Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

28 November 2024 ( * )

( Reference for a preliminary ruling – Customs union – Common Customs Tariff – Combined Nomenclature – Classification of goods – Tariff heading 8703 – Motor cars and other motor vehicles principally designed for the transport of persons – Tariff heading 8713 – Carriages for disabled persons – Regulation (EC) No 718/2009 – Implementing Regulation (EU) 2021/1367 – SELVO 4800 vehicle – Concept of ‘disabled persons’ )

In Joined Cases C‑129/23 and C‑567/23,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) (C‑129/23) and the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic) (C‑567/23), made by decisions of 19 January 2023 and 31 August 2023, received at the Court on 3 March 2023 and 13 September 2023 respectively, in the proceedings

BG Technik cs a.s.

v

Generální ředitelství cel ,

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Ninth Chamber, acting as President of the Eighth Chamber, M. Gavalec and N. Piçarra (Rapporteur), Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– BG Technik cs a.s., by Z. Urban, daňový poradce (C‑129/23), and V. Vodičková, advokátka (C‑567/23),

– the Czech Government, by L. Langrová, M. Smolek and J. Vláčil, acting as Agents,

– the European Commission, by J. Hradil and M. Salyková, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of tariff headings 8703 and 8713 of the Combined Nomenclature (‘the CN’) 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 (OJ 1987 L 256, p. 1), in the version resulting from Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012 (OJ 2012 L 304, p. 1), Commission Implementing Regulation (EU) No 1001/2013 of 4 October 2013 (OJ 2013 L 290, p. 1), Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014 (OJ 2014 L 312, p. 1), and Commission Implementing Regulation (EU) 2020/1577 of 21 September 2020 (OJ 2020 L 361, p. 1) (‘Regulation No 2658/87’). The request for a preliminary ruling in Case C‑129/23 also concerns the interpretation of Commission Regulation (EC) No 718/2009 of 4 August 2009 concerning the classification of certain goods in the Combined Nomenclature (OJ 2009 L 205, p. 7), and the request in Case C‑567/23 concerns the interpretation of Commission Implementing Regulation (EU) 2021/1367 of 6 August 2021 concerning the classification of certain goods in the Combined Nomenclature (OJ 2021 L 294, p. 1).

2 The requests have been made in proceedings between BG Technik cs a.s. (‘BG Technik’) and the Generální ředitelství cel (General Directorate of Customs, Czech Republic) concerning the tariff classification of SELVO 4800 vehicles, imported by BG Technik between 2013 and 2015 (C‑129/23) and in 2021 (C‑567/23).

Legal context

International law

3 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:

‘States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:

(a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;

(b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;

(c) Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;

(d) Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.’

European Union law

The CN

4 The customs classification of goods imported into the European Union is governed by the CN, which is based on the Harmonised Commodity Description and Coding System, which was established by the International Convention on the Harmonised Commodity Description and Coding System, concluded in Brussels on 14 June 1983, under the aegis of the World Customs Organisation (WCO), and approved, with its amending protocol of 24 June 1986, on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1; ‘the HS’). The CN reproduces the HS six-digit headings and subheadings, with only the seventh and eighth digits creating further subdivisions which are specific to it.

5 Under Article 10(1) of Regulation No 2658/87, the Commission is to be assisted by the Customs Code Committee established by Article 247 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

6 Under Article 12(1) of Regulation No 2658/87, the European Commission is to adopt, each year, a regulation reproducing the complete version of the CN, together with the rates of duty, as resulting from measures adopted by the Council of the European Union or the Commission. That regulation is to be published in the Official Journal of the European Union not later than 31 October and is to apply from 1 January of the following year.

7 Part One of the CN includes Section I on general rules, of which Subsection A, entitled ‘General rules for the interpretation of the [CN]’, provides:

‘Classification of goods in the [CN] shall be governed by the following principles:

1. The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.

…

6. For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes … For the purposes of the rule, the relative section and chapter notes also apply, unless the context requires otherwise.’

8 Part Two of the CN, entitled ‘Schedule of customs duties’, is divided into 21 sections. Section XVII of that part entitled ‘Vehicles, aircraft, vessels and associated transport equipment’, includes Chapter 87 relating to ‘Vehicles other than railway or tramway rolling-stock, and parts and accessories thereof’.

