C-37/82
ECLI:EU:C:1982:340
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JUDGMENT OF THE COURT (THIRD CHAMBER) 6 OCTOBER 1982 1
Nederlandsch Bevrachtingskantoor BV v Inspecteur der Invoerrechten en Accijnzen, Amsterdam (reference for a preliminary ruling from the Tariefcommissie, Amsterdam)
(Common Customs Tariff — Surgical covering cloths)
Case 37/82
Common Customs Tariff— Tariff headings — "Wadding, gauze, bandages and similar articles ... impregnated or coated with pharmaceutical substances or put up in retail packings for medical or surgical purposes" within the meaning of heading 30.04 — Meaning — Surgical covering cloths — Included
Surgical covering cloths which consist of used only once in surgical operations for strips of cellulose separated by a layer of the purpose of covering the patient's synthetic material and which are not body in such a way that the area of the impregnated or coated with pharma operation is left clear must be regarded ceutical substances but are individually as articles similar to wadding, gauze or packed in envelopes in sterile conditions bandages within the meaning of heading for retail for surgical purposes and are 30.04 of the Common Customs Tariff.
In Case 37/82
REFERENCE to the Court under Article 177 of the EEC Treaty by the Tariefcommissie [administrative court of last instance in revenue matters], Amsterdam, for a preliminary ruling in the action pending before that court between
NEDERLANDSCH BEVRACHTINGSKANTOOR BV, Amsterdam,
and
INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN [Inspector of Customs and Excise], AMSTERDAM,
1 — Language of [he Case: Dutch.
JUDGMENT OF 6. 10. 1982 — CASE 37/82
on the interpretation of heading 30.04 of the Common Customs Tariff,
THE COURT (Third Chamber ),
composed of: A. Touffait, President of Chamber , Lord Mackenzie Stuart and U . Everling, Judges ,
Advocate General : P . VerLoren van Themaat Registrar: J. A. Pompe , Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of measuring 65 cm X 45 cm, individually the procedure and the observations packed in a hermetically sealed envelope, submitted pursuant to Article 20 of the on which is printed inter alia "sterile Protocol on the Statute of the Court of disposable poly-towel 3520-S" and Justice may be summarized as follows: "surgical covering cloth" and "sterilized with ethylene oxide". These surgical covering cloths consist of three sheets I — Facts and written procedure laid one on top of the other and sealed around the edges; there is one layer of blue material, one white and a sheet of On 11 January 1980 Nederlandsch Be synthetic plastic material in the middle. vrachtingskantoor BV, the plaintiff in the main action, submitted a customs The director of the Ministry of Finance's declaration for importation into the laboratory in Amsterdam came to the Netherlands of "surgical covering conclusion after an examination that cloths", described in the declaration as both the blue and white layers should be "articles of bonded fibre fabrics for regarded as paper. That conclusion was medical use, heading 59.03". The goods confirmed by a report from the fibre in question are rectangular sheets institute TNO in Delft.
BEVRACHTINGSKANTOOR v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
In accordance with the declaration the The order making the reference was goods were first of all classified under lodged at the Court Registry on 22 heading 59.03 of the Tariff. After an January 1982. objection lodged by the plaintiff, who considered that the goods were intended for medical use and ought to be classified under heading 30.04, the Pursuant to Article 20 of the Protocol on Inspecteur der Invoerrechten en the Statute of the Court of Justice Accijnzen classified the goods in written observations were submitted by question under subheading 48.21 D. In the Commission, represented by T. van the view of the Netherlands authorities, Rijn, a member of its Legal Department, although the goods are used for acting as Agent. Upon hearing the report operations, they cannot be compared of the Judge-Rapporteur and the views with wadding, gauze and bandages of the Advocate General, the Court classified under heading 30.04; rather, decided to open the oral procedure they are comparable to operating sheets without any preparatory inquiry and to and similar articles also used to improve refer the case to the Third Chamber. hygiene during an operation and thus to avoid as far as possible any risk of infection.
