PR Pet BV v Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven (C-24/22)

Contents

Judgment of the Court (Seventh Chamber)22 June 2023^note(Reference for a preliminary ruling — Common Customs Tariff — Classification of goods — Combined Nomenclature — Heading 9403 — Articles consisting of a structure, intended for cats, referred to as cat scratching posts — Goods consisting of a variety of materials — Implementing Regulations (EU) No 1229/2013 and (EU) No 350/2014)In Case C‑24/22,REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Noord-Holland (District Court, Noord-Holland, Netherlands), made by decision of 7 January 2022, received at the Court on 11 January 2022, in the proceedingsPR Pet BV,vInspecteur van de Belastingdienst/Douane, kantoor Eindhoven,THE COURT (Seventh Chamber),composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen (Rapporteur) and N. Wahl, Judges,Advocate General: G. Pitruzzella,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Netherlands Government, by M.K. Bulterman and A. Hanje, acting as Agents,– the European Commission, by W. Roels and M. Salyková, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1The request for a preliminary ruling concerns, first, the interpretation 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 (OJ 1987 L 256, p. 1), as amended by Commission Implementing Regulation (EU) 2016/1821 of 6 October 2016 (OJ 2016 L 294, p. 1) (‘the CN’), and, second, the validity of Commission Implementing Regulation (EU) No 1229/2013 of 28 November 2013 concerning the classification of certain goods in the Combined Nomenclature (OJ 2013 L 322, p. 8), and of Commission Implementing Regulation (EU) No 350/2014 of 3 April 2014 concerning the classification of certain goods in the Combined Nomenclature (OJ 2014 L 104, p. 4).

2The request has been made in proceedings between PR Pet BV and the Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven (Inspector of the Tax and Customs Administration, Eindhoven, Netherlands) (‘the customs authority’) concerning the tariff classification, in the CN, of goods consisting of a structure, intended for cats, referred to as ‘cat scratching posts’.

Legal framework

The HS

3The Harmonised Commodity Description and Coding System (‘the HS’) was drawn up by the Customs Cooperation Council, now the World Customs Organization (WCO), drawn up by the Convention establishing a Customs Cooperation Council, concluded in Brussels on 15 December 1950. The HS was established by the International Convention on the Harmonized Commodity Description and Coding System, concluded in Brussels on 14 June 1983 (United Nations Treaty Series, Vol. 1503, p. 4, No 25910 (1988)), and approved, with its protocol of amendment 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 Convention’).

4The WCO approves, under the conditions laid down in Article 8 of the HS Convention, the Explanatory Notes and Classification Opinions adopted by the HS Committee established by Article 6 of that convention.

5Under Article 3(1)(a) of the HS Convention, each Contracting Party undertakes that its customs tariff and statistical nomenclatures will be in conformity with the HS, first, by using all the headings and the subheadings of the HS without addition or modification, together with their related numerical codes, second, by applying the General rules for the interpretation of the HS and all the section, chapter and subheading notes without modifying their scope, and, third, by following the numerical sequence of the HS.

6Classification of goods in the CN is carried out in accordance with the principles laid down by the General rules for the interpretation of the HS.

7Rule 3 of the General rules for the interpretation of the HS provides:‘When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to [rule] 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;(c) when goods cannot be classified by reference to [rule] 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.’

8The explanatory note relating to rule 3(b) of the General rules for the interpretation of the HS states:‘(VI) This second method relates only to:(i) Mixtures;(ii) Composite goods consisting of different materials:…(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.…’

9Section IX of the HS, entitled ‘Wood and articles of wood; wood charcoal; cork and articles of cork; manufactures of straw, of esparto or of other plaiting materials; basketware and wickerwork’, includes, inter alia, Chapter 44 of that system, entitled ‘Wood and articles of wood; wood charcoal’.