9 That chapter includes, inter alia, the following headings and subheadings:

CN Code

Description

Conventional rate of duty (%)

Supplementary unit

1

2

3

4

…

…

…

…

8703

Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading No 8702), including station wagons and racing cars:

8703 10

– Vehicles specially designed for travelling on snow; golf cars and similar vehicles:

8703 10 11

– – Vehicles specially designed for travelling on snow, with compression-ignition internal combustion piston engine (diesel or semi-diesel), or with spark-ignition internal combustion piston engine

5

p/st

8703 10 18

– – Other

10

p/st

…

…

…

…

8713

Carriages for disabled persons, whether or not motorised or otherwise mechanically propelled:

8713 10 00

– Not mechanically propelled

Free

p/st

8713 90 00

– Other

Free

p/st

…

…

…

…

10 The Explanatory Notes to the CN, established by the Commission pursuant to Article 9(1) of Regulation No 2658/87 and published in the Official Journal of the European Union on 6 May 2011 (OJ 2011 C 137, p. 1), on 4 March 2015 (OJ 2015 C 76, p. 1) and on 29 March 2019 (OJ 2019 C 119, p. 1), state, as regards subheading 8713 90 00 of the CN:

‘Motorised vehicles specifically designed for disabled persons are distinguishable from vehicles under heading 8703, mainly because they have:

– a maximum speed of 10 km per hour, i.e., a fast-walking pace;

– a maximum width of 80 cm;

– two sets of wheels touching the ground;

– special features to alleviate the disability (for example, footrests for stabilising the legs).

Such vehicles may have:

– an additional set of wheels (anti-tips);

– steering and other controls (for example, a joystick) that are easy to manipulate; such controls are usually attached to one of the armrests; they are never in the form of a separate, adjustable steering column.

…’

Regulation No 718/2009

11 Under Article 1 of Regulation No 718/2009, the goods described in column 1 of the table in the annex to that regulation are to be classified within the CN under the corresponding CN codes indicated in column 2 of that table.

12 The table set out in the annex to that regulation is as follows:

Description of the goods

Classification (CN code)

Reasons

(1)

(2)

(3)

1. Four-wheeled vehicle with an electric motor powered by two rechargeable 12 V batteries. It is approximately 48 cm wide, 99 cm long and 58 cm high (with the backrest folded down), with a total weight without batteries of approximately 34.5 kg. The maximum load is approximately 115 kg.

The vehicle has the following characteristics:

– a horizontal platform connecting the front and rear sections,

– small wheels (approximately 2.5 × 19.0 cm) with anti-leak tyres,

– an adjustable seat without armrests and grips whose height can be set in one of two positions, and

– a steering column that can be folded down.

The steering column has a small control unit including a contact switch, a horn, a battery output display and a button to set the maximum speed.

The vehicle has two thumb-operated levers for accelerating, braking and reversing. There are anti-tip wheels at the back of the vehicle to prevent it from tipping over. It has an electronic dual braking system.

When its batteries are fully charged it has a maximum range of approximately 16 kilometres and can reach a maximum speed of approximately 6.5 km/h.

The vehicle can be disassembled into four light components. It is designed for use at home, on footpaths and in public spaces, for activities such as shopping trips.

8703 10 18

Classification is determined by General Rules 1 and 6 for the interpretation of the [CN] and by the wording of CN codes 8703, 8703 10 and 8703 10 18.

The vehicle is a special type of vehicle for the transport of persons.

Classification under heading 8713 is excluded as the vehicle is not specially designed for the transport of disabled persons and it has no special features to alleviate a disability. (See also the [HS] Explanatory Notes to heading 8713 and the [CN] Explanatory Notes to subheading 8713 90 00).

The vehicle is therefore to be classified under CN code 8703 10 18 as a motor vehicle principally designed for the transport of persons.

2. Three-wheeled vehicle with an electric motor powered by two rechargeable 12 V batteries. It is approximately 61 cm wide, 120 cm long and 76 cm high (with the backrest folded down), with a total weight without batteries of approximately 46 kg. The maximum load is approximately 160 kg.

