Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam.
Date: 2006-04-27
15. Regulation No 2658/87 authorises the Commission of the European Communities to clarify the content of a tariff heading. Article 9(1) of that regulation provides:
‘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 and the [integrated tariff of the European Communities] concerning in particular:
– the classification of goods in the nomenclatures referred to in Article 8,
– explanatory notes;
(b) amendments to the Combined Nomenclature to take account of changes in requirements relating to statistics or to commercial policy;
…
(d) amendments to the Combined Nomenclature and adjustments to duties in accordance with decisions adopted by the Council or the Commission;
(e) amendments to the Combined Nomenclature intended to adapt it to take account of technological or commercial developments or aimed at the alignment or clarification of texts;
…’
35. At the outset it must be recalled that the Council has conferred upon the Commission, acting in cooperation with the customs experts of the Member States, a 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 mentioned in Article 9(1)(a), (b), (d) and (e) of Regulation No 2658/87 does not authorise it to alter the subject-matter of the tariff headings which have been defined on the basis of the HS established by the Convention whose scope the Community has undertaken, under Article 3 thereof, not to modify (see Case C-267/94 France  v Commission  [1995] ECR I‑4845, paragraphs 19 and 20; Case C-309/98 Holz Geenen [2000] ECR I-1975, paragraph 13; and Joined Cases C-304/04 and C‑305/04 Jacob Meijer and Eagle International Freight  [2005] ECR I-6251, paragraph 22).
36. Moreover, although the WCO opinions classifying goods in the HS do not have legally binding force, they amount, as regards the classification of those goods in the CN, to indications which are an important aid to the interpretation of the scope of the various tariff headings of the CN (see, to that effect, the order in Case C‑206/03 SmithKline Beecham  [2005] ECR I-415, paragraph 26).
37. Likewise, 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, in particular, Case C-396/02 DFDS  [2004] ECR I-8439, 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 Elektrotechnik  [1999] ECR I-689, paragraph 23; Case C-42/99 Eru Portuguesa  [2000] ECR I-7691, paragraph 20; and Case C‑495/03 Intermodal Transports  [2005] ECR I-8151, paragraph 48).
38. Lastly, according to the Court’s 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, in particular, DFDS , paragraph 27, and Intermodal Transports , paragraph 47).
43. With regard to heading 87.03, the HS explanatory note states in essence that this heading covers motor vehicles of various types (including amphibious motor vehicles) designed for the transport of persons; the vehicles may have any type of motor and have certain technical characteristics such as motor-car-type steering based on the Ackerman principle.
54. It is settled case-law that 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, in particular, Case C-467/03 Ikegami  [2005] ECR I-2389, paragraph 23).