62000C0260
OPINION OF ADVOCATE GENERAL
TIZZANO
delivered on 25 April 2002 (
1
)
I — Introduction
1.
These proceedings arise out of disputes between Lohmann GmbH & Co. KG, medi Bayreuth Weihermüller & Voigtmann GmbH & Co. KG (hereinafter ‘Lohmann’ and ‘medi Bayreuth’ respectively) and the Oberfinanzdirektion (Principal Revenue Office), Koblenz, concerning the classification of certain products as ‘orthopaedic appliances’ under heading No 9021 of the combined nomenclature established in Regulation (EEC) No 2658/87 (
2
) (hereinafter the ‘CN’), as amended in Regulation (EC) No 1734/96. (
3
)
II — Legal Framework
2.
The CN is a nomenclature of goods designed to satisfy the requirements of both the Common Customs Tariff and Community external trade statistics. It is based on the international harmonised commodity coding system (hereinafter the ‘HS’). (
4
) In the amended version in Regulation No 1734/96, the CN makes provision as set out below.
3.
Chapter 90 is entitled ‘Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof’.
4.
Heading 9021 of the CN concerns ‘orthopaedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried or implanted in the body, to compensate for a defect or disability’.
5.
According to Note 1(b) to Chapter 90 of the CN, that chapter does not cover ‘supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, supports for joints or muscles) (Section XI)’.
6.
Chapter 61 of Section XI of the CN is entitled ‘Articles of apparel and clothing accessories, knitted or crocheted’, Chapter 62 concerns ‘Articles of apparel and clothing accessories, not knitted or crocheted’, and Chapter 63 concerns ‘Other made-up textile articles; worn clothing and worn textile articles; rags’.
7.
According to the terms thereof, Chapter 61 2(c) and Chapter 62 2(b) do not cover ‘orthopaedic appliances, surgical belts, trusses or the like’.
III — Facts and procedure
8.
In 1997 Lohmann and medi Bayreuth applied separately to the German customs authorities for the issue of binding customs tariff information in respect of the classification of the following products: for Lohmann, a wrist support under the name ‘epX Wrist Dynamic’, a protective belt for the back under the name ‘epX Back Basic’, an elbow bracelet and an elbow support named respectively ‘epX Elbow Basic’ and ‘epX Elbow Dynamic’; for medi Bayreuth, a knee support known as ‘Stabimed’ and a knee support under the name ‘Collamed’.
9.
In response the German authorities stated that the correct classification for all the products at issue was CN heading 63079010 covering made-up textile articles, knitted or crocheted. The plaintiffs raised objections to that classification, arguing that the products in question should be classified as orthopaedic appliances under CN heading 9021. Those objections were dismissed by the Oberfinanzdirektion Koblenz, whereupon Lohmann and medi Bayreuth brought four separate actions before the Hessisches Finanzgericht (Finance Court, Hessen; hereinafter the ‘Finanzgericht’), Kassel, seeking annulment of the aforementioned tariff information and a direction constraining the customs authority to issue new binding tariff information classifying the contested products under CN heading 9021. (
5
)
10.
The Finanzgericht is uncertain as to the proper tariff classification of the above products. It questions, inter alia, the scope of Note 1(b) to Chapter 90 of the CN in relation to the criterion of the elasticity of the material, and the relevance, as regards the possible exclusion of the contested products from the category of orthopaedic appliances, of the criteria referred to in the 3M Medica judgment. In that case the Court held that products coming under CN heading 9021 ‘... have in common that they are specially adapted to the handicaps which they are intended to correct, and are specifically designed for a given person’. (
6
)
11.
That being the case, by separate orders of 21 February 2000, (
7
) the Finanzgericht decided to stay the proceedings before it and refer the following questions to the Court for a preliminary ruling under Article 234 EC:
Case C-260/00:
‘1.