10Heading 4421 of the HS, entitled ‘Other articles of wood’, includes the following subheadings:‘442110 – Clothes hangers4421 9 – Other:442191 – – Of bamboo442199 – – Other’

11Section XI of the HS, entitled ‘Textiles and textile articles’, includes, inter alia, Chapter 56 thereof, entitled ‘Wadding, felt and nonwovens; special yarns; twine, cordage, ropes and cables and articles thereof’.

12Heading 5609 of the HS, entitled ‘Articles of yarn, strip or the like of heading 54.04 or 54.05, twine, cordage, rope or cables, not elsewhere specified or included’, includes the following subheadings:‘ 560900 – Articles of yarn, strip or the like of heading 54.04 or 54.05, twine, cordage, rope or cables, not elsewhere specified or included’

13According to the explanatory note relating to heading 5609 of the HS:‘This heading covers articles of the yarns of Chapters 50 to 55, articles of strip or the like of heading 54.04 or 54.05, and also articles of twine, cordage, rope or cables of heading 56.07, other than those covered by a more specific heading in the Nomenclature. …’

14Section XI of the HS also includes Chapter 63 thereof, entitled ‘Other made up textile articles; sets; worn clothing and worn textile articles; rags’.

15Heading 6307 of the HS, entitled ‘Other made up articles including dress patterns’, includes the following subheadings:‘630710 – Floor-cloths, dish-cloths, dusters and similar cleaning cloths630720 – Life-jackets and life-belts630790 – Other’

16Section XX of the HS, entitled ‘Miscellaneous manufacture articles’, includes, inter alia, Chapter 94 thereof, entitled ‘Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; lamps and lighting fittings, not elsewhere specified or included; illuminated signs, illuminated name-plates and the like; prefabricated buildings’.

17The general considerations set out in the explanatory notes on Chapter 94 of the HS state inter alia:‘…2. The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.The following are, however, to be classified in the abovementioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:(a) Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture;(b) Seats and beds.’

18Heading 9401 of the HS, entitled Seats (other than those of heading 94.02), whether or not convertible into beds, and parts thereof’, includes the following subheadings:‘…940150 – Seats of cane, osier, bamboo or similar materials…940160 – Other seats, with wooden frames:940161 – Upholstered…’

19Heading 9403 of the HS, entitled ‘Other furniture and parts thereof’, is worded as follows:‘940310 – Metal furniture of a kind used in offices…940340 – Wooden furniture of a kind used in the kitchen940350 – Wooden furniture of a kind used in the bedroom…9403 8 – Furniture of other materials, including cane, osier, bamboo or similar materials:940382 – – Of bamboo940383 – – Of rattan940389 – – Other940390 – – Parts’

20According to the explanatory note relating to heading 9403 of the HS:‘This heading covers furniture and parts thereof, not covered by the previous headings. It includes furniture for general use (e.g., cupboards, show-cases, tables, telephone stands, writing-desks, escritoires, book-cases, and other shelved furniture.The heading includes furnitures for:(1) Private dwellings, hotels, etc., such as: cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressing-tables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; side-boards, dressers, cupboards; food-safes; bedside tables; beds (including wardrobe beds, camp-beds, folding beds, cots, etc.); needlework tables; foot-stools, fire screens; draught-screens; pedestal ashtrays; music cabinets, music stands or desks; play-pens; serving trolleys (whether or not fitted with a hot plate).…The heading does not include:(a) Travelling chests, trunks and the like, not having the character of furniture (heading 42.02).…’

The CN

21The tariff classification of goods imported into the European Union is governed by the CN, which is based on the HS.

22Part One of the CN, containing the ‘preliminary provisions’, includes a Section I on ‘General rules’, subsection A of which, 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.2. …(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.3. When, by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows:(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods …, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;(b) mixtures, composite goods consisting of different materials or made up of different components …, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable;…’

23Part Two of the CN, entitled ‘Schedule of Customs Duties’, contains, inter alia, Section IX, entitled ‘Wood and articles of wood; wood charcoal; cork and articles of cork; manufactures of straw, of esparto or of other plaiting materials; basketware and wickerwork’, which contains, inter alia, Chapter 44, entitled ‘Wood and articles of wood; wood charcoal’.

