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

The competing classification heading beginning 9403 (furniture) was also considered by the CJEU in PR Pet BV. That was a decision that was issued subsequent to the FTT Decision and so was not addressed in that. (As a decision given after the end of the transition period for the UK’s withdrawal from the UK (31 December 2020) the tribunal is not bound to follow it but “may have regard” to it “so far as relevant” to the matters before the tribunal.)

The referral to the CJEU in PR Pet BV concerned structures “intended for cats, referred to as “cat scratching posts”. The goods in issue, as found by the referring court, consisted of ([43]):

“..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. …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.”

The referring court’s concern was that although the classification regulations (i.e. Regulations 350/2014 and 1229/2013 referred to above) were clear the cat scratching posts could not themselves be classified as “furniture”, that interpretation did not take account that furniture could fulfil different functions and there was no explanation in the regulations, headings or explanatory notes stating how the goods at issue were of a different nature to the furniture referred to. The first question put to the CJEU, as subsequently interpreted by the CJEU was ([49]):

“…whether the CN must be interpreted as meaning that an article consisting of a structure, covered the 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’.”

The second question was described by the CJEU as in essence being whether the two classification regulations were valid.

On the first question, the CJEU concluded, by reference to the wording of 9403 and the associated HSEN that it covered “goods intended for furnishing a place occupied by humans for human use.” ([58]). The CJEU noted the goods were not intended “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” ([59]). It was therefore necessary to determine which other CN heading the goods could be classified under. Noting the GIR, the CJEU set out at ([64]) that the goods in issue consisted 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.”

The CJEU continued that if the referring court were to conclude that none of headings could be regarded as the most specific under 3(a), then the application of 3(b) meant identifying which of the materials gave the goods their essential character ([65]). At [67] the CJEU explained:

“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.”

As to the second question, regarding the classification regulations’ validity, the court considered it unnecessary to rule on this as it had already provided the referring court with all the information necessary to classify the product under the appropriate CN heading.