Kubota (UK) Limited and EP Barrus Limited v Commissioners for Her Majesty's Revenue & Customs.
Date: 2018-02-22
18


In that regard, it is necessary to state at the outset that, in accordance with settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling and the relevance of the questions which it submits to the Court. Consequently, where questions submitted concern the interpretation of EU law, the Court is bound, in principle, to give a ruling (judgment of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 29 and the case-law cited).
19


In the context of the instrument of cooperation between the Court of Justice and national courts that is established by Article 267 TFEU, questions concerning EU law enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court of Justice, are not satisfied or where it is quite obvious that the interpretation of a provision of EU law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 50 and the case-law cited).
23


It must be recalled, as a preliminary point, that according to the Court’s settled case-law, the Council of the European Union has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, broad discretion to define the subject matter of tariff headings falling to be considered for the classification of particular goods. However, the Commission’s power to adopt the measures referred to in Article 9 of Regulation No 2658/87 does not authorise it to alter the subject-matter and the scope of the tariff headings (judgment of 4 March 2004, Krings, C‑130/02, EU:C:2004:122, paragraph 26, and the case-law cited).
25


In that regard, the settled case-law of the Court states that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (judgments of 27 April 2006, Kawasaki Motors Europe, C‑15/05, EU:C:2006:259, paragraph 38; 29 October 2009, Dinter and Europol Frost-Food, C‑522/07 and C‑65/08, EU:C:2009:663, paragraph 29, and of 22 December 2010, Premis Medical, C‑273/09, EU:C:2010:809, paragraph 42).
26


Furthermore, 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 (judgment of 22 March 2017, GROFA and Others, C‑435/15 and C‑666/15, EU:C:2017:232, paragraph 40).
28


It must be recalled that the goods under subheading 8704 10 are, in accordance with the wording of that subheading, ‘dumpers designed for off-highway use’. Therefore, the wording requires that a vehicle meets two conditions to be classifiable thereunder, namely that it is a ‘dumper’ and is designed for use off-highway (judgment of 16 September 2004, DFDS, C‑396/02, EU:C:2004:536, paragraph 31).
31


In that regard, it must be recalled that the subheading 8704 10 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).
36


In addition, that vehicle, given its objective technical characteristics and properties cannot be regarded as the same as the vehicles under subheading 8704 10 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).