Intermodal Transports BV v Staatssecretaris van Financiën.

• Jurisdiction: European Union
• Celex Number: 62003CC0495
• ECLI: ECLI:EU:C:2005:215
• Docket Number: C-495/03
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 12 April 2005

OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 12 April 2005 (1)

Case C-495/03

Intermodal Transports BV

v

Staatssecretaris van Financiën

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))

(Reliance before a national court on a binding tariff information issued to a third party by a customs authority of another Member State in respect of a similar product – Divergent classification in the Combined Nomenclature by the national court – Uniform interpretation and application of Community law – Article 234 EC – Obligation for national courts to make a reference for a preliminary ruling – Conditions – Courts other than those of last instance and courts of last instance – Judgment in Foto-Frost and judgment in Cilfit – Common Customs Tariff – Combined Nomenclature – Tariff classification – Heading 8709)

Table of contents

I – Introduction

II – Legal Framework

A – Classification in the Combined Nomenclature

B – Binding tariff information

1. The Customs Code

2. The implementing regulation

III – Facts and procedure

IV – Answers to the questions referred

A – The first question

1. Summary of the submissions of the interested parties

2. Legal Assessment

a) Introductory remarks

i) Overview of the obligation for national courts to make a reference for a preliminary ruling

ii) Determination of the issues arising from the question referred

b) Is there an obligation to make a reference for a preliminary ruling in accordance with the rule in Foto-Frost?

c) Is there an obligation for a court of last instance to make a reference for a preliminary ruling in the light of the judgment in Cilfit?

i) General observations on the judgment in Cilfit

ii) Post Cilfit?

iii) The specific characteristics of this case – is there an automatic obligation to make a reference for a preliminary ruling?

iv) Is there an obligation to make a reference for a preliminary ruling by virtue of the principle of equal treatment?

v) Conclusions for this case arising from the judgment in Cilfit

B – The second question

1. Summary of the submissions of the interested parties

2. Assessment

V – Conclusion

I – Introduction

1. The key question which must be answered in this reference for a preliminary ruling, made by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) by a judgment of 21 November 2003 and received at the Court Registry on 24 November 2003, is whether a national court is required to refer a question to the Court of Justice for a preliminary ruling in a case where a party to a dispute invokes a classification, given in a binding tariff information issued by a customs authority of another Member State to a third party in respect of a similar product, which the national court considers to be at variance with the Combined Nomenclature (hereinafter ‘the CN’) and from which it therefore intends to depart.

2. The referring court also asks whether vehicles such as those at issue in the main proceedings must be classified under heading 8709 of the CN contained 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, (2) as amended by Commission Regulation (EC) No 2261/98 of 26 October 1998. (3)

3. These questions have been raised in an appeal on a point of law before the Hoge Raad der Nederlanden in which Intermodal Transports B.V. of Amsterdam, a company incorporated under Netherlands law (hereinafter ‘Intermodal’), is appealing against a judgment by which the Gerechtshof te Amsterdam (Regional Court of Appeal, Amsterdam) upheld the customs classification under subheading 8701 20 10 of the CN, made by the Netherlands customs authorities and disputed by Intermodal, of certain motor vehicles described as ‘Magnum ET-120 Terminal Tractors’.

II – Legal Framework

A – Classification in the Combined Nomenclature

4. For tariff and statistical purposes, products in the Community are subject to classification under the CN, introduced by Regulation No 2658/87, which, in turn, is based on the International Harmonised Commodity Description and Coding System (4) (hereinafter ‘the HS’).

5. Chapter 87 of the CN, which is relevant to this case, concerns ‘vehicles other than railway or tramway rolling-stock, and parts and accessories thereof’.

6. Pursuant to Note 2 to that chapter, ‘“tractors” means vehicles constructed essentially for hauling or pushing another vehicle, appliance or load, whether or not they contain subsidiary provision for the transport, in connection with the main use of the tractor, of tools, seeds, fertilisers or other goods’.

