**Joined Cases C-410/08 to C-412/08**

**Swiss Caps AG**

**v**

**Hauptzollamt Singen**

(References for a preliminary ruling from the Finanzgericht Baden-Württemberg)

(Common Customs Tariff – Combined Nomenclature – Tariff classification – Tariff headings 1515, 1517, 2106 and 3004 – Gelatin capsules – Fish oil, wheat-germ oil and black cumin oil – Concept of ‘packaging’)

Summary of the Judgment

*Common Customs Tariff – Tariff headings – Food supplements composed of vegetable or animal oil and vitamins, contained in
gelatine capsules*

*(Council Regulation No 2658/87, Annex I; Commission Regulations No 3513/1992, No 2388/2000 and No 438/2007)*

The Combined Nomenclature, set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Regulation No 2388/2000, must be interpreted as meaning that:

– edible preparations presented in the form of capsules containing 600 mg of cold-pressed concentrated fish oil and 22.8 mg
of concentrated vitamin E in a casing consisting of 212.8 mg of gelatin, 77.7 mg of glycerol and 159.6 mg of purified water
and intended for use as a food supplement;

– edible preparations presented in the form of capsules containing 580 mg of wheat-germ oil in a casing consisting of 250
mg of granulated starch and intended for use as a food supplement; and

– edible preparations presented in the form of capsules containing 500 mg of cold-pressed black cumin oil, 38.7 mg of soya
oil, 18.8 mg of vitamin E, 16 mg of butterfat, 10 mg of lecithin, 8.2 mg of wax, 8 mg of calcium pantothenate, 0.2 mg of folic
acid and 0.11 mg of biotin in a casing consisting of 313.97 mg of gelatin mass (47.3% gelatin, 17.2% glycerine, 35.5% water),
4.30 mg of paste consisting of 50% titanium dioxide and 50% glycerine, and 1.73 mg of paste consisting of 25% quinoline yellow
lacquer and 75% glycerine and intended for use as a food supplement

come under heading 2106 of the abovementioned Combined Nomenclature.

(see para. 32, operative part)

JUDGMENT OF THE COURT (Fifth Chamber)

17 December 2009 (*)

(Common Customs Tariff – Combined Nomenclature – Tariff classification – Tariff headings 1515, 1517, 2106 and 3004 – Gelatin capsules – Fish oil, wheat-germ oil and black cumin oil – Concept of ‘packaging’)

In Joined Cases C‐410/08 to C‐412/08,

THREE REFERENCES for a preliminary ruling under Article 234 EC from the Finanzgericht Baden-Württemberg (Germany), made by
decisions of 2 September 2008, received at the Court on 22 September 2008, in the proceedings

**Swiss Caps AG**

v

**Hauptzollamt Singen,**

THE COURT (Fifth Chamber),

composed of E. Levits (Rapporteur), President of the Chamber, M. Ilešič and J.‐J. Kasel, Judges,

Advocate General: V. Trstenjak,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 29 October 2009,

after considering the observations submitted on behalf of:

–        Swiss Caps AG, by H.-J. Prieß and B. Sachs, Rechtsanwälte,

–        the European Commission, by L. Bouyon and B.‐R. Killmann, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

**Judgment**

1        The present references for a preliminary ruling concern the interpretation of headings 1515, 1517, 2106 and 3004 of, and General
Rule 5 in the explanatory notes to, the Combined Nomenclature (‘the CN’) 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 last
amended by Commission Regulation (EC) No 2388/2000 of 13 October 2000 (OJ 2000 L 264, p. 1). By a corrigendum to that regulation
(OJ 2000 L 276, p. 92), the original number 2263/2000 was replaced with No 2388/2000.

2        The references have been made in the course of three disputes between Swiss Caps AG (‘Swiss Caps’) and the Hauptzollamt (Principal
Customs Office) Singen concerning the CN classification of three types of capsules respectively containing mainly fish oil,
wheat-germ oil and black cumin oil imported by that company into Germany as food preparations.