The vehicle has the following characteristics:

– a horizontal platform connecting the front and rear sections,

– small wheels (approximately 8.9 × 25.4 cm) with anti-leak tyres,

– an adjustable seat with armrests and grips whose height can be set in one of three positions, and

– a steering column that can be folded down.

The steering column has a small control unit including a battery meter, a contact switch, buttons to activate lights, a horn and a button to set the maximum speed.

The vehicle has two thumb-operated levers for accelerating, braking and reversing. There are anti-tip wheels at the back of the vehicle to prevent it from tipping over. It has an electronic dual braking system.

When its batteries are fully charged it has a maximum range of approximately 40 kilometres and can reach a maximum speed of approximately 8 km/h.

The vehicle can be disassembled into seven light components. It is designed for use at home, on footpaths and in public spaces, for activities such as shopping trips.

8703 10 18

Classification is determined by General Rules 1 and 6 for the interpretation of the [CN] and by the wording of CN codes 8703, 8703 10 and 8703 10 18.

The vehicle is a special type of vehicle for the transport of persons.

Classification under heading 8713 is excluded as the vehicle is not specially designed for the transport of disabled persons and it has no special features to alleviate a disability. (See also the [HS] Explanatory Notes to heading 8713 and the [CN] Explanatory Notes to subheading 8713 90 00).

The vehicle is therefore to be classified under CN code 8703 10 18 as a motor vehicle principally designed for the transport of persons.

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Implementing Regulation 2021/1367

13 Under Article 1 of Implementing Regulation 2021/1367, the goods described in column (1) of the table in the annex to that regulation are to be classified within the CN under the CN code indicated in column (2) of that table.

14 The table set out in the annex to that implementing regulation is as follows:

Description of the goods

Classification (CN code)

Reasons

(1)

(2)

(3)

Four-wheeled vehicle with a DC 24V 800W electric motor powered by two 12V rechargeable batteries with 45Ah-capacity. It is approximately 65 cm wide, 125 cm long and 129 cm high (measured at the seat back, 85 cm with the seat back folded down). Its total weight is approximately 107 kg (108 kg including the batteries). The maximum load is approximately 130 kg.

The vehicle has the following characteristics:

– a horizontal platform connecting the front and rear sections; the platform cannot be adjusted in any way (e.g. folded or tilted) to suit the user’s needs,

– two sprung axles, rear-axle drive and an 820mm wheelbase,

– gradient capability 13°,

– turning circle 210 cm,

– two sets of inflatable tyres (the rear tyres being larger than the front ones),

– a configurable, height-adjustable rotating seat with supports and armrests and a non-slip surface for the feet,

– an adjustable fold-down steering column with oval-shaped handlebars,

– front and rear lights, direction indicators and rear-view mirrors.

The steering column also has a dashboard featuring a switch box, a speed control, a horn button, an engine-idle button, a blinker switch, a light switch, a battery-status indicator and a speed adjuster.

The vehicle has two manually operated levers for accelerating, braking and reversing. The steering can be adjusted to allow operation with one hand.

It has a ‘smart’ regenerative electromagnetic braking system.

With fully charged batteries, the vehicle has a maximum range of up to 45 kilometres and can reach a maximum speed of approximately 15-16 km/h.

It may be fitted with small anti-tipping wheels at the back, a shopping basket, a walking-stick holder, etc.

The vehicle may be stowed for transport purposes. It may be used on roads, pavements, footpaths, pathways in parks, cycle paths and certain leisure trails, or in pedestrian areas (e.g. shopping precincts).

8703 10 18

Classification is determined by general rules 1 and 6 for the interpretation of the [CN] and by the wording of CN codes 8703, 8703 10 and 8703 10 18.

Classification under heading 8713 as a carriage for disabled persons is excluded as the vehicle is not specially designed for the transport of disabled persons: it has no special features to alleviate a disability.

Although the vehicle is designed so that the steering can be controlled with one hand and features a comfortable rotating seat with supports and a non-slip surface for the feet (and may optionally be fitted with small anti-tipping wheels), such characteristics do not objectively constitute special features designed to alleviate a disability (see also the [CN Explanatory Notes] to subheading 8713 90 00, the [HS] Explanatory Notes to heading 8713 and HS classification opinion 8703.10/1).