7. Heading 8701 of the CN refers to ‘[t]ractors (other than tractors of heading No 8709)’; it includes, inter alia, the following subheadings:

8701 20 – Road tractors for semi-trailers:

– 8701 20 10 − new

– 8701 20 90 − used

8. Heading 8709 of the CN concerns, inter alia, ‘[w]orks trucks, self-propelled, not fitted with lifting or handling equipment, of the type used in factories, warehouses, dock areas or airports for short distance transport of goods …’.

9. The Explanatory Notes to the Harmonised Commodity Description and Coding System on which the CN is based (hereinafter ‘the HS Explanatory Notes’), contain, inter alia, the following clarifications with regard to heading 8709:

‘… The main features common to the vehicles of this heading which generally distinguish them from the vehicles of heading 87.01, 87.03 or 87.04 may be summarised as follows:

(1) Their construction and, as a rule, their special design features make them unsuitable for the transport of passengers or for the transport of goods by road or other public ways.

(2) Their top speed when laden is generally not more than 30 to 35 km/h.

(3) Their turning radius is approximately equal to the length of the vehicle itself.

Vehicles of this heading do not usually have a closed driving cab, the accommodation for the driver often being no more than a platform on which he stands to steer the vehicle. Certain types may be fitted with a protective frame, metal screen, etc., over the driver’s seat.

The vehicles of this heading may be pedestrian controlled. …

Tractors of the type used on railway station platforms are designed primarily to tow or push other vehicles, e.g., small trailers. They do not themselves carry goods, and are generally lighter and less powerful than the tractors of heading 87.01. Tractors of this type may also be used on wharfs, in warehouses, etc. …’

B – Binding tariff information

10. The issuing of ‘binding tariff information’ by the national customs authorities is governed by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, (5) as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (6) (hereinafter ‘the Customs Code’), and by Commission Regulation (EEC) No 2454/93 of 2 July 1993 (7) laying down provisions for the implementation of the Customs Code (hereinafter ‘the implementing regulation’), as amended by Commission Regulation (EC) No 12/97 of 18 December 1996. (8)

1. The Customs Code

11. Article 4 of the Customs Code reads, inter alia, as follows:

‘For the purposes of this Code, the following definitions shall apply …:

5. “Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons; this term covers, inter alia, binding information within the meaning of Article 12; …’.

12. Article 12(1) to (5) of the Customs Code provides, inter alia:

‘1. The customs authorities shall issue binding tariff information or binding origin information on written request, acting in accordance with the committee procedure.

2. Binding tariff information or binding origin information shall be binding on the customs authorities as against the holder of the information only in respect of the tariff classification or determination of the origin of goods.

...

4. Binding information shall be valid for a period of six years in the case of tariffs and three years in the case of origin from the date of issue. By way of derogation from Article 8, it shall be annulled where it is based on inaccurate or incomplete information from the applicant.

5. Binding information shall cease to be valid:

(a) in the case of tariff information:

(i) where a regulation is adopted and the information no longer conforms to the law laid down thereby;

(ii) where it is no longer compatible with the interpretation of one of the nomenclatures referred to in Article 20(6):

– at Community level, by reason of amendments to the explanatory notes to the combined nomenclature or by a judgment of the Court of Justice of the European Communities,

…

(iii) where it is revoked or amended in accordance with Article 9, provided that the revocation or amendment is notified to the holder.

The date on which binding information ceases to be valid for the cases cited in (i) and (ii) shall be the date of publication of the said measures …

...’

2. The implementing regulation

13. Title II of the implementing regulation contains a series of provisions specifying the legal effect of binding tariff information and the procedure to be applied in relation to such information.

14. Article 9(1) thus provides for cases of inconsistencies in binding information:

‘Where different binding information exists:

– the Commission shall, on its own initiative or at the request of the representative of a Member State, place the item on the agenda of the Committee for discussion at the meeting to be held the following month or, failing that, the next meeting,

– in accordance with the Committee procedure, the Commission shall adopt a measure to ensure the uniform application of nomenclature or origin rules, as applicable, as soon as possible and within...