CJ, 28-11-2024, nr. C-129/23, nr. C-567/23

Article 20 of the United Nations Convention on the Rights of Persons with Disabilities, concluded in New York on 13 December 2006 and approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35) (‘the UN Convention’), entitled ‘Personal mobility’, provides:

By decision of 25 June 2024, Cases C-129/23 and C-567/23 were joined for the purposes of the judgment.

By the two questions in Case C-129/23 and by the sole question in Case C-567/23, which it is appropriate to examine together, the referring courts ask, in essence, whether heading 8713 of the CN must be interpreted as meaning that it covers a product such as a four-wheel vehicle with an electric motor, which has one seat, which is adjustable and rotating and fitted with armrests, a separate steering column and an automatic electro-magnetic brake on the rear wheels, which are designed to prevent tipping, which is controlled with the use of handlebars of an oval, closed shape, mounted on the steering column, and of which the maximum speed is over 10 km/h, without however, surpassing 16 km/h.

As a preliminary point, it must be noted that when the Court is requested to give a preliminary ruling on a matter of classification for customs purposes, its task is to provide the national court with guidance on the criteria which will enable that court to classify the goods at issue in the main proceedings correctly in the CN, rather than to effect that classification itself. That description of those goods is the result of a purely factual finding which it is not for the Court to make in the context of a reference for a preliminary ruling (judgment of 10 March 2021, Samohýl group, C-941/19, EU:C:2021:192, paragraph 28 and the case-law cited).

Moreover, 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 section or chapter notes (judgment of 10 March 2021, Samohýl group, C-941/19, EU:C:2021:192, paragraph 29 and the case-law cited). The intended use of the product may constitute an objective criterion for classification if it is inherent to such a product, and that inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties (judgment of 26 May 2016, Invamed Group and Others, C-198/15, EU:C:2016:362, paragraph 22 and the case-law cited).

In the first place, heading 8713 of the CN refers to ‘carriages for disabled persons, whether or not motorised or otherwise mechanically propelled’.

The Court has already interpreted that definition of ‘disabled persons’ as meaning that it designates persons affected by a non-marginal limit on their ability to walk, the duration of that limitation and the possible presence of other limitations relating to the capacities of those persons being irrelevant. In addition, the expression ‘for disabled persons’ was interpreted as meaning that the vehicle concerned was intended solely for disabled persons. In that regard, it was stated that the fact that such a vehicle may, in some circumstances, be used by non-disabled persons is irrelevant to the tariff classification of such vehicles under heading 8713 of the CN, since by reason of their original purpose, those vehicles are unsuitable for other persons who do not suffer disabilities (see, to that effect, judgment of 26 May 2016, Invamed Group and Others, C-198/15, EU:C:2016:362, paragraphs 26, 27 and 34).

The tariff classification must therefore take account not of the possible use, but only of the intended use, determined on the basis of the objective characteristics and properties of the product at the date of its import (see, to that effect, judgment of 26 May 2016, Invamed Group and Others, C-198/15, EU:C:2016:362, paragraph 24).

Furthermore, the Court has found that it is clear from the Explanatory Note to the CN relating to heading 8713 that the decisive criterion for classification under that heading is the special design of the vehicle for disabled persons and that, accordingly, vehicles specifically designed for the transport of disabled persons come under that heading. That explanatory note states in the last paragraph that, conversely, motor-driven scooters (mobility scooters) fitted with a separate, adjustable steering column are excluded from that heading and come under heading 8703 of the CN (see, to that effect, judgment of 22 December 2010, Lecson Elektromobile, C-12/10, EU:C:2010:823, paragraphs 19 et 20).

In the present case, it is common ground that the SELVO vehicles have a separate steering column on which the handlebars and controls for driving are situated, that their maximum speed exceeds 10 km/h and that they are equipped with a platform on which the driver can place his or her feet, as well as an anti-tipping system. Furthermore, as the Commission noted in essence in its written observations submitted in Cases C-129/23 and C-567/23, it appears, in the light of the description of the SELVO vehicle in the orders for reference in those cases, that that vehicle was designed, inter alia, for older persons suffering from minor health problems, whose ability to walk is marginally limited. That vehicle is therefore not solely designed for the transport of disabled persons, within the meaning of case-law cited in paragraph 41 above, without prejudice to the fact that it may, in some circumstances, be used by that category of persons.

It follows from the foregoing that heading 8713 of the CN cannot be interpreted as meaning that it covers, as a vehicle intended solely for disabled persons, a product such as that described in paragraph 37 above, taking into account the objective characteristics and properties of those goods.

In the second place, it is important to note, first, that Regulation No 718/2009, applicable during the period in which the imports at issue in the main proceedings in Case C-129/23 took place, classifies two similar vehicles to the SELVO vehicle under subheading 8703 10 18 of the CN. Secondly, by referring expressly to the judgment of 26 May 2016, Invamed Group and Others (C-198/15, EU:C:2016:362), Implementing Regulation 2021/1367, applicable to the imports at issue in the main proceedings in Case C-567/23, classifies a vehicle identical to the SELVO vehicle under the same subheading.

A regulation for the classification of goods, such as those referred to in the preceding paragraph, is adopted by the Commission where the classification within the CN of a particular product is such as to give rise to difficulty or to be a matter for dispute. Such a regulation, however, is of general application since it does not apply to an individual trader but, in general, to products identical to the one thus classified (judgment of 26 April 2017, Stryker EMEA Supply Chain Services, C-51/16, EU:C:2017:298, paragraph 59 and the case-law cited).

As the Court has already held, it is clear from the titles of heading 8703 and heading 8713 of the CN that the difference between them results from the fact that the first covers means of transport for persons in general, whereas the second applies specifically to means of transport for disabled persons (judgments of 22 December 2010, Leckon Elektromobile, C-12/10, EU:C:2010:823, paragraph 18, and of 26 May 2016, Invamed Group and Others, C-198/15, EU:C:2016:362, paragraph 21).

