant in the main proceedings, the competent Netherlands customs office, declarations of release for free circulation
      in respect of so-called  ‘Minitracs’ under heading 8704 10 19 of the CN. However, the customs office took the view that the
      vehicles should be classified under heading 8704 21 91 of the CN and notified DFDS of a decision to that effect. DFDS raised
      an objection to that decision. On 24 December 1997 the customs office took a decision dismissing the objection. DFDS lodged
      an appeal against that decision with the referring court.
      
      
        9.        The order for reference made by the national court on 19 April 2000 contains the following question:
      ‘Are vehicles which are designed for off-highway use and intended for the transport and dumping of materials, and, in particular,
      are equipped for that purpose with an intricate, versatile and precise tipping function, excluded from the scope of the term
      “dumper” contained in heading 8704 10 of the CCT?’
      
      
      IV –  The question referred for a preliminary ruling
        10.      The question essentially seeks to ascertain whether the Minitracs at issue are to be classified for customs purposes as dumpers
      under subheading 8704 10 of the CN or as tipping lorries under one of the other subheadings contained in heading 8704 of the
      CN (motor vehicles for the transport of goods).
      
      
        11.      According to the concurring descriptions of the two Minitrac models in question given by the referring court and the parties,
      the vehicles are designed for use on building sites, i.e. off-highway use, and are intended for the transport and dumping
      of excavated or other materials. The Minitracs differ from conventional dumpers in that they do not have a tub-shaped tipping
      body that can be tipped in only one direction for dumping or a bottom-opening tipping body. Instead, depending on the model,
      the Minitracs have either a flat tipping body with vertical, individually opening side walls, which can be tipped on three
      sides, or a tub-shaped tipping body, which can be rotated by up to 180º using a hydraulic system. These special forms of tipping
      body enable more precise dumping on several sides without the need to turn the vehicle itself.
      Main submissions of the parties
      
        12.      The Netherlands Government  and the Commission  take the view that the Minitracs do not have the characteristics required for dumpers covered by subheading 8704 10 of the
      CN and cannot therefore be classified under subheading 8704 10 19 of the CN.
      
      
        13.      They rely, first of all, on the HS Explanatory Notes on heading 87.04 of the HS. It follows from the characteristics referred
      to in the explanatory note on subheading 87.04.10 for distinguishing between dumpers and tipping lorries that dumpers are
      vehicles with a sturdy, but relatively simple, tipping and loading construction, where the whole or part of the tipping body
      slopes upwards towards the rear for unloading. However, the Minitracs’ tipping bodies have a particularly flexible and manoeuvrable
      construction with intricate mechanisms for tipping on several sides.
      
      
        14.      The CN Explanatory Notes on subheadings 8704 10 11 to 8704 10 90 of the CN also show that dumpers are vehicles with a simple
      construction. According to Point 1 of the CN Explanatory Notes, dumpers should have a hopper that can be unloaded by being
      raised or be fitted with a bottom-opening body. It can also be seen from the attached drawings that the tipping body should
      be tub-shaped, as none of the vehicles shown in the CN Explanatory Notes has a flatbed with vertical side walls. Furthermore,
      the CN Explanatory Notes suggest that the tipping body may be tippable only in one direction in each case (generally to the
      rear).
      
      
        15.      Accordingly, in point 4 of the Annex to Regulation No 396/92, the Commission classified vehicles similar to the Minitracs
      at issue in the present case under subheading 8704 31 91 of the CN and rejected classification under subheading 8704 10 of
      the CN on the ground that ‘the versatility and intricate construction of the tippable flatbed prevent this article being considered
      as a dumper covered by CN code 8704 10’. 
         			(7)
         		
      
        16.     DFDS  takes the view that the Minitracs should be classified as dumpers under subheading 8704 10 of the CN.
      
      
        17.      Classification of motor vehicles for the transport of goods under subheadings contained in heading 8704 of the CN cannot be
      dependent solely on an individual technical characteristic – in this case the particular manoeuvrability of the tipping body.
      It is in fact contingent on the function of the vehicle in question. The Minitracs are used to transport and dump materials
      in off-highway use, with the result that their purpose and use are no different from those of conventional dumpers.
      
      
        18.      DFDS therefore takes the view that the classification made by the Commission in Regulation No 396/92 for the vehicle described
      under point 4 of the Annex is not compatible with the CN. There are therefore doubts as to the legal validity of Regulation
      No 396/92, which cannot therefore form the basis for the classification for customs purposes of similar vehicles.
      