**Legal context**

3        The CN, established by Regulation No 2658/87, is based on the international Harmonised Commodity Description and Coding System
(‘the HS’) drawn up by the Customs Cooperation Council, now the World Customs Organisation, adopted by the International Convention
concluded in Brussels on 14 June 1983 and approved on behalf of the European Community by Council Decision 87/369/EEC of 7
April 1987 (OJ 1987 L 198, p. 1). The CN reproduces the headings and subheadings of the HS to 6 digits, with only the 7th
and 8th figures creating subheadings which are unique to it.

4        Part One of the CN contains a series of preliminary provisions. In that part, in Section I, devoted to general rules, Sub-section
A, entitled ‘General rules for the interpretation of the [CN]’ (‘the General Rules’) 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.      (a)   Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided
that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article.
It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete
or finished by virtue of this rule), presented unassembled or disassembled.

(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 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 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 3(a) or (b), they shall be classified under the heading which occurs last
in numerical order among those which equally merit consideration.

...

5.      In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:

...

(b)      subject to the provisions of rule 5(a), packing materials and packing containers... presented with the goods therein shall be
classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding
when such packing materials or packing containers are clearly suitable for repetitive use.

...’

5        Footnote 1 to General Rule 5(b), relating to the terms ‘packing materials’ and ‘packing containers’, states:

‘The terms “packing materials” and “packing containers” mean any external or internal containers, holders, wrappings or supports
other than transport devices (e.g. transport containers), tarpaulins, tackle or ancillary transport equipment. The term “packing
containers” does not cover the containers referred to in general rule 5(a).’

6        Section III of Part Two of the CN contains a Chapter 15 entitled ‘Animal or vegetable fats and oils and their cleavage products;
prepared edible fats; animal or vegetable waxes’.

7        Sections IV and VI of the CN contain, respectively, a Chapter 21 entitled ‘Miscellaneous edible preparations’ and a Chapter
30 entitled ‘Pharmaceutical products’.

8        The explanatory note relating to heading 2106 reads as follows:

‘Provided that they are not covered by any other heading of the Nomenclature, this heading covers:

(A)      Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for
human consumption.

(B)      Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption.
The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs
(flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their
characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38).

...

The heading includes, inter alia:

...

(16)      Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc.,
and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put up in packagings
with indications that they maintain general health or well-being. Similar preparations, however, intended for the prevention
or treatment of diseases or ailments are excluded (heading 30.03 or 30.04).’

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

*Case C‐410/08*

9        On 8 February 2001 Swiss Caps declared for importation into Germany two crates of Omega-3 soft gelatin capsules, not put up
for retail sale, under subheading 2106 9098 of the CN.

10      Each capsule contains 600 mg of cold-pressed concentrated fish oil and 22.8 mg of concentrated vitamin E. The casing of each
capsule consists of 212.8 mg of gelatin, 77.7 mg of glycerol and 159.6 mg of purified water.

11      By decision of 13 December 2001, the Hauptzollamt Singen took the view that the Omega‐3 capsules should be classified under
subheading 1517 9099 CN and accordingly increased the initial import duties from DM 525.73 (approximately EUR 263) to EUR 1 058.30.
Swiss Caps brought the present action before the Finanzgericht (Finance Court) Baden-Württemberg against that decision.

12      Having regard to the contents of the capsules in issue in the main proceedings, the manner in which they are used, their packaging
and the fact that they are undeniably edible preparations intended for use as a supplement, the national court expresses doubts
with regard to the classification of those goods under heading 1517.

13      In those circumstances, the Finanzgericht Baden-Württemberg decided to stay the proceedings and to refer the following questions
to the Court for a preliminary ruling:

‘1.      Is heading 1517 of the [CN] to be interpreted as meaning that preparations of only one (concentrated) oil or fat, to which
vitamin E alone has been added and which have not otherwise been treated, are to be classified under that heading?

2.      If the first question is to be answered in the affirmative:

Is heading 1517 of the [CN] to be interpreted as meaning that the addition of concentrated vitamin E (d-alpha-tocopherol concentrate)
in a quantity of 22.8 mg to 600 mg of concentrated fish oil (Incromega EPA SR 500 TG) leads to the exclusion of the goods
from that heading?

