89The applicant submits, moreover, that this is clear from the case-law, since the Court of Justice has held that the intended use of a product may itself constitute an objective criterion for classification only if it is inherent in the product, and that that inherent character must be capable of being assessed on the basis of the product's objective characteristics and properties (Case C-459/93 Thyssen Haniel Logistic [1995] ECR I-1381; and Case C-309/98 Holz Geenen [2000] ECR I-1975), that a classification based on the intended use must be a method of ‘last resort’, and that, in the interests of legal certainty (Case C-338/95 Wiener SI [1997] ECR I-6495) and ease of verification, preference should be given to criteria for classification based on the objective characteristics and properties of products which can be ascertained when customs clearance is obtained (Case 38/76 Luma [1976] ECR 2027, paragraph 7). The intended use of a product is relevant only if classification cannot take place on the sole basis of the objective characteristics and properties of the product (Opinion of Advocate General Jacobs in Wiener SI, cited above, paragraph 34). The applicant further submits that, since it is not disputed that the objective characteristics and properties of the PlayStation®2 correspond to the wording of heading 8471 and the text of the relevant chapter notes, there is clearly no need to invoke subjective criteria such as the intended use or trade usage of the product in order to arrive at a possible classification option under heading 9504. Lastly, the applicant states that the defendant has not submitted any evidence that, were heading 9504 to be found to constitute a prima facie classification option, it would have preference over heading 8471 on the basis of general rule 3(b).
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