      
        19.      It is apparent from the last sentence of the HS Explanatory Notes on subheading 87.04.10 of the HS that the description of
      dumpers contained therein is certainly not exhaustive. Instead, this classification may be given to vehicles that are designed
      for specific work and, for that reason, have only some of the characteristics mentioned above. 
         			(8)
         		
      
        20.      The classification made by the Commission in point 4 of Regulation No 396/92 is therefore clearly based on economic considerations,
      which are incompatible with the power to adopt regulations to explain the CN (Article 10(1) of the CN). 
         			(9)
         		Assessment
      
        21.      The present case concerns the distinction for customs tariff purposes between dumpers and tipping lorries, which are covered
      for customs tariff purposes by different subheadings in heading 8704 of the CN (motor vehicles for the transport of goods).
      
      
        22.      It is settled case-law that, in the interest 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. 
         			(10)
         		 The relevant HS Explanatory Notes may be an important aid to the interpretation of the scope of the various tariff headings,
      but do not have legally binding force. 
         			(11)
         		
      
        23.      The Netherlands Government and the Commission now apparently assume that the form of the tipping body and installation of
      a simple tipping mechanism (materials can be dumped in only one direction) are necessary conditions for the classification
      of a vehicle as a dumper for customs purposes. The latter condition evidently also forms the basis for the classification
      for customs tariff purposes in point 4 of the Annex to Regulation No 396/92.
      
      
        24.      However, I believe that this view fails to recognise that the form and functionality of the flatbed, the tipping body, is
      just one of several criteria suitable for drawing a general distinction between dumpers and tipping lorries. In my opinion,
      this criterion is certainly not the only important one either. This follows from the following considerations:
      
      
        25.      It can be seen from the structure of the CN that within heading 8704 of the CN (motor vehicles for the transport of goods)
      there is a separate subheading (8704 10 of the CN) for vehicles that can be described as ‘dumpers’. Tipping lorries, on the
      other hand, are not mentioned separately and must therefore be classified in one of the general subheadings for vehicles (‘other’)
      (8704 21 to 8704 32 of the CN). The latter subheadings differ according to the type of motorisation and/or the weight of the
      vehicle. Lastly, subheading 8704 90 00 of the CN is a heading that covers vehicles that are neither dumpers nor other vehicles
      with the relevant abovementioned technical characteristics.
      
      
        26.      The structure of the tariff headings within heading 8704 of the CN for motor vehicles for the transport of goods shows that
      subheading 8704 10 of the CN relating to dumpers is a specific heading for vehicles with a certain purpose, off-highway tipping
      work. However, none of the other subheadings differ according to purpose, but only according to certain technical characteristics
      (motorisation and weight). This shows that the emphasis in the classification of dumpers is on the purpose of the vehicles
      and not on the form or functionality of the tipping body.
      
      
        27.      This distinction based on purpose is also consistent with the CN Explanatory Notes and the HS Explanatory Notes on subheading
      8704 10.
      
      
        28.      The descriptions contained in the CN Explanatory Notes refer to vehicles that have been manufactured ‘specially’ to transport
      materials in quarries, mines or on building sites, that is to say special vehicles designed from the outset for off-highway
      use. The description of the tipping mechanism applies only to conventional dumpers that can be unloaded only to one side.
      However, the introductory word ‘mainly’ does not, in my opinion, automatically exclude vehicles with a technologically more
      advanced tipping body from classification as dumpers.
      
      
        29.      In the HS Explanatory Notes, a distinction is drawn between dumpers and tipping lorries on the basis of characteristics that
      for the most part apply to the contested Minitracs. Nevertheless, the description of the tipping body corresponds to the conventional
      form. However, the HS Explanatory Notes on subheading 87.04.10 of the HS merely state that dumpers can ‘generally’ be distinguished
      from other vehicles by the characteristics mentioned therein. In addition, it is pointed out in the last sentence that dumpers
      designed for special purposes (in all cases for off-highway use) are still dumpers within the meaning of subheading 87.04.10 of
      the HS, even if they have only ‘some of the characteristics mentioned above’.
      
      
        30.      It cannot therefore be inferred from the CN Explanatory Notes or the HS Explanatory Notes that the form or the functionality
      of the tipping body is the  decisive characteristic for classification of a vehicle as a dumper. The Explanatory Notes in fact suggest that technical
      adjustments with respect to the performance of dumpers’ tasks do not preclude classification under subheading 8704 10 of the
      CN. 
      
      
        31.      It may be the case that conventional dumpers are formally distinguished from tipping lorries primarily in that dumpers’ tipping
      bodies are mainly tub-shaped and tipping lorries’ tipping bodies are flat with four vertical side walls. However, the different
      forms of tipping body fulfil the different intended purposes. A tipping lorry is designed primarily for highway transport
      and dumping is thus of secondary importance. Conventional dumpers, on the other hand, are intended primarily for the transport
      and dumping of materials in off-highway use. If a vehicle – like one of the Minitracs – has a flat body that is tippable in
      three directions and individually opening vertical side walls, it is not really comprehensible why the tipping body – despite
      its form – should not also serve for loading and dumping materials in off-highway use, but with the aim of more precise  loading and dumping.
      