3.      If the first question is to be answered in the affirmative and the second in the negative:

Is [General Rule 5] to be interpreted as meaning that capsule casings consisting of 212.8 mg of gelatin, 77.7 mg of glycerol
and 159.6 mg of purified water and containing food supplement substances are to be regarded as packing material?

4.      If the third question is answered in the negative:

Is heading 1517 of the [CN] to be interpreted as meaning that a capsule casing consisting of 212.8 mg of gelatin, 77.7 mg
of glycerol and 159.6 mg of purified water leads to the exclusion of the capsules described above from that heading?’

*Case C‐411/08*

14      On 30 April 2001 Swiss Caps declared for importation into Germany a pallet of wheat-germ oil capsules, not put up for retail
sale, under subheading 2106 9098 of the CN.

15      Each capsule contains 580 mg of wheat-germ oil, the casing consisting of 250 mg of granulated starch.

16      By decision of 13 December 2001, the Hauptzollamt Singen took the view that the wheat-germ oil capsules should be classified
under subheading 1515 9099 and accordingly increased the initial import duties from DM 100.10 (approximately EUR 50) to EUR 125.74.
Swiss Caps brought the present action before the Finanzgericht Baden-Württemberg against that decision.

17      In view of the packaging of the capsules at issue in the main proceedings and the fact that they are edible preparations intended
for use as a supplement, the national court expresses doubts with regard to the classification of those goods under heading
1515.

18      In those circumstances, the Finanzgericht Baden-Württemberg decided to stay the proceedings and to refer the following questions
to the Court for a preliminary ruling:

‘1.      Is [General Rule 5] to be interpreted as meaning that capsule casings which consist of granulated starch and contain substances
for supplementing the diet are to be regarded as packing material?

2.      If the reply to the first question is in the negative:

Is heading 1515 of the [CN] to be interpreted as meaning that granulated starch capsule casings containing 580 mg of concentrated
wheat-germ oil determine the character of the goods in such a way that the goods are excluded from heading 1515 of the [CN]?’

*Case C‐412/08*

19      On 16 October 2000 Swiss Caps declared for importation into Germany a pallet of black cumin oil capsules, not put up for retail
sale, under subheading 2106 9098 of the CN.

20      Each capsule contains 500 mg of cold-pressed black cumin oil, 38.7 mg of soya oil, 18.8 mg of vitamin E, 16 mg of butterfat,
10 mg of lecithin, 8.2 mg of wax, 8 mg of calcium pantothenate, 0.2 mg of folic acid and 0.11 mg of biotin. The casing of
each capsule consists of 313.97 mg of gelatin mass (47.3% gelatin, 17.2% glycerine, 35.5% water), 4.30 mg of paste consisting
of 50% titanium dioxide and 50% glycerine, and 1.73 mg of paste consisting of 25% quinoline yellow lacquer and 75% glycerine.

21      By decision of 2 May 2001, the Hauptzollamt Singen took the view that the black cumin oil capsules should be classified under
subheading 1517 9099 of the CN and accordingly increased the initial import duties from DM 1 226.71 (approximately EUR 613)
to EUR 2 672.84. Swiss Caps brought the present action before the Finanzgericht Baden-Württemberg against that decision.

22      In view of the contents of the capsules at issue in the main proceedings, their packaging and the fact that they are edible
preparations intended for use as a supplement, the national court expresses doubts with regard to the classification of those
goods under heading 1517 of the CN.

23      In those circumstances, the Finanzgericht Baden-Württemberg decided to stay the proceedings and to refer the following questions
to the Court for a preliminary ruling:

‘1.      Is heading 1517 of the [CN] to be interpreted as meaning that the addition of 10 mg of lecithin, 18.8 mg of vitamin E, 8.2
mg of wax, 8 mg of calcium pantothenate, 0.2 mg of folic acid and 0.11 mg of biotin to a mixture consisting of 500 mg of cold-pressed
black cumin oil (62.5% or 83.3%), 38.7 mg of soya oil and 16 mg of butterfat is to be regarded as so small that it does not
affect the classification of such a preparation under that heading?

