Case C‑124/15

Salutas Pharma GmbH

v

Hauptzollamt Hannover

(Request for a preliminary ruling from the Finanzgericht Hamburg)

‛Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — Heading 3004 — Effervescent tablets containing 500 mg of calcium — Level of substance per recommended daily dose significantly higher than the recommended daily allowance to maintain general health or well-being’

Summary — Judgment of the Court (First Chamber), 17 February 2016

Customs union — Common Customs Tariff — Tariff headings — Interpretation — Explanatory notes to the Combined Nomenclature — Note relating to Chapter 30 — Interpretation — Effervescent tablets with a calcium content of 500 mg per tablet, used for the prevention and treatment of a calcium deficiency and to support a special therapy for the prevention and treatment of osteoporosis — Maximum daily dose of 1500 mg — Classification under heading 3004

(Council Regulation No 2658/87, Annex I)

The Combined Nomenclature in Annex I to Regulation No 2658/87 on the tariff and the statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1006/2011 must be interpreted as meaning that a product, such as effervescent tablets with a calcium content of 500 mg per tablet that is used for the prevention and treatment of a calcium deficiency and to support a special therapy for the prevention and treatment of osteoporosis, and for which the maximum recommended daily dose for adults indicated on the label is 1500 mg, falls within heading 3004 of that nomenclature.

The explanatory note relating to Chapter 30 of the combined nomenclature is meant to clarify that criterion, by stating that it covers the recommended daily dose, the vitamins or mineral content of which is ‘much higher, generally at least three times higher than the recommended daily allowance’.

First, that explanatory note, which does not have binding legal force, provides that a product in respect of which the vitamin or mineral content of the recommended daily dose is three times higher than the recommended daily allowance is to be included in that chapter if all the other conditions are also met. Second, as regards the use of the word ‘generally’ in that note, the latter does not exclude products from Chapter 30 of the CN solely because the vitamin or mineral content of their recommended daily dose is not three times higher than the recommended daily allowance.

Therefore, the explanatory note relating to Chapter 30 of the combined nomenclature cannot be interpreted as meaning that the vitamin or mineral content of the recommended daily dose of the products composed of those substances must be three times the recommended daily allowance in order for them to be classified under heading 3004 of the combined nomenclature.

Where the quantity of vitamins, minerals, essential amino acids and fatty acids contained in the recommended daily dose of a product with the objective characteristics and properties defined by the wording of heading 3004 of the combined nomenclature is significantly higher than what is necessary or recommended for general dietary purposes, it must be classified under that heading.

(see paras 34-37, 40, operative part)