In addition, vehicles fitted with a separate, adjustable steering column and those reaching a maximum speed over 10 km per hour are excluded from heading 8713 (see also [CN Explanatory Notes] to subheading 8713 90 00).

The vehicle is used for transporting persons and upon presentation to customs authorities it is not recognisable as a vehicle designed solely for disabled persons [(see judgment of 26 May 2016, Invamed Group and Others , C‑198/15, EU:C:2016:362)], based on its objective characteristics and properties which must be assessed at the time of customs clearance [(see judgment of 26 May 2016, Latvijas propāna gāze , C‑286/15, EU:C:2016:363)]. Any subsequent post-clearance modification of the vehicle is disregarded as is any assessment of the vehicle that may be carried out by a national authority for purposes other than those laid down in customs legislation.

The vehicle is a special type of vehicle for the transport of persons.

It is therefore to be classified under CN code 8703 10 18 as a motor vehicle principally designed for the transport of persons, similar to golf cars.

The disputes in the main proceedings and the questions referred for a preliminary ruling

The goods at issue in the main proceedings

15 BG Technik is the importer of the SELVO 4800 vehicle (‘the SELVO vehicle’) in the Czech Republic, which is described as a four-wheeled vehicle equipped with an electric 800 W motor. It is approximately 120 cm high, 60 cm wide and 125 cm long. Its maximum range is 45 km, and maximum speed is greater than 10 km/h, not however, exceeding 16 km/h. That vehicle has one seat, which is adjustable and rotating and fitted with armrests. It is equipped, in particular, with a separate steering column, an automatic electro-magnetic brake on the rear wheels and two sets of tyres of which those at the rear are designed to prevent tipping. It is controlled with the use of handlebars of an oval, closed shape, mounted on the steering column. Its speed and direction can be controlled with one hand. The front and the rear parts of that vehicle are linked with a horizontal platform on which the user may rest his or her feet.

16 The SELVO vehicle appears as follows:

Case C ‑ 129 /23

17 BG Technik classified the SELVO vehicles imported between July 2013 and September 2015 under subheading 8713 90 00 of the CN, as ‘carriages for disabled persons, whether or not motorised or otherwise mechanically propelled; other’, which are exempt from import duties.

18 In May 2016, the Celní úřad pro hlavní město Prahu (Customs Authority for the City of Prague, Czech Republic) assessed BG Technik with additional customs on those imports. It found that the SELVO vehicles fall under subheading 8703 10 18 of the CN, as ‘vehicles specially designed for travelling on snow; golf cars and similar vehicles; other’, being subject to a customs rate of 10 %.

19 After unsuccessfully challenging that decision before the General Directorate of Customs, BG Technik brought an action against the decision of that authority before the Městský soud v Praze (Prague City Court, Czech Republic), which was successful. That court drew on the case-law of the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) on imports of the SELVO vehicle during a period different from than that at issue in Case C‑129/23, in order to find that that vehicle falls under heading 8713 of the CN, since it has characteristics of a vehicle for disabled persons. The Městský soud v Praze (Prague City Court) found that the absence of certain characteristics set out in the Explanatory Notes to the CN and the presence of a separate steering column did not alter the function of that vehicle to provide assistance for persons with a limited ability to walk. That court also found that Regulation No 718/2009, pursuant to which vehicles with a separate steering column are excluded from heading 8713 of the CN, was not applicable to the SELVO vehicles, on the ground that they are designed for disabled persons.

20 The General Directorate of Customs brought an appeal on a point of law against that judgment, before the Nejvyšší správní soud (Supreme Administrative Court), the referring court in Case C‑129/23. That directorate argued that the Městský soud v Praze (Prague City Court) had failed to consider that, in accordance with the Explanatory Notes to the CN, Regulation No 718/2009, the judgment of 22 December 2010, Lecson Elektromobile (C‑12/10, EU:C:2010:823), and certain opinions of the Customs Code Committee referred to in Article 10(1) of Regulation No 2658/87, vehicles fitted with a separate steering column are excluded from heading 8713 of the CN.

21 BG Technik, for its part, states that only the objective properties and characteristics as described in the CN headings and subheadings, which, unlike the explanatory notes to the CN, are binding, must be taken into account for the tariff classification of the goods.