25Part Two of the CN also contains Section XI, entitled ‘Textiles and textile articles’, which includes, inter alia, Chapter 56 of that nomenclature, entitled ‘Wadding, felt and nonwovens; special yarns; twine, cordage, ropes and cables and articles thereof’.

26Heading 5609 of the CN is worded as follows:‘Articles of yarn, strip or the like of heading 5404 or 5405, twine, cordage, rope or cables, not elsewhere specified or included’.

27Chapter 63 of the CN, entitled ‘Other made-up textile articles; sets; worn clothing and worn textile articles; rags’, is also included in Section XI of that nomenclature.

28The explanatory notes on Chapter 63 of the CN state, inter alia:1. Sub-chapter I applies only to made-up articles, of any textile fabric.2. Sub-chapter I does not cover:(a) goods of Chapters 52 to 62;…’

30Part Two of the CN also contains Section XX, entitled ‘Miscellaneous manufactured articles’, which contains, inter alia, Chapter 94 of that nomenclature, entitled ‘Furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings; luminaires and lighting fittings, not elsewhere specified or included; illuminated signs, illuminated nameplates and the like; prefabricated buildings’.

31According to paragraph 2 of the explanatory notes on Chapter 94 of the CN:‘The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.The following are, however, to be classified in the headings mentioned above, even if they are designed to be hung, to be fixed to the wall or to stand one on the other:(a) cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture;(b) seats and beds.’

32Heading 9401 of the CN is worded as follows:9401 | Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:… | …94014000 | …| – Seats of cane, osier, bamboo or similar materials:… | …94016100 | – – Upholstered… | …

Implementing Regulation No 1229/2013

34In order to ensure uniform application of the CN, the European Commission adopted Implementing Regulation No 1229/2013 which, in accordance with Article 3 thereof, entered into force on 3 December 2013.

35According to its annex, Implementing Regulation No 1229/2013 classified an article consisting of a structure, intended for cats, referred to as a ‘cat scratching post’, under subheading 63079098 of the CN, inter alia, for the following reasons:‘Given its objective characteristics, the article is an article for cats and is designed to attract cats and to keep them away from furniture that they would otherwise scratch and occupy.Classification as furniture under heading 9403 is excluded because that heading covers products of a different nature which are used for private dwellings, hotels, offices, schools, churches, shops, laboratories, etc. (see also the [HS] explanatory notes to heading 9403 of the HS).Classification as toys under heading 9503 is also excluded ……The textile material is essential to attract cats (e.g. to scratch their claws on it, sit on it and play with it) and consequently essential to the use of the article as a scratching and playing facility for cats. Thus, it is the textile material (not the wood, paperboard or plastic) that gives the article its essential character within the meaning of [rule 3(b) of the General rules for the interpretation of the CN]…Consequently, a made-up article consisting of woven sisal fabric, woven pile fabric, and felt lined woven fabric of synthetic fibres, should be classified under heading 6307.The article should therefore be classified under CN code 63079098 as “other made-up textile articles”.’

Implementing Regulation No 350/2014

36In order to ensure uniform application of the CN, the European Commission adopted Implementing Regulation No 350/2014 which, in accordance with Article 3 thereof, entered into force on 8 April 2014.

