C-318/90
ECLI:EU:C:1992:93
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OPINION OF MR DARMON — CASE C-318/90
OPINION OF ADVOCATE GENERAL DARMON delivered on 26 February 1992 *
Mr President, that the goods came under heading 38.16 3 Members of the Court, ('prepared culture media for development of micro-organisms'), to which an autonomous duty of 1 1 % and a conventional duty of 6.4% apply. 1. The Bundesfinanzhof has submitted a question to the Court on the classification in the Common Customs Tariff ' ('CCT') of 'unsterile calf foetus serum'. 5. Boehringer was required to pay D M 4 7 810.95 in respect of those duties; it brought an application against the later clas- sification to the Finanzgericht, whose deci- sion was in turn appealed against by the 2. In 1982 Boehringer Mannheim G m b H Hauptzollamt. ('Boehringer') imported into the Community deep-frozen goods which were declared as 'calf foetus serum'.
6. The Bundesfinanzhhof, which is thus hearing the appeal on a point of law, asks the following questions: 3. The Hauptzollamt (Principal Customs Office) Mannheim released the goods for free circulation, originally classifying them under sub-heading 05.15 B 2 ('animal products not elsewhere specified or included; dead animals 'Should unsterile calf foetus serum have been of Chapter 1 or Chapter 3, unfit for human classified in 1982 under sub-heading 05.15 B consumption' other than fish, crustaceans or heading 38.16 of the Common Customs and molluscs), exempt from customs duties. Tariff? If not, under which other heading of the Common Customs Tariff should such goods have been classified?'
4. The customs authorities subsequently changed their interpretation and considered 7. Blood serum may be defined as the liquid part of the blood, consisting of plasma from which the fibrin has been removed. It is about 80% water, the remainder being a * Original language: French. 1 — As amended by Council Regulation (EEC) No 3300/81 of complex liquid. 16 November 1981 amending Regulation (EEC) No 950/68 on the Common Customs Tariff (OJ 1981 L 335, p. 1). 2 — In Chapter 5, 'Products of animal origin, not elsewhere spec- ified or included*. 3 — In Chapter 38, 'Miscellaneous chemical products'.
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HAUPTZOLLAMT MANNHEIM v BOEHRINGER
8. The goods imported by Boehringer can- to bring them to the required degree of acid- not be included under sub-heading 05.15 B ity or alkalinity, etc. unless they cannot be included under a more specific heading. 4
9. It must therefore first be ascertained They ('Toutes ces préparations' in the French whether calf serum comes under heading text) are usually in liquid form (broths), 38.16. If not, sub-heading 05.15 B will have paste or powders but may also be in tablets to be considered. or granule form, and are sterilized and put up in sealed glass bottles, tubes, ampoules or tins.
10. Can calf serum be regarded as 'prepared culture media for development of micro- organisms' within the category of 'miscella- neous chemical products', in the same way as 'composite solvents and thinners for var- The heading does not cover5 products not nishes and similar products' (38.18), insecti- prepared as culture media, for example, cides (38.11) and spirits of turpentine blood or egg albumin (heading 35.02). 6 (38.07)?
11. The Customs Cooperation Council's explanatory notes on nomenclature state that heading 38.16 covers various preparations in 12. The important words in the title of head- which bacteria, moulds, yeast and other ing 38.16 and the explanatory notes are in micro-organisms required for medical pur- my opinion the words 'prepared' and 'prep- poses (e. g., for obtaining antibiotics) or for arations'. other scientific purposes or in industry can find nourishment and multiply.
They are usually prepared from meat 13. It is clear that a prepared culture extracts, fresh blood or blood serum, and medium for development of micro- often contain additional ingredients. Acids, organisms is a product which has been pro- digestive ferments or alkalies may be added cessed in order to obtain industrial products,
4 — Sec Rule 3(a) of the Rules for the Interpretation of the 5 — Emphasis in the Explanatory Notes. Nomenclature of the Common Customs Tariff, in Regula- 6 — See the Explanatory Notes, February 1981 version, heading tion N o 3300/81, cited above, Section 1. 38.16, my emphasis.
