Intermodal Transports BV v Staatssecretaris van Financiën.
Date: 2005-09-15
27. It should be stated, first, that the referring court with good reason took the view that it follows from Article 12 of the CCC that a BTI creates rights only for the holder and in respect only of the goods described therein. As is clear from paragraph 23 of this judgment, that court thus rightly deduced that, in the dispute pending before it, Intermodal did not have any personal right to rely on the BTI issued by the Finnish authorities.
29. In that regard, it should be observed, in particular, that the obligation to refer a question to the Court for a preliminary ruling laid down by the third paragraph of Article 234 EC in respect of national courts or tribunals against whose decisions there is no judicial remedy is intended in particular to prevent a body of national case-law that is not in accordance with the rules of Community law from being established in a Member State (see, in particular, Case C-393/98 Gomes Valente [2001] ECR I-1327, paragraph 17, and case-law cited).
30. This objective is secured when, subject to the limits accepted by the Court (Case 283/81 Cilfit and Others [1982] ECR 3415), supreme courts are bound by that obligation to refer as is any other national court or tribunal against whose decisions there is no judicial remedy (see Case C-99/00 Lyckeskog  [2002] ECR I‑4839, paragraphs 14 and 15, and case-law cited).
33. Secondly, in respect of national courts or tribunals against whose decisions there is no judicial remedy under national law, it should be remembered that the third paragraph of Article 234 EC must, following settled case-law, be interpreted as meaning that such courts or tribunals are required, where a question of Community law is raised before them, to comply with their obligation to make a reference, unless they have established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.
34. The fact that the customs authorities of another Member State have issued to a person not party to the dispute before such a court a BTI for specific goods, which seems to reflect a different interpretation of the CN headings from that which that court considers it must adopt in respect of similar goods in question in that dispute, most certainly must cause that court to take particular care in its assessment of whether there is no reasonable doubt as to the correct application of the CN, taking account, in particular, of the three criteria cited in the preceding paragraph.
35. On the other hand, contrary to the contentions of Intermodal and the Commission, and as the Netherlands and Austrian Governments have rightly claimed, the existence of such a BTI cannot, in itself, prevent the national court from concluding, after an examination fulfilling the requirements noted in paragraphs 33 and 34 of this judgment, that the correct application, in a given case, of a CN tariff heading is so obvious as to leave no scope, particularly in the light of the settled interpretative criteria identified by the Court with regard to classification in the CN, for any reasonable doubt as to the manner in which the question raised is to be resolved or prevent it, in such a case, from deciding to refrain from seeking a preliminary ruling from the Court and to take upon itself the responsibility for resolving that question ( Cilfit and Others , cited above, paragraph 16).
36. First, any divergent application of the rules in certain Member States cannot influence the interpretation of the Common Customs Code which is based on the wording of the tariff headings (Case C-120/90 Post [1991] ECR I-2391, paragraph 24).
37. Secondly, and without prejudice to the lessons to be drawn from the judgment in Case C-224/01 Köbler [2003] ECR I-10239, the case-law as stated in Cilfit and Others  gives the national court sole responsibility for determining whether the correct application of Community law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court of Justice a question concerning the interpretation of Community law which has been raised before it (Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 35).
38. Thirdly, that obligation to refer imposed by the third paragraph of Article 234 EC is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice (see, inter alia, Cilfit and Others , paragraph 7, Case C-337/95 Parfums Christian Dior  [1997] ECR I-6013, paragraph 25, and Gomes Valente , cited above, paragraph 17). As has been noted in paragraph 29 of the present judgment, that obligation is intended in particular to prevent a body of national case-law that is not in accordance with the rules of Community law from being established in any Member State.
39. In that respect, the Court has, admittedly, held that, before the national court or tribunal comes to the conclusion that the correct application of a provision of Community law is so obvious that there is no scope for any reasonable doubt as to the manner in which the question raised is to be resolved and therefore refrains from submitting a question to the Court for a preliminary ruling, it must in particular be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice ( Cilfit and Others, paragraph 16). On the other hand, such a court cannot be required to ensure that, in addition, the matter is equally obvious to bodies of a non-judicial nature such as administrative authorities.
42. First, under Article 9 and Article 12(5)(a)(iii) of the CCC, a BTI may be revoked if one or more of the conditions laid down for its issue were not or are no longer fulfilled. It follows that, where the customs authorities take the view that their initial interpretation is wrong, as the result of an error of assessment or evolution in the thinking in relation to tariff classification, they are entitled to consider that one of the conditions laid down for the issue of a BTI is no longer fulfilled and to revoke that BTI with a view to amending the tariff classification of the goods concerned (see, to that effect, Joined Cases C-133/02 and C-134/02 Timmermans Transport and Hoogenboom Production [2004] ECR I-1125, paragraphs 21 to 25).
44. Finally, assuming that the divergences thus observed endure despite everything, proceedings could be brought before the Court on the basis of Article 226 EC. It should be remembered in particular that an administrative practice can be the subject-matter of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, inter alia, Case C-387/99 Commission  v Germany  [2004] ECR I-3751, paragraph 42, and Case C-494/01 Commission v Ireland [2005] ECR I-0000, paragraph 28).
47. According to settled case-law, 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 notes to the sections or chapters (see, inter alia, Case C-396/02 DFDS  [2004] ECR I-8439, paragraph 27, and case-law cited).
48. The explanatory notes to the CN and those to the HS are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see, inter alia, DFDS , cited above, paragraph 28). The content of those notes must therefore be compatible with the provisions of the CN and may not alter the meaning of those provisions (see, in particular, Case C-280/97 ROSE Electrotechnik  [1999] ECR I-689, paragraph 23, and Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 20).
55. According to the Court’s case-law, the intended use of a product may constitute an objective criterion in relation to tariff classification if it is inherent in the product, and such inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, inter alia, Case C-467/03 Ikegami [2005] ECR I-0000, paragraph 23, and case-law cited).