37According to its annex, that regulation classified an article consisting of a structure, intended for cats, referred to as a ‘cat scratching post’, under subheading 63079098 of the CN, inter alia, for the following reasons:‘Given its objective characteristics, the article is an article for cats and is designed to attract cats and to keep them away from furniture that they would otherwise scratch and occupy.Classification as furniture under heading 9403 is excluded because that heading covers products of a different nature which are used for private dwellings, hotels, offices, schools, churches, shops, laboratories, etc. (see also the [HS] explanatory notes to heading 9403 of the HS).Classification as toys under heading 9503 is also excluded ……The textile material (the woven textile fabric and the sisal cord) is essential in enabling the product to be used as intended because it attracts cats which can e.g. scratch their claws, sit, sleep on it and play with it. It is therefore the textile material (not the wood or paperboard) that gives the article its essential character within the meaning of [rule 3(b) of the general rules for the interpretation of the CN].…As it cannot be determined whether the sisal or the woven textile material is more essential to attract cats, the bigger quantity of the woven textile fabric and the wider variety of activities it provides to the cat are considered to give the article its essential character within the meaning of [rule 3(b) of the General rules for the interpretation of the CN] (see also the [HS] explanatory notes to [rule 3(b)], (VIII)).Within the meaning of note 7(f) to Section XI, the woven textile fabric is assembled by sewing and is consequently a made-up textile article of textile fabric.The article is therefore to be classified under CN code 63079098 as other made-up textile articles.’

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

38In the period from 12 September 2016 to 28 August 2017, PR Pet submitted seven customs declarations for the release into free circulation of articles consisting of a structure, intended for cats, referred to as ‘cat scratching posts’ (‘the goods at issue’), which it classified under two subheadings of heading 4421 of the CN.

39Following an administrative control in 2017, the customs authority determined that the tariff classification of the goods at issue was incorrect and that, in accordance with the nature of the material with which they were covered, they should be classified under subheadings 5609000000 or 6307909890 of the CN. By decision of 28 December 2017, the customs authority demanded from PR Pet payment of the sum of EUR 10 699.26 in respect of customs duties and, by decision of 22 November 2018, dismissed PR Pet’s objection against that demand.

40PR Pet brought an action against that decision dismissing the objection before the referring court, the rechtbank Noord-Holland (District Court, Noord-Holland, Netherlands), submitting that, contrary to what it had stated in its customs declarations, the goods at issue, by application of rule 1 of the General rules for the interpretation of the CN, should be classified as ‘furniture’ under Chapter 94 of the CN, since they are intended for cats and are used to furnish living quarters. Those goods should, more specifically, be classified as ‘other furniture and parts thereof’, or as ‘seats’ covered, respectively, by headings 9403 and 9401 of the CN. Otherwise, the goods at issue should be regarded as ‘articles of wood’ falling under heading 4421 of the CN. According to PR Pet, such classification is corroborated by Binding Tariff Informations (BTI), issued by the Belgian and German customs authorities, respectively on 25 January 2019 and 15 January 2020, classifying products comparable to the goods at issue under subheadings 9401 6100 and 4421999999 of the CN.

41The customs authority disputes those arguments. It contends that the goods at issue cannot be classified by applying rule 1 of the General rules for the interpretation of the CN. According to that authority, those goods are of a different nature to ‘furniture’ covered by Chapter 94 of the CN, since they are intended to be used by cats. They should therefore be classified, in accordance with rule 3(b) of those rules and with Implementing Regulations No 1229/2013 and No 350/2014, according to the material which gives the goods their essential character.

42The referring court states that the tariff classification is legally determined according to the wording of the headings and subheadings, section and chapter notes, and general classification rules and that it follows from the settled-case-law of the Court that, 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 sought in their objective characteristics and properties as defined in the wording of the relevant CN headings and in the section or chapter notes. Furthermore, the Court has already held 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.

43In the present case, the referring court notes that the goods at issue consist either of one or more posts placed on a stand or trunk, or of cylindrical shapes covered by a sisal rope or carpet. Depending on the case, one or more boxes covered in plush fabric, a tear-drop shaped space or even a number of baskets or platforms may be attached to those elements. Only one of the goods at issue does not have a post or trunk and consists of a box provided with an opening, covered with plush fabric and placed on three wooden feet. The referring court infers from this that, given their objective characteristics, the goods at issue are intended to give cats a place of their own in a room where they can lie or sit, scratch with their claws and play on or in.