2.      If the reply to the first question is in the affirmative:

Is [General Rule 5] to be interpreted as meaning that capsule casings containing the substances specified above are to be
regarded as packing material?

3.      If the reply to the second question is in the negative:

Is heading 1517 of the [CN] to be interpreted as meaning that a capsule casing consisting of 313.97 mg of gelatin mass (47.3%
gelatin, 17.2% glycerine, 35.5% water), 4.30 mg of paste consisting of 50% titanium dioxide and 50% glycerine, and 1.73 mg
of paste consisting of 25% quinoline yellow lacquer and 75% glycerine leads to the exclusion of the capsules described above
from that heading?’

**The questions referred to the Court**

24      As a preliminary point, it must be noted that, in these three cases, the goods which the national court is, in essence, asking
the Court to classify have similar characteristics, namely that they are, in the view of the national court, edible preparations
intended for use as supplements and are composed principally of vegetable or animal oil to which a certain quantity of vitamins
has been added. These preparations are contained in casings composed principally of gelatin and presented in capsule form.

25      Consequently, as all of the questions referred in these three cases seek to determine, essentially, under which heading of
the CN the goods concerned are to be classified, a single answer should be given to those questions.

26      Being unconvinced by the classification of the goods concerned under headings 1515 and 1517 of the CN, the national court
advocates their classification under heading 2106 of the CN. It also takes the view that classification in Chapter 30 of the
CN would not be relevant.

27      It should be recalled that is settled case-law that, in the interests of legal certainty and for 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 and the notes to the sections or chapters (see,
inter alia, Case C‐173/08 *Kloosterboer Services* [2009] ECR I‐0000, paragraph 24 and the case-law cited).

28      The explanatory notes drawn up by the Commission as regards the CN and by the World Customs Organisation as regards the HS
are an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force
(*Kloosterboer Services*, paragraph 25).

29      In addition, the intended use of an article may constitute an objective criterion for classification if it is inherent to
the article, and that inherent character must be capable of being assessed on the basis of the article’s objective characteristics
and properties (see Case C‐16/08 *Schenker* [2009] ECR I‐0000, paragraph 25).

30      In the present cases, it is apparent from both the orders for reference and the explanations provided by Swiss Caps at the
hearing that the capsules at issue in the main proceedings in the three cases are edible preparations composed of animal or
vegetable oils which are intended to be used as food supplements.

31      In that regard, the wording of heading 2106 of the CN refers to food preparations not elsewhere specified or included. The
Explanatory Notes to the HS concerning that heading state that it includes preparations, often referred to as ‘food supplements’,
which are put up in packagings with indications that they maintain general health or well-being.

32      In that respect, it must be pointed out that the casing which contains the oils at issue in the main proceedings is not a
‘packing material’ within the meaning of General Rule 5. That form of presentation of the oils at issue in the main proceedings
is a decisive factor which reveals their function as a food supplement, since it determines the dosage of the edible preparations,
the way in which they are absorbed and the place where they are supposed to become active. Consequently, the casing is a factor
which, together with their content, determines the use and character of the goods at issue in the respective main proceedings.

33      However, classification of those goods under heading 2106 can be envisaged only if the food preparations in question are not
specified or included elsewhere.

34      First, the defendant in the main proceedings in the three cases takes the view that the goods at issue should in fact be classified
under a heading in Chapter 15 of the CN, that is to say, as ‘Animal or vegetable fats and oils and their cleavage products;
prepared edible fats; animal or vegetable waxes’.

35      Thus, the goods defined in headings 1515 and 1517 of the CN concern fats for all types of uses.

36      However, on the one hand, the fact that the raw materials of which the edible preparations at issue in the main proceedings
are composed, namely animal and vegetable oils, are partly covered by headings 1515 and 1517 of the CN does not preclude their
classification under heading 2106 inasmuch as, as has been pointed out in paragraph 32 of the present judgment, their packaging
in a capsule determines both their content and their objective characteristics and properties. Headings 1515 and 1517 of the
CN, however, do not allow account to be taken of that characteristic of the goods.