22 The Nejvyšší správní soud (Supreme Administrative Court) states that it must determine the question whether the SELVO vehicle can come under heading 8713 of the CN, even if it exceeds the maximum speed given in the Explanatory Notes to the CN relating to that heading and has a separate steering column.

23 That court sets out, in the first place, the discrepancies between the judgment of 26 May 2016, Invamed Group and Others (C‑198/15, EU:C:2016:362), which extended the scope of heading 8713 of the CN, and the judgment of 22 December 2010, Lecson Elektromobile (C‑12/10, EU:C:2010:823), from which it follows that the scope is narrower. According to the Nejvyšší správní soud (Supreme Administrative Court), the description of goods coming under heading 8713 – in using the words ‘disabled persons’, which are interpreted in paragraph 34 of the first judgment as designating persons affected by a non-marginal limit on the capacity to walk – essentially only sets out the intended use of those goods. It remains to be clarified whether or not the explanatory notes to the CN, which exclude, inter alia, vehicles fitted with a separate steering column from that tariff heading, alter the meaning and scope of that heading. The referring court further states that, following the delivery of the judgment of 26 May 2016, Invamed Group and Others (C‑198/15, EU:C:2016:362), certain national courts have been ‘silently leaving aside’ the Explanatory Notes to the CN, by classifying vehicles similar to the SELVO vehicle under heading 8713 of the CN, even though the customs authorities of several Member States continue to classify such vehicles under heading 8703 of that nomenclature.

24 In the second place, the Nejvyšší správní soud (Supreme Administrative Court) finds that it is necessary to clarify the impact of Regulation No 718/2009, which covers the period during which the imports of the goods at issue in the main proceedings in Case C‑129/23 took place, on the tariff classification of the SELVO vehicle. That court observes that that regulation describes two vehicles similar to the SELVO vehicle and classifies them under heading 8703. That court considers that that vehicle should also come under that heading, on the basis of paragraph 35 of the judgment of 4 March 2004, Krings (C‑130/02, EU:C:2004:122).

25 In those circumstances the Nejvyšší správní soud (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Can an electric mobility vehicle whose maximum speed exceeds 10 km/hr, and which is equipped with a separate adjustable steering column, be classified under heading 8713 of the [CN], despite the Explanatory Notes to the [CN] [published in the Official Journal of the European Union on 6 May 2011 and 4 March 2015]?

(2) Does Regulation [No 718/2009] apply – aside from the vehicles directly described therein – also to an electric mobility vehicle with the following characteristics:

– four wheels (the rear pair of wheels are anti-tip),

– an adjustable and rotating seat with armrests,

– a horizontal platform between the front and rear sections of the mobility vehicle;

– an 800 W electric motor, enabling the attainment of a speed of up to 16 km/hr and a range of up to 45 km,

– an electromagnetic brake on the rear wheels;

– closed handlebars mounted on a separate steering column that can be folded down and equipped with levers for speed selection?’

Case C ‑ 567 /23

26 On 1 November 2021, BG Technik submitted a customs declaration for 79 SELVO vehicles which it classified under subheading 8713 90 00 of the CN, as ‘carriages for disabled persons, whether or not motorised or otherwise mechanically propelled; other’, which are exempt from import duties.

27 The competent customs office found that the tariff classification proposed by BG Technik was incorrect, since the SEVO vehicle fell under subheading 8703 10 18 of the CN. That office thus initiated proceedings concerning an additional assessment of import duty of 155 785 Czech koruny (CZK) (approximately EUR 6 200) and issued a tax adjustment notice, against which BG Technik filed a complaint with the General Directorate of Customs.

28 That directorate rejected that complaint and upheld the contested tax adjustment notice by decision of 11 May 2022, against which BG Technik brought an action before the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), the referring court in Case C‑567/23.

29 BG Technik argues that Implementing Regulation 2021/1367, which classified the SELVO vehicle under subheading 8703 10 18 of the CN, ‘is not binding and applicable’ to those goods. The customs authorities of the Member States ‘themselves initiated the issuance of [that implementing regulation]’ and ‘literally created a situation in which [BG Technik] no longer has any scope for indicating any features or characteristics enabling the use of [that vehicle] by persons with disabilities’.