44In so far as heading 9403 of the CN mentions ‘other furniture and parts thereof’ and the explanatory notes of the HS on Chapter 94 of that system define the concept of ‘furniture’ very broadly, such that that concept might include, inter alia, a bookcase used to store books, the referring court does not rule out that the goods at issue might constitute ‘furniture’ within the meaning of that heading, since they can also be placed in a living area and allowing the cat to be ‘stored’, in that they give the cat its own place in that room and are mobile objects not included under another heading, designed to be placed on the floor and intended to fill living areas for a mainly utilitarian purpose. According to the referring court, that description is corroborated by the wording used in the various language versions of the explanatory notes of the HS.

45The referring court emphasises, however, that the classification of the goods at issue under heading 9403 of the CN would be contrary to the wording of Implementing Regulations No 1229/2013 and No 350/2014, since they expressly state that a ‘classification as furniture under heading 9403 is excluded because that heading covers products of a different nature which are used for private dwellings’. Those implementing regulations would cover the tariff classification of articles comparable to the goods at issue. According to the case-law of the Court, that would mean that they are applicable by analogy to the situation at issue before that court.

46The referring court notes that, although it is clear from the statement of reasons for Implementing Regulation No 350/2014 that ‘cat scratching posts’ cannot themselves be classified as ‘furniture’, in so far as they are used to protect furniture by encouraging cats to use the ‘cat scratching posts’ to sit and scratch with their claws, that interpretation does not take into account the fact that furniture may fulfil different functions and does not follow from headings 9401 and 9403 of the CN or from the explanatory notes relating to them. Therefore, neither Implementing Regulations No 1229/2013 and No 350/2014 nor the wording of the said headings nor the explanatory notes relating to them state how the goods at issue are of a different nature from the furniture referred to.

47In those circumstances, the referring court asks, first, whether the goods at issue can be classified as ‘furniture’ falling under heading 9403 of the CN or whether, in the light of Implementing Regulations No 1229/2013 and No 350/2014, such classification is excluded. Second, it seeks to ascertain whether, depending on the answer to be given to those questions, the validity of those implementing regulations must be called into question.

48Consequently, the rechtbank Noord-Holland (District Court, Noord-Holland) decided to stay the proceedings and to refer to the Court of Justice the following questions for a preliminary ruling:(1) Must CN heading 9403 be interpreted as meaning that cat scratching posts, made up of a variety of materials, intended to be placed on the floor in (living) areas and to remain there so that cats can climb into them, sit on them, lie on them and scratch them, are not covered by this CN heading because they are of a different nature as referred to in Commission [Implementing Regulations No 1229/2013 and No 350/2014]? If there is a different nature that precludes classification under CN heading 9403, what constitutes that different nature?(2) Does the answer to question 1 have any implications for the validity of [Implementing Regulations No 1229/2013 and No 350/2014]?’

The questions referred for a preliminary ruling

The first question

49By its first question, the referring court asks, in essence, whether the CN must be interpreted as meaning that an article consisting of a structure, covered with different materials depending on the case, intended to give cats a place of their own and which they can, inter alia, occupy, play in and scratch, referred to as a ‘cat scratching post’, falls under heading 9403 of that nomenclature, as ‘furniture’.

50It must be recalled that, in accordance with settled case-law, when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable the latter to classify the products at issue correctly in the CN, rather than to effect that classification itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard. Thus, the national court is in a better position to do so (judgment of 15 May 2019, Korado, C‑306/18, EU:C:2019:414, paragraph 33 and the case-law cited).

51It is for the national court to classify the goods at issue in the main proceedings in the light of the answers given by the Court to the questions referred to it.

52In order to provide a helpful answer to the referring court, it must be stated at the outset that, first, the general rules for the interpretation of the CN provide that the classification of goods is to be determined according to the terms of the headings and any section or chapter notes, the titles of sections, chapters and sub-chapters being provided for ease of reference only. In spite of the fact that they lack binding force, the explanatory notes to the HS and CN are an important aid in interpreting the scope of the various tariff headings (see, to that effect, judgment of 15 May 2019, Korado, C‑306/18, EU:C:2019:414, paragraph 35 and the case-law cited).