37      On the other hand, since it follows from General Rule 3(a) that the heading which provides the most specific description is
to be preferred to headings providing a more general description, the goods at issue in the main proceedings in the three
cases fall under heading 2106 of the CN, since, in the context of the main proceedings, heading 2106 of the CN is more specific
than headings 1515 and 1517 of the CN.

38      Secondly, classification of the goods under heading 3004 of the CN cannot be envisaged in so far as, as has been established
by the national court, the goods at issue in the main proceedings do not have a therapeutic or prophylactic use, as required
by the actual wording of heading 3004 of the CN.

39      Thirdly, and finally, the fact that Commission Regulation (EEC) No 3513/92 of 3 December 1992 concerning the classification
of certain goods in the combined nomenclature (OJ 1992 L 355, p. 12) classifies a specific preparation in gelatin capsules
under subheading 1517 90 99 of the CN does not preclude the classification of the goods at issue in the main proceedings in
the present three cases under heading 2106.

40      On the one hand, those goods are not identical to the goods referred to in Regulation No 3513/92. On the other hand, Commission
Regulation (EC) No 438/2007 of 20 April 2007 concerning the classification of certain goods in the Combined Nomenclature (OJ
2007 L 104, p. 18) provides, in regard to goods similar in their composition, presentation and use to those in the main proceedings
in the present cases, for classification under heading 2106 of the CN.

41      It thus follows that the CN, set out in Annex I to Regulation No 2658/87, must be interpreted as meaning that:

–        edible preparations presented in the form of capsules containing 600 mg of cold-pressed concentrated fish oil and 22.8 mg
of concentrated vitamin E in a casing consisting of 212.8 mg of gelatin, 77.7 mg of glycerol and 159.6 mg of purified water
and intended for use as a food supplement;

–        edible preparations presented in the form of capsules containing 580 mg of wheat-germ oil in a casing consisting of 250 mg
of granulated starch and intended for use as a food supplement; and

–        edible preparations presented in the form of capsules containing 500 mg of cold-pressed black cumin oil, 38.7 mg of soya oil,
18.8 mg of vitamin E, 16 mg of butterfat, 10 mg of lecithin, 8.2 mg of wax, 8 mg of calcium pantothenate, 0.2 mg of folic
acid and 0.11 mg of biotin in a casing consisting of 313.97 mg of gelatin mass (47.3% gelatin, 17.2% glycerine, 35.5% water),
4.30 mg of paste consisting of 50% titanium dioxide and 50% glycerine, and 1.73 mg of paste consisting of 25% quinoline yellow
lacquer and 75% glycerine and intended for use as a food supplement

come under heading 2106 of the CN.

**Costs**

42      Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national 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.

On those grounds, the Court (Fifth 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 Regulation (EC) No 2388/2000 of 13 October 2000, must
be interpreted as meaning that:**

–        **edible preparations presented in the form of capsules containing 600 mg of cold-pressed concentrated fish oil and 22.8 mg
of concentrated vitamin E in a casing consisting of 212.8 mg of gelatin, 77.7 mg of glycerol and 159.6 mg of purified water
and intended for use as a food supplement;**

–        **edible preparations presented in the form of capsules containing 580 mg of wheat-germ oil in a casing consisting of 250 mg
of granulated starch and intended for use as a food supplement; and**

–        **edible preparations presented in the form of capsules containing 500 mg of cold-pressed black cumin oil, 38.7 mg of soya oil,
18.8 mg of vitamin E, 16 mg of butterfat, 10 mg of lecithin, 8.2 mg of wax, 8 mg of calcium pantothenate, 0.2 mg of folic
acid and 0.11 mg of biotin in a casing consisting of 313.97 mg of gelatin mass (47.3% gelatin, 17.2% glycerine, 35.5% water),
4.30 mg of paste consisting of 50% titanium dioxide and 50% glycerine, and 1.73 mg of paste consisting of 25% quinoline yellow
lacquer and 75% glycerine and intended for use as a food supplement**

**come under heading 2106 of the abovementioned Combined Nomenclature.**

[Signatures]

---

- Language of the cases: German.