Judgment of the Court (Second Chamber) of 6 October 1983. - Lohmann GmbH & Co. KG v Oberfinanzdirektion Frankfurt am Main. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Common Customs Tariff - Classification of absorbent gauze - Heading nº 30.04 and subheading 55.09 A I. - Case 289/82.



European Court reports 1983 Page 03025



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

COMMON CUSTOMS TARIFF - TARIFF HEADINGS - ' ' WADDING , GAUZE , BANDAGES . . . PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES ' ' WITHIN THE MEANING OF HEADING NO 30.04 - CONCEPT

Summary

HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF MUST BE INTERPRETED AS MEANING THAT THE EXPRESSION ' ' PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES ' ' IMPLIES THAT A PRODUCT , IN ORDER TO BE CLASSIFIED UNDER THAT HEADING , MUST NOT EXCEED THE DIMENSIONS WHICH ENABLE IT TO BE SOLD BY RETAIL TO ANY USER , INCLUDING INDIVIDUAL PERSONS . THAT HEADING THEREFORE EXCLUDES A PRODUCT WHICH IS PACKED IN SUCH A WAY THAT IT CAN BE SOLD , WITHOUT RE-PACKING , ONLY TO HOSPITALS OR OTHER LARGE-SCALE USERS .

Parties

IN CASE 289/82

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

LOHMANN GMBH & CO . KG , WHOSE REGISTERED OFFICE IS AT NEUWIED ,

AND

OBERFINANZDIREKTION ( PRINCIPAL REVENUE OFFICE ) FRANKFURT AM MAIN

Subject of the case

ON THE INTERPRETATION OF HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF ,

Grounds

1 BY ORDER OF 12 OCTOBER 1982 WHICH WAS RECEIVED AT THE COURT OF JUSTICE ON 3 NOVEMBER 1982 , THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF .

2 THE FILE ON THE CASE SHOWS THAT ON 19 MAY 1981 THE OBERFINANZDIREKTION ( PRINCIPAL REVENUE OFFICE ) FRANKFURT AM MAIN ISSUED AT THE REQUEST OF THE PLAINTIFF IN THE MAIN PROCEEDINGS A BINDING CUSTOMS TARIFF OPINION ON A PRODUCT REFERRED TO AS ' ' ABSORBENT GAUZE ' ' . THE PLAINTIFF DESCRIBED THE PRODUCT AS FOLLOWS :

' ' A BLEACHED , PERMEABLE , PLAIN-WEAVE FABRIC WOVEN WHOLLY OUT OF COTTON . IT IS IMPORTED FROM YUGOSLAVIA BY THE METRE ( 200 METRES = FIVE PIECES OF 40 METRES EACH ) AND IS USED FOR ' MEDICAL TREATMENT ' . THE WOVEN FABRIC IS 80 CENTIMETRES WIDE , CONCERTINA-FOLDED , PACKED IN FIVE PIECES OF 40 METRES EACH , LABELLED AND NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES . ' '

3 THE OBERFINANZDIREKTION CLASSIFIED THE PRODUCT UNDER SUBHEADING 55.09 A I OF THE COMMON CUSTOMS TARIFF :

' ' OTHER WOVEN FABRICS OF COTTON :

A . CONTAINING 85% OR MORE BY WEIGHT OF COTTON :

I . OF A WIDTH OF LESS THAN 85 CM . . . ' '

4 THE PLAINTIFF LODGED AN OBJECTION AGAINST THAT CUSTOMS TARIFF OPINION ON THE GROUND THAT THE PRODUCT WAS PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES AND THEREFORE FELL WITHIN HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF .

5 THE OBERFINANZDIREKTION REJECTED THAT OBJECTION ON THE GROUND THAT , ALTHOUGH THE PACKAGING AND LABELLING OF THE GAUZE FULFILLED THE CONDITIONS FOR GOODS PUT UP IN RETAIL PACKINGS , IT COULD NOT BE REGARDED AS PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES BECAUSE THE DIMENSIONS OF EACH PIECE , WHICH WERE 40 METRES LONG AND 80 CENTIMETRES WIDE WERE NOT NORMAL FOR RETAIL PACKINGS . IN SUPPORT OF THAT VIEW , THE OBERFINANZDIREKTION RELIED UPON COMMISSION REGULATION ( EEC ) NO 2282/79 OF 17 OCTOBER 1979 ON THE CLASSIFICATION OF GOODS UNDER SUBHEADING 55.09 A I OF THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL 1979 , L 262 , P . 23 ).

