C-191/91
ECLI:EU:C:1992:395
- Súd
- Súdny dvor Európskej únie
- IČS
- 61991CC0191
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR VAN GERVEN — CASE C-191/91
OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 15 October 1992 *
Mr President, tests for diagnostic purposes, namely detect- Members of the Court, ing and identifying certain substances in human serum and plasma.
1. In this case, the Bundesfinanzhof ('the national court') has referred to the Court for a preliminary ruling a number of questions In late May and early June 1989, the Oberfi- relating to the interpretation of heading nanzdirektion issued binding tariff classifica- 3002 of the Common Customs Tariff ('the tion notices relating to four of Abbott's kits. CCT') and the subheadings thereof, as set O n the basis both of the monoclonal diag- out in the Report of the Judge-Rapporteur, nostic reagent or antibody which determined with a view to the classification of mono- their nature and of their composition, those clonal antibodies. four kits were classified by the Oberfinanz- direktion under subheading 3002 90 90, 'oth- er' products, of the Combined Nomencla- ture. Abbott challenged that classification, relying, inter alia, on a non-binding tariff As we know, the C C T Combined Nomen- notice issued to it by the United Kingdom clature was laid down by Council Regulation customs authorities for one of those kits, (EEC) N o 2658/87 of 23 July 1987 on the referring to subheading 3002 90 30, 'animal tariff and statistical nomenclature and on the blood prepared for ... diagnostic uses.' Common Customs Tariff. 1 The questions arise in the context of a dispute between the company Abbott G m b H and the Oberfinan- zdirektion Köln.
Abbott's objection was, however, dismissed. It then appealed to the national court, seek- ing the annulment of the said binding tariff 2. Abbott is part of the Abbott group, a classification notices and the classification of leading group in the pharmaceutical industry. the kits under subheading 3002 10 10, 'antis- Amongst other things, it markets sets of era.' goods known as 'test-kits'. They are kits, packaged for retail sale, containing various laboratory reagents for use as immunoassay
3. The national court asks the Court, in sub- * Original language: Dutch. 1 — OJ 1987 L 256, p. 1. Numerous amendments have been made stance, if the C C T Combined Nomenclature to it since then, but none are relevant to the present case. is to be interpreted as meaning that the kits
I-878
ABBOTT v OBERFINANZDIREKTION KÖLN
in question are to be classified, pursuant to capable of classification under at least two general rule 3(b) of the CCT, as 'other' prod- C C T headings. There is no heading with a ucts within the meaning of subheading more specific description which, under gen- 3002 90 90 or rather as antisera under sub- eral rule A.3(a), should be preferred over heading 3002 10 10 or, if neither of those is headings of more general scope. Conse- correct, under which other subheading of quently, we should apply general rule A.3(b) heading 3002 or of another heading of the which specifies, inter alia, that 'goods put up C C T (such as heading 3822) those kits in sets for retail sale' are to 'be classified as if should properly be classified. they consisted of the material or component which gives them their essential character in so far as this criterion is applicable.'
4. Written observations have been submitted by Abbott and by the Commission and are set out in the Report of the Judge- Rapporteur. In its observations, the Com- mission proposed that the kits in question 6. I consider it self-evident that the kits are should be included under subheading to be regarded as goods put up in sets for 3002 10 91. By letter of 21 February 1992, retail sale. 2 It is therefore a matter of identi- Abbott intimated that it had reconsidered its fying the material which gives the kits their position in the meantime and n o w agreed essential character. The national court, the with the Commission's point of view. It parties to the main proceedings and the admits that it had not taken sufficient Commission all agree that the monoclonal account of the importance of the material antibodies are what gives that character. nature of sera for the classification of anti- Those antibodies are produced in the blood bodies and that it therefore no longer main- by B-lymphocytes (also known as blood- tains its proposed classification under tariff lymphocytes, a type of white blood corpus- heading 3002 10 10. cles) which are themselves components of blood (or 'blood fractions', to use the termi- nology of the CCT); such monoclonal anti- bodies are thus also blood fractions and are referred to as immunoglobulins. The mono- clonal antibodies produced in a laboratory 5. I, too, am convinced by the Commission's with a view to making u p the kits with views, in which I find the following points of which this case is concerned are obtained by importance. separation from a hybridoma (resulting from the fusion of a B-lymphocyte and a cancer cell). Since such antibodies are the same as those given off by B-lymphocytes in the blood, those monoclonal antibodies are also immunoglobulins. In the first place, as the national court points out in its order for reference, the general rules for the interpretation of the Combined 2 — For further consideration of what is to be understood by Nomenclature must be applied. The kits in 'goods put up in sets' within the meaning of general rule A.3, see Case 163/84 Hauptzollamt Hannover v Telefunken question are made up of different substances [1985] ECR 3299, paragraph 35.
I-879
O P I N I O N OF MR V A N GERVEN — CASE C-191/91
Since the essential component of the kits is graph, sera are the fluid fractions separated immunoglobulin and immunoglobulin is from blood after clotting, and that is not the regarded, according to the Explanatory case for monoclonal antibodies. The kits Notes to the nomenclature issued by the must consequently be classified as 'other Customs Cooperation Council, 3 as a blood blood fractions.' fraction, 4 it is right to classify the kits under subheading 3002 10, 'antisera and other blood fractions.' It is thus unnecessary to resort, as the Oberfinanzdirektion did, to subheading 3002 90 90, 'other' products. Finally, among those 'other blood fractions,' a choice must be made between 'haemoglo- bin, blood globulins and serum globulins' (3002 10 91), 'other' fractions 'of human ori- 7. The precise classification of the kits under gin' (3002 10 95) and 'other' 'other' fractions one of the subheadings of 3002 10 remains to (3002 10 99). For the Commission it is clear, be determined. First, it is necessary to and Abbott does not contest, that immuno- choose between 'antisera' and 'other blood globulins are blood globulins or serum glob- fractions', the latter being further subdivided ulins within the meaning of subheading into the various categories cited in the next 3002 10 91 (the choice between those two paragraph. Sera are obviously out of the descriptions — blood globulin or serum question: according to the Customs globulin — is irrelevant here since both Co-operation Council's Explanatory Note come under the same tariff heading). I see no for heading 3002, section C, second para- reason not to agree.
8. I therefore p r o p o s e that the C o u r t give the following answer t o the questions s u b m i t t e d b y the national c o u r t :
T h e C o m m o n C u s t o m s Tariff c o m b i n e d n o m e n c l a t u r e is t o be interpreted as m e a n i n g that g o o d s p u t u p in sets ('test-kits') having a m o n o c l o n a l diagnostic reagent o r a n t i b o d y as their principal c o m p o n e n t are t o b e classified u n d e r s u b h e a d - ing 3002 10 91 ('other b l o o d fractions ... h a e m o g l o b i n , b l o o d globulins and s e r u m globulins').
3 — The Court has consistently held that those notes constitute a valuable aid in the interpretation of the OCT. Among other recent judgments, see Case 245/87 Blaupunkt-Werke v Oberfinanzdirektion Berlin [1989] ECR 573 (summary pub- lication), Case 164/88 Ministère Public v Rispal and Others [1989] ECR 2041 (summary publication) and Case C-265/89 Vismans Nederland v Inspecteur der Invoerrechten en Accijnzen [1990] ECR I-3411, paragraph 18. 4 — See the Explanatory N o t e for heading 3002, section C.That note is cited in full in the Report of die Judge-Rapporteur.
I-880