53According 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 sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN. The intended use of a product may constitute an objective criterion for classification if it is inherent in the product, and that inherent character must be capable of being assessed on the basis of the product’s objective characteristics and properties (see, to that effect, judgment of 15 May 2019, Korado, C‑306/18, EU:C:2019:414, paragraphs 36 and 37 and the case-law cited).

54It follows from the wording of heading 9403 of the CN that it covers ‘furniture and parts thereof, other than seats and medical, surgical, dental or veterinary furniture’, since the latter fall, respectively, under headings 9401 and 9402 of that nomenclature.

55Heading 9403 of the CN includes metal furniture of a kind used in offices (subheading 940310), other metal furniture, such as beds (subheading 940320), wooden furniture of a kind used in offices (subheading 940330), wooden furniture of a kind used in the kitchen (subheading 940340), wooden furniture of a kind used in the bedroom (subheading 940350), other wooden furniture, such as wooden furniture of a kind used in the dining room and the living room or in shops (subheading 940360), furniture of plastics (subheading 940370), furniture of other materials, including cane, osier, bamboo or similar materials (subheading 940380), and parts of that furniture (subheading 940390).

56It must therefore be held that the goods falling under heading 9403 of the CN have the common characteristic of being intended for furnishing offices, kitchens, bedrooms, dining rooms, living rooms or shops. Such places have the common feature of being dedicated to occupation by humans.

57Moreover, it is apparent, in essence, from the explanatory note of the HS on heading 9403 thereof that goods generally suitable for use in various places such as cupboards, tables, telephone stands, writing-desks, bookcases or other shelved furniture, and furnishings specially designed for private dwellings, hotels or other dwelling places, such as cabinets, linen chests or bread chests, chests of drawers, bedside tables, side-boards, beds, benches and foot-stools form part of the ‘furniture’ falling under that heading. All those goods are intended for human use.

58It follows that goods intended for furnishing a place occupied by humans for human use are covered by heading 9403 of the CN.

59In the present case, the goods at issue are intended not to ‘store’ cats, as one would do with books in a bookcase, but to give them a place of their own where they can remain, sit or lie down, play or scratch. Therefore, such goods cannot be classified as ‘furniture’ falling under heading 9403 of the CN.

60Therefore, the referring court must be able to determine under which other heading of the CN the goods at issue may be classified.

61In the present case, it is clear from the request for a preliminary ruling that the goods at issue are composite goods.

62It must be observed in that regard that rule 3 of the General rules for the interpretation of the CN lays down the classification methods applicable where a composite article appears classifiable under two or more headings of that system. Paragraphs (a) to (c) of that rule lay down interpretation methods each of which is subsidiary to the previous method, since recourse can be had to one of those methods only if the preceding method in alphanumerical order was unable to determine the tariff classification applicable to the goods concerned.

63Rule 3(a) of the General rules for the interpretation of the HS states that the heading which provides the most specific description is to be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials contained in mixed or composite goods, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

64It follows from the order for reference and from the file submitted to the Court that the goods at issue consist of several parts, the exact composition of which is not specified, which are covered with different materials, namely sisal rope, woven sisal, water hyacinth rope or textile (‘plush’ fabric, woven fabric, polyester, felt or synthetic fibres). The latter materials each fall under different headings of the CN. It cannot, therefore, be ruled out that the CN headings concerned may be regarded as each referring to only one part of the materials of which the goods at issue are composed and that none of those headings could be regarded as the most specific within the meaning of rule 3(a) of the General rules for the interpretation of the HS.

65If the referring court were to conclude that that is indeed the case, rule 3(b) of the General rules for the interpretation of the CN should be applied for the purposes of the tariff classification of the goods at issue, which states that mixtures, composite goods consisting of different materials or made up of different components, which cannot be classified by reference to rule 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable.