6 THE PLAINTIFF BROUGHT AN ACTION AGAINST THAT DECISION BEFORE THE BUNDESFINANZHOF CLAIMING THAT THE GAUZE IN QUESTION IS SOLD ALMOST EXCLUSIVELY TO HOSPITALS IN THE PACKING IN WHICH IT IS MADE UP ON ITS MANUFACTURE IN YUGOSLAVIA AND IS THEREFORE PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES WITHIN THE MEANING OF HEADING NO 30.04 . IN ITS VIEW , IT FOLLOWS FROM THE EXPLANATORY NOTES TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE ON HEADING NO 30.04 THAT SALE DIRECTLY TO HOSPITALS ALSO QUALIFIES AS RETAIL SALE .

7 THE PLAINTIFF DISPUTES BOTH THE RELEVANCE AND THE VALIDITY OF REGULATION NO 2282/79 . IT CONSIDERS THAT SINCE THAT REGULATION EXPRESSLY CONCERNS ONLY PIECES OF FABRIC 100 METRES LONG AND 0.65 METRES WIDE , IT IS NOT APPLICABLE EITHER DIRECTLY OR BY ANALOGY TO THE PRODUCT IN QUESTION . THE PLAINTIFF ALSO CLAIMS THAT THE REGULATION IS INVALID SINCE IT EXCEEDS THE AUTHORIZATION GRANTED TO THE COMMISSION BY REGULATION ( EEC ) NO 97/69 OF THE COUNCIL OF 16 JANUARY 1969 ON MEASURES TO BE TAKEN FOR UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 12 ), INASMUCH AS THE EFFECT OF THE CONTESTED REGULATION IS NOT MERELY TO INTERPRET BUT TO AMEND THE TARIFF HEADING IN QUESTION .

8 FOR ITS PART , THE BUNDESFINANZHOF CONSIDERS THAT , WERE IT NOT FOR REGULATION NO 2282/79 , THE GOODS IN QUESTION WOULD UNDOUBTEDLY COME WITHIN HEADING NO 30.04 PRECISELY BECAUSE THEY ARE PUT UP IN RETAIL PACKINGS . IN ITS OPINION , IT DOES NOT FOLLOW FROM THE TEXT OF THAT HEADING THAT THE DIMENSIONS OF THE GOODS ARE RELEVANT FOR CLASSIFICATION PURPOSES . HOWEVER , SINCE THE COMMISSION HAS LAID EMPHASIS ON THAT ASPECT IN REGULATION NO 2282/79 , THE BUNDESFINANZHOF CONSIDERS THAT THE INTERPRETATION OF THE TARIFF HEADING IN QUESTION IS OPEN TO DOUBT AND HOLDS ITSELF BOUND , UNDER THE FIRST AND THIRD PARAGRAPHS OF ARTICLE 177 OF THE EEC TREATY , TO REFER THE QUESTIONS RAISED BY REGULATION NO 2282/79 TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING . IF , IN SPITE OF ITS SCOPE BEING LIMITED TO GOODS OF SPECIFIC DIMENSIONS , THAT REGULATION IS APPLICABLE TO GOODS OF DIFFERENT DIMENSIONS , THE BUNDESFINANZHOF EXPRESSES DOUBT AS TO WHETHER , IN ADOPTING THE REGULATION , THE COMMISSION DID NOT OVERSTEP THE BOUNDS OF THE AUTHORIZATION CONFERRED UPON IT BY REGULATION NO 97/69 .

9 IN ORDER TO RESOLVE THOSE DOUBTS , THE BUNDESFINANZHOF REFERRED THE FOLLOWING TWO QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

' ' 1 . IS TARIFF HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF TO BE INTERPRETED AS MEANING THAT THE PHRASE ' PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES ' REQUIRES CONFORMITY WITH SPECIFIC MAXIMUM DIMENSIONS?

2.IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE , WHAT ARE THOSE MAXIMUM DIMENSIONS?

' '

INTERPRETATION OF TARIFF HEADING NO 30.04

10 HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF READS AS FOLLOWS :

' ' WADDING , GAUZE , BANDAGES AND SIMILAR ARTICLES ( FOR EXAMPLE , DRESSINGS , ADHESIVE PLASTERS , POULTICES ), IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES OR PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES . . . ' '

11 THAT HEADING WAS THE SUBJECT-MATTER OF THE FOLLOWING EXPLANATORY NOTE DRAWN UP BY THE CUSTOMS COOPERATION COUNCIL :

' ' WADDING AND GAUZE FOR DRESSINGS ( USUALLY OF ABSORBENT COTTON ) AND BANDAGES , ETC ., NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES , ARE ALSO CLASSIFIED IN THIS HEADING , PROVIDED THEY ARE EXCLUSIVELY INTENDED ( E.G ., BECAUSE OF THE LABELS AFFIXED OR SPECIAL FOLDING ) FOR SALE DIRECTLY WITHOUT RE-PACKING , TO USERS ( PRIVATE PERSONS , HOSPITALS , ETC .) FOR USE FOR MEDICAL OR SURGICAL PURPOSES . ' '

12 IT IS NOT DISPUTED THAT , HAVING REGARD TO THEIR LABELLING , FOLDING AND PACKAGING , THE GOODS IN QUESTION ARE IN FACT PACKED FOR MEDICAL OR SURGICAL PURPOSES .