Does the description “orthopaedic appliances” within the meaning of CN heading No 9021 cover a wrist orthosis, called epX Wrist Dynamic, size M/L, made of 1.2 mm-thick threelayer material in a single colour, a very thin synthetic central layer, not visible in a transverse cut, being enclosed between two woven elastic outer layers, sewn into a tube, with four slightly curved stays made of rustproof material and approximately 12 cm long incorporated on each side; approximately 19 cm long, with an upper diameter of about 11 cm, a lower diameter of about 9 cm and a circular opening for the thumb?
2.
Does the term “solely” in Note 1(b) to CN Chapter 90, read in conjunction with the exceptions referred to in Note 2(c) to CN Chapter 61 and Note 2(b) to CN Chapter 62, permit the elasticity of the material to be regarded as the sole relevant criterion even if the supporting function of the article is at least strengthened not only through being manufactured in accordance with its intended use but also by other factors (in this case the stays)?’
Case C-261/00:
‘1.
Does the description “orthopaedic appliances” within the meaning of CN heading No 9021 cover a lumbar support belt, called epX Back Basic, size S, manufactured by sewing together and consisting primarily of elastic woven mesh up to 1.5 mm thick, approximately 87 cm long and 23 cm wide, closed at the front with a Velcro fastening and with two additional elastic textile straps on the outside which can be pulled forward, stretched and secured on the Velcro patch, and which has a narrow, sewn-in synthetic baton down the (back) centre and a pocket for a padded insert behind?
2.
Does the term “solely” in Note 1(b) to CN Chapter 90, read in conjunction with the relevant exceptions referred to in Note 2(c) to CN Chapter 61 and Note 2(b) to CN Chapter 62, permit the elasticity of the material to be regarded as the sole relevant criterion even if the supporting function is at least strengthened through the article being manufactured, in accordance with its intended use, in such a way as to work in materials of varying degrees of elasticity?’
Case C-262/00:
‘1.
Does the description “orthopaedic appliances” within the meaning of CN heading No 9021 cover an elbow band, called epX Elbow Basic, or an elbow support, called epX Elbow Dynamic, made of 1 mm-thick triple-layer material in a single colour, with a synthetic central layer enclosed between two woven elastic layers; sewn into a tube, with a length of 8 cm (elbow band) or 22 cm (elbow support, the latter being also sewn in anatomical shape), each being pulled over the lower arm below the elbow and worn as a cuff, incorporating a compression pad, over which is passed a circular strap with an elastic and a non-elastic part and a Velcro fastening?
2.
Does the term “solely” in Note 1(b) to CN Chapter 90, read in conjunction with the relevant exceptions in Note 2(c) to CN Chapter 61 and Note 2(b) to CN Chapter 62, permit the elasticity of the material to be regarded as the sole relevant criterion even if the supportive function is strengthened by other factors (in this case the pad)?
3.
If Question 2 is answered in the affirmative:
Is rule 3(b) of the General rules for the interpretation of the Combined Nomenclature suitable for determining the question when the supportive function of the other factors, not made of elastic material, is predominant, or what other criteria should be used to determine the question?’
Case C-263/00:
‘1.
Does the description “orthopaedic appliances” within the meaning of CN 9021 cover functional knee supports with tracking stays and functional knee orthoses with a supportive effect, consisting essentially of fashioned neoprene, with two removable aluminium side stays, 30 cm and 37 cm long respectively, with limited-extension polycentric joints and two Velcro fastening straps, where proper use of each of the above appliances requires an individual setting of the joints with extension-limiting wedges?
2.
Does the term “solely” in Note 1(b) to CN Chapter 90, read in conjunction with the relevant exceptions in Note 2(c) to CN Chapter 61 and Note 2(b) to CN Chapter 62, permit the elasticity of the material to be regarded as the sole relevant criterion even if the supportive function is strengthened by other materials?
3.
If Question 2 is answered in the affirmative:
Is rule 3(b) of the General rules for the interpretation of the CN suitable for determining the question when the supportive function of the other materials is predominant, or what other criteria should be used to determine the question?’
12.
By order of the President of the Court of 13 September 2000 the abovementioned cases were joined for the purposes of the written and oral procedures and the judgment.
IV — Legal analysis
A — Introduction
13.