II — Written observations sub Nederlandsch Bevrachtingskantoor BV, mitted pursuant to Article appealed against the decision of the 20 of the Protocol on the Inspecteur der Invoerrechten en Statute of the Court of Accijnzen to the Tariefcommissie. The Justice of the EEC Tariefcommissie took the view that the interpretation of heading 30.04 of the Common Customs Tariff was in issue and decided by order of 13 January 1982 The Commission begins its observations to stay the proceedings and refer the by saying that the question of interpret following question to the Court of ation raised by the Tariefcommissie Justice of the European Communities for involves determining whether covering a preliminary ruling: cloths may be regarded as falling within the description "wadding, gauze, bandages and similar articles ... put up "Can covering cloths such as those in in retail packings for medical or surgical issue in these proceedings — which purposes". consist of strips of cellulose separated by a layer of synthetic material, are not impregnated or coated with pharma ceutical substances but are individually In the Commission's view, covering packed in envelopes in sterile conditions cloths are not similar to wadding, gauze for retail for surgical purposes, and are and bandages because their function is used only once in surgical operations for different. They are not intended to cover the purpose of covering the patient's a wound or part of the body in order to body in such a way that the area of the facilitate or accelerate healing; their operation is left clear — be regarded as function is solely to cover the body articles similar to wadding, gauze or around the wound for reasons of bandages within the meaning of heading hygiene without contributing to healing 30.04 of the Common Customs Tariff?" the wound itself.
JUDGMENT OF 6. 10. 1982 — CASE 37/82
In addition, the Commission considers In conclusion the Commission proposes that covering cloths are not intended that the Court should answer the either for medical or surgical purposes. question put to it for a preliminary ruling In that respect, it observes that covering by the Tariefcommissie as follows : cloths in no way contribute to healing the wound and submits that the words "On a proper construction of heading "articles intended for surgical purposes" 30.04 of the Common Customs Tariff, must be strictly construed. Such articles surgical covering cloths such as those in are those used directly in the practice of question in the present case cannot be surgery and not articles having another regarded as articles similar to wadding, function such as, for example, the gauze or bandages put up in retail improvement of hygiene. packings for medical or surgical purposes." In the Commission's view, heading 48.21 D of the Common Customs Tariff in the version in force in 1980 (Council Regulation No 3000/79 of 20. 12. 1979, Official Journal L 342) is applicable. In Ill — Oral procedure support of that argument the Com mission refers also to the tariff classi fication of a product which, in its view, At the sitting on 17 June 1982 oral has a function similar to that of the argument was presented for the Com surgical covering cloths, namely mission of the European Communities by drawsheets, classified by Regulation No T. van Rijn, a member of its Legal 1484/70 of the Commission of 24 July Department. 1970 (Official Journal, English Special Edition 1970 (II) p. 480) under sub The Advocate General delivered his heading 48.21. opinion at the sitting on 15 July 1982.
Decision
1 By order of 13 January 1982, which was received at the Court on 22 January 1982, the Tariefcommissie [administrative court of last instance in revenue matters], Amsterdam, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of tariff heading 30.04 of the Common Customs Tariff.
2 That question was raised in the course of a dispute between the Neder- landsch Bevrachtingskantoor BV and the Inspecteur der Invoerrechten en Accijnzen [Inspector of Customs and Excise], Amsterdam, on the tariff classi fication of surgical covering cloths.
3 Such surgical covering cloths are rectangular in shape and consist of three sheets laid one on top of the other and sealed around the edges. The two
BEVRACHTINGSKANTOOR v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
outer sheets are of paper, whilst the inner sheet is of plastic. Such surgical covering cloths, which are completely sterile, are intended for use during surgical operations in order to cover the patient's body in such a way that the area of the operation is left clear. Although the cloths are neither impregnated nor treated with bactericides, the parties to the main action concur in considering that they fulfil an antiseptic function.
4 According to the plaintiff in the main action, such surgical covering cloths must be classified under heading 30.04 of the Common Customs Tariff, which is worded 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 ..."
5 The Inspecteur der Invoerrechten en Accijnzen considers that the surgical covering cloths cannot be treated as equivalent to wadding, gauze and bandages since, unlike the latter products, they do not cover the area of the operation. According to him, such cloths are comparable to operating sheets, which are not classified under tariff heading 30.04. He suggests that they should be classified under tariff heading 48.21 D, which at the time of the importation in question was worded as follows:
"48.21: Other articles of paper pulp, paper, paperboard or cellulose wadding:
A. ...
B. ...
C. ...
D. Other ..."
6 Those were the circumstances in which the national court referred the following question to the Court of Justice:
"Can covering cloths such as those in issue in these proceedings — which consist of strips of cellulose separated by a layer of synthetic material, are not impregnated or coated with pharmaceutical substances but are individually packed in envelopes in sterile conditions for retail for surgical purposes, and are used only once in surgical operations for the purpose of covering the patient's body in such a way that the area of the operation is
JUDGMENT OF 6. 10. 1982 — CASE 37/82
left clear — be regarded as articles similar to wadding, gauze or bandages within the meaning of heading 30.04 of the Common Customs Tariff?"