66Under that rule 3, in carrying out the tariff classification of goods it is necessary to identify, from among the materials of which they are composed, the one which gives them their essential character; this may be done by determining whether the goods would retain their characteristic properties if one or other of their constituents were removed. As stated in point VIII of the explanatory note relating to rule 3(b) of the HS, which supplements the explanatory note to the CN, the factor which determines the essential character of the goods may, depending on the type of goods, be determined for example by the nature of the constituent material or components, its bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods (judgment of 3 June 2021, BalevBio, C‑76/20, EU:C:2021:441, paragraph 65 and the case-law cited).

67In the present case, it must be observed that, since the materials covering the goods at issue, namely, according to the models, sisal rope, woven sisal, water hyacinth rope or textile (‘plush’ fabric, woven fabric, polyester, felt or synthetic fibres), enable cats to use them in order, inter alia, to climb, sharpen their claws, play or rest, that material seems to give them their essential character. It will be for the referring court to verify that that is indeed the case and, if so, to determine the nature of the materials, to establish which of those materials is present to the greatest degree and to classify the goods at issue under the CN heading corresponding to it. If those materials are present in equal proportions, the goods at issue should be classified, pursuant to rule 3(c) of the General rules for the interpretation of the SH, under the heading which occurs last in numerical order among those which equally merit consideration.

68Therefore, the answer to the first question is that the CN must be interpreted as meaning that an article consisting of a structure, covered with different materials depending on the case, intended to give cats a place of their own which they can occupy, play in or scratch, referred to as a ‘cat scratching post’, does not fall under heading 9403 of the CN. Such an article must be classified under the CN heading corresponding to the material present to the greatest degree among those covering it, which it is for the referring court to determine. If those materials are present in equal proportions, that article should be classified under the last heading in numerical order among those which equally merit consideration.

The second question

69By its second question, the referring court asks, in essence, whether Implementing Regulations No 1229/2013 and No 350/2014 are valid.

70It must be observed that those implementing regulations classify articles consisting of a structure, intended for cats, referred to as a ‘cat scratching post’ in subheading 63079098 of the CN as ‘other made-up articles’. In that regard, although the articles referred to in those implementing regulations do not appear to be identical in all respects to the goods at issue, they are nonetheless similar to them, such that application by analogy of those regulations cannot be excluded from the outset. According to the case-law of the Court, if a classification regulation is not directly applicable to products which are not identical, but only similar to the product covered by that regulation, the latter is applicable by analogy to such products (judgment of 6 September 2018, Kreyenhop & Kluge, C‑471/17, EU:C:2018:681, paragraph 32 and the case-law cited).

71That said, even assuming that Implementing Regulations No 1229/2013 and No 350/2014 are actually applicable by analogy, the Court has already held that such an application by analogy is neither necessary nor possible where the Court, by its answer to a question referred for a preliminary ruling, has provided the referring court with all the information necessary to classify a product under the appropriate CN heading (see, to that effect, judgment of 26 April 2017, Stryker EMEA Supply Chain Services, C‑51/16, EU:C:2017:298, paragraph 62), which is the case here.

72Therefore, it is unnecessary to rule on the validity of Implementing Regulations No 1229/2013 and No 350/2014.

Costs

73Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Seventh Chamber) hereby rules: 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, as amended by Commission Implementing Regulation (EU) 2016/1821 of 6 October 2016,must be interpreted as meaning that an article consisting of a structure, covered with different materials depending on the case, intended to give cats a place of their own which they can occupy, play in or scratch, referred to as a ‘cat scratching post’, does not fall under heading 9403 of that nomenclature. Such an article must be classified under the heading of that nomenclature corresponding to the material present to the greatest degree among those covering it, which it is for the referring court to determine. If those materials are present in equal proportions, that article should be classified under the heading which occurs last in numerical order among those which equally merit consideration.