The Finanzgericht is essentially asking the Court whether the products at issue may be subsumed under the designation of the goods covered by CN heading 9021. In that connection, it queries the applicability of Note 1(b) to CN Chapter 90. I will examine those issues below and will dwell on the latter point first since a finding that Note 1(b) applies to one or several of the contested products would preclude their classification under Chapter 90, and thus under heading 9021.
14.
However, I must first of all point out that the Court has consistently held 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 heading of the Common Customs Tariff and of the notes to the sections or chapters. (
8
)
15.
I would also point out that the explanatory notes to the HS (hereinafter the ‘HSEN’) drawn up by the Customs Cooperation Council, whilst not being legally binding, constitute a relevant adjunct to the interpretation of the customs headings. (
9
) For present purposes, special attention should be given to Note I of heading 9021, according to which orthopaedic appliances covered by that heading
‘... are:
—
for preventing or correcting certain bodily deformities;
—
or for supporting or holding organs following an illness or operation’. (
10
)
16.
Note I(11) then enumerates, in the context of such appliances:
‘[a]ppliances for correcting scoliosis and curvature of the spine as well as all medical or surgical corsets and belts (including certain supporting belts) characterised by:
(a)
special pads, springs etc., adjustable to fit the patient;
(b)
the materials of which they are made (leather, metal, plastics, etc.);
(c)
the presence of reinforced parts, rigid pieces of fabric or bands of various widths.
The special design of these articles for a particular orthopaedic purpose distinguishes them from ordinary corsets and belts, whether or not the latter also serve to support or hold...’.
B — On the scope of application of Note 1(b) to Chapter 90 CN
17.
As has been seen, Note 1(b) to Chapter 90 CN excludes from the list of ‘orthopaedic appliances’ supporting belts or other support articles of textile material whose support function derives from their elasticity, and classifies them instead as textile products coming within CN Section XL The Finanzgericht seeks to ascertain whether that also applies in the case of products in respect of which the aforementioned function is derived not only from the elasticity of the material, but also from a particular manufacturing process or the presence of additional components in non-textile materials. Thus, the national court seeks to establish whether, for the purposes of the abovementioned note, supporting belts or other support articles composed of textile material whose support function derives principally from the elasticity of the material are also excluded from Chapter 90, notwithstanding the fact that in different language versions of the note the reference to elasticity is accompanied by the adverb ‘solely’ (ausschließlich). If so, the national court goes on to ask what criterion should be applied in order to identify the principal component for the purposes of assigning to the products in question a support function.
18.
With the exception of the German customs authority, which expressed no view on this point in its observations to the Court, the parties were at one in agreeing that under the terms of the note at issue the question whether the products excluded from Chapter 90 CN may be assigned a support function is determined solely by reference to the elasticity of the material.
19.
I share that view of the matter. In fact, even from a purely literal point of view, the adverb ‘solely’ (ausschließlich), referred to by the national court, is intended to exclude from the scope of Note 1(b) those supporting belts or other support articles whose support function is assisted by other supplementary factors in addition to the elasticity of the material. Nor is that view of the matter in any way contradicted by the fact that the Italian and Spanish versions of the abovementioned note reveal slight discrepancies, inasmuch they do not include the word ‘solely’; those versions, at the same time as being entirely consistent with the other language versions, tend, in my view, in the same direction as the latter in highlighting the fact that the support function of the products in question is determined by their elasticity. (
11
) I would add that, as contended for on behalf of medi Bayreuth and the Commission, and as the referring court has itself stated, that interpretation is corroborated by the fact that in Chapter 90 the concepts ‘solely’ and ‘principally’ are clearly distinct terms, as is borne out by the wording of Note 2(b) to the same chapter. (
12
)
20.
