2.

In its first question, the Bundesfinanzhof asks whether “heading No 30.04 of the Common Customs Tariff [is] to be interpreted as meaning that the phrase ‘put up in retail packings for medical or surgical purposes’ requires conformity with specific maximum dimensions”. I have already quoted the text of the tariff heading in question. Subject to further qualification let me say at the outset that the classification of the goods does not depend on their dimensions. The Bundesfinanzhof also takes that view. In its question, therefore, it seeks to ascertain whether the classification of the product is affected by Regulation No 2282/79 which prescribes that absorbent gauze of certain specified dimensions is to be classified under subheading 55.09 A I. I shall, however, proceed in the proper order. As I recalled in my Opinion in Case 175/82 Dinter [1983] ECR 978, the Court has repeatedly held in order to ensure legal certainty that the classification of goods for customs purposes must be based on the objective characteristics and properties of the goods when they are presented for customs clearance. In the present case, the objective characteristic to be verified is whether the product is “put up in retail packings” for medical or surgical purposes. The meaning of those words is also apparent from the case-law of the Court. Under the Common Customs Tariff — the Court has held — goods are generally regarded as “prepared” or “put up in retail packings” if “the product is objectively suitable, given the form in which it is presented, for sale by retail, without further packaging” (judgment of 11 February 1982 in Case 278/80 Chem-Tec v Hauptzolkmt Koblenz [1982] ECR 439, paragraph 12 of the decision), in other words, where the product is sold directly to the final consumer. The next step is, therefore, to consider the nature of the purchasers. The question arises whether the concept of retail sale encompasses Lohmann's disposal of the gauze, over 90% of which, as the Court is aware, is sold by Lohmann to hospitals and clinics. The answer can only be in the affirmative, as is expressly confirmed by the Explanatory Notes to heading No 30.04 of the Customs Cooperation Council Nomenclature; the purpose of those notes is to define the scope of the various headings and, as the Court itself has held in its judgment of 8 December 1970 in Case 14/70 Deutsche Bakels v Oberfinaiizdirektion München [1970] ECR 1001, they constitute, in the absence of Community explanatory notes, an authoritative source for the interpretation of the Common Customs Tariff. The Explanatory Note to heading No 30.04 includes the following passage: “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” (Note to heading No 30.04, Ref. EN/AS 28 — June 1978, p. 459, emphasis added). Faced with such a clear text, the Commission cannot but acknowledge that the sale of gauze to hospitals or to similar institutions also qualifies as sale by retail. However, it disputes that the disposal of the gauze by Lohmann qualifies as sale by retail relying on arguments which are not related to the nature of the purchasers. The gauze, the Commission observes, may be used for other purposes, for example for wrapping certain types of cheese, as filter cloths for milk and also in the manufacture of thermal insulation, bookbindings and sanitary towels. It also cannot be classified under heading No 30.04 by virtue of its dimensions which, in the first place, differ from those of gauze generally sold by retail (for example, in chemists' shops) and, secondly, are such that the product cannot correspond to a “direct requirement” on the part of purchasers. In order to use the gauze, hospitals and clinics are obliged to “re-package” it, having sterilized it and cut it to size. I am not swayed by those arguments. It is quite true that the gauze in question is also used for the purposes referred to by the Commission. However, it is also true that, in such cases, it is classified under different headings of the Common Customs Tariff. Thus, sanitary towels and tampons are classified under heading No 48.21, cotton gauze fabric under heading No 56.07 and so on. I intend to consider the dimensions of the gauze in greater detail in conjunction with Regulation No 2282/79, but, even at this stage, the incongruity of the Commission's argument cannot be overlooked. It is impossible to maintain that the sale of gauze to hospitals and clinics constitutes retail sale and, at the same time, to rely on the dimensions of the product available from chemists' shops. After all, individual needs and the requirements of a hospital establishment are quite different and, indeed, are not even capable of comparison. The Commission is no more persuasive when it contends, again in reliance on the dimensions of the gauze, that the gauze is not “put up in retail packings” since hospitals are obliged to cut it and to sterilize it. In that regard, it may be pointed out that sterilization is not a necessary prerequisite for all the products covered by heading No 30.04 and, in particular, not for those which are neither impregnated nor coated with pharmaceutical substances. Furthermore, the process of cutting the gauze is tantamount to re-packaging only where it is carried out with a view to reselling the product to a third person. In any event, it seems incontestable to me that the packaging of the gauze varies according to the type of purchaser (a private individual or a hospital) and according to the use to which it is put by the purchaser.