7 In the observations which it has submitted to the Court the Commission maintains that the heading of the Common Customs Tariff to be applied in this case is heading 48.21 D. According to it, surgical covering cloths are not similar to wadding, gauze and bandages in so far as they do not, like the latter products, facilitate or accelerate the healing of the wound but fulfil a purely hygienic function. In addition the Commission considers that surgical covering cloths cannot be regarded as being intended for surgical purposes within the meaning of heading 30.04 because that heading refers solely to articles used directly in the practice of surgery to the exclusion of those having an entirely different function such as, for example, the improvement of hygiene.
8 Having regard to the arguments thus summarized, it is appropriate to observe that the composition and form of the products listed under tariff heading 30.04 differ so greatly from one product to another that it is impossible to consider that the similar products mentioned in that tariff heading can be identified on the basis of those criteria. In fact, as the Commission emphasized in its observations, the similarity between those products lies in their function, which is to cover or protect a wound in order to facilitate or accelerate healing.
9 It cannot be contested that surgical covering cloths used in order to maximize asepsis during a surgical operation are intended to facilitate the recovery of the patient by reducing the risk of infection. It follows that surgical covering cloths must be regarded as products similar to those listed under tariff heading 30.04.
10 A further condition for the classification of these surgical covering cloths under tariff heading 30.04 is that they should either be impregnated or coated with pharmaceutical substances or be put up in retail packings for medical or surgical purposes. It is agreed that the products are neither impregnated nor coated with pharmaceutical substances but that they are, on the other hand, put up in retail packings. The Commission, however, disputes that they are used for medical or surgical purposes.
BEVRACHTINGSKANTOOR v INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN
u Although the point does not appear to have been raised before the Tariefcommissie it should nevertheless be made clear, in order to enable that court correctly to apply the relevant provisions of the Common Customs Tariff, that, if it is established that surgical covering cloths are specially designed for use in the course of surgical operations and in order to prevent any risk of contamination or infection thereby created, it cannot be denied that they are employed for surgical purposes.
12 Accordingly, the reply to the question submitted by the Tariefcommissie must be that surgical covering cloths which consist of strips of cellulose separated by a layer of synthetic material and which are not impregnated or coated with pharmaceutical substances but are individually packed in envelopes in sterile conditions for retail for surgical purposes and are used only once in surgical operations for the purpose of covering the patient's body in such a way that the area of the operation is left clear must be regarded as articles similar to wadding, gauze or bandages within the meaning of heading 30.04 of the Common Customs Tariff.
Costs
13 The costs incurred by the Commission of the European Communities, which 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.
On those grounds,
THE COURT (Third Chamber),
in answer to the question referred to it by the Tariefcommissie, Amsterdam, by order of 13 January 1982, hereby rules:
Surgical covering cloths which consist of strips of cellulose separated by a layer of synthetic material and which are not impregnated or coated with pharmaceutical substances but are individually packed in envelopes in sterile conditions for retail for surgical purposes and are used only once
OPINION OF MR VERLOREN VAN THEMAAT — CASE 37/82
in surgical operations for the purpose of covering the patient's body in such a way that the area of the operation is left clear must be regarded as articles similar to wadding, gauze or bandages within the meaning of heading 30.04 of the Common Customs Tariff.
Touffait Mackenzie Stuart Everling
Delivered in open court in Luxembourg on 6 October 1982.
P . Heim A. Touffait
Registrar President of the Third Chamber
OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT 1 DELIVERED ON 15 JULY 1982
Mr President or surgical purposes, other than goods Members of the Court, specified in Note 3 to this chapter."
It is clear that if that first tariff heading In this case the question arises whether is not applicable the second-mentioned operating cloths whose composition is tariff heading is the only one which may that described by the court making the be considered applicable (other articles reference come under heading 30.04 or of paper pulp, paper, paperboard or heading 48.21 D of the Common cellulose wadding, residuary category D, Customs Tariff in the version in force in in the version contained in Council the relevant period. Regulation No 3000/79 of 20 December 1979 [Official Journal L 342 of 31 December 1979]). Under the first-mentioned tariff heading come: "Wadding, gauze, bandages and Only the Commission has submitted similar articles (for example, dressings, written observations. I share the adhesive plasters, poultices), impregnated Commission's opinion that the operating or coated with pharmaceutical substances cloths in question, unlike wadding, or put up in retail packings for medical gauze, bandages and the other articles
1 — Translated from the Dutch.