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O P I N I O N OF MR D A R M O N — CASE C-318/90
some of which are highly sophisticated: the 18. Firstly, the Explanatory Note to Rule note refers to antibiotics, for example. 2(a) clearly states that that part of the rule 'does not normally apply' to goods of sec- tions I to V I . I 0 Calf serum can, however, only come under Section I (live animals; ani- 14. Unsterile calf foetus serum is the liquid mal products) or Section VI (products of the part of the blood obtained by décantation, as chemical and allied industries). was not disputed by the representative of the Commission, who was questioned on this point at the hearing. Even in the deep-frozen state, it is a raw product, not a worked one. 19. Even if the wording 'not normally' In my opinion, it therefore does not corre- means that it cannot be altogether excluded spond to the definition of heading 38.16. 7 that Rule 2(a) of the rules of interpretation might exceptionally apply to a heading in Section VI, can it be maintained — without overstraining the wording of the provisions 15. The Commission, arguing that calf — that a prepared culture medium for devel- serum does nevertheless come under that opment of micro-organisms is a 'complete' heading, relies on Rule 2(a) of the general or 'finished' article, while serum in the rules for the interpretation of the CCT, untreated state is an 'incomplete' or 'unfin- which states that 'any reference in a heading ished' culture medium? to an article shall be taken to include a refer- ence to that article incomplete or unfinished, provided that, as imported, the incomplete or unfinished article has the essential charac- ter of the complete or finished article'. 20. In International FUvors and Fragrances v Hauptzolhmt Bad Reichenhalln the Court was invited to interprete the second sentence of Rule 2(a) of the rules of interpre- 16. In the Commission's opinion, if unsterile tation. 12 In that judgment the Court serum cannot be classified under heading declined to regard morello cherry concen- 38.16 as a finished product, it comes under trate and black currant concentrate as fruit that heading as an 'incomplete' or 'unfin- juice imported 'unassembled or disassem- ished' article. 8 The Commission considers bled'. that all that is lacking to make the serum usable as a culture medium is sterilization. 9
21. Similarly, an unsterile serum is not a pre- pared culture medium for development of 17. That argument is not convincing. micro-organisms in an unfinished state. The culture medium in question is not strictly
7 — For the same reasons, this product cannot come under head- ing 30.01 — referred to briefly by the representative of the Commission at the hearing — which includes inter alia 'oth- 10 — Point III of the explanatory note to Ruie 2(a). er animal substances prepared for therapeutic or prophylactic 11 — Case 295/81 [1982] ECR 3239. uses, not elsewhere specified or included'. 12 — Any reference in a heading to an article 'shall also be taken 8 — Observations of the Commission, p. 6. to include a reference to that article complete or finished ..., 9 — Ibid, p. 7. imported unassembled or disassembled.'
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speaking a finished product but an inter- sentative of Boehringer casts doubt on that mediary product which is used as the basis statement, mentioning other possible uses for for the development of micro-organisms the serum, inter alia in the production of which are in turn used for the manufacture diagnostic substances. of chemical or industrial products, and only these constitute the finished product. The inappropriateness of the terms shows suffi- ciently clearly here that Rule 2(a), intended 25. From this I conclude that, in the present essentially for industrial products of sections state of the information available to the VII to XX of the CCT, does not apply to Court, it has not been shown that unsterile products of this type. calf serum is used only for the purpose referred to in heading 38.16. 13
22. Furthermore, does unsterile serum have the 'essential character' of a prepared culture 26. To be sure, Council Regulation (EEC) medium for the development of micro- N o 1945/86 of 18 June 1986 temporarily sus- organisms? The mere fact that it is used as a pending the autonomous Common Customs basis and an ingredient which goes to make Tariff duties 1 4 classified 'unsterile blood that culture medium does not permit the serum obtained from the blood of a bovine conclusion that it has its 'essential character'. foetus or non-immunized newly-born calf' In fact, only a product which is so close to under tariff heading 38.16. However, the pur- the finished product that it can come under pose of that regulation was not to carry out a the same tariff heading as the finished prod- tariff classification. The indication of the tar- uct can be accepted as having such character. iff heading in the table annexed to the regu- It is thus necessary at the very least that the lation was intended merely to identify as finished product can be recognized through precisely as possible the goods in respect of the unfinished product. That is not the case which duties were suspended, by using the here. existing tariff classification. Consequently, Regulation N o 1945/86 cannot be regarded as a classification, in the strict sense of the word, for Common Customs Tariff pur- poses. 23. Secondly, as has been noted above, the expUnatory notes of the nomenclature clearly exclude from heading 38.16 products 'not prepared as culture media'. 27. I therefore consider that calf foetus serum does not come under heading 38.16.
24. Finally, it is evident that a product which can be used for purposes other than the 28. Since heading 05.15 of the nomenclature development of micro-organisms cannot ('animal products not elsewhere specified or come under heading 38.16. Although the representative of the Commission stated at the hearing that sterile serum was used solely for the constitution of culture media for 13 — See also the order of the Bundesfinanzhof of 25 September 1990, infine. development of micro-organisms, the repre- 14 — OJ 1986 L 174, p. 7.
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OPINION OF MR DARMON — CASE C-31S/90
included; dead animals of Chapter 1 or 05.15 B. It is a generic product of animal ori- Chapter 3, unfit for human consumption') gin. Serum prepared in such a way that it can expressly includes 'animal blood, liquid or be assimilated to a chemical product comes dry, edible .or not', 15 calf serum must come under heading 38.16; it falls within the cate- under that heading, more specifically sub- gory of 'Miscellaneous chemical products', heading B relating to products other than the subject of Chapter 38 of the nomencla- fish, crustaceans and molluscs. ture.
29. In conclusion, the complete consistency of the tariff classification in this respect 30. There is accordingly no need to answer should be noted. Raw serum in its unpre- the second question put by the Bundesfinan- pared state comes under sub-heading zhof.
31. I therefore propose that the Court rule as follows:
(1) The Common Customs Tariff, as amended by Council Regulation (EEC) N o 3300/81 of 16 November 1981, must be interpreted as meaning that calf foetus serum does not come under heading 38.16.
(2) Such a product comes under subheading 05.15 B.
15 — Explanatory notes to the nomenclature, point 1; see also point 1(a) of the notes to Chapter 5 of Section 1 of Part II of the Common Customs Tariff.
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