In light of the foregoing considerations, it seems to me that the application of Note 1(b) to Chapter 90 is confined to supporting belts or other support articles in respect of which it is solely the elasticity of the material which assigns to them the function of supporting. Under Note 1(b), such products must therefore be classified as textile products under CN Section XI because as a rule they are, in my view, ordinary supporting belts or support articles of textile material which perform a generic support function and not a ‘specific orthopaedic function’ peculiar to surgical belts, as indicated in the HSEN. (
13
) The latter belts, even if manufactured in textile material, are excluded from Section XI under Note 2(c) to Chapter 61 and Note 2(b) to Chapter 62 CN.
21.
Accordingly, for the application of Note 1(b) to be excluded the support function of the supporting belt or other support article must be provided also (or solely) by factors other than elasticity. Yet, plainly the mere presence of such additional elements does not necessarily imply that those elements also assist in the support function assigned to that product. As has been pointed out, the insertion of non-textile elements into a supporting belt or other support article may be warranted merely by the need to provide the product with stability, for example by preventing it from rolling up. That additional element does not in fact assist in the function of supporting an organ. In order for this to be the case, it would be necessary, in my view, for the elements in question to be specifically predetermined and technically suitable for performing the aforementioned support function so that, without them, the function itself would be altered.
22.
Viewed in that light, a supporting belt or support article manufactured in such a way as to render its elastic pi operties more effective for the purpose of improving the support function does not, it seems to me, fall outwith the terms of Note 1(b) provided that in such a case as well the support function is provided by means of elasticity.
23.
In light of the foregoing, there is no need to examine any criteria to be adopted for the purpose of identifying the principal element assigning to the products in question their support function.
24.
The scope of Note 1(b) having thus been established, it falls to examine whether any of the products at issue come within the scope of Note 1(b), thus defined, so as to exclude them on that ground from classification under Chapter 90 CN. However, it appears to me from the case-file that that cannot be the case. In actual fact, all these products consist of textile material together with additional parts (pads and batons or bands made of metal or synthetic material). According to the description of them provided by the claimants in the main proceedings, they assist together with the textile material in performing the function for which the products are intended. It is true that that argument was contested by the defendant authority before the Finanzgericht. However, there is nothing in the case-file to support that argument. Accordingly, the argument that the aforementioned additional elements actually make a contribution, in the manner described above, to the support function of the products at issue cannot be entirely ruled out. (
14
)
C — Classification of the contested products under heading 9021 CN
25.
On the supposition, therefore, that, owing to their characteristics, the products under examination do not come within the scope of Note 1(b) to Chapter 90, it falls to examine whether they may be subsumed under the category of orthopaedic appliances specified in heading 9021 CN.
26.
In that connection, a convenient starting-point is the judgment in 3M Medica. In that judgment the Court interpreted the heading at issue in light of the relevant HSEN and confirmed that the products coming under it ‘... have in common that they are specially adapted to the handicaps which they are intended to correct, and are specifically designed for a given person’. (
15
)
27.
In the course of the proceedings before the Court, the parties formed opposite views of the effect of that ruling on determination of the tariff classification of the products in question. The Commission infers from it that, at the moment when the customs obligation arises, the products covered by heading 9021 must be designed or adapted for a specific pathological condition and a specific person, or must be subsequently adapted by a specialist in order to enable the product to be used by a specific person for a specific pathological condition. This approach, the Commission contends, is also consistent with the information provided in the HSEN, according to which orthopaedic appliances must be made to measure for a specific patient.
28.
The claimants in the main proceedings refute that view of the matter. The 3M Medica judgment, they maintain, referred to products (in that case, shoes) in respect of which the aforementioned explanatory notes provide for classification under heading 9021 only where they are made to measure. However, those explanatory notes restrict the requirement that they be made to measure to orthopaedic insoles and shoes. There would therefore be no reason to make all products covered by heading 9021 subject to the requirement that they be specifically manufactured for a given individual, and that applies a fortiori in respect of the manufacture of made-to-measure articles.
29.
