UT/2023/000023 - [2024] UKUT 00096 (TCC)

Mr Blades also highlights that in BR Pet PV the CJEU did not take the route one might have expected if HMRC’s position were correct. If it were right that reasoning by analogy to the classification regulation would provide a ready answer, the CJEU could simply have said the classification regulations applied. Instead, the court declined to address the relevance of those regulations.

This observation does not however reflect how the court interpreted the issues it had to decide. As reformulated by the court, the question from the referring court was not on the applicability of the regulation, but on their validity. Having given the referring court all the information needed to classify the product it was not necessary for the court to rule on the validity of the regulations. We do not therefore think anything can be drawn from the CJEU’s non-reliance on the classification regulations. On the contrary it is notable that to the extent the CJEU’s reasoning focussed on which of the covering materials was present to the greatest degree, that largely corresponded in substance to the reasoning the classification regulations gave.

Mr Blades wisely did not press his written submission which sought to distinguish BR Pet PV on the basis of its facts. Whatever the factual situation that decision clearly lays down the principle that the 9403 furniture category, which was one of the ones Cozy Pet had argued for, is restricted to products intended for human use. Although the decision’s status is in effect persuasive rather than binding, it also reinforces the view that the correct approach simply by application of the headings and GIRs afresh and irrespective of the classification regulations is to consider the classification of the material which covers the product to the greatest degree.