30 According to BG Technik, the SELVO vehicle was classified, by a technical approval decision from the Ministerstvo dopravy České republiky (Ministry of Transport of the Czech Republic) under the category ‘Other vehicles, carriages for disabled persons’ and constitutes a medical device in accordance with a decision of the Státní ústav pro kontrolu léčiv (State Authority for Drug Control, Czech Republic), delivered on 22 November 2021. The exclusion of the classification of the SELVO vehicle from subheading 8713 90 00 of the CN and its classification under subheading 8703 10 18 of that nomenclature thus does not comply with the technical specificities and the function of that vehicle, namely that it is equipped with special features for the transport of disabled persons and that it is used by persons with disabilities.

31 The General Directorate of Customs, for its part, submits that the SELVO vehicle fully corresponds, by virtue of its properties, settings and characteristics, to the goods described in the first column of the annex to Implementing Regulation 2021/1367, which classified it under subheading 8703 10 18 of the CN. The classification of that vehicle under subheading 8713 90 00 of that nomenclature is excluded since it does not have any special features for the transport of disabled persons. In addition, that implementing regulation excludes vehicles fitted with a separate, adjustable steering column and those reaching a maximum speed greater than 10 km/h from subheading 8713 90 00 of the CN.

32 The Krajský soud v Ostravě (Regional Court, Ostrava) observes that, prior to the adoption of Implementing Regulation 2021/1367, applicable ratione temporis to the imports at issue in the main proceedings in Case C‑567/23, the Czech Republic had stated that, according to national case-law, the customs authorities are required to classify the SELVO vehicle under heading 8713 of the CN. According to that court, such a vehicle has certain features which make it suitable to be used by ‘disabled persons’, in accordance with a broad interpretation of that concept as set out in the judgment of 26 May 2016, Invamed Group and Others (C‑198/15, EU:C:2016:362). Furthermore, the fact that the SELVO vehicle may be used by persons other than disabled persons does not influence its tariff classification under that heading.

33 Thus, the Krajský soud v Ostravě (Regional Court, Ostrava) has doubts as to the applicability of Implementing Regulation 2021/1367 to the SELVO vehicle, ‘on the grounds that, by adopting that [implementing] regulation, the Customs Code Committee responded in a very formalistic fashion to current case-law, assessing [that vehicle] according to its intended use’. According to that court, that implementing regulation ‘directly lists the characteristics of the goods which cannot be regarded as characteristics alleviating a disability within the meaning of … heading 8713 of the CN, which is contrary to the assessment of goods according to their intended use’.

34 The Krajský soud v Ostravě (Regional Court, Ostrava) holds, lastly, that the application of Implementing Regulation 2021/1367 is contrary to Article 20 of the UN Convention and restricts not only the rights of disabled persons by increasing the price of the SELVO vehicle, but also, in practice, restricts the design and production of innovative features of carriages or vehicles for disabled persons.

35 In those circumstances the Krajský soud v Ostravě (Regional Court, Ostrava) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘May an electric carriage with the following properties:

– two axels with rear-axle drive;

– two sets of tyres, with the rear tyres being larger to prevent tipping over;

– the carriage is controlled with closed oval-shaped handlebars on a separate steering column fitted with control features and adapted for controlling the steering and speed with one hand;

– the carriage is fitted with an electromagnetic brake on the rear wheels;

– the dimensions of the carriage are 122 x 63 x 125 cm (length-width-height) – the height is measured with the seat in the operating position;

– adjustable and rotating seat with armrests;

– horizontal platform connecting the front and rear sections of the carriage;

– electric motor with an output of 800 W, enabling a speed of up to 15 km per hour and a range of up to 45 km;

be classified under [under sub]heading 8713 90 00 of the [CN] despite [Implementing Regulation 2021/1367]?’

Procedure before the Court

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

Consideration of the questions referred

37 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.

38 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).

39 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).

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

41 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).

42 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).

43 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).

44 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.

45 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.

46 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.

47 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).

48 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).

49 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).

50 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).

51 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.

52 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.

53 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).

54 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.

55 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).

56 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.

57 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.

Costs

58 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.

[Signatures]

* Language of the case: Czech.