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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Biochem (Common Customs Tariff) [2002] EUECJ C-259/00 (07 March 2002) URL: http://www.bailii.org/eu/cases/EUECJ/2002/C25900.html Cite as: [2002] EUECJ C-259/00, [2002] EUECJ C-259/ |
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JUDGMENT OF THE COURT (Fourth Chamber)
7 March 2002 (1)
(Common Customs Tariff - Tariff headings - Tariff classification of immunoglobulin concentrates from colostrum - Classification in the Combined Nomenclature)
In Case C-259/00,
REFERENCE to the Court under Article 234 EC by the Finanzgericht München (Germany) for a preliminary ruling in the proceedings pending before that court between
Biochem Zusatzstoffe Handels- und Produktions GmbH
and
Oberfinanzdirektion Nürnberg,
on the interpretation of Chapter 30 of 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 (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 2086/97 of 4 November 1997 (OJ 1997 L 312, p. 1),
THE COURT (Fourth Chamber),
composed of: D.A.O. Edward (Rapporteur), acting for the President of the Fourth Chamber, A. La Pergola and C.W.A. Timmermans, Judges,
Advocate General: C. Stix-Hackl,
Registrar: R. Grass,
after considering the written observations submitted on behalf of:
- Biochem Zusatzstoffe Handels- und Produktions GmbH, by J. Völkerding, Rechtsanwalt,
- Oberfinanzdirektion Nürnberg, by R. Beußel, acting as Agent,
- the Commission of the European Communities, by J.C. Schieferer, acting as Agent,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 2 October 2001,
gives the following
Law applicable
The Combined Nomenclature
0404 Whey, whether or not concentrated or containing added sugar or other sweetening matter; products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included:
0404 10 - Whey and modified whey, whether or not concentrated or containing added sugar or other sweetening matter:
- - In powder, granules or other solid forms:
- - - Not containing added sugar or other sweetening matter, of a protein content (nitrogen content x 6.38), by weight:
...
0404 10 06 - - - - - Exceeding 27%
- - - - Exceeding 15%, and of a fat content, by weight:
0404 10 12 - - - - - Not exceeding 1.5%
0404 10 14 - - - - - Exceeding 1.5% but not exceeding 27%
...
0404 90 - Other:
...
This chapter does not cover:
(a) ...
(b) ... globulins (heading No 3504).
For the purposes of subheading 0404 10, the expression modified whey means products consisting of whey constitutes, i.e., whey from which all or part of the lactose, proteins or minerals have been removed, whey to which natural whey constituents have been added, and products obtained by mixing natural whey constituents.
Glands and other organs for organo-therapeutic uses, dried, whether or not powdered; extracts of glands or other organs or of their secretions for organo-therapeutic uses; heparin and its salts; other human or animal substances prepared for therapeutic or prophylactic uses, not elsewhere specified or included;
...
Medicaments (excluding goods of heading Nos 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or in packings for retail sale:
...
This chapter does not cover:
(a) foods or beverages (such as dietetic ... or fortified foods, food supplements ...
...
3504 00 00 Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed.
Classification of goods in the combined nomenclature 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) ...
(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.
...
The Explanatory Notes of the HS
Extracts of glands or other organs or of their secretions for organo-therapeutic uses, obtained by solvent extraction, precipitation, coagulation or by any other process. These extracts may be in solid, semi-solid or liquid form, or in solution or suspension in any media necessary for their preservation.
...
The heading excludes:
...
(f) Globulins and globulin fractions (other than those of blood or serum) not prepared for therapeutic or prophylactic use (heading 3504).
This heading covers:
...
(B) Other protein substances and their derivatives, not covered by a more specific heading in the Nomenclature, including in particular:
...
(2) Globulins, e.g., lactoglobulins and ovoglobulins ...
The main proceedings and the question referred for a preliminary ruling
On a proper construction of the combined nomenclature, in the version of Annex I to Regulation (EC) No 2086/97 of 4 November 1997 ..., amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff are immunoglobulin concentrates from dried, defatted and decaseinated colostrum, standardised by means of lactose, to be classified as pharmaceutical products in Chapter 30?
The question referred for a preliminary ruling
Costs
28. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fourth Chamber),
in answer to the question referred to it by the Finanzgericht München by order of 19 April 2000, hereby rules:
On a proper construction of 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 2086/97 of 4 November 1997, immunoglobulin concentrates from dried, defatted and decaseinated colostrum, standardised by means of lactose, are to be classified as pharmaceutical products in Chapter 30 of the Combined Nomenclature.
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Edward
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Delivered in open court in Luxembourg on 7 March 2002.
R. Grass S. von Bahr
Registrar President of the Fourth Chamber
1: Language of the case: German.