I consider that the Commission is correct to rely on the 3M Medica judgment in confirming that the products covered by heading 9021 are intended for use by a specific person and for a specific pathological condition. However, I do not believe that that conclusion must necessarily be inferred, as the Commission contends, from the requirement that articles be made to measure. In actual fact, as is evident from the HSEN, (
16
) that requirement refers only to orthopaedic insoles and shoes. In its turn, the 3M Medica judgment relates that requirement specifically to shoes. (
17
) Instead I take the view, not least in light of the wording of the explanatory notes, that the features common to the products covered by heading 9021 identified by the Court in that judgment, that is to say being ‘specially adapted to the handicaps which they are intended to correct’ and ‘specifically designed for a given person’, are intrinsically interconnected and, more specifically, that the latter is dependent on the former. Since — as may be inferred from the wording of the HSEN (
18
) and is apparently not contested by the parties — orthopaedic appliances covered by heading 9021 are intended to prevent or treat a specific pathological condition or its consequences, plainly they can fulfil their function only if they are adapted to the morphology of the person concerned and to the actual way in which the pathological condition manifests itself or threatens to manifest itself in that patient.
30.
That solution appears all the more evident to me in respect of the products at issue. In referring to ‘appliances for correcting... the spine, as well as all medical or surgical corsets and belts’ the HSEN indicate, as has been seen, that such products are characterised by their special conception which corresponds to a specific orthopaedic function. (
19
) The Commission is therefore correct to maintain that for the products at issue to be classified under heading 9021 they must be adapted to the morphological characteristics of a specific person and must relate to the pathological condition of that person which such products are intended to prevent or treat.
31.
Viewed in that light, it is reasonable to contend, it seems to me, that, where such products are not originally conceived to prevent or treat a specific pathological condition in a specific patient, they must be capable of being adapted for that purpose. On that point I also agree with the Commission that, as with any other intervention for the prevention or treatment of a pathological condition, such adaptation must be carried out in accordance with instructions and under medical supervision.
32.
In conclusion, I consider that the products at issue can be subsumed under the category of orthopaedic appliances in heading 9021 CN, inasmuch as they are conceived or adapted for use by a specific patient, in accordance with instructions and under medical supervision, for the purpose of preventing or treating a specific pathological condition or its consequences. In my view, it is for the referring court, rather than the Court, to ascertain whether each of the aforementioned products actually meets the abovementioned requirements.
V — Conclusion
33.
In light of the foregoing considerations, I propose that the Court should declare that:
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 Regulation (EC) No 1734/96, should be interpreted as follows:
(1)
Supporting belts or other support articles in textile material whose support function for an organ is provided by the elasticity of that material, without any other element, material or item of which the supporting belt or other support article is also composed actually assisting that function, must be excluded from classification under Chapter 90 of the Combined Nomenclature by virtue of Note 1(b) thereto.
(2)
Where the conditions governing the application of Note 1(b) to Chapter 90 of the Combined Nomenclature do not apply in their case, the following goods must be classified under heading 9021 of the Combined Nomenclature if it transpires that they are adapted, in accordance with instructions and under medical supervision, for use by a specific person, for the purpose of preventing or treating a specific pathological condition or its consequences:
—
a wrist support, called epX Wrist Dynamic, size M/L, made of 1.2 mm-thick triple-layer material in a single colour, whereby a very thin synthetic central layer is enclosed between two woven elastic layers; sewn into a tube, with four slightly curved stays made of rustproof material and approximately 12 cm long incorporated on each side; approximately 19 cm long, with an upper diameter of about 11 cm, a lower diameter of about 9 cm and a circular opening for the thumb;
—
a lumbar support belt, called epX Back Basic, size S, manufactured by sewing together and consisting primarily of elastic woven mesh up to 1.5 mm thick, approximately 87 cm long and 23 cm wide, closed at the front with a Velcro fastening and with two additional elastic textile straps on the outside which can be pulled forward, stretched and secured on the Velcro patch, and which has a narrow, sewn-in synthetic baton down the (back) centre and a pocket for a padded insert behind;
—
an elbow support, called epX Elbow Dynamic, made of 1 mm-thick triple-layer material in a single colour, with a synthetic central layer enclosed between two woven elastic layers; sewn into a tube, with a length of 8 cm (elbow band) or 22 cm (elbow support, the latter being also sewn in anatomical shape), each being pulled over the lower arm below the elbow and worn as a cuff, incorporating a compression pad, over which is passed a circular strap with an elastic and a non-elastic part and a Velcro fastening;
—
a functional knee support, called Stabimed, with tracking stays and functional knee orthoses, called Collamed, with a supportive effect, consisting essentially of fashioned neoprene, with two removable aluminium side stays, 30 cm and 37 cm long respectively, with limited-extension polycentric joints and two Velcro fastening straps, where proper use of each of the above appliances requires an individual setting of the joints with extension-limiting wedges.