13 THE COMMISSION CONTENDED , DURING THE PROCEEDINGS BEFORE THE COURT , THAT THE GOODS IN QUESTION COULD STILL BE USED FOR OTHER PURPOSES , FOR EXAMPLE FOR WRAPPING CERTAIN TYPES OF CHEESE , AS FILTER CLOTHS FOR MILK , AS AN ANCILLARY MATERIAL FOR THERMAL INSULATION OR BOOK-BINDING AND FOR THE MANUFACTURE OF SANITARY TOWELS . IT APPEARS , HOWEVER , THAT GOODS SUCH AS THOSE AT ISSUE CANNOT BE USED FOR THE ABOVE PURPOSES IN VIEW OF THEIR SPECIFIC PACKAGING AS DESCRIBED BY THE BUNDESFINANZHOF . THAT PART OF THE COMMISSION ' S OBSERVATIONS MUST THEREFORE BE DISREGARDED SINCE IT IS NOT RELEVANT TO THE QUESTIONS RAISED .

14 SINCE IT IS THUS ESTABLISHED THAT THE PRODUCT IN QUESTION CAN BE USED ONLY FOR MEDICAL OR SURGICAL PURPOSES , THE CRUX OF THE PROBLEM IS WHETHER GOODS WHICH ARE PRESENTED IN THE MANNER DESCRIBED MAY BE REGARDED AS ' ' PUT UP IN RETAIL PACKINGS ' ' .

15 THE EXPLANATORY NOTE TO THE CUSTOMS COOPERATION COUNCIL NOMENCLATURE THROWS SOME LIGHT ON THAT POINT , SPECIFYING THAT THE PRODUCT MUST , BY VIRTUE OF ITS PACKAGING , CLEARLY BE ' ' EXCLUSIVELY INTENDED FOR SALE DIRECTLY WITHOUT RE-PACKING TO USERS ( PRIVATE PERSONS , HOSPITALS , ETC .) ' ' .

16 THAT NOTE IS BASED ON A WIDE INTERPRETATION OF THE EXPRESSION ' ' PUT UP IN RETAIL PACKINGS ' ' , INASMUCH AS IT INCLUDES AS POSSIBLE PURCHASERS NOT ONLY TYPICAL RETAIL CUSTOMERS BUT ALSO ESTABLISHMENTS SUCH AS HOSPITALS WHICH USE LARGE QUANTITIES OF THE MATERIAL IN QUESTION . HOWEVER , TO EXTEND THAT EXPRESSION TO COVER GOODS THAT ARE SUITABLE FOR USE BY HOSPITALS OR SIMILAR INSTITUTIONS BUT ARE NOT PUT UP IN PACKINGS THAT CAN ALSO BE SOLD TO INDIVIDUALS IN RETAIL TRADE WOULD BE TO EXCEED THE SCOPE OF HEADING NO 30.04 .

17 IT IS EVIDENT , THEREFORE , THAT GAUZE TO BE USED FOR MEDICAL OR SURGICAL PURPOSES CANNOT BE CLASSIFIED UNDER HEADING NO 30.04 WHERE IT IS PACKED IN SUCH A WAY THAT IT CAN BE INTENDED FOR SALE ONLY TO LARGE-SCALE USERS , SUCH AS HOSPITALS , BUT CANNOT BE SOLD JUST AS IT IS TO INDIVIDUALS .

COMMISSION REGULATION NO 2282/79

18 COMMISSION REGULATION NO 2282/79 , THE RELEVANCE AND VALIDITY OF WHICH HAVE BEEN CALLED IN QUESTION BEFORE THE BUNDESFINANZHOF , CONTAINS THE FOLLOWING PROVISION :

' ' ARTICLE 1

LENGTHS OF ABSORBENT COTTON FABRIC ( KNOWN AS ' GAUZE ' ), NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES , 100 M LONG AND 0.65 M WIDE , CONCERTINA-FOLDED , INDIVIDUALLY WRAPPED AND LABELLED , SHALL BE CLASSIFIED IN THE COMMON CUSTOMS TARIFF UNDER SUBHEADING :

