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

The European Commission may also adopt classification regulations following approval of a committee of customs experts of the EU Member States, to describe a particular product and specify its classification. The regulation also provides reasons for the classification. In Hewlett Packard Case C-119/99 (at [20]) by reference to previous authority (Rank Xerox Case C-67/95),the European Court made clear account has to be taken of such reasons amongst other things “In the interpretation of a classification regulation, in order to determine its scope…”.

The background to, and significance of, such classification regulations was conveniently summarised by Lawrence Collins J in VTech Electronics (UK) Plc [2003] EWHC 59 (Ch):

“[21… A regulation providing that goods of a specified description are to be classified under a particular CN code: (a) is determinative of the issue of how goods of that specified description should be classified; and (b) may be applicable by analogy to identical or similar products.

[22] It is common ground between the parties that where a Regulation concerns products which are similar to those in issue, then the classification in the Regulation must be followed unless and until there is a declaration from the European Court (Footnote: ¹) that the Regulation is invalid.

…

“…Advocate General Mischo said (in reasoning which was followed and approved by the Court) that classification regulations are adopted “when the classification in the CN of a particular product is such as to give rise to difficulty or to be a matter for dispute.” (para 18). He went on: “20. It should be borne in mind that a classification regulation is adopted . . . on the advice of the Customs Code Committee when the classification of a particular product is such as to give rise to difficulty or to be a matter for dispute. 21. It is thus not an abstract classification, since the purpose is to resolve the problem to which a particular product gives rise. But, as the Commission points out, the classification regulation has general implications, in so far as it does not apply to a given undertaking or to a particular transaction, but, in general, to products which are the same as that examined by the Customs Code Committee. 22. The classification regulation constitutes the application of a general rule to a particular case, and thus contains guidance on the interpretation of the rule which can be applied by the authority responsible for the classification of an identical or similar product.” But, he said, the approach adopted by a classification regulation for a particular product could not unhesitatingly and automatically be adopted in the case of a similar product: “On the contrary, as always, where reasoning by analogy is employed great care is called for.” (para 24)”

This passage draws a distinction, to which we will return when addressing Cozy Pet’s grounds of appeal, between products which are the same or identical to the product in question on the one hand and products which are similar on the other.