      
        32.      It is therefore also incomprehensible why a technically more intricate and sophisticated mechanism, which enables the vehicle
      better to fulfil its purpose, should preclude this vehicle from classification as a dumper. 
      
      
        33.      The assumption also made by the Commission and the Netherlands Government that the particular manoeuvrability of the Minitracs’
      tipping body is a decisive criterion to suggest that dumpers should not be classified as dumpers for customs tariff purposes
      is refuted by the fact that the possibility of dumping in only one direction is a common factor shared by conventional dumpers
      and tipping lorries and, for this very reason, should be ruled out as a distinguishing criterion. Since – as explained above 
         			(12)
         		 – it is apparent from the structure of heading 8704 of the CN that the special purpose of the dumpers (off-highway tipping
      work) is the decisive criterion for classification under subheading 8704 10 of the CN, the particular manoeuvrability of the
      tipping body, which merely constitutes a technical advance 
         			(13)
         		 (more precise loading and dumping of materials under restricted marshalling conditions), cannot be a criterion for precluding
      classification as a dumper.
      
      
        34.      The purpose of vehicles like the Minitracs therefore suggests classification as a dumper under subheading 8704 10 of the CN
      and neither the form nor the manoeuvrability of their respective tipping bodies can justify their exclusion from such classification.
      
      
        35.      Therefore, as far as point 4 of the Annex to Regulation No 396/92 is concerned, it must be stated that, on the basis of the
      interpretation of the CN given above, the regulation cannot serve as the basis for a contrary interpretation of subheading
      8704 10 of the CN. Rather, it must be assumed that Regulation No 396/92 is not valid in this respect because it goes beyond
      the scope of the legal base (Article 9(1) of the CN). 
         			(14)
         		
       
      V –  Conclusion
        36.      In the light of these considerations, it is therefore suggested that the Court give the following answer to the question asked
      by the referring court:
       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 in the versions that are relevant to the main proceedings should be interpreted as meaning that vehicles which
      are designed for off-highway use and intended for the transport and dumping of materials, and, in particular, are equipped
      for that purpose with an intricate, versatile and precise tipping function, are covered by the scope of the term ‘dumper’
      contained in heading 8704 10 of the Combined Nomenclature.
      
      
       1 –
         
         Original language: German.
      
      2 –
         
         The Harmonised Commodity Description and Coding System, introduced by the International Convention of 14 June 1983, approved
            for the Community by 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.
            
         
      
      3 –
         
         OJ 1987 L 256, p. 1.
            
         
      
      4 –
         
         Commission Regulation (EC) No 3115/94 of 20 December 1994 amending Annexes I and II to Council Regulation (EEC) No 2658/87
            on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1994 L 345, p. 1) and Commission Regulation
            (EC) No 3009/95 of 22 December 1995 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical
            nomenclature and on the Common Customs Tariff (OJ 1995 L 319, p. 1).
            
         
      
      5 –
         
         OJ 1992 L 44, p. 9.
            
         
      
      6 –
         
         OJ 1994 C 342, p. 1.
            
         
      
      7 –
         
         On this basis, the Bundesfinanzhof (German Federal Finance Court) also rejected classification of the Minitracs at issue under
            subheading 8704 10 of the CN, likewise relying on the nature of the Minitracs’ tipping mechanism, which was not like a typical
            hopper.
            
         
      
      8 –
         
         On this basis, the contested Minitracs would also be classified as dumpers under subheading 87.04.10 of the HS in non-member
            countries such as Australia, Canada, Japan, the Czech Republic and the United States of America.
            
         
      
      9 –
         
         Case C-267/94 France v Commission [1995] ECR I-4845.
            
         
      
      10 –
         
         Case C-459/93 Thyssen Haniel Logistic [1995] ECR I-1381, Joined Cases C-106/94 and C-139/94 Colin and Dupré [1995] ECR I-4759, Case C-338/95 Wiener S.I. [1997] ECR I-6495, Case C-339/98 Peacock [2000] ECR I-8947, Case C-479/99 CBA Computer [2001] ECR I-4391, Case C-276/00 Turbon [2002] ECR I-1389, Case C-259/00 Biochem [2002] ECR I-2461 and Joined Cases C-260/00 to C-263/00 Lohmann [2002] ECR I-10045.
            
         
      
      11 –
         
         Case C-35/93 Develop Dr Eisbein [1994] ECR I-2655 and Joined Cases C-106/94 and C-139/94 (cited in footnote 10).
            
         
      
      12 –
         
         See above, point 25 et seq.
            
         
      
      13 –
         
         See, in this respect, the judgment in Lohmann (cited in footnote 10), paragraph 42.
            
         
      
      14 –
         
         This includes the following provision: ‘Measures relating to the matters set out below shall be adopted in accordance with
            the procedure defined in Article 10: (a) application of the combined nomenclature … concerning in particular: – the classification
            of goods in the nomenclatures …’.