55.09 OTHER WOVEN FABRICS OF COTTON :

A . CONTAINING 85% OR MORE BY WEIGHT OF COTTON :

I . OF A WIDTH OF LESS THAN 85 CM . ' '

19 THE PREAMBLE TO THAT REGULATION , WHICH WAS ADOPTED ON THE BASIS OF REGULATION NO 97/69 OF THE COUNCIL , STATES THAT ' ' IN ORDER TO ENSURE UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF , PROVISION MUST BE MADE FOR THE CLASSIFICATION OF LENGTHS OF ABSORBENT COTTON FABRIC ( KNOWN AS ' GAUZE ' ), NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES , 100 M LONG AND 0.65 M WIDE CONCERTINA-FOLDED , INDIVIDUALLY WRAPPED AND LABELLED ' ' . THE PREAMBLE REPEATS THE WORDING OF HEADING NO 30.04 AND GOES ON TO STATE THAT ' ' IN VIEW OF THEIR DIMENSIONS , THESE ARTICLES , EVEN IF THEY ARE INDIVIDUALLY WRAPPED AND LABELLED , CANNOT BE CONSIDERED AT THE TIME OF IMPORTATION AS BEING PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES ' ' AND THAT SINCE THEY CANNOT BE CLASSIFIED UNDER HEADING NO 30.04 , THEY MUST , ' ' HAVING REGARD TO THEIR NATURE AND DIMENSIONS ' ' , BE CLASSIFIED UNDER SUBHEADING 55.09 A I .

20 WHEN ASKED THE REASONS UNDERLYING THAT MEASURE , THE COMMISSION STATED THAT IT WAS ADOPTED ON A PROPOSAL FROM THE FRENCH DELEGATION WITHIN THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE , ESTABLISHED BY REGULATION NO 97/69 , AND THAT THE DIMENSIONS SPECIFIED IN REGULATION NO 2282/79 ARE THE NORMAL DIMENSIONS OF GAUZE USED IN FRENCH HOSPITALS .

21 THE LEGISLATIVE TECHNIQUE ADOPTED IN REGULATION NO 2282/79 IS UNDOUBTEDLY OPEN TO QUESTION , SINCE , BY REFERRING TO THE NORMAL DIMENSIONS OF SURGICAL GAUZE IN ONE MEMBER STATE , THAT REGULATION HAS CREATED UNCERTAINTY IN THE LAW FOR ALL THE OTHER MEMBER STATES , AS IS SHOWN BY THE PRESENT DISPUTE . NEVERTHELESS , AS THE COMMISSION HAS EXPLAINED , THE PRINCIPLE OF THAT REGULATION IS IN CONFORMITY WITH THE INTERPRETATION SET OUT ABOVE , INASMUCH AS THE CRITERION OF ' ' RETAIL SALE ' ' EXCLUDES FROM HEADING NO 30.04 WOVEN FABRICS WHICH ARE PACKED IN SUCH A WAY THAT THEY CAN BE USED ONLY BY HOSPITALS OR OTHER LARGE-SCALE USERS .

22 CONSEQUENTLY REGULATION NO 2282/79 PROVIDES USEFUL GUIDANCE FOR THE INTERPRETATION OF HEADING NO 30.04 AND ACCORDINGLY , WITHOUT ITS BEING NECESSARY OR EVEN DESIRABLE TO LAY DOWN SPECIFIC DIMENSIONS , HEADING NO 30.04 EXCLUDES ALL PIECES OF WOVEN FABRIC WHOSE DIMENSIONS AND PACKAGING APPEAR TO RULE OUT RETAIL SALE TO INDIVIDUALS .

23 IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS , THE ANSWER TO THE FIRST QUESTION MUST BE THAT HEADING NO 30.04 OF THE COMMON CUSTOMS TARIFF IS TO BE INTERPRETED AS MEANING THAT THE EXPRESSION ' ' PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES ' ' IMPLIES THAT A PRODUCT , IN ORDER TO BE CLASSIFIED UNDER THAT HEADING , MUST NOT EXCEED THE DIMENSIONS WHICH ENABLE IT TO BE SOLD BY RETAIL TO ANY USER , INCLUDING INDIVIDUAL PERSONS . THAT HEADING THEREFORE EXCLUDES A PRODUCT WHICH IS PACKED IN SUCH A WAY THAT IT CAN BE SOLD , WITHOUT RE-PACKING , ONLY TO HOSPITALS OR OTHER LARGE-SCALE USERS .

24 IN THE LIGHT OF THAT ANSWER , THE SECOND QUESTION SUBMITTED BY THE BUNDESFINANZHOF IS DEVOID OF PURPOSE .

Decision on costs

COSTS

25 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 12 OCTOBER 1982 , HEREBY RULES :