The fact that goods such as the SELVO vehicle may be used, where appropriate, by disabled persons or even be adapted for use by disabled persons does not affect the tariff classification of such vehicles under heading 8703 of the CN, since they are suitable for being used for a number of other activities by persons who do not suffer from any disability, but who for one reason or another prefer to travel short distances other than on foot, like golfers or persons going shopping (see, to that effect, judgment of 26 May 2016, Invamed Group and Others, C-198/15, EU:C:2016:362, paragraph 25 and the case-law cited).

Since heading 8703 of the CN has already been interpreted by the Court as meaning that it covers, as a vehicle intended for the transport of persons, goods which — as the SELVO vehicles do — have characteristics such as those referred to in paragraph 37 above (judgment of 22 December 2010, Lecson Elektromobile, C-12/10, EU:C:2010:823, paragraph 24), and since, as the referring court observes in Case C-129/23, those vehicles are not identical to the vehicles subject to Regulation No 718/2009, but only similar to them, it is not necessary to apply, by analogy, that regulation to the SELVO vehicles for the purposes of their classification under that tariff heading (see, to that effect, judgment of 12 April 2018, Medtronic, C-227/17, EU:C:2018:247, paragraph 59).

As regards the referring court's arguments in Case C-567/23 and those of BG Technik seeking not to apply Implementing Regulation 2021/1367 to the SELVO vehicle, the following should be noted.

First, as regards the argument alleging that that regulation was adopted for the specific case of BG Technik, which, on the one hand, would prevent the latter from indicating the features and characteristics allowing disabled persons to use its vehicles and, on the other hand, would not comply with the requirement for such a regulation to be general, it is sufficient to note, as the Czech Government did in its written observations submitted in Case C-567/23, that the purpose of a classification regulation is to describe in specific terms the goods that it seeks to classify in the CN, without leaving any room for a subjective appreciation of the goods, lest it be deprived of practical effect.

Secondly, as regards the argument that the SELVO vehicle should come under heading 8713 of the CN, in accordance with the documents issued by the Czech authorities, such as the technical approval decision by from the Ministry of Transport of the Czech Republic, the Court notes that the way in which a product is treated pursuant to a national regulation pursuing objectives other than the CN is not decisive for the purposes of the classification in the CN. That classification must, inter alia, maintain the coherence between the interpretation of the CN and that of the HS, the HS having been established by an international convention to which the European Union is a contracting party (see, to that effect, judgment of 15 December 2016, LEK, C-700/15, EU:C:2016:959, paragraph 36).

Thirdly, while the case-law of the Czech courts following the judgment of 26 May 2016, Invamed Group and Others (C-198/15, EU:C:2016:362), led to the classification of the SELVO vehicle under heading 8713 of the CN, that case-law, as is apparent from the order for reference in Case C-567/23, was based in particular on the documents of the national authorities referred to in the preceding paragraph; those documents, as stated by the Czech Government in its written observations submitted in that case, are based on the importer's or the manufacturer's description of the product. However, the tariff classification must take into account, as is apparent from the case-law cited in paragraph 39 above, the intended use inherent to the goods at issue. That inherent character must be assessed on the basis of their objective characteristics and properties.

Fourthly, in so far as BG Technik complains, in its written observations submitted in Case C-567/23, that the Commission, prior to the adoption of Implementing Regulation 2021/1367, breached the principle of sincere cooperation, enshrined in Article 4(3) TEU, by not properly taking into account the national case-law referred to in the preceding paragraph, it is sufficient to note that the Commission is not bound by the case-law of a Member State when it adopts a classification regulation. Such a regulation is intended to remedy a situation of legal uncertainty which may in particular exist in the event of case-law or administrative divergences between the Member States concerning the tariff classification of the same product (see, to that effect, judgment of 19 December 2019, Amoena, C-677/18, EU:C:2019:1142, paragraph 58).

Fifthly, as regards the argument that the application of Implementing Regulation 2021/1367 to the SELVO vehicle would be contrary to the UN Convention, it is sufficient to note that, inasmuch as that vehicle is not intended solely for disabled persons, it cannot be argued that the imposition of customs duties on that vehicle would not comply with the rights of those persons. Furthermore, that convention, and in particular Article 20 thereof, does not require that the vehicles whose purpose is to aid mobility be exempt from customs duties.

In the light of the foregoing reasons, the answer to the questions referred in Case C-129/23 and the sole question referred in Case C-527/23 is that heading 8713 of the CN must be interpreted as meaning that it does not cover a product such as a four-wheel vehicle with an electric motor, which has one seat, which is adjustable and rotating and fitted with armrests, a separate steering column and an automatic electro-magnetic brake on the rear wheels, which are designed to prevent tipping, which is controlled with the use of handlebars of an oval, closed shape, mounted on the steering column, and of which the maximum speed is over 10 km/h, without however, surpassing 16 km/h.

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring courts, the decision on costs is a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Heading 8713 of the Combined Nomenclature 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, in the version resulting from Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012, Commission Implementing Regulation (EU) No 1001/2013 of 4 October 2013, Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014, and Commission Implementing Regulation (EU) 2020/1577 of 21 September 2020,

must be interpreted as meaning that it does not cover a product such as a four-wheel vehicle with an electric motor, which has one seat, which is adjustable and rotating and fitted with armrests, a separate steering column and an automatic electro-magnetic brake on the rear wheels, which are designed to prevent tipping, which is controlled with the use of handlebars of an oval, closed shape, mounted on the steering column, and of which the maximum speed is over 10 km/h, without however, surpassing 16 km/h.

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