(
1
)	Original language: Italian.
(
2
)	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).
(
3
)	Commission Regulation (EC) No 1734/96 of 9 September 1996 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1996 L 238, p. 1).
(
4
)	Council Decision 87/369/EEC of 7 April 1987 concerning the conclusion of the International Convention on the Harmonised Commodity Description and Coding System and of the Protocol of Amendment thereto (OJ 1987 L 198, p. 1).
(
5
)	Moreover, it appears from the order for reference in Case C-261/00 that, in the course of proceedings before the Finanzgericht, the German customs authorities proceeded to alter the tariff classification of the protective belt for the back, specifying subheading 62129000 as the correct classification for that product.
(
6
)	Case C-148/93 3M Medica [1994] ECR I-1123, paragraph 12.
(
7
)	In response to a request by the Court for clarification, the national court proceeded on 17 October 2001 to rectify the questions referred for a preliminary ruling on 21 February 2000. For the sake of clarity, I will refer only to the questions as rectified.
(
8
)	See most recently Case C-276/00 Turbon [2002] ECR I-1389, paragraph 21, and further references.
(
9
)	See, inter alia. Case C-280/97 ROSE Elektrotechnik [1999] ECR I-689, paragraph 16 and, more recently, Case C-259/00 Biochem [2002] ECR I-2461, paragraph 22. For the purposes of this case I was referring to the second edition (EN/MJ 2 — July 1996) of the HSEN, applicable to the facts of the case.
(
10
)	As for all the quotations from the HSEN, which arc published by the Customs Cooperation Council only in English and French, other translations arc unofficial.
(
11
)	The Italian version of Note 1(b) states ‘le cinte e le bende di materia tessile, la cui funzione è data dall'elasticità necessaria per sostenere l'organo’ and the Spanish version states ‘los cinturoncs y fajas de materials textiles, cuyo único efecto sea sostener o mantener un órgano, como consecuencia de la elasticidad’ (emphasis added).
(
12
)	Note 2(b) to Chapter 90 CN in fact refers to ‘parts and accessories... for use solely or principally with a particular kind of machine, instrument or apparatus...’ (emphasis added). The distinction between the two terms also appears in other notes in the CN (sec, for example, Note 5 B, (a) to Chapter 84).
(
13
)	See Note I to heading 9021, No (11), last paragraph.
(
14
)	However, I have serious doubts as regards the protective lumbar belt epX Back Basic, especially since the referring court {second question in Case C-261/00) seeks to identity in the particular manufacture of the product and not in the sewn-in synthetic baton the element differing from elasticity of the textile to which the support function is to be assigned. My doubts are further borne out by the fact that, as noted during the course of the proceedings, a product similar in appearance to the protective belt in question was classified by the HS Committee, a body set up by the International Convention on 14 June 1983 within the Customs Cooperation Council (see footnote 4), as a textile product by virtue of the indication in the HSEN (Note 1(b) to Chapter 90) corresponding to Note 1(b) to Chapter 90 CN. That draft classification, approved by the 26th session of the Committee, was subsequently approved by the Customs Cooperation Council {see O J 2001 C 202, p. 8).
(
15
)	Paragraph 12 (see above, paragraph 10, footnote 6).
(
16
)	Sec Note I to heading 9021, Nos 6 and 7 and subparagraph (c).
(
17
)	Case cited above at footnote 6 (paragraph 13).
(
18
)	See Note I to heading 9021, first paragraph.
(
19
)	See Note I to heading 9021, No (11), last paragraph.